People ex Rel. Cecere v. Slocum

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. GIROLOMO CECERE, Respondent, v…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 20, 1914

161 App. Div. 733 (N.Y. App. Div. 1914)

146 N.Y.S. 556

Opinion

March 20, 1914.

James E. Carroll, for the appellant.

No brief or appearance for the respondents.

CARR, J.:

The respondents have filed no briefs on this appeal. The order appealed from purports to be a final order in a certiorari proceeding brought by the relator to review the action of the county treasurer of Dutchess county in refusing to issue to him a liquor tax license. The petition is addressed "To the County Court of Dutchess County." The order directing the issuance of a writ of certiorari is entitled in the "County Court Dutchess County." The writ as issued is entitled likewise in the "County Court Dutchess County," and directs return pursuant to its provisions to the "County Court of Dutchess County." The final order is entitled in the "County Court Dutchess County."

By section 2123 of the Code of Civil Procedure, a writ of certiorari can issue only out of the Supreme Court except "in a case where another court is expressly authorized by statute to issue it." This writ of certiorari was provided for by subdivision 1 of section 27 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39), but that statute provides that it "may be issued by, returnable to, and heard by a county judge of the county, or a justice of the Supreme Court of the judicial district in which the premises are situated in which the applicant desires to carry on the business of trafficking in liquors." So we have here, apparently, a proceeding of which the County Court had no jurisdiction. This objection may be taken at any time, as is well settled.

The appellant cites, in support of his contention that the County Court as such had no jurisdiction of this matter, the following authorities, all of which are in point: Heishon v. Knickerbocker Life Ins. Co. ( 77 N.Y. 278); Wiechers v. New Home Sewing Machine Co. ( 38 App. Div. 1), and Matter of Wright, Peters Co. (73 id. 75). There are numerous other authorities pointing out the distinction between a statutory power given to a judge and that given to a court.

The order of the County Court of Dutchess county should be reversed, with ten dollars costs and disbursements, and the writ of certiorari dismissed.

JENKS, P.J., BURR, THOMAS and PUTNAM, JJ., concurred.

Order of the County Court of Dutchess county reversed, with ten dollars costs and disbursements, and writ of certiorari dismissed.