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MATTER WILLIAM CAHN v. PAUL VARIO (04/28/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 28, 1969

IN THE MATTER OF WILLIAM CAHN, AS DISTRICT ATTORNEY OF NASSAU COUNTY, RESPONDENT,
v.
PAUL VARIO, SR., APPELLANT

Appeal from an order of the County Court, Nassau County, dated March 7, 1969, which summarily adjudged appellant in criminal contempt of court for conduct committed in the presence of the court.

Christ, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.

No appeal from such order ordinarily lies, the proper method of review being a proceeding pursuant to article 78 of the CPLR (People v. Longo, 30 A.D.2d 828), since in a summary proceeding the contemnor may not have adequate opportunity to develop a competent record for appellate review and in such circumstances may need an article 78 proceeding to give him the chance to develop the full record required (People v. Zweig, 32 A.D.2d 569). In the instant matter, appellant apparently concluded that the record of his appearance in the County Court was not full enough to support his views that he was improperly punished for contempt of that tribunal and so he brought on a habeas corpus proceeding, which was transformed into an article 78 proceeding and transferred to this court by the Supreme Court, Nassau County. Under the circumstances, the instant appeal is moot and this court will pass upon the issues tendered in the article 78 proceeding (see People ex rel. Vario v. Kreuger, 32 A.D.2d 571).

Disposition

On oral motion of the District Attorney of Nassau County, made on argument of the appeal, the appeal is dismissed, without costs.

19690428

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