
    Matter of Daniel J. McGrory, as Supervisor, Resp’t, v. James Henderson, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    Public officer—Proceedings to enforce surrender of books to successor in office—R. S., Part 1, Title 6, Article 5, § 51—Affidavit TO QUASH PROCEEDINGS, § 52.
    Il is provided in regard to public officers by Revised Statutes, part 1, title 6, article 5, section 51, that: “If any person shall refuse or neglect to deliver over to his successors any hooks or papers as required by law, such successors may make complaint thereof to any justice of the supreme court upon oath and such other testimony as he shall deem proper that such books are withheld whereupon the justice shall grant the order directing the person so refusing to show cause before him why he should not be compelled to deliver up the same.” Section 53 among other things provides that. “ If the person charged with withholding such books or papers shall make affidavit before such officer that he lias truly delivered over to his successor all such books and papers in his custody or appertaining to his office within his knowledge, all further proceedings before such officer shall cease and the person complained against shall be discharged. Held, the plain requirement of the section (53), was that the person complained against should make oath before the justice, and that until he appeared before him he was not entitled to have the proceedings quashed.
    
      Martin J. Keough, for resp’t; H. C. Henderson, for app’lt.
   Pratt, J.

The statute upon which this proceeding was based, article 5 of title 6, part 1 of the Revised Statutes, provides a scheme for obtaining books and papers withheld from their successors by public officers. Section SI provides, 1 If any person shall refuse or neglect to deliver over to his successor any books or papers as required by law, • such successor may make complaint thereof to any justice of the supreme court upon oath, and such other testimony as he shall deem proper that such books are withheld, whereupon the justice shall grant an order directing the the person so refusing to show cause before him why he should not be compelled to deliver up the same.” Among other things, section 52 provides, “If the person charged with withholding such books or papers shall make affidavit before such officer that he has truly delivered over to his successor all such books and papers in his custody or appertaining to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged.” The plain requirement of this section is that the person complained against shall make oath before such officer.

It was the duty of the justice, under the statute, to inquire into the circumstances, and the respondent was not entitled to have the proceeding quashed till he appeared before the justice and made oath before him as required by the statute. The object of the statute was to bring the person complained against into court so that some inquiry might be instituted by the officer taking the affidavit.

The affidavit of the respondent was made before a notary public, and is indefinite and evasive. In it he states that he had delivered ‘ ‘ each and every book and paper in his possession or under his control as supervisor within his knowledge in any way belonging to or pertaining to the office of supervisor of said town, and that he has not now, nor has he at any time since then had in his possession or under his control any such book or paper as is described in the moving papers herein, or any other book or paper per-taming to such office.” This statement does not meet the affidavit of the complainant as it does not deny that he had the special book called for by the complainant, he does not identify the books he gave to Briggs, and he does not swear that he delivered it to the complainant or that he filed it.

It is undoubtedly true that an affidavit made before the justice before whom the proceeding was had in the precise words of the statute would be sufficient. It is a general rule of pleading that whenever a statute gives a cause of action or defense, it is sufficient in declaring upon the pleading or statute to follow the words of the act. The objection, however, was fatal, that the affidavit was not made before the justice. It was an oath required by law to be taken before a particular officer, and hence, section 842 of the Code of Criminal Procedure did not validate the appellant’s affidavit.

The proceeding is still pending before the justice, and" the appellant is entitled to go before him and make the required affidavit. Until he does so, he is not in a position to claim that the proceeding shall be discharged.

The order adjourning the proceeding was therefore proper, and must be affirmed, with costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.  