193 A.D. 463 | N.Y. App. Div. | 1920
Special Term, Part 1, at which the motion was made, was duly appointed to be held at that time and place by the justices of this court, and the justice presiding thereat was duly assigned to hold it, but that would be immaterial since he was a justice of the Supreme Court. (State Const. art. 6, § 6; People v. Herrmann, 149 N. Y. 190; People v. Pustolka, Id. 570.) The application for the alternative writ of prohibition presents but a single point which is one of law as to whether the Special Term had jurisdiction to entertain the motion for the dismissal of the indictment, it being now well settled in this jurisdiction that a writ of prohibition may only be issued against a court or other tribunal possessing judicial
The opinions of the court, in Mussen v. Ausable Granite Works (63 Hun, 367) and of Mr. Justice Benedict in Matter of Public Service Comm. v. Brooklyn Heights B. B. Co. (105 Misc. Rep. 254) are to the same effect. We have no doubt in the circumstances it would be entirely competent for the justices of this court to adopt a rule providing that motions to dismiss indictments, and for the hearing of demurrers to indictments should be heard at Special Term, for the jurisdiction is vested in the Supreme Court generally, and it is for us to make rules for the. proper distribution and expedition of the judicial work.. The rules, however, that have been adopted prescribing the motions and applications that are to be made to the different parts of the court were not intended to embrace motions or applications in criminal actions. It has been, as contended by the learned counsel for the relator, the uniform practice to make applications and motions for the dismissal of indictments before the term or part of the court in which they are found or to which they have been transferred; and it appears that,
It follows that the motion for an alternative writ of prohibition should be denied.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ.,. concur.
Motion denied. Settle order on notice.