De Perno v. Dulan

11 A.D.2d 1092 | N.Y. App. Div. | 1960

Motion for reargument or for leave to appeal to the Court of Appeals denied. Memorandum: The proceeding was erroneously transferred to this court; the objections in point of law should have been passed upon by Special Term. (Civ. Prae. Act, § 1296.) However, in order to expedite the disposition of the proceeding, the parties stipulated that “ if the objections in point of law to the Petition herein are overruled, then the Answer and Reply are to be considered as filed with the Appellate Division, Fourth Department, and made a part of the record herein, and the Court can consider the entire ease on the merits and the Answer and Reply are hereby made a part of the record on appeal”. An answer and reply were filed with the court pursuant to this stipulation. They did not raise any genuine material issue of fact requiring a hearing before the court and no hearing was then or thereafter requested by either party. The minutes of the hearing held by the Mayor, printed in the original record, certified to be correct by the stipulation of both parties, were deemed to be part of the answer. Since this was an article 78 proceeding seeking a review of a determination made after a quasi-judicial hearing before the Mayor, at which “ evidence was taken, pursuant to statutory direction ”, the review by the court was, of course, limited to the evidence produced at the administrative hearing. (Civ. Prae. Act, § 1296.) Insofar as any issues of fact were raised at the hearing before the Mayor, and disposed of by his determination, the only question upon review was whether there was substantial evidence to support his determination and we found that there was such evidence. Present — Bastow, J. P., Goldman, Halpern, MeClusky and Henry, JJ.