Opinion
Argued June 7, 1900
Decided June 22, 1900
George F. Langbein for appellant.
John Whalen, Corporation Counsel ( Theodore Connoly and William B. Crowell of counsel), for respondent.
An alternative writ of mandamus was first issued, to which the defendant made a return putting in issue many of the allegations of the alternative writ. The issues so raised were tried before a jury and a verdict was rendered in favor of the relator, upon which a peremptory writ of mandamus was issued. A motion was then made by the defendant for a new trial upon all the grounds mentioned in section 999 of the Code, which was denied. Thereupon an appeal was taken to the Appellate Division from both orders and they were reversed and a new trial of the issues granted. The relator then appealed to this court.
We are of the opinion that we have no jurisdiction to entertain the appeal. The issue joined upon an alternative writ of mandamus must be tried by a jury, as if it was an issue joined in an action in which the complaint demands judgment for a sum of money. (Code Civ. Pro. § 2083.) The verdict rendered has the same force and effect as in such an action and cannot be treated merely as advisory to the court. ( People ex rel. Hanrahan v. Board of Metropolitan Police, 26 N.Y. 316; People ex rel. D., W. P.R.R. Co. v. Batchellor, 53 N.Y. 128, 137; People ex rel. Coveney v. Kearny, 44 App. Div. 449, 453; affirmed in 161 N.Y. 648, on opinion below.)
The Appellate Division had jurisdiction to reverse upon the ground that the verdict rendered was against the weight of the evidence, and it does not appear from the record that the reversal was not based upon that ground. It follows that we have no jurisdiction to review the appeal. ( Chapman v. Comstock, 134 N.Y. 509, 512, and cases there cited; Mickee v. W.M. R.M. Co., 144 N.Y. 613; Hoes v. Edison Gen. El. Co., 150 N.Y. 87; Canavan v. Stuyvesant, 154 N.Y. 84; Henavie v. N.Y.C. H.R.R.R. Co., 154 N.Y. 278; Chapman v. Lynch, 156 N.Y. 551; Judson v. C.V.R.R. Co., 158 N.Y. 597.)
The proper remedy of the relator is a new trial of the issues joined upon the alternative writ. The appeal should, therefore, be dismissed, but under the circumstances, we think it should be without costs to either party.
PARKER, Ch. J., O'BRIEN, BARTLETT, VANN, LANDON and CULLEN, JJ., concur.
Appeal dismissed.