Opinion
Argued October 25, 1906
Decided October 26, 1906
William B. Ellison, Corporation Counsel ( Arthur C. Butts, Terence Farley and Thomas F. Noonan of counsel), for appellants. Otto T. Hess and Thomas W. Churchill for respondent.
Two questions are certified to us as follows: "(1) Was it error to dismiss an appeal to the Appellate Division from a final order granting a peremptory mandamus where the defendants have obeyed the writ by completely performing the acts which they were commanded to perform? (2) If it was error to dismiss such appeal, was the mandamus properly granted upon the papers presented to the Special Term?"
We decline to consider the second question, as the merits of this controversy are not before us.
We are of opinion that it was error on the part of the Appellate Division to dismiss the appeal from the final order granting a peremptory writ of mandamus even though the defendants had obeyed the writ in part by performing some of the acts which they were commanded to perform.
We do not answer the first question as framed, where it states that "the defendants have obeyed the writ by completely performing the acts," etc., as the duty imposed upon the board of elections under the statute is continuous and will not be completed until election day, for the board is required to cause to be published notices of the election on various days, some of which are still future.
It is a well-recognized principle that a party affected by an order commanding him to do an act retains the right to appeal therefrom so long as in the future the effect of the order may be to constrain his action.
The principle has recently been decided in this court in the cases of three policemen, argued together ( People ex rel. Hurlbut, Reardon and Kenny v. Bingham, as Police Commissioner of the City of New York) decided October 2d 1906 ( 186 N.Y. 522, 523), where we denied relators' motions to dismiss the appeals from orders of the Appellate Division in the second department, which affirmed orders granting relators' motions for writs of peremptory mandamus, directing their restoration to the police force, on the ground that the commissioner had complied with the orders, and the questions were, therefore, academic. In denying these motions we held that the commissioner had a right to appeal, as the effect of the writs was to continue the relators in office.
The order appealed from should be reversed, without costs, and the proceedings remitted to the Appellate Division.
First question certified answered as stated herein.
Second question not answered.
CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; GRAY, J., absent.
Order reversed, etc.