People ex rel. Dawley v. Wilson — 200 A.D. 537

Majority

p. 537

The People of the State of New York ex rel. Frank E. Dawley, Individually and as President of the American Karakul Fur Sheep Co., Inc., Relator, v. Charles S. Wilson, Commissioner of the Division of Agriculture of the Department of Farms and Markets of the State of New York, and Others, Respondents.

Third Department,

March 8, 1922.

Headnote

Certiorari — common-law writ to review assessment o£ damages for sheep killed by dogs to be heard in first instance by Appellate Division — determination remitted for further consideration because of erroneous rule of damages — damages should be based on actual value of sheep.

&. writ of certiorari, not authorized by statute, but valid as a common-law writ, to review the assessment of damages for Karakul fur sheep killed by dogs, should be heard in the first instance by the Appellate Division, and an order

p. 538

by the Special Term assessing the damages was unauthorized and must be reversed. The determination sought to be reviewed is erroneous in that the actual value of the sheep was not considered in awarding damages and must be remitted to the Department of Farms and Markets for further consideration.

Kilby, J., dissenting.

Remittitur from the Court of Appeals of an appeal by the relator, Frank E. Dawley, from an order of the Appellate Division, Third Department, entered on the 13th day of July, 1921, reversing an order entered upon an appeal by the defendants, Charles S. Wilson and others, from an order of the Supreme Court, made at the Albany Special Term on the 21st day of August, 1920, except that part of said order which disallowed one claim of the relator, and also from an order, entered in the office of the clerk of the county of Albany on the 24th day of July, 1920, directing that a writ of certiorari issue, and upon which order a certiorari was issued out of the Supreme Court and attested on the 24th day of July, 1920, directed to Charles S. Wilson, as Commissioner of the Division of Agriculture of the Department of Farms and Markets of the State of New York, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in awarding damages to the relator for injuries to sheep, known as Karakul fur sheep, occasioned by dogs.

Thomas K. Smith, for the relator.

Charles D. Newton, Attorney-General [Henry C. Henderson and T. Paul McGannon, Deputies Attorney-General, of counsel], for the respondents.

The writ of certiorari herein is not authorized by statute but is valid as a common-law writ. (People ex rel. Dawley v. Wilson, 232 N. Y. 12 .) As such the matter should be heard in the first instance in this court and the order of the Special Term assessing the damages was unauthorized. (Code Civ. Proc. § 2138.) From that order the Attorney-General has appealed. ( 198 App. Div. 158 .) A reversal thereof will leave pending in this court the writ of certiorari to be disposed of as a common-law writ. The determination sought to be reviewed by the relator is clearly erroneous for the reason that it is based on the theory that awards should not be made for damages in respect to the Karakul breed of fur-bearing sheep in excess of what would be made in respect to ordinary animals of the same species. Damages should be awarded for the actual value of the animals killed and for the actual damages to such as were not killed but injured. ( 232

p. 539

N. Y. 12 .) It follows that as in ordinary certiorari proceedings this matter should be returned to the appropriate board or body to determine the damages on the correct theory.

All concur, except Kilby, J., dissenting; Hinman, J., not sitting.

Order of Special Term of August 21, 1920, reversed. Determination sought to be reviewed by relator annulled, with fifty dollars costs and disbursements, and matter remitted for further consideration.

Cases cited

People ex rel. Dawley v. Wilson 232 N. Y. 12 N.Y. 1921-10-11 p. 538