McDonough v. Plotnick

Appellate Division of the Supreme Court of New York

McDonough v. Plotnick

8 A.D.2d 844, 190 N.Y.S.2d 413, 1959 N.Y. App. Div. LEXIS 7892

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

DecidedJune 22, 1959

StatusPublished

This text of 8 A.D.2d 844 (McDonough v. Plotnick) 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

McDonough v. Plotnick, 8 A.D.2d 844, 190 N.Y.S.2d 413, 1959 N.Y. App. Div. LEXIS 7892 (N.Y. Ct. App. 1959).

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Opinion

Appeal from an order of the Domestic Relations Court of the City of New York, Children’s Court Division, County of Kings, adjudicating that the two children of appellants are neglected and continuing the matter for investigation and examination. Appeal dismissed, without costs. The order is not a final order or judgment. (N. Y. City Dom. Rel. Ct. Act, § 58; Matter of Sullivan v. Sullivan, 4 A D 2d 785.) Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ., concur; Beldoek, J., dissents and votes to reverse the order and to dismiss the petition, with the following memorandum: In my opinion, the portion of the order of November 24, 1958 adjudicating that the two children are neglected is final within the meaning of section 58 of the Domestic Relations Court Act of the City of New York and is, therefore, appeal-able. To dismiss this appeal despite the fact that this court is unanimously of the opinion that the determination below is based on extraneous hearsay matters not alleged in the petition and, therefore, that there is no competent evidence to sustain any of the essential specifications of the petition seems to me to be an unjust result. Since the determination seriously affects the welfare of children and their parents, a dismissal of the appeal of the parents from a patently erroneous adjudication is a result which should be avoided.

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Appeal from an order of the Domestic Relations Court of the City of New York, Children’s Court Division, County of Kings, adjudicating that the two children of appellants are neglected and continuing the matter for investigation and examination. Appeal dismissed, without costs. The order is not a final order or judgment. (N. Y. City Dom. Rel. Ct. Act, § 58; Matter of Sullivan v. Sullivan, 4 A D 2d 785.) Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ., concur; Beldoek, J., dissents and votes to reverse the order and to dismiss the petition, with the following memorandum: In my opinion, the portion of the order of November 24, 1958 adjudicating that the two children are neglected is final within the meaning of section 58 of the Domestic Relations Court Act of the City of New York and is, therefore, appeal-able. To dismiss this appeal despite the fact that this court is unanimously of the opinion that the determination below is based on extraneous hearsay matters not alleged in the petition and, therefore, that there is no competent evidence to sustain any of the essential specifications of the petition seems to me to be an unjust result. Since the determination seriously affects the welfare of children and their parents, a dismissal of the appeal of the parents from a patently erroneous adjudication is a result which should be avoided.

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Bluebook (online)

8 A.D.2d 844, 190 N.Y.S.2d 413, 1959 N.Y. App. Div. LEXIS 7892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonough-v-plotnick-nyappdiv-1959.