People ex rel. Schuster v. Herold

Order entered on August 6,1969, which denied the motion of petitioner-appellant for further consideration pursuant to subdivision 3 of section 72 of the Mental Hygiene Law, unanimously reversed in the interest of justice and the exercise of discretion, without costs and without disbursements, and the proceeding remanded to Special Term, Part I, New York County, for the calendar of March 30, 1970, for disposition on the merits. If so advised, the movant-petitioner may, no later than 10 days theretofore, serve papers upon the Attorney-General in reply to respondent’s papers in opposition, surreply papers, if any, to be served only if allowed by the Justice presiding. It is, at the very least, unclear whether the movant ever had the opportunity to reply to the Attorney-General’s papers in opposition to the motion or even knew at the time of argument that the Attorney-General intended to submit any such papers. The file of Special Term is in such state that it is impossible to determine this important fact. The motion must therefore be remanded for disposition in a setting wherein both sides may have an opportunity to he heard. Concur — Stevens, P. J., -Eager, Markewieh, Nunez and Tilzer, JJ.