Abbott v. Rose

• Decision Date: 01 April 1963
• Citation: 40 Misc.2d 64,242 N.Y.S.2d 773
• Parties: Application of John C. ABBOTT, Petitioner, v. Charles G. ROSE, individually and as Justice of the Court of Special Sessions, Town of Victor, County of Ontario and State of New York, Respondent.
• Court: New York Supreme Court

Page 773

242 N.Y.S.2d 773

40 Misc.2d 64

Application of John C. ABBOTT, Petitioner, v. Charles G. ROSE, individually and as Justice of the Court of Special Sessions, Town of Victor, County of Ontario and State of New York, Respondent.

Supreme Court, Monroe County.

April 1, 1963.

Maas, Weinstein & Hutchings, Rochester, for petitioner.

Robert P. Kennedy, Asst. Dist. Atty. of Ontario County, for respondent.

CHARLES LAMBIASE, Justice.

Petitioner has obtained an other for respondent to show cause 'why an Order should not be made herein, pursuant to Article 78 of the Civil Practice Act, prohibiting the Hon. Charles G. Rose, Justice of the Peace of the Town of Victor, Ontario County, New York, from continuing to assume jurisdiction in the proceeding pending before said Court arising out of an alleged violation of Section 1180, Subdivision B-2 of the Vehicle and Traffic Law and further why said Respondent should not be prohibited and restrained from taking any further steps in connection with the said proceeding and why the petitioner should not have such other and further aid and relief as this Court may deem just and proper, * * *'; and it is further ordered therein 'that the Respondent be and hereby is stayed from proceeding in the matter referred to herein until after the hearing and determination of the petition herein brought by this Order to Show Cause and the entry of an Order therof and service thereof with notice of entry, * * *'. (Order to Show Cause.)

Respondent, upon the aforesaid show cause order and upon the papers upon which said show cause order was based, has moved 'for an order dismissing the petition herein as a matter of law upon the ground that it appears upon the face of said petition that the same is insufficient in law in that it does not state facts sufficient to constitute grounds for the relief sought therein.'

It appears that petitioner received a Uniform Traffic Ticket from the New York State Police; that he was arrested for and was charged with speeding in violation of Section 1180, Subdivision 2(b) of the Vehicle and Traffic Law; that said Uniform Traffic Ticket directed petitioner to appear before the Court of Special Sessions for the Town of Victor, New York to be held in said Town on the 10th day of November, 1962 at 7:00 o'clock P.M.; that on the 10th day of Movember, 1962 at 7:00 o'clock P.M. petitioner appeared at the Town Hall in the Town of Victor, New York; that the Court of Special Sessions in said Town at that time was scheduled to be held by Honorable Charles G. Rose, respondent herein; that petitioner appeared with counsel and waited for the Court to appear until some time after 7:15 P.M.; that on said November 10, 1962 petitioner found the Town Hall of Victor locked, and throughout the period that petitioner was at said Town Hall, the Court was neither called into session nor did the Honorable Charles G. Rose appear nor was there an appearance by or on behalf of the State Police or of the People of the State of New York; that on December 20, 1962 at 7:30 P.M. petitioner's counsel appeared specially on petitioner's behalf before respondent, Justice Rose, and advised said Justice of the fact of petitioner's previous appearance on November 10, 1962 and of the non-appearance of said Justice; that petitioner, through his counsel, at that time objected to the continuance of the prosecution for the alleged violation on the grounds that said Justice, and the said Court of Special Sessions, by reason of the aforesaid facts, had been divested of jurisdiction to continue with the case; that the information and supporting deposition attached thereto charging petitioner with the alleged violation were sworn to and filed with respondent on the 31st day of October, 1962; that petitioner was informed that...