damus, granted by the appellate division must be tried, and the final order thereupon must be made, by the appellate division. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.] § 2086. Costs. 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. Appeals. 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 appellate division, 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 appellate division granting a peremptory mandamus, made upon an original application, or from a final order, made upon an alternative mandamus, granted at the appellate division, the execution of the order appealed from shall not be stayed, except by the order of the same appellate division, made upon such terms, as to security or otherwise, as justice requires. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.] § 2088. When relator to recover damages. Where a return has been made to an alternative writ of mandamus, 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. Stay of proceedings; enlargement of time. 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 a term of the appellate division an order staying the proceedings or enlarging the time to make a return, can be made only by a justice of the appellate division of the same department; and where notice has been given of an application for a mandamus at a term of the appellate division of the supreme court, or an order has been made to show cause, at such term why a mandamus should not issue, a stay of proceedings shall not be granted before the hearing by any court or judge. [AM'D BY CHAP. 946 of 1895. In effect Jan. 1, 1896.] § 2090. Fine in certain cases. 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 payment 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. ARTICLE FIFTH. THE WRIT OF PROHIBITION. SECTION 2091. Kinds of writ; how granted. 2096. Absolute writ issues, unless return made. 2097. Legal objections, how taken; motion to quash or set aside writ. 2100. Final order; costs. 2101. Appeals. 2102. Stay of proceedings; enlargement of time. § 2091. Kinds of writ; how granted. 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 of the application, as the court thinks proper. § 2092. When writ granted at special term. 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. When granted [by the appellate division] of the supreme court. An alternative writ of prohibition may be granted at a term of the ap pellate division 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 term of the appellate division 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 a term of the appellate division of said department is not in session; in which case, it may be granted at a term of the appellate division in an adjoining judicial department. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.] § 2094. Alternative writ must issue first; contents. 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. Alternative writ when returnable; how served. 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 specifiéd, at which application for the writ might have been made. Where it is granted at a term of the appellate division in a judicial department, adjoining that wherein the matter originated, it may, in the discretion of the court, be made returnable at a term of the appellate division of either department. The writ must be served on 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. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.] § 2096. Absolute writ issues unless return made. 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 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 writ. A return to an alternative writ of prohibition cannot be compelled in any other case. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.] § 2097. Legal objections, how taken; motion to quash or set aside writ. An alternative writ of prohibition cannot be quashed or set aside, upon motion, for any matter involving the merits. An objection to the legal sufficiency of the papers, upon which the writ was granted, may be taken in the return. A motion to quash an absolute writ of prohibition, or to set aside an alternative writ, for any matter not involving the merits, must be made at a term where the writ might have been granted. § 2098. Return by party; proceedings when he adopts judge's return. A return to an alternative writ, when made by a party, must be verified by his affidavit, as required for the verification of a pleading in a court of record; unless it consists only of objections to the legal sufficiency of the papers upon which the writ was granted. Where the party unites with the court or judge in a return, or annexes, to the court's or the judge's return, an instrument in writing, subscribed by him, to the effect that he adopts it, and relies upon the matters therein contained, as sufficient cause why the court or judge should not be restrained, as mentioned in the writ, he is thenceforth deemed the sole defendant in the special proceeding; except that where a final order is made, awarding an absolute writ of prohibition, such a writ must be directed to the party, and also to the court or the judge. § 2099. Proceeding after return; trial by jury. Pleadings are not allowed upon a writ of prohibition. Where an alternative writ has been issued the cause may be disposed of without further notice, at the term at which the writ is returnable. If it is not then disposed of, it may be brought to a hearing, upon notice, at a subsequent term. It must be heard at a term of the appellate division in the same judicial department, or at a special term held in the same judicial district, as the case may be. The relator may controvert, by affidavit, any allegation of new matter contained in the return. The court may direct the trial of any question of fact by a jury, in like manner and with like effect, as where an order is made for the trial, by a jury, of issues of fact, joined in an action triable by the court. Where such a direction is given, the proceedings must be the same, as upon the trial of issues so joined in an action. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.] § 2100. Final order; costs. Where a final order is made in favor of the relator, it must award an absolute writ of prohibition; and it may also direct that all proceedings or any specified proceeding, theretofore taken in the action, special proceeding, or matter, as to which the prohibition absolute issues, be vacated and annulled. The writ of consultation is abolished. Where a final order is made against the relator, it must authorize the court or judge, and the adverse party, to proceed in the action, special proceeding, or matter, as if the alternative writ had not been issued. Costs, not exceeding fifty dollars and disbursements, may be awarded to either party, as upon a motion. Vover-2120. § 2101. Appeals. A final order, made as prescribed in the last section, can be reviewed only by appeal. Where the order was made by the appellate division, the execution of the order appealed from shall not be stayed, except by an order made at a term of the appellate division in the same department, upon such terms, as to security or otherwise, as justice requires. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.] § 2102. Stay of proceedings; enlargement of time. The proceedings upon a writ of prohibition, 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 the judge of the court, but not by any other officer. Where the writ was granted at a term of the appellate division, an order staying the proceedings, or enlarging the time to make a return, can be made only by a justice of the appellate division of the judicial department within which the writ is returnable; and where notice has been given of an application for a prohibition at a term of the appellate division, or an order has been made to show cause at such term, why a prohibition should not issue, a stay of proceedings shall not be granted before the hearing, by any court or judge. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.] ARTICLE SIXTH. THE WRIT OF ASSESSMENT OF DAMAGES. SECTION 2103. Writ defined. 2104. Application therefor. 2105. When made by Attorney-General or district attorney. 2106. Writ; to whom directed. 2107. Contents of writ. 2108. Notice of execution. 2109. Jury; how procured. 2111. Jury to make inquisition. 2112. Notice of application to court thereupon. 2113. Court may set aside inquisition. 2114. Order on confirming inquisition. 2115. State Treasurer to pay damages, etc., to Governor. 2116. Governor to pay damages into court. 2117. Investment of money so paid. 2118. How obtained by claimant. 2119. Taking lands by United States. § 2103. Writ defined. The writ, heretofore known as the writ of ad quod damnum, shall hereafter be styled the writ of assessment of damages. § 2104. Application therefor. Whenever the Governor of the State is authorized by law, to take possession of any real property within the State, for the use of the people of the State, and he cannot agree with the owner or owners thereof for its purchase, he may cause application to be made to the supreme court, at a special term thereof, for a writ of assessment of damages, which must be granted accordingly. § 2105. When made by Attorney-General or district attorney. The Attorney-General or the district attorney of the county in which the real property is situated, must, when the Governor so directs, make the application, in the name of the Governor; and must conduct the subsequent proceedings, under the Governor's direction. § 2106. Writ; to whom directed. The writ must be directed to the sheriff of the county in which the real property to be taken is situated, unless the court directs the damages for the taking to be assessed by a jury of another county; in which case, the writ must be issued to the sheriff of the county, from which the jury is directed to be taken. § 2107. Contents of writ. The writ must describe the real property to be taken, with the like certainty as is required in a complaint in an action of ejectment. It must command the sheriff, to whom it is directed, to inquire, by the oaths of twelve men of his county, qualified to act as trial jurors in a court of record, whether the owner or owners of the real property, or any of them, will sustain any damages by the taking thereof, for the use of the people of the State; and, if so, the amount thereof; and that he return the writ to the supreme court, without delay, with the finding of the jury thereupon. § 2108. Notice of execution. The sheriff, immediately after the delivery of the writ to him, must give notice of the time when, and the place where, the writ will be executed, by publishing the notice, once in each week, for at least three successive weeks, in a newspaper printed in his county. § 2109. Jury; how procured. The sheriff must notify twelve men of his county, qualified to act as trial jurors in a court of record, to attend at the time and place, and for the purpose specified in the notice. Each juror must be notified, as a juror is notified to attend a trial term of the supreme court. Upon his failure to attend, when duly notified, his attendance may be compelled by attachment, and proceedings may be taken against him, and he may be punished thereupon, by the supreme court, as where a juror, duly notified, fails to attend at a trial term thereof. The sheriff may require the attendance of a talesman, in place of a juror notified and not appearing; or he may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.] § 2110. Juror to be sworn. When a jury has been procured, the sheriff must, before the jurors proceed to the inquiry commanded by the writ, administer to each of them an oath, that he will diligently inquire concerning the matters specified in the writ, and will give a true verdict, according to the best of his judgment, without favor or partiality. § 2111. Jury to make inquisition. After being sworn as prescribed in the last section, the jury must view all the real property described in the writ, and consider the value thereof. They may, in the discretion of a majority of them, hear such testimony as may be offered by any person appearing, respecting the value. They must thereupon assess the damages, which the owner or owners of the real property will sustain, by being |