Jackson v. McCabe , 47 A.D.2d 730 ( 1975 )

Judgment, Supreme Court, New York ' County, entered on November 6, 1974, dismissing appellant’s petition in an article 78 proceeding, with leave for him to - prosecute the claim as a plenary action, unanimously modified, on the law and in the exercise of discretion, without costs and dis.bursements, to the extent of treating the petition as a. complaint in a plenary action, with leave to thé appellant to serve an amended and supplementary complaint within 30 days after publication of this decision, if so advised, and otherwise affirmed. Petitioner, who was originally a defendant in a criminal action based' on a charge of robbery, sought to recovfer the sum of $1,008 that had been taken from him, vouchered, and delivered to. the police property clerk. Subsequently, the money was paid . out to the complaining witness; the releases therefor having been issued by the District Attorney. Upon the defendant’s acquittal, he brought an . article 78 proceeding to recover the sums taken from him that had been paid to the third party, and to annul the' releases concerning that money that had been issued to the police property clerk by the District Attorney. Special Term properly held that a writ of mandamus issues only to compel the performance of an Official duty imposed by law. (Matter of Burr v. Voorhis, 229 N. Y.' 382, 387.). Here it is clear that appellant failed to show a legal right to the relief requested. The instant application, however, should not have been dismissed with leave to commence a plenary action, but more appropriately, pursuant to CPLR 103 (subd." [c).), should have beep treated as if it was brought in the' proper form. "(Matter of First Nat. City Bank v. City of N. Y. Finance Administration, 36 N Y 2d 87; Matter of Lakeland Water Hist. v. Onondaga County Water Auth., 24 N Y 2d 400.) Furthermore, the funds at issue having been paid to the complaining witness, leave is granted to the appellant to serve an amended and supplementary summons and complaint with a view1 toward including that complainant as a party to this action, so that the rights of all interested parties may be adjudicated. Concur — Stevens, J. P., Murphy,. Lupiano, Capozzoli and Láne, JJ.