
    The People ex rel., The Durant Land Improvement Co., Appl’t, v. John Jeroloman, Justice, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 3, 1893.)
    
    Mandamus.
    Where, in an application for a writ of mandamus, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him such relief the court may, in the exercise of its discretion, refuse the writ.
    Appeal from judgment of the supreme court, general term, first department, reversing order of special term granting a mandamus.
    
    
      Esek Cowen, for app’lt; William B. Putney, for resp’t.
    
      
       Affirming 53 St. Rep., 249.
    
   Peckham, J

A mandamus is only granted in the sound discretion of the court. This discretion is' not, of course, a .capricious or arbitrary exercise of the power of the court to refuse relief even in a proper case. When, however, it appears that with reference to the very question at issue the conduct of the party applying for the writ has been such as to render it inequitable to grant him relief by mandamus, the court may, in the exercise of its discretion, refuse the writ. People v. Board of Assessors, etc., of Brooklyn, 137 N. Y., 201; 50 St. Rep., 404, and cases cited.

We think there are facts sufficient in this case to justify the court in refusing a mandamus as matter of discretion. The relator gave a stipulation in order to have its appeal in the summary proceeding heard at an early moment. That stipulation gave rights to and imposed obligations upon the landlord which did not before exist. By reason of its execution the landlord obtained what it sought in the shape of an early determination of its appeal. Having obtained a reversal of the order appealed from, the proceeding to remove the tenant'was again set down before the defendant as justice, and when it came up the amendment of 1893 to § 1310 of the Code of Civil Procedure.was referred toby counsel for the tenant, and the defendant refused to proceed. The landlord then sought the aid of the court to relieve it from its stipulation, and in its moving papers assigned as a ground therefor that the amendment in question had stayed the proceedings to remove, and its counsel urged the same reason on the argument of the motion. The court took the same view as the counsel and, therefore, vacated the stipulation. Having thus accomplished the vacatur of the stipulation upon the ground that the amendment applied to the case in hand,' the landlord then on the same day asked the supreme court for a mandamus to compel the defendant to proceed with the trial of the summary proceedings on the ground that the amendment was not retroactive in its effect and that it did not, therefore, apply to thepresent proceeding.

We think the court below might well have refused the writ upon the ground that the landlord was not in a position to ask for a mandamus even though the court were of opinion the statute did not apply to proceedings pending when it was passed. Upon the assumption that it did apply, the landlord had got rid of what it regarded as a vexatious stipulation, and there is nothing inequitable in the court saying that the landlord shall not be thereafter heard when asking relief on the ground that the act did not apply.

The order of the general term of the supreme court does not state upon what ground the decision is based, and the writ majr have been refused as a matter of discretion. We do not look into the opinion for the grounds upon which the court proceeds in such cases. We could not review the exercise of discretion by the court below unless there were a clear abuse of it, which cannot be claimed here.

Without deciding whether the amendment in question did or did not apply to the proceedings then pending, we are of the opinion that the order must be affirmed, with costs, for the reasons above stated.

Order affirmed, with costs.

All concur.  