Innes v. Cosgrove

263 A.D. 880, 32 N.Y.S.2d 149, 1942 N.Y. App. Div. LEXIS 7190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1942
• Status: Published

Opinion

Resettled order denying the application of the district attorney of Richmond county for an order, pursuant to article 78 of the Civil Practice Act, to restrain the county judge of Richmond county from entertaining and determining an application to vacate an order theretofore made by him, approving a direction of the grand jury that an information be filed in the Court of Special Sessions, in so far as appealed from, unanimously affirmed, without costs. The motion now pending before the county judge may be considered by him on the phase relating to the claim of the unauthorized presence before the grand jury of the Assistant Attorney-General. When so considered, he will not be acting in an appellate capacity with respect to his prior action and order. He will be in the position of having the prior application renewed on an additional fact not before him on the previous application. Therefore, he will be acting for the first time on a set of facts which does not concern the sufficiency of the evidence before the grand jury, which presumptively was considered by him on the prior application. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. [177 Misc. 464.]