In re McBride — 79 N.Y. Sup. Ct. 394

Majority

p. 394

In the Matter of the Application of Jessie C. McBride, Appellant, for a Peremptory Writ of Mandamus against Thomas E. Murray, Respondent.

Headnote

Mandmmus to an inferior tribunal — after a decision that it has not jurisdiction to act.

A mandamus will not lie to compel an inferior tribunal to decide an action or proceeding pending before it, where such tribunal has already decided that it has not jurisdiction to entertain the same.

Appeal by the applicant, Jessie C. McBride, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 24th day of June, 1893, denying her motion for a peremptory writ of mandamus to compel Thomas E. Murray, justice of a District Court in the city of New York, to proceed forthwith with the summary proceedings instituted in said court by the applicant against Uriah W. Tompkins, tenant.

p. 395

Hoyt c& Rubens, for the appellant.

G. J. G. Hall, for the 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 be manifestly erroneous, it cannot be reviewed upon mandamus. (Cases cited in Fiero on 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 cost® and disbursements.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.