People ex rel. Cahoon & Kelsey v. Dodge
New York Supreme Court
C. G. Myers moved for an alternative mandamus to compel the county judge to file his decision in the case of Cahoon & Kelsey v. Northam. It appeared by the moving affidavits that the cause came to the County Court by appeal from a justice’s judgment, and by consent of parties, was tried by the judge of that court without a jury. The appeal was brought in 1847. The affidavit also stated, upon information and belief, that the judge had decided the case.
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C. G. Myers moved for an alternative mandamus to compel the county judge to file his decision in the case of Cahoon & Kelsey v. Northam. It appeared by the moving affidavits that the cause came to the County Court by appeal from a justice’s judgment, and by consent of parties, was tried by the judge of that court without a jury. The appeal was brought in 1847. The affidavit also stated, upon information and belief, that the judge had decided the case. Myers said that he understood Judge Dodge had made his decision in writing, but was accidentally prevented from filing it until twenty days…
1Opinion of the Court
Hand, Justice.
A mandamus is the proper remedy to compel inferior tribunals to act, though not to direct them how to act where they have discretion (Judges of Oneida Com. Pleas vs. The People, 18 Wend., 92).
Where a question of fact is tried by the court, “ its decision shall be given in writing, and filed with the clerk, within twenty days after the court at which the trial' took place” (Code, § 267). In cases tried at the circuit, clearly this is only directory. It would be intolerable if the cause had to be retried, because the judge, perhaps from sickness or pressure of business, or other…
2Cases cited1 opinion
- Van Wormer v. Mayor of AlbanyNew York Supreme Court · 1837
3Cited by3 opinions
- Hodecker v. HodeckerAppellate Division of the Supreme Court of the State of New York · 1899
- Stafford v. AmbsSuperior Court of Buffalo · 1879
- Hupfel v. SchœmigThe Superior Court of New York City · 1872