Opinion
November 11, 1959
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Application denied and proceeding dismissed on the merits, without costs. Memorandum: Basically, this is not a matter in which a writ of prohibition may be issued. This extraordinary remedy should be allowed only when there is unusual necessity and no other adequate remedy ( People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 393; People ex rel. Childs v. Extraordinary Trial Term, 228 N.Y. 463, 468; Matter of Zelter v. Nash, 285 App. Div. 1214; see, also, Civ. Prac. Act, § 1285, subd. 4). It is unnecessary for us to reach or pass upon the question of the propriety of a Judge granting a show cause order returnable before a Trial Term at which he would preside on the same date that there is to be a Special Term for motions, at which the proceeding could properly be returnable. Furthermore, it appears that this defect, if it was a defect, was waived by petitioner. All concur.