Opinion
April 4, 1949.
In this proceeding directed against the Commissioner of Education of the State of New York and the Board of Education of the City of New York, under article 78 of the Civil Practice Act, the Commissioner of Education moved to dismiss the petition solely on the ground that on its face it shows that it cannot be entertained in Kings County. In the alternative, a transfer of the proceeding to Albany County was sought. The Commissioner of Education appeals from so much of the order as denied his motion. None of the cases relied upon by appellant is contra to the determination made by this court in Matter of Daley v. Board of Estimate of City of N.Y. ( 258 App. Div. 165), wherein it was held that the county of origin of material facts is a proper county for the institution of proceedings. (Civ. Prac. Act, art. 78, § 1287.) The petition is founded on the refusal of the Commissioner of Education to rescind regulations prescribed by him for excusing absence of pupils from public school to attend places of religious observance and education, and to direct the revocation of regulations adopted by the board of education of the city of New York in conformity with the regulations of the State commissioner, and direct the cessation of the released time program of the board of education which, it is alleged, contravenes the provisions of the First and Fourteenth Amendments to the Federal Constitution, and section 3 of article I of the Constitution of this State. The inquiry here is limited to whether the petition on its face shows the venue is properly laid in Kings County. ( People ex rel. Arnold v. Skene, 194 N.Y. 186. ) The petition contains allegations as to the method and manner of executing in Kings County the regulations promulgated by the commissioner. It is not necessary now to appraise their ultimate worth. It is sufficient that they seem to be material matters in a proceeding which seeks to determine if constitutional provisions are violated. Order, insofar as appealed from, affirmed, without costs. Stay vacated and time to answer extended until ten days after service of a copy of the order hereon. Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur. [See post, pp. 835, 846.]