Hall v. Emmons
New York Court of Appeals
Appeal from an order. Asa Hall sued John Emmons, Jr., James L. Paine, and Hanford Smith on an undertaking of bail given by them in a previous action against Paine, to procure his discharge from arrest in that action.
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Appeal from an order. Asa Hall sued John Emmons, Jr., James L. Paine, and Hanford Smith on an undertaking of bail given by them in a previous action against Paine, to procure his discharge from arrest in that action. The summons was served July 17, 1869, and the complaint August 2. Immediately thereafter, but more than twenty days after the service of summons, Emmons and Smith surrendered Paine, and then moved for a discontinuance of the action, and release of their liability as sureties. The motion was denied, with costs, by Mr. Justice MoCunn. Defendants then moved again ; this time on…
1Opinion of the Court
By the Court.—Folger, J.
The Code of Procedure (§ 191), provides in one clause that bail may surrender their principal within twenty days after the commencement of the action to charge them on their undertaking. The defendants’ attorney, mistaking the *372practice, supposed that this twenty days began t'o run from the time of serving the copy of the complaint. The principal was surrendered within that time. Upon this erroneous supposition, the first motion was made, as one of right. It was denied, because thus made.
The defendants’ attorney confessing his mistake in affidavits, the defendants then…
2Cited by2 opinions
- People ex rel. Wells v. Circuit Judge for St. JosephMichigan Supreme Court · 1878
- DeFiganiere v. YoungThe Superior Court of New York City · 1864