Clement v. Ferenback

1 N.Y. City Ct. Rep. 57

• Court: New York Marine Court
• Decided: October 15, 1877
• Status: Published

Opinion

McAdajx, J.-

The defendant Ferenback moves to set aside the judgment entered herein by default August 28, 1877, for irregularity, in this : that the affidavit of service is without a venue—i. e., the words “ city and county of New York, ss.f are omitted from the caption. Affidavits should, by the settled practice, contain a venue, and it is said to be an essential part of an affidavit, because it is prima facie evidence of the place where it was taken, and upon its face shows the important fact whether the officer before whom the affidavit was taken performed his official act within the locality for which he was appointed or authorized to act (see Thompson v. Burhans, 61 N. Y. 63; Lane v. Morse, 6 How. 394; Cook v. Statts, 18 Barb. 407; Vincent v. The People, 5 Park. Cr. 88 ; Belden v. Devoe, 13 Wend. 225, note; 1 Barb. Ch. [1st Edn.] 601). The irregularity is amendable, however (Code of Civil Procedure, §§ 721, 722, 723, 724; Fawcett v. Vary, 59 N. Y. 597 ; Hogan v. Hoyt, 37 Id. 300 ; Jones v. United States Slate Co., 16 How. Pr. 129), in furtherance of justice.

The defendant’s motion to set aside the judgment will therefore be granted, unless, within five days, the plaintiff files a new affidavit of service in strict conformity to the rules of practice, and containing a proper venue, which he will be allowed to do nunc pro tune. The execution issued upon the judgment conforms substantially to the statutory requirements (Walker v. Hubbard, 4 How. Pr. 154), and will not be disturbed, if the above amendment be made.

Ordered accordingly.