Beary v. Queens County Bar Ass'n

CourtUnited States State Supreme Court (New York)
Writing for the CourtJAMES J. CRISONA
Citation25 Misc.2d 794,207 N.Y.S.2d 324
Decision Date02 September 1960
PartiesApplication of Marie A. BEARY v. QUEENS COUNTY BAR ASSOCIATION.

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.

Page 326

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.

[25 Misc.2d 795] 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

Page 327

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 [25 Misc.2d 796] 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...

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2 practice notes
  • Schulgasser v. Young
    • United States
    • United States State Supreme Court (New York)
    • October 7, 1960
    ...the courts. Here, no injustice or undue hardship is shown. Defendant, himself, has been subpoenaed by plaintiff to appear at the trial. [25 Misc.2d 794] Defendant's written statement should not be subject to production upon the service of a subpoena duces tecum upon defendant's insurance Th......
  • Beary v. Queens County Bar Ass'n
    • United States
    • United States State Supreme Court (New York)
    • November 23, 1960
    ...proceeding, had been repealed, thus rendering moot the essential issue presented therein. Beary v. Queens County Bar Association, Sup., 207 N.Y.S.2d 324. This motion was granted by an order dated October 27, 1960, and such supplemental[28 Misc.2d 450] answer, verified on October 31, 1960, w......
2 cases
  • Schulgasser v. Young
    • United States
    • United States State Supreme Court (New York)
    • October 7, 1960
    ...the courts. Here, no injustice or undue hardship is shown. Defendant, himself, has been subpoenaed by plaintiff to appear at the trial. [25 Misc.2d 794] Defendant's written statement should not be subject to production upon the service of a subpoena duces tecum upon defendant's insurance Th......
  • Beary v. Queens County Bar Ass'n
    • United States
    • United States State Supreme Court (New York)
    • November 23, 1960
    ...proceeding, had been repealed, thus rendering moot the essential issue presented therein. Beary v. Queens County Bar Association, Sup., 207 N.Y.S.2d 324. This motion was granted by an order dated October 27, 1960, and such supplemental[28 Misc.2d 450] answer, verified on October 31, 1960, w......

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