ART. 4. tion of provis chapter § 2080. Oral pleadings upon a writ of mandamus are Applicaabolished, and no pleadings are allowed, except as pre- certain scribed in the foregoing sections of this article. The pro- fons of visions of title second of chapter sixth of this act apply to sixth. the writ and the return; except that it is not necessary to serve a copy of either, upon the attorney for the adverse party, or to verify either, and that neither can be amended, without special application to the court, or stricken out as sham. Service of notice of filing re turn and 2081. Where a return to an alternative writ of mandamus has been filed, the attorney for the defendant making it must serve, upon the attorney for the people or the relator, demurrer. a notice of the filing thereof. Where the people or the relator demur to the return, or to a part thereof, a copy of the demurrer must be served upon the attorney for the defendant, within twenty days after the service of such a notice. Where the defendant demurs to the writ, or to a part thereof, a copy of the demurrer must be served upon the attorney for the people or the relator, within the time prescribed by law for filing it. quent ings the same as in au action. § 2082. Except as otherwise expressly prescribed in this subse act, the proceedings, after issue is joined, upon the facts or proceedupon the law, are, in all respects, the same as in an action; and each provision of this act, relating to the proceedings in an action, apply thereto. For the purpose of the application, the writ, the return, and the demurrer are deemed to be pleadings in an action; and the final order is deemed to be a final judgment, and may be entered and docketed, and enforced, with respect to such parts thereof as are not enforced by a peremptory mandamus, as a final judgment in an action. But before the final order can be docketed, or an execution issued thereupon, an enrollment must be filed thereupon, as a judgment-roll in an action. For that purpose, the clerk must attach together and file in his office, a certified copy of the final order; the writ and the return, or copies thereof; TITLE 2. together with the same papers, which are required by law to be incorporated into a judgment-roll in an action. Where the final order is in favor of the people or the relator, it must award a peremptory mandamus, to be forthwith issued. Issue of faot; how triable. Id.; where triable. Issue of law upon general term § 2083. An issue of fact, joined upon an alternative writ of mandamus, must be tried by a jury, as if it was an issue joined in an action specified in section 968 of this act; unless a jury trial is waived, or a reference is directed by consent of parties. Where the writ was issued upon the relation of a private person, the relator or the defendant is entitled to a verdict, report, or decision, where he would be entitled thereto, if the issue was joined in an action, brought by the relator against the defendant, to recover damages for making a false return. § 2084. An issue of fact, joined upon an alternative writ of mandamus, granted at a special term of the supreme court, is triable in the county, wherein it is alleged in the writ, that the material facts took place, unless the court directs it to be tried elsewhere. An issue of fact, joined upon an alternative writ of mandamus, granted at a general term, is triable in the county, which determines the judicial department, wherein the application for the writ must be made; unless the general term directs it to be tried in another county of the same judicial department. Where the writ was granted at the general term, the general term may detail a general term justice, of the same or another judicial department, to preside at the trial. Upon the trial of an issue of fact, joined upon an alternative writ of mandamus, the verdict, report, or decision must be returned to, and the final order thereupon must be made by, the general or the special term, as the case requires. § 2085. An issue of law, joined upon an alternative writ of mandamus, granted at the general term, must be tried, ART. 4. and the final order thereupon must be made, at the general manda term. mus; how and where triable. § 2086. Where an alternative writ of mandamus has Costs. been issued, costs may be awarded, as in an action; except that, upon making a final order, the costs are in the discretion of the court. Where a peremptory mandamus is granted, without a previous alternative mandamus, costs, not exceeding fifty dollars and disbursements, may be awarded to either party, as upon a motion. § 2087. An appeal from an order granting a peremptory Appeals. writ of mandamus, where an alternative writ of mandamus was not previously issued, must be taken as from a final order made in a special proceeding. An appeal from a final order made upon an alternative mandamus, must be taken, as an appeal from a judgment; and each provision of law, relating to an appeal from a judgment, either to the general term or to the court of appeals, is applicable thereto. But where an appeal is taken, as prescribed in this section, from an order of the general term, granting a peremptory mandamus, made upon an original application, or from a final order, made upon an alternative mandamus, granted at the gen eral term, the execution of the order appealed from shall not be stayed, except by the order of the same general term, made upon such terms, as to security or otherwise, as justice requires. lator to damages § 2088. Where a return has been made to an alternative When re writ of mandamus, issued upon the relation of a private recover person, the court, upon making a final order for a peremp tory mandamus, must also, if the relator so elects, award to the relator, against the defendant who made the return, the 199 TITLE 2. Stay of proceedings; enlargement same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator may require his damages to be assessed upon the trial of an issue of fact, if the verdict, report, or decision. is in his favor. Where he is entitled to a final order, for any other cause, he may require them to be assessed as in an action. Such an assessment of damages bars an action for a false return. § 2089. The proceedings upon a writ of mandamus, granted at a special term, may be stayed, and the time for of time. making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by a judge of the court, but not by any other officer. Where the writ was granted at the general term, an order staying the proceedings, or enlarging the time to make a return, can be made only by a general term justice of the same department; and where notice has been given of an application for a mandamus at a general term, or an order has been made to show cause, at a general term, why a mandamus should not issue, a stay of proceedings shall not be granted, before the hearing, by any court or judge. Fine in certain cases. § 2090. Where a final order awards a peremptory mandamus, directed to a public officer, board, or other body, commanding him or them to perform a public duty, enjoined upon him or them by special provision of law, if it appears to the court, that the officer, or one or more members of the board or body, have, without just excuse, refused or neg lected to perform the duty so enjoined, the court, besides awarding to the relator his damages and costs, as prescribed in this article, may, in the same order, impose a fine, not exceeding two hundred and fifty dollars, upon the officer, or upon each member of the board, who has so refused or neglected. The fine, when collected, must be paid into the treasury of the State; and the payment thereof bars any action for a penalty, incurred by the person so fined, by reason of his refusal or neglect to perform the duty so enjoined. ART. & ARTICLE FIFTH. THE WRIT OF PROHIBITION. SEC. 2091. Kinds of writ; how granted. 2092. When writ granted at special term. 2093. Id.; at general term of the supreme court. 2094. Alternative writ must issue first; its contents. 2095. Id.; when returnable; how served. 2096. Absolute writ issues, unless return made. 2097. Legal objections, how taken; motion to quash or set aside writ. 2100. Final order; costs. 2101. Appeals. 2102. Stay of proceedings; enlargement of time. writ; how 2091. A writ of prohibition is either alternative or Kinds of absolute. The alternative writ may be granted upon an granted. 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. writ term. $2092. Except where special provision therefor is other when wise made in this article, an alternative writ of prohibition granted In the at special can be granted only at a special term of the court supreme court, the special term must be one held within the judicial district, embracing the county, wherein the action. is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated. general the su court. § 2093. An alternative writ of prohibition may be granted Id.; at at a general term of the supreme court only, directed gen- term of erally to any judge holding, or to hold, a special term of the preme same 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 proceed [26] 201 |