
    The People of the State of New York ex rel. The Village of Fulton, Resp’ts, v. The Board of Supervisors of the County of Oswego, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1888.
    
    1. Mandamus—Writ of—Objection that it is not the proper remedy OR THAT THERE IS A LEGAL REMEDY—HOW RAISED—CODE ClV. PRO., § 2075.
    Whether the writ of mandamus is a proper remedy or whether the relator has another legal remedy are questions which must be raised by a return to the writ or by a demurrer, as provided for by section 2076, Cede Civil Procedure, and cannot be raised on a motion to quash the writ.
    2. Same—Where the application for the alternative writ may be made—Code Crv. Pro., §§ 2067, 2068—Adjourned special term.
    An alternative writ of mandamus, except where special provision is otherwise made, can only be granted at a special term. But it may be granted with or without notice, as the court thinks proper, and when it is granted without notice, that application can properly be made at an adjourned special term.
    3. Holidays—Service of papers on Saturday afternoon—Validity of Laws 1887, chap. 289.
    Laws 1887, chapter 289, does not prohibit the holding of court on Satur. day afternoon.. The 'act is a limited one, relating only to the transaction of business in the public offices of the state and. counties, and does not prevent the service of process or papers on Saturday after twelve o’clock m.
    
      Mead & Stranahan, for pl’ff-resp’t; H. D. Nutting, for def’t-app’lt.
   Martin, J.

This was an appeal from an order denying the appellant’s motion to vacate and set aside an alternative .writ of mandamus, issued upon an order made at an adjourned special term of this court, held in the county of .Oswego. The motion was based on the grounds:

First. That the papers herein were served on a half-holiday.

Second. That the writ or order of mandamus herein was applied for, made and granted at an adjourned special term of this court.

Third. The mandamus herein was not, and a mandamus is not, the relator’s proper remedy.

Fourth. The relator had another legal remedy.

The writ required the appellant to vacate the former audit of the relator’s claim, and audit, allow, provide for the payment and pay the claim of the relator in full, or to show cause to the contrary, etc. It does not appear that any return or demurrer to this writ has been filed.

One of the questions presented is whether the appellant could, upon a motion to set aside the relator’s writ, avail itself of the objection that mandamus was not the relator’s proper remedy, or that it had another legal remedy. Section 2075 of the Code of Civil Procedure provides: “An alternative writ of mandamus cannot be quashed or set aside upon motion for- any matter involving the merits.” This is the mandate of the statute. The question presented by these two grounds of the appellant’s motion was whether, upon the facts stated in the writ, the relator was entitled to the relief demanded. That question involved the merits of this action. Whether mandamus was a proper remedy, and whether the relator had another legal remedy, were, we think, questions that should have been raised by a return to the writ, or by a demurrer, as.provided for by section 2076 of the Code of Civil Procedure, and not by motion.

This leads us to examine the other grounds of this motion. First, then, should the writ have been vacated because the papers and writ were served on Saturday after twelve o’clock, m. ? The statute (Laws 1887, chap. 289, amending chap. 27, Laws 1875, as amended by chap. 30, Laws 1881), which makes Saturday afternoon a half-holiday, provides: “The * * * half-holidays aforesaid shall be considered as the first day of the week (commonly called Sunday), and as public * * * half-holidays for all purposes whatsoever as regards the transaction of business in the public offices of this state or counties of this state.”

In the case of The People v. Kearney (47 Hun, 129; 13 N Y. State Rep., 246), this court had occasion to examine that statute, and it was there’held that the statute did not prohibit the holding of courts on Saturday afternoon. As was said in that case, this provision is a limited one; it relates only to the transaction of business in the public offices of the state and counties. Surely the service of the papers in this case cannot be regarded as the transaction of business in a public office of the state or in a public office of the county.

We do not think the language of this statute broad enough to prevent the service of process or papers on Saturday after twelve o’clock, M., nor do we think such was its purpose or intent. Nichols v. Kelsey, 13 Civ. Pro., R., 154; Fries v. Coar, id., 152.

This leaves for consideration only the question whether the writ could be properly granted .at an adjourned special term of this court. That the term at which this writ was granted was regularly adjourned as provided for by section 239 of the Code of Civil Procedure, and that it existed as a regularly adjourned special term, is not questioned. In the Matter of Wadley (29 Hun, 12), it was held that ex parte motions, might of course, be heard at terms adjourned to a judge’s chambers, but that contested motions requiring notice could not. That a motion which can be properly made at any special term, can, where no notice is required, be made at a properly adjourned special term, we have no doubt. An alternative writ of mandamus, except when specia) provision is otherwise made, can only be granted at a special term. Code Civil Procedure, § 2068. But it may be granted with or without notice, as the court thinks proper. Section 2067. The writ in this case was granted without notice, and hence, could be properly granted at an adjourned term.

We are of the opinion that the appellant’s motion was properly denied, and that the order appealed from should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Hardin, P. J., and Follett, J., concur.  