
    In the Matter of the Application of Joseph Hart, Petitioner, for an Order of Mandamus Directed to Frances Perkins, Industrial Commissioner, as Administrator of the State Insurance Fund, Respondent. (Two Proceedings.)
    Fourth Department,
    June 30, 1931.
    
      
      Don Carlos Buell, for the petitioner.
    
      John J. Bennett, Jr., Attorney-General [Irving H. Lessen with him on the brief], for the respondent.
   Per Curiam.

Petitioner asks this court to make a peremptory order of mandamus. Heretofore petitioner upon the usual notice applied to Special Term for a peremptory order of mandamus. The application was denied. Upon appeal from the order of denial this court (233 App. Div. 797, 798) reversed on the law, with costs, and granted the petition, without costs, on the ground that a clear legal right to the penalties was shown and no facts were brought to the attention of this court permitting denial of the relief as a matter of discretion. Thereafter the usual remittitur was filed in the office of the county clerk of Onondaga county. The petitioner then applied for an order of peremptory mandamus at a Special Term in Onondaga county. The application was refused by the presiding justice and we are told here that the reasons given for such refusal were that the proposed order contained an unnecessary provision for the filing of a return thereto by the defendant and that the court had nothing before it from which it could verify the details of the order.

Under the circumstances we see no reason for departing from the ordinary practice. Section 1323 of the Civil Practice Act provides for a return to the peremptory order at some designated term of court. The provision for the return appearing in the proposed order here was proper. A general form for a peremptory order and for the return thereto may be found in 2 Fiero on Particular Actions and Proceedings (4th ed. pp. 2026, 2027). The remittitur should have been presented to the Special Term when the order was applied for. The accuracy of the proposed order as to detail would have been apparent from an inspection of the record if the court was in any doubt about such detail.

The application here is denied for the reasons above stated and petitioner is remitted to the Special Term.

Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

In each proceeding: Application denied.  