People ex rel. Durant Land Imp. Co. v. Jeroloman

• Decision Date: 03 October 1893
• Citation: 34 N.E. 726,139 N.Y. 14
• Parties: PEOPLE ex rel. DURANT LAND IMP. CO. v. JEROLOMAN, Justice.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 14

34 N.E. 726

PEOPLE ex rel. DURANT LAND IMP. CO.

v.JEROLOMAN, Justice.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, first department.

Application by the people on the relation of the Durant Land Improvement Company for mandamus to John Jeroloman, as justice of the district court in the city of New York for the eighth judicial district, to proceed with a cause pending before said court. From an order of the general term (23 N. Y. Supp. 512) reversing peremptory writ of mandamus, relator a peremptory writ of mandamus, relator appeals. Affirmed.

Charles J. Hardy and Esek Cowen, for appellant.

Henry B. Twombly and William B. Putney, for respondent.

PECKHAM, J.

A mandamus is only granted in the sound discretion of the court. This discretion is not, of course, a capricious or arbitrary exercise of the power of the court to refuse relief even in a proper case. Where, however, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him relief by mandamus, the court may, in the exercise of this discretion, refuse the writ. People ex rel. Wood v. Board of Assessors, 137 N. Y. 201, 33 N. E. Rep. 145, and cases cited. We think there are facts sufficient in this case to justify the court in refusing a mandamus as matter of discretion. The relator gave a stipulation in order to have its appeal in the summary proceeding heard at an early moment. That stipulation gave rights to and imposed obligations upon the landlord which did not before exist. By reason of its execution the landlord obtained what it sought in the shape of an early determination of its appeal. Having obtained a reversal of the order appealed from, the proceeding to remove the tenant was again set down before the defendant as justice, and when it came up the amendment of 1893 to section 1310 of the Code of Civil Procedure was referred to by counsel for the tenant, and the defendant refused to proceed. The landlord then sought the aid of the court to relieve it from its stipulation, and in its moving papers assigned as a ground therefor that the amendment in question had stayed the proceedings to remove, and its counsel urged the same reason on the argument of the motion. The court took the same view as the counsel, and therefore vacated the stipulation. Having thus accomplished the vacatur of the stipulation upon the ground that ...