Opinion
October 19, 1959
Present — Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.
Appeal by notice dated November 25, 1958 (1) from an order entered October 30, 1958 which dismissed the petition and the proceeding as a matter of law and (2) from so much of an order entered November 25, 1958 as on reargument adhered to the original decision. The proceeding sought an order directing appellant's reinstatement to the office of Building and Zoning Inspector of the Village of Suffern. Order entered November 25, 1958 modified by striking from the ordering paragraph everything following the word "reargument" and by substituting therefor the words "the respondent's motion to dismiss the petition be and the same hereby is denied". As so modified, order insofar as appealed from unanimously affirmed, with $10 costs and disbursements to appellant. Respondents, if so advised, may serve an answer and the affidavit required by section 1291 of the Civil Practice Act within 10 days after service on them of a copy of the order to be entered hereon, with notice of entry. The petition, which alleges that appellant was duly appointed, sufficiently alleges that he was appointed according to law and that whatever was necessary to constitute a valid appointment was done. (Cf. Brownell v. Town of Greenwich, 114 N.Y. 518, 527; Youngs v. Perry, 42 App. Div. 247; Levy v. Cohen, 103 App. Div. 195; Benedict v. Clarke, 139 App. Div. 242; Maune v. Unity Press, 143 App. Div. 94; Abalene Pest Control Serv. v. Powell, 8 A.D.2d 734; Harbater v. Congregation Beth Israel, 204 Misc. 83.) If respondents desire to litigate the question, they may raise it in their answer. Appeal from order entered October 30, 1958 dismissed, without costs. (Cf. Graffeo v. Graffeo, 7 A.D.2d 741. )