Hall v. Emmons

9 Abb. Pr. 370 | NY | 1870

By the Court.—Folger, J.

The Code of Procedure (§ 191), provides in one clause that bail may surrender their principal within twenty days after the commencement of the action to charge them on their undertaking. The defendants’ attorney, mistaking the practice, supposed that this twenty days began t'o run from the time of serving the copy of the complaint. The principal was surrendered within that time. Upon this erroneous supposition, the first motion was made, as one of right. It was denied, because thus made.

The defendants’ attorney confessing his mistake in affidavits, the defendants then moved the court for the exercise of its discretion as a matter of favor, in their behalf, under the last clause of that section. As matter of favor,> the court, in the exercise of its discretion, made the order that the bail might surrender their principal in ten days.

The court at general term were right in their view of the practice, but two motions for the same object cannot be made upon the same state of facts,'-where the first has been denied, without leave to renew having been given or reserved. But they erred in applying that rule to this case.

The order of the general term must be reversed, with costs to the appellants.

All the judges concurred.

Order of the general term reversed, and that of the special term affirmed, with costs.