People ex rel. Ernest Ochs, Inc. v. Hilliard
Appellate Division of the Supreme Court of the State of New York
Appeal by the relator, Ernest Ochs, Incorporated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1902, denying the relator’s application for a peremptory writ of. mandamus and dismissing the alternative writ of mandamus theretofore allowed herein, and also from a judgment of the Supreme Court in favor of the respondent entered upon said order in said clerk’s…
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Appeal by the relator, Ernest Ochs, Incorporated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1902, denying the relator’s application for a peremptory writ of. mandamus and dismissing the alternative writ of mandamus theretofore allowed herein, and also from a judgment of the Supreme Court in favor of the respondent entered upon said order in said clerk’s office on the 9th day of May,-1902, for the costs of said proceeding.
1Dissent
O’Brien, J. (dissenting):
I dissent, thinking that the Legislature did not intend in such a case that a forfeiture should be enforced. In Matter of Lyman (163 N. Y. 536) the court said: “At the time this proceeding was commenced, the appellant did not hold the certificate, but had prior thereto voluntarily surrendered it. * * * The question, therefore, is not whether his license could be canceled if he still held it, but whether it can be canceled for the sole purpose of forfeiting the rebate. The argument that, as he was not entitled to receive the certificate, he was not entitled to hold it,…
2Cases cited1 opinion
- Matter of LymanNew York Court of Appeals · 1900