Townsend v. Nebenzhal — 81 N.Y. 644

Majority

p. 644

In the Matter of Edward M. Townsend et al., Appellants, v. Isaac Nebenzhal et al., Respondents. The People ex rel. Edward M. Townsend et al., Appellants, v. Abraham R. Lawrence, a Justice, etc., Respondent.

Headnote

Where an order denying an application for an order of arrest or commitment does not show that it was not made upon the merits, it will be so presumed, and the order is not re viewable here.

The opinion below cannot be looked into, unless the language of the order is ambiguous and needs aid for an understanding of the ground on which it went.

(Argued June 1, 1880;

decided June 15, 1880.)

This is an appeal from a General Term order reversing an order of a justice of the Supreme Court, in proceedings under the “Stilwell Act,” discharging the defendants from arrest. The order recited that it was made “ upon due consideration of the proofs in the matter and the affidavits on which the warrant was granted.” The order of General Term did not state the grounds. Held, that it could not be said from the order that it was not made upon the merits, and that the proofs had failed to satisfy the courts below that a ease was made out for the commitment nisi, etc., of the defendants, and that this being so, this court had no jurisdiction to review the order; and this, although the opinions do not state that the orders were

p. 645

made after the merits; that an opinion could not be looked into for matter different from the order, unless the language of the order is ambiguous. {Fisher v. Gould, ante p. 228.)

Thomas M. North for appellants.

A. Blumenstiel for respondents.

Per Owriam opinion for dismissal of appeal.

All concur.

Appeal dismissed.