
    SUPREME COURT.
    The People ex rel. New York Consolidated Stage Co. agt. The Court of Common Pleas for the City and County of New York.
    
      Writs of prohibition are granted "by the superior courts of England, and in this state by the supreme court alone, to prevent inferior courts from exceeding their jurisdiction>} or to prevent the usurpation of jurisdiction. But this court cannot issue the writ Jo deprive an inferior court of a jurisdiction which the law in its wisdom has thought proper to give it.
    The court of common pleas for the city and county of Wew York is intrusted with , equity powers as amply as this court, to entertain jurisdiction of an action to set aside as fraudulent, an assignment for the benefit of creditors, and to enjoin the assignee from holding possession of or interfering with the assigned property and effects.
    
      General Term,
    
    
      February, 1865.
    
      Before Ingraham, P. J., Clerke and Sutherland, Justices.
    
    Appeal from an order revoking a writ of prohibition.
    C. A. Rapallo and Vm. F. Allen, for relators, appellants.
    
    A. R. Lawrence, Jr., and H. W. Robinson, for respondents. ■
    
   By the Court, Clerke, J.

I. The weight of authority is certainly in favor of the proposition, that a refusal to grant a writ of prohibition is not appealable. It seems to have been held by the greater number of judges in England that the awarding of a prohibition is discretionary; that is, in the language of Matthew Bacon : “ from the circumstances of the case the superior courts are at liberty to exercise a legal discretion, but not an arbitrary one, in refusing prohibitions, where in such like cases they have been granted, or where by the laws and statutes of the realm, they ought to be granted.” (Bacon’s Abridgement, Title Prohibition B; see also ex parte Brandlacht, 2 Hill, 367.) The determination of this question is, however, not necessary in the present case, for the justice, from whose order this appeal is taken, was abundantly justified in refusing to grant a writ of prohibition, or, which is the same thing, in revoking a writ which he had inadvertently issued.

The writ is granted by the superior courts of Westminster, and in this state by the supreme court alone, to prevent inferior courts from exceeding their jurisdiction. It appears to me very plain that the court of common pleas, in entertaining jurisdiction of the action entitled Hugh Smith and John Kerr agt. The New York consolidated Stage Company and others, did not exceed its jurisdiction. In doing so, that court does not necessarily exercise the visitatorial power intrusted alone to the supreme court. The main object of the action was to have an alleged fraudulent assignment executed by a majority of the directors declared null and void, and to enjoin the assignee from holding possession of or interfering with the property and effects of the company. This is the exercise of the ordinary equity poxvers, xvith xvhich the court of common pleas is as amply intrusted as the supreme court. To grant a xvrit of prohibition, therefore, in that action, would be an attempt to deprive the common pleas of a jurisdiction xvhich the laxv, in its xvisdom, has thought proper to give it; xvhereas, this court is only allowed to issue the writ to prevent the usurpation of jurisdiction. If, in the exercise of its laxvful authority, or if, having taken rightful cognizance of an action, the common pleas should not only declare the assignment null and void, and enjoin the assignee from taking possession of the property of the company, it should go further and assume additional powers xvhich it does not possess, or committ any other error, the remedy is not for the injured parties to apply to this court for a writ of prohibition, but to have recourse to the appropriate appellate jurisdiction for a correction of such errors. In short, although this court, in the exercise of its supreme superintending power over all other courts of original jurisdiction in the state, will, unhesitatingly, issue a writ of prohibition, where visitatorial or any other authority is usurped, it will refuse the writ when the general scope or purpose of the action is within the jurisdiction of the inferior court—an overstepping of its authority in a portion of its judgment, or any other error in its proceedings, being a ground of appeal or review, but not of prohibition (see Grant agt. Gould, 2 H. Black. 100, for various reasons a most interesting case).

The order should be affirmed, with $10 costs.

Sutherland, J., concurred.  