
    The People, etc., Resp’ts, v. The St. Louis and San Francisco Railway Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    1. Mandamus—Peremptory writ of—Papers used on application for MUST BE SERVED—OBJECTION TO FAILURE TO SERVE PAPERS—WHEN WAIVED.
    In Code Oiv. Pro., § 2070, relative to proceedings to obtain a premptory writ of mandamus,jpxovisum is made that wherever shorter notice of the application than eight days is prescribed by an order to show cause, a copy of the papers upon which the application is made must be served with the order to show cause. He Id, that the requirement was a substantial one, but that any objection to the use on the hearing, of papers which had not been served with the order to show cause, was waived if not made at that time.
    
      H. Same—Peremptory writ—When issuable in first instance
    
      Held, that a premptory writ of mandamus was issuable in the first instance only when all the facts necessary to the exercise of that power were conceded, and that the court could not inquire into the truth or falsity of allegations made upon the application.
    Appeal from an order granting a peremptory writ of mandamus.
    
    
      Mr. Zabriskie, for app’lt; Mr. Dos Passos, for resp’ts.
   Van Brunt, P. J.

It would seem that there have been errors of practice which require a reversal of the order granting a peremptory writ of mandamus.

The only question involved upon the previous appeal from the order of reference was as to the power of the court to grant such an order, and upon that appeal it was held that the court could grant such an order for the purpose of determining whether or not the relator was entitled to any relief.

The practice in reference to the issuance of the peremptory writ is strictly defined by § 2070 of the Code, and must be pursued before the court can acquire jurisdiction to exercise this extraordinary power.

It appears from the record, that affidavits were used and considered by the court upon the motion for this order which were not served with the order to show cause, as prescribed by the Code.

The requirement of the Code that a copy of the papers upon which the application is founded, must be served with the order to show cause, is a substantial one, as these papers ,are in the nature of a complaint, to which the respondent is required to answer or demur upon the return day of the order, and hence must be served in order that the respondent may be apprised of their contents.

The reading and consideration therefore of these affidavits would have been, if the proper objection had been raised, error, but we do not find anywhere in the record that any objection to their use was made by the counsel for the appellants, and the existence of this provision of the Code would seem to have been a discovery made subsequent to the hearing of the motion and the argument of the appeal from the order of reference.

The appellant, by not objecting to the use of these affidavits upon the ground that they were not admissible under the Code, must be deemed to have waived its rights in that respect.

By section 2070, a peremptory writ of mandamus can only issue in the first instance where the applicant’s right to the mandamus depends only upon questions of law, that is where all the facts necessary to the exercise of the power to issue a peremptory writ are conceded, but if any of these, facts are denied, the court can only issue an alternate writ. The truth or falsity .of these denials cannot be inquired into so as to enable the court to issue a peremptory writ, although they may be inquired into so as to satisfy the court, as to the propriety of granting an alternative writ.

For the purpose of issuing a peremptory writ in the first instance, denials of a respondent cannot be disregarded as sham, nor can they be disregarded because the preponderance of evidence seems to be with the relator. The facts relied upon must be admitted or not denied, otherwise only an alternative writ can issue, and upon its- return, issues can be framed to be tried as prescribed by the Code.

In the case at bar, the facts upon which the relator relied were disputed, and, although the court- may have been of the opinion that the denials were not made in good faith, or even that they were false in fact, they cannot be disregarded, another method having been provided for the disposal of such questions.

It may be true that the delays incident to the practice laid down by the Code, which happens to be that recognized by all the old authorities, might, in many cases, defeat the rights sought to be enforced by a peremptory writ of mandamus, yet this fact would not justify the court in violating the plain provisions of law.

The order appealed from must be reversed* with ten dollars costs and disbursements.

Macomber and Bartlett, JJ., concur.  