Kellogg v. Church

3 Denio 228

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

Opinion

By the Court, Beardsley, J.

It is objected that the plaintiffs in error have mistaken their remedy ; that they should have carried the case to the court of common pleas of the county where the judgment was rendered, and not to this court. That course certainly might have been taken; (2 R. S. 255, § 170,) but the legislature did not, by merely providing a new remedy, deprive this court of a well known branch of its common law jurisdiction.

(a) The affidavit on which the attachment was issued being defective, the judgment, must be reversed.

Judgment reversed.

In Comstock v. Porter, (5 Wend. 98,) it is said that a certiorari will lie to this court upon a justice’s judgment, in a case where the statute gives a remedy by appeal to the common pleas, and the same remark is repeated in Wood v. Randall, (5 Hill, 264, 269.) In the principal case the resort to the common pleas was by certiorari. It seems therefore that in either case a certiorari to this court will lie. See also Ex parte Heath, (3 Hill, 42,52,) and The People v. Covert, (1 Hill, 674.) It is presumed, however, that in this class of cases the writ would not be allowed, except under special circumstances, as was said by Marcy, J. in Comstock v. Porter.