
    E. E. Vreeland, Appellant, v. Pennsylvania Tanning Company, Respondent.
    First Department,
    February 5, 1909.
    Motion and order—jurat to moving affidavit taken by attorney of record — practice — when attachment and judgment will not be vacated for such irregularity.
    There is no provision of the Code or statute and no court rule forbidding an attorney of record from taking an affidavit used in the case. The rule forbidding the same was merely a rule of practice formerly existing in the Court of King’s Bench, followed and adopted by the courts of this State.
    The fact that an affidavit upon which a warrant of attachment was issued was sworn to before a notary public who was the plaintiff’s attorney of record, is a mere irregularity and no ground for vacating the attachment and a subsequent judgment where the facts stated in the affidavit are not controverted.
    Appeal by the plaintiff, E. E. Yreeland, from an order- of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of'Hew York on the 11th day of December, 1908, vacating a warrant of attachment and setting aside a judgment.
    
      Walter H. Bond of counsel [Bond & Babson, attorneys], for the appellant.
    
      Peter B. Olney, Jr., for the respondent, appearing specially for the purpose of the motion.
   Clarke, J.:

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 3,1st 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. Yreeland, 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 IT. 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 $671.75. The moving affidavit upon this motion sets up that on the seventeenth 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 & Bábson, 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 long hand and typewritten copies thereof made in the office of said Olney & Comstock, but nevertheless, owing to some error, the" typewritten copibs of the affidavit of Edward E. Vreeland” have the words “ Nato IT. Conge,” notary public, instead of Walter H. Bond; ” that it was not until the seventeenth day of November, as aforesaid, that deponent knew that said affidavit of Edward E.Vreeland was verified before Walter IT. Bond as notary public.

The affidavit upon which the warrankof 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 as to the practice, we give him leave to withdraw his motion and to 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 techni- - cal, and has never in this State been extended beyond the case of the attorney or solicitor on record. In Willard v. Judd (15 John. R. 531) the Supreme Court refused to extend the principle to the counsel in the cause! And in Hallenback v. Whitaker (17 id. 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 teehnical'rule, and as there was no pretence 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, the vice-chancellor was bound to pursue the settled practice of the court as he found it.”

In Gilmore v. Hempstead (4 How. Pr. 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 the rule of King’s Bench and citing the foregoing cases, said: “ Buc the defendants are too late. They should have-moved to set aside, and .not have treated it as a nullity, and lie by till after judgment. Here has been great delay. Hone of the books, I believe, say it is a mere nullity. It is an irregularity., though one which may subject the attorney or solicitor to costs. (In ré Hogan, 3 Atk. 812.) But I do not find the rule carried further. Chitty says it will not be received. (Ch. Gen. Pr. 292.) * * * I have always supposed it a rule of practice that could be waived by the other side ; and that in effect has been done here: Ho doubt the court should discountenance a practice in no way commendable; but as between party and party, 1 do not think the proceedings void.”

In the same report (at p. 290), in- Anonymous,'where amotion had been made to set aside the jurat to the complaint, the affidavit and tlie undertaking of the sureties, for irregularity on the ground that the complaint and affidavits were sworn to before the plaintiff’s attorney, the court granted the motion but gave the plaintiff leave mane pro tunc to file a new complaint properly verified and a new affidavit. "

In Post v. Coleman (9 How. Pr. 64) the court said : The rule which excludes the attorney from taking the affidavit in an action is merely technical.”

In Linck v. City of Litchfield (141 Ill. 469) the court said : “ But, as held in Gilmore v. Hempstead, supra, the other party should at once move to set aside the proceeding for irregularity; that the proceeding cannot be treated as a nullity,, and that the failure of the opposite party to take advantage of it in apt time, will operate as a waiver of the irregularity.”

In Baumeister v. Demuth (84 App. Div. 398) Mr. Justice Laughlin, speaking for this court, said: “ Although the practice forbids an attorney of record in the action to take affidavits for use therein, the affidavit, when so taken, is not void.”

The case principally relied upon by the respondent (Kuh v. Barnett, 57 N. Y. Super. Ct. 234) was an appeal from an order vacating a preliminary injunction and was promptly made.

Section 721 of the Code of Civil Procedure provides that a judgment in a court of record shall not be impaired or affected by reason of either of the following imperfections, omissions, defects, matters or things in the process, pleadings or other proceedings: “ [Subdivision] 12. * * * or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney, or counsel, by which the adverse party has not been prejudiced.”

The rule under consideration is a rule of practice, not even embodied in the general or special rules adopted by the courts. In the case of Baptist Mission Society v. Tabernacle Church (10 App. Div. 288) it appeared that the attorney for the plaintiff had violated a rule of practice, and in consequence thereof a judgment obtained by him was vacated and set aside. . This court reversed the judgment, saying: “ This, however, was a mere irregularity; and the judgment, having been entered,, was a valid judgment until set aside or vacated by the court. Section 721 of the Code then applies. * * * This valid subsisting judgment should, therefore, be vacated or set aside by an' order of the court only upon its appearing that there was a fault or neglect on the part of some officer of the court, or of a party, his attorney or counsel, by which the adverse party had been prejudiced.”

The facts set up in the affidavit being sufficient to sustain a warrant of attachment, having been duly sworn to before a notary public, and such facts having been in no way controverted, we are of the opinion that the fact that the notary was one of the attorneys of record, while a breach of a rule of practice held to be technical by the authorities in this State, constituted a mere irregularity which has been waived, and that, under the circumstances of this case, the warrant based thereon and the judgment thereafter entered were not void and should not have been vacated and set aside.

It follows,'therefore,, that the order appealed from should be reversed, the motion denied,, and the warrant of attachment and the judgment reinstated, with costs to the appellant.

Irgraham, McLaughlin, Houghton and Scott,.. JJ., concurred.

Order reversed,, motion denied, and warrant of attachment and judgment reinstated, with costs to appellant. Settle order on notice. 
      
       See vol. 3, 1st Am. ed.— [Rep.
     