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In the Matter of the Application of Island Improvements, Inc., for a Peremptory Mandamus Order against Mitchell May, Justice of the Supreme Court of the State of New York, Second Department
Motion for peremptory mandamus order directing the trial justice to render a decision and sign a judgment granted. The right to a jury trial having been waived, the action was properly tried by the court. (Civ. Prac. Act, §§ 426, 428.) The court, having tried the case, must decide it and make a decision and judgment, and the court’s action in setting aside the so-called decision and directing that the issues be tried before the court with a jury was not a proper exercise of discretion.
(Smith v. Geiger, 202 N. Y. 306, 312; O’Brien v. Bowes, 4 Bosw. 657.) The form of relief is by the way of mandamus. (Norwegian Lutheran Trinity Church v. Krelsovitch, 147 App. Div. 108.) Present — Lazansky, P. J., Young, Kapper, Carswell and Scudder, JJ.