Pearson v. Wilson — 214 A.D. 847

Majority

p. 847

In the Matter of the Application of Isaac E. Pearson, Appellant, for a Certiorari Order against William Wilson, Supervisor, and Others, Constituting a Board of Town Auditors of the Town of Owasco, County of Cayuga, N. Y., Respondents.

Headnote

Certiorari — order — paper irregular in form deemed order under Civil Practice Act, § 127, and Rules of Civil Practice, rule 70.

Appeal from an order of the Supreme Court, made at the Wayne Special Term and entered in the Cayuga county clerk’s office on November 18,1924, vacating the mandate or order allowed in certiorari proceedings and setting aside the service thereof.

The paper signed by the justice presiding at Special [Trial] Term dated in the caption on the 7th day of January, 1924, while unusual and irregular in form, is not ambiguous in its terms and contains aE the elements of an order as provided in section 127 of the Civil Practice Act and rule 70.^[1] It must, therefore, be given effect notwithstanding its anomalous structure. We do not pass upon the question as to whether the service of the order was timely as that was not passed upon by the Special Term nor argued in this court. If desired, this question may be raised by a new motion. AE concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ. Order vacating certiorari order reversed, with ten doEars costs and disbursements, and motion denied, with ten doEars costs.

* Rules Civ. Prac. rule 70.— [Rep.