Jagiello v. Moran

Petition unanimously dismissed, without costs. Memorandum: An application under article 78 of the CPLR may not be made to the Appellate Division as a substitute for an appeal from an order or judgment at Special Term. In this article 78 proceeding addressed directly to this court it appears that the written order made by Supreme Court on October 21, 1964 with respect to the custody and support of the two children of the petitioner herein was reversed on his appeal (24 A D 2d 544) and the alleged oral order made from the bench by the Justice Presiding at that hearing was not reduced to writing and entered. Such a direction has no validity and no appeal lies therefrom; nor will it support the present application. (Application in the nature of mandamus to reverse order of Oneida Special Term dismissing petition.) Present—Goldman, P. J., Del Vecchio, Witner, Moule and Henry, JJ.