McElroy v. McAndrews

10 A.D.2d 852, 199 N.Y.S.2d 190, 1960 N.Y. App. Div. LEXIS 10819

Opinion

Motion to dismiss the petition on the ground that it fails to state facts sufficient to constitute grounds for the relief sought (Civ. Prae. Act, § 1293). Motion denied, without costs. Respondents may, if so advised, serve and file an answer within 10 days after service of a copy of the order to foe entered hereon with notice of entry. Although the motion has been accepted for determination, it should have been made and determined at the Special Term. We do not approve the practice of transferring a proceeding pursuant to article 78 of the Civil Practice Act, including a motion such as this, to the Appellate Division, prior to the raising of issues by answer to the petition. (See Civ. Prac. Act, § 1296, 1st unnumbered par. following subd. 7.) Present — Beldock, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ.