People ex rel. Gaylord v. Board of Supervisors — 40 N.Y. St. Rep. 66

Majority

p. 66

The People ex rel. Woodford Gaylord, late Sheriff, Resp’t, v. The Board of Supervisors of Schoharie County, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 25, 1891.)

Headnote

Mandamus—Order.

As the entering of an order allowing a writ of alternative mandamus is a mere clerical duty, the mandamus will not be set aside for a failure to enter the order, but the order may be entered nunc pro tune.

Appeal from order denying motion to set aside a writ of mandamus.

Eelator applied "to Justice Mayham for a writ of mandamus to require the board of supervisors to audit his account as sheriff. The writ was granted, but was not entitled as of special term. It was signed by the clerk and an allowance endorsed thereon by the justice. A motion was thereafter made to set it aside on the ground that it did not appear to have been granted at a special term, and that no order therefor had been issued, which motion was denied.

W. C. Lamont, for app'lt; A. B. Coons, for resp’t.

The mandamus was granted at a special term, and could be granted only at a court. Code, §§ 2068,2069. Undoubtedly the proper mode for a court to act, or rather to express its acts, is by an order entered in its records. But the entering of such an order is a clerical duty. Frequently an order is granted in open court, and it may be a day or two before the formal order is entered in the clerk’s records. And the court would not set aside the order for the neglect of the clerk to enter it.

So in this case. The proper course would have been to enter an order. But as that is a clerical duty, we ought not to set aside the mandamus for the clerk’s neglect. The proper order may now be entered nunc pro tune; and thus the proper record of the action of the court will be preserved.

The order denying the motion is affirmed, with ten dollars costs and printing disbursements, and with leave to relator to enter nunc pro tune the proper order.

Landon, J., concurs; Mayham, J., not acting.