14 Misc. 2d 435 | N.Y. Sup. Ct. | 1958
This is an application pursuant to article 78 of the Civil Practice Act for a restraining order in the nature of a writ of prohibition directed against the respondent Lott H. Wells, as Surrogate of St. Lawrence County, to hear and determine the application of the respondent Harold J. Smith, as administrator c. t. a. of the estate of Mary V. Wert, deceased, to have fixed and determined the compensation of the petitioner Edmund Fitzgerald, for attorney’s services rendered to said estate.
It is urged by the petitioner that it is illegal for the Surrogate to preside in the accounting proceeding for the reason that the latter is prejudiced and biased against the petitioner who earlier this year had opposed the giving of an increase in the salary of the Surrogate.
The Surrogate not only denied that he is prejudiced or biased against the petitioner but states that he holds him ‘1 in esteem as an able and experienced legal practitioner”, and that his sole interest in the proceeding is to do his duty in accordance with the authority conferred upon him by law.
I have never been able to understand why a Judge insists on presiding in a matter in which one of the parties requests that he disqualify himself. This appears particularly desirable in a proceeding such as this where it is obvious that the Judge has not only been responsible in initiating the proceeding, but has actually expressed an opinion in a manner that is adverse
I doubt, however, that this court has the power to order the disqualification of a Surrogate. Whether or not a Surrogate shall file a certificate of disqualification under section 6 of the Surrogate’s Court Act is discretionary with him, and no party can compel him to file it. The purpose of this statute is not to arm litigants with power over the independence and integrity of the court, but solely to enable the Surrogate, in a proper case, to decline to act without violation of his duty to the State (Matter of Mavroidi, 60 N. Y. S. 2d 344). The rule is well settled that, in the absence of express statutory provisions, bias or prejudice or unworthy motives on the part of a judge, unconnected with an interest in the controversy, will not be cause for disqualification (People ex rel. Devery v. Jerome, 36 Misc. 256).
Likewise, I am satisfied that this court cannot prohibit the Surrogate from proceeding to hear and determine the Smith application. The writ of prohibition is not favored by the courts. Necessity alone justifies it. Although authorized by statute, it is not issued as a matter of right, but only in the exercise of sound judicial discretion when there is no other remedy. While it issues out of a superior court and runs to an inferior court or judge, its object is not the correction of errors nor relief from action already taken. In no sense is it a substitute for an appeal, as its sole province is to prevent the inferior tribunal from usurping a jurisdiction which it does not possess, although it runs against the exercise of unauthorized power in a proceeding of which the lower court has jurisdiction, as well as when the proceeding itself is instituted without jurisdiction. The sole question to be tried is the power of the inferior court or magistrate to do the particular act in question. It is in effect an injunction against a court as contrasted with an injunction proper, which is granted against persons or corporations (People ex rel. Livingston v. Wyatt, 186 N. Y. 383).
The test is does the court have jurisdiction, and as to that there cannot be any doubt. The Surrogate has power over the administration of estates and plenary power over the collection and preservation of their assets. Neither should there be any disposition to restrict the Surrogate’s power over attorneys
I, therefore, conclude and decide that the application for a writ of prohibition should be denied, without costs, and an order may be submitted accordingly.