Opinion
June 20, 1906.
Terence Farley, for the appellant.
Max Schleimer, for the respondent.
Present — O'BRIEN, P.J., PATTERSON, McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ.
An alternative writ of mandamus is in the nature of a pleading and is equivalent to a complaint in an action ( People ex rel. Keene v. Supervisors, 142 N.Y. 271), and cannot be dismissed upon motion because the right to the relief asked is barred by the Statute of Limitations. That objection must be taken either in the return to the writ or by demurrer (Code Civ. Proc. § 2076), and if not thus taken is waived. The objection that the writ was not timely issued may also be waived. ( People ex rel. O'Shea v. Lantry, 44 App. Div. 392; People ex rel. Ehrlich v. Grant, 61 id. 238.) It does not affect a substantial right because it determine nothing in favor of the relator, nor against the respondent named in it. It cannot be set aside for any matter involving the merits. (Code Civ. Proc. § 2075.)
The writ and the return are substantially the same as a complaint and answer, upon which an issue of law arises if either of them is demurred to, or issue of fact if the facts set out in the petition, or any of them, are denied in the return. Until the issues thus raised have been determined the substantial rights of either party have not been affected. ( People ex rel. Ackerman v. Lumb, 6 App. Div. 26.)
The motion to dismiss was properly denied, but in affirming the order appealed from we do not wish to be understood as passing upon the question sought to be raised by the motion to dismiss. Such questions can only be determined in the manner indicated.
The order appealed from, therefore, is affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements. Order filed.