O'Neill v. Schechter , 5 N.Y.2d 548 ( 1959 )

Desmond, J. (dissenting).

The four-month time limitation (Civ. Prac. Act, § 1286) ran (as has been held for many years, Matter of Robinson v. McNamara, 275 App. Div. 918; Matter of Lennox v. McNamara, 275 App. Div. 1023) from the official publication of the final answers in the City Record. This proceeding was brought long after that period had expired. The running of the Statute of Limitations could not be affected by any assertion that some petitioners did not have time or did not take time to copy their own answers for their own future reference. The very examination papers here gave express permission to petitioners to copy their own answers and gave notice that the final correct answers would be published in the City Record.

I see no question of law or fact here and no basis for any reversal. The order should be affirmed, with costs.

Chief Judge Conway and Judges Fuld and Burke concur with Judge Froessel ; Judge Van Voorhis concurring in the result upon the basis that the four months’ limitation commences to run from the announcement of the grades and relative standings of the applicants for the examination; Judge Desmond dissents in an opinion in which Judge Dye concurs.

Order reversed, etc.