Morton v. Clark

11 How. Pr. 498

• Court: New York County Courts
• Decided: March 15, 1856
• Status: Published

Opinion

M'Kean, County Judge.

By the practice as it existed before the Code, the party applying for a certiorari to review a justice’s judgment, was required to make an affidavit, 66 setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error was founded.” (2 R. S. 255, § 171.) And it was held that an affidavit which omitted to state any grounds, was insufficient. (The People ex rel. Roe agt. The Suffolk Com. Pleas, 18 Wend. 550.)

By the Code of 1848, the appellant was required to make, or cause to he made, u an affidavit, stating the substance of the testimony and proceedings before the court below, and the grounds upon which the appeal was founded.53 (Code of 1848, § 303.) An omission thus to state the grounds was fatal. (Williams agt. Cunningham, 2 Sand. 632 and note (a); Thompson agt. Hopper, 1 Code Reporter, 103.)

The Code of 1852 substitutes a notice of appeal for the affidavit, but requires that such notice shall also state “ the grounds upon which the appeal is founded.55 (§ 353.)

Under the old practice, it was the justice’s duty to “ truly and fully answer to all the facts set forth in the affidavit on which the certiorari was allowed.55 (2 R. S. 255, § 178.) And he was required to answer only to the facts thus set forth. But, under the Code, the justice must “ make a return to the appellate court of the testimony, proceedings, and judgment. (§ 360.) And this he must do, whether the appellant has stated few or many grounds in his notice.

It is therefore obvious, that, the grounds of appeal are not to he stated entirely, if at all, for the information of the justice. It is the right of the respondent to be informed what questions are to be made in the county court, so that he may prepare for the argument, or procure an amended return, if the original is defective as to any of the “ grounds upon which the appeal is founded.55

The notice of appeal in this cause is, therefore, insufficient.

But as it was agreed by the counsel that this question, and the merits o'f the case, might both be passed upon by the court, it is unnecessary to decide, whether, by giving a general notice of appearance, and omitting to make a motion to dismiss the appeal, the respondent has waived the right now to object.(a)

(a) The ease was decided on the merits, and the judgment affirmed.