Legal Opinion

People ex rel. Merriam v. Schoonmaker

New York Supreme Court

Decided May 7, 1855PublishedCited by 5 opinions

AN order was obtained for the defendant to show cause why a peremptory mandamus should not issue to compel the defendant to pay a draft of $648, which had previouslybeen given to John Post, a mill-owner on the Black river, below where the water is taken out of the river for the supply of the Black river and Erie canals, for diversion of water from said Post’s mill for the use of said canals.

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AN order was obtained for the defendant to show cause why a peremptory mandamus should not issue to compel the defendant to pay a draft of $648, which had previouslybeen given to John Post, a mill-owner on the Black river, below where the water is taken out of the river for the supply of the Black river and Erie canals, for diversion of water from said Post’s mill for the use of said canals. The draft was given by Hon. 0. Grardinier, canal commissioner, and had been duly transferred to the relator. At a special term held in the city of Albany, in June, 1854, a mandamus was directed to be…

1Opinion of the Court

By the Court,

Wright, J.

It is objected, preliminarily, that the appeal is improperly brought. It was taken under the statute of 1854, authorizing an appeal to the general term “ from any judgment, order or final determination made at any special term of the court, in any special proceeding therein.” (Laies ofl854, ch. 270.) The argument is that a mandamus is in the nature of an action, unaffected by the code of procedure, or its provisions relative to appeals, and is not a “ special proceeding,” within the meaning of the act of 1854. We are of the opinion that the law referred to authorizes…

2Cited by5 opinions

  1. State ex rel. Matthews v. WebberSupreme Court of Minnesota · 1883
  2. People ex rel. Lumley v. LewisNew York Supreme Court · 1863
  3. Parrott v. Knickerbocker Ice Co.The Superior Court of New York City · 1869
  4. People ex rel. Jacks v. DayCalifornia Supreme Court · 1860
  5. Tokvan Ly v. Jodi Harpstead, Minnesota Commissioner of Human ServicesSupreme Court of Minnesota · 2024

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