In re Palmer — 40 N.Y. 561

Majority

p. 561

In the matter of the petition of Courtlandt Palmer to vacate an assessment for a sewer in Thirty-third street and Thirty-fifth street, and seven similar cases.

Headnote

The amendment section to section eleven of the Code, subdivision three, passed May 12th, 1869, enacting that “ no appeal to the Court of Appeals shall he had or heard hereafter from any order or judgment in any proceeding under chapter 888 of the Laws of 1858,” is retroactive in its effect and applies to appeals then pending in the Court of Appeals from the orders mentioned in such amendment.

The amendment is not in conflict with the Constitution, hut is within the power of the legislature.

(Decided June term, 1869.)

Motion to dismiss an appeal to this court from an order of the General Term of x the first district, affirming an order setting aside certain assessments for local improvements in the city of Mew York, for alleged irregularities therein, entitling the petitioners to relief under chapter 338, Laws of 1858. Subsequent to the appeal by the city to this court, the amendment of May 12th, 1869, to section eleven was passed, declaring that no such appeal should be “ had or heard hereafter.”

It was contended on the part of the appellant, in opposition to the motion to dismiss, that the amendment need not and would not be construed as applicable to appeals pending when it was passed, and if it must be so construed, then it was void and unconstitutional as ex post facto, and also impairing the obligations of a contract; but it was held.

That the act was applicable to pending appeals, and was not unconstitutional. The appeal must be. dismissed.

Ohmies JS. Miller, for the motion.

Richard O’Gorman (corporation counsel), opposed'..

Appeal dismissed.