
    The People of the State of New York ex rel. Louis C. Connolly, Respondent, v. The Board of Education of the City of New York, Appellant.
    First Department,
    May 18, 1906.
    Practice — appeal from final order in mandamus, first department — when appeal goes upon enumerated and when upon non-enumerated calendar.
    When on an appeal from a final order in mandamus in the first department there is a' case and exceptions bringing up questions both of law and practico the appeal should be placed upon the enumerated calendar.
    But where the record presents merely questions of law, and there is no case and exceptions on appeal from an order denying a motion to set aside the verdict, the appeal should be placed upon the nomenumerated calenda*.
    Motion by the relator, Louis C. Connolly, to strike from the noiienjiraeratcd calendar an appeal by the defendant from an order of the Supreme Court, made at the New York Special Term and mtered in the office of the clerk of the county of New York on the itli day of February, 1906, granting a peremptory writ of mandamus.
    
      Thomas F, Gilroy, Jr., for the motion.
    
      J. H. Breener, opposed.
   Per Curiam :

The question presented is whether.this appeal is an enumerated r a non-enumerated motion. It is an appeal from a final order in mandamus proceeding, in which, although there were issues of act disposed of. on a trial,by á jury, there were none of the usual motions made at the end thereof to set aside the findings, nor were Iny exceptions thereto filed, and upon the entry of the final order Bo motion was ípade for a new trial. The purpose of this appeal Being to present purely questions of law, it was not necessary to have ■case and exceptions. Where the latter has been found necessary, lie practice has been under the construction given to our rules, to lace the appeal from the final order in mandamus proceedings upon Be,enumerated calendar. On the other hand, where, as here, the Bcord contains merely the petition, the. order, the alternative writ and the findings of the justice at the Trial Term and the final order granting the mandamus, but where the testimony is not printed and there is no case, on appeal and no order denying a motion to set aside the verdict nor any appeal therefrom, and where- it is sought to present merely questions of law, w.e have held that such ail appeal" should be placed upon .the non-enumerated calendar.

We ha'vé not in this view overlooked rule 38 of the Gen'eral ■ Rules of Practice, which provides that “enumerated motions are motions arising.on * * * appeals from final orders * * * and matters provided for by sections 2085-2099, and 2138 of the Code.” Section 2087 of. the Code (which is within the sections included in rule 38) provides:' “ * * * An.appeal from a final order made-upon an alternative mandamus must be taken as an . appeal from a judgment, and each provision of law relating to an appeal from a judgment,, either to the Appellate Division or to- the Court of Appeals, is applicable thereto.”

Section 2082 of the Code, relating to mandamus, provides: “ The proceedings after -issue is joined, upon the facts or upon the- law, are in all respect's, the same as in an action, and each- provision of this act, relating to the proceedings in an action, apply thereto.” The contention of the moving party that this requires that a mandamus proceeding should for all purposes -he treated as though it were a judgment in an action, does not follow from these provisions of the Code, because while they do require that the proceedings should be the same as in an action, it will be noticed that what ■they do is slntply to prescribe- the form in winch the appeal must he taken and the practice in relation thereto, The question, however, which- we are considering as to whether the appeal is to go I upon the enumerated or ¡the non-enumerated, calendar, is controlled ■ by rule 44 of -the General Rules of Practice and rules 2, 3 and 4 of the! rules of the Appellate Division of this department. '• The- construc-j tion which we have placed upon our own rules lias been that with respect to mandamus proceedings which come up on an. appeal from a final- order, the question as to whether.they went on one calendar or the other depended upon whether the questions sought to be presented arose upon a case and exceptions, involving- an appeal- • take: from a final order denying k motion to set aside the verdict in strcl proceedings and which necessarily brought up for review question both of law and of practice. There, clearly, the appeal should he placed upon the enumerated calendar. Where, as here, the record presented merely questions of law and there was no case" and exceptions and no appeal from an order denying a motion to set aside the verdict, it was properly placed upon the non-enumerated calendar. For these reasons the motion should be denied.

Present—O’Brien, P. J., Patterson, Ingraham, Lattghlin and Clarke, JJ.

Motion denied. Order filed.  