The grand jury of the Court of General Sessions of the Peace held in and for the county of New York had found two indictments against the relator, charging him with the crime of subornation of perjury. These indictments had been transferred to the criminal branch of the Supreme Court which was held by Justice DAVY, before whom the district attorney contemplated the trial of the charges. Thereupon the defendant moved the court for an order quashing the indictments upon the ground that he had been compelled to testify against himself before the grand jury. This motion was denied and then the relator procured an alternative writ prohibiting the justice from proceeding with the trial until the further order of the Appellate Division. Subsequently the matter was brought to a hearing before that court, resulting in an order denying the relator's application for an absolute writ of prohibition, as a matter of law, and not in the exercise of discretion, and the quashing of the alternative writ.
The writ of prohibition is one of the state writs authorized by the Code of Civil Procedure, which may issue out of the Supreme Court restraining a judge or party from further
proceeding in the action or special proceeding complained of. (Code Civ. Pro. §§ 2091-2096.) The writ does not issue as a matter of right, but only in the sound discretion of the court in cases of supreme necessity where the grievance cannot be redressed by ordinary proceedings at law or in equity or by appeal. (People ex rel. Adams v. Westbrook, 89 N.Y. 152;People ex rel. Burbank v. Wood, 21 App. Div. 245; People exrel. Mayor v. Nichols, 79 N.Y. 582, 591; Alexander v.Crollott, 199 U.S. 580.) We are thus brought to the consideration of the question as to whether the relator had a remedy for his grievance by ordinary proceedings either at law or in equity or by appeal. We think he did, and that he availed himself of the remedy when he moved in the action for a quashing or a dismissal of the indictments. This motion was based upon affidavits and the minutes of the grand jury so that all of the merits were fully brought before the court for determination. The Code of Criminal Procedure provides that "hereafter, the only mode of reviewing a judgment or order in a criminal action or proceeding or special proceeding of a criminal nature is by appeal." (§ 515.) An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, and upon the appeal any actual decision of the court in any intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 485, may be reviewed. (§ 517.) The indictments, as we have seen, had been found and returned to the court by the grand jury. The criminal actions were, therefore, pending. The motions made to dismiss the indictments were motions in the actions and necessarily appear upon the minutes of the court, required to be kept by the clerk. Section 485 provides that the judgment roll must consist of the following papers: "1. A copy of the minutes of a challenge interposed by the defendant to a grand juror, and the proceedings and decision thereon. 2. The indictment and a copy of the minutes of the plea or demurrer. 3. A copy of the minutes of a challenge, which may have been interposed to the panel of the trial jury, or
to a juror who participated in the verdict, and the proceedings and decision thereon. 4. A copy of the minutes of the trial. 5. A copy of the minutes of the judgment. 6. A copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of judgment. 7. The case, if there is one." While a motion to dismiss an indictment is not specifically mentioned in the provisions of this section, yet we are clearly of the opinion that it is embraced in the general provisions thereof and is included and becomes a part of the judgment roll. It would necessarily appear, in the case, under subdivision 7 of the section and also as a part of the minutes of the trial under subdivision 4. The ruling thereon is, therefore, under section 517 reviewable by the Appellate Division, and the determination of that court may be reviewed by an appeal to this court under section 519, subdivision 3, which authorizes us to review a final determination of the Appellate Division affecting a substantial right of the defendant. So far as the questions of practice are concerned this case is very similar to that of People v. Glen
(173 N.Y. 395). In that case a motion was made to dismiss the indictment and the motion was denied. In that case we held that the defendant had not only the right to make the motion but that he was entitled to have it reviewed, and we did review the questions involved in that case upon the merits.
It follows, therefore, that the relator has a complete remedy under the Code for the grievance complained of and that he has availed himself of such remedy; that the review of the rulings made thereon is by appeal and not by writ of prohibition.
The order of the Appellate Division should be affirmed.