Lord v. McCauley

Appellate Division of the Supreme Court of New York

Lord v. McCauley

256 A.D. 897, 9 N.Y.S.2d 12, 1939 N.Y. App. Div. LEXIS 5296

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

DecidedJanuary 12, 1939

StatusPublished

This text of 256 A.D. 897 (Lord v. McCauley) 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

Lord v. McCauley, 256 A.D. 897, 9 N.Y.S.2d 12, 1939 N.Y. App. Div. LEXIS 5296 (N.Y. Ct. App. 1939).

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Opinion

Judgment affirmed, without costs of this appeal to either party. Appeal from order dismissed, without costs, as academic, it having been merged in the judgment. Memorandum: The sufficiency of the petition delivered to the town clerk of the town of Evans on September 19, 1938, has not been challenged in this action. This being the fact, it is not-apparent [898]*898how the plaintiffs could have been prejudiced because the town clerk removed the petition from his office and delivered it to the town superintendent of schools on September 25, 1938. An inspection would have found it to be in conformity to the statute. Plaintiffs sought to establish by the testimony of the town clerk that he did not file the petition in his office prior to the meeting of October 1, 1938. The clerk’s uncorroborated testimony was not sufficient to overcome the presumption of filing created by his certificate that the petition was filed in his office on September 19, 1938. (Albany Co. Sav. Bank v. McCarty, 149 N. Y. 71, 80.) The dismissal of the complaint at the close of the plaintiffs’ evidence, therefore, was proper. All concur. (The judgment dismisses the complaint in an action for a declaratory judgment by taxpayers. The order is the order of non-suit by the official referee.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.

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Judgment affirmed, without costs of this appeal to either party. Appeal from order dismissed, without costs, as academic, it having been merged in the judgment. Memorandum: The sufficiency of the petition delivered to the town clerk of the town of Evans on September 19, 1938, has not been challenged in this action. This being the fact, it is not-apparent [898]*898how the plaintiffs could have been prejudiced because the town clerk removed the petition from his office and delivered it to the town superintendent of schools on September 25, 1938. An inspection would have found it to be in conformity to the statute. Plaintiffs sought to establish by the testimony of the town clerk that he did not file the petition in his office prior to the meeting of October 1, 1938. The clerk’s uncorroborated testimony was not sufficient to overcome the presumption of filing created by his certificate that the petition was filed in his office on September 19, 1938. (Albany Co. Sav. Bank v. McCarty, 149 N. Y. 71, 80.) The dismissal of the complaint at the close of the plaintiffs’ evidence, therefore, was proper. All concur. (The judgment dismisses the complaint in an action for a declaratory judgment by taxpayers. The order is the order of non-suit by the official referee.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.

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Bluebook (online)

256 A.D. 897, 9 N.Y.S.2d 12, 1939 N.Y. App. Div. LEXIS 5296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lord-v-mccauley-nyappdiv-1939.

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