
    The People, ex rel. The New York Consolidated Stage Company vs. The Court of Common Pleas for the city and county of New York.
    The awarding of a writ of prohibition is discretionary. A judge of the supreme court may refuse to grant the writ, at chambers, or, which is the same thing, may revoke a writ which he has inadvertently issued.
    The writ is granted by the superior courts of Westminster, and in New York by the supreme court alone, to prevent inferior courts from exceeding their jurisdiction.
    Although the supreme court, in the exercise of its supreme superintending power over all other courts of original jurisdiction in the state, will issue the writ where visitorial or any other authority is usurped, it will refuse it where 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.
    The court of common pleas for the city and county of New York, being intrusted with equity powers in cases of fraud, as ample as those of the supreme court, has jurisdiction of an action to set aside, as fraudulent, an assignment made for the benefit of creditors, and to enjoin the assignee from holding possession of, or interfering with, the assigned property.
    To grant a writ of prohibition, in such an action, would be an attempt to deprive the common pleas of a jurisdiction which the law, in its wisdom, has thought proper to give it. ler Clerke, J.
    APPEAL from an order made at chambers, setting aside a writ of prohibition. The writ was. granted by the court, on motion, made ex parte, to restrain the court of common pleas, the judges thereof, and Hugh Smith and John Kerr from proceeding in an action, brought by Smith and Kerr in that court, to set aside an assignment of the property &o. of the Hew York Consolidated Stage Company to Augustus Schell for the payment of debts, and for a receiver of the property &c. of the said company, being an incorporated company doing business in the city of Hew York. A motion had been made for a receiver, and granted, but the order had not been entered. The complaint was made a part of the moving papers, upon which the motion to set aside the writ of prohibition was made and granted. The property assigned was “all the horses, mares, stages, sleighs, vehicles, harness, stables, licenses, goods, chattels, credits and effects belonging to the party of the first part, including the lease of the premises on Thirty-ninth street and Broadway, upon which their stables are erected, and all the property and estate real, personal and mixed, of every description and wheresoever situated.” The order granted was for the relators to show cause why “a receiver should not be appointed by the court to take charge of the property and effects” of the Hew York Consolidated Stage Company, and “ to preserve the same and all moneys arising from the prosecution of the business of the said company.” The judge granted the motion for a receiver upon the ground that the assignment was void as ultra vires, and also on the ground that the company was insolvent, and the assignment made in contemplation of insolvency. The proposed order appoints “a receiver to take charge of all the property and effects of the said defendants, The Hew York Consolidated Stage Company, of every kind and description whatever.” The writ was granted on the 17th of December, 1864, and was served on the parties immediately thereafter. On the 20th of December, on affidavit by Mr. Lawrence, an order was granted requiring the relators to show cause why the writ should not be set aside, upon several grounds stated in the order. On the 7th of January, 1865, the writ was set aside. So reason was assigned for the order.
    
      C. A. Rapallo ahd Wm. F. Allen, for the appellants.
    
      A. R. Lawrence, Jun. and H. W. Robinson, for the respondents.
   By the Court,

Clerks, J.

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 Mathew 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.” .(Bac. Abr. title Prohibition B; see also Ex parte Brandlacht, 2 Hill, 367.)

The determination of this question is, however, not necessary to 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 what is the same thing, in revoking a writ which he had inadvertently issued.

This 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 v. The New York Consolidated Stage Company and others, did not exceed its jurisdiction. In doing so, that court does not necessarily exercise the 'visitorial 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 powers in cases of fraud, with which the court of common pleas is as amply intrusted as the supreme court. To grant a writ of prohibition, therefore, in that action, would be an attempt to deprive the common pleas of a jurisdiction which the law in its wisdom has thought proper to give it; whereas this court is only allowed to issue the writ to prevent the usurpation 'of a jurisdiction. If in the exercise of its lawful 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 which it does not possess, or commit 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 visitorial or any other authority is usurped; it will refuse the writ where 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 v. Gould, (2 H. Black. 100,) for various reasons a most interesting case.

[New York General Term,

February 6, 1865.

The order should be affirmed, with #10 costs.

.Ingraham, Sutherland and Clerke, Justices.]  