Dachs v. Ward

236 A.D. 174, 258 N.Y.S. 141, 1932 N.Y. App. Div. LEXIS 5922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1932
• Status: Published

Opinion

Per Curiam.

This is certiorari to review the determination of the Adjutant-General of the State of New York in denying petitioner a pension under section 220 of the Military Law (as amd. by Laws of 1923, chap. 461). The pension was denied on the ground that petitioner was never a legal member of the State militia because concededly over forty-five years of age at the time of his alleged enlistment, and being an alien had not taken out his first papers for citizenship, and, therefore, could not acquire a right to a pension under said section 220. The petition alleges that on May 4, 1931, the petitioner was finally notified that his application for pension was denied; and that his attorney was notified on June 2, 1931, as to the reasons for the determination. The decision of the Adjutant-General, dated May 4, 1931, was final and binding. Review by certiorari is permissible under Civil Practice Act, section 1288, only if a certiorari order is “ granted and served within four calendar months after the determination to be reviewed becomes final and binding.” (People ex rel. Cook v. Hildreth, 126 N. Y. 360.) It was not until September 22, 1931, that petitioner verified his petition for certiorari. The order of certiorari was granted at a Special Term in New York county, held on October 1, 1931, and was granted ex parte, the court in its discretion having dispensed with notice of application for the order.

The certiorari order having been granted more than four months after the determination to be reviewed became final and binding, the proceeding was not instituted within the time limited by the statute and must, therefore, be dismissed.

All concur; McNamee, J., not voting.

Certiorari proceeding dismissed, without costs.