The People of the State of New York ex rel. John H. Burbank, Appellant, v. John B. Wood, Justice of the Peace of the Town of Westfield, Richmond County; George W. Sanbeg and Others, Fisheries, Game and Forest Commissioners, Respondents

The People of the State of New York ex rel. John H. Burbank, Appellant, v. John B. Wood, Justice of the Peace of the Town of Westfield, Richmond County; George W. Sanbeg and Others, Fisheries, Game and Forest Commissioners, Respondents. Writ of proJiibition,—it is only granted where no other remedy exists. A writ of prohibition is an extraordinary remedy, and should not be issued when there are other perfectly adequate remedies. A party arrested on a warrant which charges him with violating section 189 of article 8 of chapter 974 of the Laws of 1895, as amended by chapter 383 of ■ the Laws of 1896, by interfering with oysters by dragging a rake over the oyster bed, is not entitled to an alternative writ of prohibition commanding the justice who issued the warrant to desist'from proceeding with the examination under such charge on the ground that the act of 1895 is unconstitutional, as, if the statute is unconstitutional, the accused may and should raise that question before the justice, and, if held by him, may also raise the question by Writ of habeas corpus, or upon the trial of the charge. Appeal by the relator, John H. Burbank, from an order of the Supreme Court, made at the Kings County Special Term and ■entered in the office of the clerk of the county of Richmond on the 2Sth day of August, 1897, denying his motion for an absolute writ of prohibition. Benjamin Patterson, for the appellant. George M. Pinney, Jr., for the respondents. [MAJORITY — Cullen, J.:] Cullen, J.: The relator was arrested and taken' before the respondent John B. Wood, justice of the peace, .on a warrant which was issued on the complaint of the respondent. Sanbeg, which charged that the relator had violated section 189, article 8, chapter 974 of the Laws of 1895, as amended by chapter 383 of the Laws of 1896, by interfering with and. disturbing the oysters of said Sanbeg, by dragging a rake over the oyster bed. Thereupon the relator, on the claim that the provisions of the statute in question are unconstitutional and void, obtained an alternative writ of prohibition, commanding the justice to desist from proceeding with the examination of the relator upon the charge on which he hacLbeen arrested. Upon the return to the alternative writ the application for an absolute writ was denied, and from that order this appeal is taken. So far as the statute in question authorized the seizure and sale of vessels and property which might be used in interfering with or disturbing oyster beds, it has been declared unconstitutional both by this court and by the Court of Appeals. (Colon v. Lisk, 13 App. Div. 195; 153 N. Y. 188.) The validity of the other provisions of the statute were not determined in that case. But if it be assumed that the relator is right in his contention that the provision making his trespass a crime is also invalid, we do not see that that justifies or requires the issue of a writ of prohibition. ■ The respondent Wood, as justice of .the peace, has jurisdiction to examine the case when any defendant is brought before him on an arrest, charged with crime. If the relator’s contention as to the law is correct, we must assume that, upon the examination, the justice will decide the law correctly, and the defendant- be discharged. If held for examination he can still raise the question of the validity of the statute when he is placed on trial, and, without even awaiting that time, he may seek his release on habeas corpus. There is thus ample opportunity to correct and redress any error that the magistrate may commit. The rule is well settled that “ The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity, or by appeal, and it is .not demandable as matter of right, but of sound judicial discretion, to be granted or withheld, according to the circumstances of each particular case.” (People ex rel. Adams v. Westbrook, 89 N. Y. 152.) “ It should not issue where there are other remedies perfectly adequate.” (People v. Supervisors, 31 How. Pr. 237.) Within this rule the application was properly denied. The order appealed from, should be affirmed, with ten dollars costs and disbursements. All concurred. Order.affirmed, with ten dollars costs and disbursements.