People ex rel. Debennetti v. Clerk of Marine Court. matter which is always considered almost, if not quite discretionary in the primary tribunal. The appeal allowed is not from an order, but from a judgment entered by a single justice. The opening of a default, or the refusal to open it, is an order merely, and not a judgment. The expression, "an appeal may be taken upon the same from a judgment entered by the direction of a single justice," must be read-" an appeal from a judgment entered by the direction of a single justice may be taken upon the same." This transposition carries out the purpose of the legislature, and changes none of the words in the sentence. The same conclusion was arrived at in the supreme court and common pleas, they holding that the words "upon the same" referred to the previous words, "all actions." A judgment in the marine court is entered by the direction of a single justice, whether it be entered by default or on trial before the justice with a jury, or by him alone without a jury. The reference to the trial by a single justice was made only in contradistinction to trials at the general term. The review be fore the general term is thus allowed as to all judgments, without regard to the mode of trial, except it may be on default, when the specific remedy is prescribed of an application to the single justice who tried the cause. In this, also, the common pleas and supreme court agree; the points in which they differ are these: The common pleas hold that the general term has no jurisdiction as to matters of fact; the supreme court makes no such distinction. The common pleas hold that the unsuccessful party has his election to appeal to the general term of the marine court, or to the common pleas; the supreme court holds that he must first apply to the gencral term of the marine court, and pass through it, before he can reach the common pleas, the latter view being really more complimentary to the common pleas, and nearly completing its resemblance to the highest court in the state, so far as relates to its control over the marine court. The construction upheld by the common pleas would lead to a confusion, which ought not to be attributed to the legislature if it can be avoided. A judgment may be rendered by a justice for two hundred and fifty dollars; the plaintiff may appeal to the general term, claiming that he should have five hundred dollars, and may People ex rel. Debennetti v. Clerk of Marine Court. succeed there, and the defendant may appeal to the common pleas, and the judgment for two hundred and fifty dollars be affirmed, or it be adjudged that the plaintiff has no cause of action. Again: the defendant may have relied on a set-off, and that may have been allowed him before a justice, and yet judgment for a balance be given for the plaintiff. The defendant may appeal to the common pleas, insisting that he should have judgment for his whole set-off, without anything being allowed to the plaintiff; and the plaintiff may appeal to the general term, claiming that the defendant should have no setoff; each court may decide in favor of the appellant. If each party may elect his tribunal, such may well be the result; the judgment of each tribunal, being equally authorized by law, would be equally valid. The common pleas could not claim superior authority for its judgment, for, although it is an appellate court, so is the general term an appellate tribunal, and when it acts, its appeal, according to the decision of the common pleas, is final, and beyond the power of the common pleas to control. The general term of the marine court may insist that if its jurisdiction is such that no appeal lies from it to the common pleas, it cannot be bound, and has no power, to avoid its own judgment, even with a view to conform it to those of the common pleas. There has been a growing disposition to produce simplicity by having as much similarity in the practice and organization of the various courts as practicable. The act of 1853 was passed with this motive and to elevate the rank of the marine court. With the latter object, the justices of that court were made to hold their offices, as in the common pleas and superior court, for six years, and powers of control as to their room, fuel, attendants and stationery, and in the appointment of their officers, were given to them, like those given to the two other courts. With the first object, power to open a judgment by default was conferred on a single justice (before this the common pleas alone had this power), general terms were established, and an appeal given to them in all trials, thus making a near approach to the practice in the courts of record. This resemblance to those courts is made more complete if it is held that when the act of 1853 says, "an appeal may be People ex rel. Debennetti v. Clerk of Marine Court. taken from a judgment entered by direction of a single justice, to the justices thereof at a general term," it is imperative that such appeal must, before any appeal lies to the higher court. This is analogous to the appeal to the court of appeals from all the courts of record in the State,-no such appeal lying until recourse is first had to the general term of the court below and its judgment is rendered. See Gracie v. Freeland, 1 Comst. 228. It is also in conformity to the ordinary course of practice, and to sound sense, not to allow an appeal to a higher court while redress may be had in a higher branch of the court below than that which rendered the first judgment. It has been argued that the language of the Code is such that it allows an appeal to the common pleas only from the judgment of a single justice, as the notice of appeal is to be served" on the justice," and the costs of appeal must be paid to "him," in the singular number. The singular number was then used because the only judgments that could be then rendered in the court below were rendered before a single justice; but now the court below can render judgments also at a general term, and the complete appellate power of the common pleas over the inferior tribunal is not to be taken away because the singular number alone was used at a time when that number alone was appropriate. The controlling power of that court is as essential to the symmetry of our judicial system as it is important for the sake of justice. It never could be the intention of the legislature to allow a court not of record to have a right, at the election of any party, to pronounce a judgment from which there could be no appeal, when the original judgments of the highest courts of record are all subject to two appeals, one to the general term of their own court, and the other to the court of appeals. The provisions of the Code must, therefore, be considered as so modified by the act of 1853, that the return to the common pleas shall be made by the general term of the marine court, and the appeal to be made in twenty days after the judgment of the general term. The appeal that is allowed to the general term is, in general terms, "from a judgment entered by direction of a single justice." No distinction is made, whether the trial has been before a jury, or before the justice alone, or before referees, as People ex rel. Debennetti v. Clerk of Marine Court. made in the Code as to appeals from the special term, and the general term of the courts of record. There, in express terms, and in the only clause in which the right of appeal is given, the limitation is presented, and it declares "an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees, or the direction of a single judge of the same court, in all cases, and upon the fact, when the trial is by the court or referees." This section thus defines the cases in which appeals lie in those courts, and excludes from those cases trials before a jury, where the question to be raised on appeal is one of fact and not of law. This is not, as has been supposed, a statement of the manner or effect of the appeal, but of the cases in which the appeal lies. The "manner" relates to the mode of proceeding in effecting an appeal, the notice, and security to be given; the "effect" relates to the consequences produced by the appeal, as under what circumstances it shall operate to stay proceedings. "Effect" is the appropriate word to describe a result that follows after the thing previously spoken of (the appeal), is completed, and would be quite inappropriate if used to define the cases in which such thing might be done. The fifth section, therefore, allows the appeal to the general term as well on questions of fact as of law. It would be most extraordinary if such were not the case. It could not be that the law which allows an appeal to the higher courts, on a default, and on questions of fact, as well as of law, and which gives the extraordinary power to that higher court to examine witnesses originally, when there was an error in fact in the proceedings not affecting the merits (Code, § 366), should allow an appeal to the general term of the inferior courts, in the more difficult of the matters thus cognizable by the higher court-questions of law, and not allow it in the more easy questions of fact; especially as those last in our system were never examinable in a higher court, except in equity cases and appeals from justices' courts. The relators appearing in the common pleas and arguing to that court did not give jurisdiction to that court,-such acts might waive a mere irregularity, but could not confer jurisdiction. The appellant also insists that mandamus is not the proper remedy in this case. Whatever difficulty there may be in deter D People ex rel. Debennetti v. Clerk of Marine Court. mining whether a mandamus is allowable in some cases, it is allowable whenever 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. This is peculiarly proper where the officer is not a mere ministerial officer (as a collector of taxes), but, as in this case, is the agent by whom the judgments of the courts are to be enforced; he becomes part of the machinery of the court, without whose action the judgment of the court is arrested in its effect. It cannot be that the judges themselves are liable to this writ, if they will not proceed and pronounce judgment, and that the officer who has no discretion to exercise, but is bound to issue the execution founded on the judgment of the court, can in effect make void the judgment by refusing to issue the execution founded on it; and that the judgment creditor is to be left without any specific means to obtain the execution which the law entitles him to. In Onderdonk v. Supervisors of Queens County, 1 Hill, 195, the court said that no certiorari, mandamus or prohibition, on account of an alleged erroneous item in the assessment of taxes, could be issued to the collector, as he was a mere ministerial officer. The remark was correct in its connection; as such officer he had no control over the assessment roll, and no power or right to present to the court the facts which would show whether the item objected to was lawfully included or not. The application was to prevent his acting where his warrant required him to act; if it had been to compel him to execute the warrant, it probably would have been granted. The clerk of the court is more than a mere ministerial officer, as he is an officer of the court, charged by law with the performance of a specific duty,-that of furnishing the specific remedy by execution on judgments in this court. In Smith, &c., Pier Proprietors in the city of Albany ". Comptroller of the State, 18 Wend. 659, a mandamus was granted to compel the comptroller to pay certain tolls collected by him for the State, and to which the pier proprietors were entitled. In People v. Mayor of New York, 10 Wend. 393-7, the court, on the merits, refused the relief sought, but |