The opinion
Allen,
J.,
dissenting.
— If the court below had not. the power to grant the motion, the order should be affirmed. If the power existed, its exercise was in the-discretion of the city court of Brooklyn; and the action, of that court in the exercise of that discretion is not the subject of review in this court. In one or more cases in which we have thought the court of original jurisdiction had erred in refusing to act by reason of a supposed, want of power, we have reversed the orders and remitted the
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proceedings, to the end that the proper court might exercise the discretion the law had vested in it. In these cases it appeared, by the order and record of the court, that the decision of the court below was placed exclusively oh the ground of a want of power. Here we have not the record evidence. The motion at special term was denied for want of power and for other reasons stated; showing conclusively that the relief was' not denied solely upon the ground that the court had no power to grant it. The clear inference from the terms of the order is, that the judge doubted whether the court had power to order the information to be furnished; but if it had the power, a proper case had not been made for the exercise of the power. If the opinion is referred to, the same conclusion will be arrived at. The judge had evidently great doubts, and inclined to the opinion that there was a want of power, but was also of opinion that it was not a proper case for the relief if the power existed. The order at the general term .surely affirms the order without assigning or declaring the reasons ; and we must assume that it was affirmed on the merits, it not appearing that it was affirmed for any other reason. If the fact be that it was affirmed under the statute, by a divided court, which is not stated in the order, the result would be the same. The facts giving this court jurisdiction of the appeal must appear by the record. They do not so appear in the case. I am for the dismissal of the appeal.
Judge Gbover doubts the existence of the power, but concurs in the opinion of judge Allen.