Pelicie v. Oswald

Appellate Division of the Supreme Court of New York

Pelicie v. Oswald

39 A.D.2d 827, 332 N.Y.S.2d 973, 1972 N.Y. App. Div. LEXIS 4506

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

DecidedMay 25, 1972

StatusPublished

This text of 39 A.D.2d 827 (Pelicie v. Oswald) 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

Pelicie v. Oswald, 39 A.D.2d 827, 332 N.Y.S.2d 973, 1972 N.Y. App. Div. LEXIS 4506 (N.Y. Ct. App. 1972).

Pincite

Opinion

Judgment unanimously modified in accordance with memorandum and as modified affirmed. Memorandum: This is an appeal from a judgment of the Supreme Court which denied appellant’s application for an order to show cause and dismissed the proceeding on the merits without a hearing. Appellant alleges in his petition that his imprisonment was illegal by reason of erroneous action on the part of the Parole Board. The court properly denied the . application but should not have directed judgment dismissing the proceeding “ on the merits ” [828]*828(italics supplied) (Matter of Harris v. New York State Bd. of Parole, 7 A D 2d 662; cf. People v. Brabson, 21 A D 2d 748; Donner v. Baker, 11 A D 2d 905). If The court should have denied petitioner’s ex parte application without prejudice. The dismissal of the application without a hearing should not prevent the petitioner from commencing a proper proceeding if he be so advised. (Appeal from judgment of Cayuga Special Term denying application for show cause order.) Present ■—Goldman, P. J., Del Vecehio, Gabrielli, Moule and Henry, JJ.

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Judgment unanimously modified in accordance with memorandum and as modified affirmed. Memorandum: This is an appeal from a judgment of the Supreme Court which denied appellant’s application for an order to show cause and dismissed the proceeding on the merits without a hearing. Appellant alleges in his petition that his imprisonment was illegal by reason of erroneous action on the part of the Parole Board. The court properly denied the . application but should not have directed judgment dismissing the proceeding “ on the merits ” [828]*828(italics supplied) (Matter of Harris v. New York State Bd. of Parole, 7 A D 2d 662; cf. People v. Brabson, 21 A D 2d 748; Donner v. Baker, 11 A D 2d 905). If The court should have denied petitioner’s ex parte application without prejudice. The dismissal of the application without a hearing should not prevent the petitioner from commencing a proper proceeding if he be so advised. (Appeal from judgment of Cayuga Special Term denying application for show cause order.) Present ■—Goldman, P. J., Del Vecehio, Gabrielli, Moule and Henry, JJ.

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Bluebook (online)

39 A.D.2d 827, 332 N.Y.S.2d 973, 1972 N.Y. App. Div. LEXIS 4506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelicie-v-oswald-nyappdiv-1972.