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lished in said paper once in each week for six successive weeks [or other time, according to the statute or order], the first publication being on day, the day of , 19, and the last upon

day, the day of 1991 [Jurat.]

[Signature.] FORM No. 425.

Affidavit of mailing.82 [Title of court and action.] [Venue.]

M. N., being duly sworn, says:

I. That he is the managing clerk in the office of Q. R.] plaintiff's attorney herein, whose office is in the city of

II. That, on the day of , 1993 [which must be on or before the first day of publication94], deponent deposited in the post-office at [naming office designated in the order85] a copy of the summons, complaint, and order for publication, copies of which are hereto annexed, contained in a securely-closed and duly post-paid wrapper, * directed to the defendant Y. Z. at [here

91 See pp. 362, 363, of this volume, and Jenks v. Chicago, 48 III. 296 (holding that the days mentioned may be presumed to be secular days), and Taylor v. Troconso, 76 N. Y. 599 (holding delivery to one of the papers on the last day allowed for commencing publication, if not followed by its publication therein till the next day, insufficient).

An affidavit that showed publica tion commenced before the order was made, held fatally defective, for it did not show publication to have been in pursuance of the judge's order. Hallett v. Righters, 13 How. Pr. 43.

Under N. Y. Code Civ. Pro., 444, last clause, “ proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person who deposited or delivered it."

93 State precise day." On or about" is not enough. Smith 4. Rowe, 4 Monthly L. Bul. 60.

Mailing before filing the order, held an irregularity, amendable at any time, by filing nunc pro tune. Barnard v. Heydrick, 49 Barb. 62, ? Abb. Pr. (N. S.) 47; and as Brainerd v. Heydrick, 32 How. Pr. 97.

A publication made on Sunday, held, though void by statute, to yet not invalidate the service which, if regarded as beginning with the next publication, was subsequently made in a regular manner. Cleland v. Tavernier, 11 Minn. 194.

92 Omission to show mailing held a fatal defect. Thornmeyer v. Sisson, 83 Ill. 188; O'Rear v. Lazarus (Colo.), 9 Pac, Rep. 621; Butler v. Butler, 11 sla. 668; Collum v. Bank at Mobile, 23 Ala. 797.

94 Ñ. Y. Code Civ, Pro., $ 440.

95 Omission to designate the post office explicitly was held not fatal in Steinle v. Bell, 12 Abb. Pr. (N. S. 171.

It is not essential to state that the deposit was made in a United States post-office, or that there was communication by mail between the plase of deposit and the place to which the package was addressed. Sharp Daughney, 33 Cal. 505.

name the place and address specified in the order06_ or, if several defendants were served, say], sets of copies of the summons, complaint, and order for publication, copies of which are hereto annexed, each contained in a securely-closed and duly postpaid wrapper, respectively directed to the several defendants hereinafter named, at the places and addresses below stated [here name each defendant so served, with the address used in the order and in mailing]. [Jurat.]

[Signature.] FORM No. 428.

Affidavit of service without the State.87 [Title of court and cause.] [Venue.]

A. B., being duly sworn, says that he is over the age of twentyone years and resides at

, that on the day of , 19 , at [specify particular locality as in case of personal service within the State], in the city of

, in the county of , and State of

, he served the summons in this action upon Y. Z., one of the defendants named therein, by delivering to and leaving with said Y. Z. a copy of said summons together with a copy of the complaint in this action and a copy of the order98 for the service of said summons granted by Mr. Justice J. K., dated , 19 ; that the copy of said summons so delivered to and left with Y. Z. had a notice thereunto appended of which a copy is hereunto annexed marked "A."

Deponent further says that he knew the person so served to be Y. Z. mentioned and described in said summons as a defendant in this action. [Jurat.]


B., being dul de

a se corticular locality as i

96 Mailing addressed to a different place from that directed in the order, held fatal to the judgment. Smith v. Wells, 69 N. Y. 600.

The official certificate of the sheriff of another State is not sufficient proof of such service; his affidavit should be presented. Morrell v. Kimball, 4 Abb. Pr. 352.

97 See notes to Form 369, affidavit of personal service within the State.

98 Service is ineffective unless a copy of the order is also denivered. Ludden v. Degener, 14 App. Liv. 397, 43 N. Y. Supp. 908.

99 The official certificate of the sheriff of another State does not establish such service; his affidavit, properly certified, must be presented. Morrell v. Kimball, 4 Abb. Pr. 352.


DEFENDANTS. [The power of the court and the practice are stated in connection with the general subject of Examination Before Trial, and before suit brought.]

FORMS. 427. Affidavit to obtain examination

fendants, in action to prevent of defendant, before service of

perversion of trust funds, and complaint, to enable plaintiff

to set aside corporate election. to bring in others as codefend 429. Another Form - to enable plainants,

tiff to bring in new codefend428. Another Form -- to enable plain

ants in action to set aside extiff to frame complaint and

pulsion irom stock exchange. name correctly unknown de

FORM No. 427. Affidavit to obtain examination of defendant, before service of complaint, to

enable plaintiff to bring in others as co-defendants.2
[Title of court and action.]

A. B., being duly sworn, says:
I. That he is the [plaintiff above-named.*]

II. That this action was commenced [here state condition of the cause, for instance, thus] by the service of summons on the defendant Y. Z., on the day of

, 19, but no

1 The examination cannot be had until the action has been commenced, prior to action brought, the testimony of an expected party may only be had to perpetuate testimony. See Matter of Tweedie Trading Co., 105 App. Dir. 426, 94. X. Y. Supp. 107, 35 Civ. Pro. Rep. 6; Matter of Schlotterer, 105 App Div. 115, 93 N. Y. Supp. 895; Matter of Schoeller, 74 App. Div. 347, 77 N. Y. Supp. 614; Matter of Anthony, 42 App. Div. 66, 58 N. Y. Supp. 907. And see p. 534, supra, on same subject. Matter of Weil, 25 App. Div. 173, 49 N. Y. Supp. 133, seems to have been overruled by the later decisions. In Matter of Schoeller, Hatch and O'Brien, JJ., dissenting, considered that both an expected party, and a person having the desired information, should be compelled to submit to an examination for the purpose of disclosing the name of the person against whom plaintiff's cause of action exists.

It was stated in Matter of Anthony, supra, that “the proposed defendant must be definitely and not tentatively named in the affidavit, and that it must also be made to appear that the applicant has a cause of action against such specific person.” While this case has been severely criticized (Matter of Schoeller, supra), its authority has not been overturned; it would seem,

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complaint has been served, nor has service of a copy been demanded.

III. That the names and residences of all the [present] parties to this action Lif any are unknown, add], so far as their names or residences can be ascertained, and the facts as to whether they have appeared by attorney or otherwise, or not, are as follows: PLAINTIFFS (appearing by Q. R., of

their attorney, whose address is

): A. B., of No. street, in the city of , county of , and State of

; C. D., of the town of county of State of '

DEFENDANTS: W. X., of [etc., as above), has appeared by S. T., of , his attorney, whose office address is W. Y., of No. (etc., as above), has appeared in person ; Y. Z., of No. [etc., as above], has not appeared.

[Or, if very numerous, may more conveniently annex and refer to a tabular schedule.]

, and

IV. That this action is brought [here state the nature of the action and the substance of the judgment demanded therein).

V. [If a resident of the State is to be required to attend in another county than that of his residence] That the said [name of defendant], whose examination is desired in

county, has an office for the regular transaction of business in person at No. , street, in the town of

, and said county.5

[If a non-resident, and leave is desired to serve him in any other county than that where the order is to require him to attend for examination, state the reason.]

[Or where defendant is a corporation] That the defendant whose examination is required is a corporation, having its office at

. That the names of the officers [or, directors] thereof, whose testimony is material and necessary for plaintif in the prosecution of his case, are [naming them and their residences.']

therefore, that in applications after action commenced to join other defendants, they must be definitely identified by description (though tentatively named by a fictitious name in the summons), and that it must appear that a cause of action exists against the individual who fits the description. See Ziegler v. Lamb, 5 App. Div. 47, 40 N. Y. Supp. 65.

4 If the address of any party is not known, show ineffectual inquiry made to ascertain it. See Simmons 0.

Hazard, 65 Hun, 612, 20 N. Y. Supp. 508.

5 Code Civ. Pro., $ 886.


VI. That deponent does not know the names of the necessary defendants designated in the summons as John Doe and Richard Roe (and is not able to frame his complaint], and that it is necessary for him, in order to obtain knowledge of said names [and of the facts necessary to frame his complaints] that he should have an order to examine the defendants above-named, so that he can obtain from them the information necessary for the purpose aforesaid.

[Or, where plaintiff desires to join others as co-defendants] That the plaintiff intends to make other persons parties defendant to said action as soon as their names are ascertained, but plaintiff does not know the names of the said persons, and that the testimony of the defendant [name] is material and necessary to enable plaintiff to ascertain said names for the reason [stating reason.]

VII. [May add other facts to show a case within N. Y. Code Civ. Pro., SS 870, 871.10]

[If it is necessary to examine or inspect the contents of corpor ate books and papers, they should be specified in the affidavit with the reasons for the necessity, and a direction to produce inserted in the order."]

VIII. That no previous application for examination of said !. Z. has been made herein [except, etc.?]

6 N. Y. Code Civ. Pro., § 872, authorizes examination of officers and directors, servants, agents, or employees of a corporation. Reichmann v. Manhattan Co., 26 Hun, 433.

7 In such case the affidavit must state the name of the officer or director of such corporation whose tes timony is material and necessary. Williams r. W. U. Tel. Co., 47 N. Y. Super. Ct. 380.

8 See Chapter on PLEADING for the rules and other forms as to examination to enable to plead.

9 Such an applicauon was sustained in Baas r. Pain, 24 N. Y. Supp. 500, 54 St. Rep. 80.

10 Before issue it is not necessary to express an intent to use the deposition upon the trial of the action. Brisbane v. Brisbane, 20 Hun, 48.

11 As an incident to an examination of the witness, an inspection of a cor: poration's books and papers may be compelled under an order for the ese amination of an officer. N. Y. Code Civ. Pro., $ 872, subd. 7. But not un less the party is a corporation. Matter of Sands, 98 App. Div. 148, SU N. Y. Supp. 749.

12 See p. 116 of this volume, paragraph 84, and also p. 170.

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