Opinion
Argued June 8, 1914
Decided July 14, 1914
Frank L. Polk, Corporation Counsel ( Terence Farley of counsel), for appellants.
John T. Dooling, Herbert R. Limburg and Frederick C. Hunter for respondent.
The parties to a question in difference may submit it to the court pursuant to section 1279 of the Code of Civil Procedure if it might be the subject of an action. A mandamus proceeding is not an action, and the Appellate Division, therefore, did not have jurisdiction to direct the issuance of a peremptory writ upon the submission of a controversy pursuant to said section. However, this court has jurisdiction to entertain the appeal. We have examined the question involved because of its public importance and have reached the conclusion that the order should be reversed, with costs, for the reasons stated in the dissenting opinion of INGRAHAM, P.J., below, and because the Appellate Division did not have jurisdiction to make it.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, COLLIN, HOGAN, MILLER and CARDOZO, JJ., concur.
Order reversed.