People ex rel. Kavanagh v. Grady

46 N.Y.S. 645 | N.Y. App. Div. | 1897

Per Curiam :

We are of opinion that the objection to the regularity of the writ of mandamus served on the respondents, in that it was issued on the order of this branch of the court instead of by the order of the Special Term, is not well founded. The provisions of section 206$ •of the Code of Civil Procedure, that a writ of mandamus ’can be granted only at a Special Term. of the court, apply only to an original application for the writ. That section does not limit the ■effect of section 1311 of the Code, that on appeal the Appellate Division may reverse, affirm or modify any order appealed to it. The authority for the issue of a writ in this case was the order of this division, made qu an appeal from an order denying the application for the writ. The order of this branch of the court required no action by the Special Term to give it full vitality and effect.

Defendants should be convicted of contempt and fined the sum of ten dollars and ordered to stand committed to the common jail of ■Queens county until they comply with the terms of the writ. ■

All concurred.

Defendants convicted of contempt and fined the sum of ten dollars, and directed to stand committed to the county jail of Queens ■county until they comply with the mandamus hitherto issued by this court. ■