
    In the Matter of Robert Thompson et al., Petitioners, against William H. Murray, Justice of the Supreme Court, et al., Respondents.
    Third Department,
    September 30, 1946.
    
      
      Paul J. Kern for petitioners.
    
      Sharon J. Mauhs for Spencer C. Young, respondent.
    
      Emanuel H. Bloch for Civil Bights Union and Congress of Civil Constitutional Liberties, amicus curies.
    
    
      Jacob Goldsmith, intervener, for Industrial Government Party.
    
      Arthur J. Harvey for Socialist Workers Party, amicus curice, and observer for American Civil Liberties Union and National Lawyers Guild.
   Per Curiam.

Respondent, Justice William H. Murray, had jurisdiction to sign the order to show cause but it should have been made returnable at a term of the Supreme Court then sitting in Albany County, the place of venue of the special proceeding, or to a special term thereafter to be convened in Albany County. In making the order returnable before himself at chambers he acted in excess of his jurisdiction. This, however, does not defeat the proceeding. The proceeding may be transferred. (Civ. Prac. Act, § 110.)

Brewster, J.

(concurring). Respondents concede that the jurisdiction upon which they rely depends for its existence upon a rule of this court promulgated November 16, 1945, in connection with the fixing of trial and special terms. That rule provides that special terms are always open at Supreme Court chambers when a justice is present for motions requiring notice upon orders to show cause granted by the justice before whom they are returnable. Only the court is vested with jurisdiction to determine the proceeding now pending before respondent Murray. Such determination may not be called forth by a mere motion. It results after inquiry by the court, however summarily,, into such questions of law or fact as are presented and culminates in a final order in the proceeding. The prescribed inquiry and determination in question by the court is not within the purview or meaning of the rule above referred to.

Heffernan, J.

(dissenting). I dissent and vote to deny the application.- Justice Murray had jurisdiction to make the order. It was properly returnable at a special term in Rensselaer County at which he presided. The court had jurisdiction to try the questions involved in any county within the third judicial district.

Hill, P. J., Foster and Lawrence, JJ., concur in Per Curiam opinion; Brewster, J., concurs in a separate memorandum; Heeferxan, J., dissents in a memorandum.

Motion for order of prohibition granted.

The order to show cause is amended so as to be returnable before the term of the Supreme Court appointed to be held in Albany County, on the 7th day of October, 1946, at two o’clock in the afternoon.

Leave to appeal to the Court of Appeals granted.  