People ex rel. Bentley v. Commissioners of Highways of Hndson
New York Supreme Court
A return having been made by the defendants to an alternative mandamus issued in this case, and the counsel for the relator being about to examine and discuss it for the purpose of shewing that the relator was entitled to a peremptory mandamus, the counsel for the defendants objected that he was not entitled to be heard at a non-enumerated term; that applying for a peremptory mandamus, he virtually demurred to the return, and that a demurrer could be urged only at a stated…
Read the full summary
A return having been made by the defendants to an alternative mandamus issued in this case, and the counsel for the relator being about to examine and discuss it for the purpose of shewing that the relator was entitled to a peremptory mandamus, the counsel for the defendants objected that he was not entitled to be heard at a non-enumerated term; that applying for a peremptory mandamus, he virtually demurred to the return, and that a demurrer could be urged only at a stated term of the court.
1Opinion of the Court
By the Court,
Sutherland, J.
On the coming in of a return to an alternative mandamus, it is provided by statute, *560that the person prosecuting the writ, may demur or plead to guck 0f (fjg faC£g contained in the return, as he thinks proper. ■ 2 R. S. 586, § 55. A similar statutory provision existed previous to the revision. 1 R. L. 107, § 2. Although these statutes contemplate formal written pleadings m the ordinary mode of conducting suits, the practice of the court is virtually to allow pleadings ore terns ; that is, the relator is permitted to discuss the return, and to ask for a peremptory…
2Cited by4 opinions
- People ex rel. McKnight v. BeebeNew York Supreme Court · 1847
- People ex rel. Dikeman v. President & Trustees of BrooklynCourt for the Trial of Impeachments and Correction of Errors · 1834
- People ex rel. Griffen v. SteeleNew York Supreme Court · 1848
- People ex rel. Neftaniel v. Order of American StarThe Superior Court of New York City · 1886