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People ex rel. Sprague v. Fitzgerald

44 N.Y.S. 556 Court N.Y. App. Div. Decision date 1897-04-06 English

Delivered by HATCH, J.

Contents

Majority

p. 556
(15 App. Div. 539.)
PEOPLE ex rel. SPRAGUE et al. v. FITZGERALD et al.
(Supreme Court, Appellate Division, Second Department.
April 6, 1897.)

Headnote

Prohibition—Restraining Enforcement of Void Decref..
The enforcement of a void decree may be restrained by writ of prohibition.
Appeal from surrogate’s court, Richmond county.
Prohibition by Edward Sprague and another, as administrators of David H. Journeay, deceased, against Thomas W. Fitzgerald, district attorney, and acting surrogate of the county of Richmond, and Mary L. Engelbrecht. From an order directing a writ of prohibition to issue restraining and prohibiting said Fitzgerald, as acting surrogate, from taking any proceedings or issuing any order removing relators from their office as administrators, said Fitzgerald appeals. Affirmed.
Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.
Calvin D. Van Name, for appellant.
George J. Greenfield, for respondents.

This proceeding was begun by the issuance of an alternative writ of prohibition, which, upon the hearing at special term, was made absolute. The writ operated to restrain the acting surrogate from enforcing the decree providing for the removal of the administrators upon an ex parte application, and the appointment of a particular person in their stead. We have already considered the force and effect of this decree, and reached the conclusion that in this respect the same was void. In re Engelbrecht (not yet officially reported) 44 N. Y. Supp. 551 . It is well settled that a writ of prohibition will issue to prevent a judicial tribunal from exercising power over matters not within its cognizance or exceeding its jurisdiction in matters of which it may take cognizance. People v. Nichols, 79 N. Y. 582 ; Quimbo Appo v. People, 20 N. Y. 531 ; Thomson v. Tracy, 60 N. Y. 31 . As the contemplated action was the enforcement of a void decree, it was proper that the writ should issue in restraint of it.

The order should therefore be affirmed, with ,$10 costs and disbursements. All concur.

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