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MATTER JOHN W. CLARK v. HILLARD J. TRUBITT (10/23/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


October 23, 1969

IN THE MATTER OF JOHN W. CLARK, AS DEPUTY CHIEF OF POLICE OF THE CITY OF UTICA, APPELLANT,
v.
HILLARD J. TRUBITT, AS COMMISSIONER OF PUBLIC SAFETY OF THE CITY OF UTICA, RESPONDENT

Appeal from order of Oneida Special Term denying motion for injunction.

Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Moule, JJ.

Memorandum: Upon the argument of this appeal attorneys for both parties agreed that the appeal has become academic inasmuch as the respondent no longer holds the position of Commissioner of Public Safety and has left the State to return to a teaching position at the University of Indiana. We are therefore dismissing the appeal, but are awarding costs to appellant under the authority rested in us by CPLR 8107. It is apparent that at the time appellant was organizing his record on appeal respondent's attorney, as Assistant Corporation Counsel of the City of Utica, knew that respondent would vacate his position and depart the State before the appeal could be argued. Instead of relaying this information, to appellant's counsel and relieving him of the necessity of printing a record, the attorney insisted that a voluminous record be printed and compelled appellant's attorney to obtain an order from an appellate court Judge permiting him to hand up the transcript of an arbitration hearing as an exhibit in order to avoid reproducing it. In these circumstances, an award of costs to appellant is appropriate. (Benelli v. Benelli, 19 A.D.2d 829.)

Disposition

Appeal unanimously dismissed as academic, with costs to appellant.

19691023

© 1998 VersusLaw Inc.



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