Smith, Application of

• Decision Date: 26 June 1956
• Parties: In the Matter of the Application of Harold SMITH and Frances Smith, Petitioners-Appellants, For a certiorari order against: The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK and Harris H. Murdock, Edwin W. Kleinert, Sean P. Keating and Deputy Chief P. Joseph Connolly, the members thereof, Respondents, v. Charles J. BENSLEY, Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 131

153 N.Y.S.2d 131

2 A.D.2d 67

In the Matter of the Application of Harold SMITH and Frances Smith, Petitioners-Appellants, For a certiorari order against The BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK and Harris H. Murdock, Edwin W. Kleinert, Sean P Keating and Deputy Chief P. Joseph Connolly, the members thereof Respondents, v. Charles J. BENSLEY, Intervenor-Respondent.

Supreme Court, Appellate Division, First Department.

June 26, 1956.

Angelo M. Torrisi, New York City, of counsel (Sidney B. Levitt, Brooklyn, atty.), for appellants.

Anthony Curreri, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, Corp. Counsel, New York City, atty.), for respondents.

Leon Liner, New York City, of counsel (Goldwater & Flynn, New York City, attys.), for intervenor-respondent.

Before PECK, P. J., and BREITEL, FRANK, VALENTE and BERGAN, JJ.

BERGAN, Justice.

Petitioners are owners of real property in the Borough of the Bronx and conceive themselves aggrieved by a decision of the Board of Standards and Appeals which allowed in favor of the intervenor in this proceeding a variance of a building zone restriction to permit the erection of a gasoline service station. They presented to the Supreme Court a petition to review this determination, and on August 25, 1955 an order was granted at Special Term which directed the Board of Standards and Appeals to make a return to the court in justification of its proceedings in allowing the variance. The order instituting the proceeding and the petition on which it was based were duly served on the Board of Standards and Appeals by petitioners on August 30, 1955.

The petition was defective in respect of its verification. The statute under which petitioners regard themselves to have been proceeding, Administrative Code of the City of New York, § 668e-1.0, entitled 'Certiorari.--a Petition', provides that in reviewing a determination of the Board of Standards and Appeals a person aggrieved may present to the Supreme Court 'a petition duly verified' which will state the grievance.

Petitioners signed the pleading in due form; but the notary public before whom they appeared executed a certificate of acknowledgment rather than of verification. Instead of the traditional words 'being duly sworn, depose and say', the other traditional words were used 'before me personally appeared' the petitioners 'known to me to be the individuals described in and who executed the foregoing petition' and they 'acknowledged * * * the same.'

The Board of Standards and Appeals and the individual respondent in the proceeding did not give the notice required by Civil Practice Act, § 253 to the attorney for petitioners which would have entitled respondents to have treated the petition as a nullity for lack of verification. Such a notice, so the statute runs, must be given to the attorney for the adverse party 'with due diligence.'

Respondents not only retained the pleading thus served on them without objection for a period running long beyond any reasonable conception of 'due diligence' as used in the statute but, as far as this record discloses, they made no return as required by the order granted on presentation of the petition. Failure to act with due diligence is deemed a waiver of the defect, Grant v. State of New York, 192 Misc. 45, 48, 77 N.Y.S.2d 756, 759; Schwarz v. Oppold, 74 N.Y. 307. The reason for the procedural requirement is, of course that if a party deems it important that the adverse party's pleading be verified to conform with a statute or rule, he must call timely attention to the omission so that it may be supplied.

On consent of petitioners, an order was entered on September 19, 1955 allowing the intervention in the proceeding of Charles J. Bensley who has an interest in sustaining the variance which allows the erection of the gas station. Six weeks later, the intervenor moved at Special Term to dismiss 'the petition on the ground that the same is unverified'- ; and two days later respondents made a similar motion. Petitioner moved for an order 'deeming the petition herein filed as verified' and for other appropriate relief. The court denied the motion of petitioners, granted the motion to dismiss the petition and vacated the order of certiorari.

We think the Special Term had the power to grant the motion to petitioners to the extent of allowing an amendment of the petition to add a verification in proper form in place of the acknowledgment. This is not a defect in some indispensable preliminary condition upon which jurisdiction rests; it is, merely, a defect in the form of a pleading served as part of judicial proceeding in which jurisdiction of the proper parties has been obtained. The controlling policy of the present practice is that it must be disregarded or, if the adverse party insists on its importance, corrected.

The judicial process here is not the petition; it is the order; or, in the traditional practice in certiorari, the writ. To the extent that the Administrative Code is not specific in its procedural directions, the procedure set up by Civil Practice Act, Article 78, controls, since it is there provided that,...