Opinion
March 12, 1962
In a proceeding under article 78 of the Civil Practice Act to restrain and prohibit respondent, the County Court of Queens County, from sentencing and punishing the petitioner, an infant, who was between the ages of 15 and 16 when he allegedly committed a crime and who pleaded guilty to the crime of manslaughter in the first degree under an indictment charging him with murder in the second degree, the respondent, pursuant to section 1293 of the Civil Practice Act makes a cross motion to dismiss the petition as a matter of law. Cross motion granted and petition dismissed, without costs. Under the facts and circumstances alleged in the petition, the extraordinary remedy of prohibition restraining a court from proceeding in a pending action may not be granted. It appears that the court has jurisdiction to proceed. If petitioner should be aggrieved by the judgment or sentence of the court, his proper recourse is to take an appeal from the judgment. Beldock, P.J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.