Dodd v. Averill

35 N.Y.S. 1070, 14 Misc. 518, 70 N.Y. St. Rep. 715

• Court: New York Court of Common Pleas
• Decided: December 2, 1895
• Status: Published

Opinion

PRYOR, J.

WTiile the evidence as to the nonresidence of the defendant is quite impressive, it cannot be denied that there is proof to the contrary sufficient to support the order vacating the attachment. Such being the case, whether the attachment should stand rested in the discretion of the court below, and its action in vacating it is not reviewable by an appellate tribunal. Sartwell v. Field, 68 N. Y. 341; Allen v. Meyer, 73 N. Y. 1; Glenney v. Stedwell, 64 N. Y. 120, 128; Jenkins v. Putnam, 106 N. Y. 272, 276, 12 N. E. 613; Claflin v. Baere (Ct. App.) 59 How. Prac. 20. We have uniformly held that on appeal from the city court we will not review its action upon matters of discretion. Keller v. Feldman, 2 Misc. Rep. 179, 181; Pots v. Herman, 7 Misc. Rep. 4, 27 N. Y. Supp. 330; Capel v. Lyons, 3 Misc. Rep. 73, 22 N. Y. Supp. 378; Tooker v. Booth, 8 Misc. Rep. 304, 28 N. Y. Supp. 727. It not being apparent but that the attachment in question was vacated in the exercise of discretion, we have no jurisdiction to review the order of the city court. Brooks v. Construction Co., 93 N. Y. 647.

Appeal dismissed, with costs. All concur.