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People ex rel. Cuvillier v. Hagarty

238 N.Y. 621 Court N.Y. Decision date 1924-07-05 English

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p. 621
The People of the State of New York ex rel. Louis A. Cuvillier, Appellant, v. William F. Hagarty, Justice of the Supreme Court, et al., Respondents.

Headnote

Appeal —■ prohibition —■ order denying writ of prohibition not appealable to Court of Appeals unless it appears that denial was not in exercise of discretion.
It being discretionary with the Supreme Court to grant or deny a writ of prohibition, its order refusing to grant it is not appealable to the Court of Appeals unless the order or opinion shows that the application was denied as a matter of law and not in the exercise of discretion.
People ex rel. Cuvillier v. Hagarty, 209 App. Div. 832 , appeal dismissed.
(Argued June 2, 1924;
decided July 5, 1924.)
Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 19, 1924, denying an application for a writ of prohibition.
Louis A. Cuvillier, appellant in person.
Harry A. Gordon for respondents.

Appeal from order dismissed, with costs. The writ of prohibition does not issue as a matter of right but in the sound discretion of the court. (People ex rel, Hummel v. Trial Term, 184 N. Y. 30 ; People ex rel. Livingston v. Wyatt, 186 N. Y. 383 , 393.) “ It being discretionary with the Supreme Court whether to grant or deny the writ, its order refusing to grant it is not appealable to this court ” (People ex rel. Adams v. Westbrook, 89 N. Y. 152 , 156), unless as in People ex rel. Hummel v. Trial Term, the order or the opinion of that court shows that the application was denied as a matter of law and not in the exercise of discretion.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Appeal dismissed.

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