People ex rel. Goldstein v. Bolte — 71 N.Y.S. 73

Majority

p. 73

PEOPLE ex rel. GOLDSTEIN v. BOLTE, Justice of Municipal Court.

(Supreme Court, Special Term, New York County.

February 14, 1900.)

Headnote

Removal of Causes—Order—Compelling—Mandamus—Appeal.

Mandamus will not lie to compel a justice to remove a cause from the municipal court to the city court, since relator has an adequate remedy by appeal.

Mandamus by the people, on the relation of one Goldstein, against Herman Bolte, as justice of the municipal court of the city of New York. Denied.

It is elementary that a mandamus will issue only where there is a clear, legal right without adequate legal remedy. People v. Railroad Co., 63 How. Prac. 291, 296; Clark v. Miller, 54 N. Y. 528 , 534. By the long-approved practice of this court, the alleged wrongful refusal of a justice of the former district or the present municipal court to order removal of a cause to the old common

p. 74

pleas or the present city court was adequately remedied by appeal. Hogan v. Devlin, 2 Daly, 184 ; People v. Fourth Dist. Ct., 13 Civ. Proc. R. 134; O’Connor v. Moschowitz, 48 How. Prac. 451; Warren v. Campbell (Com. Pl.) 14 N. Y. Supp. 165 ; People v. Roesch, 27 Misc. Rep. 44 , 45, 57 N. Y. Supp. 295 .

The motion for the writ must, therefore, be denied, with $10 costs.

Cases cited

Clark v. Miller 54 N. Y. 528 N.Y. Comm'n App. at 534 p. 73
People ex rel. Metropolitan Street Railway Co. v. Roesch 27 Misc. Rep. 44 N.Y. Sup. Ct. at 45, 57 p. 74