Phinney v. Broschell

26 N.Y. Sup. Ct. 116

• Court: New York Supreme Court
• Decided: November 15, 1879
• Status: Published

Opinion

Per Curiam:

It appears, by the papers in this case, that the order was, in. fact, made by a judge out of court and in his private chambers, and the recitals of the order show that it was intended to be the-order of the judge. The fact that a caption precedes the order is not at all conclusive as to its character. (In re Knickerbocker Bank, 19 Barb., 602.)

It is true the judge who made the order directed it to be entered, but the fact of giving that direction does not either affect the order' or change its character; it does not appear that the order was entered as an order of the court, and we are not to presume that, it was for the purpose of discharging it, even if that presumption, would be made if necessary to uphold it.

We think our duty is to look at the facts as they are really shown by the papers to have been, and they disclose that this oi’der was not made by a court, but by ajudge out of court. We think this case is distinguishable from Heishon v. Knickerbocker-Life Ins. Co., and that the attachment should not have been, vacated.

The order should be reversed, with ten dollars costs and disbursements.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order reversed, with ten dollars costs and disbursements.