Opinion
June 12, 1908.
Arthur M. Johnson, for the appellant.
Hugh A. Thornton, for the respondent.
The relator moved for a peremptory writ of mandamus. The Special Term made an order denying the motion for the peremptory writ but directing that an alternative writ issue. The relator appeals from that order and from each and every part thereof.
We think that the appeal should be dismissed. In People ex rel. Ackerman v. Lumb ( 6 App. Div. 26) the relator moved for a peremptory writ but the Special Term granted an alternative writ, and the respondents appealed. We held that the order was not appealable inasmuch as it was in the nature of an order to show cause, and did not affect a substantial right. (See, too, People ex rel. Levenson v. O'Donnel, 99 App. Div. 253, and cases cited; Merrill Mandamus, § 306; Baylies N.T. App. [2d ed.] 107.) Merrill on Mandamus ( supra) says: "When the court upon the hearing of the application decides that, upon the allegations made, the relator is not entitled to a writ of mandamus, and refuses to grant either a motion to show cause or an alternative writ, the prevailing opinion in America is, that such action is a final judgment, from which an appeal or a writ of error may be taken to the appellate court."
The appeal is dismissed, with ten dollars costs.
HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Appeal dismissed, with ten dollars costs.