Saril v. Payne
New York Court of Common Pleas
On motion for leave to appeal to the court of appeals. A statement of the case appears in 1 H. Y. Supp. 15. The order of the city court, affirmed at the general term thereof, vacating the order of arrest unless the affidavit on which it was granted should be amended, was reversed, the order was vacated in the court of common pleas, (no opinion written,) and plaintiff makes this motion.
1Per curiam
The question raised upon this appeal is one of jurisdiction and not of irregularity. The affidavit upon which the order of arrest was granted was the basis of the judge’s action. If defective, the proceeding must fall. The lack of venue has been decided to make an affidavit a nullity. Thompson v. Burhans, 61 N. Y. 63; Lane v. Morse, 6 How. Pr. 394; Cook v. Staats, 18 Barb. 407; Vincent v. People, 5 Parker, Crim. R. 88; Thurman v. Cameron, 24 Wend. 87. The case of Cook v. Whipple, 55 N. Y. 150, allowed an amendment to a confession of judgment where the venue was omitted, but we do not think…
2Cases cited3 opinions
- Cook v. . WhippleNew York Court of Appeals · 1873
- Lane & Laing v. Morse & StudleyNew York Supreme Court · 1852
- Cook v. StaatsNew York Supreme Court · 1854
3Cited by2 opinions
- Frees v. BlythAppellate Division of the Supreme Court of the State of New York · 1904
- Flatow v. Von BremsenCity of New York Municipal Court · 1890