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People ex rel. Debennetti v. Clerk of Marine Court.

prima facie evidence that the relator is disqualified from holding office in the Metropolitan Police force. Conceding, therefore, that the relator was not in office, he still had a right to have the proceedings against him reversed, on the ground that their effect, if allowed to stand, might be to render him ineligible to office in future.

It is insisted, on the part of the defendants, that the decision of which the relator complains cannot be reviewed upon certiorari. If, as the counsel for the defendants suppose, the order or sentence dismissing the relator from office was an exercise of administrative or executive power, the objection would, undoubtedly, be well grounded. But the proceedings in question are to be regarded as judicial in their character. It is the office of certiorari to confine inferior officers or tribunals exercising judicial powers, within the boundaries of their jurisdiction. The order in question being a judicial proceeding, it is a proper subject of review upon certiorari. As we have already seen, the relator was entitled to be heard before the defendants were authorized to make the order against him. Not having had this opportunity, the proceedings were illegal. Upon this ground alone, and without reference to the question, whether, at the time the proceedings were instituted against him, the relator was in office or not, the judgment of the supreme court should be affirmed.

All the judges concurred.
Judgment affirmed.



September, 1856.

Affirming 3 Abb. Pr. 57; S. C., 22 Barb, 502.

From the general term of the New York marine court, an appeal lies to

the New York common pleas; but from a single judge, the appeal is to the general term of the marine court.*

* Followed in Robert Donnell, 31 N. Y. 466 ; S. C., 1 Abb. Pr. N. S. 12, reversing 10 Abb. Pr. 454; and see 4 Abb. Pr. 184.

For the present jurisdiction of the marine, court, and the mode of issuing execution, see 2 L. 1872, p. 1494, c. 629.

People ex rel. Debennetti o. Clerk of Marine Court.

The respondent, by appearing in the common pleas, and arguing, on the

merits alone, and without objection, an appeal taken from a single

judge of the marine court, does not coufer jurisdiction.* Mandamus lies to compel a clerk of an inferior court to perform a specific

duty necessary to give effect to the judgment of his court,-e. g., to

issue execution.f Mandamus is the proper remedy wherever a party has a legal right, and

is entitled to a specific remedy to enforce it, and a public officer •whose duty it is to afford that remedy refuses to afford it; and is peculiarly proper where the officer is not a mere ministerial officer, but part of the machinery of the court.

On the relation of John B. Debennetti, that on December 5, 1855, judgment was rendered in his favor by one of the justices of the marine court, against Herman Manchin and others, from which no appeal was taken to the general term of this court; nor were the proceedings stayed by order of the court; that upon application to Moses D. Gale, an execution upon said judgment was refused, and an order that execution issued was also refused by the general term; an order was issue by the supreme court requiring said Gale to show cause why a mandamus should not issue compelling the issuance of the execution; to which said Gale answered that said judgment had been appealed from to the common pleas court, and after argument by both parties, had been reversed. The special term held the return insufficient in law for the court to refuse a peremptory mandamus,—which was thereupon directed to be issued. The general term sustained the judgment. Defendant appealed to this court.

Benjamin T. Kissam, for defendant, appellant;-Cited Exp. Hoyt, 13 Pet. 279; 3 Black. Com. 110; Tapping on Mandamus, 110, 111, 177, 11, 12, 16, 17; R. v. Bristow, 6 T. R. 168; 6 A. & E. 401; Code of Pro. SS 351-354, 360, 364, 366; Exp. Heath, 3 Hill, 42, 51, 52; McCluskey v. Cromwell, 1 Kern. 593, 601, 604; Dwarris on Statutes, 638, 641, 674; Williams v. Bigelow, 11 How. Pr. 83 ; Stafford v. Ingersoll, 3 Hill, 41 ;

* Followed in McMahon v. Raulr, 47 N. Y. 67. | Compare a further decision in the court below, in 16 Hor. Pr. 199. | Followed in People ex rel. Nevins v. Willis, 5 Abb. Pr. 203, 213.

People ex rel. Debennetti v. Clerk of Marine Court.

Bowen v. Lease, 5 Id. 226; Weeks v. Ellis, 2 Barb. 319-20; Van Rensselaer v. Snyder, 9 Id. 302, 308; People ex rel. White v. Erie Com. Pl., 6 Wend. 549; Seymour v. Judd, 2 Com. 461; Buel v. Trustees of Lockport, 3 Id. 197; Embury v. Connor, 3 Id. 518; Williams v. Potter, 2 Barb. 316; Wells v. Lyon, 18 Id. 530; Webster v. Hopkins, 11 How. Pr. 140; Grace v. Freeland, 1 Com. 228.

G. Dean, for plaintiff, respondent.-As to appeal;-cited Code of Pro. § 353; L. 1853, p. 1165; People ex rel. Figaniere v. Justices of Marine Ct., 2 Abb. Pr. 240; Gracie v. Freeland, 2 N. Y. ( 2 Comst.) 228. That consent did not give jurisdiction:

Clark v. Coun, 1 Munf. 160; Dudley v. Mayhew, 3 Comst. 9; Coffin v. Tracy, 3 Cai. 129; Lindsey v. McLelland, 1 Bibb, 262; Bent v. Graves, 3 McCord, 280; Folley v. People, Breese, 31; Falkenburgh v. Cramer, Coxe, 31; Walker v. Munday, Id. 70. That reversal by the common pleas was void, and the judgment of the marine court still in force, and execution could issue thereon the same as if no appeal had been taken: Loreland v. Burton, 2 Verm. 521; 9 Cow. 227; Bloom v. Burdick, 1 Hill, 130; 6 Cow. 585; 7 Id. 468. And could be issued by the marine court alone: Laws relating to City of N. Y., p. 480, § 11. That the only remedy to compel him to issue execution is by mandamus: Regina v. Clerk of County Court of Surrey, 12 Eng. L. & Eq. 428; Trustees of Wabash & Erie Canal v. Johnson, 2 Car. (Ind.) 219; People v. Judge of Wayne County Court, 1 Mann (Mich.) 359; Locket 9. Child, 11 Ala. 640; People v. Supervisors of Greene, 12 Barb. 217; People v. Steele, 2 Id. 397; Exp. Goodell, 14 Johns. 325; Hall v. Supervisors of Oneida, 19 Id. 259; Terhune v. Barcalow, 6 Hulst. 38; Haight v. Turner, 2 Johns. 371 ; People v. Superior Ct., 10 Wend. 285 ; People v. Thorp, 12 Id. 183; People v. Com. Pl., Coleman, 55; People v. Justices of Delaware, 1 Johns. Cas. 181; People v. Judges of Washington, 1 Cai. 511; People v. Corporation of Brooklyn, 1 Wend. 318; Matter of Trustees of Williamsburgh, 1 Barb. 34; U. S. v. County Commissioners, 1 Morris, 31.

BY THE COURT.—MITCHELL, J.—The relator commenced an

People ex rel. Debennetti r. Clerk of Marine Court.

action, in the marine court of the city of New York, against Manchin and others, and on December 5, 1855, obtained judgment on a trial before a single justice and a jury, for ito hundred and fifty dollars. On the eighth of the same month, the defendant in that action appealed to the common pleas of New York, where the judgment of the justice was reversed, the relator appearing in that court and making no objection to its want of jurisdiction, but contesting the matter on its merits. Judgment on this reversal was entered in the common pleas on March 5, 1856. The relator, insisting that the common pleas had no power to hear a case from the marine court on appeal, until it had been first heard at the general term of the last named court, applied to the clerk of the marine court to issue execution on the judgment in his favor in that court. The clerk refused, and he then applied to the marine court to compel the clerk to do so, but that court refused. He then obtained from the supreme court an alternative mandamus to the clerk, to compel him to issue the execution or show cause. On the return showing the above facts, an alternative mandamus issued at special term. This judgment was affirmed at the general term of the supreme court. The appeal is from that judgment.

The legislature has deemed it expedient, lately, greatly to increase the powers of the marine court. Its jurisdiction was formerly limited, in most cases, to recovery in an amount not exceeding one hundred dollars. In 1852 its powers and importance were much increased: its three judges were made to hold their office for six years, and their jurisdiction extended so that a recovery could be had before them for two hundred and fifty dollars, when before it was limited to one hundred dollars. Laws of 1852, ch. 389. In 1853 recoveries were allowed to be had for five hundred dollars; and to induce the bringing of actions of assault and battery, false imprisonment, malicious prosecutions, libel and slander, in that court alone, it was enacted that where such actions should be prosecuted in any other court in the city of New York, the costs should be limited to the amount which would have been recovered in that court. Laws of 1853, ch. 617. That court was also authorized, in the same manner as the court of common pleas,

People cx rel. Debennetti o. Clerk of Marine Court.

and the superior court of that city, to appoint the officers necessary to attend it, and to order the sheriff to supply it with room, attendants, fuel, lights and stationery, if the supervisors should neglect that duty. Laws of 1853, ch. 229.

Previous to the year 1853, the court had no general term; causes were tried before a single justice, but there was no power of reviewing them before the justices of the same court at a general term. The only appeal was to the common pleas, and that court could, on appeal, open defaults and revise judgments for error of fact as well as of law. Code, § 366. The great increase of litigation in the city made it proper (in the view of the legislature), to increase the dignity and power of the marine court, and to relieve the common pleas to some extent. Accordingly, by the act of 1853 (Laws, ch. 617, 8 5), the marine court was authorized to appoint general terms, at such times as it might deem proper, and to hear appeals at such general terms. Before this act, the court of common pleas, as before stated, was to open defaults. By section 5 of this act this power was conferred on the justice who tried the cause, with great discretionary powers,—“on such terms as may be just and proper.” The remaining parts of that section lead to the present controversy. It is necessary to refer to nearly the whole of it. It is as follows: “Any one of the justices of said court shall have the power to open defaults on such terms as may be just and proper in all actions tried before him; and an appeal may be taken upon from a judgment entered by the direction of a single justice of the said court to the justices thereof at a general term, in the same manner and with the like effect as appeals in the supreme court from the decision of a single judge to the general term, and the same costs and disbursements allowed as on appeals from justices' courts to the common pleas.”

Section 6 repeals all acts and parts of acts in conflict with this act.

It was at one time contended that the appeal to the general term lay only on a judgment by default. Both the common pleas and the supreme court agreed that so narrow a construction of the act could not be allowed. A general term would hardly be created for so trivial a purpose, and especially in a

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