The special term granted the writ, with costs.
*505The defendant asked for a stay pending an appeal, which was denied. It then complied with the writ and paid the costs, and appealed to the general term. That court dismissed the appeal on the ground that it was not a practical question, as the terms of the writ of mandamus had been complied with.
The court should have heard the case on the merits, because there was a question of costs which defendant had paid, and which it would be entitled to have restored to it, in case the order were reversed.
Order of general term reversed, and case remitted to that court, with directions to hear the appeal upon the merits, with costs of this court upon this appeal to appellant, to abide the event of the appeal to the general term.
All concur, except Finch, J., absent.