(dissenting). We can all agree that removal of the case for trial from the Supreme Court to the Herkimer County Court did not divest the Supreme Court of its jurisdiction over the Grand Jury minutes (People ex rel. Hirschberg v. Supreme Ct., 269 N. Y. 392; People v. Green, 201 N. Y. 172; Code Crim. Pro., § 39, subd. 2-a) and that Justice Aulisi had jurisdiction to entertain the motion (Rules Civ. Prac., rule 63, par. 4). In so doing, Justice Aulisi acted within the scope of his jurisdiction and not in excess thereof by overruling the People’s objection thereto and ordering that a copy of the Grand Jury minutes be furnished the court “ for its examination and that the trial of the defendants * * * be stayed until this Court shall determine whether said minutes shall be furnished said defendants ”.
The Appellate Division in denying this application for an order of prohibition found that Justice Aulisi in the exercise of discretion could inspect such minutes (Code Crim. Pro., § 952-t; cf. People v. Sweeney, 213 N. Y. 37) and that such discretion had not been abused when he stayed the trial to permit inspection, for, as they said, “ Otherwise the application would have been of no avail ” (Matter of Lyons v. Ward, 272 App. Div. 120, affd. sub nom. Matter of Lyons v. Fisher, 297 N. Y. *385617). In so holding, the court below declined to assume that Justice Aulisi would direct that the minutes be furnished to defendants and that the indictment would be dismissed. Prohibition, as we know, is an extraordinary remedy and should only be invoked when it is clearly demonstrated that the court will exceed its jurisdiction. There is nothing in this record indicating that Justice Aulisi proposes to exceed his jurisdiction. As a matter of fact, the contrary appears. Justice Aulisi did not entertain a motion to dismiss the indictment as the People would have us believe. His order dealt only with the right of the Supreme Court to inspect and to stay the trial pending such inspection. Accordingly, I would confine our review to a consideration of jurisdiction vis-a-vis the order appealed from (Matter of Hogan v. Court of Special Sessions, 296 N. Y. 1) which depended in the first instance on the exercise of discretion (People v. Sweeney, supra). When so viewed, the order denying the District Attorney's application for an order of prohibition should be affirmed.
Lewis, Ch. J., Conway, Desmond and Fboessel, JJ., concur with Fuld, J.; Dye and Van Vooehis, JJ., dissent in an opinion.
Ordered accordingly.