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Dodd v. Averill

70 N.Y. St. Rep. 715 Court N.Y.C.P. Decision date 1895-12-02 English

Delivered by Pryor, J.

Contents

Majority

p. 715
Frank N. Dodd, App’lt, v. Permelia M. D. Averill, Resp’t.
(New York Common Pleas, General Term,
Filed December 2, 1895.)

Headnote

Appeal—From city court to common pleas—Weight op evidence.
If the evidence of the residence of the defendant suffices to uphold an order vacating an attachment, though the proof to the contrary preponderates such order by the city court is not re viewable by the common pleas.
Appeal from an order of the city court, affirming an order vacating an attachment issued on the ground of the nonresidence of the defendant.
Robert Van Iderstine, for app’lt; W. T. B. Milliken, for resp’t.

While the evidence as to the nonresidence of the defendant is quite impressive, it cannot be denied that there is proof to the contrary sufficient to support the order vacating the attachment. Such being the case, whether the attachment should stand rested in the discretion of the court below, and its action in vacating it is not reviewable by an appellate tribunal. Sartwell v. Field, 68 N. Y. 341 ; Allen v. Meyer, 73 id. 1; Glenney v. Stedwell, 64 id. 120, 128; Jenkins v. Putnam, 106 id. 272, 276; 8 St. Rep. 710 ; Claflin v. Baere, 59 How. Prac. 20. We have uniformly held that on appeal from the city court we will not review its action upon matters of discretion. Keller v. Feldman, 2 Misc. Rep. 179 , 181; 49 St. Rep. 718 ; Pots v. Herman, 7 Misc. Rep. 4 ; 57 St. Rep. 78 ; Capel v. Lyons, 3 Misc. Rep. 73 ; 51 St. Rep. 601 ; Tooker v. Booth, 8 Misc. Rep. 304 ; 59 St. Rep. 282 . It not being apparent but that the attachment in question was vacated in the exercise-of discretion, we have no jurisdiction to review the order of the city court. Brooks v. Construction Co., 93 N. Y. 647 .

Appeal dismissed with costs.

All concur.

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