Ambro v. Coveney

28 A.D.2d 999, 283 N.Y.S.2d 523, 1967 N.Y. App. Div. LEXIS 3332

Opinion

Christ, Brennan, Rabin and Hopkins, JJ., concur; Beldock, P. J., concurs in granting leave to appeal to the'Court of Appeals, but otherwise dissents and votes to reverse the judgment and to grant' leave to petitioners to reply to the answer, with the following memorandum: In my opinion, the service by appellant upon the attorney for petitioners, within the statutory period, of the notice of cross motion and the answer to the -petition, wherein appellant demanded affirmative relief, entitled him to an adjudication on the merits. This fight to such adjudication, by virtue of the joinder of issue and the nature of the pleadings before the court, could not be destroyed by petitioners’ unilateral action in moving to withdraw the petition to the prejudice of appellant. In light of the changes made by the Civil-Practice Law and Rules, particularly with respect to the liberalization of practice in special proceedings (GPLR 402), it is my view that Matter of Tuomey v. Cohen (296 N. Y. 628), which was decided under the former Civil Practice Act, is distinguishable and may no longer be deemed controlling.