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or that you show cause before our supreme court, at

why you have not done so; and that you return this writ, with your certificate of having done as you are hereby commanded, to our supreme court

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By order of the court,
Albany, January 1, 1849, (or as the case may be.]

E. F., Clerk.

§ 226. The peremptory writ shall be in a similar form, except that these words: “Or that you show cause before our supreme court at

why you have not done so," shall be omitted.

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227. When the right to require the performance of the act is clear, and it is apparent, that no valid excuse can be given for not performing it, a peremptory mandate may

be allowed in the first instance. In all other cases, the alternative writ shall be first issued.

§ 228. The motion for the writ, the allowance, and the service thereof, and the enforcing of obedience thereto, shall be in the same manner, as in case of the writ of review.

$ 229, On the return day of the alternative writ, or such further day as the court may allow, the party, on whom the writ shall have been served, may show cause, by answer made in the same manner, as an answer to a complaint in a civil action.

$ 230. If no answer be made, a peremptory mandate shall be allowed against the defendant.

§ 231. If an answer be made, containing new matter, the plaintiff may reply, in the same manner as in a civil action.

$ 232. No other pleading, or written allegation, shall be allowed than the writ, answer and reply. These shall be the pleadings in the case, and shall have the same effect, and be construed and amendable, in the same manner, as pleadings in a civil action, and the issues thereby joined shall be tried, and the further proceedings thereon had, in the same manner, as in a civil action.

§ 233. Issues of law or fact joined in the case, shall be tried in the county, where the material facts set forth in the mandate shall be alleged to have occurred.

$ 234. If judgment be given for the plaintiff, he shall recover the damages, which he shall have sustained, to be ascertained by the court or a jury, or by referees, as in a civil action, together with costs, and a peremptory mandate shall also be awarded without delay.

§ 235. A recovery of damages by virtue of this chapter, against a party, who shall have made a return to a writ of mandate, shall be a bar to any other action against the same party, for the making of such return.

$ 236. The supreme court, or a judge thereof, shall have the same power, to enlarge the time for making a return and answering or replying, as in a civil action.

§ 237. Whenever a peremptory mandate shall be directed to any public officer, body, or board, commanding the performance of any public duty, specially enjoined by law, if it appear to the court that such officer, or any member of such body, or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding two hundred and fifty dollars, upon every such officer or member of such body or board. Such fine, when collected, shall be paid into the treasury; and the payment thereof shall be a bar to an action, for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.

CHAPTER III.

The writ of assessment.

§ 238. The writ, heretofore known as the writ of ad quod damnum, shall be hereafter denominated the writ of assessment.

any real

$ 239. Whenever the governor of this state shall be authorized by law, to take possession of

property, within this state, for the use of the people of the state, and he cannot agree with the owner for the purchase thereof, he shall cause application to be made for a writ of assessment, which shall thereupon be issued to the sheriff of the county, where such real property is situated, unless the court direct such damages to be assessed by a jury of another county.

$ 240. Such writ shall be substantially in the following form:

[Seal.] The people of the State of New York,

To the Sheriff of the county of — Whereas the governor of this state has been authorised by law, to take possession of the following real property, for the use of the people of this state, viz: (describing the lands as particularly as in a complaint in a civil action,) and whereas it has been found impossible, to agree with the owners of such real property, for the purchase thereof, now therefore, we command you, that, by the oaths of twelve good and lawful men of your county, you inquire whether the owner or owners of such real property, or any of such owners, will sustain any and what injury by reason of the taking of such real property, for the use of the people of this state, and that you return this writ, with the finding of the jury thereupon, to our supreme court at By order of the court, Albany, January 1, 1819, (or as the case may be.]

C D clerk.

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§ 241. Upon such writ being delivered to the sheriff, he shall give at least three weeks notice of the time and place of executing the same, by publishing a notice thereof in a newspaper printed in his county.

§ 242. The sheriff shall summon twelve qualified jurors of his county, to attend at such time and place, and shall then and there administer to each of the jurors an oath, that he will diligently inquire, concerning the matter specified in the writ, and will give a true verdict according to the best of his judgment, without favor or partiality.

§ 243. After the jury shall have been duly sworn they shall proceed to view the real property specified in the writ, and having heard the evidence offered, and duly considered the value of the property, they shall assess the damages which the owner, or if there be several, which the respective owners of such property, will sustain by being deprived thereof. They shall make an inquisition to be signed by themselves, and by the sheriff, in which they shall set forth the names of the several owners of the real property in question, and the rights of each owner respectively, so far as the same can be ascertained by them, together with the amount to be paid therefor by the people of this state, and to whom particularly; which inquisition the cheriff shall forth. with return, together with the writ, to the supreme court.

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