Trimble v. O'Brien

283 A.D. 920, 130 N.Y.S.2d 297, 1954 N.Y. App. Div. LEXIS 5767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1954
• Status: Published

Opinion

Per Curiam.

Respondents-appellants’ contentions are overteehnical and unrealistic. Petitioner’s uncontradicted allegations fully explain petitioner’s delay until 1950. Because of petitioner’s factual allegations regarding the hack bureau’s approval of the arrangements set forth in petitioner’s affidavit, none of which is denied or questioned by any factual affidavits of respondents-appellants, appellants are estopped. Concededly no notice was ever given of any intention to withdraw the approval given.

Petitioner is not barred by laches. The Malone license was never formally revoked or its reissuance denied until July 21, 1950. This proceeding was brought well within the four-month period.

When the administrator of Mae Malone was substituted for her, the administrator should also have moved to substitute the successor police commissioner and his deputy. Such persons were sued, not in their individual but in their official capacity and substitution of course would be granted. In view of the long delay, including four years’ delay on the appeal by appellants from 1950 to 1954, we will deem that a motion for substitution of the proper public officials was made and granted, without costs, and the order appealed from should be modified accordingly, with costs, to petitioner-respondent. Settle order. Peek, P. J., Dore, Cohn, Bastow and Botein, JJ., concur.

Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, with costs, to the petitioner-respondent. Settle order on notice.