Wolfe v. Horton
New York Supreme Court
ON certiorari to the mayor’s court after issue joined, the plaintiff, without declaring de novo here, served a notice of trial for , Tuesday, the 18th of April, and took an inquest at the last New* York sittings. on affidavits shewing these circumstances, moved to set aside the inquest, contending that the proceedings should have commenced anew, and a declaration in this court have been regularly served.
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ON certiorari to the mayor’s court after issue joined, the plaintiff, without declaring de novo here, served a notice of trial for , Tuesday, the 18th of April, and took an inquest at the last New* York sittings. on affidavits shewing these circumstances, moved to set aside the inquest, contending that the proceedings should have commenced anew, and a declaration in this court have been regularly served. He, also tobk an exception to the return of the writ, in certifying that a copy only was sent Up, and insisted the original bill, 8cc. ought to have been removed. In addition to this, he…
1Per curiam
The last objection is a captious attempt to take advantage. The period at which the sittings were held, was a matter of general notoriety. The day of the month was right. and though that of the week was wrong, it could not, as the plaintiff’s counsel have remarked, mislead, and must therefore be rejected as surplusage, for it was not necessary to state it. With regard to the regularity of the practice adopted, it is settled, that upon a certiorari in a civil suit, we must proceed as the court below would have done, and consider the cause in the same state here, as it was there. On the return…
2Cited by2 opinions
- Patchin v. Mayor of BrooklynNew York Supreme Court · 1835
- New-Jersey Rail Road & Transportation Co. v. SuydamSupreme Court of New Jersey · 1839