Opinion
Argued April 16, 1878
Decided April 23, 1878
E. Countryman, for appellants. N.A. Halbert, for respondent.
We think that the order appealed from should be affirmed. To do that, we need not depart from any rule heretofore laid down by this court. The relator seeks to compel a return to an appeal taken by him. He has a right to take that appeal. If he has served the notice of appeal in due time, he has a right that a return shall be made to it. Whether he has a right to a reversal, or even to a review, of the decision of the canal appraisers is another question, to be determined by the appellate board. That inquiry is not now here, nor was it before the canal appraisers. All that is now here, and all that was before them, was whether he had a right to appeal, and to have a return made. And that depended not upon the right to ultimate success in his hearing before the appellate tribunal, but upon the right to take an appeal and have it heard; and that depended upon whether he had served the notice of appeal in time.
The counsel for the relator suggested the true distinction. When the act, the doing of which is sought to be compelled by mandamus, is the final thing, and if done gives to the relator all that he seeks proximately or ultimately, then the question whether he is entitled to have that act done, may be inquired into by the officer or person to whom the mandamus is sought, and is also to be considered by the tribunal which is moved to grant the mandamus; but where the act to be done is but a step towards the final result, and is but the means of setting in motion a tribunal which is to decide upon the right to the final relief claimed, then the inferior officer or tribunal may not inquire whether there exists the right to that final relief, and can only ask whether the relator shows a right to have the act done which is sought from him or it. Thus, if a justice of the peace decline to pay over to a person money paid into him on an execution issued by him, he may resist the application for a mandamus thereto, on the ground that the relator has no right to the money; but where, within the time prescribed by law, the relator has duly taken an appeal from the judgment of a justice of the peace, that officer cannot resist a motion for a mandamus that he make a return to the appellate court, on the ground that the relator cannot succeed in his appeal. That case and this are similar. The relator has in due time served a notice of appeal. There is but one duty for the defendants — that is, to make a return, so that the relator may present his case to the appellate board. With that board is the sole right in the first instance to decide upon the merits of the appeal. He is legally and equitably entitled to a return to his appeal. That is a ministerial act, properly the subject of the writ of mandamus, which is legally demandable from the persons to whom the writ must be directed, who still have it in their power to perform the duty required. The relator shows affirmatively that he has done that which is required of him by law as a condition precedent to the right demanded. ( The People ex rel. v. Hayt, 66 N.Y., 606.)
The order should be affirmed.
All concur.
Order affirmed.