Hite v. Lyons Central School District No. 1

Appellate Division of the Supreme Court of New York

Hite v. Lyons Central School District No. 1

11 A.D.2d 624, 200 N.Y.S.2d 144, 1960 N.Y. App. Div. LEXIS 10214

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

DecidedMay 5, 1960

StatusPublished

This text of 11 A.D.2d 624 (Hite v. Lyons Central School District No. 1) 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

Hite v. Lyons Central School District No. 1, 11 A.D.2d 624, 200 N.Y.S.2d 144, 1960 N.Y. App. Div. LEXIS 10214 (N.Y. Ct. App. 1960).

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Opinion

Order unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: The only motion before the court was addressed to the face of the complaint under rule 106 of the Rules of Civil Practice. However, in the first ordering paragraph of the order appealed from, the court directed respondent’s attorneys to deliver a copy of the notice of claim to the attorney for the defendant-appellant. This, we presume, was on the theory that the notice had been irregularly served in good faith by the plaintiff-respondent, even though that question was not directly before the court. Subdivision 6 of section 50-e of the General Municipal Law, and particularly the last sentence thereof, authorizes such an order, but if the application is made before trial, it must be made on affidavits. For this reason the first ordering paragraph must be amended by deleting therefrom all language except “ Ordered, that said motion be, and the same hereby is, denied.” The language of the second ordering paragraph must be amended so that the defendant Lyons Central School District shall be permitted to serve its answer rather than directed to do so. (Appeal from order of Wayne Special Term denying motion by defendant School District for a dismissal of plaintiffs’ complaint.) Present — Williams, P. J., Bastow, Goldman, Halpem and McClusky, JJ.

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Order unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: The only motion before the court was addressed to the face of the complaint under rule 106 of the Rules of Civil Practice. However, in the first ordering paragraph of the order appealed from, the court directed respondent’s attorneys to deliver a copy of the notice of claim to the attorney for the defendant-appellant. This, we presume, was on the theory that the notice had been irregularly served in good faith by the plaintiff-respondent, even though that question was not directly before the court. Subdivision 6 of section 50-e of the General Municipal Law, and particularly the last sentence thereof, authorizes such an order, but if the application is made before trial, it must be made on affidavits. For this reason the first ordering paragraph must be amended by deleting therefrom all language except “ Ordered, that said motion be, and the same hereby is, denied.” The language of the second ordering paragraph must be amended so that the defendant Lyons Central School District shall be permitted to serve its answer rather than directed to do so. (Appeal from order of Wayne Special Term denying motion by defendant School District for a dismissal of plaintiffs’ complaint.) Present — Williams, P. J., Bastow, Goldman, Halpem and McClusky, JJ.

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Bluebook (online)

11 A.D.2d 624, 200 N.Y.S.2d 144, 1960 N.Y. App. Div. LEXIS 10214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hite-v-lyons-central-school-district-no-1-nyappdiv-1960.