In re Howe

72 N.Y.S. 866 | N.Y. App. Div. | 1901

Per Curiam :

Without expression of any opinion as to whether an order made pursuant to the provisions of section 3287 of the Code of Civil Procedure taxing the fees of the register is appealable to this court, we are clear that we cannot entertain this appeal upon the record now before us. The section quoted requires that the register must, upon written demand, cause the fees to be taxed by a justice of the Supreme Court. Before we can in any event review the taxation, the decision of the justice must be embodied in an order made by him as such justice. There is no such order in the record before us, nor does it appear that such order was ever made. The record does contain an order made at Special Term whereat a Supreme Court justice presided, but the Special Term had no jurisdiction whatever in the premises. The learned counsel for the respondent cites several cases where it would seem that similar matters were considered, but not one of them discusses the practice involved in this case. • Matter of Snyder (12 App. Div. 139), cited by him, did relate to a taxation under this section of the Code, but the point here considered was neither raised nor discussed. The reporter states that it was an appeal from an order of the Supreme Court made at the Herkimer Special Term, and also that a taxation was had “ before a justice of this court.”

But we are asked to disregard this palpable defect in the proceedings as shown by the record, and the cases of Phinney v. Broschell (19 Hun, 116) and Matter of Knickerbocker Bank (19 Barb. 602) are cited to us as precedents. Phinney v. Brosehell involved an order of service by publication in proceedings by attachment, wherein the order was entitled at a Special Term, with a.direction for entry by the ¡justice who presided thereat, but the order was in fact made, and signed out of bourt at the judge’s private chambers. The court held that the caption was not conclusive; that the recitals showed that it was a justice’s order, and that it did not appear that the order had ever been entered. This casé presénts no facts in common with those in the cases cited, save perhaps the single one of a line of recital in the Special Term order, while the “ statement ” in the record before us reads that such order was entered on August 16, 1901. In the Knickerbocker, Bank Case (supra) it was held that the mere entitling of an order as at Special Term does not vitiate an order appointing a receiver. The case at bar does not concern an order made in an action or in a special proceeding, of which the Supreme Court had jurisdiction, but the decision, sought to be reviewed was made under a special statutory authority which conferred power upon a justice of the Supreme Court, and upon him only (save a county judge), to tax the legal fees of a public official, not incidental to any matter pending in the Supreme Court, but arising out of the. charges for. services rendered in a public office.

We think that for these reasons the appeal should be dismissed, without costs to either party..

Present — Goodrich, P. J„ Bartlett, Hirschberg, Jenks and Sewell, JJ.

Appeal dismissed, without costs to either party..