| N.Y. App. Div. | Dec 23, 1938
Order granting a motion for the vacatur of an order dated July 25, 1938, which vacated an order of discontinuance dated January 17, 1935, and revived a certiorari proceeding, reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, without costs. The court had power to make an order reviving the certiorari proceedings. (People ex rel. Abell v. Clarkson, 217 A.D. 746" date_filed="1926-06-15" court="N.Y. App. Div." case_name="People ex rel. Abell v. Clarkson">217 App. Div. 746; affd., 243 N.Y. 596" date_filed="1926-10-12" court="NY" case_name="People Ex Rel. Abell v. Clarkson">243 N. Y. 596.) When the petitioner in the certiorari proceedings moved for the order of July 25, 1938, it should have done so on notice to Charles Beckmann, as executor of William Beckmann, who had been made a party to the certiorari proceedings in the first instance but who had failed to file a return prior to the discontinuance of the proceedings. Charles Beckmann was a proper if not a necessary party. When Charles Beckmann was directed to be made a party on the hearing and was thus apprised of the revival of the proceedings, he was not entitled to a vacatur of the July 25, 1938, order unless he established that if he had been given a notice he would have been entitled to a denial of the motion on the merits. The showing on the latter phase did not entitle him to a vacatur. It would not have warranted a refusal to revive the certiorari proceedings. There was no laches. The claimed expenditures were made (if at all) in disregard of the non-issuance of a permit. • The prior litigation did not result in an inquiry into and ruling on the merits adverse to the petitioner. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.