Mackey v. Hallett ( 1931 )

Order modified so as to direct an alternative order of mandamus and, as so modified, unanimously affirmed, without costs. The record shows an issue of fact as to whether the parties agreed to retry the ease before Justice Woodworth. If this agreement was made the petitioner is not entitled to an order of mandamus. If it be determined that no such agreement was entered into, an order of mandamus may issue, as granted by the Special Term. The court is of opinion that Justice Hallett was without power to set aside the verdict and grant a new trial. Present — Lazansky, P. J., Young, Hagarty, Carswell and Seudder, JJ.