Shea v. Swift

267 A.D. 853, 47 N.Y.S.2d 284, 1944 N.Y. App. Div. LEXIS 5106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1944
• Status: Published

Opinion

—Application under article 78 of the Civil Practice Act for an order of prohibition restraining further proceedings concerning the selection of a Grand Jury in the Extraordinary Term of the Supreme Court presided over by Mr. Justice Parton Swift. Petition dismissed on the law and not as a matter of discretion. Hill, P. J., Hefllernan and Brewster, JJ., concur; Bliss, J., concurs in the following memorandum : I concur for a dismissal of the petition solely upon the ground that an order of prohibition is not an available, remedy in these circumstances and that the questions may be reviewed on appeal or by habeas corpus; Schenek, J., dissents, on the ground that an order in the nature of prohibition is the only adequate remedy available to petitioner. Leave is hereby granted to appeal to the Court of Appeals. The court certifies that a question of law is involved which ought to be reviewed by the Court of Appeals. The court certifies the following question: Should the petition be dismissed as- a matter of law? The stay heretofore granted by a Justice of this court and now in existence is hereby continued in the event that petitioner appeals from our decision until the hearing and determination of such appeal by the Court of Appeals. Bliss, Heffewian and Schenek, JJ., concur on the question of the stay; Hill, P. J., and Brewster, J., dissent and vote for no stay. [See post, p. 854.]