
    SUPREME COURT.
    The People ex rel. Edward Cavanagh, appellant, agt. David McAdam, justice of the Marine Court, respondent.
    
      Mandamus against a judicial officer — <Summary proceedings — Code of Civil Procedure, sections 3334-2238—entertaining an application by a landlord to remove a tenant under the statute relating to summary proceedings is in the discretion of the justice.
    
    When the time of a justice is required and devoted to other business, having precedent demands upon him as a member of the court, he is reasonably excusable for not entertaining an application by a landlord to remove a tenant under the statute relating to summary proceedings.
    While the language of the act is mandatory in its terms, it could not have been intended to deprive the justice of the discretion vested in' judicial officers.
    The allowance of the writ of mandamus is discretionary, and the discretion will not be exercised against a judicial officer in such a case.
    
      First Department, General Term, November, 1882.
    
      Before Davis, P. J., Daniels and. Brady, JJ.
    
    
      Appeal from an order denying an application for a writ of mandamus.
    
    
      Roscoe H. Channing, for appellant.
    
      Henry Wehle, for respondent.
   Daniels, J.

The writ was applied for because the justice declined to entertain an application for summary proceedings to remove a tenant from demised premises for the nonpayment of four dollars and fifty cents rent. The time of the justice appears by his return to have been required and devoted to other business having precedent demands upon him as a member of the court. And because of that circumstance he was reasonably excusable for not entertaining the application, although the Code has declared that the judge or justice to whom such a petition is presented must thereupon issue a precept (Code of Civil Procedure, sec. 2238). For it did not declare that he must "also withdraw his time and attention from the other necessary business of the court for that purpose; and while the language of the section is mandatory in its terms, it still could not have been intended to deprive him of the original discretion vested in judicial officers (Spears agt. Mayor, &c., 72 N. Y., 442).

If he had been the only officer to whom such an application could regularly be made, a very different consideration would arise in the case, but by section 2234 of the Code of Civil Procedure a variety of other officers were vested with the same power, to whom the relator had the right to apply. And his application for this writ, instead of bringing his case before one of these other officers, indicates the existence of the disposition rather to annoy the justice proceeded against than to invoke the powers of the court for the purpose of redressing and vindicating a legal right. There is nothing in Dehart agt. Hatch (3 Hun, 375) countenancing such a proceeding, and as the allowance of the writ was subject to the discretion of the court (Faile agt. Ferris, 76 N. Y., 326), that was, under the circumstances presented, very wisely exercised in refusing to order the writ to be issued.

The order should be affirmed, with costs.  