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

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

DecidedApril 13, 1970

StatusPublished

Cited by4 cases

This text of 34 A.D.2d 692 (Mohican Cable T. V. Corp. v. Cronin) 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

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).

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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.

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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.

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Bluebook (online)

34 A.D.2d 692, 309 N.Y.S.2d 480, 1970 N.Y. App. Div. LEXIS 5134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mohican-cable-t-v-corp-v-cronin-nyappdiv-1970.

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