Balcom, J. [The reasons assigned by the judge to show that the relators were not entitled to the excise money claimed by them, are omitted, because this question involves no matter of practice, and was not passed upon by his associates.]
The question, whether the relators, as overseers of the poor of the town of Otsego, are entitled to the excise money received by the Board of Commissioners of Excise for the county of Otsego, for licenses, from persons residing in the town of Otsego, and paid over to the defendant, as treasurer of the county of Otsego, is presented by a demurrer to an alternative writ of mandamus. The question cannot be raised in this way: a demurrer does not lie to the writ. The statute is imperative, that the defendant “ shall make return to the first writ of mandamus” (2 Rev. Stats., 586, § 54). The demurrer in this case is therefore irregular, and it cannot be sustained.
We have the power to relieve the defendant from the payment of costs, for they may he awarded or refused in the discretion of the court. (2 Rev. Stats., 2 ed., 514, § 42; Laws of 1833, ch. 271, § 6 ; Code, §471; 1 Hill, 50 ; 1 Barb., 557.) I think we ought not to compel the defendant to pay costs, because he very properly refused to pay any of the excise money to the relators; and he must eventually succeed in the case; and besides, it is worthy of remark, that the point that the demurrer is irregular was hot made by tire relators’ counsel on the argument.
*32The demurrer must he overruled, but without costs; and the defendant should be permitted to withdraw the -demurrer, and make a return to the mandamus.
Gray and Mason, JJ., concurred in the conclusion that the question, whether the relators were entitled to the excise money claimed by them, could not be raised by a demurrer to an alternative' writ of mandamus; and they also concurred in the conclusion that the defendant should not have costs.
The demurrer was thereupon overruled without costs; and leave was granted to the defendant to withdraw the demurrer, and make a return to the mandamus.
Present, Gray, Mason, and Balcom, JJ.