Kelly v. Moody & Darby
New York Supreme Court
moved to supersede or quash the writ of error issued in this case to the Cortland C. P., on the ground that the bail in error had not justified pursuant to the act of May 7th, 1844. (Sess. L. of '44, p. 466, § 1.) After exception, the bail justified in proper time; but it was done ex parte, without notice to the defendants in error. The court cannot grant the motion. Application should have been made to an officer at chambers.
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moved to supersede or quash the writ of error issued in this case to the Cortland C. P., on the ground that the bail in error had not justified pursuant to the act of May 7th, 1844. (Sess. L. of '44, p. 466, § 1.) After exception, the bail justified in proper time; but it was done ex parte, without notice to the defendants in error. The court cannot grant the motion. Application should have been made to an officer at chambers. (2 R. S. 598, § 36; Boyd v. Weeks, 6 Hill, 71.) Should the court entertain the motion, we then ask leave to justify anew. It appears by the affidavits that the attorney…
1Opinion of the Court
By the Court,
Bronson, J.
The justification was insufficient for the want of notice to the opposite party. It is then made a question whether the defendants in error are not confined to the remedy provided by the statute, viz. an application to an officer at chambers for an order superseding the writ. We think not. Motions to supersede the writ have often been made here. (Murray v. Buck, 10 Wend. 619; Stearns v. Kenyon, 5 Hill, 519.) The statute only provides an additional remedy, without taking away the common law power of the court over its own process. It seems that the court of errors will…
2Cases cited3 opinions
- Jackson ex dem. Bleecker v. WiseburnNew York Supreme Court · 1830
- Clark v. McClaughryNew York Supreme Court · 1840
- Murray v. BuckNew York Supreme Court · 1834