Phinney v. . Broschell

80 N.Y. 544, 58 How. Pr. 492, 1880 N.Y. LEXIS 124

• Court: New York Court of Appeals
• Decided: April 6, 1880
• Status: Published

Opinion

Rapallo, J.

The appellants claim that the order of publication in this case was not made by a judge, but by the court at Special Term, and was therefore void. This is the only point in the case.

It appears that the order was in fact made by Judge Lawrence out of court, in his private chambers. His name appears in the caption, and in the body of the order it purports to be made by a judge. It recites, “ the plaintiffs having presented to me,” etc., and “ having proved to my satisfaction,” etc., ordered, etc. It is signed by the judge with his initials, and his official title is abbreviated. The appellant relies on the fact that it has a caption, “at a Special Term held at chambers,” and that there is a direction to enter, but it does not appear to have been in fact entered as a court order. The General Term held that it was good as a chamber order of the judge. The question is purely one of form and we are not inclined to differ with the court below on such a technical point of practice.

The order should bo affirmed with costs. ■

All concur, except Andrews, J., absent.

Order affirmed.