People ex rel. Schlehr v. Common Council — 37 N.Y. Sup. Ct. 636

Majority

p. 636

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN W. SCHLEHR, Appellant, v. THE COMMON COUNCIL OF THE CITY OF BUFFALO, as a Board of Election Canvassers of the City of Buffalo, Respondent.

Headnote

Ex parte order — is not appealable — how it can be reviewed.

No appeal lies to the General Term from an ex pa/rte order made at Special Term, vacating and setting aside an order theretofore made.

The proper remedy is to move at Special Term, on notice and the proper papers, to set aside the ex parte order objected to, and if such motion is denied then to appeal from such order of denial.

Appeal from an order made at Special Term vacating and setting aside an order allowing a writ of mandamus.

O. O. De WíüatkI E. O. Bobbins, for the relator, appellant.

(riles E. Stillwell, James O. Fullerton and Traoy O. Beaker, for the respondent.

This appeal is not well brought. The order appealed from was granted ex parte or, so far as appears, on the court’s own motion. No,papers are presented to us which purport to have been used in obtaining the order appealed from. The papers printed in the appeal book are those used on the original application for the order which was set aside, and an affidavit which appears to Lave been made for the purpose of this appeal, and is now first presented to any court.

No, such practice is recognized. An appeal can be heard only

p. 637

on the papers used in obtaining the order appealed from. And it seems that an appeal cannot be taken at all from an order granted ex parte. (Code of Civil Procedure,-§§ 1347, 2087.)

The remedy is by motion at Special Term, on notice and the proper papers, to set aside the ex parte order objected to, and if such motion is denied, an appeal from the order of denial will present the case to the appellate court as it was presented to the1 court making the order.

This appeal should be dismissed.

All concur.

Appeal dismissed, with ten dollars costs and disbursements.