Opinion
Argued November 21, 1898
Decided December 16, 1898
Robert C. Beatty and John Whalen for appellant.
Barclay E.V. McCarty and Jared G. Baldwin, Jr., for respondents.
The relator sued out a writ of certiorari for the purpose of reviewing an award of the commissioners of the change of grade damage commission, who were appointed pursuant to the provisions of chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894. Subsequently the Appellate Division made herein the order that the appellant now seeks to have reviewed by this court. An examination of the order discloses that it does not affirm the proceedings had before the commissioners, or in any way pass upon the questions that it was the purpose of the relator in obtaining the writ of certiorari to have inquired into by the court. On the contrary, it simply dismisses the writ, which that court may do in the exercise of a sound discretion whenever asked for the allowance of a common-law certiorari. It is settled by a long line of authorities, many of which we cite in People ex rel. O'Connor v. Supervisors ( 153 N.Y. 370-373), that an order that thus dismisses a common-law writ of certiorari is not appealable to this court, because the dismissal of the writ constitutes an exercise of discretion that this court cannot review. In People ex rel. Supervisors of Ulster Co. v. City of Kingston ( 101 N.Y. 82) this court was asked to examine the opinion of the court making the order dismissing the writ, the claim being that thus it would be clearly made to appear that the court had not dismissed the writ in the exercise of its discretion, but it was held that the discretionary character of the order could not thus be altered.
The appeal should be dismissed, with costs.
All concur, except GRAY, J., absent.
Appeal dismissed.