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MATTER OF NISTAL v. HAUSAUER

282 A.D. 7 (1953)

In the Matter of Gerard E. Nistal, Appellant, v. Karl F. Hausauer, as Commanding General of The New York National Guard, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

May 12, 1953.

Attorney(s) appearing for the Case

Arthur G. Warner of counsel (James E. Birdsall with him on the brief; Warner & Birdsall, attorneys), for appellant.

Jerome O. Glucksman of counsel (Wendell P. Brown and Abe Wagman with him on the brief; Nathaniel L. Goldstein, Attorney-General, attorney), for respondent.

PECK, P. J., and DORE, J., concur; COHN and CALLAHAN, JJ., dissent and vote to affirm.

VAN VOORHIS, J.

This appeal presents the delicate and controversial question of the power of review by the civil courts of action by military authorities of the State. It is clear that whatever power of review is possessed by the courts in such cases should be exercised sparingly, so as not to interfere with the administration of necessary military discipline. Upon the other hand, members of the State militia, although...

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