The People of the State of New York ex rel. Bird S. Coler, as Comptroller of the City of New York, Appellant, v. Daniel Lord et al., as Commissioners, etc., and Katherine E. Rapp, Claimant, Respondents

The People of the State of New York ex rel. Bird S. Coler, as Comptroller of the City of New York, Appellant, v. Daniel Lord et al., as Commissioners, etc., and Katherine E. Rapp, Claimant, Respondents. 1. Appeal—Order Dismissing Certiorari. An order of the Appel-, late Division simply dismissing a common-law writ of certiorari, without affirming the proceedings or in any way passing upon the questions sought to be reviewed, being a discretionary order is not reviewable by the Court of Appeals. y 2. Opinion of Court Below. The discretionary character of an order dismissing a writ of certiorari cannot be altered by recourse to the opinion of the court below. People ex rel. Coler v. Lord, 29 App. Div. 455, appeal dismissed. (Argued November 21, 1898; decided December 16, 1898.) Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 15, 1898, dismissing a writ of certiorari. The nature of the proceeding and the facts, so far as material, are stated in the opinion. Robert G. Beatty and John Whalen for appellant. Barclay E. Y. McOarty and Jared G. Baldwin, Jr., for respondents. [MAJORITY — Per Curiam.] Per Curiam. 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 hy 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.