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TITLE 2.

ceed thereupon, by statute or the common law, must be exercised in conformity to this article, in any case therein provided for.

Kinds of writ; how

tive writ granted.

ARTICLE FOURTH.

THE WRIT OF MANDAMUS.

SEC. 2067. Kinds of writ; how alternative writ granted.

2068. When writ granted at special term.

2069. Id.; at general term of supreme court.

2070. When peremptory mandamus to issue in first instancs.
2071. Alternative writ; how served.

2072. Writ; how returnable.

2073. Return or demurrer to first writ.

2074. Return; how made.

2075. Motion to set aside writ.

2076. Contents of alternative writ; demurrer thereto.

2077. Form and contents of return.

2078. Further return cannot be compelled; demurrer to return.
2079. Issue of fact; when it arises.

2080. Application of certain provisions of chapter sixth.

2081. Service of notice of filing return, and demurrer.

2082. Subsequent proceedings the same as in an action.

2083. Issue of fact; how triable.

2084. Id.; where triable.

2085. Issue of law upon general term mandamus; how and where triable. 2086. Costs.

2087. Appeals.

2088. When relator to recover damages.

2089. Stay of proceedings; enlargement of time.

2090. Fine in certain cases,

2067. A writ of mandamus is either alternative or alteru peremptory. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor; and either with or without previous notice of the application, as the court thinks proper.

When writ granted

at special

term.

§ 2068. Except where special provision therefor is other wise made in this article, a writ of mandamus can be granted only at a special term of the court. In the supreme

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court, the special term must be one held within the judi cial district, embracing the county, wherein an issue of fact, joined upon an alternative writ of mandamus, is triable, as prescribed in this article.

ART. 4.

general

supreme

2069. A writ of mandamus may be granted, at a gener- Id.; at al term of the supreme court only, directed generally to any term of judge holding, or to hold, a special term of the same court, court. or directed to one or more judges of the same court, named therein, in any case where such a writ may be issued out of the supreme court, directed to any other court, or to a judge thereof. Such a writ can be granted only at the general term of the judicial department, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter sought to be enforced by the mandamus originated, unless that general term is not in session; in which case, it may be granted at the general term of an adjoining judicial department.

peremp

damus to

first in

§ 2070. A peremptory writ of mandamus may be issued, When in the first instance, where the applicant's right to the man- tory mandamus depends only upon questions of law, and notice of issue in the application has been given to a judge of the court, or to stanos. the corporation, board, or other body, officer, or other person, to which or to whom it is directed. The notice must be served, at least eight days before the application is heard; unless a shorter time is prescribed by an order to show cause, made, where the application is to the special term, by the court, or a judge thereof; or, where the application is to the general term, by the general term, or a general term justice, of that judicial department. In such a case, the application must be founded upon affidavits, or other written proofs, a copy of which must be served with the notice, or order to show cause. Where the court, board, or other body to be served, consists of three or more members, the notice or order to show cause, and the papers

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TITLE 2.

Alternative writ;

how served

Writ;

how re

upon which the application is to be made, may be served, as prescribed in the next section for service of an alternative writ of mandamus. Except as prescribed in this section, or by special provision of law, a peremptory mandamus cannot be issued, until an alternative mandamus has been issued and duly served, and the return day therec f has elapsed.

§ 2071. An alternative writ of mandamus must be served, by showing the original writ, and delivering a copy thereof, to the person to be served. Where it is directed to a court, or to the judge or judges of a court, it must be served, either in term time or in vacation, upon the judge or judges of the court; except that, where the court consists of three or more judges, service upon a majority of them is sufficient. Where it is to be served upon a board or body, other than a corporation, service must be made upon a majority of the members thereof, unless the board or body was created by law, and has a chairman or other presiding officer, appointed pursuant to law; in which case, service upon him is sufficient. Where the writ is to be served upon a corporation, service thereof may be made upon any officer, upon whom a summons, issued out of the supreme court, may be served. Where one or more of the persons, upon whom to make service, as prescribed in this section, cannot, after due diligence, be found, the exhibition of the original writ may be dispensed with, and service may be made upon him or them, as prescribed by law for the service of a summons, issued out of the supreme court.

2072. An alternative writ must be made returnable turnable. twenty days after the service thereof, at the office of the clerk of the court, or, in the supreme court, the clerk of the county, designated therein, in which an issue of fact joined thereupon is triable. A peremptory writ must be made returnable at a general or a special term, desig nated therein, to which application for the alternative writ might have been made.

ART. 4.

demurrer

writ

2073. Where the first writ of mandamus has been duly Return or served, a return must be made to the same, as therein to first required, unless it is an alternative writ, and a demurrer thereto is taken. In default of a return, the person or persons, upon whom the writ was served, may be punished, upon the application of the people, or of the relator, for a contempt of court.

how

2074. The return to an alternative writ of mandamus Return: must be annexed to a copy of the writ; and must be filed, made in the office of the clerk, where it is returnable, within the time specified in the writ. The return to a peremptory writ of mandamus must be likewise annexed to a copy thereof; and must, before the expiration of the first day of the term at which it is returnable, be either delivered in open court, or filed in the office of the clerk of the court, or, in the supreme court, the clerk of the county wherein the term is to be held.

set aside

§ 2075. An alternative writ of mandamus cannot be Motion to quashed or set aside upon motion, for any matter involving writ the merits. A motion to set aside such a writ, for any other cause, or to set aside or quash a peremptory writ of mandamus, or to set aside the service of either writ, must be made at a term, whereat the writ might have been granted.

of altern

writ;

thereto.

§ 2076. The statement, contained in an alternative writ Contents of mandamus, of the facts constituting the grievance, to ative redress which it is issued; the joinder therein of two or demurrer more such grievances; and the command of the writ, are subject to the provisions of chapter sixth of this act, respecting the statement, in a complaint, of the facts constituting a cause of action; the joinder therein of two or more causes of action; and the demand of judgment thereupon. The person, upon whom the writ is served, instead of making a return thereto, may file in the office where the writ is return able, a demurrer to the writ; or he may file a demurrer to

TITLE 2.

Form and contents

a complete statement of facts contained in the writ, as constituting a separate grievance, and make a return to the remainder of the writ. A demurrer may be thus taken, in a case where a defendant may demur to a complaint, or to a cause of action separately stated in a complaint, as prescribed in chapter sixth of this act; and it must be in like form.

§ 2077. The provisions of chapter sixth of this act, relatof return. ing to the form and contents of an answer, containing denials and allegations of new matter, except those provisions which relate to the verification of an answer, and to a counterclaim contained therein, apply to a return to an alternative writ of mandamus, showing cause against obeying the command of the writ. For the purpose of the appli cation, each complete statement of facts, assigning a cause why the command of the writ ought not to be obeyed, is regarded as a separate defence, and must be separately stated, and numbered.

Further return cannot

be com

demurrer

§ 2078. A person, who has made a return to an alterna tive mandamus, cannot be compelled to make a further pelled; return. The people, or the relator, may demur to the to return. return, or to any complete statement of facts, therein separately assigned as a cause for disobeying the command of the writ, on the ground that the same is insufficient in law, upon the face thereof.

Issue of fact: when it arises.

§ 2079. An issue of fact arises upon a denial, contained in the return, of a material allegation of the writ, or upon a material allegation of new matter, contained in a return; unless a demurrer thereto is taken. Where the people or the relator demur to a complete statement of facts, separately assigned as cause for disobeying the command of the writ, an issue of fact arises, with respect to the remain der of the return.

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