Majority
p. 487In the Matter of the Application of Jessie C. McBride, App’lt, for a Mandamus to Thomas E. Murray, Resp’t. (Supreme Court, General Term, First Department, Filed October 13, 1893.)
Headnote
Mandamus—Judge—Jurisdiction.Where a judge or justice determines that he has no jurisdiction that disposes of the action or proceeding, and he cannot be compelled to proceed by mandamus, but the question whether he had jurisdiction must be reviewed in the ordinary way.
Appeal from order denying application for a mandamus.
Hoyt & Rubens, for app’lt; C. J. G. Hall, for resp’t
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 be manifestly erroneous, it cannot be reviewed upon mandamus. Cases cited in Fiero Spec. Proc., 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 ten dollars costs and disbursements.
"Van Brunt, P. J, Follett and Parker, JJ., concur.