11 A.D.2d 761 | N.Y. App. Div. | 1960
Petitioner’s application is denied and the respondent’s cross motion to dismiss the petition is granted without costs. The petitioner seeks an order directing the respondent Judge of the Court of General Sessions to accept and file a report of the Third September 1958 Grand Jury of New York County. Some of us have grave doubt as to whether the petitioner has standing to bring this proceeding. However, there appears to be authority to support the petitioner’s contention that it has (Matter of Andresen v. Bice, 277 N. Y. 271; Matter of New York Post Corp. v. Liebowitz, 286 App. Div. 760, revd. on other grounds 2 N Y 2d 677; Matter of Kornbluth v. Bice, 250 App. Div. 654, affd. 275 N. Y. 597). Whether the petitioner has or has not the right to maintain a proceeding of this nature, we conclude that the relief sought must be denied. Before mandamus will issue the petitioner must demonstrate a clear legal right thereto (Matter of Pruzan v. Valentine, 282 N. Y. 498). We hold that the petitioner has here failed to make such demonstration. There is no statutory mandate requiring the respondent to accept and file the proffered report. To the contrary, the constitutional provision pertaining to Grand Juries (art. I, § 6) and the pertinent sections of the Code of Criminal Procedure (§§ 223, 245, 252, 253) seem to negative the existence of any such duty. Significant is the failure to list the power to report among those powers expressly given to the Grand Jury, except perhaps as to public officers and public prisons. Moreover, while the petitioner falls short in its attempt to demonstrate subsisting common-law reportorial powers of the Grand Jury, it in no manner demonstrates where, if indeed there were such powers, they carry with them a corresponding obligation on the part of the court to accept and file such reports. In any event, mandamus being an extraordinary remedy whose issuance is in large part a matter of discretion (Matter of Andresen v. Bice, supra), we find the circumstances here present such as would impel ns to exercise our discretion against the granting of the relief sought. Concur — Breitel, J. P., Rabin, Valente and Bergan, JJ.
