Small v. Moss

252 A.D. 287 | N.Y. App. Div. | 1937

Per Curiam.

The trial of the issues arising on the return to the alternate order of mandamus resulted in a verdict for the petitioner, but by stipulation findings were waived. The motion for a peremptory order made on the minutes at Special Term was denied. The appeal from such denial came before us on a record which contained neither findings nor the minutes of the trial.

In remitting the matter to the justice at Trial Term, we stated (252 App. Div. 71): “ Upon the evidence adduced before him, he should make specific findings upon all issues of fact involved. The matter may then be returned to Special Term for further determination. In the proper exercise of its discretion the court at Special Term should grant the peremptory mandamus order unless it appears from the findings of the trial court that the public health, safety or morals of the community would thereby be impaired.”

The trial justice having made specific findings to the effect that the erection and maintenance of the theatre in question would not impair public health, safety or morals of the community, it was error for Special Term to deny the peremptory order of mandamus.

As this record, like the former, does not contain the evidence upon which the trial justice made his findings, the question of the sufficiency of the evidence before him is not presented.

It follows, therefore, that the order appealed from should be reversed, with costs, and the motion granted.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order unanimously reversed, with costs, and motion granted. Settle order on notice.