In re Thayer

New York Supreme Court

In re Thayer

30 How. Pr. 276

DecidedFebruary 15, 1866

StatusPublished

This text of 30 How. Pr. 276 (In re Thayer) 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.

Bluebook

In re Thayer, 30 How. Pr. 276 (N.Y. Super. Ct. 1866).

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Opinion

By the court, Lott, J.

It was in our opinion decided by the court of appeals In the matter of Dodd (27 N. Y. R. p. 629), that an order made by a justice of the court under the act by virtue of which this proceeding was instituted, is final and conclusive, and not subject to review on appeal. It is evident from the opinion of the court that it was deemed immaterial whether the order was made in special term or in vacation. The decision is placed on the ground that the application under that act is not a special proceeding in the sense of the Code, but a special creation of the statute, designed to form a complete system in itself, and that the justice in acting under it only performed “ the functions which anight have been conferred on any administrative officer.”

We are aware that it has since been decided by the general term of this court in the first district, in Pinckney’s Case (18 Abb. p. 356), that an order made under the act by a justice at special term is appealable, but in the view we have taken of the decision by the court of appeals above referred to, we must be controlled by it.

It follows that the appeal must be dismissed without costs, under the circumstances of the case.

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By the court, Lott, J.

It was in our opinion decided by the court of appeals In the matter of Dodd (27 N. Y. R. p. 629), that an order made by a justice of the court under the act by virtue of which this proceeding was instituted, is final and conclusive, and not subject to review on appeal. It is evident from the opinion of the court that it was deemed immaterial whether the order was made in special term or in vacation. The decision is placed on the ground that the application under that act is not a special proceeding in the sense of the Code, but a special creation of the statute, designed to form a complete system in itself, and that the justice in acting under it only performed “ the functions which anight have been conferred on any administrative officer.”

We are aware that it has since been decided by the general term of this court in the first district, in Pinckney’s Case (18 Abb. p. 356), that an order made under the act by a justice at special term is appealable, but in the view we have taken of the decision by the court of appeals above referred to, we must be controlled by it.

It follows that the appeal must be dismissed without costs, under the circumstances of the case.

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Bluebook (online)

30 How. Pr. 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-thayer-nysupct-1866.