Opinion
February 7, 1908.
Theodore Connoly, for the appellant.
Lawrence E. French, for the respondent.
The defendant appeals from a peremptory order, made upon an order to show cause and affidavits requiring the defendant to issue a permit to Michael Brennan, designated as the relator, authorizing him to move a building along and across certain highways in the borough of the Bronx in the city of New York.
There is no authority for granting such an order in this form. It is not made in any action or recognized form of special proceeding, and is neither a mandatory injunction nor a mandamus nor an order for a mandamus. The papers are entitled "The People of the State of New York on the relation of Michael Brennan vs. Louis F. Haffen, President of the Borough of the Bronx," which seems to indicate that the so-called relator intended to apply for a mandamus. He asked, however, only for a peremptory order, and that is what was granted. If the proceeding had been treated as an application for a mandamus, the affidavit of the defendant should have been accepted as a return, and it would have been irregular and improper to receive, as was done, an affidavit from the so called relator replying to the defendant's affidavit. The proceeding was wholly irregular and the order unauthorized. Furthermore it was erroneous. The question involved and sought to be raised was expressly decided by this court adversely to the relator's contention in People ex rel. Ewing v. Haffen ( 119 App. Div. 889) affirming an order of a Special Term held by Mr. Justice O'GORMAN, refusing a similar application, although in that case the relator adopted a proper form of procedure.
The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
PATTERSON, P.J., McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.