Opinion
May 26, 1910.
Otto Kempner [ Clarence Kempner with him on the brief], for the appellant.
James D. Bell [ Archibald R. Watson with him on the brief], for the respondent.
An alternative writ of mandamus must contain a statement of the facts constituting the grievance to redress which it is issued. (Code Civ. Proc. § 2076; People ex rel. Post v. Ransom, 2 N.Y. 490.) It may be met either by a demurrer raising an issue of law or a return raising an issue of fact. (Code Civ. Proc. §§ 2076, 2077; People ex rel. Ackerman v. Lumb, 6 App. Div. 27.) Except as otherwise expressly prescribed in the Code of Civil Procedure, proceedings, after issue is joined either upon the law or upon the facts, are in all respects the same as in an action, and each provision of the Code relating to the proceedings in an action applies thereto, and for the purpose of the application the writ and the return or the writ and the demurrer are deemed to be pleadings in an action. (Code Civ. Proc. § 2082; People ex rel. Ryan v. Bingham, 114 App. Div. 170.)
The alternative writ issued in this proceeding states but three things: First, that the relator has complained to the Supreme Court against the maintenance of an ash and garbage dump and receiving station on Ridgewood avenue between Woodbine and Madison streets, in the borough of Brooklyn; second, that he has demanded of the board of health of the city of New York that said ash and garbage dump and receiving station be declared a public nuisance, and that the same be abated; and, third, that the board of health has unjustly refused and still refuses to proceed against said ash and garbage dump and has failed to abate the said nuisance.
We are not called upon to decide whether the relator has not wholly mistaken his remedy and whether, if a nuisance does exist, he should not be compelled to institute proceedings against the party maintaining the same for an abatement thereof. It is enough for the present to say that the alternative writ fails to state any facts as distinguished from conclusions of law from which the court may determine whether a nuisance does exist and whether relator has any grievance to be redressed. It is not sufficient that such facts may have been stated in the affidavits used in the application for the writ. They must appear in the writ itself. Instead of demurring to the writ, as would have been the better practice, a return was filed. This, however, does not waive substantive defects in the writ, and objections to it upon such grounds may be raised at any time before a peremptory writ issues. (Code Civ. Proc. §§ 499, 2076; Commercial Bank of Albany v. Canal Comrs., 10 Wend. 25; People ex rel. Ryan v. Green, 58 N.Y. 295; People ex rel. Bacon v. Northern Central R. Co., 164 id. 289; People ex rel. Fogarty v. Cassidy, 118 App. Div. 693.)
This proceeding was brought to a hearing upon the writ and return in the Trial Term of the Supreme Court of Kings county, and after a jury had been sworn a motion was made to quash and set aside the writ upon the ground of the insufficiency thereof, which motion was granted, and from the order entered on such decision this appeal is taken.
The learned counsel for the appellant attacks this order upon the ground, first, that an alternative writ of mandamus cannot be quashed or set aside upon motion for any matter involving the merits. (Code Civ. Proc. § 2075.) The motion made to quash or set aside the writ did not involve the merits, and the order entered thereon was no more an adjudication upon the merits than any judgment of nonsuit in an action. All that the determining part of the order did was to quash the writ. It did this because the writ did not contain a proper and sufficient statement of the facts constituting relator's grievance, if any, to entitle him to the redress sought. The order would not bar a new proceeding for the same relief if relator could state facts entitling him thereto.
The learned counsel for the appellant further claims that a motion to set aside an alternative writ of mandamus for any other cause than a matter involving the merits can only be made at a term whereat the writ might have been granted, to wit, at a term of the Appellate Division of the Supreme Court, or at a Special Term of the same court. (Code Civ. Proc. §§ 2068, 2069, 2075.) If the objection were otherwise well taken, it is a complete answer to it that it clearly appears that the relator and appellant waived any right which he might have had to insist that the motion should be made at a Special rather than a Trial Term of the Supreme Court, and proceeded to argue and did argue the questions involved, without objection, in that branch of the court where the proceeding then was for hearing and determination. As the provision as to the place of hearing related simply to a matter of procedure, it was within his power to waive it. An appeal from a final order made upon an alternative mandamus must be taken as an appeal from a judgment. (Code Civ. Proc. § 2087.) This appeal should not have been placed upon the non-enumerated calendar.
The final order appealed from should be affirmed, with costs.
HIRSCHBERG, P.J., JENKS, RICH and CARR, JJ., concurred.
Final order affirmed, with costs.