
    The People of the State of New York ex rel. Domenico Geraci, Appellant, v. The Italian Association St. Bartholomew Eoliana of Mutual Aid of New York, Respondent.
    First Department,
    January 10, 1908.
    Trial — issues of fact on mandamus — erroneous dismissal by court.
    Upon the trial of the issues of fact,raised by the return to an alternative writ of mandamus the proceedings are the same as in an action. The. questions of fact must be submitted to the jury under proper instructions, unless a jury trial be waived, or in a proper case the trial court may direct a'verdict.
    The trial court is without authority to dismiss the proceeding on the merits, that power lying only in the Special Term, of Appellate Division, as the case requires, after the return of the verdict, report or decision.
    Appeal by the relator, Domenico Geraci, from a final 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 18th day of May, 1907, dismissing an alternative writ of mandamus upon the merits, also (as stated in the notice of appeal) from a judgment entered the same day pursuant to said final order, and also from an order entered in said clerk’s ofiice on the 5th day of June, 19.07, denying the relator’s motion for a new trial made upon the minutes.
    
      Giuseppe L. Maggio, for the appellant.
    
      James E. Brande, for the respondent.
   McLaughlin, J.:

The relator was a member of the defendant society. Under pro- ■ ceedings taken by the society he was expelled for alleged failure to comply with the by-laws in respect to the payment of dues, and feigning illness so ■ as to obtain a sick benefit. He applied to and obtained from the court at Special Term-an alternative writ of mandamus for his reinstatement. The return of the society put in issue the material allegations of the papers upon which the writ ■ ■was granted. The issue thus raised subsequently came on for a hearing at a Trial Term of this cburt, and after hearing the proof of the respective parties, the learned justice Sitting at Trial Term- dismissed the proceedings on the merits,-from which, and also from an order denying a motion for a new trial, the relator has appealed.

The conclusion at which I have arrived renders it unnecessary to pass upon the merits of the relator’s claim, because the practice adopted.necessitates a' new trial. The trial court, should have, submitted the case to the jury with appropriate instructions,, .or if, in his opinion, there was nothing to submit to them, then' he should have directed a verdict. (People ex rel. Gleason v. Scannell, 172 N. Y. 316; People ex rel. Bean v. Clausen, 74 App. Div. 217.) When an issue of fact has been joined on .the issuance of an alternative, writ of mandamus, the proceedings . thereafter are the same as in an action, except as otherwise provided by law (Code Civ. Proc. § 2082); and such issue must be tried by. a jury as if it were . an issue joined, in an action, unless a jury trial is waived or a reference is directed by consent of the parties. (Id. § 2083.) At the conclusion of the trial the verdict, report or -decision must be returned to. and the final order thereupon must be made by the Appellate .Division ór the Special Term, as the case requires. (Id. § 2084; People ex rel. Ryan v. Bingham, 114 App. Div. 170.)

Here,..the.learned trial justice at'the conclusion of the trial, did not submit any question to the jury, nor did he direct a verdict, but. instead made a final order dismissing the proceeding. This he had • no' right to do. (People ex rel. Bean v. Clausen, supra) The final order could only be made by the. Special Term after the verdict of the jury had been returned td it.

The orders appealed from* therefore, must be reversed and a new' trial ordered, with costs to appellant to abide event. -

Patterson, P. J., Houghton, Scott and Lambert, JJ., concurred.

Orders reversed, new trial ordered, costs to appellant to abide event.  