In re Metropolitan Elevated Railway Co.

New York Supreme Court

In re Metropolitan Elevated Railway Co.

11 N.Y.S. 191, 64 N.Y. Sup. Ct. 130, 32 N.Y. St. Rep. 828, 57 Hun 130, 1890 N.Y. Misc. LEXIS 664

DecidedJune 6, 1890

StatusPublished

This text of 11 N.Y.S. 191 (In re Metropolitan Elevated Railway Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Metropolitan Elevated Railway Co., 11 N.Y.S. 191, 64 N.Y. Sup. Ct. 130, 32 N.Y. St. Rep. 828, 57 Hun 130, 1890 N.Y. Misc. LEXIS 664 (N.Y. Super. Ct. 1890).

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Opinions

Brady, J.

The general railroad act of 1850, c. 140, by section 18, provides that in proceedings of this character either party may, after the report of the ■commissioners is affirmed, appeal, and that such appeal shall be heard by the supreme court at any general or special term, a “notice thereof being given according to the rules and practice of said court.” The notice of appeal to be [192]*192given is one of that proceeding, and in accordance with the rules and practice of the court relating thereto. The appellant is not 'given the unconditional right to appeal to the general or special term of the court, but such of these tribunals as the court may designate for the hearing by its practice. It is enough to determine its mode of procedure therefore that a practice regulating it exists, although no formal rule declares it. The system o£ review adopted throughout the state requires an appeal to be taken to the general term from the special term. The object in view is to secure the consideration of the subject involved by several minds, and this is so guarded that the judge from whose decision the appeal is taken cannot sit in review. The practice of asking one judge to review another is hostile to this system, which would be the effect of allowing such an appeal as pressed herein. The legislature, although using the word “special” in section 18, supra, left the subject to the court, and the court has properly determined that the general term must be sought when an appeal is demanded. The pro forma confirmation does not relieve the appeal from the hostility suggested, inasmuch as the court of appeals vacated a judgment of the general term of this department for the reason that one of its judges was sitting at chambers when the report of the referee in the action was confirmed pro forma. He knew nothing of the contents of the record, and did not act upon them. It is not necessary, however, to extend these observations. The practice is settled, and must be conformed to, and it is that, in proceedings kindred to this, the appeal must be to the general term, and subject to the rules in regard to appeals which involves the printing. The methods regulating it are prescribed by rules 32, 35, 40, 41, and 42, and must prevail. It is no greater hardship upon a land-holder to subject him to these rules, than any other suitor who invokes the appellate power of the court, although it may be said that these proceedings are often of such a character that printing is a much greater necessity as an ally in the examination of tiiequestion involved. It may be said in conclusion that, although this court has been required on numerous occasions to consider appeals in these proceedings from the special term, this is the first one in which the attitude has been taken which the appellant attempts to maintain. For these reasons the order appealed from should be affirmed, with $10 costs and disbursements of this appeal.

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Brady, J.

The general railroad act of 1850, c. 140, by section 18, provides that in proceedings of this character either party may, after the report of the ■commissioners is affirmed, appeal, and that such appeal shall be heard by the supreme court at any general or special term, a “notice thereof being given according to the rules and practice of said court.” The notice of appeal to be [192]*192given is one of that proceeding, and in accordance with the rules and practice of the court relating thereto. The appellant is not 'given the unconditional right to appeal to the general or special term of the court, but such of these tribunals as the court may designate for the hearing by its practice. It is enough to determine its mode of procedure therefore that a practice regulating it exists, although no formal rule declares it. The system o£ review adopted throughout the state requires an appeal to be taken to the general term from the special term. The object in view is to secure the consideration of the subject involved by several minds, and this is so guarded that the judge from whose decision the appeal is taken cannot sit in review. The practice of asking one judge to review another is hostile to this system, which would be the effect of allowing such an appeal as pressed herein. The legislature, although using the word “special” in section 18, supra, left the subject to the court, and the court has properly determined that the general term must be sought when an appeal is demanded. The pro forma confirmation does not relieve the appeal from the hostility suggested, inasmuch as the court of appeals vacated a judgment of the general term of this department for the reason that one of its judges was sitting at chambers when the report of the referee in the action was confirmed pro forma. He knew nothing of the contents of the record, and did not act upon them. It is not necessary, however, to extend these observations. The practice is settled, and must be conformed to, and it is that, in proceedings kindred to this, the appeal must be to the general term, and subject to the rules in regard to appeals which involves the printing. The methods regulating it are prescribed by rules 32, 35, 40, 41, and 42, and must prevail. It is no greater hardship upon a land-holder to subject him to these rules, than any other suitor who invokes the appellate power of the court, although it may be said that these proceedings are often of such a character that printing is a much greater necessity as an ally in the examination of tiiequestion involved. It may be said in conclusion that, although this court has been required on numerous occasions to consider appeals in these proceedings from the special term, this is the first one in which the attitude has been taken which the appellant attempts to maintain. For these reasons the order appealed from should be affirmed, with $10 costs and disbursements of this appeal.

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11 N.Y.S. 191, 64 N.Y. Sup. Ct. 130, 32 N.Y. St. Rep. 828, 57 Hun 130, 1890 N.Y. Misc. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-metropolitan-elevated-railway-co-nysupct-1890.