Bennett v. Mannix
Decision Date | 07 August 1961 |
Citation | 219 N.Y.S.2d 566,30 Misc.2d 613 |
Parties | Application of Gordon Elmer BENNETT, Petitioner, for an Order under Article 78 of the Civil Practice Act, v. Robert MANNIX, Police Justice of the Village of Ovid, Seneca County, New York, Respondent. |
Court | New York Supreme Court |
William A. Dicker, Ithaca, for petitioner.
Bradford F. Miller, Dist. Atty. of Seneca County, Seneca Falls, for respondent.
This is an application by petitioner above named for respondent to show cause why an order should not be made pursuant to the provisions of Article 78 of the Civil Practice Act prohibiting said Police Justice from further proceedings against petitioner, Gordon Elmer Bennett. By the same show cause order respondent has been stayed from further proceedings against petitioner pending a hearing on this motion and a decision thereon. The matter has been submitted without oral argument.
Petitioner on June 4, 1961 received a traffic ticket charging him with a violation of section 511 of the Vehicle and Traffic Law of the State of New York and requiring him to appear before respondent, a Police Justice, in the Village of Ovid, New York, on June 8, 1961 at 7:00 p. m. On that date and at that hour petitioner and his counsel, having travelled sixty miles to get to the appointed place where the traffic ticket advised them that the court was going to be held, found affixed to the door a notice that 'All cases scheduled for June 8, 1961, are adjourned until June 9, 1961.' Petitioner and his attorney waited for a considerable period of time and while awaiting were informed that respondent had gone to Canada.
Thereafter and on June 9, 1961 petitioner's attorney spoke to respondent by telephone, and the latter informed him that he had been in Canada, and further that the arresting police officer had filed an information against petitioner prior to June 8, 1961. Respondent was advised that a special appearance would be entered on behalf of the petitioner to object to the court's jurisdiction.
On June 15, 1961 petitioner again appeared with his attorney and a written notice of petitioner's special appearance was filed with the Police Justice. Objection to the continuance of the prosecution of said alleged violation on the ground that said Justice, by failing to be present in court on the return day set, viz., June 8, 1961, was divested of jurisdiction to continue with the case was made by petitioner's attorney. Respondent Justice denied the motion and thereupon petitioner's counsel advised respondent that petitioner reserved all rights on his objection to the jurisdiction of the court in any further proceedings had in the matter. Respondent proceeded to set a trial date after consultation with the District Attorney, and a trial date of July 7, 1961 was set over petitioner's objection.
Petitioner thereafter brought this article 78 proceeding to prohibit respondent from further proceeding against him on the charge. An order to show cause was issued to initiate the proceedings which order provides for a stay pending argument and decision of this motion. It is now before us on the return of that order.
Assuming that the filing of the information clothed the Police Justice with initial jurisdiction herein, the question before us to determine is: Did the respondent, by affixing the notice to the door, properly...
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... ... Matter of Bennett v. Mannix, 30 Misc.2d 613, 219 N.Y.S.2d 566; Matter of Abbott v. Rose, 40 Misc.2d 64, 242 N.Y.S.2d 773; People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d ... ...
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