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Schlegel v. American Beer and Ale Bottling Co.

As is said by Chancellor WALWORTH in Donaldson v. Wood (22 Wend. 397), the court must consider the necessity and probable object of the change, and then give such construction to the language used by the lawmakers in providing the remedy as to carry their intention into effect so far as it can be ascertained from the terms of the statute itself ;" and this construction must be such as is warranted by the words of the act. The further principle of interpretation must be considered, viz., that all statutes in pari materia must be construed together.

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With these principles in mind, it seems clear that the legislature intended that the order of the judge should be served within the time when the answer was due, and when the statute provides that the answer should be due in six days that the order should be served within that time, and it seems unnecessary to discuss the reasonableness of such a construction, for it is fairly inferable from the section itself, as well as from general intent and purpose of the provision. This section took the place of the 2d Revised Statutes, 458, chap 8, title 4, art. 5, § 8, which authorized the plaintiff in an action against a corporation, founded on a note or other evidence of debt, to apply to the court for judgment on the return day, and the court then rendered judgment in favor of plaintiff unless it was made to appear that the corporation had a good and substantial defense on the merits. It is clear therefore that the return day under the old practice was the essential element of time, and the counsel is bound to construe the present provision in the light of the former legislation and the former practice.

The present practice only modifies the former by making it conform to the Code practice and compels the corporation to establish a prima facie case of mer

The People ex rel. Cavanagh v. McAdam.

its on or before the return day, whenever that may be. "When the object of the legislature is plain and [] unequivocal, courts ought, without violence to the

words, to adopt such a construction as will but ef fectuate the intentions of the lawgivers." I have no doubt that the construction given to this statute by the plaintiff was the just and proper one, and [] that the time in which the order of the judge must be served is limited in this court to six instead of twenty days.

Motion denied with costs.

THE PEOPLE, EX REL. CAVANAGH, APPELLANT, v. MCADAM, JUSTICE, RESPONDENT.

SUPREME COURT, FIRST DEPARTMENT; GENERAL TERM, OCTOBER, 1882.

S$ 2067, et seq., 2238.

Summary Proceedings.—When mandamus will not issue to compel justice to entertain.

Where the time of a justice, to whom an application for a precept in summary proceedings to remove a tenant from demised premises for non-payment of rent, was made, was required and devoted to other business having precedent demands upon him as a member of the court, and he was not the only officer to whom such application could regularly be made, Held, that he was reasonably excusable for not entertaining the application,['] and that under the circumstances, a mandamus to compel him to do so should be denied. [*]

The People ex rel. Cavanagh v. McAdam,

Although the Code provides that the judge or justice, to whom a petition in summary proceedings for removal of a tenant, is presented must thereupon issue a precept, it does not require him to withdraw his time and attention from the other necessary business of the court for that purpose, or deprive him of the original discretion vested in judicial officers. [2]

The allowance of a writ of mandamus is subject to the discretion of the court. [3]

(Decided November 24, 1883.)

Appeal from an order of the special term denying a motion for a mandamus.

The opinion states the facts.

Roscoe H. Channing, for appellant.

Henry Wehle, for respondent.

DANIELS, J.-The writ was applied for because the justice declined to entertain an application for summary proceedings to remove a tenant from demised premises for non-payment of $4.50 rent. The time of the justice appears by his return to have been required and devoted to other business having precedent demands upon him as a member of the court. And

because of that circumstance he was reasonably [1] excusable for not entertaining the application,

although the Code has declared that the judge or justice to whom such petition is presented must thereupon issue a precept (Code Civ. Pro. § 2238). For it did not declare that he must also withdraw his time and attention from the other necessary business of the

court for that purpose; and while the language of [] the section is mandatory in its terms, it still could not have been intended to deprive him of the ori

The People ex rel. Cavanagh v. McAdam.

ginal discretion vested in judicial officers (Spears v. Mayor, &c., 72 N. Y. 442).

If he had been the only officer to whom such an application could regularly be made a very different consideration would arise in the case, but by section 2234 of the Code of Civil Procedure a variety of other officers were vested with the same power, to whom the relator had the right to apply. And his application for this writ, instead of bringing his case before one of these other officers, indicates the existence of the disposition rather to annoy the justice proceeded against than to invoke the powers of the court for the purpose of redressing and vindicating a legal right. There is

nothing in De Hart v. Hatch (3 Hun, 375) counte[] nancing such a proceeding, and as the allowance of

the writ was subject to the discretion of the court (The People ex rel. Faile v. Ferris, 76 N. Y. 326), that

was, under the circumstances presented, very [] wisely exercised in refusing to order the writ to be issued.

The order should be affirmed, with costs.

DAVIS, P. J., and BRADY, J., concurred.

Bernard v. Morrison.

BERNARD v. MORRISON.

SUPREME COURT, FIRST DEPARTMENT, SPECIAL
TERM; OCTOBER, 1882.

$$ 487, 492.

Defendant cannot both answer and demur to same cause of action. When pleading is both answer and demurrer, defendant may

be compelled to make election.

Where there is but one cause of action set up in a complaint the defendant may answer or demur, but he cannot both answer and demur to it.[']

Where the paper served as an answer to a complaint is clearly an answer and demurrer, the remedy is to compel the defendant to elect whether he will stand on his answer or demurrer.[2]

(Decided October 21, 1882.)

Motion to compel defendant to elect between answer and demurrer contained in paper served by him

as answer.

The facts are stated in the opinion.

E. J. Myers, for motion.

John Graham, opposed.

POTTER, J.-This is a motion to compel this defendant to elect whether he will abide by his answer or demurrer. The paper served as an answer to the amended complaint is clearly an answer and demurrer (See paragraph 4, fol. 8.) It is in the words of subd.

8, § 488. Where there is but one cause of action [] the defendant may answer or demur, but he may not answer and demur to the same (§§ 487,

492).

The remedy to compel an election in such case

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