Majority
p. 185In the Matter of the Buffalo Orphan Asylum, Resp’t, v. Fedora Karowney, App’lt. (Supreme Court, General Term, Fifth Department, Filed June 20, 1894.)
Headnote
Order—Ex parte—Vacation—Discretion.The vacation of an ex i arte order, requiring an orphan asylum to give extracts from its records, with leave to renew the application on notice, is in the discretion of the court.
Appeal from an order vacating an order, requiring the defendant to allow an examination of its records.
Edward R. O'Malley, for app’lt; Carl T. Chester, for resp't Buffalo Orphan Asylum.
—The order requiring the asylum to give to the petitioner complete extracts from its records concerning her child was made by the court upon her ex parte application. This was within the power of the court, and the order must be deemed to have been regularly made. But upon the application of the asylum the court, in the exercise of its discretion, made an order requiring: the petitioner to show canse why the first-mentioned order should not be vacated. In view of the facts presented, the
p. 186
court thereupon concluded that the case was one in which a hearing should be had upon the merits. The order was therefore vacated, with leave to the petitioner to renew her application upon t notice to the asylum. It is urged upon the part of the appellant that this was error, for the alleged reason that her right to the relief sought had the support of a mandatory statute. While it was the duty of the court to entertain her application, it was within its power tb direct and have such hearing as should be deemed suitable and reasonable before making a final order. This, evidently, was the design of the statute, which then provided that, in addition to the request of the person having the requisite relation to the matter, there should be an order of the supreme court for the production of extracts from the records relating to a child which had been placed in the asylum. Laws 1884, c. 438, § 3. It cannot well be supposed that the court, in making such an order, is • not to exercise any judgment in the matter. It is more reasonable to assume that it was contemplated that the court properly could and should inquire into the matter sufficiently to ascertain what are the facts, and to determine whether they are such as to justify or require the making of the order sought for. There may be - cases where, up.on the facts, applicants are entitled to the orders, and others where, as matter of right, they are not. In the former, orders of course would be made; but, in the latter, reasons might exist for their denial. Whether or not the petitioner, in the present case, is entitled to it, is a question not here for consideration. The order was vacated without any determination of that question, but merely to enable both parties to be heard on a renewal of the application upon notice to the asylum. The method adopted for such purpose, founded upon the order to show cause, was within the reasonable discretion of the court.
The order appealed from should therefore be affirmed, without costs. All concur.