« PreviousContinue »
should control the question are the same as those applying to an affidavit; 81 but it is appropriate to the form of the proceeding to require strict practice.
The signature should be in the true name of the petitioner, even if he is mentioned in the proceedings in the cause by a name variant therefrom; in such case the matter should be explained by an allegation in the petition.83
Signature by attorney or agent is sufficient in the same cases only as on an original petition.84
7. Notice of motion.]— On a petition in a cause, a notice of motion should be used instead of an order to show cause, unless either,
(1) A shorter time than the regular notice is desired, and the reason stated in the petition or accompanying affidavit; or,
(2) The statute or rule of court applicable prescribes an order io show cause; or,
(3) The person proceeded against is not a party to the action, lor in any way privy to it, in which case full notice by order to show cause is proper and preferable to avoid question.
III. ORIGINAL PETITIONS. 8. Description of petitioner. ]- If the identity, residence, or description of the petitioner is a material fact, it should be added, not as matter of description following his name, but as a distinct allegation.85
81 In Hathaway v. Scott, 11 Paige, 173 (1844), a petition (entitled in the cause) was presented by one of the defendants for an order requiring the assignee of the judgment, upon which the complainant's bill was founded, to file a supplemental bill in the nature of a bill of revivor. It was objected that the petition was not signed by the party or counsel. The chancellor said that there was no rule in this court, or in the English practice, requiring the signature of counsel to a petition, except in the cases of petitions for rehearing or appeal; but the objection that it was not signed by the petitioner was well taken. The reason being that a prosecution for perjury may be facilitated. Petition denied. Followed in People ex rel. Klinker v. Police Com’rs, 31 N. Y. Supp. 469 (but referring to affidavits).
82 Hathaway v. Scott, 11 Paige, 173.
83 Such a variance was disregarded after judgment in Varian 1. Stevens, 2 Duer, 635.
The principles applying to this question are somewhat the same as those applying to SUMMONS, except that the question is not usually with reference to a petition jurisdictional.
84 Fromme v. Lisner, 63 Hun, 290, 17 N. Y. Supp. 850; Ex parte Wallace, L. R., 14 Q. B. Div. 22, 51 L. T. R. (N. S.) 551. See paragraph 11 post,
85 See note 51, page 14, of this volume. If a stranger to the proceeding, his residence should be stated. Glazbrook e. Gillatt, 9 Beav. 492.
9. Allegations. ]— The allegations of the petition should, like those of a complaint, present all the substantial elements of fact constituting the cause of petition or ground relied on as the right of relief.56
It is convenient, however, to state matters of complex detail in schedules annexed to and referred to in the petition as a part of it; and this is proper even under a statute requiring such matters to be stated in the petition.87
Matters of mere evidence may be stated in supporting affidavits.
In cases of original petitions invoking the equitable powers of a court of general jurisdiction, the rule that the petition must itself contain the whole cause of petition, is one of practice rather than power, and it is enough, in this respect, to give jurisdiction, is the petition and accompanying papers make a case; and the powers of amendment may be resorted to to cure a defect. 89
86 In passing upon the sufficiency of a petition for an order that an assignee in trust for the benefit of creditors, submit to an examination as to the trust, under the provisions of the General Assignment Act of 1877, and holding that the petition must show that the witness or document has information pertinent to the inquiry, Darforth, J. (delivering the opinion of the court in Matter of Holbrook, 99 N. Y. 539), says: “ The statute does not in terms say this, but it requires an order to be made on petition, and by necessary implication, that the judge who makes it shall have facts or information before him.”
S. P., People ex rel. Green v. Smith, 55 N. Y. 135, also, however, a case of petition in a special statutory proceeding in derogation of common right.
87 Thus, in Matter of Com’rs of Washington Park, 52 N. Y. 131, proceedings were instituted to acquire title to lands under a statute which required that, in the petition, the real estate sought to be taken must be iuiiy described, and the names and places of residence of the parties owning or claiming an interest in the real estate shall be stated. In the body of the petition, the real estate was referred to as "hereinafter fully described and set forth,” and the petition stated, that “hereafter is stated the names and places of residence of the parties who own,” etc.; annexed and firmly attached were schedules, giving full descriptions of the several parcels of real estate sought to be taken, with the names and places of residence of the owners and claimants, and also a notice, addressed to each and all the owners and claimants by name, stating the time and place when the petition would be presented, etc., all folded and endorsed “ Petition, description, notice,” etc. Held, that the schedules formed part of the petition, and that there was a sufficient com pliance with the provisions of the statute.
In People v. Queens Co. Supervisors, 153 N. Y. 370, the court permitted numerous petitioners to present, as one petition, several separate originals, alike except as to signatures.
88 See Henry v. Henry, 3 Dem. 322, where such matters were stricken out of a petition to revoke probate, because Rule 4 of Surrogate's Court required that the contestant shall file a verified answer containing a concise statement of the grounds of objection; and a petition to revoke is regarded in this respect on the same footing as an answer to a petition for probate.
89 Compare Matter of Leake & Watts Orph. Home, 92 N. Y. 116, where it was held that the lack of an allegation was not available when first objectd to in the appellate court. S. P., Matter of Livingston, 121 N. Y. 94, 104.
10. – positive, or on information, etc.]— In order to make the petition itself direct evidence of the matters alleged in positive form, that is to say, not expressed to be alleged on information and belief,89a the better practice is to distinguish the allegations on knowledge from those made on information and belief, in the sume way as in a pleading or affidavit; and then inserting in the verification the words "stated to be," will make the petition positive evidence of all the matters not alleged in qualified form.
11. Signature.]— Signature should be by the petitioner; but signature by attorney may be accepted as sufficient if the verification by him shows his authority as such, and sufficient excuse appears for the absence of the client's oath."
12. Verification.]— A verification is required to an original petition.o1 The form is more fully considered in connection with the verification of other papers.
If the petition is full and complete, and the verification so expressed as to show what allegations in the petition are sworn to on information and belief, and what positively, the petition is ordinarily a sufficient evidentiary basis as to a fact stated positively for an order or judgment, if not put in issue by a sworn answer or affidavit.92
13. — by several.]— Where several persons join in one petition the practice is for all the petitioners to join in verifying either in one or several verifications, as may be convenient.
But in the absence of any special provision of statute or rule of court requiring all to verify, a petition by two or more petitioners united in interest, if verified by one acquainted with the
89a Allegations on information and belief must disclose sources thereof, like affidavits. Peck v. Cargill, 167 N. Y. 391.
90 This was held even in case of a guardian petitioning as such, by attorney, in Reid v. Morton, 119 Ill. 118, 6 N. E. Rep. 414. The permission given by the Code (525) to the attorney to verify the pleading of his client when the latter is not within the county of the attorney's residence, presents no sufficient excuse in the case of a petition unless the attorney states where the client is and shows the impossibility of getting the client's verification. Fromme v. Lisner, 63 Hun, 290, 17 N. Y. Supp. 850. The court may refuse to act until the attorney produces procf of authority other than his own affidavit. Estate of Stephani, 75 Hun, 188, 26 N. Y. Supp. 1039.
91 Anon., Hopk. Ch. 101.
92 See, for instance, Matter of N. Y., Lake Erie & W. R. R. Co., 99 N. Y. 12, 16 (proceedings in eminent domain).
facts, on behalf of himself and of the others, and so expressed, will be accepted as sufficient. 93
14. Address.]—The petition is addressed to the court or judge, but to make it ready for service, it, or the notice of motion or order to show cause annexed to it, must be intelligently directed or addressed to each person upon whom it is to be served.
The English practice requires also that an ex parte petition, which is not to be served on any one, should have at the foot of it a statement that no person is intended to be served.
15. Filing.]— An original petition should be filed either when first presented, or on the return of the order to show cause, or on the presentation pursuant to notice.
Where an original petition has been lost from the files of the court without the petitioner's fault, and no copy can be had, the filing of a new petition should be allowed.94
16. Order to show cause.]— In proceedings by original petition, the order to show cause is in the nature of process ; 95 and although 1.0t necessary to be tested and sealed, must have the substantial requisites necessary to the communicating of clear notice of what is asked for.
Where personal service is made the petition is to be served with the order to show cause, and the practice is to express the order as requiring the person served to show cause “why the prayer of the petition should not be granted,” and for this purpose the prayer contained in the petition should be full and explicit.
If the petition is not personally served, as in the case of some proceedings against absentees, and in some statutory proceedings, the order to show cause, whether served personally or by publication, should state the prayer at length.96
93 In People ex rel. Adams v. Coleman, 41 Hun, 307, the court received and acted upon a petition signed and verified by one of the petitioners, and signed by attorneys styling themselves attorneys for the petitioners, where from their number it was impracticable for all to sign and verify. 94 Phillips 1. Moore, 100 U. S. 208.
95 See p. 126 of this volume; Matter of Lima, etc., R. R. Co., 68 Hun, 253, 22 N. Y. Supp. 967.
96 Matter of Pyrolusite Manganese Co., 29 Hun, 429, 3 Civ. Pro. Rep. (Browne) 270, holding that under the provisions for voluntary dissolution of corporations which requires the citation or order to show cause to express the object (Code Civ. Pro., $ 2423), one which merely referred to the petition (the petition not being served nor published), was not sufficient to give jurisdiction.
17. Amending petition.] - Original petitions, except in those cases where they are special and statutory and in derogation of common right, are within the general power of amendment possessed by the courts of record; and when a petition is filed instead of a bill, it is even amendable in form into a bill, if a bill or complaint be necessary,97 provided the parties are before the court and have interposed no objection to jurisdiction. But unless serious delay would be saved by amending, the better practice is to allow the petition to be withdrawn, or deny it without prejudice, and leave the party to proceed regularly by action. Even in respect to special statutory proceedings, the same large power of amendment has been extended by statute to the principal courts in New Yorkos which the statute gives to them and courts of record generally in respect to other special proceedings and actions. 99
18. Second use.]—A petition once used may, after the proceedings thereon have been set aside for want of jurisdiction, be used again in making a second application;" but it is the better practice to have it re-verified if practicable.
19. Joining and screring.]— Several persons united in interest may join in one petition upon the same principles that persons so united may join in one action.
So the court may allow joint petitioners to sever, on such terms as it may deem just; and a separate petition, filed pursuant to such leave and for the same cause, may be deemed, in furtherance of justice, a continuation of the original proceeding, so as to save rights acquired rather than a fresh and independent proceedings
97 Petition of Baptist Church, 51 N. H. 424. 98 The Supreme Court, County Courts, and N. Y. City Court. N. Y, Code Civ. Pro., 8 3347, subd. 6.
99 N. Y. Code Civ. Pro., 8 721, 723. See Rogers v. McLean, 11 Abb. Pr. 444; Van Wyck r. Hardy, id. 473.
1 Matter of Daris, 10 Daly, 31.
2 Even when the proceeding was special and statutory, the general power of the court to mould its own proceedings was deemed applicable, and the joinder was allowed to be cured by allowing a severance. Matter of Mehrbach, 97 N. Y. 601, rev'g 33 Hun, 136.
3 Ich So held in special statutory proceedings to vacate an assessment. In reversing the decision the Court of Appeals say:
“ Because the statute which authorized these applications did not itself provide for amendments, it does not at all follow that the court to which the petition was presented had not control of its own practice, and had no power to treat the general