Pelicie v. Oswald

Judgment unanimously modified in accordance with memorandum and as modified affirmed. Memorandum: This is an appeal from a judgment of the Supreme Court which denied appellant’s application for an order to show cause and dismissed the proceeding on the merits without a hearing. Appellant alleges in his petition that his imprisonment was illegal by reason of erroneous action on the part of the Parole Board. The court properly denied the . application but should not have directed judgment dismissing the proceeding “ on the merits ” *828(italics supplied) (Matter of Harris v. New York State Bd. of Parole, 7 A D 2d 662; cf. People v. Brabson, 21 A D 2d 748; Donner v. Baker, 11 A D 2d 905). If The court should have denied petitioner’s ex parte application without prejudice. The dismissal of the application without a hearing should not prevent the petitioner from commencing a proper proceeding if he be so advised. (Appeal from judgment of Cayuga Special Term denying application for show cause order.) Present ■—Goldman, P. J., Del Vecehio, Gabrielli, Moule and Henry, JJ.