People ex rel. Taylor v. Brennan

Clerke, J.

(dissenting.) I suppose, as we intimated in The People on the relation of Green v. Wood, (35 Barb. 653,) that we should consider ourselves constrained, under the authority of The People v. Flagg, (16 Barb. 503,) to entertain the application in this case; the common council having ordered a specific act to be done by the comptroller, in order to complete their alleged contract with the relator. Although. the relator, in that case, had his ordinary legal remedy against the corporation, the court granted the mandamus against the comptroller. The case now before us amply illustrates the danger of the principle upon which the decision in The People v. Flagg is founded, and of departing from the salutary rule that when a party has a plain and adequate remedy by an ordinary action, if he has any remedy at all, this extraordinary remedy by a writ of mandamus should not be extended to him. Where disputed facts and complicated legal questions are involved, justice can be more safely and conveniently administered by the ordinary course and practice of the law than by a resort to the method attempted in this case. At all events, it is quite evident to my mind that a peremptory mandamus ought not to have been allowed in the first instance. A case involving so large an amount of property and presenting a state of facts which, to say the least, were calculated to demand grave deliberation and inquiry, never should have beep disposed of on affidavits. To be sure it is said that the counsel for the comptroller did not object to this disposition of the case; but I think that this, absence of a positive objection was not sufficient, and that, if the case was deemed a proper one, an alternative mandamus should only be issued ; unless the counsel expressly stipulated to submit the question whether a peremptory mandamus should issue ; and therefore I am satisfied, if the application be entertained at all, that an alternative and not a peremptory mandamus should be issued.

[New York General Term, May 4, 1863.

Sutherland, Clerke and Barnard, Justices.]

The order should be reversed, or should be so far modified as to direct that an alternative mandamus should be issued, so that a return may be made, giving to the relator an opportunity to plead or demur, and, if issues of fact are joined, that they may be tried before a jury.

Order modified and affirmed.