In a proceeding under article 78 of the former Civil Practice Act, against the respondents, the People, the District Attorney and the County Court of Nassau County, petitioner appeals from an order of the Supreme Court, Nassau County, dated March 14, 1963, which dismissed the petition (see opinion 38 Misc.2d 710, 238 N.Y.S.2d 864).
This proceeding has a dual purpose. It is in the nature of prohibition to prevent the respondents from proceeding with the criminal prosecution in the Nassau County Court of the pending indictment against petitioner for his (first degree) assault upon his wife. It is also in the nature of mandamus to compel the transfer of the pending criminal action against petitioner from the County Court to the new Family Court (N.Y. Const. art. 6, § 13; Family Court Act [L.1962, ch. 686, as amended, eff. September 1, 1962]).
Prohibition is not available to a petitioner whose rights can be adequately protected on appeal (Matter of Harris Motors v. Klapp, 296 N.Y. 242, 72 N.E.2d 305; Kenler v. Murtagh, 12 A.D.2d 662, 209 N.Y.S.2d 834; Matter of Duchin v. Peterson, 12 A.D.2d 622, 208 N.Y.S.2d 458, leave to appeal denied 9 N.Y.2d 609, 210 N.Y.S.2d 1025, 172 N.E.2d 293; Matter of Brandenburg v. Court of General Sessions of New York County, 189 Misc. 4, 71 N.Y.S.2d 442, affd. 272 App.Div. 1013, 74 N.Y.S.2d 906).