The petition to this court for the writ of prohibition showed presumptively that the Appellate Division in the Second Department, wherein the special proceeding sought to be prohibited originated, was not in session. It is certified in the return of Mr. Justice Woodward that that court was in session. On the issue thus presented, the material facts have been formally stipulated, and it is thus shown that the Appellate Division in the Second Department, on the day when the application was made to this court for the writ, was in recess; that the court on that day handed down numerous decisions; and that although the justices did not take the bench in the court room, five of *183the members of the court were at the court house in their, chambers, adjoining the court'room, and ready to assemble in court in case of necessity, but they did not take the bench that day. No application was made by the petitioner to the clerk of the court, or to the presiding justice, or to any associate justice thereof for a formal session of the court to hear an application for the writ. Section 2093 of the Code of Civil Procedure provides that an alternative writ of prohibition may be granted only by the Appellate Division of the Supreme Court, and further provides as follows: “Such a writ can be granted only at the term of the Appellate Division of the judicial department, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter, sought to be prohibited by the writ, originated, unless a term of the Appellate Division of said department is not in session; in which case, it may be granted at a term of the Appellate Division in an adjoining judicial department.”
This section clearly conferred jurisdiction on the Appellate Division in the First Department to grant the writ, unless on the day when the application was made, the Appellate Division in the Second Department was actually in session in the public court room, so that an application could have been made thereto as matter of right and not as matter of favor, depending on whether the justices would assemble as a court and grant a hearing. (See Comm. v. Gove, 151 Mass. 392, 393; Standard Dict., definition of “ Session; ” Matter of Cannon, 69 Cal. 541.) If on these facts the court was in session, then they were in session, not- in a public court room, but in chambers, where the public had no right, except by favor. That was not a session of the court within the contemplation of the statute. It does not follow, however, that this court should have taken, or should retain, jurisdiction. It now appears that, if an application had been made therefor, the Appellate Division in the Second Department would have convened at once to hear the motion for the writ. In these circumstances, the orderly administration of justice requires that the application should have been made to the Appellate Division in the Second Department. If the learned district attorney had known that he could have had the Appellate Division in the Second Department convened *184at once to hear the application, he doubtless would have applied there; and had that been known, this court should not have entertained the application, at least' until it appeared that a session of the court in the Second Department could not be obtained. • I, therefore, on these grounds, concur in the dismissal of the writ. " :
Writ dismissed. Order to be settled on notice.