Opinion
November 16, 1942.
Motion for an order prohibiting Charles W. Froessel, individually and as a Justice of the Supreme Court of the State of New York, the Supreme Court of the State of New York, held in and for the county of Queens, and Fred J. Munder, individually and as District Attorney of the county of Suffolk, from taking any action, giving any consideration to and making any decision and order upon an application made by Fred J. Munder, as District Attorney of the county of Suffolk, for an order modifying the order made by the County Court of Suffolk County on the 23rd day of April, 1938, directing the service by The People of a bill of particulars in an action entitled The People of the State of New York v. Morris C. Smith, defendant. On the court's own motion, the decision of this court handed down October 19, 1942 [ ante, p. 829], is amended to read as follows: Motion for an order of prohibition denied in the exercise of discretion and as a matter of law.
The controlling question is not whether the Supreme Court has jurisdiction to exercise its judicial power in the premises, if it be invoked in the first instance, without there having been a prior exercise of judicial power in respect of the same subject matter by a court of coordinate jurisdiction. The question is, has the Supreme Court jurisdiction to make a different order from that theretofore made in respect of subject matter which has been the basis of a prior exercise of judicial power by a court of coordinate jurisdiction, embodied in an order which is not claimed to be affected with clerical, as distinguished from judicial, error. If it were to be permitted to do so, the Supreme Court would be exercising an appellate jurisdiction with which it has not been endowed; and it would, therefore, be assuming to act without or beyond its jurisdiction. Such a threatened act may properly be restrained by an order of prohibition, which furnishes the only efficacious and complete remedy for such an attempted usurpation of power.