Berlingieri v. O'Connell

Appellate Division of the Supreme Court of New York

Berlingieri v. O'Connell

3 A.D.2d 762, 160 N.Y.S.2d 390, 1957 N.Y. App. Div. LEXIS 6134

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 18, 1957

StatusPublished

This text of 3 A.D.2d 762 (Berlingieri v. O'Connell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berlingieri v. O'Connell, 3 A.D.2d 762, 160 N.Y.S.2d 390, 1957 N.Y. App. Div. LEXIS 6134 (N.Y. Ct. App. 1957).

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Opinion

In a proceeding to review a determination of the State Liquor Authority which denied an application for a restaurant beer license, the appeal is from an order granting a motion to dismiss the petition on the ground of res judicata. Order reversed, without costs, and motion denied, with leave to respondents to answer within 20 days after the entry of the order hereon. A motion to dismiss an article 78 proceeding, before answer, is in the nature of a demurrer, and only the petition may be considered. Affidavits alleging new matter constituting a defense of res judicata may not be considered; such a defense must be asserted by way of answer (Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 278 App. Div. 959; Matter of Foy v. Brennan, 131 N. Y. S. 2d 151, revd. on other grounds 285 App. Div. 669; 22 Carmody-Wait on New York Practice, pp. 484—486). The petition herein is sufficient on its face. Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.

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In a proceeding to review a determination of the State Liquor Authority which denied an application for a restaurant beer license, the appeal is from an order granting a motion to dismiss the petition on the ground of res judicata. Order reversed, without costs, and motion denied, with leave to respondents to answer within 20 days after the entry of the order hereon. A motion to dismiss an article 78 proceeding, before answer, is in the nature of a demurrer, and only the petition may be considered. Affidavits alleging new matter constituting a defense of res judicata may not be considered; such a defense must be asserted by way of answer (Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 278 App. Div. 959; Matter of Foy v. Brennan, 131 N. Y. S. 2d 151, revd. on other grounds 285 App. Div. 669; 22 Carmody-Wait on New York Practice, pp. 484—486). The petition herein is sufficient on its face. Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.

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Bluebook (online)

3 A.D.2d 762, 160 N.Y.S.2d 390, 1957 N.Y. App. Div. LEXIS 6134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berlingieri-v-oconnell-nyappdiv-1957.

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