Marco v. Di Giovanna (13 A.D.2d 774, 1961)

Application by petitioner, William Marco, pursuant to article 78 of the Civil Practice Act, to prohibit the Honorable Anthony J. Di Giovanna, individually and as a Justice of the Supreme Court, Kings County, from entering an order or taking any further proceedings upon a motion, now pending before him, to vacate a judgment in an action entered by the petitioner without notice to the defendants in such action; such judgment having been entered upon an order and decision of this court (Marco v. Sachs, 12 A D 2d 774). Cross motion by the respondent Justice of the Supreme Court, pursuant to section 1293 of the Civil Practice Act, to dismiss the petition on the grounds that it fails to state facts sufficient to entitle the petitioner to the relief sought or to any relief and that it is insufficient in law on its face. Application for order of prohibition denied, without costs. Cross motion to dismiss petition denied-Respondent has rendered his decision granting the motion of the defendants in the action to vacate said judgment, on the ground that there was no authority in law or in the order of this court for the entry of a judgment. The order on such decision has not yet been signed. Under the circumstances disclosed by this record, the extraordinary remedy of prohibition against the respondent Justice of the Supreme Court is denied in the exercise of discretion. Nolan, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.