Majority
p. 431(72 Hun, 394.) McBRIDE v. MURRAY. (Supreme Court, General Term, First Department. October 13, 1893.) Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Headnote
Mandamus—To Judge.Where a justice determines that he has not jurisdiction, he thereby disposes of the case by decision, and mandamus will not lie to compel him to proceed in the usual manner to make a final order, but the question whether he had jurisdiction must be reviewed in the ordinary way.
Appeal from special term, New York county.
Application by Jessie C. McBride for mandamus to Thomas E. Murray, a justice of the district court of the city of New York. From an order denying the application, petitioner appeals.
Affirmed.
Hoyt & Rubens, for appellant.
C. J. G-. Hall, for respondent.
• It is undoubtedly true that a mandamus Will lie to compel an inferior tribunal to decide an action or proceeding pending before it; but where the court or judge or justice disposes of the proceeding by decision, even though such decision he manifestly erroneous, it cannot be reviewed upon mandamus. Cases cited in Fiero, Spec. Proc. p. 56. In the case at bar the justice determined that he had not jurisdiction, and that disposed of the -action or proceeding pending before him. Whether he had jurisdiction or not must be reviewed in the ordinary way. The order appealed from should be affirmed, with $10 costs and disbursements.