Hecox v. Ellis

19 Wend. 157

• Court: New York Supreme Court
• Decided: December 15, 1838
• Status: Published

Opinion

In suits and proceedings upon writs of mandamus, it is not the practice of the court, upon awarding a peremptory mandamus, to grant costs against the judges of subordinate courts, or other public officers entrusted with the dis. charge of judicial duties.

From the report of the case of The People, ex rel. Fisher, v. The N. Y. Common Pleas, lately published in 18 Wendell, , although decided as long since as April, 1836, it might supposed that it is the practice of the court to award costs against the judges of subordinate courts on the granting of a peremptory mandamus. Such, however, is not the practice of the court. Costs were awarded in that case ; but it is doubted whether, in a single instance, since the decision of that case, costs have been awarded against judges of subordinate courts, or against other public officers entrusted with the discharge of judicial duties, on the granting of a mandamus. The awarding of costs in suits and proceedings upon writs of mandamus is by statute submitted to the discretion of the court. Statutes of 1833, ch. 271, § 6. 2 R. S. 514, § 42, 2d ed. Costs frequently are awarded on granting a peremptory mandamus, but in such cases they are given generally; to be collected of the parties, the actors in the suit or proceeding against whom is decided the matter in respect to which the writ is granted.