Majority
This is a proceeding under article 78 of the Civil Practice Act seeking to restrain and enjoin the respondents from continuing to assume jurisdiction or to take any further steps in the prosecution of a certain action. The respondent Justices cross-move to dismiss the petition for insufficiency and the respondents who are plaintiffs in the controversial action also cross-move. The action was instituted in the Municipal Court of the City of New York pursuant to section 170 of the Decedent Estate Law authorizing an action against the surviving spouse to the extent of the assets paid or distributed to her. This section clearly indicates that the persons succeeding to the decedent’s estate or any portion thereof are liable only to the extent of assets so received. The mere fact that the complaint against the defendant does not limit the liability of the defendant to such extent does not deprive the court of jurisdiction. Remedies other than prohibition are available to the defendant in such instance either by motion to dismiss the complaint or by way of an appeal. In any event it is apparent that the action is one over which the Municipal Court has jurisdiction and prohibition does not lie for the purpose of obtaining a review of a determination made in a civil action by a court of record or a judge thereof which can be reviewed by an appeal or an application for a rehearing. The motion is denied and the cross motions are granted.