Page images

FORM No. 44.
Certificate that paper has not been filed. (Under N. Y. Statute.)64
I, M. N., clerk of the county of

[or, other official title] do hereby certify that I have made diligent examination in my office65 for [state paper, as, the certificate of incorporation of the A. B. Company] and that it cannot be found.

IN WITNESS WHEREOF, I have hereunto set my

hand and official seal this day of 19 . [Official

[Signature.] Seal.]

[Title.] FORM No. 45. Certificate to correctness of copy. (Under N. Y. Statutes.) 66 [As in Form 43, continuing:] I have comparede7 the foregoing with the original [order filed in my office on the day of

19 ] and that the same is a correct transcript therefrom and of the whole of the original.

IN WITNESS WHEREOF, [etc., as in Form ].

without the jurisdiction, it is better to add a testificandum clause and official seal, if there be one, as in the form following.

64 Code Civ. Pro., $$ 921, 957–961.

65 A certificate is defective which fails to certify to such fact of search. Briggs v. Waldron, 83 N. Y. 582.

66 Code Civ. Pro., 88 957-961. See

next article on copies, p. 46, as to a less formal method of certification where the copy is intended to be used upon an interlocutory application and not as evidence upon the trial.

67 A certificate is defective which fails to state that a comparison was made. Nolan v. Nolan, 36 App. Div. 339, 54 N. Y. Supp. 975.


COPIES. 1. Use of copies instead of originals. 4. Letter-press copies. 2. Form, and correspondence with 5. Sworn copies. original.

6. Certified copies. 3. Effect of omission or error in 7. Exemplified copies.

copy. 1. Use of copies instead of originals.]— In the case of papers addressed to the court, or to a judge, either expressly, such as petitions, and bills in equity, or impliedly, such as pleadings under the Code, affidavits, etc., the originals are kept by the attorney, or filed with the clerk (as elsewhere explained); and service of any of them, when required, is made by delivery of a copy to the person served.

In the case of papers proceeding from the attorney and addressed to others than the court — such as notices, demands, etc.

- service is made by delivery of the original to the person addressed, and a copy is preserved, and is filed when filing is required; except however that if such a paper is properly a part of the record — as, for instance, the summons — it is served by delivering a copy to the person to whom it is addressed, so that the original may be filed.

In the case of process addressed by attorneys to ministerial officers, such as an execution, warrant of attachment, etc., the original is delivered to the officer, and a copy kept by the attorney, the original being required to be returned by the officer, with his proceedings thereon, to the court or clerk.

In the case of papers which require the allowance or authentication of the court, such as orders of court, the originals are filed and entered, 68 and if service is required a copy is delivered to the person served. Those allowed or authenticated by a judge out of court, are filed,69 or held in the possession of the attorney obtaining them (or by the ministerial officer to whom they are addressed, until he files it with his return), and if service is

68 Together with all the papers used or read on the motion. N. Y. Gen. Rule 3.

89 As a rule a judge's ex parte order need not be entered, although the papers should be filed. Albrecht v. Canfield, 92 Hun, 240, 36 N. Y. Supp. 940.

70 If a provisional remedy, or a state writ, the attorney procuring it must file the papers upon which it was granted, within ten days after service; or the order, warrant, or writ, may be vacated. General Rule 4.

required, a copy is delivered; but in order to put the person served in contempt for not obeying, the original with the signature of the judge must be shown at the time of delivering the copy.

2. Form, and correspondence with original.]-All papers and copies of papers must be fairly and legibly written or printed, in black characters, and should be as free as possible from erasures and interlineations.72

A copy of a folioed paper, provided for an adverse party or the court, must be folioed to correspond with the original. 43

A copy of a paper should include not only the body of it, but

verification, or acknowledgment, if any, and required indorsements; in short, whatever was in any sense a part of the document at the time to which the use of the copy as a representation, or substitute for it, relates. These should be transcribed in full. It is not enough to substitute a memorandum that a formal part omitted from the copy was upon the original.

Original signatures, when copied, should be preceded in the copy with the word (signed) in parentheses; a seal is represented by (L. s.), or the word seal, in parentheses; a superscription is copied with the word (addressed) in parentheses prefixed; and a postmark may properly be copied by transcribing its legend in ordinary straight and continuous lines, prefixing in parentheses the word (postmarked).

When a copy is required of a paper having an indorsement which is material to its effect, as, for instance, a file mark or notice, the better practice in copying the indorsement is to put

instrument within, prefising the word (indorsed), thus leaving the back of the copy free for a fresh indorsement showing that it

3. Effect of omission or error in copy.]— Whether omitting, from a copy served, a signature, jurat, or other formality contained in the original, and essential to its validity, is fatal to the effect of the copy, depends on the nature of the paper. If the copy is in the nature of a notice of a hearing, on which hearing there will be opportunity to inspect the original before the party serving the copy can take any step dependent upon the service, a defective copy cannot be disregarded merely because of such a defect of form; and, if the original is perfect, the court may disregard the defect in the copy served, and, where the party has not been misled, should usually do so. This is the rule applicable to affidavits and petitions on which to move the court, whether served in advance of a motion, with notice of motion, or with a copy of an ex parte order obtained thereon.74

71 See, for example, N. Y. Code Civ. Pro., $ 610, relating to service of injunction order.

T2 The motion will be denied where the papers submitted to the court are so badly written, or so interlined or erased as to be illegible. Henry 1. Bow, 20 How. Pr. X. Y.) 215; Johnson ('. Casey, 28 How. Pr. 492, 3 Robt. 710.

73 X, Y. Gen. Rules 19.

On the other hand, if the paper is in itself a distinct proceeding, like a pleading, the party should be held to abide by the copy he serves, 15 subject to the power of the court to relieve him from the slip,76 where it has power to enlarge the time.77

This rule, however, should be taken with the qualification that if the party served desires to treat the copy as a nullity he must return it promptly with notice of this specific objection, or he will be deemed to have waived the irregularity.78

4. Letter-press copies. ]— Letter-press copies are so apt to be defective that their use for service or filing is to be condemned. 79 And where they are tolerated, they are not duplicates in such sense that each can be treated as an original, but they are only secondary evidence.

74 Barker v. Cook, 40 Barb. (V. Y.) 254 (motion to vacate arrest denied, where the copy served of the affidavit on which it was ordered did not contain any signatures. Chatham Nat. Bank v. Merchants' Nat. Bank, 1 Hun (V. Y.), 702; Union Furnace Co. v. Shepherd, 2 Hill (N. Y.) 413; Thiele r. Chicago Brick Co., 60 Ill. App. 559; Blake v. Eldred, 18 How. Pr. 240.

75 Knowles v. Fritz, 58 Wis. 216 (omission to copy at length authentication of official power of officer before whom complaint was verified, and substitution instead thereof of the words “ certificate of clerk of court under seal attached," held, to prevent plaintiff from requiring a verified answer). Graham r. McCoun, 5 How. Pr. (N. Y.) 353 (omission of name of officer before whom answer was verified, held, to entitled a plaintiff who had served a verified complaint to return the answer and enter judgment).

76 Littlejohn v. Munn, 3 Paige (N. Y.), 280 (motion to strike answer from files because copy served had no copy signature, denied on defendant paying costs and serving a perfect copy).

77 See paragraphs 3 and 4 of page 49 of this volume.

78 Hayward v. Grant, 13 Minn. 166; N. Y. Code Civ. Pro., § 528; Paddock r. Palmer, 32 Misc. 426, 66 N. Y. Supp. 743 (defective verification waived unless pleading returned or notice given within twenty-four hours).

79 By N. Y. Code Civ. Pro., $ 796, the requirement of “ durable paper of good material” prevents their use. Papers typewritten must be imprinted upon 16-lb. paper, in black ink.

5. Sworn copies.] — What is here said of sworn copies relates only to their use in interlocutory and summary applications to the court. The mode of proof by sworn copy on the trial of a cause is substantially different.

In proceedings before or after trial a special affidavit to the truth of a copy is not required, except in producing copies instead of the books of a foreign corporation under the statute, so and in proceedings for discovery of books and papers, in which case the party ordered to make discovery is sometimes directed to do so by producing sworn copies. 81

In other proceedings it is enough to annex a simple copy to the affidavit or petition in which it is mentioned, and referred to by the words “ of which a copy is hereto annexed (and made part thereof).” This is sufficient prima facie proof of the accuracy of the copy for the purposes of a motion. If there are reasons for demanding further proof of its accuracy, or the production of the original, the court should be asked to require it.

6. Certified copies.]— What is said here of certified copies is said only in reference to their use in interlocutory and summary applications to the court. The requisites of a certified copy, to be admissible on the trial of a cause, are somewhat different.

Two kinds of certified copies are in use. In one the clerk merely adds at the foot of the copy the words “a copy," with his signature and his official seal. In the other, the clerk appends a formal certificate that it has been compared by him with the original, and that it is a correct transcript therefrom and of the whole of the original,83 adding usually also the official seal,84 as is usually required for certified copies to be available as primary evidence on the trial of issues of fact. If such copy is offered in another jurisdiction than that where the original file or record is, proper authentication of the clerk's signature is usually necessary, according to the forms given in the articles on Acknowledgments and Affidavits, and the chapter on the Means of Evidence.

80 N. Y. Code Civ. Pro., § 931.
81 Under Id., 88 803, etc.
82 Thompson v. Hewitt, 6 Hill (N. Y.), 254.
83 N. Y. Code Civ. Pro., § 957. See Form 45, ante.

84 ]d., &$ 958, 959. See for the rules as to full certified copies, Abb. T Ev. (2d ed.) 336, etc.

« PreviousContinue »