People ex rel. Pond v. Wood , 2 Abb. Pr. 90 ( 1855 )

Cowles, J.

The writ of mandamus should not issue except when it is necessary to enforce the rights of the party seeking its aid,.and in that class of cases only where no other adequate remedy exists. In this case it is unnecessary to inquire whether the order made by the Superior Court, directing the comptroller to procure the warrant, to be countersigned by the mayor, was one which the mayor himself was bound to obey; nor is it necessarry to determine whether an order could properly be made for the payment of moneys due by the corporation of this city, until such corporation had itself been made a party to the proceedings. All of these questions the Superior Court, which made the order, can determine for itself whenever the question shall arise before that tribunal. It is sufficient for all the purposes of this motion to say that that court possesses ample power by process of attachment to enforce its own orders. That remedy is open to the relator here, provided the order made by the Superior Court is one which the mayor was bound to obey. In such case the remedy of the relator is simple, direct, and effective, and being so, the most proper forum in which to enforce the rights of the applicant is the one in which his proceedings have been initiated. The powers of another tribunal should not be invoked unless the court having original jurisdiction, should, from want of projjer authority, be unable to enforce its own orders or decrees. Even if this order is to be regarded as the order of the Judge at Chambers, and not that of the Superior Court, yet, by section 302 of the Code, the judge is vested with full and ample authority to enforce obedience, if obedience is the duty of the mayor. If, on the other hand, as the respondent contends, the order itself is not binding — a question I leave to be solved by the Superior Court — then manifestly no writ of mandamus should issue from this court. I base a denial of the motion upon the single ground that the order, if binding on the Mayor, can be promptly enforced by the court or justice by whom it was made.

The motion must be denied, with $10 costs.