Mapes v. Swezey

Proceeding under article 78 of the Civil Practice Act. Appeal from an order denying appellants’ motion to dismiss the petition and granting them leave to serve an answer within ten days. Order affirmed, with $10 costs and disbursements, with leave to appellants to answer within five days after the entry of the order hereon. Only the petition may be considered on this motion. The court has jurisdiction where the petition contains facts which entitle petitioner prima facie to the relief sought, there being no disputed question of fact, only an issue of law. (Matter of Felice v. Swezey, ante, p. 958, decided herewith.) It is alleged in the petition that Mazzotti is not eligible to be elected a trustee because he was not an owner of record of real property in the village at the time of his purported election. Petitioner is entitled to a ruling to that effect. (Village Law, § 42; Matter of Becraft V. Strobel, 158 Mise. 844, 850, affd. 248 App. Div. 810, affd. 274 N. Y. 577.) The appeal from the refusal to sign a proposed order submitted is dismissed. Carswell, Johnston, Wenzel and MaeCrate, JJ., concur; Nolan, P. J., concurs in result. [199 Mise. 997.]