Beary v. Queens County Bar Ass'n

• Decision Date: 02 September 1960
• Citation: 25 Misc.2d 794,207 N.Y.S.2d 324
• Parties: Application of Marie A. BEARY v. QUEENS COUNTY BAR ASSOCIATION.
• Court: New York Supreme Court

Page 324

207 N.Y.S.2d 324

25 Misc.2d 794

Application of Marie A. BEARY v. QUEENS COUNTY BAR ASSOCIATION.

Supreme Court, Special Term, Queens County, Part I.

Sept. 2, 1960.

Patrick Beary, Jamaica, for petitioner.

George W. Herz, Jamaica, for respondent, Howard F. Cerny, New York City, of counsel.

JAMES J. CRISONA, Justice.

This is an article 78 proceeding for a final order in the nature of mandamus directing the respondent, a county bar association incorporated under the Membership Corporation Law, to admit petitioner to membership.

By order to show cause, dated and served personally on petitioner's attorney on June 15, 1960, respondent moved, pursuant to section 1294 of the Civil Practice Act, to strike certain paragraphs and parts of other paragraphs from the petition as immaterial, irrelevant, repetitious, argumentative and conclusory. Said order to show cause also provided that respondent's time to answer the petition be extended until five days after the service upon it or its attorney 'of a copy of the order entered on this application, with notice of entry thereof * * *.'

On June 20, 1960, the return date of the petitioner's and the respondent's respective applications, respondent was granted leave to serve and file its brief by July 6th, petitioner to serve and file her brief in opposition thereto by July 12th, to be followed by the service and filing of respondent's reply brief by July 18th. These were all served and filed as directed and, in addition, petitioner filed a supplemental brief on July 19th. On July 22, 1960, however, she moved to strike out respondent's main brief, filed on July 6, 1960, 'so that same shall be disregarded and not read by the Court,' and to vacate the order to show cause dated June 15, 1960. By letter dated July 22nd petitioner's attorney mailed to the court the copy of respondent's brief which had been served upon him and requested that decision on respondent's application be withheld until the disposition of petitioner's said motion returnable on July 27, 1960.

The court has compared the copy served upon petitioner's attorney with the original on file and finds it to be a carbon copy thereof. The only discrepancy is that four pages of the copy, corresponding to pages 43 to 46 of the original, are not numbered and the pages that follow are numbered 42 to 60, partly in ink, instead of 47 to 65 as typed in the original. The continuity in both, however, is identical, including the one line at the top of page 56 of the original and 51 of the copy consisting of the three words 'at this point.' Since these words are neither part of the last paragraph on the preceding page nor of the first paragraph on the page on which they appear, they are clearly surplusage inadvertently included by mistake and harmless. In addition, following the receipt of a copy of the letter to the court dated July 22nd, respondent's attorney served another copy of the brief, properly numbered, upon the attorney for the petitioner. In any event, said attorney apparently had no difficulty in responding to the first copy since he filed an opposing brief thereto on July 12th and a supplemental brief on July 19th. Indeed, in both of such briefs virtually the same objections to the order to show cause, dated June 15, 1960, were raised as are now embodied in the formal motion to vacate said order.

The court is of the opinion that these objections are extremely technical and if sustained would exalt form over substance and result in the final order sought by petitioner without affording the respondent an opportunity to answer on the merits. Procedural rules must be obeyed, but 'care should be taken that justice is not smothered by a too slavish adherence to the mere forms and technicalities of procedure.' Hodgkins v. Mead, 119 N.Y. 166, 171, 23 N.E. 559, 560; Allen v. Fink, 211 App.Div. 411, 415, 207 N.Y.S. 428, 433, 435, 436.

The respondent made an application to correct what its attorney deemed defects in the petition. It did so pursuant to section 1294 of the Civil Practice Act, a section which is contained in article 78 dealing with special proceedings and which specifically provides the time and the manner in which such application may be made. There was, therefore, no occasion to go outside that statute for procedural guidance governing actions, as provided by section 1306 of the Civil Practice Act. Felice v. Swezey, 278 App.Div. 958, 105 N.Y.S.2d 486, 488; De Riso v. Kennedy, 13 Misc.2d 322, 323, 176 N.Y.S.2d 444, 446.

Section 1294 of the Civil Practice Act pursuant to which respondent's corrective motion was made reads in pertinent part as follows:

'* * * If the respondent intends to make such an application with respect to the petition, he shall serve upon the petitioner, within the time allowed for answering, a notice of motion or order to show cause; provided that such application shall not extend the time allowed for answering, except as permitted by order on the ground that the respondent is unable to answer until the petition has been corrected. In the event of the granting of such application the respondent shall serve and file his answer or amended answer within five days after the service of an amended petition. In the event of the denial of such application, and provided that the respondent's time to answer has been extended by order, the respondent shall unless otherwise specified by the order serve and file his answer within five days after service by the petitioner of a copy of the order denying such application with notice of entry thereof.' (Emphasis supplied.)

Under section 1291 of the Civil Practice Act a respondent's time to serve and file an answer in an article 78 proceeding is 'At least two days prior to the return day, unless a different time is fixed in the order to show cause.' The respondent therefore timely made its application under section 1294 when it actually served a copy of the order to show cause and the papers thereto attached on June 15, 1960, or within five days of June 20, 1960, the return date of petitioner's application. The fact that under the terms of the order to show cause respondent had until June 16th in which to effect service is thus immaterial even if, as claimed by petitioner, rule 60 of the Rules of Civil Practice governed the time of notice since the offices of the attorneys for both sides are located in Jamaica, Queens County, New York, and consequently the five day notice requirement of that rule was fully met.

As for the failure of respondent to submit an affidavit of merits in support of the extension of time to answer contained in the order to show cause, rule 88 of the Rules of Civil Practice, which requires such an affidavit when an...