People ex rel. Gantz v. Herold

24 A.D.2d 776, 263 N.Y.S.2d 595, 1965 N.Y. App. Div. LEXIS 3197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1965
• Status: Published

Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, Clinton County, dismissing relator’s petition for a writ of habeas corpus for failure to comply with the provisions of CPLR article 70. It is clear that relator’s petition fails to comply with CPLR 7002 (subd. [e], par. 1) and 7002 (subd. [c], par. 6) and thus was properly dismissed by the court below (e.g., People ex rel. Dunn v. McMann, 23 A D 2d 510). Appellant urges that we consider his brief, the appendix to which supplies the deleted material, as a de novo application for the writ to the original jurisdiction of this court. However, in proceedings of this nature we cannot sanction the supplying of the missing information for the first time in this court so as to cure the fatal defect. The orderly processing of the myriad of eases such as the instant one requires us, except in extremely unusual eases, to limit our function to appellate review. Thus appellant should have resubmitted his petition in corrected form to the court below for its initial determination on the merits before bringing his appeal to this court. Judgment affirmed, without costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.