People ex rel. Green v. Smith
New York Supreme Court
Appeal from an order of the Special Term in Monroe county, held by Mr. Justice Dwi&ht, striking out of the judgment in this cause the costs taxed in favor of the appellants. This was a common-law certiorari directed to the county judge of Ontario county, issued for the purpose of reviewing his adjudication in a proceeding to bond a town. On the return the General Term gave judgment for the relators, which was reversed in the Court of Appeals.
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Appeal from an order of the Special Term in Monroe county, held by Mr. Justice Dwi&ht, striking out of the judgment in this cause the costs taxed in favor of the appellants. This was a common-law certiorari directed to the county judge of Ontario county, issued for the purpose of reviewing his adjudication in a proceeding to bond a town. On the return the General Term gave judgment for the relators, which was reversed in the Court of Appeals. The appellants procured costs of the appeal to the latter court to be inserted in the judgment entered on the remittitur, which contained no direction…
1Opinion of the Court
Smith, J.:
The question in this case is, whether, on an appeal to the Court of Appeals, in a proceeding brought into this court by a common-law certiorari directed to an officer or tribunal other than a court, the successful party is entitled, of course, to the costs of the appeal. The question has been before the courts frequently, since the adoption of the Code, but the decisions are not altogether harmonious. Most of the cases agree in holding that a common-law certiorcuri is a “special proceeding,” as defined by the Code and distinguished from a “ civil action ” (§§ 1 to 3); and to that…
2Cases cited4 opinions
- People Ex Rel. Cook v. Board of Police of the Metropolitan Police DistrictNew York Court of Appeals · 1868
- People ex rel. Van Rensselaer v. Van AlstyneNew York Court of Appeals · 1866
- People ex rel. Harvey v. HeathNew York Supreme Court · 1860
- People v. SturtevantThe Superior Court of New York City · 1855