82 N.Y. 95 | NY | 1880
The order appealed from is silent as to the ground upon which it was made, whether of law or fact. In such case, we are bound to suppose that the General Term examined the case before it upon the matters of fact involved, as well as upon the questions of law presented, and based the order made upon conclusions drawn from the former, as well as the latter. If it were not so, the party feeling aggrieved should have seen to it that it was expressed in the order that it was grounded upon conclusions of law only. In the case in hand the use of this rule will not harm the appellants, for it is palpable from the whole case, and especially from the prevailing opinion at General Term (to which we would not resort to contradict the order, or to explain it even unless it were ambiguous), that the refusal to confirm the report of the commissioners was because the General Term deemed it, as a matter of fact, improper, inexpedient and impolitic to do otherwise. Now this was the exercise of discretion by the General Term. With the appropriate exercise of discretion by that tribunal, this tribunal may not interfere. (The People ex relVanderbilt v. Stilwell,
And that interpretation is sustained by the adjudications in analogous cases. Thus it was held that the opposition to a motion to confirm a report of commissioners of estimate and assessment, in a street opening case, is in the nature of an appeal. (In reMt. Morris Square, 2 Hill, 14, 27.) If an appeal, or in the nature of one, then the Supreme Court is called upon to do more than a formal act; it must exercise its discretion or judgment on the case before it in all its features of fact and law. So In reN YC. H.R.R.R. Co. (
It is objected that the interpretation that we make gives too much force to the word confirm, and confers more power upon the General Term than the Constitution meant to do by the requirement that the determination of the commissioners to be operative should be confirmed by that tribunal. We do not rest our interpretation alone upon the bare sense of that word, but mainly upon the scope and purpose of the whole of this provision of the organic law, which culminate in the direction that the determination confirmed by the court may be taken in lieu of the consent of the property owners. The cases cited, such as Emmet
v. Hoyt (17 Wend. 416), Merritt v. Thompson (
It is also contended that the General Term is not, in the matter committed to it by this constitutional provision, a tribunal of original jurisdiction, but simply an appellate court. It is then urged that an appellate court has no power by implication to review findings of fact. Now although we concede that the proceeding to confirm, or otherwise, the determination is in the nature of an appeal, so that the General Term has not a mere formal function only, we cannot admit that the tribunal that has the power to appoint commissioners, whose duty it is to make report to the authority that created them, which report is of no effect until confirmed by that authority, is not a tribunal of original jurisdiction, so far as to have the function to review the action and conclusion of its commissioners in all the particulars that enter therein. So that the cases cited on this point, Wakeman v. Price (
It is plain, then, that the General Term, in granting the order from which an appeal is sought, exercised a judicial discretion vested in it by law, and that the order, as one resting in discretion, is not reviewable in this court.
The appeal should be dismissed.
All concur.
Appeal dismissed.