M-L Servicing, Inc. v. Briggs

Appellate Division of the Supreme Court of New York

M-L Servicing, Inc. v. Briggs

5 A.D.2d 1042, 173 N.Y.S.2d 176, 1958 N.Y. App. Div. LEXIS 6206

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

DecidedApril 28, 1958

StatusPublished

Cited by1 cases

This text of 5 A.D.2d 1042 (M-L Servicing, Inc. v. Briggs) 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

M-L Servicing, Inc. v. Briggs, 5 A.D.2d 1042, 173 N.Y.S.2d 176, 1958 N.Y. App. Div. LEXIS 6206 (N.Y. Ct. App. 1958).

Pincite

Opinion

Appeal from an order of County Court, Albany County, denying a motion for a writ of error coram nobis. In this coram nobis proceeding addressed to a judgment of conviction for assault, second degree, entered in the Albany County Court May 9, 1934, the defendant swore that he was not represented by counsel and had not been advised by the court' of his right to counsel. These allegations are not refuted by the public record of [1036]*1036the proceedings. In opposition to the application the District Attorney submitted an affidavit stating that his office records show that counsel had been assigned to the defendant and had acted for him. The originals of those records were submitted to the Judge on the application and examined by him. The court’s ex parte examination of proof afforded no opportunity to the defendant to meet or controvert the proof and this is not cured by filing of photostatic copies on the appeal. Issues of this sort are not triable on appeal, which affords no opportunity to controvert or dispute facts, and the court is required to act on the adversary record made below. A triable issue is presented and a hearing should be had. Order reversed and the proceeding remitted to the County Court for a hearing.

Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.

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Appeal from an order of County Court, Albany County, denying a motion for a writ of error coram nobis. In this coram nobis proceeding addressed to a judgment of conviction for assault, second degree, entered in the Albany County Court May 9, 1934, the defendant swore that he was not represented by counsel and had not been advised by the court' of his right to counsel. These allegations are not refuted by the public record of [1036]*1036the proceedings. In opposition to the application the District Attorney submitted an affidavit stating that his office records show that counsel had been assigned to the defendant and had acted for him. The originals of those records were submitted to the Judge on the application and examined by him. The court’s ex parte examination of proof afforded no opportunity to the defendant to meet or controvert the proof and this is not cured by filing of photostatic copies on the appeal. Issues of this sort are not triable on appeal, which affords no opportunity to controvert or dispute facts, and the court is required to act on the adversary record made below. A triable issue is presented and a hearing should be had. Order reversed and the proceeding remitted to the County Court for a hearing.

Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.

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Bluebook (online)

5 A.D.2d 1042, 173 N.Y.S.2d 176, 1958 N.Y. App. Div. LEXIS 6206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-l-servicing-inc-v-briggs-nyappdiv-1958.

Opinion

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