Kreizer v. Allaire, 16 Misc. 6

16 Misc. 6 | N.Y. App. Term. | 1896

McAdam, J.

The position of .this court with respect to the City Court is the same as that occupied by the .Court of Appeals in- regard to this court; and thé rules that govern.the Court of Appeals in passing upon appeals from the Supreme Court are applicable to matters cbming before this term. McEteere v. Little, 8 Daly, 167; 7 Abb. N. C, 374; Walsh v. Schulz, 12 Daly, 103; Keller v. Feldman, 2 Misc. Rep. 179; 29 Abb. N. C. 426. The same reason that prevents the Court of Appeals from reviewing matters resting in the discretion,of other courts applies, with full force to appeals brought to this' court from discretionary" orders of the City Court. Ibid. .

The decision- of the Special Term of the Qity Court upon the motions in question was reviewable by the General Term of that court; but the- orders vacating the orders of arrest are not appeal-able to this court unless they show they were vacated for want of power. Allen v. Meyer, 73 N. Y. 1; Williams v. Tel. Co., 93 id. 640; Brooks v. Mexican Co., Id. 647; Hudson R. T. Co. v. R. R. Co., 121 id. 397.

Unless the contrary appears in the orders appealed from, it must be assumed they were made by the City Court in the exercise of its discretion. Clarke v. Lourie, 82 N. Y. 580. The opinion of the court below cannot be resorted to for the determination of the ground on which it acted in reaching its decision. Clark v. Lourie, supra; Dibble v. Dimick, 143 N. Y. 554, 555.

.If the' General Term had incorporated in.its orders that the decision of the Special Term judge was sustained by it on the ground that the action was not maintainable, a question of law would have been raised which might he reviewed here. Anderson v. Anderson, 112 N. Y. 106; Birge v. Berlin Iron B. Co., 133 id. 477. But the orders contain no such recital; nor do they refer to and make the opinion part of the record, as was done in Tolman v. R. R. Co., 92 N. Y. 353.

As the record comes before ns, it merely discloses the exercise of a lawful discretion by the City Court, and the appeals must, therefore, be dismissed, with costs.

Daly, P. J., and Bisohoff, J., concur.

Appeals dismissed, with costs.