Appeal from Special Term, New York County.
Action by E. E. Vreeland against the Pennsylvania Tanning Company. From an order vacating a warrant of attachment, and setting aside the judgment for plaintiff, plaintiff appeals. Reversed, and judgment reinstated.
[114 N.Y.S. 1003] Bond & Babson (Walter H. Bond, of counsel), for appellant.
Peter B. Olney, Jr., for respondent.
Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
This is an appeal from an order entered on the 11th of December, 1908, vacating an attachment granted on the 25th day of March, 1908, and vacating and setting aside a judgment entered on the 31st day of July, 1908, and ordering that any and all proceeds of sales, and moneys collected by the sheriff and all property attached remaining in his hands be delivered and paid over to the defendant and released from said attachment.
On the 25th of March, 1908, on the summons and complaint and the affidavit of Edward E. Vreeland, verified on said day, and an undertaking, a warrant of attachment was issued herein upon the ground that the defendant was a foreign corporation. This affidavit was sworn to before Walter H. Bond, notary public, Kings county, No. 242, certificate filed in New York county. The plaintiff is a New York corporation, and the affiant Vreeland the secretary, treasurer, and general manager thereof. The plaintiff's attorneys were Bond & Babson, and the notary, Walter H. Bond, was a member of that firm of attorneys. Under the warrant of attachment the sheriff attached certain debts due to the defendant. On or about the 21st day of April, 1908, plaintiff obtained an order for the service of the summons on the defendant as a foreign corporation, by publication or personal service without the state. Defendant did not appear, and on or about July 31, 1908, plaintiff obtained judgment in the sum of $621.75. The moving affidavit upon this motion sets up that on the 17th day of November, deponent, an attorney and counselor at law, appearing specially to move to vacate this attachment, had occasion to examine the judgment roll in this action in the office of the county clerk, and upon said examination discovered that the affidavit of Edward E. Vreeland, upon which the warrant of attachment herein was obtained, was verified before one Walter H. Bond as notary public; that he is a member of said firm of Bond & Babson, and is therefore one of the plaintiff's attorneys of record; that Olney & Comstock, attorneys, in whose office your deponent is a clerk, shortly after the obtaining of the warrant of attachment herein, sent one of the young men in the office to the county clerk's office to copy the papers upon which said attachment was obtained, and such copies were made in longhand, and typewritten copies thereof made in the office of said Olney & [114 N.Y.S. 1004] Comstock, but nevertheless, owing to some error, the typewritten copies of the affidavit of Edward E. Vreeland have the words " Nato H. Conge," Notary Public, instead of Walter H. Bond; that it was not until the 17th day of November, as aforesaid, that deponent knew that said affidavit of Edward E. Vreeland was verified before Walter H. Bond as notary public.
The affidavit upon which the warrant of attachment was granted was put on file in the county clerk's office and has there remained subject to examination. It was, shortly after its filing, examined. It was not due to any fault or negligence on the part of the plaintiff and its attorneys that the moving party did not ascertain, until months after its filing and the entry of judgment herein, that said affidavit had been taken before Walter H. Bond. If it had been promptly discovered, and a motion had been made to set aside the warrant upon the ground that the affidavit had been taken before one of the attorneys of record of the plaintiff, it would have been quite proper for the court to have allowed the filing of a properly verified affidavit, or, if the attachment had been entirely vacated, it might have been possible to have instituted new proceedings in time to secure the benefits of an attachment.
The order appealed from, which vacated the attachment and the judgment, can only be sustained upon the ground that the affidavit was a nullity, and that therefore the court had nothing before it upon which it could issue the warrant of attachment. The affidavit was not a nullity. It was taken before a notary public duly authorized to administer oaths and take acknowledgments. There is no provision of Code or statute which forbids the attorney of record of a party to take an affidavit to be used in the case. It is a mere rule of practice, formerly existing in the Court of King's Bench, followed and adopted by the courts of this state. As stated in Taylor v. Hatch, 12 Johns. 340:
" The practice of the Court of King's Bench is not to allow an affidavit taken before the attorney in the cause to be read. It is a very fit and proper rule, which we shall therefore adopt as the practice here. As the party may, however, have been led into a mistake of practice, we give him leave to withdraw his motion and renew it again at the next term on a proper affidavit."
In that case the objection was made when the attorney was about to read the affidavit to the court.
In People v. Spalding, 2 Paige, 326, the affidavit in question had been taken before the solicitor. The Chancellor said:
" The rule which excludes an affidavit taken before the attorney is merely technical, and has never in this state been extended beyond the case of the attorney or solicitor on record. In Willard v. Judd, 15 Johns. 531, the Supreme Court refused to extend the principle to the counsel in the cause. And in Hallenback v. Whittaker, 17 Johns. 2, the same court decided that it did not extend to the partner of the attorney on record, although he was interested in the profits of the business. The Supreme Court reluctantly consented to adopt the rule in the case of Taylor v. Hatch, because they found the practice to be thus settled in the Court of King's Bench.*** As it is a mere technical rule, and as there was no pretense in these cases that any injury had resulted to the defendants by the affidavits being sworn to before the officer by whom they were prepared, instead of resorting to another commissioner, [114 N.Y.S. 1005] the Vice Chancellor was bound to pursue the settled practice of the court as he found it."
In Gilmore v. Hempstead, 4 How. Prac. 153, a motion to set aside the proceedings of plaintiff after judgment, because the complaint was sworn to before the plaintiff's attorney, was under consideration. The court, after stating ...