People v. New York Common Pleas

By the Court.—Clerke, J. The weight of authority is certainly in favor of the proposition, that a refusal to grant a writ of prohibition is not appealable.' It seems to. have been held by the greater number of judges in England that the awarding of a prohibition is discretionary; that is, in the language of Matthew Bacon : “from the circumstances of the case the Superior Courts are at liberty to exercise a legal discretion, but not an arbitrary one, in refusing prohibitions, where in such like cases they have been granted, or where by the laws and statutes of the realm, they might to be granted.” (Bacon’s Abridgment, Tit. Prohibition B.; see, also, ex parte Braudlacht, [441] 2 Hill, 367.) The determination of this question is, however, not necessary in the present case, for the justice, from whose order this appeal is taken, was abundantly justified in refusing to grant a writ of prohibition, or, which is the same thing, in revoking a writ which he had inadvertently issued. The writ is granted by the Superior Courts of Westminster, and in this State by the Supreme Court alone, to prevent inferior courts from exceeding their jurisdiction. It appears to me very plain that the Court of Common Pleas, in entertaining jurisdiction of the action entitled Hugh Smith and John Kerr a. The New York Consolidated Stage Company and others, did not exceed its jurisdiction. In doing so, that court does not necessarily exercise the visitatorial power intrusted alone to the Supreme Court. ■ The máin object of the action was to have ah alleged fraudulent assignment executed by a majority of the directors declared null and void, and to enjoin the assignee from holding possession of, or interfering with the property and effects of the company. This is the exercise of the ordinary equity powers, with which the Court of Common Pleas is as amply intrusted as the Supreme Court. To grant a writ of prohibition, therefore, in that action, would be an attempt to deprive the Common Pleas of a jurisdiction which the law, in its wisdom, has thought proper to give it; whereas, this court is only allowed to issue the writ to prevent the usurpation of a jurisdiction. If, in the exercise of its lawful authority, or if, having taken rightful cognizance of an action, the Common Pleas should not only declare the assignment null and void, and enjoin the assignee from taking possession of the property of the company, but it should go further and assume additional powers which it does not possess, or commit any other error, the remedy is not for the injured parties to apply to this court for a writ of prohibition, but to have recourse to the appropriate appellate jurisdiction for a correction of such errors. In short, although this court, in the exercise of its supreme superintending power over all other courts of original jurisdiction in the State, will, unhesitatingly, issue a writ of prohibition, where visitatorial or any other aúthority is usurped, it will refuse the writ when the general scope or purpose of the action is within the jurisdiction of the inferior court—an over [442] stepping of its authority in a portion of its judgment, or any other error in its proceedings, being a ground of appeal or review, but not of prohibition. (See Grant a. Gould, 2 H. Black., 100, for various reasons a most interesting case.) ■ The order should be affirmed, with $10 costs. Sutherland, J., concurred.