42 How. Pr. 157 | N.Y. Sup. Ct. | 1871
The writ of prohibition, although borrowed from the common law of England, from which we have derived so much that is valuable in our jurisprudence, is expressly recognized in the Revised Statutes of this state, where the practice under it is regulated {See 3d vol. Ií. S.,
The courts have obviously been unwilling to encourage a too frequent resort to this writ, doubtless in order to avoid any abuse of the process, and hence have established certain rules applicable thereto, which are firmly and rigidly adhered to. One of which is, that this process shall not be resorted to where there exists another adequate remedy (Ex-paHe Eeaudlacht, 2 Sill, 367). Judge Cowen remarks : u The writ of prohibition, like mandamus, quo warranto, or certiorari, ought not to issue where there are other remedies perfectly adequate. We have a discretion to grant or deny the writ, and it would, I apprehend in general, be a very good reason for denying it, that the party has a complete remedy in some other and more ordinary form.” (The People ex rel. N. Y. S. Co. agt. The Court of Common Pleas of New York, 43 Barb., 278; The People ex rel. Brownson agt. The Marine
We will proceed to determine whether the relators have any other remedy which is adequate, and which they should pursue. The statute, as amended, under which the proceedings in question are entertained by the county judge, provides as follows: u Review of proceedings under the acts hereby amended, shall be by certiorari, and no writ of certiorari shall be allowed unless said writ shall be allowed within sixty days after the last publication of notice of the judge’s final determination, as provided in section 2 of this act, and when such judgment is so entered prior to the passage of this act, unless said writ is allowed within sixty days after the passage of this act. On the return of the certiorari, the court out of which the same issued, shall proceed to consider the matters brought up thereby, and shall review all questions of law and of fact determined for or against either party by the county judge. And the said courts, or court of appeals, in appeals now pending and in all future proceedings, may reverse, affirm, or modify, in all questions of law or fact, his final determination, or may remand the whole matter back to said county judge, to be again heard and determined on by him. ' And it may, by order, direct that he proceed therein de novo, in the same manner and with the same effect as if he had taken no action thereon; or, it may by such order specify how and in what particulars he shall hear and determine the same, on such remanding the same. Applications for certiorari shall be on notice.”
It is apparent, that the legislature intended to provide a complete mode of reviewing such proceedings, both in regard to the law and the facts. The party aggrieved is entitled, by said statute, to a review as well in the court of appeals as in the supreme court, of the questions of fact and of law. So we perceive, that the remedy is adequate to redress any wrong or correct any error which may occur in the proceedings. The affidavits read upon this motion disclose the fact,- that
We have been referred by counsel to the case " In the Matter of the Application of Thomas Procet agt. John C. Hulburt, County Judge, &c., (51 Barb., 313,”) asan authority in favor of granting and continuing said writ. There is a marked distinction between the facts of that case and the one under consideration. In the case cited the proceedings were entertained by the judge under a special statute containing none of the provisions in regard to • the mode of review, prescribed by the statute in question. Again, in the case cited, the court held the statute, under which these proceedings were entertained, unconstitutional and void. In this case the relators allege irregularities in the proceedings under a statute which is not assailed on the ground that it is uncon