Majority
p. 1139PEOPLE ex rel. NASON et al., Appellants, v. CALLAGHAN, Respondent. (Supreme Court, Appellate Division, Second Department. December 5, 1913.)
Headnote
Proceeding by the People of the State of New York, on the relation of Ernst M. Nason and another, against Stephen Callaghan, Justice of the Municipal Court of the City of New York.The refusal of the learned justice of the Municipal Court to sign the warrant of seizure was justified by the prior decision of Faraci v. Mailer, 154 App. Div. 303 , 138 N. Y. Supp. 961 . Although that has been since reconsidered, and the doctrine there stated overruled (Cairo v. Baron, 158 App. Div. 591 , 143 N. Y. Supp. 853 , decided October 31, 1913), the justice’s ruling is to be tested by the law as it had been declared when he was called upon to act. The writ of peremptory mandamus, being discretionary, will not now be granted, inasmuch as presumably there will be no occasion therefor, in view of our later decision, rendered pending this appeal. ■ Order affirmed, without costs.
Cases cited
- Coiro v. Baron 158 App. Div. 591 p. 1139