Syracuse Moulding Co. v. Squires

Per Curiam.

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 *323 the proof given. The only proof in the case was as to the amount of interest due upon the draft in suit. Hence the question arises whether the return of the constable showed a sufficient compliance with the statute of 1881 to authorize the entry of the judgment appealed from without further evidence. That statute provides that the summons and complaint shall be attached, and •shall be served upon the defendant by delivering to and leaving with him personally true copies thereof. It also provides that the official certificate of the constable making such service shall be sufficient evidence thereof. The ■ certificate of the constable was to the effect that the within summons and • complaint were personally served on the defendant on the 11th day of July, 1890, at thé town of Cazenovia, by delivering to him copies thereof. The precise question here is whether the jurisdiction of the justice to render a judgment without further proof failed because the officer omitted to state in his return that he left with the defendant the copies of the summons and complaint that he delivered to him. This question was somewhat considered by this court in McMullin v. Mackey, 6 N. Y. Supp. 885 . In the opinion delivered by Merwin, J., in that case, it was said that a similar return was not a sufficient compliance with the statute, as it did not show that the copies were left with the defendant. While this portion of the opinion was not concurred in by the other members of the court, a majority of the court are of the opinion that the doctrine of that case upon this question should be upheld, and that the constable’s return was insufficient to justify the justice in rendering a judgment in the case at bar without further proof. It therefore follows that the judgment should be reversed, with costs. Judgment of Madison county ■ court and judgment of justice reversed, with costs.