People ex rel. Judge v. Hylan

Blackmar, P. J.:

The bus line was operated in violation of the law (Transp. Corp. Law, § 26);^* it was a public nuisance (Penal Law, § 1530), and the duty of the mayor is to enforce the law (Greater N. Y. Charter, § 115). There is no doubt that the court has power, to issue its order in the nature of mandamus to the mayor to compel performance of his duty (People ex rel. Weatherwax v. Watt, 115 Misc. Rep. 120; affd., 197 App. Div. 929; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390); but under the present circumstances I think the court, in the exercise of its discretion, should have denied the motion. The court should not, unless required by exigency of public safety or other compelling consideration, interfere in details of the exercise of the executive power by the mayor of the city of New York.

The order is reversed in the exercise of the discretion of this court, and the motion denied.

Kelly and Manning, JJ., concur; Jay cox and Kelby, JJ., dissent and vote to affirm.

Order reversed in the exercise of the discretion of this court, and the motion for mandamus denied as a matter of discretion.

* Added by Laws of 1915, chap. 667, as amd. by Laws of 1919, chap. 307,—[Rep,