Birge v. Berlin Iron Bridge Co. — 17 N.Y.S. 684

Majority

p. 684

Birge v. Berlin Iron Bridge Co. et al.

(Supreme Court, General Term, Third Department.

February 12, 1892.)

Headnote

Appeal—Resettlement op Order—Questions of Law.

In an action to restrain a highway commissioner and a bridge company from proceeding to perform a contract to build a highway bridge the only questions involved were the power of the commissioner to enter into the contract, and the validity of a town appropriation for that purpose, both of which were established in a prior case, and accepted in the present case as res adjudieata, and judgment was rendered for defendant. Held, that the questions involved in such case were mere questions of law, and that plaintiff was entitled to have the order resettled so as to show that fact and, consequently, his right to an appeal.

Motion to resettle order of general term.

Action by James 0. Birge against the Berlin Iron Bridge Company and another to restrain defendants from building a highway bridge across the Eel Weir Bapids, in the town of Oswegatchie, under a contract entered into between the highway commissioner of the town and the bridge company, on the ground that the commissioner had no legal power or authority to make the contract, and that an appropriation by vote of the electors of the town for that purpose was illegal and invalid. The court held, in general term, following the case of Bridge Co. v. Wagner, (Sup.) 10 27. Y. Supp. 840, involving the' same questions, that the appropriation was valid, and that the commissioner of highways had the right to make the contract in question, thereby reversing the decision of special term. The order entered by defendants thereupon failed to show that the case was disposed of by the general term on questions of law; and plaintiff now moves for a resettlement of that order so as to show that fact, and make apparent his right to an appeal.

For former report, see 16 27. Y. Supp. 596.

Motion granted.

Argued before Mayham, P. J., and Putnam and Herrick, JJ.

Daniel Magone, (Thomas Spratt, of counsel,) for appellant. A. D. Wales and George B. MaTby, for respondents.

I am of opinion that the order in this case, made upon the decision of the general term of this court, which was handed down on the 30th of November, 1891, should show that that decision was made upon questions of law only. The conclusion reached by the justice delivering the prevailing opinion was upon the consideration of the questions of law raised and involved in the case, and not upon any determination of any disputed question of fact, or in the exercise of any discretionary power vested in the court. The order designated as No. 1 in the moving papers should stand as the order of the court.