
    PINCKNEY’S CASE.
    
      Supreme Court, First District;
    
    
      General Term, Feb., 1865.
    Appeal.—Vacating Assessments.—Special Peoceedings.
    An appeal ^jes to the court at general term from an order made at special term upon an application to vacate an assessment in the city of New York, for fraud or legal irregularity.
    The proceedings to vacate such assessments, given by the act of 1858, are special proceedings, within the meaning of the act of 1854, which gives appeals from orders, &c., of court in special proceedings.
    Hotion to dismiss appeal.
    This motion was made to dismiss .an appeal taken from an order made at special term, vacating the assessment for opening Hadison Avenue. ,
    The application was made to the special term, and the judge there held there were such legal irregularities as warranted him in setting aside the assessment on the lots of the pe- • titioner.
    
      The petitioner now sought to have the appeal dismissed on the ground that no appeal lies from such an order.
    
      A. Brown, for the petitioner.
    
      W. Trull, for the Mayor, &c.
   By the Court.*—Ingraham, P. J.

It is very clear that this case does not fall within any of the class of cases in which ap•peals are allowed by the Code of Procedure. The chapter which regulates appeals to the general term is confined to judgments and orders made in an action. If there was any doubt about this construction as applied to the 350th section, it is removed by the 8th section, which limits the 2d part of the Code to civil actions, except when otherwise provided. All the provisions regulating appeals in that chapter apply to proceedings in actions, and they do not sustain the appeal in this case.

If there were no other provisions of law to sustain "this appeal, this motion ought to be granted.

The statute of 1854 (p. 592, ch. 270), extends the right of appeal to the general term, to a class of cases not embraced within the chapter of the Code before referred to. By that statute it is enacted that such appeal may be taken from any judgment, order, or final determination made at a special term, in any special proceeding in the court.

A special proceeding is defined to be any remedy other than an action. {Oode, § 3.)

Under this definition, a proceeding before referees to hear appeals from commissioners of highways has been decided to be a special proceeding. (People a. Flake, 14 How. Pr., 527.) An assessment of damages in laying out a plank-road (3 Code R., 148), a proceeding by commissioners to appraise compensation for lands taken under the Railroad Act (N. Y. Central R. R. C. a. Marvin, 1 Kern., 277), and other matters of a similar character, not originating as actions, have been held to be special proceedings.

We have no definition of a special proceeding given in the act of 1854, and if we take the definition as given by the Code, there pan, I think, be no difficulty in holding that the proceeding now under consideration is “a remedy (other than an action) for the redfess or punishment of a wrong.”

The act under which this proceeding was taken, allows the application to be made to a judge of the Supreme Court in special term or in vacation. Where the proceeding is taken in the special term, it is clear that a certiorari will not lie, because it would be addressed to the" same court in which it is made returnable. This objection, however, would not be good where the proceeding was before a justice of the court out-of court. It would then be similar to all other statutory proceedings, where a justice of the court is authorized out of court to conduct special proceedings, such as insolvent cases, attachments against vessels, summary proceedings for the possession of lands, and other proceedings of a similar character, in all of which a certiorari from this court is allowed to review the decisions therein. When this question was before the general term.of this district in the matter of 80th street, the court did not hold that the writ would not lie, but that as the allowance of a writ of certiorari rested in the sound discretion of the court, and as the parties had a complete remedy under the act of 1858, it was inexpedient to proceed by certiorari.

There may also be the additional reason, that as the writ of certiorari would only bring up the record, and not the evidence, complete justice could not be done in that mode between the parties. If the objection appeared upon the record, I see no reason why it might not be so reviewed. In Susquehanna Bank a. Supervisors of Broome Co. (25 N. Y., 312), Denio, Ch.-J., says, “we suppose-that a certiorari might at the discretion of the Supreme Court be awarded to determine the validity of a tax.” If of a tax, surely an assessment for a local improvement less extensive in its boundaries, and of less importance to the municipal authorities may be reviewed in the same way.

In the present cáse, however, the proceeding was commenced in the special term of the court, and is a proceeding in the court, just as much as if it were an action. The 5th section designates the decision of the judge as a judgment, and directs what proceedings shall he taken when that judgment be so rendered.

I am aware of the decision of the Court of Appeals, in the matter of the application of John M. Dodd to vacate an assessment, &c. That case appears to have been before a justice out of court, and the learned Chief-justice, when he says the act of 1854 has no application to the case, says it is because the proceeding is not in a court of justice. He says, to be a special proceeding, there must be a litigation in a court of justice. This proceeding is commenced by a notice to the adverse party, it is brought before the special • term of the court, evidence is taken before the court, the case is argued by the respective counsel, and judgment is rendered therein. There are no other requisites to be added to make it a litigation in a court of justice. Certainly, it is much more appropiately within the description of a special proceeding, than the admission of attorneys in the court, which was held by the Court of Appeals to be a subject of review in that court. The evils which must follow from applying that rule to these proceedings will be serious. In this case which involves assessments to a very large amount, we have now two decisions from different justices in direct conflict, the one holding that the case is within the statute, and the other that it is not, and a third application is pending and as yet undecided. If such conflicting decisions in matters of so much magnitude cannot be reviewed either by appeal or by certiorari, an amendment of the statute allowing such review is greatly needed.

Without expressing any opinion as to the right of appeal from an order made before a justice out of court, we think this case was pending in the special term of the court; that it has all the requisites of a special proceeding, viz., pleadings, trial, and judgment, and as such comes clearly within the description of a special proceeding in the Code, and under the act of 1854 is appealable. .

Motion denied. 
      
       The decision in that proceeding is reported 17 Ante, 324.
     
      Present, Ingraham, P. J., and Clerke, J.
     