Saril v. Payne — 24 N.Y. St. Rep. 486

Majority

p. 486

Sigmund Saril, Pl’ff and Resp’t, v. William H. Payne, Def't and App’lt.

New York Common Pleas,

General Term,

Filed April 1, 1889.)

Headnote

Arrest—Effect of omission of venue in affidavit on which order WAS BASED.

The affidavit, on which the order of arrest was based, contained no venue, i e., it left out the words: “ City and county of New York, ss." Meld, mis was a jurisdictional defect and all the proceedings were coi'am nonjudice and void.

p. 487

Appeal by this defendant from the order o- the general term of the city court of Mew York, affirming an order of the special term of that court, denying a motion, on behalf of the defendant, to vacate an order of arrest granted herein on January 12, 1888.-The affidavit, upon which the order of arrest was granted, left out the words: “ City and county of Mew York, ss.”

L. Laflin Kellogg, for app’lt; Franklin Bien, for resp’t.

Per 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. Thomas v. Burhans, 61 N. Y., 63 ; Lane v. Morse, 6 How., 394 ; Cook v. Staats, 18 Barb., 407 ; Vincent v. The People, 5 Park. Cr. Rep., 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 this rule should be extended, in the absence of any authority upon the subject, in cases where personal liberty is involved.

We think, upon the authority of the court of appeals already expressed, that leave to make a further appeal to them upon this subject, is entirely unnecessary, as the decisions cited clearly show what would be the ultimate result of such application.