People ex rel. Wiesenthal v. Dunne

195 A.D. 225 | N.Y. App. Div. | 1921

Kelly, J.:

I think we are not called upon to decide the controversy between the parties as to the legality or propriety of transferring the trial of the action. There appears to be no warrant for interference by writ of prohibition with the Municipal Court justice. The action was pending in the court in which he was presiding. The court had jurisdiction of the parties and the subject-matter. (People ex rel. Higgins v. McAdam, 84 N. Y. 287, 296.) If the motion to transfer the case should be denied we must assume that the justice will deny it. “ The legal presumption is that every court will decide right, and conduct the proceedings before them fairly, impartially and correctly.” (Wolfe v. Burke, 56 N. Y. 115, 119.) If the Municipal Court justice should make an erroneous decision the plaintiffs have the right to appeal. “ The writ of prohibition is not favored by the courts. Necessity alone justifies it. Although authorized by statute, it is not issued as a matter of right, but only in the exercise of sound judicial discretion when there is no other remedy. While it issues out of a superior court and runs to an inferior court or judge, its object is not the correction of errors nor relief from action already taken. In no sense is it a substitute for an appeal, as its sole province is to prevent the inferior tribunal from usurping a jurisdiction which it does not possess, although it runs against the exercise of unauthorized power in a proceeding of which the lower court has jurisdiction, as well as when the proceeding itself is instituted without jurisdiction. The sole question to be tried is the power of the inferior court or magistrate to do the particular act in question. * * * It is justified only by ‘ extreme necessity ’ when the grievance cannot' be redressed by ordinary proceedings at law, or in equity, or by appeal.’ ” (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 393, and cases cited; People ex rel. Newton v. Special Term, Part 1, 193 App. Div. 463.)

The order directing the issuance of the writ of prohibition should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Rich, Putnam and Blackmar, JJ., concur.

Order directing issuance of writ of prohibition reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. . , o ■ , .