
    The People ex rel. Mattis Ripp, Relator, v. The Town Board of the Town of Lewis, Etc., et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    May, 1899.)
    1. Towns — Waiver of defect in the form of a mandamus to compel a town to pay a claim.
    Where a town board has appeared generally and has demurred to an alternative writ of mandamus brought to compel it to assemble and consider the merits of the relator’s claims against the town, it is too late for the board to object that the writ does not run in the name of the People.
    2. Same — Certificate of partial rejection of claim compelled.
    When a town board fails to make a certificate that it has allowed claims in part and rejected them in part, as required by the Town Law (Laws of 1890, chap. 569, § 162), a writ of mandamus will issue to compel such action upon its part.
    Demurrer to alternative writ of mandamus.
    E. M. Bagg, for relator.
    F. C. Schraub, for defendants.
   Hiscock, J.

Some objections are urged by the defendants to the alternative writ herein which are not applicable upon the argument to sustain their demurrer. The defendants cannot avail themselves of the absence of the ordinary form whereby the writ is issued in the name of the People, even if material. The proper remedy for that was by motion before they had appeared generally in the action and demurred.

Notwithstanding the allegation in the writ and in the relator’s affidavit that the town board did not consider his bills upon the merits, I think the other, facts stated therein show that the town board did so consider and pass upon them upon the merits,, allowing them in part and rejecting them in part. Therefore, so far as the writ seeks to compel the town hoard to assemble and pass upon his claims upon the merits it is demurrable. From the facts as stated, however, the town board did not pass upon the claims and make the certificate as required by law. Section 162, chap. 569, Laws of 1890. It very likely may be material to relator that they should be so passed upon. In'this respect, therefore, a good ground is-presented for.the issuance.of the writ, and to this extent the demurrer is overruled.

. The defendants have leave to make a return to the writ at any time within twenty days upon payment of fifteen dollars costs.

Ordered accordingly.  