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McKinney v. Stoddard

1 Denio 270 Court N.Y. English

Delivered by *271 By ike Court, Beardsley, J.

Contents

Majority

p. 270
McKinney vs. Stoddard.

Headnote

The statute, (2 R. S. 389, § 8,) which requires a party prosecuting a writ of certio . rari to remove a cause in which an issue of fact has been joined, from a court of common pleas, to' cause the same to be filed eight days before the first day of the term at which the issue might be tried, refers to the first term at which it would be regular to notice the cause for trial, and not the first term, when according to the state of business in the court it can be reached on the calendar.
Motion to quash a writ of certiorari. Issue was joined in this cause in the court of common pleas of Saratoga county, in July, 1844, and the cause was noticed at the ensuing August term of that court; but not being likely to he reached on the calendar of issues, it was suffered to go over the term by consent of parties. The cause was again noticed for the next December term of the common pleas, and after such notice, but more than eight days previous to the commencement of the term, the defendant procured the allowance of a certiorari to remove the same to this court, and caused the same to i e filed in the court of common pleas and notice thereof to he given to the plaintiff’s attorneys, but he did not pay or offer tc pay the plaintiff any costs.
Beach ij‘ Shepherd, for the plaintiff.
Boches Sp Nash, for the defendant.

By the statute, (2 R. S. 389, $ 8,) a writ of certiorari to remove a cause in which an issue of fact has been joined, from the court of common pleas, must be filed “ at least eight days before the first day of the term at which such issue of fact might be tried according to the practice of the court.” And if not filed within such time it is not to be effectual to remove the cause, unless the -party, prosecuting the writ shall pay the costs incurred in consequence of the same having been noticed for trial.

The defendant contends that because the state of the business of the common pleas was such that the cause could not be tried at the first term at which it was noticed, the certiorari might be brought at any time thereafter, more than eight days before the ensuing term, without the payment of costs. But the statute evidently refers to the first term at which the law and practice of the court will permit the issue to be tried; and not the first term, when according to the state of the business in the court, it can be reached on the calendar and disposed of. To render the writ available, therefore, the defendant should have paid the plaintiff’s costs of noticing and preparing for trial both at the August and December terms. As he failed to pay any costs, the cause has not been effectually removed, and the writ should be quashed. The costs of this motion must be paid by the defendant. (George v. Orcutt, 19 Wend. 647 .)

Ordered accordingly.

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