Opinion
March 14, 1962
Proceeding under article 78 of the Civil Practice Act, in the nature of prohibition, to prevent the County Judge of Greene County from proceeding with the trial of certain indictments now pending before his court. In October, 1959 petitioner appeared pursuant to a subpoena duces tecum at a hearing before the Industrial Commissioner of the State of New York. On January 8, 1960, the commissioner made a determination that petitioner was not a bona fide employer. Petitioner has instituted an appeal from this determination which is now pending. In May of 1960 petitioner, among others, was indicted for grand larceny by the Greene County Grand Jury on the basis of information developed before the commissioner. It is the trial of these indictments which petitioner seeks to stay. It is his contention that section 626 Lab. of the Labor Law divests the County Court of jurisdiction since the basis of his conviction under the indictments would necessarily depend on whether he was a bona fide employer within the meaning of the Labor Law which is the same question he is now appealing in the administrative proceeding. We do not construe section 626 to impinge upon the jurisdiction of the County Court in the instant matter. Section 626 is designed solely to establish a single uniform mode of review of the commissioner's determination. The criminal proceeding does not affect the determination of the commissioner. It is an entirely different proceeding. Even if this court looked with disfavor on the possibility of inconsistent results in the separate tribunals here involved, this would not bear on the question of the jurisdiction of the County Court. (Cf. Matter of United States of Mexico v. Schmuck, 294 N.Y. 265, 271-272.) Petition dismissed, with $50 costs. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.