
    The People of the State of New York ex rel. Norbert Blank, Appellant, v. Supreme Lodge Knights and Ladies of Honor and Others, Respondents.
    First Department,
    May 8, 1908.
    Mandamus — dismissal at Trial Term — jurisdiction to make final order — appeal.
    On the trial of issues of -fact joined on an alternative writ of mandamus, the Trial Term may direct a verdict as in other cases, but is without power to grant a final order thereon. The verdict or decision “ must be returned to and the final order thereupon must be made by the Appellate Division or Special Term as the case requires,” and these tribunals alone have jiower to make the final order.
    On an appeal from an erroneous dismissal of the proceeding by the trial court, the Appellate Division will not review on the merits where the writ originated at Special Term.
    Appeal by the relator, Norbert Blank, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1908, dismissing an alternative writ of mandamus issued herein after a trial before a jury of „the issues of fact raised by the return.
    
      Charles Goldzier, for the appellant.
    
      Leonard A. Snitkin, for the respondents.
   Laughlin, J.:

The respondent, the Supreme Lodge Knights and Ladies of Honor, is a fraternal mutual benefit order, incorporated under the laws of the State of Indiana; the respondent, Grand Lodge Knights and Ladies of Honor, State of New York, is a subordinate branch thereof, and the respondent, Germania Lodge, No. 70, Knights and Ladies of Honor, is a duly chartered subordinate lodge under the immediate control and supervision of the Grand Lodge of the State. The relator claims to have been a member in good standing of Germania Lodge, No. 70, and the holder of an endowment policy duly issued to him for $2,000, conditioned for the payment of that amount to his wife on his death while a member of the order in good standing. He sets forth facts tending to show that lie ivas unlawfully expelled from the order. This proceeding was brought for the purpose of procuring his reinstatement. The issues of fact were duly brought to trial and tried in Part 9 of the Trial Term before the court and a jury. At the close of the evidence counsel for the respondents moved to dismiss the proceeding upon the ground that the relator failed to exhaust his remedy by appeal within the order. The court denied the motion with leave to renew the same after the rendition of the verdict. The only material fact deemed by the trial court controverted by the evidence was whether the relator at the trial before the special tribunal of the order on the charges made against him expressly waived all objections to the jurisdiction of the special tribunal which heard and decided the charges. The verdict of the jury on that issue was in favor of the relator. Counsel for the defendant then moved to set aside the verdict upon all the grounds specified in section 999 of the Code of Civil Procedure. The motion was denied and he excepted. He then moved to dismiss the proceeding on the ground that the relator had failed to make out a case. The motion was granted. The ground assigned for the ruling was that the relator’s remedy was by an appeal within the order, which he had not taken. Counsel for the relator duly excepted to the dismissal of the proceeding. Thereupon a final order was granted and entered at Trial Term denying the application for a peremptory writ of mandamus and dismissing the proceeding. We are of opinion that the order must be reversed upon the ground that the Trial Term was without jurisdiction to make it. The Trial Term of the Supreme Court has no jurisdiction to issue a writ of mandamus. By the express terms of the Code of Civil Procedure that writ may only be issued at Special Term or by the Appellate Division. (Code Civ. Proc. §§ 2068, 2069.) It would seem to follow that since the Trial Term has no authority to issue the writ, it is without authority to decide, on the merits, an application for the writ. We are not’, however, left to decide the question on the logic of the situation. Section 2083 of the Code of Civil Procedure provides that an issue of fact joined upon an alternative writ of mandamus must be tried by a jury, unless a jury trial is waived or a reference is directed by consent of the parties. Section 2084 of the Code of Civil Procedure provides that the verdict, report or decision upon the trial of an issue of fact joined upon an alternative writ of mandamus “ must be returned to, and the final order thereupon must be made by, the Appellate Division or the Special Term, as the case requires.” If issue be not joined on a material fact by the return to the alternative writ the proceeding should be brought on for a final order at the Special Term, and if issue be joined on a material fact the trial court has the same authority, if-the facts be undisputed, to direct a verdict as in other cases (Code Civ. Proc. § 2082), but the authority of the trial court is limited to directing or receiving a verdict of the jury and the verdict whether rendered by direction of the court, or not, must, by the peremptory command contained in section 2084 of the Code of Civil Procedure, be returned to the Special Term or to the Appéllate Division, as the case may be, and the motion for the final order must be there made and decided.

The record does not disclose that the relator either expressly or impliedly consented that the trial court might grant the final order or pass upon his right to a peremptory writ of mandamus. On the contrary, it shows that he protested against the action taken and preserved his rights by excepting thereto. Since the order was made by a court without jurisdiction and the matter has not been .presented for decision by a court authorized to pass upon the merits, we do not deem it proper to consider the merits of the relator’s application, for if we did it might be inferred from our action that the Special Term, which only has jurisdiction to make the final order, and has not yet heard the motion, would not decide it right and that on an appeal which does not give us jurisdiction to make the final order we would be volunteering instructions to the Special Term.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to the appellant, and case remitted to Special Term.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten-dollars costs and disbursements, and case remitted to Special Term.  