| N.Y. Sup. Ct. | Oct 15, 1856
It is now the settled doctrine of this court, that a mandamus will not lie to an inferior court for the correction of judicial errors. All that this court, in the exercise of its supervisory powers over subordinate judicial tribunals, can do is to require them, by mandamus, to proceed to judgment; but it cannot dictate what particular judgment they shall render. Although ministerial officers and corporations may be required, by this writ, to act in a particular manner, or even to reverse what they have already done; the rule is otherwise in relation to courts of justice, and other bodies, acting judicially upon matters within their cognizance. (20 Wend. 658, 659 and 660 ; 2 Denio, 191; 1 id. 679; 18 Wend. 79.)
In .this case, the only question is, whether the dismissal of the appeal by the county judge was a matter within his judicial cognizance, and whether it was a judicial error 1 If the county judge acted ministerially, or if he had no power under § 364 of the Code to dismiss the appeal, and therefore the matter of the dismissal was not within his judicial cognizance, and for that reason a nullity, a mandamus may issue commanding him to proceed to hear and decide the appeal. Such a mandamus would not violate the principle of the cases cited, as it will only require the county court to proceed to judgment, and will not dictate what particular judgment shall be given.
With some hesitation, I have come to the conclusion that the appeal was improperly placed upon the calendar of the court, before the return was perfected by the filing of the amended return. The order for the amended return was granted at the first term after the filing of the original return, and such order remained in force unrescinded until the dismissal of the appeal.
If the appeal was improperly placed upon the calendar before the return was perfected by the filing of an amended return, the county court had no power to dismiss the appeal; and the dismissal was a mere nullity. And it may be said, inasmuch as no motion was made by the appellee to dismiss the appeal, and as no cause was shown, or attempted to be shown by the appellant for the continuance of the appeal, and as no question was presented to the court by either party for its deliberation, the action of the court having been taken in the absence, and without the knowledge of the parties, and in obedience to the peremptory mandate of the 364th section of the Code, that the court, in dismissing the appeal, did not act judicially, but ministerially merely.
The 364th section declares,in the case stated, that “the court shall dismiss the appeal,” &c. In doing this act under this mandate, in the absence of the parties, and where no motion is made by either party, and no question submitted by either to the court, the court is the mere instrument of the law. It does not deliberate, it exercises no discretion, it does what it is commanded to do, and precisely as a ministerial officer acts in the discharge of his official duty.
If, therefore, the county court acted ministerially in dismissing the appeal; or if the dismissal of the appeal was not within its judicial cognizance, and void, it may be regarded as a nullity, and a mandamus may issue in like manner as if the appeal
It had doubtless escaped the recollection of the county judge, when he dismissed the appeal, that an order had been made requiring the justice to file an amended return, and that the same had not been filed.
A mandamus must' issue as asked for.