Laughlin, J.:
Special Term, Part 1, at which the motion was made, was duly appointed to be held at that time and place by the justices of this court, and the justice presiding thereat was duly assigned to hold it, but that would be immaterial since he was a justice of the Supreme Court. (State Const. art. 6, § 6; People v. Herrmann, 149 N. Y. 190; People v. Pustolka, Id. 570.) The application for the alternative writ of prohibition presents but a single point which is one of law as to whether the Special Term had jurisdiction to entertain the motion for the dismissal of the indictment, it being now well settled in this jurisdiction that a writ of prohibition may only be issued against a court or other tribunal possessing judicial [468]*468powers where it is without jurisdiction or is proceeding or threatening to proceed in excess of its jurisdiction. (Thomson v. Tracy, 60 N. Y. 31; People ex rel. Childs v. Extraordinary Trial Term, 228 id. 463; People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339; People ex rel. Mayor v. Nichols, 79 N. Y. 582.) The People have no right of appeal from an order dismissing an indictment regardless of whether the order is made by a court with or without jurisdiction; and the motion if made at the Extraordinary Trial Term or at Trial Term, Part 1, appointed for the trial of criminal causes, either of which it is conceded would have jurisdiction, would be heard and decided by a single justice of the Supreme Court possessing no greater power or authority than the justice against whom the writ is asked unless it arise from the mere fact of his sitting in a particular part of the Supreme Court. The Constitution adopted in 1894 by article 6, section 6, abolished Circuit Courts and Courts of Oyer and Terminer and vested all their jurisdiction in the Supreme Court from and after the 31st day of December, 1895, and section 1 of said article continued the Supreme Court with general jurisdiction both in law and equity. We need not trace the origin or history of Courts of Oyer and Terminer or consider the manner in which their jurisdiction had been extended and was exercised at that time. It is sufficient to say that then and theretofore the justices of the Supreme Court exercised criminal jurisdiction by presiding at Courts of Oyer and Terminer. (See Laws of 1823, chap. 182, § 9; 2 R. S. 207, §§ 40, 42; Const. 1846, art. 6, § 6; Const. 1846, art. 6, § 7, as amd. in 1869. See Quimbo Appo v. People, 20 N. Y. 531, 546.) The Constitution of 1894, by article 6, section 2, contemplated the division of the work of the Supreme Court between Special and Trial Terms and authorized the Appellate Division in each department to fix the times and places for holding such terms. In amending the section in 1905 the words “ and Trial ” were omitted from the phrase “ Special and Trial Terms,” but that was not the object of the amendment and was doubtless inadvertent. After the adoption of the Constitution of 1894, the Legislature, by section 15 of chapter 553 of the Laws of 1895, provided, in conformity with the Constitution, that the justices of the Appellate Division in the First Department should, on or before the first [469]*469day of December in each year, fix a time and place for holding Special and Trial Terms of the Supreme Court in the First Judicial District and assign justices to hold the same and should from time to time make such rules as they might deem necessary to regulate the sittings of said various terms. Substantially the same provision was made by chapters 376 and 946 of the Laws of 1895, which amended section 232 of the Code of Civil Procedure. (See, also, Laws of 1895, chap. 946, §§ 4, 5; Laws of 1904, chap. 500, amdg. Code Civ. Proc. § 232.) That provision was continued in section 84 of the Judiciary Law. It is important to bear in mind that when the Constitution abolished Courts of Oyer and Terminer, the criminal jurisdiction which they theretofore exercised was conferred upon the Supreme Court generally, and not upon any part, term or branch thereof. Neither by the Constitution nor by statute, nor by the General Rules of Practice, has a Criminal Term or branch of the Supreme Court been created or recognized and the only reference thereto is in rule 4 of the Trial Term Rules of the First Judicial District, adopted by the justices of the Appellate Division in the First Department pursuant to the provisions of section 232 of the Code of Civil Procedure, enacted in 1895, and section 84 of the Judiciary Law, designating the terms and regulating the sittings of the various parts of the Supreme Court by which twenty Trial Terms, to be known as Parts 1 to 20, inclusive, are provided for, and designating Part 1 as the Criminal Term. This rule and this distribution of the judicial work were made for the purpose of apportioning it with approximate equality between -the justices and for the orderly dispatch thereof. Without any rule dividing the work and regulating the procedure there would be the utmost confusion and conflicting exercise of jurisdiction. Section 11 of the Code of Criminal Procedure enumerates, as one of the courts having original jurisdiction of criminal actions, “ The Supreme Court,” and section 22 defines the jurisdiction of “ The Supreme Court.” Neither section contains any reference to a Criminal Term or branch of the court. By said section 22 the “ Supreme Court ” is authorized to bail any person committed, before or after an indictment is found upon any criminal charge whatever, and to exercise the powers conferred upon it by any provision of the Code of Criminal [470]*470Procedure or by special statute. The other provisions in the Code of Criminal Procedure, so far as we have found of our attention has been drawn thereto, refer generally to the court, excepting sections 346 and 529, which provide that motions for a change of venue must and motions for a certificate of reasonable doubt may be made at Special Term. Section 296 provides that the defendant must be arraigned on indictment before the court in which it is found or before the court to which it is sent or removed, and section 312 provides that the defendant in answering to the indictment may either move the court to set it aside or may demur or plead thereto. The defendants having obtained an inspection of the minutes it is not claimed that they are not entitled to the remedy sought by the motion. The only point urged is that the motion should have been made at the Extraordinary Trial Term or Trial Term, Part 1, which were appointed for criminal business. No rule has been adopted by a convention of the justices of the Appellate Division, or by the justices of this Appellate Division, confining the making of such a motion or application to Part 1 of the Trial Term, or to the branch of the court in which the indictment was found, and, consequently, the making of the motion at the Special Term was not even a violation of any rule of the court. In the case of People ex rel. Martin v. Brady (168 App. Div. 108) this court denied the application for a writ of prohibition to restrain Mr. Justice Brady, presiding at the Special Term of the Supreme Court in the county of Bronx, from entertaining a motion, made* by the defendant indicted at the Trial Term of the court, for the inspection of the minutes of the grand jury, for the purpose of moving thereon for a dismissal of the indictment.
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Laughlin, J.:
Special Term, Part 1, at which the motion was made, was duly appointed to be held at that time and place by the justices of this court, and the justice presiding thereat was duly assigned to hold it, but that would be immaterial since he was a justice of the Supreme Court. (State Const. art. 6, § 6; People v. Herrmann, 149 N. Y. 190; People v. Pustolka, Id. 570.) The application for the alternative writ of prohibition presents but a single point which is one of law as to whether the Special Term had jurisdiction to entertain the motion for the dismissal of the indictment, it being now well settled in this jurisdiction that a writ of prohibition may only be issued against a court or other tribunal possessing judicial [468]*468powers where it is without jurisdiction or is proceeding or threatening to proceed in excess of its jurisdiction. (Thomson v. Tracy, 60 N. Y. 31; People ex rel. Childs v. Extraordinary Trial Term, 228 id. 463; People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339; People ex rel. Mayor v. Nichols, 79 N. Y. 582.) The People have no right of appeal from an order dismissing an indictment regardless of whether the order is made by a court with or without jurisdiction; and the motion if made at the Extraordinary Trial Term or at Trial Term, Part 1, appointed for the trial of criminal causes, either of which it is conceded would have jurisdiction, would be heard and decided by a single justice of the Supreme Court possessing no greater power or authority than the justice against whom the writ is asked unless it arise from the mere fact of his sitting in a particular part of the Supreme Court. The Constitution adopted in 1894 by article 6, section 6, abolished Circuit Courts and Courts of Oyer and Terminer and vested all their jurisdiction in the Supreme Court from and after the 31st day of December, 1895, and section 1 of said article continued the Supreme Court with general jurisdiction both in law and equity. We need not trace the origin or history of Courts of Oyer and Terminer or consider the manner in which their jurisdiction had been extended and was exercised at that time. It is sufficient to say that then and theretofore the justices of the Supreme Court exercised criminal jurisdiction by presiding at Courts of Oyer and Terminer. (See Laws of 1823, chap. 182, § 9; 2 R. S. 207, §§ 40, 42; Const. 1846, art. 6, § 6; Const. 1846, art. 6, § 7, as amd. in 1869. See Quimbo Appo v. People, 20 N. Y. 531, 546.) The Constitution of 1894, by article 6, section 2, contemplated the division of the work of the Supreme Court between Special and Trial Terms and authorized the Appellate Division in each department to fix the times and places for holding such terms. In amending the section in 1905 the words “ and Trial ” were omitted from the phrase “ Special and Trial Terms,” but that was not the object of the amendment and was doubtless inadvertent. After the adoption of the Constitution of 1894, the Legislature, by section 15 of chapter 553 of the Laws of 1895, provided, in conformity with the Constitution, that the justices of the Appellate Division in the First Department should, on or before the first [469]*469day of December in each year, fix a time and place for holding Special and Trial Terms of the Supreme Court in the First Judicial District and assign justices to hold the same and should from time to time make such rules as they might deem necessary to regulate the sittings of said various terms. Substantially the same provision was made by chapters 376 and 946 of the Laws of 1895, which amended section 232 of the Code of Civil Procedure. (See, also, Laws of 1895, chap. 946, §§ 4, 5; Laws of 1904, chap. 500, amdg. Code Civ. Proc. § 232.) That provision was continued in section 84 of the Judiciary Law. It is important to bear in mind that when the Constitution abolished Courts of Oyer and Terminer, the criminal jurisdiction which they theretofore exercised was conferred upon the Supreme Court generally, and not upon any part, term or branch thereof. Neither by the Constitution nor by statute, nor by the General Rules of Practice, has a Criminal Term or branch of the Supreme Court been created or recognized and the only reference thereto is in rule 4 of the Trial Term Rules of the First Judicial District, adopted by the justices of the Appellate Division in the First Department pursuant to the provisions of section 232 of the Code of Civil Procedure, enacted in 1895, and section 84 of the Judiciary Law, designating the terms and regulating the sittings of the various parts of the Supreme Court by which twenty Trial Terms, to be known as Parts 1 to 20, inclusive, are provided for, and designating Part 1 as the Criminal Term. This rule and this distribution of the judicial work were made for the purpose of apportioning it with approximate equality between -the justices and for the orderly dispatch thereof. Without any rule dividing the work and regulating the procedure there would be the utmost confusion and conflicting exercise of jurisdiction. Section 11 of the Code of Criminal Procedure enumerates, as one of the courts having original jurisdiction of criminal actions, “ The Supreme Court,” and section 22 defines the jurisdiction of “ The Supreme Court.” Neither section contains any reference to a Criminal Term or branch of the court. By said section 22 the “ Supreme Court ” is authorized to bail any person committed, before or after an indictment is found upon any criminal charge whatever, and to exercise the powers conferred upon it by any provision of the Code of Criminal [470]*470Procedure or by special statute. The other provisions in the Code of Criminal Procedure, so far as we have found of our attention has been drawn thereto, refer generally to the court, excepting sections 346 and 529, which provide that motions for a change of venue must and motions for a certificate of reasonable doubt may be made at Special Term. Section 296 provides that the defendant must be arraigned on indictment before the court in which it is found or before the court to which it is sent or removed, and section 312 provides that the defendant in answering to the indictment may either move the court to set it aside or may demur or plead thereto. The defendants having obtained an inspection of the minutes it is not claimed that they are not entitled to the remedy sought by the motion. The only point urged is that the motion should have been made at the Extraordinary Trial Term or Trial Term, Part 1, which were appointed for criminal business. No rule has been adopted by a convention of the justices of the Appellate Division, or by the justices of this Appellate Division, confining the making of such a motion or application to Part 1 of the Trial Term, or to the branch of the court in which the indictment was found, and, consequently, the making of the motion at the Special Term was not even a violation of any rule of the court. In the case of People ex rel. Martin v. Brady (168 App. Div. 108) this court denied the application for a writ of prohibition to restrain Mr. Justice Brady, presiding at the Special Term of the Supreme Court in the county of Bronx, from entertaining a motion, made* by the defendant indicted at the Trial Term of the court, for the inspection of the minutes of the grand jury, for the purpose of moving thereon for a dismissal of the indictment. The opinion of the court does not discuss the point as to whether the motion should have been made at the Trial Term, but it holds generally that the justice holding the Special Term, and who had announced his intention of granting the motion by a Special Term order, was within his jurisdiction, and, therefore, the decision is authority for the contention that such motions may be made and entertained at Special Term. In People ex rel. Mayor v. Nichols (79 N. Y. 582) the Court of Appeals, in deciding the jurisdiction of the Special Term and discussing the effect of rules for the distribution of [471]*471work between the different terms of the court and in unanimously holding that a writ of prohibition was erroneously issued against the Special Term of Supreme Court, said: “ It is provided by the Constitution that the court itself shall have general jurisdiction in law and equity. It follows that its jurisdiction can be limited neither by the Legislature nor by any power conferred by it upon the court itself (De Hart v. Hatch, 3 Hun, 375). Its functions are to be exercised by its judges, sitting in General Terms, or at the Circuit, or Oyer and Terminer, or Special Terms. * * * Some of the terms thus appointed are designated by the justices as ' Special Terms for equity cases and enumerated motions,’ and others as ‘ Special Terms for non-enumerated motions and chamber business,’ and, while it cannot be doubted that for the due and orderly conduct of litigation and causes, certain steps and proceedings therein may, under the direction of the judges, be required to be taken at specified terms, yet any such regulation must be subject to the control of the justice who is assigned to hold them. If otherwise the power of the judge would be limited, public interests sometimes put in jeopardy and the rights of citizens infringed. The case before us illustrates this position.”
The opinions of the court, in Mussen v. Ausable Granite Works (63 Hun, 367) and of Mr. Justice Benedict in Matter of Public Service Comm. v. Brooklyn Heights B. B. Co. (105 Misc. Rep. 254) are to the same effect. We have no doubt in the circumstances it would be entirely competent for the justices of this court to adopt a rule providing that motions to dismiss indictments, and for the hearing of demurrers to indictments should be heard at Special Term, for the jurisdiction is vested in the Supreme Court generally, and it is for us to make rules for the. proper distribution and expedition of the judicial work.. The rules, however, that have been adopted prescribing the motions and applications that are to be made to the different parts of the court were not intended to embrace motions or applications in criminal actions. It has been, as contended by the learned counsel for the relator, the uniform practice to make applications and motions for the dismissal of indictments before the term or part of the court in which they are found or to which they have been transferred; and it appears that, [472]*472with but one exception, that custom has only been departed from in exceptional cases where the part of the court in which the indictments have been found or are pending has directed that they be heard elsewhere, or the district attorney has consented thereto, and those departures were not brought to the attention of the justices of the Appellate Division and no necessity for making a rule on the sub j ect has arisen. Although we deem it quite clear that the jurisdiction in such cases is not confined to the particular part or term of the court in which an indictment is found or has been transferred, we do not wish to be understood as holding that, therefore, it is optional whether to move there or elsewhere, for manifestly if the part or term of the court in which indictments have been found or to which they have been transferred were in session, it would tend to bring the administration of justice into disrepute and would seriously interfere with the orderly administration of judicial work for another part or term of the court to entertain jurisdiction in such cases; but since the Extraordinary Term was not in session it was a matter addressed to the sound discretion of the justice presiding at Special Term, Part 1, whether, in view of all the circumstances, including the effect on the defendants of the pendency of the indictments against them for the period during which the part of the court in which the indictments were found would probably be in recess, the motion should be entertained, and over his determination thereon this court has no supervision by .appeal or otherwise. The observations we have made after deciding that the Special Term had jurisdiction are only intended to make it clear that it is important that the rules and existing practice should be adhered to, save in an exceptional case where an injustice to an indicted defendant calls for immediate rehef, and the part or term of the court in which an indictment has been found is not in session at the time the motion is made, which was the situation in the case at bar.
It follows that the motion for an alternative writ of prohibition should be denied.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ.,. concur.
Motion denied. Settle order on notice.