People ex rel. Saporito v. Warden of the Penitentiary

No notice having been given to the district attorney of Bronx county, from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure to give such notice was not an irregularity, but a jurisdictional defect. (Civ. Prac. Act, § 1258, subd. 4; People ex rel. Asmus v. Melody, 91 App. Div. 569; Matter of Leggat, 162 N. Y. 437; People ex rel. Gamaldi v. Warden Kings County Jail, 160 App. Div. 480; Matter of Mellor v. Hinkley, 201 id. 619; People v. Carter, 48 Hun, 165.)

The order denying the motion to vacate the order of August 15, 1934,…