Page images

II. [Here state concisely the purpose for which the original undertaking was given, its date, and day of filing, and the present condition of the cause.]

III. Since the execution of said undertaking, both of the sure ties " therein have become insolvent, and that the circumstances of each of them have become so precarious that there is reasou to, and deponent does, apprehend that said undertaking is not sufficient for the security of the respondents, as appears from the annexed affidavits of said sureties (see next Form; or, from the following facts -- Here state bankruptcy proceedings, recovery of judgment, or any facts known to deponent showing insolvency.]

IV. [If order to show cause is desired, state circumstances requiring short notice, and condition of cause.] [Jurat.]

[Signature.] FORM No. 261. Affidavit of surety upon foregoing application.12 [Title of appellate court and cause.) [Venue.]

A. B., being duly sworn, says that he is one of the sureties on the undertaking given [on appeal to the Court of Appeals] herein dated

19 and sworn to and acknowledged on the

19. That at the time deponent signed and justified as such security [here state facts explaining insolvency, for instance, thus] he was not worth anything outside his business, tools, and building, which deponent then estimated to be about the sum of dollars over and above his then indebtedness. That since the execution by him of said undertaking, he has met with several losses in said business, amounting in the aggregate to nearly dollars, and also has made a bad investment in a patent right amounting to

dollars, and that if deponent should be called upon to pay the amount covered by said undertaking, or his proportionate part of the same, he would be unable to pay the same. That deponent's circumstances have, since the making of said undertaking, become so precarious that he knows that his undertaking is not sufficient for the security of the respondent herein. [Jurat.]


day of

11 The court may act upon the insolvency of one of two sureties (Beeman 1. Banta, 113 N. Y. 615); or may refuse to compel new urder

taking in its discretion. See Deving t'. Metcalfe, 72 N. Y. 613.

12 See p. 476, paragraph 59.

FORM No. 262.

Order that new undertaking be filed.18 [Title as in Form No. 94 or 96, pp. 255, 257, and see Form

101, where various recitals will be found.] ORDERED, that the appellant herein file a new undertaking on the appeal herein, and serve a copy of the same as required with respect to the original undertaking herein, within twenty days after the service of a copy of this order, and if the appellant fail so to do within the said twenty days, that the judgment [or, order,] in the said action be executed, [or, that the appeal be dismissed],14 as if no undertaking had been given therein.

[Authentication as in Form No. 108, p. 265.]

FORM No. 263. Affidavit on motion to punish for contempt in putting in false justification.18 [Title of court and cause.] [Venue.]

A. B., being duly sworn, says:
I. That he is [attorney for] plaintiff in the above action.

II. [Here concisely state the proceedings in which the undertaking was given and the giving of it and the making of the affidarits of sufficiency as well as its filing, adding] and that a copy of said undertaking, acknowledgment, and affidavit is hereto annexed, marked Schedule A.

III. That the said undertaking, being duly filed, effected a stay of all plaintiff's proceedings toward the collection of said judgment during the pendency of the said appeal therefrom (or otherwise state its effect].

[State injury to the applicant, for instance, thus] IV. That on said appeal said judgment was duly affirmed and judgment of affirmance thereon duly entered in favor of this plaintiff, against said defendant on the dav of

19 and for the sum of

dollars, costs of said appeal.

13 See p. 476, paragraph 59.

14 Under N. Y. Code Civ. Pro., 1308.

15 Sustained by Nathans v. Hope, 18 Am. L. Rev. 687; s. C.. more fully, N. Y. Daily Reg. June 14th, 1884. (The reversal in 100 N. Y.

615, was on the ground that the surety, as matter of fact, only erred in judgment as

to his solvency.) Hull v. L'Eplatinier, 5 Daly, 534; aff'g 20 How. Pr. 500; 8. P., Cleary V. Christie, 41 Hun, 566. See also p. 472, paragraph 49.

1. That thereupon, and on or about the

day of 19 execution was duly issued on said judgment, and for the said costs of said appeal against said defendant for the sum of

dollars, which execution was thereafter duly returned wholly unsatisfied, and said judgment and costs remain unpaid.

VI. That thereafter an action was duly brought in the court by this plaintiff against said M. N., one of the sureties in said undertaking upon such undertaking and such proceedings were had therein that on the

day of

19 this plaintiff duly recovered a judgment against said M. V. for the sum of

dollars, which was on that day docketed, and an execution duly issued to the sheriff of the county of where said M. X. then resided, which execution was returned by said sheriff wholly unsatisfied, and said judgment remains unpaid.

[ocr errors]

VII. That at the time of executing said undertaking and making said affidavit of sufficiency, said M. X. was insolvent and pecuniarily worthless, and had no property over and above his debts and liabilities; that deponent finds by examination of the judgment records that at said time there were unpaid judgments of record and which are still unsatisfied of record against M. N., amounting to orer

dollars [adding any other details known to deponent showing that the surety must have been aware of his insolvent condition.]

VIII. That plaintiff's rights and remedies in said action were defeated, impaired, and prejudiced by the conduct of said M. N. in executing said undertaking and making affidavit of his sufficiency.

IX. [If application is er parte, add] That no previous application for the purposes of punishment for contempt has been made herein [except, etc.18]

[Signature.] [Jurat.]

[Add affidavits in corroboration, such, for instance, as par ticulars of unsatisfied judgments and proof of known insolvency; and if order to show cause is asked for, state circumstances requiring short notice, and condition of cause."?]

[For Forms of further proceedings, see CONTEMPT.] 16 See p. 116, paragraph 84; see 17 See pp. 170, 171, for examples. also p. 171, for examples.



1. What is. 2. Objects. 3. under the codes 4. Matters of fact 5. Necessity,- in general. 6. Substance of the allegation. 7. Tests for doubtful cases. 8. — verification of truth. 9. - verification merely. 10. to deponent's knowledge. 11. Title. 12. Venue. 13. Who to make. 14. Allegation of character of party. 15. Several parties. 16. Signature.

17. Who may administer oath.
18. Authentication.
19. — of exhibits.
20. Waiver.
21. Collateral attack.
22. Inconsistency.
23. Falsity.
24. Amending
25. Remedy for nonverification of

26. — of responsive pleading.

(264) Verification where no other

form is prescribed by stat.

1. What is.]— The term “verification,” as used under modern practice, means an affidavit to the truth, or belief in the truth, of what has been stated in a foregoing document."


2. Objects.]—Verifications have been required for one or more of the following objects:

(1.) To secure good faith on the part of the applicant. This was the main object of requiring bills in chancery to be verified before the issue of a subpæna, and in requiring dilatory pleas at common law to be verified. Hence it was commonly held that in such cases an affidavit to belief was sufficient;19 and where several persons joined in pleading, verification by either was enough.


18 Patterson v. Brooklyn, 6 App. Div. 127, 40 N. Y. Supp. 581; Van Alstyne 1. Erwine, 11 N. Y. 331, where a repetition in an indorsed affidavit of all the facts set forth in the petition, was held a sufficient verification thereof.

19 Mentor v. People, 30 Mich. 91 (holding that a statute requiring the prosecuting attorney to verify an information is for securing good faith, and is satisfied by oath that he “believes " the same to be true). S. P., Veeder v. Moritz, 9 Paige, 371.

20 Haggard v. Smith, 71 Ill. 226. (Affidavit of claim sworn to by only one of several plaintiffs, held sufficient; no law requiring all the parties to swear to a claim.). To same effect, Haggard v. Smith, 76 id. 507.

Tayon v. Hardman, 23 Mo. 539 (petition to perpetuate testimony, verified by only part of the petitioners, sustained on the same ground).

Huntington v. House, 22 Mo. 365 (joint petition by husband and wife, held sufficiently verified by husband only).

Hemphill v. Ruckersville Bank, 3 Kelly (Geo.), 435 (holding that a bill of

(2.) To narrow the issues which the court would be called on to try, by preventing a party who put in a sworn pleading from alleging any thing that he did not know or believe to be true. Akin to this was the probing of the conscience of a defendant in a bill for discovery. For this purpose it was generally held that each person must verify for himself; but might allege on information and belief any matters not necessarily within his knowledge.

(3.) To make proof, on the strength of which the court might render a decision, as, for instance, on an original petition, or in granting an injunction on a sworn bill, or dissolving it on an answer;21 or in taking jurisdiction of a special statutory proceeding. For this purpose a verification could serve no further than it was positive, or where its allegations on information and belief were supported by documents or rehearsal of other evidence, sufficient to make a prima facie case on the motion. Hence the usual verification of a bill in chancery is not sufficient proof to sanction granting an order or decree thereon.?


3. — under the Codes.]— The requirements of verification under the Codes are to be construed with reference to which of these purposes is to be served. By the New York statute a pleading (and in practice the usage is the same for a petition) should indicate on its face what allegations are made on information and belief of the person verifying; and the verification is to be exfressed positively, except as to the matters stated in the pleading to be alleged on information, etc. This enables the court, when the pleading is presented in support of a motion, to judge at once how far it can serve as proof, and how far merely as allegation

complaint for injunction, filed by several plaintiffs, was sufficiently verified by one in the absence of any rule requiring all).

Otherwise of a joint and several answer in chancery, where complainant has the right to the oath of each; though he may waive it. Fulton Bank r. Beach, 6 Wend. 36.

21 Shonk 1. Knight, 12 W. Va. 667 (holding bill so expressed and verified as to be obviously on information and belief, not enough under a statute requiring it to satisfy the court of plaintiff's equity).

State v. Mayor, 4 Nebr. 260 (holding that under statute requiring that an affidavit to procure mandamus to issue, must set forth the facts, a verification, like that allowable verifying a pleading, that the facts are true as the affiant verily believes, is insufficient). S. P., State v. County Com’rs, 21 Fla. I.

Bank v. Jones, 1 Swan (Tenn.), 391 (under statute forbidding any plea in abatement to be received unless the party “shall prove the truth” of it by affidavit or otherwise, an affidavit on information and belief is insufficient).

22 The Chancellor v. Traphagen, 41 N. J. Eq. 369, 2 Cent. Rep. 209, and cases cited.

« PreviousContinue »