Appellate Division of the Supreme Court of New York, 1935

People ex rel. Saporito v. Warden of the Penitentiary

Appellate Division of the Supreme Court of New York · Decided March 8, 1935

243 A.D. 450; 277 N.Y.S. 726; 1935 N.Y. App. Div. LEXIS 7091

Counsel

Sol Boneparth of counsel [Herman J. Fliederblum with him on the brief; Samuel J. Foley, District Attorney], for the appellant., No appearance for the respondent.

Opinion of the Court

Per Curiam.

No notice having been given to the district attorney of Bronx county, from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure to give such notice was not an irregularity, but a jurisdictional defect. (Civ. Prac. Act, § 1258, subd. 4; People ex rel. Asmus v. Melody, 91 App. Div. 569; Matter of Leggat, 162 N. Y. 437; People ex rel. Gamaldi v. Warden Kings County Jail, 160 App. Div. 480; Matter of Mellor v. Hinkley, 201 id. 619; People v. Carter, 48 Hun, 165.)

The order denying the motion to vacate the order of August 15, 1934, sustaining the writ and discharging the prisoner, should be reversed, said order vacated, and the prisoner remanded, without prejudice to an application for a further writ.

Present ■ — Martin, P. J., Merrell, O’Malley, Townley and Untebmyer, JJ.

Order reversed, motion granted and the relator remanded, without prejudice to an application for a further writ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.