Kanouse v. Martin

2 How. Pr. 252

• Court: New York Supreme Court
• Decided: September 15, 1846
• Status: Published

Opinion

Bronson, Chief Justice.

Mothing has been properly returned in answer to the writ of error, but the judgment record in the court below. If the plaintiff in error wanted the other matters brought up, he should have alleged diminution and sent a certiorari. All beyond the judgment record must be struck out; and as the improper return was made upon the suggestion of the counsel for the plaintiff in error, costs of the motion should be allowed. The assignment of errors is founded upon the irregular return, and must fall with it.

Ordered, that the return made to the writ of error by the court below be corrected by striking out of it every thing but the judgment record, and that the assignment of errors be set aside with ten dollars costs of the motion, to be paid by the plaintiff in error, who is at liberty to assign errors anew.