The reasons assigned in the opinion of the court at Special Term, for denying the peremptory writ of mandamus there applied for, were in our judgment quite sufficient to justify the conclusion reached.
The relator cannot now complain that the court passed upon the motion for a peremptory writ, instead of awarding an alternative writ. The motion was for a peremptory writ, and it does not appear that any application was made for an alternative writ, but on the contrary, that after the respondent had read affidavits in justification of his own action, and controverting the allegations of the relator, the latter, without introducing any further papers, proceeded to argue and submit his motion for a peremptory writ, on the papers then before the court, in the face of the rule declared in People v. Supervisors (73 N.Y. 173), that such a course is equivalent to a demurrer to the facts set up by the respondent.
The order denying the motion for a peremptory writ should consequently be affirmed.
After the decision of that motion, the relator made a further motion to modify the order thereon, so as to permit an alternative writ to issue. This last motion was addressed to the discretion of the court, and its decision thereon is not reviewable here.
The appeal from this last order should be dismissed, with costs of one appeal.
All concur.
Ordered accordingly. *Page 388