Opinion
December, 1904.
William B. Crowell, for the appellants.
Edgar M. Leventritt, for the respondent.
The respondent contends that the order is not appealable. The question has never been directly passed upon in this department, but it has been a frequent subject of discussion and adjudication in the other departments, and, therefore, aside from what would be the opinion of any of the members of this court, were the question a new one, we regard the contention of the respondent as too strongly fortified by precedent and authority to warrant our adopting a contrary view. ( People v. Ransom, 2 N.Y. 490; People ex rel. Lester v. Mitchell, 39 N.Y. St. Repr. 767; People ex rel. Ackerman v. Lumb, 6 App. Div. 26; People ex rel. Ranton v. City of Syracuse, 88 Hun, 203; Matter of Kreischer, 30 App. Div. 313; Matter of Goodwin, Id. 418.)
In People ex rel. Ackerman v. Lumb ( supra) it was said: "The order is not appealable. * * * An alternative mandamus is in the nature of an order to show cause. * * * It does not affect a substantial right because it determines nothing against the respondents or in favor of the relator. It cannot be quashed or set aside for any matter involving the merits. * * * An appeal from an order made in a special proceeding, like an appeal from an order made in an action, lies only when it affects a substantial right."
And in People ex rel. Lester v. Mitchell ( supra), a decision of the fourth department, it was held (head note) that "An appeal will not lie from an order granting an alternative writ of mandamus. The granting of such writ is a matter of discretion, and the remedy of a person aggrieved thereby is by appeal from the final order made in the proceeding."
The appeal, accordingly, should be dismissed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.