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Matter of Emery v. Mayrand

Appellate Division of the Supreme Court of New York, Third Department
May 31, 1967
28 A.D.2d 631 (N.Y. App. Div. 1967)

Opinion

May 31, 1967


Appeal from judgments of the Supreme Court, Washington County, dismissing petitions in article 78 proceedings. Petitioner had failed to purchase a dog license within the ordinary time required by law, whereupon the respondent Justice of the Peace issued a summons against him, but which did not state the purpose of the action as required by subdivision 3 of section 113 Agric. Mkts. of the Agriculture and Markets Law. This summons was not personally served on the petitioner, but was merely left at his residence on March 2, 1966. On the same day petitioner appeared before the Town Clerk, offered the license fee and requested a license; and a further attempt was made by petitioner on the following day. On each occasion, the respondent Town Clerk refused to issue the license unless petitioner paid court costs, fees and mileage. Subsequently and on March 4 another summons was issued and served on petitioner, but again, the requirement contained in Agriculture and Markets Law (§ 113, subd. 3) was not on the summons. In Action No. 1, petitioner sought an order prohibiting the respondent Justice of the Peace from exercising jurisdiction; and in Action No. 2, an order directing the Town Clerk to issue a license upon payment of the required ordinary fee therefor. The failure of the summons to state the purpose of the action and the other requirements of the cited statutes makes the purported action jurisdictionally defective ( Incorporated Village of Laurel Hollow v. Laverne, Inc., 24 A.D.2d 615; Malone v. Citarella, 7 A.D.2d 871). Service of the first summons was not perfected, was a complete nullity and the petitioner was entitled to apply for and obtain a license without penalty. The Town Clerk's refusal to issue the license was unjustified. Consequently there was no basis for the issuance of the second and still defective summons. Not only did the respondents fail to file an answer or raise an objection to the petition in point of law as required by the CPLR (7804, subds. [d], [e], [f]), but their complete failure to reply to notices to admit created admissions of the basic facts entitling petitioner to judgment in each case. We would further observe that the respondents in any event would not be entitled to any relief by way of permitting them to open their default in pleading or moving, for they have neither shown any valid excuse therefor nor has there been any showing of merits, as indeed there cannot be. Judgment in each proceeding reversed, on the law and the facts, and in each case judgment for petitioner directed in accordance herewith, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.


Summaries of

Matter of Emery v. Mayrand

Appellate Division of the Supreme Court of New York, Third Department
May 31, 1967
28 A.D.2d 631 (N.Y. App. Div. 1967)
Case details for

Matter of Emery v. Mayrand

Case Details

Full title:In the Matter of GEORGE EMERY, Appellant, v. FLOYD L. MAYRAND, as Justice…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 31, 1967

Citations

28 A.D.2d 631 (N.Y. App. Div. 1967)