Matter Burton B. Roberts v. County Court Wyoming County Et Al‪.‬

[14]     Judgment, denominated an order, in an article 78 proceeding in the nature of prohibition affirmed, without costs, on the limited ground that it was improvident to entertain the proceeding to prohibit the exercise of jurisdiction by the habeas corpus court. The habeas corpus court had jurisdiction to entertain the writ (CPLR 7004) and power to order a hearing to be held by the sentencing court (see, e.g., People ex rel. Prosser v. Martin, 306 N. Y. 710, 711-712). Hence, prohibition, which might be available to restrain a court from proceeding without jurisdiction or in excess of its powers, does not lie (see Matter of Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436-437; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 336; cf. Matter of Marx v. Holloran, 236 App. Div. 680). Moreover, it would appear to be unseemly to invoke a summary proceeding to restrain proceedings under the constitutional writ (N. Y. Const., art. I, § 4). The evident unseemliness is further aggravated by the availability of an appeal, under [34 N.Y.2d 246 Page 249]