People ex rel. Ottman v. Commissioners of Highways of Seward
New York Supreme Court
THIS is an appeal from a judgment awarding a peremptory-mandamus against the defendants, and was entered upon the decision of Mr. Justice Gould, who tried the cause at the Schoharie circuit, in December, 1856, without a jury. An alternative mandamus had been issued to the defendants, requiring them to open a highway in Schoharie county, or show cause to the contrary.
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THIS is an appeal from a judgment awarding a peremptory-mandamus against the defendants, and was entered upon the decision of Mr. Justice Gould, who tried the cause at the Schoharie circuit, in December, 1856, without a jury. An alternative mandamus had been issued to the defendants, requiring them to open a highway in Schoharie county, or show cause to the contrary. The writ was wanting in most of the averments usual in such cases, except by a general reference to the affidavits and papers on which the order for the same was granted. For this cause the defendants, at the circuit, moved to…
1Opinion of the Court
By the Court, Hogeboom, J.
The proceeding by mandamus to compel commissioners of highways to open a road should not be resorted to where its necessary effect would be to subject them to an action of trespass. This would seem to be clear on principle, and is expressly adjudicated in Ex parte Clapper, (3 Hill, 458.) If, therefore, the facts shown or proposed to be proved, in this case, are of a character to establish a want of jurisdiction so as to make the proceedings entirely void, they furnish a sufficient ground for not awarding a peremptory mandamus ; unless for some good reason the parties…
2Cases cited6 opinions
- Prosser v. SecorNew York Supreme Court · 1849
- Fitch v. Commissioners of HighwaysNew York Supreme Court · 1839
- Commissioners of Highways of Warwick v. Judges of Orange CountyNew York Supreme Court · 1835
- Agent of the State Prison v. RikemamCourt for the Trial of Impeachments and Correction of Errors · 1845
- Tucker v. RankinNew York Supreme Court · 1853
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3Cited by15 opinions
- Middleton v. LowCalifornia Supreme Court · 1866
- Porter v. . PurdyNew York Court of Appeals · 1864
- Paige v. FazackerlyNew York Supreme Court · 1862
- People ex rel. Van Rensselaer v. Van AlstyneNew York Supreme Court · 1860
- Matter of BakerNew York Court of Appeals · 1903
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