171 N.E. 917 | NY | 1930
The case comes up on a motion for judgment on the pleadings. The complaint alleges that the defendant negligently constructed a city sewer so that the same became obstructed, causing its contents to back up and flood the lower floor of plaintiff's premises to plaintiff's damage $2,000, and that notice of claim and notice of intention to commence an action thereon were given in accordance with the provisions of section
It is stipulated that the notice of claim shall be considered part of the complaint. The notice is in proper form except as to its verification. It is signed by the claimant. The affidavit of verification begins: "Agnes Ponsrok, being duly sworn, deposes and says:" Then follows the usual affidavit of verification, which is not signed by the claimant but is subscribed by William F. *93 Fennell, who attaches alongside the jurat his seal as notary public. The question is whether the claim is properly verified.
Second Class Cities Law, section
While the constitutional classification of cities into cities of the first, second and third class in accordance with their population (Art. XII, § 2) no longer exists, under the Home Rule Amendments adopted November 6, 1923, the Second Class Cities Law is continued in force (Art. XII, § 7). The city of Yonkers comes under the act. The court must, therefore, construe the words "verified by the oath of the claimant" in order to determine whether the action may be maintained. If the ignorance and incompetency of the notary in failing to have the affidavit of verification subscribed by the claimant has resulted in a mere technical deviation from the classic form of an affidavit, the irregularity might be overlooked. The defect is, however, one of substance. The words "verified by the oath of the claimant" import the usual affidavit of verification, such as is prescribed by rules 99-100 of the Rules of Civil Practice for the verification of pleadings. Such an affidavit should be subscribed by the affiant. No statute requires it but established practice compels it. True, the great authority of Chief Justice SHAW is on the other side. In Farrer v. *94 Parker (7 Metc. 43) it was held that as the statute does not require the oath to be subscribed, subscription is not necessary to its validity. Abundant authority may be found in other jurisdictions for this holding. (2 Corpus Juris, 357, § 90, note 33.)
In New York the rule is otherwise. It was held in the Supreme Court of this State in the early days, without giving reasons for the ruling, that the writing is an affidavit in law, though not signed by the deponent, if his name appears in the body of it and it is duly sworn to. In equity the rule was different. Chancellor WALWORTH pointed out the difficulties of sustaining a prosecution for perjury on an unsigned affidavit. His reasoning has since prevailed. In People ex rel. Kenyon v. Sutherland (
The fact that the city has not been prejudiced is immaterial. The court may not exercise a dispensing power based on the principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with. A notice of claim is not "verified by the oath of the claimant" when the affidavit is subscribed not by the claimant but by the notary and the jurat is not subscribed by the notary and is attested only by his official seal.
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., CRANE, KELLOGG, O'BRIEN and HUBBS, JJ., concur; LEHMAN, J., not sitting.
Judgment affirmed.