4 Denio 258 | N.Y. Sup. Ct. | 1847
The purchase by Shumway of the title of the purchaser at the sheriff’s sale was duly made, provided the affidavit of the true amount due on Shumway’s judgment was sufficient. This is required to be made by the creditor or by his attorney or agent. (2 R. S. 373, § 6, sub. 3.) The objection that the fact of Van Dusen being the attorney is not directly sworn to, is answered by the suggestion that his name appeared as plaintiff’s attorney in the copies of the docket. But I. am of opinion that the attorney for the plaintiff on the record cannot, by virtue of that character alone, make the affidavit. The words “ attorney” or “ agent” appear to have been used by the legislature as synonymous, and were intended to designate the person employed by the creditor in the business of making the redemption. The authority of the attorney in the suit generally expires with the perfecting of judgment, although he has certain powers which may be exercised after that event, such as issuing execution, receiving payment and acknowledging satisfaction. (Jackson v. Bartlett, 8 John. 361; Kellogg v. Gilbert, 10 id. 220; Gorham v. Gale, 7 Cowen, 739; Simonton v. Barrell, 21 Wend. 362; Corning v. Southland, 3 Hill, 552; 2 R. S. 362, § 24.) Van Dusen being unauthorized under his retainer in the suit in which the judgment was recovered to make the affidavit, it was essential that his character as the attorney of the creditor in the special proceeding should be directly sworn to in the affidavit. It was so held where the affidavit was made by one claiming to be the agent of the creditor. (Ex parte The Bank of Monroe, 7 Hill, 177.) In that case as in the present, he was named as the agent, but this was held' to be merely discriptio personae. The principle there decided must govern this case; and the motion for a mandamus must consequently be denied.
Motion denied.
This motion was decided in December, 1846.