Saril v. Payne

4 N.Y.S. 897, 24 N.Y. St. Rep. 486, 1889 N.Y. Misc. LEXIS 1771

Opinion

Per Curiam.

The question raised upon this appeal is one of jurisdiction and not of irregularity. The affidavit upon which the order of arrest was granted was the basis of the judge’s action. If defective, the proceeding must fall. The lack of venue has been decided to make an affidavit a nullity. Thompson v. Burhans, 61 N. Y. 63; Lane v. Morse, 6 How. Pr. 394; Cook v. Staats, 18 Barb. 407; Vincent v. People, 5 Parker, Crim. R. 88; Thurman v. Cameron, 24 Wend. 87. The case of Cook v. Whipple, 55 N. Y. 150, allowed an amendment to a confession of judgment where the venue was omitted, but we do not think this rule should be extended, in the absence of any authority /upon the subject, in cases where personal liberty is involved. We think, ¡upon the authority of the court of appeals already expressed, that leave to make a further appeal to them upon this subject is entirely unnecessary, as the decisions cited clearly show what would be the ultimate result of such application.