Maher v. Comstock

1 How. Pr. 175 | N.Y. Sup. Ct. | 1845

Jewett, Justice.

A writ of error coram nobis can not properly issue only by order of this court upon cause shown by affidavit, and after notice to the opposite party or his attorney, (Ferris vs. Douglass, 20 Wend., 626; Smith and others vs. Kingsbury, 19 Wend., 620.) It is insisted by the counsel for the plaintiffs, that only one set of papers can be read on these motions, either the set entitled or the set not entitled is irregular, and that using one or the other, enough is not shown to authorize the allowance of the writ. It may be seen that the papers on which these motions are founded, are very slovenly got up; a portion without any title, the residue entitled in the causes in which judgments have been recovered. That portion of the papers which are not entitled, are affidavits proving that Comstock was twenty-one years of age on the 26th day of April last and his petition for an appointment of a porchain ami, in which the further fact showing a judgment to have been recovered is set forth; assuming that the papers on which these motions are founded should not regularly be entitled in any suit, which I think is the correct practice (Haight vs. Turner, 2 John. Rep, 317), then there has been no regular notice of these motions given, to the party or his" attorney, and the motions should be denied on that ground. On the other hand assuming that the papers should be entitled in the suits in which judgment has been recovered, we have only the affidavits of Clark and the notice of motion so entitled, in neither of which is it stated that Comstock was under twenty-one years of age at the time of the recovery of the judgments; it follows that using either set of papers without the aid of the other set; the motions can not be sustained. Motion in each case must be denied with $7 costs, but without prejudice.

Rule accordingly.