Huberman v. O'Connell

282 A.D. 762 | N.Y. App. Div. | 1953

In this proceeding to review a determination of respondent State Liquor Authority approving the removal of the retail liquor business of respondent Clarendon Liquor Corp. to different store premises, the appeal is from an order dismissing the petition, made on July 8, 1952, in accordance with a decision rendered on June 27, 2952. The original petitioner died on June 28, 1952, and his executrix was not substituted in his place as a party herein until October 16, 1952, when an order to such effect was made. The notice of appeal was served in the meantime, and on July 11, 1952, prior to the time of the effectuation of said substitution, and was issued in the name of the deceased petitioner. No further notice of appeal has been served and it also does not appear that the substituted petitioner has been given permission to appeal pursuant to section 99 of the Civil Practice Act. Since there was no party petitioner at the time of the service of the notice of appeal, the said service was a nullity and, therefore, there is no appeal pending before this court. On December 22,1952, this court denied a motion by respondent Clarendon Liquor Corp., in which motion respondent State Liquor Authority joined, to dismiss the appeal on this ground, with leave to renew the motion on the argument of the appeal. Motion to dismiss appeal, renewed, by permission, on the argument of the appeal, granted, without costs, and appeal dismissed, without costs. Present — Nolan, P. J., Adel, Wenzel, MacCrate and Beldock, JJ. [See post, p. 770.]