People ex rel. Mullin v. Brotherhood of Stationary Engineers

Lawrence, J. It would appear that, under section 2072 of the Code of Civil Procedure, the alternative writ should have been made returnable 20 days after the service thereof, at the office of the clerk of the court, and that as in this case it was made returnable on the first Monday of October, and was not made returnable within 20 days after the service thereof, the plaintiff’s counsel is right in his contention. I am of the opinion, however, that, as this motion has been made previous to the return-day, it is within the power of the court to amend it. See People v. Baker, 14 Abb. Pr. 19, 35 Barb. 105. I will allow the relator to amend his writ on payment of $10 costs.