Opinion
April 13, 1970
Appeal from a judgment of the Supreme Court, Warren County, dismissing appellant's application, in a proceeding brought pursuant to CPLR article 78, to declare that a franchise agreement between appellant and the Common Council of the City of Glens Falls is valid and in full force and effect. While Special Term was correct in its decision that mandamus does not lie, nevertheless Special Term has the authority to determine that while the petitioner has prosecuted its action in an improper form and has requested relief to which it is not entitled, that fact alone does not bar its receiving the relief to which it is entitled (CPLR 103, subd. [c]; 105, subd. [d]; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400; Matter of Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34, cert. den. 393 U.S. 1000; Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, 32 A.D.2d 958). Accordingly, the case must be remanded to Special Term to prescribe, in a proper order, pursuant to CPLR 103 (subd. [c]), the further prosecution of this action. Judgment reversed, on the law and the facts, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Herlihy, P.J., Reynolds, Greenblott. Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J.