Legal Opinion

People Ex Rel. Lorillard v. . Clyde

New York Court of Appeals

Decided May 22, 1877Published

Appeal from order of the General Term of the Supreme Court in the first judicial department reversing an order of Special Term, which quashed a return to a writ of alternative mandamus and directed that a peremptory mandamus issue, and denying the motion, with liberty to the relator to demur, or, in such form as he may be advised, to take issue with the return.

1Per curiam

The appeal in this case cannot be sustained. The order from which the appeal was taken reversed the order of the Special Term quashing the return, and directing that a peremptory mandamus issue, with liberty to the relator to demur or take issue upon the allegations of the return. No judgment could be entered upon the order, and it stands in the same position as an order denying a motion for judgment upon a demurrer as frivolous, or denying a motion to strike out an answer. No appeal lies from such an order. It does not determine the action, and is not final because the relator has liberty…

2Cases cited2 opinions

  1. Coit v. . StewartNew York Court of Appeals · 1872
  2. Wilkin v. . RapleeNew York Court of Appeals · 1873

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