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ternative writ of mandamus, is triable, as prescribed in this article. In effect Jan. 1, 1896; L. 1895, ch. 946. New. People v. Supervisors of Greene, 12 Barb. 217, 219; see Rule 46.
$ 2069. (Amended, 1895. ] Id. ; at term of the appellate division of the supreme court.-. A writ of mandamus may be granted, at a term of the appellate division of the supreme court only, directed generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges of the same court named therein, in any case where such a writ may be issued out of the supreme court, directed to any other court, or to a judge thereof. Such a writ can be granted only at a term of the appellate division of the judicial department embracing, the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter sought to be enforced by the mandamus originated, unless that term is not in session; in which case, it may be granted at a term of the appellate division of an adjoining judicial department.
In effect Jan. 1, 1896 ; L. 1895, ch. 946.
L. 1873, ch. 70, part of $1 (9 Edm, 575). People v. Sheriff of Rensselaer, 1 Code R. 135 ; see People v. Supervisors of Schuyler, 2 Abb. Pr. (N. S.) 78, and People v. Green, 58 N. Y. 295.
$ 2070. (Amended, 1895.] When peremptory mandamus to issue in first instance.—A perempiory writ of mandamus may be issued, in the first instance, where the applicant's right to the mandamus depends only upon questions of law, and notice of the application has been given to a judge of the court, or to the corporation, board, or other body, officer, or other person, to which or to whom it is directed. The notice must be served, at least eight days before the application is heard; unless a shorter time is prescribed by an order to show cause, made, where the application is to the special term, by the court, or a judge thereof; or where the application is to the appellate division, by the appellate division, or a justice of the appellate division of that judicial department. In such a case the application must be founded upon affidavits, or other written proofs, a copy of which must be served with the notice, or order to show cause. Where the court, board or other body to be served, consists of three or more members, the notice or order to show cause, and the papers upon which the application is to be made, may be served, as prescribed in the next section for service of an alternative writ of mandamus. Except as prescribed
in this section, or by special provision of law, a peremptory mandamus cannot be issued, until an alternative mandamus has been issued and duly served, and the return day thereof has elapsed.
In effect Jan. 1, 1896; L. 1895, ch. 946.
New. See People v. Contracting Board, 27 N. Y. 379; People 0. Judges of Ulster, 1 Johns. 64 ; People v. Supervisors of Dutchess, 3 How. Pr. 379; Ex parte Rogers, 7 Cow. 526; Ashley's Case, 4 Abb. Pr. 35; People v. Supervisors of Westchester, 12 Barb. 446 ; People v. Board of Assessors, 52 How. Pr. 140.
§ 2071, Alternative writ; how served. -An alter. native writ of mandamus must be served, by showing the original writ, and delivering a copy thereof, to the person to be served. Where it is directed to a court, or to the judge or judges of a court, it must be served, either in term time or in vacation, upon the judge or judges of the court ; except that, where the court con. sists of three or more judges, service upon a majority of them is sufficient. Where it is to be served upon a board or body, other than a corporation, service must be made upon a majority of the members thereof, unless the board or body was created by law, and has a chair. man or other presiding officer, appointed pursuant to law; in which case, service upon him is sufficient. Where the writ is to be served upon a corporation, service thereof may be made upon any officer, upon whom a summons, issued out of the supreme court, may be served.
Where one or more of the persons, upon whom to make service, as prescribed in this section, cannot, after due diligence, be found, the exhibi. tion of the original writ may be dispensed with, and service may be made upon him or them, as prescribed by law for the service of a summons, issued out of the supreme court.
New. People v. Westchester C. P., 4 Cow.73; 3. C., id. 403; People v. Ulster Judges, etc., 1 Johns. 64; People v. Herkimer C. P . 7 Wend. 536 ; People v. Essex C. P., 1 low. Pr. 114; People v. Contracting Board, 20 How. Pr. 206 ; People v. Rensselaer C. P., 3 Ilow. 169; People v. Fisk, 3 Pars. Sup. Ct. 461.
§ 2072. (Amended, 1895.] Writ; how returnable.- An alternative writ must be made returnable twenty days after the service thereof, at the office of the clerk of the county, designated therein, in which an issue of fact joined thereupon is triable. A peremptory writ must be made returnable at a special term or å term of the appellate division of the supreme court,
designated therein, to which application for the alternative writ might have been made. In effect Jan, 1, 1896; L. 1895, ch. 946. New. People v. Supervisors of Greene, 12 Barb. 217; People v. Com. of Highways, 11 How. Pr. 89; People v. N. Y. C. P.. 13 Wend. 655, note, Rule
46 ; People v. Sheriff of Rensselaer, 1 Code R. 135; Commercial Bank of Albany v. Canal Commissioners, 10 Wend. 25, 31.
$ 2073. Return or demurrer to first writ.—Where the first writ of mandamus has been duly served, a return must be made to the same, as therein required, unless it is an alternative writ, and a demurrer thereto is taken. In default of a return, the person or persons, upon whom the writ was served, may be punished, upon the application of the people, or of the relator, for a contempt of court.
2 R. S. 586, 254 (2 Edm. 608), amended, $ 2076. People v. Harris, 6 Abb. Pr. 30; People v. Westchester C. P., 4 Cow. 73 ; s. C., 4 id. 403 ; People v. Baker, 35 Barb. 105.
$ 2074. [Amended, 1895.] Return, how made. -The return to an alternative writ of mandamus must be annexed to a copy of the writ; and must be filed, in the office of the clerk, where it is returnable, within the time specified in the writ. The return to a peremptory writ of mandamus must be likewise annexed to a copy thereof; and must, before the expiration of the first day of the term at which it is returna ble, be either delivered in open court, or filed in the office of the clerk of the county wherein the term is to be held. In effect Jan. 1, 1896; L. 1895, ch. 946. New. See ss 2012 and 2073, ante.
§ 2075. Motion to set aside writ. in alternative writ of mandamus cannot be quashed or set aside upon motion, for any matter involving the merits. A motion to set aside such a writ, for any other cause, or to set aside or quash a peremptory writ of mandamus, or to set aside the service of either writ, must be made at a term, whereat the writ might have been granted.
New Commercial Bank v. Canal Commissioners, 10 Wend. 25 ; Peo. ple v. Supervisors of Ulster, 32 Barb. 473, 478; see People v. Russell, 19 Abb. Pr. 136 ; People v. Wesichester C. P., 4 Cow. 73; People v. Col. Jins, 19 Wend. 56, 67; People v. Tracy, 1 How. 186 ; Fish v. Weatherwax, 2 Johns. Cas. 215, 217; People v. Ransom, 2 N. Y. 490, 492 ; People v. Sup. Fulton Co., J4 Barb. 52; see People v. College of Physicians and Surgeons, 7 How. 290.
§ 2076. Contents of alternative writ; demurrer thereto. The statement, contained in an alternativo
writ of mandamus, of the facts constituting the griev. ance, to redress which it is issued; the joinder therein of two or more such grievances; and the command of the writ, are subject to the provisions of chapter sixth of this act, respecting the statement, in a complaint, of the facts constituting a cause of action ; the joinder therein of two or more causes of action; and the de. mand of judgment thereupon. The person, upon whom the writ is served, instead of making a return thereto, may file in the office where the writ is returnable, a demurrer to the writ; or he may file a demurrer to a complete statement of facts contained in the writ, as constituting a separate grievance, and make a return to the remainder of the writ. A demurrer may be thus taken, in a case where a defendant may demur to a complaint, or to a cause of action separately stated in a complaint, as prescribed in chapter sixth of this act; and it must be in like form.
New. People v. Lewis, 28 How. Pr. 470 ; Com. Bank of Albany o. Canal Com’rs, 10 Wend. 25; People v. Sup. of Westchester, 15 Barb. 607; People v. Columbia C. P., 3 How. Pr. 30 ; People v. Martin, 62 Barb. 570; People v. Com. Council of N. Y., 3 Keyes, 81 ; People v. Rensselaer C. P. 3 How. 164 ; People v. Owenshire, 41 id. 164; People v. Ransom, 2 N. Y. 490; Fish v. Weatherwax, 2 Johns. Cas. 215, 217.
§ 2077. Form and contents of return.—The provisions of chapter sixth of this act, relating to the form and contents of an answer, containing denials and alle. gations of new matter, except those provisions which relate to the verification of an answer, and to a counterclaim contained therein, apply to a return to an alter. native writ of mandamus, showing cause against obey. ing the command of the writ. For the purpose of the application, each complete statement of facts, assigning a cause why the command of the writ ought not to be obeyed, is regarded as a separate defence, and must be separately stated, and numbered.
New. See 88 498, 499, 500, and 507, ante. Vail ads. People, 1 Wend. 38; People v. Supervisors of Ulster, 32 Barb. 473;
People v. Baker, 35 id. 105; 8. c., 14 Abb. 19; Com. Bank of Albany v. Canal Com'rs, 10 Wend. 25 People v. Supervisors of Fulton, 14 Barb. 52, 54; People v. Supervisors ol Ulster, 32 jd. 473;. People v. Ransom, 2 N. Y. 490 ; People v. Com. Highways of Ft. Edward, il How. 89; Matter of Williamsburgh, 1 Barb. 34 ; People v. Supervisors of N. Y., 18 How. 152; s. C., 10 Abb. 223, and a How. 288; People v. Supervisors of Richmond, 28 N. Y. 112; People o. Schuyler, 51 How. Pr. 461.
2078. Further return cannot be compelled ; demur. rer to return.-A person, who has made a return to an
alternative mandamus, cannot be compelled to make a further return. The people, or the relator, may demur to the return, or to any complete statement of facts, therein separately assigned as a cause for disobeying the command of the writ, on the ground that the same is insufficient in law, upon the face thereof.
New. See People v. New York, 9 Wend. 429 ; People v. Owenshire, 41 How. Pr. 164; see, also, 2 R. S. 586, 8 55 (2 Edm. 608), 494, ante; People v. Judges of Columbia C. P., 3 How. 30; People v. Martin, 62'Barb. 570, 576; People v. Supervisors of Westchester, 73 N. Y. 173; 'People v. Board of Apportionment, 3 llun, 11.
8 2079. Issue of fact; when it arises.-An issue of fact arises upon a denial, contained in the return, of a material allegation of the writ, or upon a material alle. gation of new matter, contained in a return; unless a demurrer thereto is taken. Where the people or the relator demur to a complete statement of facts, sepa. rately assigned as cause for disobeying the command of the writ, an issue of fact arises, with respect to the remainder of the return.
New. See 2 964, ante. People v. Board of Assessors, 7 Hun, 228; People v. Com’rs of Ft. Edward, il How. Pr. 89; People v. Vail, 1 Wend.38; People v. Board of Police, 26' N. Y. 316.
§ 2080. Application of certain provisions of chapter sixth.—Oral pleadings upon a writ of mandamus are abolished, and no pleadings are allowed, except as prescribed in the foregoing sections of this article. The provisions of title second of chapter sixth of this act apply to the writ and the return; except that it is not necessary to serve a copy of either, upon the attorney for the adverse party, or to verify either, and that neither can be amended, without special application to the court, or stricken out as sham.
New. People v. Com. of Highways, 6 Wend. 559 ;. People v. Beebe, ? Barb. 379; see 83 518-546, ante; People v. Ransom, 2 N. Y. 496.
$ 2081, Service of notice of filing return, and de murrerWhere a return to an alternative writ of mandamus has been filed, the attorney for the defend. ant making it must serve, upon the attorney for the people or the relator, a notice of the filing thereof. Where the people or the relator demur to the return, or to a part thereof, a copy of the demurrer must be served upon the attorney for the defendant, within twenty days after the service of such a notice. Where the defend.