People ex rel. Saporito v. Warden of the Penitentiary

Appellate Division of the Supreme Court of New York

People ex rel. Saporito v. Warden of the Penitentiary

243 A.D. 450, 277 N.Y.S. 726, 1935 N.Y. App. Div. LEXIS 7091

Appellate Division of the Supreme Court of the State of New York·Decided March 8, 1935·Published·Cited by 1 cases

Opinion

Per Curiam.

No notice having been given to the district attorney of Bronx county, from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure to give such notice was not an irregularity, but a jurisdictional defect. (Civ. Prac. Act, § 1258, subd. 4; People ex rel. Asmus v. Melody, 91 App. Div. 569; Matter of Leggat, 162 N. Y. 437; People ex rel. Gamaldi v. Warden Kings County Jail, 160 App. Div. 480; Matter of Mellor v. Hinkley, 201 id. 619; People v. Carter, 48 Hun, 165.)

The order denying the motion to vacate the order of August 15, 1934, sustaining the writ and discharging the prisoner, should be reversed, said order vacated, and the prisoner remanded, without prejudice to an application for a further writ.

Present ■ — Martin, P. J., Merrell, O’Malley, Townley and Untebmyer, JJ.

Order reversed, motion granted and the relator remanded, without prejudice to an application for a further writ.

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Per Curiam.

No notice having been given to the district attorney of Bronx county, from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure to give such notice was not an irregularity, but a jurisdictional defect. (Civ. Prac. Act, § 1258, subd. 4; People ex rel. Asmus v. Melody, 91 App. Div. 569; Matter of Leggat, 162 N. Y. 437; People ex rel. Gamaldi v. Warden Kings County Jail, 160 App. Div. 480; Matter of Mellor v. Hinkley, 201 id. 619; People v. Carter, 48 Hun, 165.)

The order denying the motion to vacate the order of August 15, 1934, sustaining the writ and discharging the prisoner, should be reversed, said order vacated, and the prisoner remanded, without prejudice to an application for a further writ.

Present ■ — Martin, P. J., Merrell, O’Malley, Townley and Untebmyer, JJ.

Order reversed, motion granted and the relator remanded, without prejudice to an application for a further writ.

People ex rel. Saporito v. Warden of the Penitentiary, 243 A.D. 450, 277 N.Y.S. 726, 1935 N.Y. App. Div. LEXIS 7091 (N.Y. Ct. App. 1935).

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Opinion

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