
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    June 21, 1912.
    THE PEOPLE ex rel. EDWARD LINDGREN v. JOHN C. McGUIRE.
    (151 App. Div. 413.)
    (1.) Mandamus—Answering affidavits taken as true.
    On an application for a peremptory writ of mandamus requiring a city magistrate to take and receive an information against one charged with crime, the answering affidavit of the respondent must be accepted as true.
    (2.) Same—Application for peremptory writ requiring city magistrate to receive unsigned and unverified information.
    Where it appears from such affidavit that the magistrate gave to an unsigned and unverified deposition presented by the complaint the same force and effect as if it had been subscribed and sworn to, and, after hearing the complainant’s counsel, was not satisfied that a crime had been committed and, hence, refused to issue a warrant or summons, a peremptory writ will not, issue compelling him to take and receive the information. This because, in passing upon the sufficiency of the deposjtion the magistrate was acting judicially and any error in his decision may not be corrected by mandamus, nor may he be compelled to issue a warrant or summons.
    (3.) Same—Writ is prerogative in character.
    The writ of mandamus is prerogative in character, issuing only in the discretion of the court and will not be granted to compel the performance of a futile act, as for example, to require the magistrate to permit the relator to sign and verify his deposition where he considered the unsigned deposition with like force as if it had been properly executed.
    Appeal by the relator, Edward Lindgren, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of April, 1912, denying a motion for a peremptory writ of mandamus.
    
      
      Solomon S. Schwartz, for the appellant.
    
      Kersey Egginston, Assistant District Attorney (James C. Cropsey, District Attorney, with him on the brief), for the respondent.
   Bukb, J.:

This is an appeal from an order denying an application for a peremptory writ of mandamus, directing John O'. McGuire, city magistrate, to take and receive the information of Edward Lindgren against John L. Belford for alleged violation of the provisions of section 43 of the Penal Law.

, The facts may be summarized as follows: On April 9, 1912, relator appeared with Solomon S. Schwartz, his counsel, before John 0. McGuire, a city magistrate then sitting in the Sixth District Magistrate’s Court, and presented to him- a paper which is in the form-of a deposition, although unsigned and unverified, and demanded that a warrant be issued for the arrest of John L. Belford for an alleged violation of section 43 of the Penal Law. It thereupon became the duty of the magistrate to examine on oath the informant and prosecutor, and any witnesses that he might produce, and take their depositions in writing and cause them to be subscribed by the parties making them, and if he was satisfied therefrom that the crime complained of had been committed and that there was reasonable ground to believe that defendant had committed the same, to issúe a warrant of arrest. (Code Crim. Proc. §§ 148, 149, 150.) By a. subsequent statute (Laws of 1910, chap. 659, § 82) it is further provided that, When a complaint, oral or written, is made to a magistrate and the magistrate is not satisfied that a crime has been committed, but believes that in the public interest he should inquire into and investigate the complaint so made, he may issue a summons.” The magistrate did not examine the -informant and prosecutor on oath. It does not appear that any witness other than the relator was produced before him for examination. In opposition to the motion for the peremptory writ, Magistrate McGuire submitted an affidavit, the statements in which for the purposes of such application must be accepted as true (People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; Matter of Haebler v. N. Y. Produce Exchange, Id. 414; Matter of Breckenridge, 160 Id. 103; People ex rel. Myers v. Moynahan, 130 App. Div. 46; People ex rel. Murphy v. Bingham, Id. 112), from which it appears that he examined the proposed affidavit and considered it as if it had béen a deposition, and after hearing counsel for the relator, was not satisfied that any crime had been committed, and, therefore, refused to issue a warrant, and when subsequently requested to issue a summons, refused to do so for the .reason that he did not believe it was necessary to further investigate the complaint made. Whether the facts stated in the proposed deposition showed that a crime had been committed, and that there was reasonable ground to believe that the person accused was guilty thereof, we need not' determine. In passing upon the sufficiency thereof the magistrate was acting judicially, and even although he erred in his decision, such error may not be corrected by mandamus, and the magistrate compelled to issue either a warrant or a summons. (Ex parte Ostrander, 1 Den. 679; People ex rel. Woodward v. Rosendale, 76 Hun, 103; Matter of McBride, 72 Id. 394.) The relief asked for is that the magistrate take and receive the information of the relator. The writ of mandamus is prerogative in character, issuing only in the discretion of the court (26 Cys. 139; People ex rel. Lehmaier v. Interurban R. Co., 177 N. Y. 296; Matter of Dederick, 77 Id. 595), and will not be granted to compel the performance of a futile act. (People ex rel. Stevens v. Hayt, 66 N. Y. 606; People ex rel. Robinson v. O'Keefe, 100 Id. 572.) It would be idle at this time to require the magistrate to permit the relator to subscribe the proposed affidavit and make oath to the same, since it conclusively appears that the magistrate considered the paper presented to him to be of life force and effect as if thus subscribed and sworn to.

The order should be affirmed, with ten dollars costs and disbursements.

Hibschbebg, Thomas, Wobwakd and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  