People ex rel. Ryan v. Bingham
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Theodore A. Bingham, as police commissioner of the city of New York, 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 16th day of May, 1906, denying the defendant’s motion to supersede or dismiss an alternative writ of mandamus theretofore granted herein.
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Appeal by the defendant, Theodore A. Bingham, as police commissioner of the city of New York, 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 16th day of May, 1906, denying the defendant’s motion to supersede or dismiss an alternative writ of mandamus theretofore granted herein. The motion to supersede or dismiss the alternative writ was made on the ground that the proceeding brought to compel the reinstatement of a police officer in the city of New York was not instituted within the time provided by…
1Opinion of the Court
Per Curiam :
An alternative writ of mandamus is in the nature of a pleading and is equivalent to a complaint in an action (People ex rel. Keene v. Supervisors, 142 N. Y. 271), and cannot be dismissed upon motion because the right to the relief asked is barred by the Statute of Limitations. That objection must be taken either in the return to the writ or by demurrer (Code Civ. Proc. § 2076), and if not thus taken is waived. The objection that the writ was not timely issued may also be waived. (People ex rel. O'Shea v. Lantry, 44 App. Div. 392; People ex rel. Ehrlich v. Grant, 61 id. 238.) It…
2Cases cited3 opinions
- People Ex Rel. Keene v. Board of SupervisorsNew York Court of Appeals · 1894
- People ex rel. Ackerman v. LumbAppellate Division of the Supreme Court of the State of New York · 1896
- People ex rel. O'Shea v. LantryAppellate Division of the Supreme Court of the State of New York · 1899
3Cited by4 opinions
- Mahoney v. Board of EducationAppellate Division of the Supreme Court of the State of New York · 1917
- People ex rel. Rudd v. CropseyAppellate Division of the Supreme Court of the State of New York · 1916
- Winter v. Board of AssessorsNew York Supreme Court · 1969
- People ex rel. Geraci v. Italian Ass'n St. Bartholomew Eoliana of Mutual AidAppellate Division of the Supreme Court of the State of New York · 1908