or judge must issue a warrant, reciting the facts, directed to a particular sheriff, or generally to any sheriff or constable, or to a person specially designated therein; and commanding him to take, and forthwith to bring before the court or judge, the prisoner, to be dealt with according to law. If the warrant is issued by a court, it must be under the seal thereof; if by a judge, it must be under his hand. From Id., § 65. § 2055. When offender to be arrested. Where the proof, specified in the last section is also sufficient to justify an arrest of the person having the prisoner in his custody, as for a criminal offence, committed in taking or detaining him, the warrant must also contain a direction to arrest that person, for the offence. From Id., § 66. § 2056. Execution of warrant; proceedings to relieve prisoner. The officer or other person, to whom the warrant is directed and delivered, must execute it by bringing the prisoner therein named, and also, if so commanded in the warrant, the person who detains him, before the court or judge issuing it; and thereupon the person detaining the prisoner must make a return, in like manner, and the like proceedings must be taken, as if a writ of habeas corpus had been issued in the first instance. From Id., § 67. § 2057. Id.; proceedings to punish offender. If the person having the prisoner in his custody, is brought before the court or judge, as for a criminal offence, he is entitled to be examined, and must be committed, bailed, or discharged, by the court or judge, as in any other criminal case of the same nature. From Id., § 68. § 2058. When appeal may be taken in cases under this article. An appeal may be taken from an order refusing to grant a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or to dismiss the proceedings. Where a final order is made, to discharge a prisoner, upon his giving bail, an appeal therefrom may be taken, before bail is given; but where the appeal is taken by the people, the discharge of the prisoner upon bail shall not be stayed thereby. An appeal does not lie, from an order of the court or judge, before which or whom the writ is made returnable, except as prescribed in this section. From parts of Id., § 69. § 2059. Id.; by people. An appeal from a final order, discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken, in the name of the people, by the attorney-general or the district-attorney. From Id., §§ 70 and 71. See 88 1356-1361, 2121. § 2060. Prisoner who appeals may be admitted to bail. Where a prisoner, who stands charged, upon a criminal accusation, with a bailable offence, has perfected, or intends to take, an appeal from a final order dismissing the proceedings, remanding him, or otherwise refusing to discharge him, made as prescribed in this article, the court or judge, upon his application, either before or after the final order. must, upon such notice to the district-attorney as the court or judge thinks proper, make an order, fixing the sum in which the applicant shall be admitted to bail, pending the appeal; and thereupon, when his appeal is perfected, he must be admitted to bail accordingly. From ch. 663 of 1873, § 1 (9 Edm. 704). § 2061. Id.; recognizance, etc. The recognizance for that purpose must be conditioned, that the prisoner will appear at a term of the appellate division of the supreme court to be held at a time and place designated in the order, and abide by and perform the judgment of* order of the appellate court. It must be taken and approved by a justice of the supreme court, or by the court or judge from whose order the appeal is taken, or by the county judge of the county in which the order was made. In all other respects, the proceedings are the same as prescribed in this article, where it appears, upon the return of a writ of certiorari, that the prisoner is entitled to be admitted to bail. From ch. 663 of 1873, part of § 1 (9 Edm. 704). Am'd by ch. 946 of 1895 § 2062. Id.; on appeal to court of appeal. Where a prisoner, who stands charged with an offense, specified in the last section, has perfected an appeal, to the court of appeals, from a final order of the supreme court, affirming an order refusing his discharge, or reversing an order granting his discharge, the court, from whose order the appeal is taken, or a judge thereof, must, upon his application, admit him to bail, as prescribed in the last section; except that the recognizance must be conditioned to appear, at a term of the appellate division of the supreme court from which the appeal is taken, to abide by and perform its judgment or order, made after the determination of the appeal. From Id. Am'd by ch. 946 of 1895. § 2063. Custody of prisoner until he gives bail. Where the sum, in which a prisoner shall be admitted to bail, has been fixed, as prescribed in either of the last two sections, he must remain in the custody of the sheriff of the county in which he then is, until he is admitted to bail, as therein prescribed; or, if he does not give the requisite bail, until the time to appeal has expired, or the apDeal is disposed of, and the further direction of the court, made there upon. From Id. § 2064. Recognizance valid for adjourned terms. Where no order or other direction of the court, relating to the disposition of the prisoner, is made at the term specified in a recognizance, given as prescribed in section two thousand and sixty-one or section two thousand and sixty-two of this act, the matter is deemed adjourned without an order to that effect, to the next term of the appellate division of the supreme court, to be held in the same department; and thereafter to each successive term, until such an order or direction is made. The prisoner is bound to attend at each successive term of the appellate division; and the recognizance is valid for his attendance accordingly. without any notice or other formal proceedings. Am'd by ch. 946 of 1895. So in the original. § 2065. Penalty for refusing copy of process, etc. An officer or other person, who detains any one by virtue of a mandate, or other written authority, must, upon reasonable demand, and tender of his fees, deliver a copy thereof to any person who applies therefor, for the purpose of procuring a writ of habeas corpus or a writ of certiorari in behalf of the prisoner. If he knowingly refuses so to do, he forfeits two hundred dollars to the prisoner. From 2 R. S. 573, Part 3, ch. 9, tit. 1, § 72 (2 Edm. 594). §2066. Application of this article to other writs of habeas corpus. Except as otherwise expressly prescribed by statute, the provisions of this article apply to and regulate the proceedings upon every common law or statutory writ of habeas corpus, as far as they are applicable; and the authority of a court or a judge, to grant such a writ, or to proceed thereupon, by statute or the common law, must be exercised in conformity to this article, in any case therein provided for. From Id., §§ 73 and 86. 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 term of appellate division of the supreme court. 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. 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. Kinds of writ; how alternative writ granted. A writ of mandamus is either alternative or 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. § 2068. When writ granted at special term. Except where special provision therefor is otherwise made in this article, a writ of mandamus can be granted only at a special term of the supreme court held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triable, as prescribed in this article. Am'd by ch. 946 of 1895. § 2069. Id.; at term of appellate division of the supreme court. A writ of mandamus may be granted, at a term of the appellate division of the supreme court only, directed generally to any judge holding, or to hold, a special term of the 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 a term of the appellate division 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 term is not in session; in which case it may be granted at a term of the appellate division of an adjoining judicial department. From ch. 70 of 1873, part of § 1. (9 Edm. 575). § 2070. When peremptory mandamus to issue in first instance. A peremptory writ of mandamus may be issued, in the first instance, where the applicant's right to the mandamus depends only upon question of law, and notice of the application has been given to a judge of the court, or to 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 appellate division, by the appellate division, or a justice of the appellate division 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 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 thereof has elapsed. Am'd by ch. 946 of 1895. § 2071. Alternative writ; how served. 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. Writ; how returnable. An alternative writ must be made returnable twenty days after the service thereof, at the office of 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 special term or a term of the appellate division of the supreme court, designated therein, to which application for the alternative writ might have been made. Am'd by ch. 946 of 1895. § 2073. Return or demurrer to first writ. Where the first writ of mandamus has been duly served, a return must be made to the same, as therein required, unless it is an alternative |