The People of the State of New York ex rel. John Ryan, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant

The People of the State of New York ex rel. John Ryan, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant. First Department, June 20, 1906. Mandamus — writ and return analogous to pleadings — question as to whether Statute of Limitations has run not determined on motion. An alternative writ of mandamus brought to compel the reinstatement of a police officer in the city of New York being in the nature of a pleading, cannot be dismissed on motion on the ground that the proceeding was not instituted within the time limitation set by section 302 of the charter of Greater New York. The objection that such limitation has run must be taken either in the return to the writ or by a demurrer, and if not so taken is waived. Such alternative writ and the return thereto are in the nature of pleadings, and substantial rights thereunder cannot be determined except upon the decision of an issue of law raised by demurrer or an issue of fact raised by the petition and return. Appeal by the defendant, Theodore A. Bingham, as police commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1906, denying the defendant’s motion to supersede or dismiss an alternative writ of mandamus theretofore granted herein. The motion to supersede or dismiss the alternative writ was made on the ground that the proceeding brought to compel the reinstatement of a police officer in the city of New York was not instituted within the time provided by section 302 of the Greater New York charter (Laws of 1901, chap. 466). Terence Farley, for the appellant. Max Schleimer, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : An alternative writ of mandamus is in the nature of a pleading and is equivalent to a complaint in an action (People ex rel. Keene v. Supervisors, 142 N. Y. 271), and cannot be dismissed upon motion because the right to the relief asked is barred by the Statute of Limitations. That objection must be taken either in the return to the writ or by demurrer (Code Civ. Proc. § 2076), and if not thus taken is waived. The objection that the writ was not timely issued may also be waived. (People ex rel. O'Shea v. Lantry, 44 App. Div. 392; People ex rel. Ehrlich v. Grant, 61 id. 238.) It does not affect a substantial right because it determines nothing in favor of the relator, nor against the respondent named in it. It cannot be set aside for any matter involving the merits. (Code Civ. Proc. § 2075.) The writ and the return are substantially the same as a complaint and answer, upon which an issue of law arises if either of them is demurred to, or issue of fact if the facts set out in the petition, or any of them, are denied in the return. Until the issues thus raised have been determined the substantial rights of either party have not been affected. (People ex rel. Ackerman v. Lumb, 6 App. Div. 26.) The motion to dismiss was properly denied, but in affirming the order appealed from we do not wish to be understood as passing upon the question sought to be raised by the motion to dismiss. Such questions can only be determined in the manner indicated. The order appealed from, therefore, is affirmed, with ten dollars costs and disbursements. Present—O’Brien, P. J., Patterson, McLaughlin, Laughlin and Houghton, JJ. Order affirmed, with ten dollars costs and disbursements.' Order filed.