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Harris v. Durkee

50 N.Y. Super. Ct. 202 18 Jones & S. 202 Court N.Y. Super. Ct. Decision date 1884-03-03 English

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JOSIAH HARRIS, Respondent, v. HIRAM H. DURKEE, Appellant.
Decided March 3, 1884.

Headnote

Affidavits on arrest—defective certificate to jurat talcen out of state—avoids the order—cannot he amended.
Where the affidavit upon which an order of arrest is granted, is verified out of the state and the certificate to the notary’s jurat does not conform to Code Civ. Pro. § 844, the affidavit is a nullity, and the order should be vacated. The defect is jurisdictional, and the court has no power to order that the affidavit be taken from the files for the purpose of having the certificate amended.
Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
This is an appeal from an order made at special term denying the defendant’s motion to vacate an order of arrest, and allowing the plaintiff to amend an affidavit on which the order of arrest was granted, by obtaining a proper certificate of the prothonotary annexed thereto.
The order of arrest was granted under subdivision 3 of section 550 of the Code of Civil Procedure, in an action for
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moneys received in a fiduciary capacity, upon affidavits made by plaintiff and others. Plaintiff’s affidavit was taken at his residence in the state of Pennsylvania, before a notary public, and the certificate of the prothonotary of the court of common pleas was attached.
Defendant moved to vacate the order of arrest on the ground, among others, that the certificate of the prothonotary to said affidavit was defective in the following particulars : (1) It did not state that D. Stewart Elliot, the party before whom the affidavit was taken, was a notary public; simply that he was an “acting ” notary. (2) It did not state that he was authorized to take affidavits, or acknowledgments of deeds to be recorded in this state. (3) It did not state that the prothonotary was acquainted with the handwriting of the notary.
Plaintiff asked permission to amend by procuring a new certificate, and was allowed so to do, upon terms, by the court, and from the order made and entered to that effect the defendant has appealed.
Bagley & Thain, for appellant.
I. Under section 844 of the Code of Civil Procedure, affidavits may be taken before an officer authorized to take, and certify acknowledgment of deeds, and when certified by him to have been taken before him, and accompanied with like certificates as to his official character and genuineness of his signature, as are required to entitle a deed acknowledged before him, to be recorded within this state, &c., may be used as if taken and certified in this state by an officer authorized by law to take and certify the same. The nature of the certificate to be attached to deeds acknowledged in a foreign state, is defined in section 2, chap. 259, Laws of 1858 ; and in section 1, chap. 208, Laws of 1870 ; 2 R. S. 7th ed. pp. 22, 27 and 22, 29. From an examination of those provisions it will appear that the certificate attached to plaintiff’s affidavit is defective in the particulars above pointed out. The affidavit, not being accompanied with the proper certificate, was a nullity.
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II. The justice erred in allowing the affidavit to be taken from the file for the purpose of procuring thereto a proper certificate.
III. The defendant moved only upon the papers upon which the order was granted, and the motion should have-been heard and diéposed of upon these papers only (Code Civ. Pro. § 568). It was contrary to the letter and the spirit of this section to allow the amendmént. This was to arrest a citizen contrary to law, and after arrest to present the proof which the law requires should have been made as a condition precedent. The defect in the papers is-jurisdictional (Jones v. Platt, 60 How. Pr. 73 ; Southern I. N. Co. v. Sherwin, 1 Civ. Pro. R. 44; Kapelovitz v. Kersburg, 4 Week. Dig. 303). Section 793 of the Code of Civil Procedure does not authorize an amendment of the affidavit on which a provisional remedy is granted, by adding a proper certificate. The affidavit is not a process, pleading or other proceeding within the meaning of that section. If an affidavit on which a warrant of attachment is issued under section 636 is insufficient, the attachment will be set aside. See cases cited under that section in 1 Bliss Code.
Rollin G. Beers, for respondent.
The defect in the certificate of the prothonotary was clearly amendable (Code Civ. Pro. §§ 793, 794). Plaintiff actually performed every requisite act in preparing his proof for the court. At the most there existed only an insufficiency in certifying to the due performance of such acts. Amendment has been allowed after the decision of a motion so as to supply a jurat to an affidavit used upon the motion (Hees v. Snell, 8 How. Pr. 185 ). Leave to file an affidavit of verification to complaint and-an affidavit verifying the signature of defendant’s admission of service, so as to sustain judgment entered by default, was granted on defendant’s motion to set aside the judgment for irregularity (Jones v. United States Slate Co., 16 How. Pr. 129 ; White v. Bogart, 73 N. Y. 256 ). Lack of undertaking requisite as condition precedent to suing may be supplied, and such an undertaking,
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if insufficient, may be amended (Milbank v. Broadway Bank, 3 Abb. N. S. 223 ; Kissam v. Marshall, 10 Abb. Pr. 424 ). Undertaking on arrest amendable (Bellinger v. Gardiner, 12 How. Pr. 381 ). “The only objection of force is that the affidavit (to procure attachment) was sworn to before a commissioner in Kentucky, but no certificate of the secretary of state has been obtained as required by the statute. That act requires that before any such affidavit shall be entitled to be used, the certificate shall be annexed. Here it has been used by the judge, and although the objection might have been then made, still I do not think it fatal. The omission may be amended and stipplied. The plaintiff may take the original affidavit from the files for that purpose ” (Lawton v. Reil, 34 How. Pr. 465 ; 51 Barb. 30 ). “There is no step in any action or proceeding, which, if imperfectly taken, is not the subject of amendment” (Eagan v. Moore, 2 McCarty Civ. Pro. R. 337).

The paper purporting to be an affidavit, on which the order of arrest was granted, was not an affidavit, because the acknowledgment or certificate of proof did not comply with the Laws of 1848, chapter 195, section 3, as amended by the Laws of 1867, chapter 557. It is as though ‘the order of arrest had been granted on an unverified written statement. This the judge, who granted the order, had no power to do. The defect was a jurisdictional one,, and the court had no power to order the affidavit to be taken from the files and sent to another stqte there to be acknowledged as required by the law above referred to.

The order appealed from is reversed, with $10 costs, and disbursements to be taxed; and the order of arrest is vacated with $10 costs.

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