Majority
p. 837In the Matter of the Application of Island Improvements, Inc., Petitioner, for a Peremptory Mandamus Order against Mitchell May, Justice of the Supreme Court of the State of New York, Second Department, Defendant.
Motion for peremptory mandamus order directing the trial justice to render a decision and sign a judgment granted. The right to a jury trial having been waived, the action was properly tried by the court. (Civ. Prac. Act, §§ 426, 428.) The court, having tried the case, must decide it and make a decision and judgment, and the court’s action in setting aside the so-called decision and directing that the issues be tried before the court with a jury was not a proper exercise of discretion. (Smith v. Geiger, 202 N. Y. 306 , 312; O’Brien v. Bowes, 4 Bosw. 657 .) The form of relief is by the way of mandamus. (Norwegian Lutheran Trinity Church v. Krelsovitch, 147 App. Div. 108 .) Present — Lazansky, P. J., Young, Kapper, Carswell and Scudder, JJ.
Cases cited
- Smith v. Geiger 202 N. Y. 306 at 312 p. 837
- O'Brien v. Bowes 4 Bosw. 657 p. 837