New York Cent. R. Co. v. Pub. Serv. Comm'n

• Decision Date: 13 May 1924
• Citation: 144 N.E. 365,238 N.Y. 132
• Parties: NEW YORK CENT. R. CO. v. PUBLIC SERVICE COMMISSION et al.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 132

144 N.E. 365

NEW YORK CENT. R. CO.

v.PUBLIC SERVICE COMMISSION et al.

Court of Appeals of New York.

May 13, 1924.

Application for certiorari order by the New York Central Railroad Company to review a determination of the Public Service Commission of the State of New York. From an order of the Appellate Division of the Supreme Court for the Third Department (207 App. Div. 878,201 N. Y. Supp 928), affirming an order of the Special Term (121 Misc. Rep. 127,200 N. Y. Supp. 843), which denied a motion of the applicant to vacate a previous order of the Special Term setting aside an order of certiorari, applicant appeals.

Orders reversed.

Appeal from Supreme Court, Appellate Division, Third department.

Rann, Vaughan Brown & Sturtevant, of Buffalo (Noel S. Symons, of Buffalo, of counsel), for appellant.

Charles G. Blakeslee, of Binghamton (Russell B. Burnside, of New York City, of counsel), for respondents.

CRANE, J.

The point to be determined upon this appeal is the time within which to apply for a certiorari order to review a final order of the Public Service Commission directing a railroad company to make repairs.

On November 23, 1922, the Public Service Commission of the state of New York made its order in the matter entitled ‘In the matter of the complaint of the town board and board of highway superintendents of the town of West Seneca, Erie county, against the New York Central Railroad Company as to repair of roadways and sidewalks on portions of approaches to the Clinton street and Mineral Spring road overhead bridges of said company's railroad in said town.’

This order directed the New York Central Company to maintain and keep in repair the bridge and approaches thereto and the roadway and sidewalks thereon carrying Clinton street over its railroad yards in the town of West Seneca, Erie county, within the limits of its property. The same direction was given regarding the bridge carrying the Mineral Spring road over the tracks in the said town. The company was also required to begin work within 30 days and to complete all the repairs with due diligence.

This order was served on the petitioner December 6, 1922.

‘On January 3, 1923, and within the time provided by the rules of the Public Service Commission (rule III, subd. 7), application was made to the Commission for a rehearing as expressly authorized by section 22 of the Public Service Commission Law.’

On January 4, 1923, the Public Service Commission made an order denying the rehearing.

On April 23, 1923, a certiorari order was granted ex parte at a special term of the Supreme Court, Albany county, which on April 26, 1923, was vacated ex parte.

The appellant made a motion to set aside this ex parte order of April 26, 1923, and to reinstate the order of certiorari. Its application was denied May 26, 1923, and the appeal is from this order which has been affirmed by the Appellate Division, one of the justices dissenting. The application for an order of certiorari has been denied upon the ground that it was not applied for in time. The question is as to the date from which the four months within which to make the application is to run. Does it begin with November 23, 1922, or with January 4, 1923? The order of certiorari was applied for April 23, 1923. If the four months begin to run with the earlier date, the denial of this application was proper. If, however, the later date is controlling, the application was in time, and should have been granted.

The statutes and law upon this subject are as follows:

Section 1288 of the Civil Practice Act reads:

‘Subject to the provisions of the next section, a certiorari order to review a determination must be granted and served within four calendar months after the determination to be reviewed becomes final and binding, upon the petitioner or the person whom he represents, either in law or in fact.’

Section 1286 contains a limitation. It reads:

‘Except as otherwise expressly prescribed by statute, a certiorari order cannot be granted in either of the following cases: * * *

‘3. Where the body or officer making the determination is expressly authorized, by statute to rehear the matter upon the petitioner's application; unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed.’

The decision of this case turns upon the meaning of the words in section 1288, ‘after the determination to be reviewed becomes final and binding.’ The determination or judgment of a court may become final and binding, for the purpose of being obeyed, carried out, and executed without being final and binding for the purposes of review. Two processes in law may go on at the same time; one to carry out the judgment directed by the court, the other to review that judgment for the purpose of reversing it or setting it aside. The one process does not have to wait upon the other. Thus, a judgment to recover money may be final to the extent that execution may be issued against the judgment debtor and the money collected, while at the same time the judgment debtor may appeal from the judgment and perhaps ultimately reverse it. So, also, a judgment of conviction in a criminal case may be carried out and the defendant imprisoned, while at the same time he may be carrying through the courts his appeal, and finally succeed in setting the judgment aside. In other words, the fact that a judgment is final for the purpose of its present execution does not necessarily make it final for the purposes of appeal. The right to appeal depends entirely upon statute, and the time within which to take the appeal is a matter of legislative expressionand intent. In this case,...