Opinion
February 23, 1961
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed and proceeding remitted to Erie Special Term for a hearing in accordance with the memorandum. Memorandum: This court ordered proof to be taken to determine the existence of a copy of the information. ( Matter of Lipinczyk v. Dwyer, 10 A.D.2d 794) A hearing was had without notice to petitioner-appellant and without his participation in any respect. Such a hearing was in the nature of an ex parte proceeding and did not meet the fundamental concept of a fair hearing required by the order of this court. A new hearing must be held upon notice to petitioner at which time he should be given the opportunity to participate either in person or by counsel.