Silver v. Gassman

6 A.D.2d 694, 174 N.Y.S.2d 277, 1958 N.Y. App. Div. LEXIS 6025

Opinion

Proceeding to compel the individual appellants to vacate an order made by one of them, as a Justice of the Court of Special Sessions of the City of New York, sitting in Kings County. The order sought to be vacated was made on October 7, 1957, over the objection of the respondent District Attorney and denied his application to restore a certain case to the calendar of said court for trial. The defendant in that ease had been discharged on his own recognizance pursuant to section 669 of the Code of Criminal Procedure. The appeal is from an order of the Special Term granting the petition and directing that the case 'be restored to the calendar for trial. Order unanimously affirmed, without costs. It was a ministerial obligation of the appellants to restore the case to the calendar for trial at the instance of the District Attorney (People v. Prosser, 309 N. Y. 353, 358, 361; Matter of McDonald v. Goldstein, 273 App. Div. 649, 650). The refusal to perform was not a judicial determination in the nature of the dismissal of an indictment which would be appealable (Code Crim. Pro., § 518, subd. 3; People v. Hammerstein, 150 App. Div. 212, affd. 211 N. Y. 552; People v. Levenstein, 309 N. Y. 433), but a neglect of a ministerial duty subject to review under article 78 of the Civil Practice Act. (Matter of Stewart v. City Court of City of Binghamton, 183 Misc. 155, 157; Matter of Bennett v. Merritt, 173 Misc. 355, 362.) Present—Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ.