Opinion
March, 1936.
Present — Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ.
Order denying petitioners' motion for an alternative or peremptory order of mandamus directing the respondent — a city magistrate — to make a return to all the matters specified as grounds of error in the notice of appeal unanimously affirmed, in the exercise of discretion, without costs. For the purpose of an appeal a conviction shall be deemed a final judgment although sentence may have been suspended (Inferior Criminal Courts Act, § 41). The notice of appeal was not served as provided in the statute (Inferior Criminal Courts Act, § 42). While the determination of the question whether the appeal was properly taken is for the appellate court upon a motion to dismiss the appeal ( People ex rel. Trost v. Bird, 184 App. Div. 779), mandamus is an extraordinary remedy not demandable as matter of right but rests in the sound discretion of the court. ( Matter of Brooklyn Improvement Co. v. Pounds, 174 App. Div. 448; People ex rel. D.L.I. Co. v. Jeroloman, 139 N.Y. 14; People ex rel. Wood v. Assessors, etc., 137 id. 201.) The court will not grant a mandamus which would be fruitless and ineffectual. ( People v. Tremain, 29 Barb. 96.)