(concurring.) The absence of a venue on the affidavit is the only defect in the arrest proceedings complained of. Under Bellinger v. Gardiner, 12 How. Pr. 384; Cutler v. Rathbone, 1 Hill, 206, and Decker v. Judson, 16 N. Y. 448, and the authorities therein cited, I can perceive nothing in principle which forbids the allowance of an amended affidavit herein, nunc pro tune, supporting the arrest by adding the omitted venue. Milbank v. Bank, 3 Abb. Pr. (N. S.) 223, 224; Cook v. Whipple, 55 M'Intyre *16v. Rowan, 3 Johns. 144. The affidavit was in fact sworn to as is officially certified to, and presumedly was taken within the jurisdiction of the attesting-officer, which he designates, after his signature, as being New York county. Parker v. Baker, 8 Paige, 428, 430, where, likewise, it did not appear where-the affidavit was sworn to; also, People v. Stowell, 9 Abb. N. C.461. That was. sufficient to amend by; and the defect was not jurisdictional. The affidavit, though at most voidable, was not void, and it was, hence, amendable nuncpro tune. Fawcett v. Vary, 59 N. Y. 597, and cases cited at page 598; Code-Civil Proc. § 723. The mode of allowing the amendment in the order below, without requiring a cross-motion, was also proper. Jones v. Williams, 4 Hill, 35.
The amendment permitted by the order appealed from must be allowed, and. the said order must be affirmed, with costs.