Boyce v. Dumars

99 N.Y.S. 769 | N.Y. App. Div. | 1906

Smith, J.:

This action was brought in the City Court of Elmira. Defendant made default, and judgment was entered upon the complaint as a verified complaint without proof of the cause of action. The defendant appealed. The objection raised is that the complaint was not properly verified so as to authorize judgment without proof of the cause of action. The complaint is verified by the plaintiff’s attorney and is as follows: “ Samuel D. Aulls, being duly sworn, deposes and says that he is plaintiff’s attorney in this action; that he has read the foregoing complaint and knows the contents thereof to he true except as to the matters therein stated upon information and belief and as to those matters he believes it to he true; that deponent verifies the foregoing complaint because he resides and has his office in Elmira, Chemung county, New York, whereas plaintiff resides at Wayne, Steuben county, New York; that deponent’s information is derived from a statement of account now in deponent’s possession and conversation and communication had with plaintiff.” By chapter 66 of the LaAvs of 1898, section 115 of the city charter (Laws of 1894, chap. 615) was amended so as to provide that in the City Court judgment might be taken as upon defendant’s admission upon his failure to answer a complaint verified as required in courts of record. By section 525 of the Code of Civil Procedure it is provided that the verification must he made by the affidavit of a party, except “ * * ® where the party is not within the county where the attorney resides.” By section 526 it is provided that where the affidavit of verification is made by a person other than the.party the affidavit must show why it is not made by the party himself. .It will be seen that there is1 nothing in this affidavit of verification which shows that the plaintiff was not within the county when the affidavit was made. Proof that he resides within another county is not sufficient. The appellant hero urges us to disregard this omission as immaterial, but we do not so consider it. Under the old system in inferior courts judgment could only be obtained by common-law proof of the cause of. action. If a plaintiff would avail himself of the substitute now offered by the statute and procure his judgment without making common-law proof of his cause of action he should comply strictly with the terms of the statute which suffers him to take his judgment without making his proof. This he has failed to do, and the justice was without jurisdiction to enter judgment without a complaint properly verified or without common-law proof of the cause of action therein stated. The judgment of the County Court should, therefore, be affirmed, with costs.'

All concurred.

Judgment affirmed, with costs.