People ex rel. United Building Material Co. v. Special Term of the New York Supreme Court

130 N.Y.S. 553 | N.Y. App. Div. | 1911

Jenks, P. J.:

The application for a writ of prohibition is denied, without costs. In People ex rel. Mayor v. Nichols (19 N. Y. 582) the court say: “It is also well settled that where a remedy by appeal, or otherwise, may be had to correct an error of law or practice the writ will not lie. ⅜ ⅜ ⅜ In such a case the inferior court, or the tribunal of limited jurisdiction, can he set right by appeal only. Where, however, the statute has imposed restrictions as to the circumstances under which such f inferior court or judge thereof ’ may act in matters otherwise within its jurisdiction, and these restrictions are disregarded, the party aggrieved may have a remedy by prohibition. This is the doctrine stated in Quimbo Appo v. The People (20 N. Y. 531), and by Jacobs in the citation'-there made. It goes no further. The remedy may he had to prevent the violation of some fundamental principle of justice, or the transgression of the 1 hounds prescribed by law.’ No other power is given to the General Term by the statute cited. In other cases it acts as a court of review and its function in these two capacities ought not to he confounded.” In Thomson v. Tracy (60 N. Y. 31) the court, referring to this remedy, say: “ It is a preventive rather than a remedial process and cannot take the place of a writ of error, or other proceeding for the review of judicial action, or of a suit in equity to prevent or redress fraud. (People v. Seward, 7 Wend. 518.) ” la. People ex rel. Hummel v. Trial Term (184 N. Y. 30) the court say: “ The writ of prohibition is one of the State writs authorized by the Code of Civil Procedure, which may issue out of the Supreme Court restraining a judge or party from further, proceeding in the aqtion or special proceeding complained of. (Code Civ. Pro. §§ 2091-2096.) The writ does not issue as a matter of right, hut only in the sound discretion of the court in cases of supreme necessity where the grievance cannot he redressed by ordinary proceedings at law or in equity or by appeal. (People ex rel. Adams v. Westbrook, 89 N. Y. 152; People ex rel. Burbank v. Wood, 21 App. Div. 245; People ex rel. Mayor v. Nichols, 79 N. Y. 582, 591; Alexander v. Crollott, 199 U. S. 580.) ” In People ex rel. Ballin v. Smith (184 N. Y. 96, 98). the court say:. “ The writ of prohibition is an extraordinary remedy and should he issued only in-cases of unusual necessity. Without attempting generally to define the Cases wherein it may or may not he' granted, it is certainly well within the authorities and principles of a wise judicial policy to state that it will not.he allowed in a case like this to guard against a future apprehended error by an inferior tribunal, when, as matter of. fact, such tribunal upon due objec-. tion may not commit such error, and when if it does commit it the aggrieved party may be fully and adequately protected by ordinary process of appeal from or review of its action.” 1

Hirsohbbeg, Burr, Woodward and Rich, J.J., concurred.

Application for writ óf prohibition denied, without costs,