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Stearns v. Kenyon

5 Hill & Den. 519 Court N.Y. Sup. Ct. English

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p. 519
Stearns vs. Kenyon.

Headnote

The notice of bail in error required by 2 R. S. 597, § 34 must be given within ten days from the filing of the writ in the court to which it is directed.
If the notice omit to state the additions of the sureties, it is ground for quashing the writ.
But where the defendant in error moved to quash the writ because the notice failed to state the additions of the sureties, and it appeared that the defect was supplied by a new notice given after the ten days and after the motion papers were served; held, that the writ might be allowed to stand on payment of costs of the motion.
The court from which a writ of error issues may order it to be quashed, though it has not been returned. Semble.
A. Taber, for the defendant,
moved to quash or supersede a writ of error to the C. P., on the ground that the notice served did not state the teste and return of the writ, (2 R. S. 600, § 58,) nor the additions of the bail. (Id. 597, § 34.) These defects were supplied by a further notice, given after the lapse of more than ten days from the filing of the writ of error, and after papers for this motion had been served. Although the return day was passed, the writ of error had not been returned; and, on this ground,
G. Lawrence, for the plaintiff in error,
insisted that the motion was premature. He cited Vandermark v. Jackson, (1 Caines, 251.)

When Vandermark v. Jackson was decided, writs of error to the common pleas issued out of chancery, and until the writ was returned and filed, this court did not get possession of the cause. But now, the writ of error issues from this court, and we have the same control over it as we have over our own writs and process in other cases. The notice is, to quash the writ, or for such other rule or order as the court may think proper to grant;[1] and if there is any dif

(a) (a) As to the effect of this clause in a notice of motion, see Barstow v. Randall and others, (ante, p. 518.)

p. 520
ficulty in quashing the writ, it may be superseded. (Ferguson v. Jones, 12 Wend. 241 .) We think, however, that either order may he made. I

Notice of the names, additions and residence of the sureties in the error bond must be given within ten days after the filing of the writ of error. (2 R. S. 597, § 34.) This means filing in the court to which the writ is directed. The notice served Within the ten days was not sufficient; hut as the defect has now been supplied, I think the writ should be allowed to stand on payment of the costs of the motion.

Ordered accordingly.

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