Philips v. Brainard

2 Cow. 440

• Court: New York Supreme Court
• Decided: February 15, 1824
• Status: Published

Opinion

Curia.

We are clearly with you that the affidavit was presented to the Judge in proper Season; The only question is, whether the supplemental affidavit Was admissible.

Spencer, in reply.

By the statute, the officer allowing the Certiorari is to be satisfied byaffidavit showing for cause that there is error iñ the judgment. These are the véry terms of the statute; The affidavit must necessarily show á judgment, before it can point out thé errors which it contains. The judgment is a part of the merits on which the writ is foündéd: Dickson v. Selye settles this question; The Cohrt 'say, in that casé, that every thing relating to the merits must be stated in the áffidávit which is made within the 30 days.

The only question is, whether the Judge was warranted ill receiving thé supplemental affidavit. We think the mere omission to state the judgment might be supplied by an affidavit made after the 30 days. There was no error complained of in the judgment itself. The party stated all which he relied upon for error within the 30 days, which was a substantial compliance with the statute.

Motion denied.