Opinion
November 14, 1917.
Duell, Warfield Duell [ Warren C. Van Slyke and R.W. France of counsel], for the appellant.
Christopher J. Heffernan, for the respondent.
A peremptory writ of mandamus issues only where the applicant's right to it depends upon questions of law. In every other case it cannot be issued until after an alternative writ. "Where, upon motion for a mandamus, opposing affidavits are read which are in conflict with the averments in the affidavits of the relator, and notwithstanding this the relator demands a peremptory writ, it is equivalent to a demurrer, and the question as to the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true." ( People ex rel. Corrigan v. Mayor, etc., 149 N.Y. 223; Matter of Haebler v. N.Y. Produce Exchange, Id. 414.)
The petitioner seeks the writ, as he says, in order that he may ascertain the value of his stock in the company, and bases his right to it, in part, upon the allegation that when he managed the company it paid dividends of ten per cent, but under the present management pays no dividends. The answering affidavits show that he already has ample information upon those subjects and that he is hostile to the interests of the company and for some years has been carrying on unfair competition with it, using all the information he may have to injure the company. According to the answer, the reason why dividends are not earned and paid now is on account of the unfair and unjust competition and illegal acts of the relator. (See Klauder-Weldon Dyeing Machine Co. v. Weldon, 166 App. Div. 415.) If the answer is true, and we see it is substantially admitted for the purpose of this appeal, it is clear that the relator is not seeking the writ for any reasonable or justifiable purpose, but for ulterior purposes.
The order should be reversed and the matter remitted to the Special Term, to the end that the relator may, within twenty days, if he so desires, reply to the answering affidavits, and ask for an alternative writ, with fifty dollars costs to the appellant to abide the event.
All concurred.
Order reversed and the matter remitted to the Special Term, to the end that the relator may, within twenty days, if he so desires, reply to the answering affidavits, and ask for an alternative writ, with fifty dollars costs and disbursements to the appellant to abide the event.