Overill v. Durkee
The Superior Court of New York City
Preliminary objection to a motion to vacate an order of arrest. The defendant was arrested on December 21, 1855. On December 22, he gave bail with the usual justification upon the undertaking. On December 29, the plaintiff excepted to the sufficiency of the bail. On January 8, the defendant gave notice of justification for the eighteenth of that month. On January 17, the defendant gave notice of the motion to vacate the order of arrest for the twenty-eighth of that month.
Read the full summary
Preliminary objection to a motion to vacate an order of arrest. The defendant was arrested on December 21, 1855. On December 22, he gave bail with the usual justification upon the undertaking. On December 29, the plaintiff excepted to the sufficiency of the bail. On January 8, the defendant gave notice of justification for the eighteenth of that month. On January 17, the defendant gave notice of the motion to vacate the order of arrest for the twenty-eighth of that month. On the twenty-eighth, the attorneys for each party appeared at chambers in pursuance of the notice of justification, and…
1Opinion of the CourtSlossoN, J.
By section 204 of the Code, a motion to vacate the order of arrest must be made, if at all, “ before the justification of bail.”
The defendant is in time if he makes his motion before the bail are actually perfected. The bail became perfect, if not excepted to by the plaintiff within ten days after receiving from the sheriff a copy of the undertaking, and if that period expires, and the defendant has given no notice of motion to vacate the order of arrest, he is then too late. (Code, § 192.)
If the plaintiff gives notice of exception to the bail, they become perfect by actual justification and…
2Cases cited1 opinion
- Wilmerding v. MoonThe Superior Court of New York City · 1852
3Cited by1 opinion
- Arteaga v. ConnerThe Superior Court of New York City · 1880