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People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

will of 1896 are all non-residents, if that will is admitted to probate they may remove the property from the State before he is able to establish the validity of the will of 1900. This does not go to the jurisdiction of the surrogate. Moreover, notwithstanding the fact that the will relieves the executors from giving a bond, the surrogate is authorized, on account of their non-residence, to require security to be given, and there is no reason to apprehend that the rights of the relator will not be properly protected (Codes of Civil Procedure, secs. 2636, 2637 and 2638; Estate of Demarest, 1 Civ. Proc. Rep. 302).

If the relator has not lost his rights by failing to introduce his evidence on the objections filed to the probate of the will of 1896, and on his petition for the probate of the will of 1900 at the proper time, he will doubtless be afforded an opportunity to do so. Counsel for the relator is doubtless right in his contention that the relator is entitled on account of his claim as executor of the will of 1900, and as devisee thereunder, to contest the validity of the will of 1896, unless he has lost his right by not doing so at the proper time (Code of Civ. Proc., sec. 2617). While he may be unable to establish the validity of the will of 1900 in the manner required by the statute to authorize its probate, it by no means follows that he is not interested in the estate. He may be able to establish the validity of the will by common-law proof, which would be accepted in an action in the Supreme Court, concerning the ownership of the realty of the testator at least (Upton v. Berstein, 76 Hun, 516, 520; Matter of Kellerman, 126 N. Y. 79). It does not follow, therefore, that because he is unable to have the will of 1900 admitted to probate he is not interested in the estate. But there is no evidence that the surrogate has ruled that the relator is not entitled to contest the first will.

We are asked to construe a remark of the learned surrogate that the proponents of the will of 1896 were entitled to a decree admitting it to probate by default as indicating

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

an intention on his part to enter a decree that will recite that the relator has defaulted and thereby preclude him from appealing. The relator has appeared in the proceeding and will be entitled to appeal from any decree that may be entered. Section 2568 of the Code of Civil Procedure relates only to a default in appearing. The learned surrogate evidently meant by default the failure of the relator to produce evidence at the proper time and the inference is not justified that he contemplates entering a decree reciting that it was made on the relator's default.

It is suggested by counsel for relator that if the writ be refused it will be taken as an indication that in the opinion of this court the surrogate may properly dismiss the proceedings for the probate of the will of 1900 and admit to probate the will of 1896. That would be an unwarranted inference. We refrain from expressing any opinion on questions of evidence, practice, procedure and discretion until they are properly before us by appeal. We merely hold that the surrogate has jurisdiction and is not proceeding in excess of his jurisdiction in a manner to justify issuing an absolute writ of prohibition.

The alternative writ was, therefore, properly quashed and dismissed and an absolute writ properly denied. The order should be affirmed, with $50 costs and disbursements, and the surrogate and respondent are authorized to proceed in the matter of probating said wills as if the alternative writ had not been issued.

INGRAHAM, J.-I fully concur in the opinion of Mr. Justice Laughlin, and simply wish to add that in my opinion the provision in the order appealed from, that the stay of proceedings contained in the alternative writ of prohibition be continued pending an appeal to the Appellate Division of this court from the final order in this proceeding, is entirely unauthorized. A writ of prohibition prohibits a court from proceeding in a matter then before it. The only authority

People ex rel. Albert T. Patrick v. Frank T. Fitzgerald.

that the Supreme Court has to restrain a court from so proceeding is by a writ of prohibition. The court below granted an alternative writ, but upon a return being filed it refused to grant an absolute writ. The order refusing the absolute writ was a final order, under section 2100 of the Code of Civil Procedure, which provides that "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 if the alternative writ had not been issued." Neither the Code nor the practice authorizes the Special Term, when a final order refusing an absolute writ is entered, to prohibit a court from proceeding by order, either pending an appeal from the order refusing the absolute writ or for any other period of time. The Special Term was required by the provisions of the Code applicable to a writ of prohibition, upon the return being filed, to determine whether or not an absolute writ of prohibition should issue. Upon its determination that such an absolute writ should not issue, the final order abrogates the alternative writ, and the prohibition contained in that writ is at an end. The Supreme Court was then without jurisdiction to continue the prohibition contained in the alternative writ by order.

I think it necessary to make this statement to avoid the implication that the practice adopted by the Special Term is in any sense approved.

All concur.

People of the State of New York v. George C. Clausen.



§§ 968, 2076, 2082, 2083.

Alternative Writ of Mandamus-Trial of Issues of Fact-Dismissal of Writ on Merits by Judge at Trial Term Erroneous-Verdict Should be Returned to and Final Order Made at

Special Term.

After an alternative writ is granted and return made thereto and issues of fact gained thereon, the case becomes an action under the Code and is not a special proceeding.

The issues raised by an alternative writ are similar to issues of fact which arise in an equity action and which are sent by that Court to a jury for trial.

The jury must find upon the issues, and their finding must be presented to the Court upon the final hearing.

The judge presiding at the trial has no right to non-suit.

(Decided July, 1902.)

Appeal from judgment dismissing on the merits an alternative writ of mandamus.

Robert E. L. Lewis, for appellant.
Terence Farley, for respondent.

O'BRIEN, J.-The relator sought in this proceeding to obtain a peremptory writ of mandamus directing the respondent, as commissioner of parks, to restore to him the position which he occupied as Superintendent of the Aquarium at Battery Park, from which office he claims he was

People of the State of New York v. George C. Clausen.

unlawfully removed. On the return day of the writ the respondent filed a return denying the material allegations in the petition, whereupon the Special Term directed that an alternative writ of mandamus issue so that the issues of fact raised by the relator's petition and the respondent's affidavit might be tried by a jury.

These issues were brought on to trial at Trial Term before a judge and jury, and at the close of relator's case, the respondent not offering any evidence, the trial justice dismissed the alternative writ of mandamus "on the merits."

The practice followed upon the trial we think was wrong. No questions were submitted to the jury, and, there being no direction of a verdict by the court, there was no warrant for a dismissal upon the merits. The course pursued was due, no doubt, to the conclusion reached by the learned trial judge, the relator failed to prove the allegations of his petition.

As said in Wait's Practice (vol. 5, page 590): "After an alternative writ is granted and return made thereto and issues of fact joined thereon, the case becomes an action under the Code, and is not a special proceeding." The procedure for an alternative writ of mandamus is regulated by chapter 16, title 2, article 4 of the Code of Civil Procedure; and by reference to sections 2076 and 2082 it will be seen that the petition of the relator with the affidavit or return of the respondent are regarded as pleadings in an action-the petition as the complaint and the return as the answer. And with respect to the issues of fact, the place where and how triable are also prescribed, and by section 2084 it is provided: "Upon the trial of an issue of fact joined upon an alternative writ of mandamus, the verdict, report or decision must be returned to and the final order thereupon must be made by * the Special Term." There is no sanction, therefore, for the practice which was here followed of the trial judge non-suiting the relator on the trial by a jury of issues raised by an alternative writ.

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