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Fisher v. Bloomberg

77 N.Y.S. 541 Court N.Y. App. Div. Decision date 1902-07-08 English

Decision Majority — McLAUGHLIN, J. · Dissent — VAN BRUNT, P. J.

Contents

Majority

p. 541
(74 App. Div. 368.)
FISHER v. BLOOMBERG.
(Supreme Court, Appellate Division, First Department.
July 8, 1902.)

Headnote

1. Attachment—Affidavit—Venue—Amendment Huno Peo Tunc.
Where, in an affidavit for an attachment, the venue was omitted, and on a motion to amend by supplying the omission nunc pro tune it is shown that the affidavit was in fact sworn to before a proper officer within his jurisdiction, the court has power to grant the amendment under Code Civ. Proc. § 723, providing that the court may at any stage of the action, in furtherance of justice, amend any proceeding by correcting a mistake.
Van Brunt, P. J., dissenting.
1¡ 1. See Attachment, vol. 5, Cent. Dig. § 329.
Appeal from special term, New York county.
Action by Alexander S. Fisher against Joseph H. Bloomberg. From an order denying a motion to vacate an attachment, defendant appeals. Affirmed.
p. 542
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, and LAUGHLIN, JJ.
Thomas F. Gilroy, Jr., for appellant.
C. F. Goddard, for respondent.

The defendant moved upon the papers upon which an attachment was granted to vacate the same. Intermediate the making of the motion and its hearing the plaintiff obtained an order to show cause why he' should not be permitted to supply nunc pro tune a defect in one of the affidavits' upon which the attachment was based. The defect sought to be supplied was the omission of the venue. Both motions were heard together, at the close of which an order was made granting leave to the plaintiff within io days to amend such affidavit nunc pro tune by inserting the venue, viz., “County of New York, ss.,” and, if such amendment be made within that time, that the defendant’s motion “be, and the same hereby is, in all respects denied.” It is from this order that the .defendant appeals.

We are of the opinion that the court had power, under section 723 of the Code of Civil Procedure, to grant the amendment. In Sulzbacher v. J. Cawthra & Co., 14 Misc. Rep. 545 , 36 N. Y. Supp. 8 , affirmed on opinion below, 148 N. Y. 755 , 43 N. F. 990, it was held that the general power to amend allowed by the Code applies to attachment proceedings, and in King v. King, 68 App. Div. 189 , 74 N. Y. Supp. 119 , that the omission of a warrant of attachment to state the ground upon which it was issued was one which could be cured by amendment.

The venue is only prima facie evidence of the place where an affidavit is sworn to. Thurman v. Cameron, 24 Wend. 87 . Here the affidavit, while it does not contain ¿a venue, purports to have been sworn to before a notary public of Kings county, whose certificate of authority to administer an oath was filed in the county of New York. The omission of the venue, however, "at most made the affidavit prima facie a nullity, but the affidavit was in. fact sworn to within the jurisdiction, as appears from the affidavit used to procure the amendment, of the notary who administered the oath; and there-' fore the omission of the venue did not invalidate the oath, nor did it render the affidavit a nullity’when it appeared that the oath was duly administered. Parker v. Baker, 8 Paige, 428; Barnard v. Darling, 1 Barb. Ch. 218 ; Lawton v. Kiel, 51. Barb. 30; Smith v. Collier, 3 N. Y. St. Rep. 172 ; People v. Stowell, 9 Abb. N. C. 456 ; Fawcett v. Vary, 59 N. Y. 597 .

In Lawton v. Kiel, supra, it was held that the omission from an affidavit on an attachment, sworn to before a commissioner without the state, of the certificate of the secretary of state, was not fatal, but might be supplied by amendment. In Babcock v. Kuntzsch, 85 Hun, 33 , 32 N. Y. Supp. 587 , the omission of the words, “City of Syracuse, ss.,” from the venue, was permitted to be supplied by amendment, the court saying: “The omission does not -invalidate the oath or render the affidavit a nullity when it is shown, as in this case, that it

Dissent

p. 543
was duly administered by a proper officer within his jurisdiction, and the omission of the venue may be supplied by amendment.” In people v. Stowell, supra, it was held that an affidavit which had no venue, but which appeared to have been sworn to before a proper officer, would not be presumed to have been improperly taken, the court there saying: “As the oath does not appear to have been taken out of the jurisdiction of the city clerk, it is not to be presumed that he was guilty of a breach of duty in administering the oath at a place out of the limits of his jurisdiction.” See, also, Crosier v. Steamboat Co., 27 Hun, 216 . And in Fawcett v. Vary, supra, it was held that where the affidavit that nO‘ answer or demurrer had been served, filed with the clerk for the purpose of perfecting a judgment by default, is properly sworn to before a proper officer, who neglects to. sign the jurat, and the omission is not discovered until after the entry of judgment, the court has power, and it is within its discretion, to permit the officer to sign nunc pro tune.

Under the section of the Code referred to and the authorities cited, we are of the opinion that the court had the power to grant the amendment, and, under the facts presented, that such power was properly exercised. The attachment is also’ attacked upon other grounds, but.they do not seem to be of sufficient importance to be here considered.

The order is right, and should be affirmed, with $10 costs and disbursements.

PATTERSON and EAUGHEIN, JJ„ concur.

I dissent. The attachment was also amended in a material point.

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