Health Department v. Rector

New York Court of Common Pleas

Health Department v. Rector

32 N.Y.S. 120, 10 Misc. 738, 65 N.Y. St. Rep. 215

DecidedJanuary 15, 1895

StatusPublished

This text of 32 N.Y.S. 120 (Health Department v. Rector) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Health Department v. Rector, 32 N.Y.S. 120, 10 Misc. 738, 65 N.Y. St. Rep. 215 (N.Y. Super. Ct. 1895).

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Opinion

DALY, C. J.

This is an application to the general term (January, 1895) to amend a prior order of the general term (March 7, 1892). 18 N. Y. Supp. 948. An order having been made by the general term in March, 1892, permitting an appeal from its decision to the court of appeals (the action having been commenced in a district court), it is now asked that the general term amend such order by inserting therein the ground upon which it was made, viz. that a question of law is involved, which ought to be reviewed by the court of appeals. Such a statement in the order, where the amount of the matter in controversy, as in this case, does not exceed $500, is required, in order to authorize an appeal to the court of appeals. Laws 1874, c. 322; Squire v. McDonald, 138 N. Y. 554, 34 N. E. 398; Bastable v. City of Syracuse, 72 N. Y. 64. The application for the amendment is opposed on the ground that we have no jurisdiction to make the amendment, and De Freest v. City of Troy, 34 Hun, 580; Van Horne v. Campbell, 101 N. Y. 608, 3 N. E. 901,—are cited as authority. The last-named case holds that the power to allow an appeal to the court of appeals can only be exercised by the general term which rendered the decision, or by the next general term held after judgment thereon has been entered. The case has no bearing upon the question of amending an order whereby permission to appeal to the court of appeals was heretofore and seasonably granted. The court possesses unrestricted power, at all times, to make the record declare the truth as to its judgment. National City Bank v. New York Gold Exch. Bank, 97 N. Y. 645. In that case it was held that the general term had power to amend its order after an appeal had been taken therefrom to the court of appeals, by adding a statement that the reversal was upon the facts as well as the law, although the effect was to give the respondent a better position in the court of appeals; following Guernsey v. Miller, 80 N. Y. 181, and Buckingham v. Dickinson, 54 N. Y. 682. If the decision appealed from could be amended after appeal, the decision upon the applica[121]*121tion for leave to appeal is equally amendable. The amendment allowed in the cases cited is more radical than that which is now applied for, and the decisions amply justify the relief asked. Motion granted, without costs. All concur.

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DALY, C. J.

This is an application to the general term (January, 1895) to amend a prior order of the general term (March 7, 1892). 18 N. Y. Supp. 948. An order having been made by the general term in March, 1892, permitting an appeal from its decision to the court of appeals (the action having been commenced in a district court), it is now asked that the general term amend such order by inserting therein the ground upon which it was made, viz. that a question of law is involved, which ought to be reviewed by the court of appeals. Such a statement in the order, where the amount of the matter in controversy, as in this case, does not exceed $500, is required, in order to authorize an appeal to the court of appeals. Laws 1874, c. 322; Squire v. McDonald, 138 N. Y. 554, 34 N. E. 398; Bastable v. City of Syracuse, 72 N. Y. 64. The application for the amendment is opposed on the ground that we have no jurisdiction to make the amendment, and De Freest v. City of Troy, 34 Hun, 580; Van Horne v. Campbell, 101 N. Y. 608, 3 N. E. 901,—are cited as authority. The last-named case holds that the power to allow an appeal to the court of appeals can only be exercised by the general term which rendered the decision, or by the next general term held after judgment thereon has been entered. The case has no bearing upon the question of amending an order whereby permission to appeal to the court of appeals was heretofore and seasonably granted. The court possesses unrestricted power, at all times, to make the record declare the truth as to its judgment. National City Bank v. New York Gold Exch. Bank, 97 N. Y. 645. In that case it was held that the general term had power to amend its order after an appeal had been taken therefrom to the court of appeals, by adding a statement that the reversal was upon the facts as well as the law, although the effect was to give the respondent a better position in the court of appeals; following Guernsey v. Miller, 80 N. Y. 181, and Buckingham v. Dickinson, 54 N. Y. 682. If the decision appealed from could be amended after appeal, the decision upon the applica[121]*121tion for leave to appeal is equally amendable. The amendment allowed in the cases cited is more radical than that which is now applied for, and the decisions amply justify the relief asked. Motion granted, without costs. All concur.

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Bluebook (online)

32 N.Y.S. 120, 10 Misc. 738, 65 N.Y. St. Rep. 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/health-department-v-rector-nyctcompl-1895.

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