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Lowry v. De Chadenedes

125 N.Y.S. 1042 Court N.Y. App. Div. Decision date 1910-12-02 English

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p. 1042
LOWRY v. DE CHADENEDES.
(Supreme Court, Appellate Division, First Department.
December 2, 1910.)

Headnote

Injunction (§ 145*)—Aid of Action—Affidavit.
An injunction in aid of an action was granted upon the allegations of a complaint made wholly on information and belief and verified by the plaintiff’s attorney, and the plaintiff’s affidavit stated no venue and appeared to have been made outside of the state, and did not bear a certificate of the competency of the officer taking it, and was verified before an officer designating himself by a title not borne by any officer of this state. Held, that the injunction could not stand because there was no competent affidavit of facts to sustain it.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 318; Dec. Dig. § 145.*]
Appeal from Special Term, New York County.
Action by Walter M. Lowry against Jean B. De Chadenedes. From an order granting an injunction during the pendency of the action, the defendant appeals.
Order reversed.
Argued before INGRAHAM, P. J., and McLAUGPILIN, SCOTT, LAUGHLIN, and DOWLING, JJ.
E. Powis Jones, for appellant.
Elihu Root, Jr., for respondent.

The injunction appealed against cannot be sustained, because there is no competent affidavit of the facts to sustain it. The complaint is wholly on information and belief, and verified by one of the plaintiff’s attorneys. The paper purporting to be an affidavit of plaintiff is a nullity. Not only is there no venue stated, but it appears to have been made out of the state, and the necessary certificate of competency of the officer taking it is not attached. Turtle v. Turtle, 31 App. Div. 49 , 52 N. Y. Supp. 857 . It appears to have been verified before a person describing himself as “Clerk Circuit Court.” We are not aware of any officer in the státe bearing that title. The undertaking was also irregular in form, but, if that had been .the only defect, it could have been remedied by the giving of a new undertaking.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion denied, without prejudice to its renewal upon proper papers.

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