People v. Cayuga C. P.
10 Wend. 632
N.Y. Sup. Ct.
1834
Check Treatment

By the Court,

Sutherland, J.

Without looking into the merits of this motion respecting which I do not purpose to express any opinion, I have come to the conclusion to refuse a mandamus in this case. Had a regular application been made by the relator to the common pleas, on due notice to the party to *634be affected, to quash the certiorari on the grounds suggested when the cause was brought on to argument in the common pleas, and had such application been well founded and improperly denied by the court, the appropriate remedy would have been a mandamus: but the relator did not pursue this course; he permitted the cause to be brought on to argument, and then urged the illegal allowance of the certiorari as a preliminary objection to the argument being proceeded in, instead of staying the proceedings of the plaintiffs in error and moving to quash the certiorari. The preliminary objection of the relator was in the nature of a motion to nonsuit a plaintiff upon the opening of his cause, and if the court erroneously decided against him, his remedy, if any, is by writ of error, and not by mandamus. For these reasons the motion for a peremptory mandamus is denied with costs.