2 Denio 185 | N.Y. Sup. Ct. | 1846
The writ was irregular in consequence of the mistake in the return day; but it is amendable. The distinction is between mesne and final process. Mesne process against the body, returnable out of term, is void, and cannot be amended. (Miller v. Gregory, 4 Cowen, 504. And see Chandler v. Brecknell, id. 49.) But final process against the body, returnable out of term, is voidable only, and may be amended. (Cramer v. Van Allstyne, 9 John. 386.) The legislature has made the same distinction. (2 R. S. 424, § 1 to 3.) If there were nothing else in the case, the defendant would be allowed to amend on payment of the costs of the motion.
Ordered accordingly