In re Smith

265 A.D. 868 | N.Y. App. Div. | 1942

Lazansky, P. J., Johnston, Adel and Close, JJ., concur; Carswell, J., dissents and votes to grant the motion, with the following memorandum: The controlling question is not whether the Supreme Court has jurisdiction to exercise its judicial power in the premises, if it be invoked in the first instance, without there having been a prior exercise of judicial power in respect of the same subject matter by a court of coordinate jurisdiction. The question is, has the Supreme Court jurisdiction to make a different order from that theretofore made in respect of subject matter which has been the basis of a prior exercise of judicial power by a court of coordinate jurisdiction, embodied in an order which is not claimed to be affected with clerical, as distinguished from judicial, error. If it were to be permitted to do so, the Supreme Court would be exercising an appellate jurisdiction with which it has not been endowed; and it would, therefore, be assuming to act without or beyond its jurisdiction. Such a threatened act may properly be restrained by an order of prohibition, which furnishes the only efficacious and complete remedy for such an attempted usurpation of power.