Jansen v. Davison — 2 Johns. Cas. 72

Majority

p. 72

Jansen and others, Administrators, against Davison.

Headnote

Where the plaintiffs, who were administrators, in a cause, in the court of common pleas, recovered less than twenty-five dollars damages, and that court gave judgment for the damages, but not for the costs, this court refused to grant a mandamus to compel them to give judgment for the costs. The proper remedy is by a writ of error.

A recovery was obtained in the common pleas of Ulster, in favor of the plaintiffs, in the capacity of administrators, for a sum less than 25 dollars. The court below gave judgment for the damages, but considering the plaintiffs not entitled to costs, refused to give judgment for costs.

Gardinier,

for the plaintiff, moved for a mandairins to the common pleas, commanding them to gife judgment in favor of the plaintiffs, for the costs, as well as the damages recovered.

This application cannot be granted.

The court below have exercised their judgment on the question of costs. It was not, on their part, a delay or refusal to do what appeared to them to be right. If they were wrong, it was an error of judgment merely, and the proper remedy is by a writ of error, which the party is entitled to have upon an erroneous judgment, whether it be in his favor, or against him. Upon a writ of error, the court above may not only reverse, but give such judgment as the court below ought to have given.

Motion denied.(^[1] )

a a (a) A mandamus is only proper where a party has a legal right, without any other appropriate legal remedy, and where in justice a remedy ought to be granted. The People v. Stevens, 5 Hill, 616 ; Ex parte Lynch, 2 id. 45; Boyce v. Russel, 2 Cowen, 444 ; Ex parte Nelson, id. 417, 423 ; The People v. Supervisors of Albany, 12 Johns. R. 414; Shipley v. The Mechanics Bank, 10 id. 484; The People v. The Mayor, &c. of New York, 10 Wend. 293 ; Justices v. Munday, 2 Leigh, 165 ; State v. Dunn, Minor, 46; State v. Holliday, 3 Halst. 205; Commrs. v. Lynch, 2 McCord, 170 ; State v. Bruce, Const. Rep. 165, 175. If therefore error will lie, a mandamus cannot be granted ; Ex parte Nelson, ut supra; People v. The Judges of Ulster, C. C. *73 117; Ex parte Bostwick, 1 Cowen, 143; Bank of Columbia v. Sweeny, 1 Peters, 567. See also note to Fish v. Weatherwax, infra, 215.