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People ex rel. Whitman v. Woodward

Supreme Court of New York, Appellate Division

April 4, 1912

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES S. WHITMAN, District Attorney of the County of New York, Relator,
v.
The Honorable JOHN WOODWARD, a Justice of the Supreme Court of the State of New York, and CHARLES H. HYDE, Respondents.

APPLICATION for an absolute writ of prohibition.

COUNSEL

Robert S. Johnstone, for the relator.

Page 181

Frederic R. Coudert, for the defendant Mr. Justice Woodward.

Max D. Steuer, for the defendant Hyde.

PER CURIAM:

This is an application for an absolute writ of prohibition to restrain Mr. Justice WOODWARD, a justice of the Supreme Court, from proceeding further with the hearing upon a writ of habeas corpus issued by him in the county of Kings, and made returnable in said county, to inquire into the cause of the restraint of Charles H. Hyde, imprisoned and restrained of his liberty in the county jail of the county of New York upon an indictment for a felony.

The Code of Civil Procedure (ยง 2093) provides that a writ of prohibition issued by an Appellate Division can be granted only at a term of the Appellate Division of the judicial department embracing the county wherein the action is triable or the special proceeding is brought, in the course of which the matter sought to be prohibited by the writ originated, unless a term of the Appellate Division of said department is not in session, in which case it may be granted at a term of the Appellate Division in an adjoining judicial department.

The special proceeding sought to be enjoined is that arising upon a writ of habeas corpus issued by Justice WOODWARD, and it originated and is pending in the county of Kings, which is in the Second Department.

The jurisdiction of the Appellate Division in this department is, therefore, dependent upon the question whether or not a term of the Appellate Division of the Supreme Court for the Second Department was in session when the alternative writ was granted herein.

The petition upon which the alternative writ was granted stated upon information derived from a publication in the New York Law Journal that the Appellate Division in the Second Department was not then in session,

Mr. Justice WOODWARD files a return and states as a matter of fact 'that at the time the alternative writ of prohibition herein was ordered and issued, to wit on the 29th day of March, 1912, the Appellate Division of the Supreme Court for

Page 182

the Second Judicial Department was in session.' This statement is confirmed by a stipulation signed and submitted by the district attorney and Mr. Justice WOODWARD, to the effect that the March term of said Appellate Division had not been closed or adjourned, but was in existence as a term on March 29, 1912; that on March 21, 1912, the court ordered a recess; that on March 29, 1912, the court handed down decisions; that on March twenty-ninth five justices of said Appellate Division were present together in the chambers adjoining the court room but did not go upon the bench, although they were at all times in readiness as a court to attend to any application or other court business presented. The jurisdiction of this court depends upon the fact that a 'term of the Appellate Division' of the Second Department was not in session on the twenty-ninth day of March. It is conceded that the March term of the court had not adjourned; but the court had taken a recess and the justices of the ...


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