New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-02-13

ton Ut the rrpora o. Comunsptno> - ~ "a k~u
referred to Is. IN any proper sense " ~
rcnody.
But coxceding this point and that the o. Nl'cssse1
for the order of confirmation IL spsai yro,ssss~<s
10 not think the decision OF the Court upon ssoA spPss
cation Is the subject OF review upon appeal II 10 de-
cared by the eleventh section Of the Cods among ekhsr
things hat the Court OF Appeals shall have jursaie-
ton 10 review upon appeal every actual detsrmnsea
of the Supreme Court In General Term, In nsl order
affecting substantial right, mads ~ spsessJ pro
ooed,Ee." Tie order Of confirmation e final ordsrs
II att cts substantial rights and or the purpose Of tSs
argument, II is conceded to be special proeedss-
The order, it is conceded, may be made by the So
preme Court at General Term. The case Is thss
brought within the very terms of the section Of ~
Code prescribing the Jurisdiction Of the Court OF APP
peas And yet Il has just been held by that Coua1
that 1t has no jurisdiction review upon appeal sush
order. This jurisdiction i denied upon too greasA
that though the 10 within the very letter Of IL
statute defining the jurisdiction Of the Cour vet ID =
taken away By the statute under which the proceed
ings originated, which declares "that the order q
judgment OF the Court in the premises sAaA b Ssaf
srd cORcipstre.
fths b. So in respect to an appeal nom the General
Tcim to tie {, urt Of Appeals, cannot why b
not equally true in respect to an appeal from order
made at Special Teim TO the General Term. The Or
der when made at Special Term, u not less the order
of the Supreme Court than when made at General
Term In either case /. is the order Judgment %
the Supreme Court 10 the premises" This orter, %
is declared, shall be final and conclusive. Aud yets
by this appeal, is insisted that the order thus made
Is not final and conclusive but that this Count has Ne
power, and ought TO reverse it.
This power is sought to be sustained by the sc& q
1854. which declares that the appeal may DO taken -
the General Tenn from any judgment, order or hnA
determ alton made at SIP, cial Tenn, In any spsesa
prOcecdRgs As in the OF the 18th section OF We
Code defining the jurisdiction of the Court OF AppsalA
here the language of the statute is broad enough -
embrace the case in hand. But If the statute which
declares that the Court of Appeals shall have ursdo-
tOn to review order Of the Supreme Court mace u
Especial proceeding is controlled by the statate rcis
IN no iiuC IN
Cares that the order confirming the report shall be na
and conclusive, am entirely unable to bow u b
that the same declaration in respect to the same order
does not equally control the act of Disappointing Ter
az appeal to the General Term from an order u he
Special Term in special proceeding
Again the Commissioners required 10 mako thskx
report to the Supreme Court. That has been done.
Tue Court upon the coming in Of the report, u required
10 hear any matter that may be alleged against ~
That has been done. Having heard what has been a.
legged sgainst it, the Court ia required to make an or
der. That has been done. The order thus made msss
be OF two things. II must confirm what has beoa
done by the Commissioners, or it must return the
port for reconsideration The former has been done In
this case and that being DONE tho statute declares
that il il final and conclusive. Now suppose this
Court, in General Term to hold that the order they
ade conformity with the provisions Of the statute,
is not what the statute declares it shall be. 6lal aud
conclusive. and that 1t will entertain the appeal,
upon wi at principle shall the review be hadf We
have SEE that il il the duty Of the Court upon the
coming of the report, to hear what can DO a.
legged against it, whether it be 10 respect 10 matters
Of fact .. law and T. upon the whole appear
firm the report The very nature OF this hesfibRt
involving it does, tho exercise Of judicial dsors
tion and little, If anything else, Is opposed 70 or
very tiIst notions Of review upon appeal. 1hore
is DO more familiar rule than that an appeal will not
lie from an order which the Court was authorized 10
make not in it, own discretion. cit would be re-
"pugnant to notions Of the plan Of jadicsxy
system, says Judge Parker, in delivering tue opn-
ion Of The Court Of Appeals, III the matter OF the New
York Central Railroad Company agt Marvin ker-
nuD go, to suppose that it was intended that sbs
"questioDs of fact almost always involved in appeals
" from appraisas Of damages In railroad and
" obcr like proceedings, designed to DO brougA
Dup for adjudication To the Court Of Last Resort
The remark may be applied with equal fsroo 10 an
appeal from the Special to the General Term. " Tho
"whoe proceeding says tho same learned Judge, -
ga special creation of tho statute, and seem. designed
"tO iom a complete system OF itself, entirely inde-
pend Mt Of tho general provisions OF law relating 10
appeals SO, IN this case, am of opinion tbas The
general provisions of the Act vi 1854, authorizing
appeal from an order of Special Term in special
proceeding, aswe as the provision Of the eleventa
section Of the Code authorizing rovew, upon appeal
TO the Court of Appeals Of an order OF this C0ure
made at General Term in special proceeding, have
no application whatever 70 the special statutory pro-
CeedDg 10 question, and that tho motion 10 dismus III
appeal should therefore be granted.
The Hon Justice Peabody also rendered an opnioss
coEcurng with the decision Of the Court In Is b
ayri i. All, ,L.,uo .,.,,. 81 700. o..,-
authorizes appeals to the General Term, from any
Judgment, order final do termination made At SpS-
cal Tenn in any special proceeding This is substsn-
tiay the language of the statute and these prooeo1
ings may be included 10 the term 4" Special Proceed
iDgs" But this statute IS general in it's language and
application, and embraces all special proceedings ID
General Term. II is general and not specific. 10 dos
not specify cases of this kind although its language 10
broad enough TO- and does in terms include them Bst
the statute which declares that the judgment order
Of confirmation shall be final and conclusive i,specihe,
fifth af
II Is; ind the well known rule OF construction In su0h
cases is 10 give full effect TO the particular specific "
exceptional enactment and considering the general one
modified by aud to the extent Of 1t. The ono IL tho
general rule and the other Is the exception"
The motion 70 dismiss the appeal must, think. b
granted.
The Hoo. Justice Clerke, however, dissented from
the ruling Of the Court and rendered elaborate
OPINION setting forth the Of his
renee We give abstract
CLYRKE J.-Fomery, and until period compare
lively recent IN all the superior courts Of law both n
England and in this aud mott OF the sister States thcrs
only branch VI Jurisdiction In each court.
AL procs dings wers bad, supposed 10 be had
and all decisions made before the full Court 4.
tapc. II was lot perhaps essential TO tho validity u
the proceedings that any particular number Of judge
should have attended, though believe In the Queens
Bench four generally, and never less than Two w.
tended and in the old Supreme Court Of this STATE
three almost invariably composed the full beDohj sna
was not aware Uni til yesterday that It was ever oom-
posed Of only one Judge. Whether, however, com
%. ed Of three judge its decisions were final -
far the Supreme Court concerned and the PEI
ties bad no right 10 que son them except by writ a
enc to tie Court for the Correction of Errors.
In all actione and now, BY late statute, in az sps
cal proceedings an appeal Is allowed from the Speoa
Term 10 the General Term, from every Judgment sn4
every order affecting substantial right. This hghe
adkeres 10 ali cases, except where the law expresr
provides the contrary. Unless, therefore, there y
III Oul