In re Trustees of the Presbytery

Van Hoesen, J. When the petition was presented to the special term of the common pleas, the counsel of the corporation appeared for the purpose of objecting to the jurisdiction of the court. The substance of his objection is, that the act of 1858, under which the proceeding is taken, provides that the petition shall be presented to a justice of the supreme court. The counsel conceded that if the application to vacate an assessment were what the Code styles a special proceeding, the court of common pleas would, by virtue of the act of 1873, have jurisdiction. The court of appeals, In the Matter of Dodd (27 N. Y., 629), decided that such an application would not be a special proceeding when made to a judge of the supreme court out of court. In the subsequent case, entitled “In the Matter of Frederick D. Tappan," the manuscript opinion which has been handed to me by the counsel for the petitioner, the court of appeals held that when the application is made to the court at special term, the proceeding certainly is a special proceeding. I feel bound to follow the last-mentioned decision as it is the latest utterance of the court. I. must, therefore, hold this application to be a special proceeding, and of special proceedings this court unquestionably has jurisdiction. Let an order be entered appointing Rufus F. Andrews, Esq., referee, to hear the proofs and allegations of the parties respecting the matters mentioned in the petition. Motion granted.