People v. Onondaga C. P.
New York Supreme Court
A motion was made to vacate so much of the rule granting a peremptory mandamus in this case as awarded costs to the relator, on the ground that the peremptory mandamus was granted, not upon the coming in of a return to the alternative writ or the appearance of the party interested in the matter, but simply upon proof of the neglect of the judges to yield obedience thereto. It was contended that costs could not properly be awarded in such a case.
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A motion was made to vacate so much of the rule granting a peremptory mandamus in this case as awarded costs to the relator, on the ground that the peremptory mandamus was granted, not upon the coming in of a return to the alternative writ or the appearance of the party interested in the matter, but simply upon proof of the neglect of the judges to yield obedience thereto. It was contended that costs could not properly be awarded in such a case. The rule was granted in June last.
1Opinion of the Court
*599By the Court,
SUTHERLAND, J.
It might well have been questioned, previous to the act of 1833, giving power to this court in its discretion to award or refuse costs in suits and ceedings upon writs of mandamus, whether costs could erly be awarded upon granting a peremptory mandamus, where no return had been made to the alternative writ, and where there had been no appearance by the party to be affected by it. By the revised statutes, this court are authorized to award costs to the relator whenever a peremptory mandamus shall be granted, upon the coming in of a return to a previous writ, costs,…
2Cited by6 opinions
- Fish v. WeatherwaxNew York Supreme Court · 1801
- People ex rel. White v. Steuben C. P.New York Supreme Court · 1834
- People ex rel. Lumley v. LewisNew York Supreme Court · 1863
- People ex rel. Magee v. DensmoreNew York Supreme Court · 1847
- People ex rel. Fishers v. New-York Common PleasNew York Supreme Court · 1836
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