Lowry v. De Chadenedes

141 A.D. 924, 125 N.Y.S. 1042

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1910
• Status: Published

Opinion

Per Cüriam:

The injunction appealed against cannot be sustained because .there is no competent affidavit of the facts to sustain it. The complaint is wholly on information and belief j and verified by one of the plaintiff’s attorneys: The paper purporting to be an affidavit of plaintiff is a nullity. ■ Not only is there no venue stated, but it appears to have been made out of the State, and the necessary certificate of competency of the officer taking it is not attached. (Turtle v. Turtle, 31 App. Div. 49.) It appears to have been verified before a person describing himself as “ Clerk Circuit Court.” We are not aware of any officer in the State bearing that title. The undertaking was also irregular in form-, but, if that had been the only defect,, it could have been remedied by the giving of a new undertaking. ■ The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, without prejudice to its renewal upon proper papers. Present — Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ.. Order reversed, with ten dollars costs and disbursements, and motion denied, without prejudice to renewal.