Mohican Cable T. V. Corp. v. Cronin

Appellate Division of the Supreme Court of New York

Mohican Cable T. V. Corp. v. Cronin

34 A.D.2d 692, 309 N.Y.S.2d 480, 1970 N.Y. App. Div. LEXIS 5134

Appellate Division of the Supreme Court of the State of New York·Decided April 13, 1970·Published·Cited by 4 cases

Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, Warren County, dismissing appellant’s application, in a proceeding brought pursuant to CPLR article 78, to declare that a franchise agreement between appellant and the Common Council of the City of Glens Falls is valid and in full force and effect. While Special Term was correct in its decision that mandamus does not lie, nevertheless -Special Term has the authority to determine that while the petitioner has prosecuted its action in an improper form and has requested relief to which it is not entitled, that fact alone does not bar its receiving the relief to which it is entitled (CPLR 103, subd. [e]; 105, subd. [d]; Matter of Lakeland Water List. V. Onondaga County Water Auth., 24 N Y 2d 400; Matter of Phalen v. Theatrical Protective Union No. 1, 22 N Y 2d 34, cert. den. 393, U. S. 1000; Matter of Gorbeau Gonstr. Gorp. v. Board of TSduc., Union Free School Dist. No. 9, 32 A D 2d 958). Accordingly, the ease must be remanded to Special Term to prescribe, in a proper order, pursuant to CPLR 103 (subd. [c]), the further prosecution of this action. Judgment reversed, on the law and the facts, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Herlihy, P. J., Reynolds, Greenblott. Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.

Free access — add to your briefcase to read the full text and ask questions with AI

Reynolds, J.

Appeal from a judgment of the Supreme Court, Warren County, dismissing appellant’s application, in a proceeding brought pursuant to CPLR article 78, to declare that a franchise agreement between appellant and the Common Council of the City of Glens Falls is valid and in full force and effect. While Special Term was correct in its decision that mandamus does not lie, nevertheless -Special Term has the authority to determine that while the petitioner has prosecuted its action in an improper form and has requested relief to which it is not entitled, that fact alone does not bar its receiving the relief to which it is entitled (CPLR 103, subd. [e]; 105, subd. [d]; Matter of Lakeland Water List. V. Onondaga County Water Auth., 24 N Y 2d 400; Matter of Phalen v. Theatrical Protective Union No. 1, 22 N Y 2d 34, cert. den. 393, U. S. 1000; Matter of Gorbeau Gonstr. Gorp. v. Board of TSduc., Union Free School Dist. No. 9, 32 A D 2d 958). Accordingly, the ease must be remanded to Special Term to prescribe, in a proper order, pursuant to CPLR 103 (subd. [c]), the further prosecution of this action. Judgment reversed, on the law and the facts, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Herlihy, P. J., Reynolds, Greenblott. Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.

Mohican Cable T. V. Corp. v. Cronin, 34 A.D.2d 692, 309 N.Y.S.2d 480, 1970 N.Y. App. Div. LEXIS 5134 (N.Y. Ct. App. 1970).

Pincite

34 A.D.2d 692 (Mohican Cable T. V. Corp. v. Cronin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related