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and belief proves nothing; an averment in a verified pleading, made upon information and belief, while sufficient as an allegation of fact for the purposes of pleading, will not establish the fact when the pleading is used as an affidavit. 38
It is absolutely ineffectual to meet a positive statement of a fact in an affidavit with a statement in the replying affidavit that the affiant has no knowledge or information sufficient to form a belief as to such fact.39
A statement of fact based upon information and belief must disclose the sources of the information and the grounds of the belief, and a judicial question is presented whether such information has been competently obtained by the affiant.40 The reason why the affidavit of the one having personal knowledge is not produced should be set forth.41
An affidavit in an action cannot be taken by an attorney of record.42
The jurat need not certify that the affiant was known to the officer as the person described in and who made the affidavit.43
An affidavit is distinguishable from a deposition in that the former is the voluntary oath of a person taken without notice, and the latter is taken under interrogatories, oral or written, upon notice. 44
38 Mowry v. Sanborn, 65 N. Y. 581; Rome, W. & 0. R. R. Co. v. Rochester, 46 Hun (N. Y.), 149; Cupples Env. Co. v. Lackner, 99 App. Div. 231, 90 N. Y. Supp. 954.
39 Simmons v. Craig, 137 N. Y. 550, 50 St. Rep. 212; or by a denial upon information and belief without more. Harris v. Taylor, 35 App. Div. 462, 54 N. Y. Supp. 864.
40 Buell v. Van Camp, 119 N. Y. 160; Murphy v. Jack, 142 id. 215. In the last case the court refused to accept a statement in an affidavit based upon the affiant's information and belief, where it appeared that the information was obtained by telephone, and affiant did not swear that he recog. nized the voice of the person who made the statement to him.
In Hawkins v. Pakas, 39 App. Div. 506, 57 N. Y. Supp. 317, it was held that an affidavit taken without the State, and not certified so as to permit it to be received in evidence, may be considered by the court when referred to in a proper affidavit as the source of the latter affiant's information.
41 Steuben County Bank v. Alberger, 78 N. Y. 252; Pach v. Geoffroy, 65 Hun 619, 19 N. Y. Supp. 583, aff'd 143 N. Y. 661.
42 Kuh v. Barnett, 57 Super Ct. 234, 6 N. Y. Supp. 881. Affidavits prepara. tory to suit brought are not within the rule. Vary v. Godfrey, 6 Cow. (N. Y.) 587. A counsel in the cause may take the affidavit. People 0. Spalding, 2 Paige (N. Y.), 326; Willard 0. Judd, 15 Johns. (N. Y.) 531.
43 Ross v. Wigg, 34 Hun (N. Y.), 192.
FOBMS. 14 Commencement and end of affi
in another State, taking the affidavit.
davit by virtue of the laws of 15 Jurat, where the deponent is a the State of his residence (under lunatic.
N. Y. Statutes). 16 Jurat, where the deponent is 21 Jurat of affidavit taken before a blind or illiterate.
judge in Canada. 17 Jurat, where deponent does not 22 Authentication of above, by clerk. understand English,
23 Jurat of affidavit taken without, 18 Jurat of affidavit taken without for use within the States of the State, before a New York
Connecticut, Maine, Massachucommissioner.
setts, New Hampshire, or Ver19 Jurat of affidavit taken before a
mont. mayor, needing no further au- 24 Jurat of affidavit taken without, thentication (N. Y. Statutes).
for use within New Jersey, 20 Certificate of authority of officer
FORM No. 14. Commencement and end of affidavit. [See People ex rel. v. Sutherland, 81 N. Y. 1.] [Title, etc., as in Form 42, p. 40.]*5 County of City of
John Doe,48 (and, if there are two affiants, Richard Roe, sever
45 If the affidavit is not for use in shown by proof outside the affidavit. a pending action or proceeding, no · Babcock v. Kuntzsch, 85 Hun, 33, 32 caption is proper. If for use in a N. Y. Supp. 587; Fisher v. Bloompending action or proceeding it berg, 74 App. Div. 368, 77 N. Y. should always be entitled; if the Supp. 541. The omission of the letaction or proceeding is to be begun ters“ ss” does not impair. Id. An by an application upon which the erroneous venue may be corrected by affidavit is to be used, it may begin extrinsic proof. Rogers v. Pell, 47 with the title. City Bank v. Lum- App. Div. 240, 62 N. Y. Supp. 92; ley, 28 How. Pr. (N. Y.) 397. An aff'd 168 N. Y. 587, sub nom. Hodgomission of, or defect in, the title skin v. Pell. will not impair the affidavit, if it in: 47 Where the authority of the offitelligibly refers to the action or cer taking the oath is limited to a special proceeding in which it is city, the venue should disclose the made. N. Y. Code Civ. Pro., & 728; city in order to show that the afli. Lamkin v. Oppenheim, 86 Hun, 27, davit was properly taken. See Bab33 N. Y. Supp. 367. Names of all cock v. Kuntzsch, supra; People es parties plaintiff and defendant need rel. v. Canvassers of Dutchess County, not be given. White v. Hess, 8 Paige 20 N. Y. Supp. 329. But where the (N. Y.), 544.
officer's authority is coextensive with 46 The affidavit is a nullity with the State, the county need not be out a venue. Thompson v. Berhans, designated. Sullivan v. Hall, 86 61 N. Y. 52; Saril v. Payne, 4 N. Y. Mich. 7. Supp. 897; Frees v. Blyth, 99 App. 48 The full name of the affiant Div. 541, 91 N. Y. Supp. 103. The should be given, though a failure to court has power to amend or supply do so may not nullify. See People eso a venue, in accordance with the facts rel. v. Sutherland, 81 N. Y. 1.
ally],49 being duly sworn, says (each for himself],50 that he is the plaintiff [or, an agent of the plaintiff, or other description of the affiant], and resides in the city of
[Here state facts.]52
RICHARD Roe, his X mark. [Subscribed and] 54 Sworn to [or, affirmed] before me, [an officer who certifies as to only one or more of several, will insert by
[or, Notary Public, or,
Justice of the Peace] for the City (or County] of
FORM No. 15.
Jurat where the deponent is a lunatic.58 Subscribed and] 59 Sworn to before me, this
day of I having first examined the deponent,
49 An affidavit made by several should show that they were severally sworn. Pardoe v. Territt, 5 M. & G., 291, 44 Eng. Com. L. R., 159.
50 That this is the proper form where several derose, see Kincaid v. Kipp, 1 Duer, 692, 11 N. Y. Leg. Obs., 313.
51 If appellant's residence is material it is not established by a recital, i. e., " A. B., of being duly sworn, savs," etc. Payne 1. Young, 8 N. Y. 158.
52 See notes at commencement of this article.
53 The affidavit should always be signed by the affiant, though an omission so to do may not nullify. See People v. Campbell, 88 Hun (N. Y.),
by Jackson v. Gumaer, 2 Cow. 552, where it was held sufficient even under a statute requiring the officer “to subscribe his name to a certificate underneath the same purporting that the person making the affidavit had appeared before him and made oath to the same;" and although the officer, instead of adding his full official title, had added only “ Comsr., &c." The officer taking the oath should always add his official title. Jackson v. Stiles, 3 Caines (N. Y.), 128.
57 It is the better practice to add the city or county of the official's jurisdiction. If omitted, however, a presumption will arise that he was authorized to act where the venue is laid. People ex rel. v. Cady, 105 N. Y. 299; Crozier p. Cornell SS. Co., 27 Hun (N. Y.), 215.
58 Matter of Christie, 5 Paige (N. Y.), 241; Matter of Cross, 2 Ch. Sent. 3.
59 In affidavits for the New York courts the words " subscribed and" are not commonly used.
54 In affidavits for the New York courts, the words “ Subscribed and” are not commonly used.
55 An omission to insert the date in the jurat was held a merely formal defect in Griffin 1. Barton, 20 App. Div. 512, 47 N. Y. Sunr. 121.
56 This form of jurat is supported
a lunatic, for the purpose of ascertaining the state of his mind, and he appearing to me to be now of sound mind, capable of understanding, and actually understanding, the nature and contents hereof.60
Com'r of Deeds,
FORM No. 16. Jurat, where the deponent is blind61 or illiterate.62 [Subscribed and] Sworn to before 'me,
this day of , 19 , the same having been in my presence [or, by me] read to the deponent, he being blind [or, illiterate), and he appearing to me to understand the same.
[Signature as above.]
FORM No. 17. Jurat, where deponent does not understand English.63 [Subscribed and] Sworn to before me, this
day of , 19 , I having first sworn M. N., an interpreter, to interpret truly the above affidavit to the deponent, who is a foreigner, not understanding the language, and said M. N. having so interpreted the same to deponent.84
[Signature as above.]
60 The certificate should show that the officer inquired into and was satisfied concerning his ability to understand his act. Spittle v. Walton, L. R. 11 Eq. 420, 40 L. J. Ch. 368.
61 Matter of Christie, 5 Paige (N. Y.), 241.
62 1 Tidd's Pr. 495; Blenkarn v. Longstaff, 54 L. J., Ch. Div., 516; 52 L. T. R., N. S., 681.
63 1 Tidd's Pr., 495. Appropriate
where the affidavit is taken before a judge or judicial officer.
Whether an officer who does not act judicially, but merely by virtue of a statutory power to administer oaths, etc., can act through an interpreter, is not, perhaps, settled. See, contra, Harrison 0. Oakman (Mich., 1885), 23 Northwest. Rep. 164.
64 A substantially similar certificate was held sufficient in Bose v. Solliers, 4 B. & C. 358, 10 Eng. C. L. 614.
FORM No. 18.
The above affidavit was [subscribed and] sworn to before me, the undersigned, a commissioner for the State of New York, re siding at , in the State of , at said city, this of
, 19 . In witness whereof I have hereunto set my hand and official s Official seal, the day and year aforesaid. seal. Ś
[Signature and title of Commissioner.] [Secure authentication by certificate of Secretary of State of New York similar to that for an acknowledgment.]
FORM No. 19. Jurat of affidavit for use in New York taken without the State, before a
Mayor, needing no further authentication. (N. Y. Statutes.) 66 The above affidavit was (subscribed and]67 sworn to before me, the undersigned, the Mayor of the city of , in the county of aty of , and State of
, at said city,68 this day of
, 19 . In witness whereof I have hereunto set my hand and affixed s Seal of the seal of said city the day and year afore? city. s said.
[Signature and full title of Mayor.]
FORM No. 20. Certificate of authority of officer of another State, taking the affidavit by
virtue of the laws of the State of his residence. (Under N. Y. Statutes.) 69
[Venue, as in affidavit.]
I, A. B., the Clerk [or, Prothonotary, or other official title] of the County of , in the State of
[or, if the
65 The venue should state the city, or the town and county, as well as the State, where the affidavit is taken. Real Property Law (L. 1896, c. 547), $ 256.
It is not necessary that a jurat should state that the officer taking the affidavit knew or had satisfactory evidence that the person taking the oath was the individual described in and who executed the instrument, as is required in the certificate of acknowledgment. Ross v. Wigg, 34 Hun (N. Y.), 192.
66 Real Property Law (L. 1896, c. 547), § 249.
67 In affidavits for the New York courts the words "subscribed and' are not commonly used.
68 The place might be inferred fron the venue, but in deference to the ole rule that the court could not take ju dicial notice of a venue out of th jurisdiction, it is well, and in som cases essential, to insert it in the bod of a certificate made abroad.
09 Code Civ. Pro., $ 844; Real Pror erty Law (L. 1896, c. 547), 88 260, 26