People ex rel. Debenetti v. Clerk of New York Marine Court

Majority

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THE PEOPLE on the relation of DEBENETTI a. THE CLERK of the NEW YORK MARINE COURT.

Court of Appeals;

October Term, 1856.

Headnote

Marine Court.—Appeal.—Mandamus.

An appeal lies from the general term of the New York Marine Court to the New York Common Pleas.

An appeal from the decision of a single justice of the Marine Court, lies only to the general term of that court. „

The objection to the jurisdiction of the Common Pleas over an appeal from a judgment entered upon direction of a single justice of the Marine Court, is not waived by appearing and argüing the appeal upon the merits without objecting.

A mandamus is the proper remedy to compel the clerk of an inferior court to issue execution upon its judgment.

Appeal from a decision of the general term of the Supreme

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Court, affirming an order of the special term granting a mandamus.

The decision appealed from is reported Ante, 57.

Benj. T. Kissam for appellant.

I. The Supreme Court has no authority to issue the writ of mandamus in a case of this kind. (Exp. Hoyt, 13 Peters, 279; Rex v. Bristow, 6 T. R. 168 3 Black. Comm., 110; Tapping on Mand., 11-17; 110, 111; 6 Ad. & E., 401.)

H. The act of July 21,1853, does not alter, amend or repeal the provisions of the Code, (§§ 351, 354,) authorizing appeals from a judgment of the Marine Court to the Common Pleas. 1. The act contains no express words to that effect. 2. It contains no matter which can be construed to work such a result-by implication. 3. It contains no negative words.' 4. It is not in conflict with the Code. (Exp. Heath, 3 Hill, 42 ; McClusky a. Cromwell, 1 Kern., 593; Dwarris on Stats., 638 ; Williams- a. Potter, 2 Barb., 316 ; Williams a. Bigelow, 11 How. Pr. R.,. 83; Stafford v. Ingersoll, 3 Hill, 41 ; Bowen v. Lease, 5 Hill,. 226 ; Weeks a. Ellis, 2 Barb., 319 ; Van Rensellaer a. Snyder, 9 Ib 302.)

III. By appearing and arguing the appeal upon the merits, the respondent waived any irregularity in the appeal to the-Common Pleas. (The People on rel. White a. Erie Common Pleas, 6 Wend., 549 ; Seymour a. Judd, 2 Comst., 464; Buel a. Trustees of Lockport, 3 Comst., 197; Embury a. Connor, 3 Comst., 518 ; Weeks a. Lyon, 18 Barb., 316 ; Webster a. Hopkins, 11 How. Pr. R., 140; Gracie a. Freeland, 1 Comst., 228.)

Charles E. Birdsall for respondent.

I. The power of the Common Pleas to review judgments of the Marine Court was taken away by the act of 1853, under which the Marine Court derived power to review any and all judgments therein, entered by direction of a single justice. (The People on rel. Figaniere a. The Justices of the Marine Court, 2 Abbotts' Pr. B.,. 240).

II, If an appeal lies at all from the Marine Court to the Common Pleas, it lies only from a judgment at general term;.

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and the appeal in this case is therefore void; (Gracie a. Freeland, 2 Comst., 228,) and the judgment of the Marine Court is still in force, and execution may issue thereon as if no appeal-had been taken. (Loveland v. Burton, 2 Verm., 521 ; Bloom v. Burdick, 1 Hill, 130 ; 6 Cow., 585 ; 7 Cow., 458 ; 9 Cow., 227 .)

III. The Court of Common Pleas did Hot acquire jurisdiction by consent of parties; as neither consent nor acquiescence of parties can give the appellate court jurisdiction. (Clerke v. Coun, 1 Munf., 160 ; Dudley v. Mayhew, 3 Comst., 9; Coffin v. Tracy, 3 Cai., 129 ; Lindsey v. McLelland, 1 Bibb, 262 ; Bent v. Granes, 3 McCord, 280 ; Folley v. The People, Breese, 31; Parker v. Munday, Come, 70.)

IV. The clerk of the Marine Court is the only person authorized by statute to issue execution upon judgments of that court; and in case of his refusal, no process whatever can issue. (Laws rel. to City of N. Y. 7., 480, § 11.)

V. The only remedy to compel the clerk of the Marine Court to issue execution is by mandamus. (Regina v. The Clerk of County Court of Surrey, 12 Eng. Law & Eq. R., 428 ; Trustees of the Wabash and Erie Canal v. Johnson, 2 Carter's (Ind.) R., 219; The People v. The Judge of Wayne County Court, 1 Mann., {Mich.) 359; Locket v. Child, 11 Ala., 640 ; The People v. The Supervisors of Greene, 12 Barb., 217 ; The People v. Steele, 2 Barb., 397 ; Ewp. Goodell, 14 Johns., 325 ; Hall v. the Supervisors of Oneida, 19 Johns., 259 ; Terhune v. Barcalow, 6 Malst., 38 ; Haight v. Turner, 2 Johns., 371 ; The People v. The Superior Court, 10 Wend., 285 ; The People v. Thorp, 12 Wend., 183 ; The People v. The Common Pleas, Coleman, 55; The People v. The Justices of Delaware, 1 Johns. Cas., 181 ; The People v. The Judges of Washington, 1 Cai., 511 ; The People v. Brooklyn, 1 Wend., 318 ; Matter of the Justices of Williamsburgh, 1 Barb., 34 ; The United States v. The County Commissioners, 1 Morris, 31 .)

The relator commenced an action in the Marine Court of the city of New York against Manchin and others, and on December 5,1855, obtained judgment on a trial before a single justice and a jury, for $250. On the 8th of the same month the defendant in that action

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appealed to the Common Pleas of Hew York, where the judgment of the justice was reversed, the relator appearing in that court and making no objection to its want of jurisdiction, but contesting the matter on its merits. Judgment on this reversal was entered in the Common Pleas, on March 5, 1856.

The relator, insisting that the Common Pleas had no power to hear a case from the Marine Court on appeal, until it had been first heard at the general term of the last named court, applied to the clerk of the Marine Court to issue execution on the judgment in his favor in that court. The clerk refused, and he then applied to the general term of the Marine Court to compel the clerk to do so, but that court refused. He then obtained from the Supreme Court an alternative mandamus to the clerk to compel him to issue the execution or show cause. On the return showing the above facts an alternative mandamus issued at special term. This judgment was affirmed at the general term of the Supreme Court. The appeal is from that judgment.

The legislature has deemed it expedient lately greatly to increase the powers of the Marine Court. Its jurisdiction was formerly limited in most cases to recovery in an amount not exceeding one hundred dollars. In 1852 its powers and importance were much increased, its three justices were made to hold their offices for six years, and their jurisdiction extended so that a recovery could be had before them for two hundred and fifty dollars, when before it was limited to one hundred dollars. (Laws of 1852, ch. 389). In 1853 recoveries were allowed to be had for fivb hundred dollars; and to induce the bringing of actions of assault and battery, false imprisonment, malicious prosecution, libel and slander, in that court alone, it was enacted that where such actions should be prosecuted in any other court in the city of New York, the costs should be limited to the amount which would have been recovered in that .court. (Laws of 1853, oh. 617). That court was also authorized, in the same manner as the Court of Common Pleas and the Superior Court of that city, to appoint the officers necessary to attend it, and to order the sheriff to supply it with room, attendants, fuel, lights and stationéry, if the supervisors should neglect that duty. (Laws of 1853, ch. 229).

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Previous to the year 1853, the court had no general term ; causes were tried before a single justice; but there was no power o.f reviewing them before the justices of the same court at a general term. The only appeal was to the Common Pleas, and that court could on appeal open defaults and revise judgments for error of fact as well as of law. (Code, § 366). The great increase of litigation in the city made it proper (in the view of the legislature) to increase the dignity and power of the Marine Court, and to relieve the Common Pleas to some extent. Accordingly, by the act of 1853 (Laws, ch. 617, § 5), the Marine Court was authorized to appoint general terms at such times as it might deem proper, and to hear appeals at such general terms. Before this act, the Court of Common Pleas, as before stated, was to open defaults. By section 5 of this act this power was conferred on the justice who tried the cause, with great discretionary power,—“ on such terms as may be just and proper.” The remaining parts of that section lead to the present controversy. It is necessary to refer to nearly the whole of it.

It is as follows: “Any one of the justices of said court shall have the power to open defaults on such terms as may be just and proper in all actions tried before him; and an appeal may be taken upon the same from a judgment entered by the direction of a single justice of the said court to the justices thereof at a general term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the general term, and the same costs and disbursements allowed as on appeals from justices’ courts to the Common Pleas.”

Section 6 repeals all acts and parts of acts in conflict with • this act.

It was at one time contended that the appeal to the general term lay only on a judgment by default. Both the Common Pleas and the Supreme Court agreed that so narrow a construction of the act could not be allowed. A general term would hardly be created for so trivial a purpose, and especially in a matter which is always considered almost if not quite discretionary in the primary tribunal. The appeal allowed is not from an order, but from a judgment entered by a single

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justice. The opening of a default, or the refusal to open it, is an order, merely, and not a judgment. The expression, “ an appeal may be taken upon the same from a judgment entered by the direction of a single justice,” must be read, “ an appeal from a judgment entered by the direction of a single justice may be taken upon the same.” This transposition carries out the purpose of the legislature, and changes none of the words in the sentence. The same conclusion was arrived at in the Supreme Court and Common Pleas, they holding that the words “ upon the same ” referred to the previous words “ all actions.”

A judgment in the Marine Court is entered by the direction of a single justice, whether it be entered by default, or on trial before the justice with a jury, or by him alone without a jury. The reference to the trial by a single justice was made only in contradistinction to trials at the general term. The review before the general term is thus allowed as to all judgments, without regard to the mode of trial, except it may be on default, when the specific remedy is prescribed of an application to the single justice who tried the cause. In this, also, the Common Pleas and the Supreme Court agree; the points in which they differ are these. The Common Pleas hold that the general term has no jurisdiction as to matters of fact—the Supreme Court makes no such distinction. The Common Pleas hold that the unsuccessful party has his election to appeal to the general term of the Marine Court, or to the Common Pleas—the Supreme Court hold that he must first apply to the general term of the Marine Court, and pass through it before he can reach the Common Pleas; the latter view being really more complimentary to the Common Pleas, and nearly completing its resemblance to the highest court in the State, so far as relates to its control over the Marine Court.^[1]

* For the views adopted by the Supreme Court, see their decision in this case, Ante, 57; also The People on rel. White a. The Justices and clerk of the N. Y. Marine Court, Ante, 5; The People on rel Figaniere a. The Justices of the N. Y. Marine Court, 2 Ante, 126, 240. The following is the substance of the opinion of the Common Pleas in La Farge a. Norris, N. Y. Common Pleas, Sp. T., May, 1856. Ingraham, F. J. Previous to the passage of the act of 1853 (Laws of 1853,1165), there can be no doubt as to the proper construction of the provisions of the Code regulating appeals from the Marine Court. *315 The statute directs that the appeal shall be taken from the judgment by serving a notice of appeal within twenty days after the judgment, on the justice or his clerk,. and on the respondent, and by paying to the justice the costs and the fee for making the return. There are also other provisions showing that the legislature throughout contemplated that the proceeding on appeal was to be taken only in reference to the justice who tried the cause and rendered the judgment; that he alone was to be proceeded against by attachment to compel the return. If the justice, whose judgment is appealed from, is dead or removed from the State, then the appellate court is to examine witnesses on oath : and if he has removed to any other county, he may be-compelled to make the return. In no case is any provision made for a return by any other justice than the one who rendered the judgment. Such justice must make the return, and the costs and fees must be paid to him. He only can be attached for not making a return. If the appeal is for error in fact not in the knowledge of the justice, the court may hear the appeal on aEdavits, and when an appeal is taken on a judgment by default, the appellate court may order a new trial before the same justice, or any other justice. What effect, then, has the passage of the act of 1853 upon these provisions 1 It was urged by the defendants’ counsel that section 5 so conflicted with the provisions of the Code as to repeal all the sections applicable to an appeal from the-Marine Court to the Court of Common Pleas. If there is any such conflict, that result would follow. I am unable, however, to see that any such conflict can take place. The appeal to the general term of the Marine Court may be taken by any party aggrieved, notwithstanding his right to appeal to the Common Pleas. He-has his election to appeal to either. It was said that if the general term aErmed and the Common Pleas reversed, there would be a conflict between the two courts. Such would not be the case, any more than if the appeal to the general term was first heard, and the appeal to the Common Pleas afterwards taken. If in such cases the courts differed in opinion, the decision of the appellate court would be controlling, and the decisions-in the court below would yield to the controlling power of the appellate court. The result would be precisely the same whether the general term of the Marine-Court heard the application on appeal before or after the appeal to the Common Pleas. It was also said, if one party appealed to the one court and the other party to the other, there would be conflict between the two courts. Not so, however, because the respective courts would only decide upon the ground of appeal taken by the respective parties. The one court would decide that the defendant had no-ground for appealing, while the other might think the plaintiff was entitled to a reversal of the judgment. In no view does it seem to me that any conflict between the powers of the respective courts can take place. It should be remarked, that section 5 above referred to only applies to the manner and effect of the appeal. It neither interferes with nor prevents the appellant from taking an appeal to the-Common Pleas, according to the provisions of the Code as they were in force before-the passage of the act of 1853, from exercising that right, if he sees fit so to do. *316 instead of the appeal to the general term of the Marine Court. Having either remedy, he has his election which to pursue. It is suggested as one of the grounds for the decision made in the Supreme Court, that the action and deliberation of the inferior court must be exhausted before the appellate court can entertain jurisdiction of the case, and Gracie v Free-land, (1 Comst., 228,) is referred to. That decision was made before the passage of the Code. It referred to an appeal from an order and not from a judgment, and was the interpretation of the statute providing the mode of reviewing an order made by the Supreme Court, which also contained the provision for review in the Supreme Court by the general term of that court; and it was not unreasonable, in the interpretation of the whole statute embracing provisions for review by both courts, to give the act such a construction. But in the present case the right of appeal, as I have before remarked, is from the judgment, and not the afiirmance of the judgment; from the decision of the justice, and not the determination of the general term. Had the effect of that construction of the statute been to destroy the right of appeal altogether, I hardly think it would have been adopted by the court. There is, however, such a manifest difference between the appeal from an order made by the Supreme Court and the provisions for an appeal from a judgment made by a justice in the Marine Court, that the decision referred to cannot be considered as controlling this case. There may also be, properly considered, in this case, a question which arose and •was discussed in the case of Figaniere a. Jackson, (2 Abbotts’ Pr. It., 286). In that case, as in this, the cause was tried before a jury, and judgment rendered on their verdict. Whatever may be the effect of the powers conferred upon the general term of the Marine Court by the act of 1853, they do not exceed those granted to the general term of the Supreme Court upon an appeal thereto. In cases tried by a jury no appeal lies to the general term of the Supreme Court, except upon the law {Code, § 348), and it is only where the case is tried by the court or referee that the facts can be reviewed by the general term. Motions for a new trial in the Supreme Court are only cognizable before a single judge, and the decision in such a motion is subject to review by the general term of that court, under a provision of the Code which is not embraced within section 5 of the act of 1853. By section 366 of the Code, on an appeal to the Common Pleas from the Marine Court, this court may reverse the judgment for errors of law or fact. To review the latter in cases tried by the jury, no power is given to the general term of that court, and no right is given to entertain a motion for a new trial without an appeal. Where the alleged error, then, is an error of fact, there is no conflict, and there can be none, if the court below cannot review such errors, and in such a case there can be no doubt that the right of appeal is still the same. I conceive that it would be better if the legislature would so amend the law as to make the appeal lie from the determination of the general term of the Marine Court in all cases, if the power to hold a general term for the purposes of review is conferred on that court; but it is necessary, also, that other amendments of the law should take place, which, in my judgment, no court has a right to make by its de *317 cisions, independent of legislative authority. The time for appealing must be changed ; other provisions are necessary to procure and compel the return, and authority must be given to the appellate-court to entertain appeals from a determination of the general term of the court below. Without such additional legislation no appeal can be taken to this court from the determination of the general term of the court below, and if so, the judgments of that court become final and are not subject to review anywhere. It is said that the powers of the court below must be exhausted before an appeal can be taken to the higher court, but such was not the effect before the adoption of the last Constitution. The Court of Common Pleas had power to hold a general term and to grant new trials, and yet the Supreme Court always refused to review such action of the court; and, within my experience, returns have been sent back from the appellate court to this court, with directions to strike out such parts as stated a review in this court of the proceedings which had taken place on the trial. There was as much conflict in that case as there could be here. The aggrieved party might apply to the Common Pleas to correct the errors made on the trial, or he might bring a writ of error directly from the judgment of the Common Pleas to the Supreme Court; and this is precisely the condition in which, as I understand the statute, the legislature has placed the Marine Court by the act of 1853, except that in no way has that court power to grant a new trial where the jury has erred upon the facts. It is equally reasonable and proper to conclude that the legislature never intended, by a section so obscurely worded, to destroy entirely the right which, in all other cases, suitors have to obtain a review in a court other than that in which the action was brought. Such is the law of this State throughout all the courts, and I think something more than mere implication is required before any court is warranted in giving that construction to this act.

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The construction upheld by the Common Pleas would lead to a confusion, which ought not to be attributed to the legis

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lature if it can be avoided. A judgment may be rendered by a justice for $250; the plaintiff may appeal to the general

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term, claiming that he should have $500, and may succeed there, and the defendant may appeal to the Common Pleas, and the judgment for $250 be affirmed, or it be adjudged that the plaintiff had no cause of action. Again, the defendant may have relied on a set-off, and that may have been allowed him before a justice, and yet judgment for a balance be given for the plaintiff. The defendant may appeal to the Common Pleas, insisting that he should have judgment for his whole set-off, without anything being allowed to the plaintiff; and the plaintiff may appeal to the general term, claiming that the defendant should have no set-off; each court may decide in favor of the appellant. If each party may elect his tribunal, such may well be the result; the judgments of each tribunal being equally authorized by law, would be equally valid. The Common Pleas could not claim superior authority for its judgment, for, although it is an appellate court, so is the

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general term an appellate tribunal, and when it acts, its appeal, according to the decision of the Common Pleas, is final and beyond the power of the Common Pleas to control. The general term of the Marine Court may insist that if its jurisdiction is such that no appeal lies from it to the Common Pleas, it cannot be bound, and has no power to avoid its own judgment, even with a view to conform it to that of the Common Pleas.

There has been a growing disposition to produce simplicity in the courts by having as much similarity in the practice and organization of the various courts as practicable. The act of 1853 was passed with this motive, and to elevate the rank of the Marine Court. With the latter object, the justices of that -court were made to hold their offices as in the Common Pleas and Superior Court, for six years, and powers of control as to their room, fuel, attendants and stationery, and in the appointment of their officers, were given to them, like those given to the two other courts. With the first object, power to open a judgment by default was conferred on a single justice, (before this, the Common Pleas alone had this power,) general terms were established, and an appeal given to them in all trials; thus making a near approach to the practice.in the courts of record.

This resemblance to those courts is made more complete if it is held that when the act of 1853 says “ an appeal may be taken from a judgment entered by direction of a single justice to the justices thereof at a general term,” it is imperative that such appeal must be taken before any appeal lies to the higher court. This is analogous to the appeal to the Court of Appeals from all the courts of record in the State—no such appeal lying until recourse is first had to the general term of the Cvurt below and its judgment is rendered. (See Gracie v. Freeland, 1 'Comst., 228.) It is also in conformity to the ordinary course of practice and to sound sense not to allow an appeal to a higher court while redress may be had in a higher branch of the court below than that which rendered the first judgment.

It has been argued that the language of the Code is such that it allows an appeal to the Common Pleas only from the judgment of a single justice, as the notice of appeal is to be

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served “ on the justice,” and the costs of appeal must be paid to “ him” in the singular number. The singular number was then used because the only judgments that could be then rendered in the court below were rendered before a single justice; but now the court below can render judgments also at a general term; and the complete appellate power of the Common Pleas over the inferior tribunal is not to be taken away because the singular number alone was used at a time when that number alone was appropriate. The controlling power of that court is as essential to the symmetry of our judicial system as it is important for the sake of justice. It never could be the intention of the legislature to allow a court not of record to have a right at the election of any party to pronounce a judgment from which there could be no appeal, when the original judgments of the highest courts of record are all subject to two appeals—one to the general term of their own court and the other to the Court of Appeals. The provisions of the Code must, therefore, be considered as so modified by the act of 1853 that the return to the Common Pleas shall be made by the general term of the Marine Court, and the appeal be made in twenty days after the judgment of the general term.

The appeal that is allowed to the general term is, in general terms, “ from a judgment entered by the direction of a single justice.” Ho distinction is made whether the trial has been before a jury, or before the justice alone, or before referees, as is made in the Code as to appeals from the special term and the general term of the courts of record. There, in express terms, and in the only clause in which the right of appeal is given, the limitation is presented, and it declares “ an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees, or the direction of a single judge of the same court, in all cases, and upon the fact, when the trial is by the court or referees.” This section thus defines the cases in which appeals lie in those courts, and excludes from those cases trials before a jury, where the question to be raised on appeal is one of fact and not of law. This is not, as has been supposed, a statement of the manner or effect of the appeal, but of the cases in which the appeal lies. The “ manner” relates to the mode of proceeding in effecting an

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appeal, the notice and security to be given ; the “ effect” relates to the consequences produced by the appeal, as under what circumstances it shall operate to stay proceedings. “ Effect” is the appropriate word to describe a result that follows after the thing previously spoken of, (the appeal,) is completed, and would be quite inappropriate if used to define the cases in which such thing might be done. The fifth section, therefore, allows the appeal to the general term as well on questions of fact as of law. It would be most extraordinary if such were not the case. It could not be that the law which allows an appeal to the higher court, on a default and on questions of fact as well as of law, and which gives the extraordinary power to that higher court to examine witnesses originally, when there was an error in fact in the proceedings not affecting the merits (Code, § 366), should allow an appeal to the general term of the inferior court, in the more difficult of the matters thus cognizable by the higher court—questions of law —and not allow it in the more easy questions of fact; especially as those last in our system were never examinable in a higher court except in equity cases and appeals from justices’ courts.

■ The relator’s appearing in the Common Pleas and arguing his cause there, on the merits alone, did not give jurisdiction to that court—such acts might waive a mere irregularity, but could not confer jurisdiction.

The appellant also insists that mandamus is not the proper remedy in this case. Whatever difficulty there may be in determining whether a mandamus is allowable in some cases, it is allowable whenever a party has a legal right and is entitled to a specific remedy to enforce it, and a public officer, whose duty it is to afford that remedy, refuses to afford it. This is peculiarly proper where the officer is not a mere ministerial officer (as a collector of taxes), but, as in this case, is the agent by whom the judgments of the court are to be enforced: he becomes part of the machinery of the court, without whose action the judgment of the court is arrested in its effect. It cannot be that the judges themselves are liable to this writ, if they will not proceed and pronounce judgment, and that the officer who has no discretion to exercise, but is bound to

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issue the execution founded on the judgment of the court, can in effect make void the judgment by refusing to issue the execution founded on it—and that the judgment creditor is to be left without any specific means to obtain the execution which the law entitles him to. In Onderdonk a. The Supervisors of Queen’s County ( 1 Hill, 195 ), the court said that no certiorari, mandamus or prohibition, on account of an alleged erroneous item in the assessment of taxes, could be issued to the collector, as he was a mere ministerial officer. The remark was correct in its connection; as such officer he had no control over the assessment roll, and no power or right to present to the court the facts, which would show whether the item objected to was lawfully included or not. The application was to prevent his acting where his warrant required him to act/ if it had been to compel him to execute the warrant, it probably would have been granted. The clerk of the court is more than a mere ministerial officer, as he is an officer of the court, charged by law with the performance of a specific duty, that of furnishing the specific remedy by execution on judgments in this court.

In Smith, &c„, Pier Proprietors in the City of Albany, v. The Comptroller of the State, ( 18 Wend. 659 ), a mandamus was granted to compel the Comptroller to pay certain tolls collected by him for the State, and to which the pier proprietors were entitled. In The People v. The Mayor of New York, ( 10 Wend., 393 -7), the court, on the merits, refused the relief sought, but held that mandamus was the proper remedy to compel the Corporation of Mew York to execute a lien on a sale for taxes, and that it was no objection that relief might be had in equity, or by indictment. In that case an action for damages would also have lain; but Nelson, Ch. J., said that " whenever a legal right exists the party is entitled to a legal remedy, and when all others fail the aid of this may be invoked.” This case, and others, show that when a specific duty is imposed by statute on public officers they may be compelled to execute it by mamr damus, although an action for damages might also lie.

In The Bank of Utica v. The City of Utica (4 Paige, 399), the Chancellor expressed the opinion that the Bank had a perfect remedy at law by an application to the Supreme Court

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for a mandamus to compel the common council to correct their assessment and taxation of the property of the Bank, if it was illegal. In Bright v. The Supervisors of Chenango Co., ( 18 Johns., 242 ), the court granted the writ to compel the Supervisors to audit and allow the account of the clerk of the county for books purchased by him for recording deeds, &c.

In Hall v. Supervisors of Oneida Co., ( 19 Johns., 259 ), the court refused the writ because it appeared that the services for which the applicant (a physician) claimed pay had been rendered gratuitously, and so there was no legal claim for them; hut the court held that if the claim were legal, there was no * doubt of their jurisdiction to instruct and guide the supervisors in the execution of their duty by mandamus—not to control their discretion in judging what is a reasonable compensation for such services, but to compel them to admit the claim as a county charge, and to exercise their discretion as to the amount.” The office of the writ and its extent are well stated by Chief Justice Spencer in The People ex rel. Wilson v. The Supervisors of Albany ( 12 Johns., 415 ), that it is “ to require the persons to whom it is directed to do some particular thing, which appertains to their office or duty, and which the court issuing it supposes to be consonant to right and justice ; and that if the party making the application has a legal right, " and no other specific legal remedy, the writ generally goes.” The latter part of this opinion is to be understood in connection with the former as applying only to matters appertaining to a public office or duty, not to rights between private individuals merely, when neither holds a public office.

The judgment of the general term should be affirmed with costs.