Majority
p. 23The People of the State of New York ex rel. William M. Follett, Relator, v. Water Works Company of Seneca Falls and Seneca Water Company, Inc., Defendants. Supreme Court, Seneca County, November 26, 1924.
Headnote
Motions and orders — submission of orders — order, predicated upon opinion and decision, may not recite decision was reached as matter of law and not in exercise of court’s discretion. ’An order cannot be qualified in its operation and effect by reference to the opinion, for the court speaks by its order. Hence, where the court has handed down its decision and opinion in writing, the order may not recite that a decision was reached as a matter of law and not in the discretion of the court.
Submission of orders on decision.
George W. O’Brien, for the relator.
H. A. Carmer and Neil F. Towner, for the defendants.
In this case in which the court has handed down its decision and opinion in writing, it is sought to have the order recite that the decision was reached as matter of law and not in the exercise of the discretion of the court. Such an order cannot be signed. The court speaks by its order. (29 Cyc. 1521.)
An order cannot be qualified in its operation and effect by reference to the opinion. (Fisher v. Gould, 81 N. Y. 228 , 230.)
.The order itself can only be referred to for the grounds, which cannot be qualified by the opinion. (1 Rumsey Pr. [2d ed.] 276.)
Ordered accordingly.
Cases cited
- Fisher v. Gould 81 N. Y. 228 at 230 p. 23