People ex rel. Segal v. Englander ( 1919 )

Greenbaum, J.

The relator’s ownership in the stock of the company is denied, hence a peremptory writ of mandamus may not be granted. It is urged by the respondent that the relator is in no event entitled to an alternative writ, since there is no prayer for such a writ. The customary practice is specifically to ask for an alternative writ in the event the court refuses a peremptory writ. The relator, however, in his moving papers, prays for “ such other and further relief. ” In asking for “ such other ” relief the court would be warranted in granting an alternative writ if the facts would justify such a course. The court’s attention is directed to the recent decision of Mr. Justice Delehanty in Matter of Gaines, N. Y. L. J., Nov. 25,1919, per contra. It does not appear in that case whether the relator had asked for “ other relief.” The court cited People ex rel. Bush v. County Canvassers, 66 Hun, 267, in which it was held that the relator was not entitled "to an alternative writ, citing People ex rel. Hartford Life Ins. Co. v. Fairman, 91 N. Y. 387. There is nothing in the Bush Case, supra, which indicates that the court denied an alternative writ upon the ground here urged. A perusal of the Hartford Insurance Case, supra, shows that the Special Term had merely passed upon the motion for a peremptory writ, and that after the decision the relator made a motion to modify the order therein so as to permit an alternative writ to issue, which was denied. Said the court: 11 This last motion was addressed to the discretion of the court, and its decision is not reviewable here.” Upon the argument the relator’s counsel expressly urged upon the court that an alternative writ he granted in case the motion for a peremptory writ he denied. The court is of opinion that under the circumstances here appearing the court’s discretion may he exercised in allowing an alternative writ. The motion will he granted to the extent of allowing the issuance of an alternative writ, without costs.

Ordered accordingly.