
    SUPREME COURT.
    In the Matter of the Petition of Ichabod Thayer, &c., to vacate certain assessments.
    The order of a justice of the supreme court in special term, in proceedings under chapter 338 of the laws of 1858, to vacate assessments for local improvements, for fraud therein, is final and conclusive, and not subject to review on appeal. (Following the case of Matter of Dodd, 29 N. Y. B. 629, which overrules Pinckney Case, 18 Abb. p. 356.)
    
      Second Judicial District, Brooklyn General Term,
    
    
      February, 1866.
    . Before Lott, Scrugham and Barnard, Justices.
    
    This was a proceeding brought under the provisions of chapter 338, of the laws of 1858, to vacate assessments imposed for the regrading and repaving of Fulton street, in the city of Brooklyn. The petitioner presented his petition to Mr. Justice Scrugham, in special term. The honorable justice refused the prayer of the petitioner. Petitioner then appealed to the general term. Motion was made in behalf of the city of Brooklyn to dismiss the appeal.
    John G. Schumaker, Corporation Counsel, for city.
    
    P. V. B. Stanton, for petitioner.
    
   By the court, Lott, J.

It was in our opinion decided by the court of appeals In the matter of Dodd (27 N. Y. R. p. 629), that an order made by a justice of the court under the act by virtue of which this proceeding was instituted, is final and conclusive, and not subject to review on appeal. It is evident from the opinion of the court that it was deemed immaterial whether the order was made in special term or in vacation. The decision is placed on the ground that the application under that act is not a special proceeding in the sense of the Code, but a special creation of the statute, designed to form a complete system in itself, and that the justice in acting under it only performed “ the functions which anight have been conferred on any administrative officer.”

We are aware that it has since been decided by the general term of this court in the first district, in Pinckney’s Case (18 Abb. p. 356), that an order made under the act by a justice at special term is appealable, but in the view we have taken of the decision by the court of appeals above referred to, we must be controlled by it.

It follows that the appeal must be dismissed without costs, under the circumstances of the case.  