least. People ex rel. Collins v. Ahern (1911), 146 App. Div. 135, 130 N. Y. Supp. 497.

Where affidavits presented in opposition to a motion for an alternative writ of mandamus are received without objection, and the questions involved are argued upon the merits before the special term and upon appeal to the Appellate Division the proceeding may be treated as an application for a peremptory writ. People ex rel. Wilson v. African W. M. E. Church (1913), 156 App. Div. 386, 141 N. Y. Supp. 394.

Where a person dismissed from a civil service position on the ground that no appropriation had been made for his position, petitioned for a peremptory writ of mandamus to compel his reinstatement, he is entitled, on subsequently discovering that the head of his department had appointed a person in the exempt class to perform the same duties at a larger salary, to have his affidavits setting forth said facts made part of his moving papers. People ex rel. Schott v. Prendergast (1911), 148 App. Div. 135, 132 N. Y. Supp. 113.

Where technical objections are desired to be raised to the papers on an application for a peremptory writ of mandamus, their sufficiency should be challenged at the first opportunity, and the point should be stated in the order to have been preliminarily raised and passed upon by the court, otherwise the objection will be deemed to have been waived and cannot be urged upon appeal. Matter of Flaherty v. Craig (1918), 184 App. Div. 428, 171 N. Y. Supp. 624.

ARTICLE XIII.

STAY OF PROCEEDINGS; DAMAGES AND FINES.

(Fero, Spec. Pro., 3rd Ed., pp. 1503-1506.)

CODE CIV. PRO., § 2088. When relator to recover damages.

Code Civ. Pro., § 2088. When relator to recover damages.

Where a return has been made to an alternative writ of mandamus, issued upon the relation of a private person, the court, upon making a final order for a peremptory mandamus, must also, except where said writ is directed to a state officer, or officers, or an officer or officers of a municipal or private corporation, if the relator so elects, award to the relator, against the defendant who made the return, the same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator may require his damages where entitled thereto as aforesaid, to be

assessed upon the trial of an issue of fact, if the verdict, report or decision is in his favor. Such an assessment of damages bars an action for a false return.

Amended by L. 1913, ch. 574.

Section 1328 of the Code of Civil Procedure has no application to a writ of mandamus. People ex rel. K., A. C. & L. C. R. R. Co. v. Powers (1911), 73 Misc. 269, 130 N. Y. Supp. 865.

On a proceeding for a peremptory writ of mandamus by a school teacher against a board of education to compel the certification of the relator's pay-roll at a larger salary than had been certified no damages can be awarded. Section 2088 of the Code of Civil Procedure applies only where a final order for a peremptory writ is made after a return has been made to an alternative writ; and even then it is not applicable where a writ is directed to officers of a municipal corporation. People ex rel. Becker v. Board of Education (1916), 162 N. Y. Supp. 643.

An appeal from an order granting a peremptory writ of mandamus, where an alternative writ of mandamus was not previously issued, and an appeal from an order granting or denying an application for an alternative writ of mandamus, must be taken as from a final order made in a special proceeding. An appeal from a final order made upon an alternative mandamus, must be taken as an appeal from a judgment; and each provision of law, relating to an appeal from a judgment, either to the appellate division or to the court of appeals, is applicable thereto. But where an appeal is taken, as prescribed in this section, from an order of the appellate division, granting a peremptory mandamus, made upon an original application, or from a final order, made upon an alternative mandamus, granted at the appellate division, the execution of the order appealed from shall not be stayed, except by the order of the same appellate division, made upon such terms, as to security or otherwise, as justice requires. Amended by L. 1913, ch. 574.

A writ of mandamus is not always demandable as an absolute right; an application therefor is addressed in the first instance to the sound discretion of the court at special term, reviewable by the Appellate Division, and where it appears that the facts

are such as to justify the court in refusing the writ, as matter of discretion, the exercise thereof will not be interfered with unless it appears that there has been an abuse of judicial discretion. People ex rel. Clements v. Williams (1917), 100 Misc. 569, 166 N. Y. Supp. 560.

Where the jury finds for the relator on the trial of an alternative writ of mandamus, but a motion for a peremptory writ is denied, the verdict cannot be reviewed upon appeal where there was no motion for a new trial. People v. Johnson (1914), 161 App. Div. 625, 146 N. Y. Supp. 977.

Upon an appeal to the Appellate Division from an order simply denying an application for a peremptory writ of mandamus, when the answering affidavits, if true, constitute a defense, there is nothing for the court to review. Matter of Whitten (1912), 152 App. Div. 506, 137 N. Y. Supp. 360. No appeal to the Appellate Division lies from an order of the special term denying a relator's motion for a reargument of a motion for a writ of mandamus. People ex rel. Urban Water Supply Co. v. Connolly (1914), 164 App. Div. 163, 149 N. Y. Supp. 693, affd., 213 N. Y. 706.

Where the material allegations of a petition for a writ of mandamus are admitted, or not denied, and different inferences cannot be drawn therefrom, only a question of law is presented and the decision is upon the merits and appealable to the Court of Appeals. People ex rel. Van Tine v. Purdy (1917), 221 N. Y. 396. When an order of the Appellate Division denying an application for a writ of mandamus fails to indicate whether it was denied as a matter of law or in the exercise of discretion, the Court of Appeals may look into the opinion to ascertain upon which ground it based its decision, and, if it appears therefrom that the application was denied solely as a matter of law, the order is appealable. People ex rel. Flynn v. Woods (1916), 218 N. Y. 124. Where the special term, in the exercise of its discretion, denies an application for an alternative writ of mandamus and the Appellate Division also in the exercise of discretion affirms the order denying the application, the order of affirmance is not the object of review in the Court of Appeals. People ex rel. Elmira Advertiser Association (1918), 222 N. Y. 712.

Notwithstanding the denial of a motion for a peremptory writ

of mandamus as a matter of law and not as a matter of discretion if the Appellate Division be of the opinion that the writ should not issue as a matter of discretion the order denying it will be affirmed. Matter of Haydorn v. Carroll (1918), 184 App. Div. 151, 171 N. Y. Supp. 601.

An order granting or denying a peremptory writ of mandamus is appealable. Matter of Haydorn v. Carroll (1918), 184 App. Div. 151, 171 N. Y. Supp. 601.

NAME OF CORPORATION, PROCEEDINGS TO CHANGE NAME. See CORPORATIONS, CHANGING NAME OF.

NAME OF INDIVIDUAL, PROCEEDINGS TO CHANGE.

OFFICERS, PUBLIC, PROCEEDINGS TO COMPEL DELIVERY OF BOOKS AND PAPERS TO.

See PUBLIC OFFICERS, PROCEEDINGS TO COMPEL DELIVERY OF BOOKS AND PAPERS TO.

OFFICERS OF CORPORATIONS, SUPERVISION OF ELECTION OF. See CORPORATIONS, REVIEW OF ELECTION OF Officers of.

PERSON CONFINED FOR CRIME, CARE OF PROPERTY OF. See CRIME, CARE OF PROPERTY OF PERSON CONFINED FOR.

PROHIBITION.

(Fiero, Spec. Pro., 3rd Ed., pp. 1546-1574.)

Art.

I. The character and purpose of the writ.

II. When the writ lies; by what court granted.

III. The alternative writ and proceedings thereon.

VI. Quashing the writ, stay of proceedings and appeal.

ARTICLE I.

THE CHARACTER AND PURPOSE OF THE WRIT.

(Fiero, Spec. Pro., 3rd Ed., pp. 1547-1550.)

The writ of prohibition is an extraordinary writ, issuing out of a superior court, directed to the judge and parties of a suit in an inferior court, commanding them to cease the prosecution thereof, upon a suggestion that either the cause originally or some collateral matter arising therein is beyond the jurisdiction of the court. People ex rel. Jimeson v. Shongo (1913), 83 Misc. 325, 144 N. Y. Supp. 885. Such a writ is a preventive process and should never be resorted to except in cases where it is absolutely necessary to protect a party's rights, and where they cannot be safeguarded by an appeal. People ex rel. Heminway v. Bostlemann (1913), 82 Misc. 629, 144 N. Y. Supp. 148, 20 N. Y. Cr. 299; People ex rel. Woodbury v. Hendrick (1915), 215 N. Y. 339; People ex rel. United Building M. Co. v. Special Term (1911), 145 App. Div. 530, 130 N. Y. Supp. 553; People ex rel. Whitman v. Woodward (1912), 150 App. Div. 770, 135 N. Y. Supp. 373, 27 N. Y. Cr. 354; Matter of McIntyre v. Sawyer (1917), 179 App. Div. 535, 166 N. Y. Supp. 631. Where, however, a statute imposes restrictions as to the circumstances in which an inferior court or judge thereof may act in matters otherwise within its jurisdiction and these restrictions are disregarded, the party aggrieved may, in the discretion of the court, be entitled to a writ of prohibition. People ex rel. United Building M. Co. v. Special Term (1911), 145 App. Div. 530, 130 N. Y. Supp. 553.

Where it clearly appears that great public injury would be likely to follow if the writ of prohibition issued, and the moving papers do not show facts justifying a claim that irreparable in