Big Black v. Ball

• Decision Date: 16 January 1976
• Parties: Matter of BIG BLACK (a/k/a Frank Smith), Petitioner, v. Hon. Carman F. BALL, Supervising Judge of the Attica Term of the Supreme Court of Erie County, New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 546

378 N.Y.S.2d 546

51 A.D.2d 684

Matter of BIG BLACK (a/k/a Frank Smith), Petitioner, v. Hon. Carman F. BALL, Supervising Judge of the Attica Term of the Supreme Court of Erie County, New York, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Richard C. Mitchell, Oswego, for petitioner.

Eugene F. Sullivan, Jr., Oswego, for respondent.

Before MARSH, P.J., and MOULE, SIMONS, MAHONEY and GOLDMAN, JJ.

MEMORANDUM:

Petitioner seeks a writ of prohibition claiming that respondent Justice of the Supreme Court has acted contrary to law in various respects as outlined in the petition. It is well settled that prohibition may be used 'to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction' (Matter of Hogan v. Court of General Sessions, County of New York, 296 N.Y. 1, 8, 68 N.E.2d 849, 852; see also Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452). It should be noted that the petition contains innumerable conclusory allegations as well as insufficient allegations of fact.

The Court of Appeals in LaRocca v. Lane (37 N.Y.2d 575, 338 N.E.2d 606, 376 N.Y.S.2d 93) stated: 'The 'ancient and just' writ of prohibition is rooted deep in the common law. Originally used by the English king to curb the powers of ecclesiastical courts, prohibition has evolved into a basic protection for the individual in his relations with the State (see Appo v. People, 20 N.Y. 531, 541--542; Wolfram, The 'Ancient and Just' Writ of Prohibition in New York, 52 Col.L.Rev. 334, 338--353; Third Annual Report of N.Y. Judicial Council, 1937, p. 137 et seq.; see, also, 23 Carmody-Wait, 2d, New York Practice, § 145:216, p. 792).

It is well settled, and has been restated many times, that prohibition is available both to restrain an unwarranted assumption of jurisdiction and to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction (see, e.g., CPLR 7803, subd. 2; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423--424, 369 N.Y.S.2d 75, 77--78, 330 N.E.2d 45, 46; Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353; Matter of Roberts v. County Ct. of Wyoming County, 34 N.Y.2d 246, 248, 356 N.Y.S.2d 853, 854, 313 N.E.2d 335, 336; Matter of Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 45, 280 N.E.2d 875, 876; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436--437, 318 N.Y.S.2d 705, 707--709, 267 N.E.2d 452, 453--455; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 336, 274 N.Y.S.2d 881, 885, 221 N.E.2d 546, 549; Appo v. People, 20 N.Y. 531, 541, Supra)'.

In the Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879; it was held: 'The extraordinary remedy either of prohibition or mandamus lies only where there is a clear legal right, and in the case of prohibition only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter of (sic) over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction' (citations omitted).

The King court also stated: '(t)he extraordinary remedy will not lie if there is available an adequate remedy at law of which appeal is but one, which may bar the extraordinary remedy' (citations omitted).

Many of the allegations of petitioner have been previously disposed of by this court. (See, e.g., People v. Sekou, 45 A.D.2d 982; Matter of Attica Bros. v. Additional Special & Trial Term of Supreme Ct., Erie Co., 45 A.D.2d 10, 356 N.Y.S.2d 141; Matter...