
    The People ex rel. The New York Underground Railway Co., App’lt, v. John Newton, Commissioner of Public Works, et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 28, 1891.)
    
    Mandamus—When granting of, disceetionaby.
    Relator having bought in the property and franchises of another underground railway company at a foreclosure sale, took no proceedings toward actual construction of the road for twenty years after its incorporation, and then asked for an alternative writ of mandamus to compel the commission r of public works to grant a permit to use the streets for the construction of its roid return was made that an action had been begun in the supreme court by the People to dissolve the relator and vacate its charter; and at tlie close of the trial of the issues a motion was made for a peremptory writ. In the action to annul the charter, the People asking for an injunction to stay this proceeding, it was refused upon stipulation of relator that it would not apply to open the streets under the permit which might be obtained through the mandamus until the People’s action had been determined. Held, that under the circumstances the granting of the peremptory writ was discretionary.
    Appeal from- judgment of tlie New York superior court, general term, affirming order and adjudication of special term after a verdict, refusing to grant a writ of mandamus to compel the commissioner of public works to allow relator to construct its road through certain streets.
    
      Edward Winslow Paige and George Hoadley, for app’lt; D. J. Dean, for resp’ts.
    
      
       See 34 N. Y. State Rep., 684.
    
   Per Curiam.

The relator claims to have derived title under foreclosure proceedings to the property and franchises of the New York City Central Underground Eailway Company, which was incorporated by the act, chapter 230 of the Laws of 1868; and no proceedings, so far as this record discloses, having before been taken for the actual construction of the road, authorized by the act, in May, 1888, twenty years after the pas- ■ sage of the act, it applied to the superior court by petition for an alternative writ of mandamus to compel the commissioner of public works to issue to it a permit to enter upon the streets along its route for the purpose of commencing the construction of its road. The alternative writ was issued, and the return to it was made, and, subsequently, before the trial of the issues raised by the return, the defendants filed a further supplemental return, in which they alleged that on the 14th day of January, 1890, an action was commenced in the supreme court by the People against the relator through the attorney-general by leave of the court to dissolve the relator, to vacate its charter and to annul its corporate existence. A copy of the complaint in that action was annexed to the return and made a part thereof, and the defendants averred upon information and belief that the facts alleged in that complaint were true. The issues raised by the two returns to the writ were brought to trial in the superior court before a jury, and at the close of the evidence the court directed the jury to find certain facts, and thereafter, upon the writ, the returns and the finding of the jury, a motion was made at a special term for a peremptory writ of mandamus, which was denied, and the appeal here is from the order of the general term affirming the action of the special term, which denied the writ.

At the time the peremptory writ was applied for, the action brought by the People to dissolve the relator, to vacate its charter and annul its corporate existence was pending, and in that action, as we learn from the statement in the points submitted on behalf of the relator, counsel for the People applied to the court for an injunction to stay this proceeding, and the court denied that motion upon the stipulation of the relator that it would not apply to open the streets under the permit which might be obtained through the mandamus in this proceeding until the People’s action had been defeated.

Under such circumstances it was, at least, discretionary whether or not the court would issue the peremptory writ of mandamus. It would certainly have been an unwise and inconsiderate exercise of discretion for the court to issue the mandamus during the pendency of that action aimed at the life of the corporation. In case of the success of the People in that action the writ of mandamus could serve no purpose and would be abortive. Certainly, in the face of the stipulation that no permit should issue until the determination of that action, the court should not at the time this writ was denied have granted it. A decision to grant the writ would have been simply experimental, and that under such circumstances the court could, and in the exercise of a sound discretion, should have denied the writ, is clear upon authority. Matter of Sage, 70 N. Y., 220; People ex rel. Slavin v. Wendell, 71 id., 171; People ex rel. Faile, 76 id., 326; People ex rel. Gas Light Co. v. Common Council, 78 id., 56; People ex rel. Millard v. Chapin, 104 id., 96 ; 5 N. Y. State Rep., 588; People ex rel. Nicholl v. N. Y. Infant Asylum, 122 N. Y., 190; 33 N. Y. State Rep., 296.

As we have no jurisdiction to review the discretion of the court below, the appeal should be dismissed, with costs.

All concur, except Gray, J., not voting.  