Opinion
May 25, 1972
Appeal from the Cayuga Special Term.
Present — Goldman, P.J., Del Vecchio, Gabrielli, Moule and Henry, JJ.
Judgment unanimously modified in accordance with memorandum and as modified affirmed. Memorandum: This is an appeal from a judgment of the Supreme Court which denied appellant's application for an order to show cause and dismissed the proceeding on the merits without a hearing. Appellant alleges in his petition that his imprisonment was illegal by reason of erroneous action on the part of the Parole Board. The court properly denied the application but should not have directed judgment dismissing the proceeding "on the merits" (italics supplied) ( Matter of Harris v. New York State Bd. of Parole, 7 A.D.2d 662; cf. People v. Brabson, 21 A.D.2d 748; Donner v. Baker, 11 A.D.2d 905). ¶ The court should have denied petitioner's ex parte application without prejudice. The dismissal of the application without a hearing should not prevent the petitioner from commencing a proper proceeding if he be so advised.