judicial department. In such a case, the application must be founded upon affidavits, or other written proofs, a copy of which must be served with the notice, or order to show cause. Where the court, board, or other body to be served, consists of three or more members, the notice or order to show cause, and the papers upon which the application is to be made, may be served, as prescribed in the next section for service of an alternative writ of mandamus. Except as prescribed in this section, or by special provision of law, a peremptory mandamus cannot be issued, until an alternative mandamus has been issued and duly served, and the return day thereof has elapsed.

must

§ 2071. An alternative writ of mandamus must be served, by showing the original writ, and delivering a copy thereof, to the person to be served. Where it is directed to a court, or to the judge or judges of a court, be served, either in term time or in vacation, upon the judge or judges of the court; except that, where the court consists of three or more judges, service upon a majority of them is sufficient. Where it is to be served upon a board or body, other than a corporation, service must be made upon a majority of the members thereof, unless the board or body was created by law, and has a chairman or other presiding officer, appointed pursuant to law; in which case, service upon him is sufficient. Where the writ is to be served upon a corporation, service thereof may be made upon any officer, upon whom a summons, issued out of the supreme court, may be served. Where one or more of the persons, upon whom to make service, as prescribed in this section, cannot, after due diligence, be found, the exhibition of the original writ may be dispensed with, and service may be made upon him or them, as prescribed by law for the service of a summons, issued out of the supreme court.

§ 2072. An alternative writ must be made returnable twenty days after the service thereof, at the office of the clerk of the court, or, in the supreme court, the clerk of the county, designated therein, in which an issue of fact joined thereupon is triable. A peremptory writ must be made returnable at a general or a special term, designated therein, to which application for the alternative writ might have been made.

§ 2073. Where the first writ of mandamus has been duly served, a return must be made to the same, as therein required, unless it is an alternative writ, and a demurrer thereto is taken. In default of a return, the person or persons, upon whom the writ was served, may be punished, upon the application of the peop'e, or of the relator, for a contempt of court.

§ 2074. The return to an alternative writ of mandamus must be annexed to a copy of the writ; and must be filed, in the office of the clerk, where it is returnable, within the time specified in the writ. The return to a per

emptory writ of mandamus must be likewise annexed to a copy thereof; and must, before the expiration of the first day of the term at which it is returnable, be either delivered in open court, or filed in the office of the clerk of the court, or, in the supreme court, the clerk of the county wherein the term is to be held.

§ 2075. An alternative writ of mandamus cannot be quashed or set aside upon motion, for any matter involving the merits. A motion to set aside such a writ, for any other cause, or to set aside or quash a peremptory writ of mandamus, or to set aside the service of either writ, must be made at a term, whereat the writ might have been granted.

2076. The statement, contained in an alternative writ of mandamus,

of the facts constituting the grievance, to redress which it is issued; the joinder therein of two or more such grievances; and the command of the writ, are subject to the provisions of chapter sixth of this act, respecting the statement, in a complaint, of the fact constituting a cause of action: the joinder tl erein of two or more causes of action; and the demand of judgment thereupon. The person, upon whom the writ is served, instead of making a return thereto, may file in the office where the writ is returnable, a demurrer to the writ; or he may file a demurrer to a complete statement of facts contained in the writ, as constituting a separate grievance, and make a return to the remainder of the writ. A demurrer may be thus taken, in a case where a defendant may demur to a complaint, or to a cause of action separately stated in a complaint, as prescribed in chapter sixth of this act; and it must be in like form.

§ 2077. The provisions of chapter sixth of this act, relating to the form and contents of an answer, containing denials and allegations of new matter, except those provisions which relate to the verification of an answer, and to a counterclaim contained therein, apply to a return to an alternative writ of mandamus, showing cause against obeying the command of the writ. For the purpose of the application, each complete statement of facts, assigning a cause why the command of the writ ought not to be obeyed, is regarded as a separate defence, and must be separately stated, and numbered.

§ 2078. A person, who has made a return to an alternative mandamus, cannot be compelled to make a further return. The people, or the relator, may demur to the return, or to any complete statement of facts, therein separately assigned as a cause for disobeying the command of the writ, on the ground that the same is insufficient in law, upon the face thereof.

§ 2079. An issue of fact arises upon a denial, contained in the return, of a material allegation of the writ, or upon a material allegation of new matter, contained in a return; unless a demurrer thereto is taken. Where the people or the relator demur to a complete statement of facts, separately assigned as cause for disobeying the command of the writ, an issue of fact arises, with respect to the remainder of the return.

2080. Oral pleadings upon a writ of mandamus are abolished, and no pleadings are allowed, except as prescribed in the foregoing sections of this article. The provisions of title second of chapter sixth of this act apply to the writ and the return; except that it is not necessary to serve a copy of either, upon the attorney for the adverse party, or to verify either, and that neither can be amended, without special application to the court, or stricken out as sham.

2081. Where a return to an alternative writ of mandamus has been filed, the attorney for the defendant making it must serve, upon the attor ney for the people or the relator, a notice of the filing thereof. Where the people or the relator demur to the return, or to a part thereof, a copy of the demurrer must be served upon the attorney for the defendant, within twenty days after the service of such a notice. Where the defendant demurs to the writ, or to a part thereof, a copy of the demurrermust be served upon the attorney for the people or the relator, within the time prescribed by law for filing it.

§ 2082. Except as otherwise expressly prescribed in this act, the proceedings, after issue is joined, upon the facts or upon the law, are, in all respects, the same as in an action; and each provision of this act, relating to the proceedings in an action, apply thereto For the purpose of the

application, the writ, the return, and the demurrer are deemed to be plead ings in an action; and the final order is deemed to be a final judgment, and may be entered and docketed, and enforced, with respect to such parts thereof as are not enforced by a peremptory mandamus, as a final judgment in an action. But before the final order can be docketed, or an execution issued thereupon, an enrollment must be filed thereupon, as a judgmentroll in an action. For that purpose, the clerk must attach together and file in his office, a certified copy of the final order; the writ and the return, or copies thereof; together with the same papers, which are required by law to be incorporated into a judgment-roll in an action. Where the final order is in favor of the people or the relator, it must award a peremptory mandamus, to be forthwith issued.

§ 2083. An issue of fact, joined upon an alternative writ of mandamus, must be tried by a jury, as if it was an issue joined in an action specified in section nine hundred and sixty-eight of this act; unless a jury trial is waived; or a reference is directed by consent of parties. Where the writ was issued upon the relation cf a private person, the relator or the defendant is entitled to a verdict, report, or decision, where he would be entitled thereto, if the issue was joined in an action, brought by the relator against the defendant, to recover damages for making a false return.

§ 2084. An issue of fact, joined upon an alternative writ of mandamus, granted at a special term of the supreme court, is triable in the county, wherein it is alleged in the writ, that the material facts took place, unless the court directs it to be tried elsewhere. An issue of fact, joined upon an alternative writ of mandamus, granted at a general term, is triable in the county, which determines the judicial department, wherein the application for the writ must be made; unless tho general term directs it to be tried in another county of the same judicial department. Where the writ was granted at the general term, the general term may detail a general term justice, of the same or another judicial department, to preside at the trial. Upon the trial of an issue of fact, joined upon an alternative writ of mandamus, the verdict, report, or decision must be returned to, and the final order thereupon must be made by, the general or the special term, as the case requires.

§ 2085. An issue of law, joined upon an alternative writ of mandamus, granted at the general term, must be tried, and the final order thereupon must be made, at the general term.

§ 2086. Where an alternative writ of mandamus has been issued, costs may be awarded, as in an action; except that, upon making a final order, the costs are in the discretion of the court. Where a peremptory mandamus is granted, without a previous alternative mandamus, costs, not exceeding fifty dollars and disbursements, may be awarded to either party, as upon a motion.

§ 2087. An appeal from an order granting a peremptory writ of mandamus, where an alternative writ of mandamus was not previously issued, must be taken as from a final order made in a special proceeding. 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 general term or to the court of appeals, is applicable thereto. But where an appeal is taken, as prescribed in this section, from an order of the general term, granting a peremptory mandamus, made upon an original application, or from a final order, made upon an alternative mandamus, granted at the general term, the execution of the

order appealed from shall not be stayed, except by the order of the same general term, made upon such terms, as to security or otherwise, as justice requires.

§ 2088. Where a return has been made to an alternative writ of mandans, issued upon the relation of a private person, the court, upon making a final order for a peremptory mandamus, must also, if the relator so elects, award to the relator, against the defendant who made the return, the same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator may require his damages to be assessed upon the trial of an issue of fact, if the verdict, report, or decision is in his favor. Where he is entitled to a final order, for any other cause, he may require them to be assessed as in an action. Such an assessment

of damages bars an action for a false return.

§ 2089. The proceedings upon a writ of mandamus, granted at a special term, may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by a judge of the court, but not by any other officer. Where the writ was granted at the general term, an order staying the proceedings, or enlarging the time to make a return, can be made only by a general term justice of the same department; and where notice has been given of an application for a mandamus at a general term, or an order has been made to show cause, at a general term, why a mandamus should not issue, a stay of proceedings shall not be granted, before the hearing, by any court or judge.

§ 2090. Where a final order awards a peremptory mandamus, directed to a public officer, board, or other body, commanding him or them to perform a public duty, enjoined upon him or them by special provision of law, if it appears to the court, that the officer, or one or more members of the board or body, have, without just excuse, refused or neglected to perform the duty so enjoined, the court, besides awarding to the relator his damages and costs, as prescribed in this article, may, in the same order, impose a fine, not exceeding two hundred and fifty dollars, upon the officer, or upon each member of the board, who has so refused or neglected. The fine, when collected, must be paid into the treasury of the State; and the pay. ment thereof bars any action for a penalty, incurred by the person so fined, by reason of his refusal or neglect to perform the duty so enjoined.

2091. A writ of prohibition is either alternative or absolute. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor, and either with or without previous notice 1 the application, as the court thinks proper.

§2092. Except where special provision therefor is otherwise made in this article, an alternative writ of prohibition can be granted only at a special term of the court. In the supreme court, the special term must be one held within the judicial district, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated.

§ 2093. An alternative writ of prohibition may be granted at a general term of the supreme court only, directed generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges of the same court, named therein, in any case where such a writ may be issued out of the supreme court, directed to any other court, or to a judge thereof. Such a writ can be granted only at the general term of the judicial department, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated, unless that general term is not in session; in which case, it may be granted at the general term of an adjoining judicial department.

§ 2094. Except as otherwise specially prescribed by law, an absolute writ of prohibition cannot be issued, until an alternative writ has been issued and duly served, and the return day thereof has elapsed. The alternative writ must be directed to the court in which, or to the judge before whom, and also to the party in whose favor, the proceedings to be restrained were taken, or are about to be taken. It must command the court or judge, and also the party, to desist and refrain from any further proceedings in the action or special proceeding, or with respect to the particular matter or thing described therein, as the case may be, until the further direction of the court issuing the writ; and also to show cause, at the time when, and the place where, the writ is made returnable, why they should not be absolutely restrained from any further proceedings in that action, special proceeding, or matter. The writ need not contain any statement of the facts or legal objections, upon which the relator founds his claim to relief.

§ 2095. The writ must be made returnable, either forthwith or at a day certain, before the term which granted it, or upon the first day of a future term, therein specified, at which application for the writ might have been made. Where it is granted at the general term of a judicial department, adjoining that wherein the matter originated, it may, in the discretion of the court, be made returnable at the general term of either department. The writ must be served upon the court or judge, and also upon the party, as prescribed by law for the service of an alternative writ of mandamus A copy of the papers, upon which it was granted, must be delivered with each copy of the writ.

$2096. Where the alternative writ has been duly served upon the court or judge, and upon the party, the relator is entitled to an absolute writ, unless a return is made by the court or judge, and by the party, according to the exigency of the alternative writ, or within such further time as may be granted for the purpose. The return must be annexed to a copy of the writ; and it must be either delivered in open court, or filed in the office of the clerk of the court issuing the writ; or, in the supreme court, the clerk of the county where the writ is returnable. Where the party makes a return, the court or judge must also make a return. In default thereof, the judge, or the members of the court, may be punished, upon the application of the people or of the relator, for a contempt of the court issuing the