People ex rel. Hirschberg v. Extraordinary Trial & Special Term of the Supreme Court

Majority

p. 890

The People of the State of New York ex rel. Henry Hirschberg, as District Attorney of Orange County, Petitioner, for an Alternative Prohibition Order, v. The Extraordinary Trial and Special Term of the Supreme Court of the State of New York in Orange County; Hon. Ely W. Personius, Individually and as Justice of Said Supreme Court; Hon. John J. Bennett, Jr., Individually and as Attorney-General of the State of New York; the Orange County Court, Hon. Henry B. Merritt, Individually and as Special County Judge of Orange County; Michael A. DeVasto and Henry Grusky, as Attorney for Michael A. DeVasto, Respondents.

Petition for alternative prohibition order dismissed, without costs. An order of prohibition will not issue where an adequate remedy by appeal is available to the party aggrieved. Recourse to such a remedy with reference to the acts of which complaint is made has been had in the mandamus proceeding, and all questions raised in this proceeding can be determined on that appeal. The petitioner herein may not have been a necessary party to the mandamus proceeding. He was, however, a proper party in order that he might advance any contentions in relation to the claimed prerogatives of his office in respect of the subject-matter of the proceeding in mandamus. Accordingly in that mandamus proceeding, under section 192 of the Civil Practice Act, he will be brought in as a party and afforded the opportunity to assert that which he claims herein. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.