People ex rel. Sprague v. Fitzgerald

15 A.D. 539, 44 N.Y.S. 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1897
• Status: Published

Opinion

Hatch, J.:

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 expande 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. (Matter of Sprague et al., not reported.)

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 in exceeding its jurisdiction in matters of which it may take cognizance. (People ex rel. The Mayor v. Nichols, 79 N. Y. 582; Quimbo Appo v. The People, 20 id. 531; Thomson v. Tracy, 60 id. 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 ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.