I dissent and vote to reverse the order, to deny the city’s motion for judgment on the pleadings, and to grant the plaintiff’s motion for summary judgment.
When the original petition against plaintiff in this court charged him with conduct unbecoming a judicial officer, that allegation invoked only the power of this court to remove plaintiff from his office as a City Magistrate (N. Y. City Grim. Cts. Act, § 162). His removal was the aim and purpose of the pro*201ceeding; that aim and purpose failed; this court justifiably refrained from exercising its power.
Plaintiff, therefore, was a ‘ ‘ successful party ” in a proceeding ‘ ‘ to remove him from office, ’ ’ and, as such a party, he is absolutely entitled to be paid his expenses. The enabling statute (Administrative Code of City of N. Y., § 93d-2.0) provides unqualifiedly for the payment by the city of the expenses of such ‘ ‘ successful party. ’ ’ There is nothing whatever in the text of the statute which, directly or indirectly, precludes recovery if a result less than removal should eventuate. On the other hand, the statute specifically permits such recovery where, as at bar, plaintiff, as a City Magistrate, has been the “ successful party ” in the proceeding “ to remove him from office.” Since the proceeding here failed of its single intended purpose, to wit: plaintiff’s removal, the conclusion unavoidably follows that he is the “ successful party ” and is entitled to recover his expenses from the city.
In my opinion, the present form of plaintiff’s claim for recovery of his expense is immaterial. Neither in its answer, nor in its affidavit on the motion at Special Term, nor in its brief in this court, has the city raised the defense that an article 78 proceeding alone is the plaintiff’s proper remedy. The parties are entitled to frame the issues of their case in such expeditious form as to them seems proper (Matter of New York, Lackawanna & Western R. R. Co., 98 N. Y. 447, 453); and when they do so a waiver will be implied with respect to any rights to which they might otherwise have been entitled (Matter of Whalen v. Corsi, 279 App. Div. 1113). In any event, a curable mistake in remedy is no ground for dismissal of a meritorious action (Pattison v. Pattison, 301 N. Y. 65, 69).
Nolan, P. J., Beldock and Kleinfeld, JJ., concur with Christ, J.; Pette, J., dissents in opinion.
Order affirmed, with $10 costs and disbursements to the city.