Abbe v. New York, N. H. & H. R.

It is true that in Bereslavsky v. Caffey1 the question, whether an action should be tried to a judge or to a jury, was.one of law; not, as here, of the exercise of discretion. However, although expressions to the contrary can be found, the Supreme Court has said a number of times, and in some cases has decided, that the writ of mandamus may be used to determine whether the lower court has abused its discretion.2 This is also the rule in several of the states, though these I have not thought it necessary to consider. Therefore, if the appellant had applied for mandamus, I think that we should…