Oleck v. Pearlman

This petition will be considered as an application which, in effect, seeks to mandamus a Judge of the Civil Court to fix an undertaking pending an appeal from a judgment of dispossess. The petitioner claims that such fixation is not a discretionary function but the Judge’s absolute duty, as prescribed by CPLR 5519 (subd. [a], par. 6). The issue does not involve the discretion of the court of first instance *203to approve the bond in form, sufficiency and amount satisfactory to him but rather whether he is mandated to approve some undertaking or may flatly decline to do so, unless, as stated by…