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In the Matter of the Application of Julius Gordon, Mitzi Aber and Abe Aber, for a Mandamus Order against Alfred J. Hofmann, City Magistrate of the City of New York
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.) Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.