Quirk v. Kelly

Appellate Division of the Supreme Court of New York

Quirk v. Kelly

7 A.D.2d 463, 184 N.Y.S.2d 761, 1959 N.Y. App. Div. LEXIS 9259

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

DecidedApril 8, 1959

StatusPublished

This text of 7 A.D.2d 463 (Quirk v. Kelly) 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.

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Quirk v. Kelly, 7 A.D.2d 463, 184 N.Y.S.2d 761, 1959 N.Y. App. Div. LEXIS 9259 (N.Y. Ct. App. 1959).

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Memorandum by the Court. The operator’s license of the petitioner was revoked and his certificate of registration suspended pursuant- to the provisions of section 71 (subd. 2, par. [b]) and section 94-a of the Vehicle and Traffic Law. The Motor Vehicle Commissioner had before him certain papers presumably forwarded to his office from the Motor Vehicles Branch of the Department of Highways in Ontario, Canada, accompanied by a certificate of the Registrar of Motor Vehicles that such papers are true copies of the originals on file in the office of the Motor Vehicles Branch of the Department of Highways. Among such papers is a so-called “ Certificate of Conviction ”. This paper is a printed form and is partially filled out in handwriting. Petitioner’s name and address are filled in; opposite the printed word “ Offence ” is written “ Ability impaired ”; opposite “ Act Violated ” — “ CC Sec. 223 ”; and ‘ ‘ Date ” — “ July 16,1955 ’ ’; “ Date of Conviction ” — “ July 19 ”; “ name of complainant ” (not filled in); “Name of magistrate” — “ Gr. B. Frostes Note that the last item is simply the name and not the signature of the Magistrate. Other spaces unimportant for the purposes of this memo are not filled in. At the bottom of the paper is a printed form for a certificate reading as follows: “ I hereby certify that the information given by me herewith is a true abstract from the records of the Court held at Bradford on July 19 1955. Dated July 28 1955

Signature of Magistrate or Court Clerk ”

No signature of either the Magistrate or the Court Clerk appears on the paper. The space for the signature of the [465]*465Magistrate or Court Clerk is entirely blank. The form does not indicate the name or location of the court for which its use was intended. There is no proof, or in fact any evidence, that the paper is a copy of a court record and consequently no proof that the petitioner was convicted of any violation of law. It follows that the Commissioner of Motor Vehicles had no proof before him that the petitioner was convicted of driving while ability is impaired either by alcohol or for any other reason. The determination must, therefore, be annulled. In view of the fact that the commissioner had no certificate of conviction before him, we do not reach the question of whether a certificate of conviction from the Province of Ontario is required to be authenticated in accordance with the provisions of the Civil Practice Act when used by the Commissioner of Motor Vehicles as a basis for revocation of an operator’s license.

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Memorandum by the Court. The operator’s license of the petitioner was revoked and his certificate of registration suspended pursuant- to the provisions of section 71 (subd. 2, par. [b]) and section 94-a of the Vehicle and Traffic Law. The Motor Vehicle Commissioner had before him certain papers presumably forwarded to his office from the Motor Vehicles Branch of the Department of Highways in Ontario, Canada, accompanied by a certificate of the Registrar of Motor Vehicles that such papers are true copies of the originals on file in the office of the Motor Vehicles Branch of the Department of Highways. Among such papers is a so-called “ Certificate of Conviction ”. This paper is a printed form and is partially filled out in handwriting. Petitioner’s name and address are filled in; opposite the printed word “ Offence ” is written “ Ability impaired ”; opposite “ Act Violated ” — “ CC Sec. 223 ”; and ‘ ‘ Date ” — “ July 16,1955 ’ ’; “ Date of Conviction ” — “ July 19 ”; “ name of complainant ” (not filled in); “Name of magistrate” — “ Gr. B. Frostes Note that the last item is simply the name and not the signature of the Magistrate. Other spaces unimportant for the purposes of this memo are not filled in. At the bottom of the paper is a printed form for a certificate reading as follows: “ I hereby certify that the information given by me herewith is a true abstract from the records of the Court held at Bradford on July 19 1955. Dated July 28 1955

Signature of Magistrate or Court Clerk ”

No signature of either the Magistrate or the Court Clerk appears on the paper. The space for the signature of the [465]*465Magistrate or Court Clerk is entirely blank. The form does not indicate the name or location of the court for which its use was intended. There is no proof, or in fact any evidence, that the paper is a copy of a court record and consequently no proof that the petitioner was convicted of any violation of law. It follows that the Commissioner of Motor Vehicles had no proof before him that the petitioner was convicted of driving while ability is impaired either by alcohol or for any other reason. The determination must, therefore, be annulled. In view of the fact that the commissioner had no certificate of conviction before him, we do not reach the question of whether a certificate of conviction from the Province of Ontario is required to be authenticated in accordance with the provisions of the Civil Practice Act when used by the Commissioner of Motor Vehicles as a basis for revocation of an operator’s license.

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7 A.D.2d 463, 184 N.Y.S.2d 761, 1959 N.Y. App. Div. LEXIS 9259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quirk-v-kelly-nyappdiv-1959.

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