#### The People of the State of New York *ex rel.*Charles Kruse, Respondents, *against*Charles H. Woodman *et*al., as Commissioners of Excise of the City of New York, Appellants.

(Decided June 4th, 1888.)

The statute allowing “a writ of mandamus to review the action” of the excise commissioners or board of excise in refusing an application for a license, and requiring that the board in its return to said writ shall include all evidence and all papers on which the action was based • (L. 1886, c. 496), gives the ordinary remedy by mandamus, although the feature, usually incident to the writ of certiorari, of including such evidence and papers in the return, is added.

On the return, the court, under the provision of the Code of Civil Procedure that “ an issue of fact joined upon an alternative writ of mandamus must be tried by a jury ” (§ 2083), may order a jury trial of contested questions of fact; but the issues framed should not include mere conclusions or matters of inference, motive, or intent, or facts either conceded or of record.

The trial and determination of such issues by a jury will not prevent the court or judge from finally passing upon the question whether the application “ has been arbitrarily rejected or has been rejected without good or valid reasons therefor,” under the provision of the statute that, if the court or judge shall determine that the application was so rejected, an order may be made directing the excise commissioners to grant the license.

At the trial of such an issue, as to whether any person other than relator was interested in the business, declarations of a person as to his interest therein, not made in the presence or with the knowledge of relator or by such person as his agent, are not evidence against him.

It is not ground for setting aside a verdict in favor of relator, that the jury, in answer to their question whetherthe court would be absolutely bound by the verdict, were told that it would not be; they having been also instructed, at defendant’s request, that the verdict w-ould have an influence on the court. Such verdict is open to review if a motion for new trial is made.

Appeals from orders of this court denying a motion to quash an alternative writ of mandamus and settling an issue of fact to be tried by a jury.

The facts are stated in the opinion.

*21
      *Charles W.*Dayton, for appellants.

*W. Bourke*Cochran, for respondents.

Larremore, Ch. J.

These are appeals by the excise commissioners of the City of New York from two orders, one dated February 6th, 1888,' which denied the defendants’ motion to quash and set aside an alternative writ of mandamus here iubefore granted; the other, dated March 7th, 1888, which framed an issue to be submitted to a jury.- The relator had applied to such commissioners for a hotel license to sell intoxicating liquors upon the premises number 38 East 14th Street in the City of New York, and such application was refused. Thereupon, said relator, proceeding under chapter 496 of the Laws of 1886, applied to this court, at a Special Term there of, for a writ of mandamus to review the action of such commissioners, upon the ground that said application had been arbitrarily rejected.

The merits of this application were most carefully weighed by Judge Bookstaver, at whose direction the original alternative writ was issued. The statute in question seems to contemplate a review, by means of the writ of mandamus, of the action of the commissioners by the court or a judge thereof. We have considered Judge Bookstaver’s discussion of the facts, and are of opinion that there was no abuse of discretion in the allowance of the writ, but that, on the contrary, for the reasons stated by him, the defendants were presumably guilty of an arbitrary refusal of the license, within the meaning of chapter 496 of the Laws of 1886.

The main argument raised here by the appellants goes to the question of the power, of the court to issue a writ of mandamus under the facts alleged, and the further question of the power to order a jury trial of a contested question of fact incidentally arising. But we cannot see how any real doubt can exist as to such power under the express language of the statute. The language is “ it shall and may be lawful for such person to apply to any court of record in said city or to a judge thereof for a writ of mandamus to review the action *22of such excise commissioners or board of excise, and said board in its return to said writ shall include all evidence and all papers on which the action was based.”

Appellants’ contention is founded on the rather novel supposition that, although the statute provides for a “ writ of mandamus,” the legislature did not in reality mean what they said, but intended that a “ writ of certiorari,” or rather, something equivalent to the latter writ under the name and style of the former writ, should issue. This claim is probably made because the act provides that the .return to the writ shall include all evidence and all papers on which the action was based, the procuring of which is one of the chief functions of the writ of certiorari. But there is no ground here for speculation as to the true intent of the lawmakers, because the language itself is so plain and straightforward. It provides for the issuance of the writ of mandamus, and also adds one usual incident of the writ of certiorari. We cannot see how these provisions are in the least incompatible with each other, or how the usual and orderly proceeding under the writ of mandamus, as prescribed by the Code, w.ill be in any manner interfered with by compelling the respondents to include in their return all evidence and papers on which their official action is based. Nor do we perceive any reason why this additional feature should not be grafted upon the customary procedure under the writ of mandamus, or any cause why the clearly expressed intent of the legislature should not be put into practice by the courts.

These considerations in themselves also dispose of the objections raised by the appellants to the second order appealed from, which framed an issue of fact for trial by a jury. The legislature has decreed that the writ of mandamus shall issue. What such writ is, and the practice under it, are defined and prescribed by the Code of Civil Procedure. Section 2083 enacts that “An issue of fact joined upon an alternative writ of mandamus must be tried by a jury,” so that the judge at Special Term having decided that the legislature meant “mandamus” when they said “mandamus,” had no option but to order a jury trial of the contested question of fact. We may *23add here that the judge correctly settled such order, and limited the trial to a single issue, to wit: “ Were any person or persons other than the relator Kruse interested or to be interested in the business to be carried on at number 38 East 14th Street, New York city, at the time of making his application for an hotel license herein, to authorize which the license sought by said Charles Kruse was to be used.” This is the only actual controversy of fact. The other eleven proposed issues sub-' mitted by the counsel for the excise commissioners consist either of conclusions or matters of inference, motive, or intent, or facts either conceded or of record, so that there can be no real dispute about them.

The point has been made that the ordering of a jury trial of issues of fact, as is required under the writ of mandamus, violates the express provision of the statute under consideration, because it provides that “if the court or judge . . . shall determine upon the hearing of said mandamus that the application .... has been arbitrarily rejected, or has been rejected without good or valid reasons therefor, the said court or judge may by an order direct the excise commissioners or board of excise to grant said license.” And this is urged as an additional ground for believing that the legislature could not have intended to provide for a mandamus. But the trial and determination of an issue or issues of fact by a jury will not prevent the court or judge from finally passing upon the question whether the application has been arbitrarily rejected without good or valid reasons. The jury may find against the excise commissioners on every question submitted to them, and yet it may be perfectly competent for the court, even under those circumstances, to say that they have not refused the license arbitrarily or without good reason. The true intent and purpose of this statute are quite obvious. It provides for an appeal from the discretionary action of the commissioners to the sound discretion of the court. In reviewing such action of the commissioners the court must base its action upon facts and must consider all the facts, those that are conceded as well as those that are contested. The trial by jury will simply aid the court to a final basis of action upon such of the facts as are denied.

*24The orders appealed from should be affirmed.

Allen, J., concurred.

Orders affirmed.*

Subsequent to this decision, and pursuant to the order framing an issue of fact for trial by jury, the question stated in the foregoing opinion was submitted upon the proofs to a jury, who found as their answer, “No.” Thereupon the l’elator moved for a peremptory writ of mandamus to defendants directing them to issue to him a hotel license, which motion was granted. From the order granting the writ defendants appealed. Their appeal was heard at the March General Term, 1889, and the following opinion rendered April 1st, 1889.

J. F. Daly, J.

The jury in this proceeding has found that no person or persons other than the relator, Kruse, was interested or to be interested in the business to be carried on at number 38 East 14th Street at the time of his making application for a license. This verdict should not be disregarded, even if the court had the right to disregard it, because there was conflicting evidence on the question submitted, and the verdict has ample evidence to sustain it. 1 cannot say that I would have arrived at any different conclusion from that readied by the jury upon the proofs before us. There was no error in any of the rulings attacked by the appellants in tliéir brief. Evidence of the declarations of the party alleged to be interested with Kruse were properly rejected, because such declarations were not made in his presence nor with his knowledge nor by his agent. It is not ground for setting the verdict aside that the jury, in answer to a question they put to the court, as to whether this court would be absolutely bound by the A'erdict, Avere told that it would not be. They were instructed, at the request of defendants, that the verdict would unquestionably have an influence upon the court. They thereupon, knowing that to be the case, rendered their *25verdict in the relator’s favor, and must have intended it to have the effect of influencing the court in the relator’s application for his mandamus, so that, even were their verdict final on the issues submitted to them, the defendants have not suffered by the instructions given. But the instructions were not erroneous ; for if a motion for a new trial had been made by defendants the verdict would have been open to review by the court (Code, §§ 2082, 997, 998.) The decision of the judge who granted the mandamus that in the absence of such a motion the verdict could not be disregarded was also correct.

, The other questions in this proceeding have been already disposed of at a preceding General Term.

The order, should be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concurred.

Order affirmed, with costs.

Appeals to the Court of Appeals from the orders entered on this decision were dismissed June 18th, 1889 (see 115 N. Y. 644.)