People v. New York Central & Hudson River Railroad

Headnote

Mandamus — proper mode of dismissal of application for, upon the failure of the people to prosecute.

Appeals from orders made at Special Term, requiring tbe attorney-general to proceed with an application for peremptory writs of mandamus and setting the causes down for bearing.

Upon a previous appeal to tbe General Term, orders made at tbe Special Term quashing and dismissing petitions for a ma/ndamus bad been reversed. ( 28 Hun, 548 .)

Tbe court at General Term said : “ Tbe decision of tbe General Term reversing tbe ordérs of tbe court below, which denied tbe motions for mandamus, left those motions undisposed of in tbe court below. Tbe application on tbe part of tbe respondents to have those motions disposed of by tbe Special Term was proper; but when tbe moving parties came into court and declined to proceed with tbe motions, tbe Special Term should have denied tbe motions, with or without costs, in its discretion.

“ There was no special proceeding pending which entitled tbe respondents to have tbe case set down for trial at the Special Term. That was done by tbe order of tbe court below. They were like' ordinary motions noticed by a party who subsequently declines to proceed upon bis notice, and tbe disposition above suggested, to wit, by denying tbe motion, was tbe proper one to relieve tbe respondents from any further action on tbe part of tbe people.

“ Tbe order should therefore be modified by simply denying tbe motions noticed at Special Term for mandamus, and as so modified affirmed, without costs.”