§§ 2085-2089 MANDAMUS. 137 must be made by the appellate division or the special term, as te case requires. § 2085. [Am'd 1895, amendment to take effect January 1, 189.] An issue of law, joined upon an alternative writ of andamus, granted by the appellate division must be tried, and the final order thereupon must be made, by the appelLate division. § 2086. Costs. [Am'd 1899, amendment to take effect September 1, 1899.1 Where an alternative writ of mandamus has been issued, costs may be awarded, as in an action; 64 How. Pr. except that, upon making a final order, the costs are in the 523. discretion of the court. Where an application for a peremp tory writ of mandamus is granted or denied, without a previous alternative mandamus, costs not exeeding fifty dollars and disbursements, may be awarded to either party, as upon a motion. § 2087. [Am'd 1895, amendment to take effect January 1, 34 Hun, 584. 1896]. An app al from an order granting a peremptory writ of mandamus, where an alternative writ of mandamus was not previously issued, 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 ajudgment; 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. 151N.Y.386 ? 2088. Where a return has been made to an alternative 118 N.Y. 101 writ of mandamus, issued upon the relation of a private person, the court, upon making a final order for a peremptory maudamus, must also, 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 to be assessed upon the trial of an issue of fact, if the verdict, report, or decision is in his favor. Where he is entitled to a final order, for any other cause, he may require them to be assessed as in an action. Such an assessment of damages bars an action for a false return. § 2089. [Am'd 1895, amendment to take effect January 1, 1896.] The proceedings upon a writ of mandamus, granted at a special term may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by a judge of the court, but not by any other officer. Where the writ was granted at a term of the appellate division, an order staying the proceedings or enlarging the time to make a return, can be made only by a justice of the ap 133 N.Y. 214, pellate division of the same department; and where notice has been given of an application for a mandamus at a term of the appellate division of the supreme court, or an order has been made to show cause, at such term, why a mandamus should not issue, a stay of proceedings shall not be granted before the hearing by any court or judge. § 2090. Where a final order awards a peremptory mandamus, directed to a public officer, board, or other body, commanding him or them to perform a public duty enjoined up on him or them by special provision of law, if it appears to the court, that the officer, or one or more members of the board or body, have, without just excuse, refused or neglected to perform the duty so enjoined, the court, besides awarding to the relator his damages and costs, as prescribed in this article, may, in the same order, impose a fine, not exceeding two hundred and fifty dollars, upon the officer, or upon each member of the board, who has so refused or neglected. The fine, when collected, must be paid into the treasury of the State; and the payment thereof bars any action for a penalty, incurred by the person so fined, by reason of his refusal or neglect to perform the duty so enjoined. § 2091. A writ of prohibition is either alternative or absolute. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor and either with or without previous notice of the application, as the court thinks proper. § 2092. Except where special provision therefor is otherwise made in this article, an alternative writ of prohibition can be granted only at a special term of the court In the supreme court, the special term must be one held within the judicial district, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated. 22093. [Am'd 1895, amendment to take effect January 1, 1896.] An alternative writ of prohibition may be granted at a term of the appellate division of the supreme court only, directed generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges of the same court, named therein, in any case where such a whit may be issued out of the supreme court, directed to any other court, or to a judge thereof. Such a writ can be granted only at the term of the appellate division of the judicial department, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated, unless a term of the appellate division of said department is not in session; in which case, it may be granted at a term of the appellate division in an adjoining judicial department. § 2094. Except as otherwise specially prescribed by law, an absolute writ of prohibition cannot be issued. until an alternative writ has been issued and duly served, and the return day thereof has elapsed. The alternative writ must be directed to the court in which, or to the judge before whom, and also to the party in whose favor, the proceedings to be restrained were taken, or are about to be taken. It must command the court or judge, and also the party, to desist and refrain from any further proceedings in the action or special proceeding, or with respect to the particular matter or thing described therein, as the case may be, until the further direction of the court issuing the writ; and also to show cause, at the time when, and the place where, the writ is made returnable, why they should not be absolutely restrained from any further proceedings in that action, special proceeding, or matter. The writ need not contain any statement of the facts or legal objections, upon which the relator founds his claim to relief. 2095. [Am'd 1895, amendment to take effect January 1, 1896.] The writ must be made returnable, either forthwith or at a day certain, before the term which granted it, or upon the first day of a future term, therein specified, at which application for the writ might have been made. Where it is granted at a term of the appellate division in a judicial department, adjoining that wherein the matter originated, it may, in the discretion of the court, be made returnable at a term of the appellate division of either department. The writ must be served on the court or judge, and also upon the party, as prescribed by law for the service of an alternative writ of mandamus. A copy of the papers, upon which it was granted, must be delivered with each copy of the writ. § 2096. [Am'd 1895, amendment to take effect January 1, 1896.] Where the alternative writ has been duly served upon the court or judge, and upon the party, the relator is entitied to an absolute writ, unless a return is made by the court or judge, and by the party, according to the exigency of the alternative writ, or within such further time as may be granted for the purpose. The return must be annexed to a copy of the writ; and it must be either delivered in open court, or filed in the office of the clerk of the county where the writ is returnable. Where the party makes a return, the court or judge must also make a return. In default thereof, the judge or the members of the court, may be punished, upon the application of the people or of the relator, for a contempt of the court issuing the writ. A return to an alter native writ of prohibition can not be compelled in any other case. § 2097. An alternative writ of prohibition cannot be quashed or set aside, upon motion, for any matter involving the merits. An objection to the legal sufficiency of the papers, upon which the writ was granted, may be taken in the return. A motion to quash an absolute writ of prohibition, or to set aside an alternative writ, for any matter not involving the merits, must be made at a term where the writ might have been granted. § 2098. A return to an alternative writ, when made by a party, must be verified by his affidavit, as required for the verification of a pleading in a court of record; unless it consists only of objections to the legal sufficiency of the papers upon which the writ was granted. Where the party unites with the court or judge in a return, or annexes, to the court's or the judge's return, an instrument in writing, subscribed by him. to the effect that he adopts it, and relies upon the matters therein contained, as sufficient cause why the court or judge should not be restrained, as mentioned in the writ, he is thenceforth deemed the sole defendant in the special proceeding; except that where a final order is made, awarding an absolute writ of prohibition, such a writ must be directed to the party, and also to the court or the judge. § 2099. [Am'd 1895, amendment to take effect January 1, 1896.] Pleadings are not allowed upon a writ of prohibition. Where an alternative writ has been issued the cause may be disposed of without further notice, at the term at which the writ is returnable. If it is not then disposed of. it may be brought to a hearing, upon notice, at a subsequent term. It must be heard at a term of the appellate division in the same judicial department, or at a special term held in the same judicial district, as the case may be. The relator may controvert, by affidavit, any allegation of new matter contained in the return. The court may direct the trial of any question of fact by a jury, in like manner and with like effect, as where an order is made for the trial, by a jury, of issues of fact, joined in an action triable by the court Where such a direction is given, the proceedings must be the same, as upon the trial of issues so joined in an action. 8 2100. Where a final order is made in favor of the relator, it must award an absolute writ of prohibition; and it may also direct that all proceedings, or any specified proceeding, theretofore taken in the action, special proceeding, or matter, as to which the prohibition absolute issues, be vacated and annulled. The writ of consultation is abol. ished. Where a final order is made against the relator, it must authorize the court or judge, and the adverse party, to proceed in the action, special proceeding, or matter, as §§ 2101-2105 ASSESSMENT OF DAMAGES. 141 if the alternative writ ha l not been issued. Costs, not exceeding fifty dollars and disbursements, may be awarded to either party, as upon a motion. $2101. [Am'd 1895, amendment to take effect January 1, 1896.] A final order, made as prescribed in the last section, can be reviewed only by appeal. Where the order was made by the appellate division, the execution of the order appealed from shall not be stayed, except by an order, made at a term of the appellate division in the samne department, upon such terms, as to security or otherwise, as justice requires. §2102. [Am'd 1895, amendment to take effect January 1, 1896.] The proceedings upon a writ of prohibition, granted at a special term, may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by the judge of the court, but not by any other officer. Where the writ was granted at a term of the appellate division, an order staying the proceedings, or enlarging the time to make a return, can be made only by a justice of the appellate division of the judicial department within which the writ is returnable; and where notice has been given of an application for a prohibition at a term of the appellate division, or an order has been made to show cause at such term, why a prohibition should not issue, a stay of proceedings shall not be granted before the hearing, by any court or judge. 2103. The writ, heretofore known as the writ of ad quod damnum, shall hereafter be styled the writ of assessment of damages. 2104. Whenever the governor of the State is authorized by law, to take possession of any real property within the State, for the use of the people of the State, and he cannot agree with the owner or owners thereof for its purchase, he may cause application to be made to the supreme court, at a special term thereof, for a writ of assessment of damages, which must be granted accordingly. 2105. The Attorney-General, or the district-attorney of the county in which the real property is situated, must, when the governor so directs, make the application, in the |