| N.Y. App. Div. | May 23, 1958
This is a purported appeal from an order denying an application for a writ of habeas corpus. The order of denial was dated October 39, 1957. On October 31,1957, the Justice of the Supreme Court who denied the order wrote a letter to the petitioner saying — “Your petition and the original order have been filed in the County Clerk's Office ”. Apparently, relying on this information, defendant took an appeal on November 4, 1957. We are advised by the county clerk’s office of Clinton County that the order was not filed until December 18, 1957. The State raises the issue that the appeal was improper since at the time it was taken no order was entered. We think in view of what has transpired, and in the interest of substantial justice, that we should direct the filing of the final order nunc pro tunc as of October 31, 1957, and it is so ordered. On that basis we regard the appeal as timely taken. On the merits we think the writ should have been granted and appellant permitted to make a record embodying his contentions. It may be that his legal contentions are entirely wrong but we cannot be certain of that merely from the language of the petition itself and hence we think he should have been given the opportunity