United States of Mexico v. Schmuck

267 A.D. 167, 45 N.Y.S.2d 5, 1943 N.Y. App. Div. LEXIS 6001

Opinion

Per Curiam.

Without attempting to distinguish the cases heretofore considered in this State and having in mind the primary rule that prohibition will not ordinarily issue where the court has jurisdiction and its decision may be reviewed on appeal, we are impelled to grant the relief now sought because of the disposition of the United States Supreme Court in Ex parte Peru (318 U. S. 578). The court pointed out that, where the claim of immunity is allowed by the Department of State and that Department causes its action to be certified to the court through appropriate channels, the certification and request must be accepted by the courts as a conclusive determination by the political arm of the government that the continued retention of the attached property interferes with the proper conduct of our foreign relations; upon the submission of the certification it becomes the court’s duty to release the attached property and to proceed no further in the cause.

The application for an order of prohibition is granted, and the cross motion to dismiss the petition denied.

Townley, G-lennon, Untermyer, Dore and Cohn, JJ., concur.

Application for an order of prohibition granted, and the cross motion to dismiss the petition denied. Settle order on notice. [See post, p. 809.]