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Scruton v. Dziewisz

Supreme Court of New York, Appellate Division

June 18, 1954

JANET SCRUTON, Respondent,
v.
ANTHONY DZIEWISZ, Appellant.

Page 277

APPEAL from an order of the St. Lawrence County Children's Court (SANFORD, J.), entered February 19, 1954, denying a motion by appellant for an order vacating and setting aside the complaint.

COUNSEL

Arthur B. Hart for appellant.

Elihu Chase for respondent.

HALPERN, J.

The respondent in a filiation proceeding appeals from an order of the Children's Court, denying his motion to vacate the complaint upon the ground that the complaint had been verified before a notary public and not before the Children's Court Judge.

Subdivision 4 of section 122 of the Domestic Relations Law reads as follows: 'The complaint shall be in writing, or oral

Page 278

and in the presence of the complainant reduced to writing by the judge or the clerk of the court. It shall be verified by oath or affirmation of complainant.'

It will be noted that, under the terms of the statute, the complaint must be reduced to writing by the judge or clerk in the presence of the complainant only if the complaint is an oral one. If the complaint is in writing, the statute contemplates that it may be presented to the court in completed form; it may be prepared in advance and need not be written out by the judge or clerk.

There is no express requirement in the statute that the oath for the verification be administered by the judge or clerk. If the complaint is one prepared in advance, to be presented to the court as a completed document, it presumably will be verified before a notary public or commissioner of deeds at the time of its execution.

Section 135 of the Executive Law provides in part that 'Every notary public duly qualified is hereby authorized and empowered within and throughout the state to administer oaths and affirmations'.

The objection raised by the appellant thus appears to be without any substance. The point would hardly be worth discussing, if it were not for a statement in a standard work written by a well-known specialist, which is quoted and relied upon by the appellant. Sidney B. Schatkin in 'Disputed Paternity Proceedings' (3d ed.) states at page 73: 'The words 'oath or affirmation' refer clearly to an oath or affirmation before a court or judge. Those words do not include an acknowledgement [sic] before a notary public. Consequently, before the court will issue a summons or bench warrant the mother must appear before the court or judge for the 'oath or affirmation' referred to in the statute.'

Insofar as this view is based upon a construction of the words 'oath or affirmation', there appears to be no basis for it ...


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