
    The People of the State of New York ex rel. Frank H. Deal, Respondent, v. Aaron P. Williams, a Justice of the Peace of the Town of Green Island, Albany County, New York, Appellant, Impleaded with B. W. Clarkson.
    
      ■Contempt—punished by a justice of the peace—that the justice is a material witness or prejudiced is not a bar — appeal by the justice from an order granting a-writ of prohibition.
    
    A justice of the peace has power, under section 2870 of the Code of Civil Procedure, to punish a contempt committed upon the trial of a criminal case at which he is presiding. ■
    
      The contempt proceeding is triable only by the justice before whom the contempt was committed, and section 3151 of the Code of Civil Procedure, relating to the transfer of a case pending before a justice of the peace in which he is a material witness to another justice, has no application thereto.
    The fact that the accused claims that the justice is prejudiced against him does not justify the granting of a writ of prohibition restraining the justice from taking further action in the contempt proceeding.
    The justice may appeal from an order granting the writ Of prohibition, especially where it charges him with costs.
    Appeal by the defendant, Aaron P. Williams, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 11th day of November, 1899, granting an absolute writ of prohibition" to the relator, Frank H. Deal, "“ commanding the said Aaron P. Williams, a justice of the peace of the town of Green Island, and B. W. Clark-son, to desist and refrain from any and all further proceedings in a certain matter commenced before- the said Aaron P. Williams, a justice of the peace of the town of Green Island, on Sept. 27,1899, by B. W. Clarkson and Aaron P. Williams on the affidavit of the said B. W. Clarkson against Frank H. Deal, the relator herein, as defendant.”
    
      A. P. Williams, appellant, in person.
    
      Frank H. Deal, respondent, in person.
   Merwin, J.:

The appellant in September, 1899, was a justice of the peace. On the twenty-first of September the case of the People against Morrison, being a charge of a misdemeanor under section 117 of the Penal Code, was being tried before him as a Court of Special Sessions. "Upon this trial there was apparently considerable noise or other disturbance tending to interrupt the proceeding. On the twenty-seventh of September, upon an affidavit of B. W. Clarkson, a constable, to the effect that during the trial above referred to the relator, being in the court room, committed a criminal contempt, as -defined by subdivision 2 of section 2870 of the Code of Civil Procedure, the appellant issued a warrant for the arrest of the relator upon the charge of criminal contempt. Upon this warrant the relator was arraigned, but refused to plead. Instead thereof he presented an affidavit to the effect that the magistrate was an important witness for him and without whose testimony he could not safely proceed to trial, and. lie asked that the case.he transferred to some other justice under section 3151 of the Code of Civil Procedure. This application was denied. The relator was again called upon to plead to the charge of criminal contempt, but he refused to- do so, and a plea of not guilty was entered by direction of the court. A witness was sworn, but before any testimony was taken an adjournment was taken to September twenty-ninth. During this interval an alternative writ of prohibition was obtained, the hearing upon which occurred on the fourteenth of October, when the order appealed from was made. The appellant was enjoined from-proceeding any further in the contempt matter and was charged with costs.

The grounds upon which the writ was granted do not appear in the writ or orders. .It was probably not necessary that they should. (Code Civ. Proc. § 2094.) A writ of prohibition is a proper remedy when an inferior court either entertains a proceeding in which it has no jurisdiction or when, having jurisdiction, it assumes to exercise an unauthorized power. (Appo v. The People, 20 N. Y. 531; Thomson v. Tracy, 60 id. 31.) It is an extraordinary remedy and not iiitended to be a remedy for the correction of errors that may be investigated and determined by an appeal.

The proceeding of the appellant was concededly taken under section 2870 of the Code of Civil Procedure. The relator claims that this section gives no power to a justice to punish for a contempt occurring in a criminal case, and that, therefore,, the justice had ho jurisdiction in the proceeding. It is not claimed that there is any other remedy for contempt in such a case except' such as may be furnished by section 143 of. the Penal Code, which declares a con- ' tempt of court in certain cases to be a misdemeanor-. That remedy would in many cases be entirely inadequate to protect the judicial officer and produce that respect and decorum necessary to the 'proper administration of justicé. The power to act summarily would in many cases be -absolutely necessary for the magistrate to possess in order to enable him to conduct a trial or judicial proceed, ing in a decent and orderly manner.

The provision in section 2876 is a general one, and relates to-.conduct towards the justice in any judicial proceeding and to any dis turbarme directly tending to interrupt his official proceedings. The power is appurtenant to his office, and to be exercised for the purpose of enforcing respect and orderly conduct in.proceedings before him. A similar power is conferred by the Code of Civil Procedure ujion courts of record (§ 8) without reference to whether their jurisdiction is civil or criminal. In People ex rel. Taylor v. Forbes (143 N. Y. 219) it was held that a proceeding to punish a criminal contempt was not a special proceeding of a criminal nature. The fact that it is indictable is not inconsistent with the summary remedy. (People v. Meakim, 133 N. Y. 214, 225.)

It does not appear that the relator raised before the justice any question as -to his jurisdiction to entertain the proceeding under section 2870. The failure to do this has in some cases been held to be a good ground for refusing a writ of prohibition. (16 Ency. Pl. & Pr. 1128.) Passing that question, I am .of the opinion that the justice had jurisdiction under section 2870. It cannot be assumed that there was an intention to leave a justice practically powerless to enforce respect and good conduct in proceedings of a criminal character that might come before him.

The relator claims to sustain the writ upon the ground that the justice refused to send the.case to another justice, under section 3151 of the Code, upon the ground that the justice himself was a material witness for the relator. That section does not, I think, apply. The case was not one that could be tried before any other justice. The proceeding is only to be entertained, if at all, before the officer in whose presence, actually or constructively, the contempt is committed, and the officer lias the right to take into account, in many instances, his own personal knowledge.

It is further urged by the relator that the justice was prejudiced against him, and had, before the hearing, concluded to find him guilty. The relator’s allegations are only on information and belief.

Eo facts are shown'by competent proof sufficient to indicate that the justice would not be controlled by the evidence" that might appear on the trial. Undoubtedly he intended to prosecute the relator if the facts brought to his knowledge warranted it. The affidavit of the constable presented such facts. The justice, in his return to the alternative writ, says he has no knowledge of the guilt or innocence of the relator, and that if, on the hearing, it shall appear that the charge is erroneous, it will give him great pleasure to say so.

In view of the fact that the matter is not triable before any other officer (People ex rel. Doherty v. Commissioners, 84 Hun, 64; People ex rel. Burby v. Common Council, 85 id. 601), and that the relator has the right of review (People ex rel. Taylor v. Forbes, supra), the writ cannot, I think, be sustained on the ground of prejudice.

The' proceeding before the justice was not a criminal action. It was not instituted for the punishment of a crime, although criminal in its nature: It was the exercise of a power conferred upon the

justice for a particular purpose in regard to matters occurring in his own presence or hearing.' He was necessarily both accuser and judge. (People ex rel. Munsell v. Court of Oyer & Term., 101 N. Y. 245, 249.) The writ was granted against him. He was charged with costs, and he had, I think, the right to appeal. The constable, Clarkson, was not a complainant as in a criminal action. He was not a party to the proceeding. He made an affidavit of the facts within his knowledge, but asked for no relief on his own account.

Ho sufficient reason is, I think, apparent for granting the writ.

■ All concurred.

Order reversed, with ten dollars costs and disbursements. Motion denied, with ten dollars costs. The appellant is authorized to proceed in the matter as'if the writ had not been issued.  