Opinion
May 7, 1952.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ. [ 201 Misc. 39.]
This is a proceeding under article 78 of the Civil Practice Act in the nature of mandamus, seeking to nullify the action of the respondents in dismissing petitioner from his position and to compel respondents to reinstate him. Petitioner made a motion for summary judgment and the matter was argued and submitted as such to the court at Special Term, Supreme Court, Albany County. From an order denying petitioner's motion and a judgment entered thereon, petitioner appeals to this court. Petitioner also appeals in a separate appeal from the order settling the case because it directs inclusion in the record of a copy of an affidavit of one Richard C. Brockway. This copy was submitted to the court as an exhibit at the time of the argument and the record discloses no objection was made thereto, and it having been considered by the court without objection, it was proper to include it in the record on appeal. Petitioner now maintains that his motion for summary judgment was improper, and that the procedure should have been under sections 1293 and 1295 of the Civil Practice Act. Though the procedure followed be incorrect, it was adopted by the petitioner. Petitioner brought the proceeding, made the motion, the court accepted jurisdiction, and the motion was submitted to the court for determination. After an adverse decision petitioner may not now assert that some other procedure should have been followed. This is a civil proceeding, and the parties may, by stipulation or by acts and conduct, waive any rights to which they might otherwise have been entitled. ( Cowenhoven v. Ball, 118 N.Y. 231.) Submitted in the manner in which it was, the record sustains the decision of the court below. Judgment and orders appealed from unanimously affirmed, without costs.