
    In the Matter of Ronald A. Santana et al., Petitioners, v. Edward H. McConnell et al., Respondents.
    Supreme Court, Putnam County,
    September 29, 1966.
    
      
      Michael J. Wallace for petitioners. Alfred BTdaver for respondents.
   James W. Bailey, J.

The petitioners, by means of an order to show cause, brought on this application for an order vacating and setting aside a certain order granted by Justice of the Peace Haste of the Town of Putnam Valley, Putnam County, New York, which order stayed the Sheriff of Putnam County from proceeding to enforce an order of possession of certain real property occupied by the respondents and allegedly owned by petitioners, who acquired title to said premises as purchasers at a Sheriff’s sale thereof.

From the record it appears that the Justice of the Peace may have exceeded his jurisdiction in staying the warrant of eviction, and that the petitioners may in a proper proceeding be entitled to relief.

Upon the instant application, however, this court may not grant the relief sought. Under the circumstances here presented, a proceeding under CPLR article 78 is the proper remedy for petitioners to pursue (see Matter of Elcock v. Boccia, 12 Misc 2d 955; Matter of Koleoglou v. Murphy, 33 Misc 2d 1036). Indeed, a perusal of the statutory components of that article indicates that petitioners must seek their relief thereunder. In CPLR 7802 (subd. [a]) it is provided that the expression “ body or officer ” includes every court, tribunal, board, corporation, officer or other person whose action may be affected by a proceeding under article 78. Moreover, CPLR 7803 (subd. 2) specifically lists among the questions determinable in such a proceeding the following: ‘ whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction ”. This is the precise situation from which petitioners seek surcease and was formerly resolved by the ancient writ ■of prohibition, which was specifically intended to prevent unsanctioned judicial or quasi-judicial action by an inferior court or tribunal (Matter of Lewis v. Mandeville, 201 Misc. 120; Matter of McCabe v. County Court of Bronx County, 24 Misc 2d 472; Matter of Arcuri v. Wagner, 30 Misc 2d 734).

Accordingly, this application is denied, without prejudice.  