Matter of Davies
New York Court of Appeals
Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1900, which reversed an order of Special Term denying a motion to vacate and set aside an Order directing Charles W. Morse and others to appear and be examined under the provisions of chapter 690 of the Laws of 1899, and vacated such order. Also motion to dismiss the appeal.
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Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1900, which reversed an order of Special Term denying a motion to vacate and set aside an Order directing Charles W. Morse and others to appear and be examined under the provisions of chapter 690 of the Laws of 1899, and vacated such order. Also motion to dismiss the appeal. An application by the attorney-general for an order to examine witnesses, pursuant to chapter 690 of the Laws of 1899, resulted in an ex parte order, made on the 28th day of May, 19Q0,…
1Opinion of the CourtYam, J.
In support of the motion to dismiss the appeal it is urged that, so far as the record discloses, the order of reversal may have been made in the exercise of discretion, and, hence, that it is not reviewable in this court. (Matter of Attorney-General, 155 N. Y. 441, 445.) We think, however, that the motion to dismiss should be denied for the reason that where the Appellate Division allows an appeal and certifies a question of law for us to review, the presumption is that its determination was made upon the merits, unless it expressly appears by the record that it was made in the exercise of…
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