People v. Rensselaer C. P.

7 Wend. 533

• Court: New York Supreme Court
• Decided: June 7, 1832
• Status: Published

Opinion

By the Court,

Nelson, J.

In The People v. Seneca, C. P., 6 Wendell, 517, this court decided that & certiorari to remove a justice’s judgment into the common pleas, must be allowed by an officer residing within the county where the judgment was rendered. The language of the section designating the officers authorized to allow appeals, is broader than that used in the section in relation to certioraris, and distinctly gives power to commissioners to allow appeals. 2 R. S. 256, § 172; 258, § 187. Since the decision in 6 Wendell, the legislature have passed a law giving the power to allow a certiorari to commissioners, without reference to their residence, which was unquestionably intended to remedy the defect in the revised statutes. Had the clause in relation to the allowance of appeals been supposed to have been within the mischief intended to be remedied, it no doubt would have been included in the amendatory law. It is not, and the omission supports the construction we have adopted. Let an alternative mandamus issue.