15 N.Y.S. 321 | N.Y. Sup. Ct. | 1891
Lead Opinion
The appellant challenges the validity of the judgment in this case on the grounds (1) that the authority of the plaintiff’s attorney to appear for it was not proved as required by section 2890 of the Code of Civil Procedure; (2) that the justice acquired no jurisdiction of the parties; (3) that the complaint was not properly verified, as required by chapter 414, Laws 1881, and hence that the justice was not authorized to render the judgment appealed from without further proof; and (4) that the return of the constable was insufficient to justify the justice in entering judgment against the defendant upon the proof given." The appellant contends that there was not sufficient proof of the authority of Edward S. More to appear as attorney for the plaintiff in the justice’s court. The return of the justice shows that “E. S. More appeared and answered for the plaintiff, and 'was by me [the justice] sworn as to his authority to appear.” We think this was sufficient to show that section 2890 of the Code of Civil Procedure was complied with.
It is also claimed that it did not appear that the justice had jurisdiction of the parties, in that the return did not show that either of the parties was a resident of Madison county. The constable’s return shows that the summons and complaint were served on the defendant at the town of Cazenovia, which was the town in which the justice presumably resided, as the venue of the summons was Madison county, town of Cazenovia. Therefore, if the defendant was a non-resident of the county, the justice acquired jurisdiction, under subdivision 3, $ 2869, Code Civil Proc., which provides that an action against a non-resident of the county may be brought before a j ustice of the town in which he is at the time of the commencement of the action. We think, as there was no proof to the contrary, the return sufficiently shows that the justice had jurisdiction of the parties.
3STor do we think the plaintiff’s claim that the complaint.was not properly verified can be sustained. Chapter 414, Laws 1881, provides that the complaint shall be subscribed by the plaintiff or his agent, and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. It would seem that it was the intent of this statute that the complaint might be verified by the person subscribing it; if subscribed by the plaintiff, that it might be verified by him; if subscribed by his agent, that it might be verified by. such agent. When we refer to section 526, we also find that that section contemplates a verification by a person other than a plaintiff. But the appellant contends that it must be verified as required by section 525 of the Code. That section provides that the verification must be by the affidavit of the party, except, “(1) where the party is a domestic corporation, the verification must be by an officer thereof; (2) where the people of the state or a public officer- in their behalf is the party, the verification may be made by any person acquainted with the facts; (3) where the party is a foreign corporation, or where the party is not within the county where the attorney resides, * * * or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney, or where all the material' allegations of the pleading are within the personal knowledge of the agent or the attorney, in either case the verification may be made by the agent of or attorney for the party. ” In this case the action was founded upon a written instrument for the payment of money only, which was in the possession of the plaintiff’s agent who made the verification. We think it was sufficient.
The only remaining question is whether the constable’s return was .sufficient to give the justice jurisdiction to enter judgment in this action upon
Dissenting Opinion
(dissenting.) I cannot concur in the conclusion reached by a majority of the court that the judgment should be reversed on the ground that the constable’s return was insufficient to justify the justice in rendering the judgment appealed from without further proof. It is true that in the case of McMullin v. Mackey, 6 N. Y. Supp. 885, Merwin, J., said that a similar return was insufficient. ' In that case the ease of Wilkinson v. Bayley, 71 Wis. 131, 36 N. W. Rep. 836, was cited, and much relied upon as sustaining that doctrine. An examination of that case at first seems to indicate that it holds the doctrine contended for; but, when the cases relied upon by the judge who wrote the opinion in the Wilkinson Case are examined, it appears that the rule or statute regulating the service in those cases was unlike the statute of 1881, as the rule or statute there under consideration provided that, where •the service should be made by a person other than the sheriff, it should be necessary for such person to state in his affidavit of service, inter alla, whether he left with the defendant a copy as well as delivered it to him. Matteson v. Smith, 37 Wis. 333. It is to be inferred, we think, that the statute referred to in the Wilkinson Case was similar to, if not identical with, rule 41 of the circuit court upon which the decision in the Matteson Case was based, and that it required the affidavit to state whether a copy was left with the defend.ant or not, as the judge in delivering the opinion says: “The affidavits do not state that a copy of the summons was left with any of the defendants, as required by section 2642, Rev. St.” If correct in assuming that in the cases • cited the statute or rule required that the affidavits should state whether or not a copy was left with the party served, they are clearly distinguishable from the case at bar. The statute of 1881 provides the manner of service, which is by delivering to and leaving with the defendant copies. It does not ■ direct as to the form of the constable’s return, nor that it shall show that the officer serving it left copies with the defendant as well as delivered them to him. I do not regard the Wisconsin eases as binding authorities upon this question. It seems to me that the return of the constable that he delivered •the copies to the defendant included leaving them with him. A delivery must