Barnes v. Maguire

49 A.D.2d 666, 371 N.Y.S.2d 725, 1975 N.Y. App. Div. LEXIS 10504

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 24, 1975
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered March 13, 1972 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, denied appellants’ motion to dismiss the petition and ordered the Board of Water Supply of the City of New York to map petitioners-respondents’ premises forthwith and to apply for the appointment of commissioners. The judgment should be modified in accordance with this court’s decision in Matter of Tobin v Ford (49 AD2d 83). In addition the judgment grants relief to not only the petitioners but also "all others similarly situated”. This is clearly improper (see Matter of Huie ¡McElligott], 7 AD2d 599) especially in that it amounts to the granting of relief to a person not party to the action (Deep South Oil Co. of Texas v Epstein, 10 AD2d 551). This relief was not requested in the petitions herein or the prayers for relief. Accordingly, any reference to these "similarly situated” should, in ¿ny event, be stricken from the judgment. Judgment modified, on the law and the facts, without costs, by vacating so much thereof as requires that appellants map the petitioners’ premises and apply for the appointment of Commissioners of Appraisal, by striking all references to "all others similarly situated” and by adding thereto a provision granting appellants leave to answer within 20 days after service of a copy of the order to be entered herein with notice of entry, and, as so modified, affirmed. Herlihy, P. J., Sweeney, Kane, Larkin and Reynolds, JJ., concur.