In re the Trustees of the Village of Williamsburgh

1 Barb. 34

• Court: New York Supreme Court
• Decided: September 13, 1847
• Status: Published

Opinion

Edmonds, J.

To deprive a party of his remedy by mandamus, on the ground that he has a remedy by action, the remedy by action must not only be adequate, but it must be specific. The action for damages certainly would not be specific. Whether a replevin would be, or not, depends upon circumstances. For if the inquisition could not be obtained, on the writ of replevin, then the only remedy' of the trustees would be in the damages which they might recover. The only specific remedy they can have is by mandamus. Therefore the motion is denied.

H. H. Stuart, for the trustees, then moved to quash the return ; and that a peremptory mandamus issue.

So far 'as the justices are concerned, it was their duty, when the inquisition was returned to them, to deliver it over to the trustees, so that it could be available. And if they have parted with the control over it, it is their business now to recover possession of it, and complete their duty. So far as relates to the single juror who has made a return, his return is evasive in not stating whether the inquisition is now under his control, or not. And there is a conflict in matters of fact, between these two returns, which these parties must settle between themselves. The rights of the relators are not to be prejudiced by this conflict. The other eleven jurors upon whom the alternative writ was served have made no return at all.

Order that peremptory mandamus issue.