General
In the Matter of the Application of the Trustees of School District No. 4 of the Town of Wilton, Saratoga County of the State of New York, Appellants, for an Order to Review a Determination Made by Ernest E. Cole, as Commissioner of Education of the State of New York, Respondent
261 A.D. 1016·New York Supreme Court, Appellate Division·1941·NY
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Opinion
In the Matter of the Application of the Trustees of School District No. 4 of the Town of Wilton, Saratoga County of the State of New York, Appellants, for an Order to Review a Determination Made by Ernest E. Cole, as Commissioner of Education of the State of New York, Respondent.
[MAJORITY]
The Trustees of School District No. 4 of the Town of Wilton, Saratoga County, N. Y., have appealed from an order of the St. Lawrence Special Term of the Supreme Court granting respondent’s motion to dismiss their petition in a proceeding brought pursuant to article 78 of the Civil Practice Act on the ground that the proceeding should have been instituted in the Third Judicial District wherein respondent made the determination sought to be reviewed. The Special Term granted the respondent’s motion on the ground that the court had no jurisdiction but the order provided that it was without prejudice to a renewal thereof in the proper district. Upon an appeal to the Commissioner of Education he directed appellants to provide transportation for certain elementary school children residing in School District No. 4, Saratoga county, to a parochial school district outside of the district. The appellants instituted a proceeding in the Fourth Judicial District to review that determination. The office of the Commissioner of Education is in the city of Albany in the Third Judicial District where under section 1287 of the Civil Practice Act the proceeding in question should have been instituted because there are no allegations in the petition to show that material facts took place in the Fourth Judicial District. Order affirmed, with ten dollars costs and disbursements. Heffeman, Schenck and Foster, JJ., concur; Hill, P. J., and Bliss, J., dissent upon the ground that every material fact except the decision by the Commissioner took place in Saratoga county.