Emray Realty Corp. v. Stoute , 5 Misc. 2d 865 ( 1957 )

Aron Steuer, J.

The petitioner seeks a writ of prohibition against respondent, a Municipal Court Judge, to prevent the latter from hearing an application brought on by order to show cause signed by the respondent. The order to show cause was issued in a summary proceeding for eviction for nonpayment of rent. The trial of that proceeding had been completed and a final order and eviction warrant had been issued. Under these circumstances there cannot be much doubt that the Municipal Court lost jurisdiction and that it was error to sign the order and any order subsequent to it would be a nullity.

It remains to be seen whether prohibition is the correct remedy. It was the rule of the common law that where an absence of jurisdiction appeared that prohibition was an absolute right (see High on “Extraordinary Legal Remedies ” [3d ed.], § 773). But in early times, if not the earliest, doubts crept in as to whether this statement iterated for years in criminal cases had equal application in civil cases. However that may be today the matter is regulated by statute (Civ. Prac. Act, § 1285). Exempted from the relief of prohibition are determinations in civil actions made in a court of record where an adequate review by appeal is available. The motion is denied.