Erlbaum v. Gold
| Citation | 371 N.Y.S.2d 135,49 A.D.2d 594 |
| Parties | In the Matter of William M. ERLBAUM, Petitioner, v. Eugene GOLD, as District Attorney of Kings County, and Dominic S. Rinaldi, as Justice of the Supreme Court of the State of New York, County of Kings, Respondents. |
| Decision Date | 11 July 1975 |
| Court | New York Supreme Court Appellate Division |
Lyon & Erlbaum, Kew Gardens (William M. Erlbaum and Charles Wender, Kew Gardens, of counsel), for petitioner.
Eugene Gold, Dist. Atty., Brooklyn (Elliott Schulder, Brooklyn, of counsel), for respondents.
Before HOPKINS, Acting P.J., and LATHAM, BRENNAN, MUNDER and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to prohibit enforcement of two orders of the Supreme Court, Kings County, both dated January 22, 1975, each of which granted a motion by the District Attorney of Kings County to compel a client of petitioner to provide handwriting exemplars.
Proceeding dismissed, without costs.
As the orders in question were civil in nature and hence appealable (see, Matter of the District Attorney of Kings County v. Angelo G. (Anonymous), 48 A.D.2d 576, 371 N.Y.S.2d 127 (decided herewith)), this proceeding does not lie (see, Matter of Blumenfeld v. Dubin, 49 A.D.2d 593, 371 N.Y.S.2d 133 (decided herewith)). Were we to reach the merits, our determination in Matter of the District Attorney of Kings County v. Angelo G. (Anonymous), (supra) would be controlling since, under the allegations appearing in the application, there was probable cause for the granting of the relief sought in the Supreme Court.
MARTUSCELLO, J., dissents and votes to grant the application for the reasons set forth in his dissenting opinion in Matter of the District Attorney of Kings County v. Angelo G. (Anonymous), 48 A.D.2d 576, 371 N.Y.S.2d 127 (decided herewith).
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