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

259 A.D. 890, 19 N.Y.S.2d 893, 1940 N.Y. App. Div. LEXIS 7199

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1940
• Status: Published

Opinion

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.