Opinion
September 29, 1949.
Motion for a stay pending an appeal from an order of the Tioga County Special Term of the Supreme Court denying relief in the nature of prohibition in a proceeding under article 78 of the Civil Practice Act. The petitioner stands charged with assault, third degree, in the Justice's Court of the town of Chenango, Broome County, N.Y. Both in the proceeding and by this motion he seeks to restrain the Justice of the Peace from considering and determining a motion pending in the criminal action for the joint trial of petitioner and another. Inasmuch as petitioner and the other defendant were not jointly charged with the crime there is no authority for their joint trial in the Justice's Court and we assume that the Justice of the Peace will so determine. Until such time as the contrary may appear both the proceeding under article 78 of the Civil Practice Act and this motion are premature. Motion denied, without costs, and the intermediate stay embodied in the order to show cause dated September 16, 1949, is in all respects vacated. Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ., concur.