In re the Incorporation of the Village of Cedarhurst

121 A.D. 576, 106 N.Y.S. 275, 1907 N.Y. App. Div. LEXIS 1845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1907
• Status: Published

Opinion

Miller, J.:

This is an appeal from an order of the County Court of Nassau county affirming a decision of the supervisor of the town of Hemp-stead adverse to a proposition for the incorporation o„f the village of Cedarhurst, made pursuant to sections 3 et seq. of the Village Law (Laws of 1897, chap. 414, as amd.).

* The point is made that the order is not appealable to this court.

Sections 7 and 8 of the Village Law provide for an appeal from the decision of the supervisor to the County Court, and section 8 provides that the order of the County. Court “ shall be final and conclusive.” The supervisor decided, whether rightly or not, that the proposition did. not comply with said Village Law. ' This was the question which he was required to decide. (Village Law, § 6, as amd. by Laws of 1903, chap. 139.) The appellants claim that section 1357 of the Code of Civil Procedure authorizes this appeal, but it is to be noted that that section only applies to an order “ made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding, instituted in that court or before a judge thereof.” .This proceeding was instituted before the supervisor and not in the County Court or before a judge thereof. In the case of Village of Harrisville v. Lawrence (66 Hun, 302), relied upon by the appellants, the proceeding to review the election resulting in the order appealed from was instituted before the county judge. But if said section 1357 would otherwise, have authorized an. appeal; to this, court, we think it was plainly intended by the statute that there should be no such appedh The'words-“final and condlusive;” as applied to orders - like' the one now before us,. IiaVe been construed by the Court of Appeals to mean that-there sliouldbe no appeal. (Matter of Commissioners of Central Park, 50 N. Y. 493; New York Central Railroad Co. v. Marvin, 11 id. 276; Matter of Canal & Walker Streets, 12 id. 406; King v. Mayor, etc., of New York, 36 id. 182, 187; Matter of D. & H. C. Co., 69 id. 209.) This view is not affected .by the decision in Matter of Daly (189 N. Y. 34) because the court in that case did not decide that the words “(final and conclusive ” did not preclude the right to appeal, but that they had no application for the reason that the first' appraisal was set aside, for the admission of improper evidence.' The cases relied upon by the appellants are not in point for the reason that the provision of the statute respecting appeals did not apply to the particular orders reviewed in those cases.

The appeal should be dismissed.

Hirschberg, P. J., Woodward, Gaynor and. Rich, JJ., concurred.

Appeal dismissed,. With ten dollars costs and disbursements.

Amd. by Laws of 1903, chap. 139, and Laws of 1904, chap. 35.— [Rep,