Legal Opinion

Rexford Flats Bridge Co. v. Canal Board

Appellate Division of the Supreme Court of the State of New York

Decided May 5, 1915PublishedCited by 3 opinions

Appeal by the petitioner, Rexford Flats Bridge Company, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 15th day of October, 1914, denying an application for a peremptory writ of mandamus. Order affirmed, with costs, upon the opinion of Mr. Justice Borst at Special Term.

1Opinion of the Court

All concurred, except Howard, J., dissenting.

The following is the opinion of the court below:

Borst, J.:

On a motion for a peremptory writ of mandamus the allegations in the opposing affidavits will be considered to be true. (People ex rel. Rau v. York, 31 App. Div. 527; People ex rel. Croft v. Keating, 49 id. 123; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.)

If the relator, notwithstanding the conflicting statements in the affidavits, still demands a peremptory mandamus, this is equivalent to a demurrer and the question thus presented must be determined upon the assumption of the truth…

2Cases cited4 opinions

  1. People Ex Rel. Pumpyansky v. . KeatingNew York Court of Appeals · 1901
  2. People Ex Rel. Port Chester Savings Bank v. CromwellNew York Court of Appeals · 1886
  3. People Ex Rel. Mott v. . Board of SupervisorsNew York Court of Appeals · 1876
  4. People ex rel. Rau v. YorkAppellate Division of the Supreme Court of the State of New York · 1898

3Cited by3 opinions

  1. Hofeler v. BuckNew York Supreme Court · 1920
  2. Village of Massena v. St. Lawrence Water Co.New York Supreme Court · 1926
  3. Follett v. Water Works Co.New York Supreme Court · 1924

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