Opinion
November 22, 1967
Proceeding under article 78 of the CPLR (transferred to this court, by an order of the Supreme Court at Special Term in Clinton County, purportedly pursuant to CPLR 7804 [subd. (g)]) to compel the respondent Parole Board to credit upon petitioner's sentence of October 18, 1961, rather than his sentence of March 16, 1966, 306 days spent in jail, from May 20, 1965 to March 16, 1966, awaiting the determination of charges of crime committed while on parole, for which the March 16, 1966 sentence was imposed. At Special Term, petitioner's papers were treated as constituting an application under article 78 and respondents' "return", consisting of general denials and attachments of various records, was apparently treated as an answer. Respondents inquired as to the propriety of the venue but made no motion with respect thereto or with respect to the petition. No evidence was taken and Special Term, upon its own motion, transferred the proceeding to this court. Respondents, in their brief in this court, seem to concede that an issue of fact arises upon the denials set forth in their answer and candidly state that there is no "record or evidence before this Court to enable it to make * * * a determination"; and, further, that, "The Court below, therefore, in the absence of proof by the petitioner, should properly have dismissed the petition"; but the reception of proof was prevented by the court's action, upon its own motion, to transfer the proceeding. Respondents' brief then states the alternative, that "in any event, this Court should remand this proceeding to have proper proof placed in the record." Order reversed, on the law, and proceeding remitted to Special Term for further appropriate proceedings, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam.