SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 23, 1969
THE PEOPLE OF THE STATE OF NEW YORK EX REL. GEORGE DUKES, JR., RESPONDENT,
CHARLES L. MCKENDRICK, AS WARDEN OF WALLKILL PRISON, APPELLANT
Appeal from an order of the Supreme Court, Ulster County, granting a motion to compel the Monroe County Clerk to deliver to petitioner a copy of the minutes of his trial.
Reynolds, J. Herlihy, P. J., Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Reynolds, J.
Since the instant order is directed solely to the Monroe County Clerk, appellant, the Warden of Wallkill Prison, was not aggrieved by the order and consequently has no standing to appeal to this court (CPLR 5511). Accordingly, the appeal must be dismissed. However, despite this result it must be noted that the record does not indicate that the Monroe County Clerk was even made a party to the proceeding. There is for this and other contentions advanced by appellant, particularly that the court had no right to treat the instant application as an article 78 proceeding and that the court had no authority pursuant to subdivision 2 of section 456 of the Code of Criminal Procedure to direct the furnishing of the trial minutes here involved, upon which we do not here pass, serious question as to the efficacy of the instant order. The fact that the Monroe County Clerk sought and was granted permission to appear as amicus curiae on this appeal, of course, does not affect this decision.
Appeal dismissed, without costs.
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