Jansen v. Davison

2 Johns. Cas. 72

Opinion

*Per Curiam.

This application cannot be granted.

The court below have exercised their judgment on the question of costs. It was not, on their part, a delay or refusal to do what appeared to them to be right. If they were wrong, it was an error of judgment merely, and the proper remedy is by a writ of error, which the party is entitled to have upon an erroneous judgment, whether it be in his favor, or against him. Upon a writ of error, the court above may not only reverse, but give such judgment as the court below ought to have given.

Motion denied.(a)

Footnotes

a

(a) A mandamus is only proper where a party has a legal right, without any other appropriate legal remedy, and where in justice a remedy ought to be granted. The People v. Stevens, 5 Hill, 616 ; Ex parte Lynch, 2 id. 45; Boyce v. Russel, 2 Cowen, 444 ; Ex parte Nelson, id. 417, 423 ; The People v. Supervisors of Albany, 12 Johns. R. 414; Shipley v. The Mechanics Bank, 10 id. 484; The People v. The Mayor, &c. of New York, 10 Wend. 293 ; Justices v. Munday, 2 Leigh, 165 ; State v. Dunn, Minor, 46; State v. Holliday, 3 Halst. 205; Commrs. v. Lynch, 2 McCord, 170; State v. Bruce, Const. Rep. 165, 175. If therefore error will lie, a mandamus cannot be granted ; Ex parte Nelson, ut supra; People v. The Judges of Ulster, C. C. 117; Ex parte Bostwick, 1 Cowen, 143; Bank of Columbia v. Sweeny, 1 Peters, 567. See also note to Fish v. Weatherwax, infra, 215.