
    The People of the State of New York ex rel. Meyer W. Livingston, Appellant, v. William E. Wyatt, a Justice of the Court of Special Sessions of the First Division of the City of New York, Respondent.
    First Department,
    May 18, 1906.
    Writ of prohibition — when writ will not issue to correct errors of law — writ ,to restrain magistrate from issuing subpoena refused —• when return conclusive — when information sufficient.
    The extraordinary writ of prohibition which issues, to stay proceedings in excess of jurisdiction may not be invoked to prevent an anticipated injury or injustice on the theory that the court may erroneously decide that an invalid subpoena is valid or that an information is sufficient to give jurisdiction when it is not sufficient. ■'
    
      Some nepessity must be shgwn for the issuance of this high writ. 'When" jurisdiction exists it will not issue to prevent errors of law or procedure. ' It will only issue when there i? no. other adequate remedy at law, in equity, or by . appeal. -
    The fact that the return of a justice of the Court of General Sessions to a petition for a writ of prohibition does not set out the information upon which he assumed to act., and to issue a subpoena, does hd¡t warrant a conclusion that no proper information was made, for it is the duty of the magistrate to keep an, information secret. Such return, when not denied on the application for a writ .absolute, is conclusive, and if the petitioner desires the information returned he should move for a further return.
    The information upon’which a magistrate is authorized, to act need not be in the form of a deposition.
    Appeal by the. relator, Meyér W. Livingstbn, from an order óf the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 5th day of February, 1906, denying the application of said relator . for an absolute writ of prohibition on the return of aú alternative writ, and the papers upon which the order pherefor was. granted," and vacating said alternative writ.
    
      Edward Lauterbach [Alfred Lauterbach and P. J. Rooney with him on the brief], for the appellant.
    E. Crosby Kindleberger, for the respondent.
   Laughlin, J.:

The petitioner was served with a paper in the form of a subpeena. signed by William E. Wyatt,, justice of the Court of Special Sessions . of the first division of the city of Mew York, commanding him to 'appear before said justice at a time and place therein specified and be examined on an investigation which was to be made,- by said magistrate, for . the purpose pf ascertaining whether an offense, which he had reason to suppose had been conhnitted, had in fact been committed, and to bring with, him and produce certain books, papers and records,' in his possession or .undpr his-control, of thefirm of. Flaw* & Erlanger, and also the originals and.copies of certain and all theatrical agreements entered into between '.Marc Flaw, Abraham L. Erlanger, Samuel F. Meidlinger, J. Fred Zimmerman, Charles Frohman and Al Hay man, and between them or any of them and the firm of Flaw & Erlanger and certain other persons therein named. The witness neither appeared pursuant'to the command of the subpoena nor moved to have it vacated or modified, but he applied for the writ of prohibition, for the purpose of prohibiting the justice from proceeding further with the investigation referred to in the subpoena and prohibiting him from compelling or attempting to compel the relator or miy other witness •who had been subpoenaed to appear or testify.

If, as the relator claims, the magistrate was proceeding without jurisdiction or the subpoena was void — a question which need not now be decided — he could have disregarded it and have shown the lack of jurisdiction or invalidity of the subpoena as a defense should any attempt be made to punish him for contempt, and could have-obtained his release on habeas corpus. (People ex rel. Ballin v. Smith, 184 N. Y. 96.) Other witnesses should be left to stand upon or waive their rights. It might be that the magistrate had jurisdiction even though the subposna served on him were void, and that subpoenas served upon others were valid, or that the’ subpoenas served upon him or them, if void, would be superseded by-others which would be valid. On the presentation of a sufficient information the magistrate is given jurisdiction to take depositions, issue subpoenas, and if the evidence be sufficient to issue a warrant of arrest. (Code Crim. Proc. §§ 148-150 ; People v. Hicks, 15 Barb. 167 ; Blodgett v. Race, 18 Hun, 132 ; State ex rel. Long v. Keyes, 75 Wis. 288.) The extraordinary writ of prohibition by means of which through the courts the people assert their dignity to stop proceedings, without or in excess of jurisdiction, may not be invoked to prevent an injury or injustice apprehended on the theory that a court or magistrate may erroneously decide that an invalid subpoena is valid, or that an information is sufficient to give him jurisdiction to proceed if it be not. Some. necessity must be shown -for the issuance of this high writ. When jurisdiction exists it will not issue to correct or prevent efrors of law or procedure, and it will only issue to redress a grievance for which there is no other adequate remedy at law, in in equity or by appeal. (People ex rel. Burbank v. Wood, 21 App. Div. 245 ; People ex rel. Patrick v. Fitzgerald, 73 id. 339 ; People ex rel. Hummel v. Davy, 105 id. 598; affd., sub nom. People ex rel. Hummel v. Trial Term, 184 N. Y. 30 ; People ex rel. Ballin v. Smith, Id. 96 ; Alexander v. Crollott, 199 U. S. 581 ; Matter of Rice, 155 id, 396.) The magistrate was evidently assurn-' ing to proceed .under sections 148,,149 and 150 of the Code of Criminal Procedure. The petition shows that no information has been presented to him that a crime had been committed and that-, therefore, . he was without jurisdiction. Those allegations seem to have been warranted by admissions made by .the magistrate to counsel for the relator,- at that time representing another witness. The parts of the return, however,, not denied on the application for -the absolute writ, must be taken as true and may not b'e disregarded because the information is not set forth. The return shows that the magistrate had before him a sufficient information in .writing, charging that a particular specified crime had been committed and. charging certain ■ persons with the commission thereof, and not charging the relator therewith and that the magistrate has decided that the facts- set forth, in the information constitute a crime. If the information \ should have been returned a motion should have been made for a further return. Wo are of opinion, however, that it. was the duty" of the magistrate to keep the information secret, at least until some' pressing necessity or urgency" arises that may induce a superior court to require its production.- '

Section 145 of the Code of Criminal Procedure defines an information as follows: “ The information is the allegation made to a mag- . istrate, that a-person has been guilty of some designated crime.” It is the duty of a magistrate when an information is laid before him “ of the commission, "of -a crime ” to examine on oath the “informant or prosecutor and any witnesses "he may produce, and take their depositions in writing, and cause them to be subscribed' by the parties making them.” (Code Crim. Proc. § 148.) Section . 149 provides that “ the depositions must set forth the facts- stated by the prosecutor and his witnesses, tending to establish the commission -of the crime and the guilt of .the -defendant.”' I-t' then - becomes the duty of' the magistrate, if he be satisfied,, from the depositions “.that the crime complained of has been committed, and. that there is reasonable ground to believe that the defendant has,committed it ” to issue a warrant, for the arrest of the defendant. ' (Code Crim. Proc, § 150.) After a defendant has. been arrested under • such-a warrant and brought before a magistrate the subsequent pro- - ceedings are regulated by the provisions of chapter I of title 3 of part 4 of the Code of Criminal Procedure. Section 188 — the first section in that chapter— requires the magistrate to. inform the defendant of the charge made against him. Section 190 provides that the magistrate shall hold an examination unless the defendant waives examination, and section 194 provides that on the examination “the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, or elects to have the examination, must summon for cross-examination the witnesses so examined, if they be in the county.” On such examination after the arrest of the defendant the magistrate may exclude the public but. must admit the prosecutor and his counsel, the clerk of the court, the Attorney-General,, the district attorney of the county, the defendant and his counsel and the officer having the defendant in custody. (Code Crim. Proc. § 203.) Section 205 provides, among other things, that the magistrate or Ms clerk must keep the depositions taken on the information or on the examination until they are returned to the proper court; “ and must not permit them tó be inspected by any person, except a judge of a court having jurisdiction of the offense, the Attorney-General, the district attorney of the county, the defendant and his counsel, and the complainant and his counsel.”

If the defendant be held to answer the charge the magistrate or his clerk is required On payment of the fees prescribed to'furnish a copy of the depositions to the defendant or his counsel or to permit either of them to take a copy. ' (Code Crim. Proc. § 206.) It is quite plain from these provisions that the information, although it must be in writing and must charge the commission of a crime by some particular individual or corporation, need not be a deposition sufficient to justify the issuance of a warrant thereon,,for if such were the requirement the Legislature would not have provided that the magistrate instead of acting "on the information must take depositions and from them and" not upon the information decide whether a warrant should be issued. It has been held that the information may be made wholly on information and belief which of course would be no legal evidence 'of the commission of a crime but' was deemed sufficient by the Legislature to set the law in motion. (Blodgett v. Race, 18 Hun, 132 ; People v. Hicks, 15 Barb. 153 ; State ex rel. Long v. Keyes, 75 Wis. 288.)

It is manifest that the ends of justice would often be defeated by the flight of the .accused, if the talcing of depositions following the filing of an information and before sufficient evidence is adduced •to warrant the arrest, should -be public; and the- provisions of the Code of Criminal Procedure, to ydiich reference has been made, clearly contemplate, I think, such faking of’ depositions should he conducted- in secret. (See People ex rel. Kenney v. Cornell, 6 Misc. Rep. 568 ; People ex rel. Lewisohn v. Wyatt, 39 id. 456.) The learned counsel for the relator urges that there has been an abuse, of power and judicial process and that, therefore, the writ should issue. ' > '

’ If a magistrate should proceed unfier-these provisions of the Code of Criminal Procedure without jurisdiction or in excess, of his jurisdiction a remedy will be found and afforded by the courts to witnesses or parties prejudiced thereby. If there should be'no appropriate and adequate remedy perhaps the writ of prohibition would : issue but we see no necessity or . propriety therefor on the record ■ presented in the case at bar. - - •'

.For the reasons stated the relator was not entitled to the writ and .. - the order should he affirmed.. ■' ,

Ingraham, McLaughlin,. Clarke and Houghton, JJ.,. concurred.

Order affirmed.. Order filed.  