
    SUPREME COURT.
    The People ex rel. Cyrus Cole agt. Adeline Alden.
    Under the act of 1863, amending the Revised Statutes relating to “ summary proceedings to recover the possession of land,” the affidavit upon which the process is issued by the district courts in the city of New York must be sworn or affirmed to before the cleric or his deputy. If not so sworn to, all subsequent proceedings, with the affidavit, are void.
    
    
      New York General Term,
    
      December, 1863.
    Sutherland, P. J., Leonard and Barnard, Justices.
    
    Certiorari to a district court in the city of New York to review summary proceedings, &c.
   By the court, Sutherland, P. Justice.

The concluding words of the first section of the act of April 20, 1863 (ch. 189, Laws of 1863) are too plain and explicit to permit an argument or speculation as "to the intention of the legislature.

These words are, “ and the affidavit upon which the process is issued shall be sworn or affirmed to before and filed with the said clerk or his deputy.” By the process is meant the summons for the tenant to remove from the premises or show cause;—only one affidavit for the summons or process is contemplated either by the act of 1863, or by the provisions of the Revised Statutes which the act of 1863 amends. The whole proceeding is a special statutory proceeding, and, when the act of 1863 says that the affidavit, &c. shall be sworn or affirmed before the clerk or his deputy, it in effect says that it shall not be sworn to or affirmed before the justice or any officer or person other than the clerk or his deputy.

In this case the record shows that the affidavit upon which the summons was issued was sworn to before Mr. Bull, the justice. The summons and all subsequent proceedings were, therefore, irregular and void.

It seems that the clerks of district courts, independent of the act of 1863, have power to administer oaths by the 75th section of the act of April 13, 1851.

In my opinion, the proceedings before the magistrate must be reversed or set aside on the ground above stated alone, without examining any other question in the case.

Act passed April 20, 1863, chapter 189, Laws of 1863.

“ Sec. 1. All proceedings had and process issued under the provisions of article 2, title 10, chapter 8, part 3 of the Revised Statutes, in the city of New York, by any justice of the district courts thereof, shall be had, and issued, and be made returnable before a justice of the district court, in the district in which the premises of which the possession is sought to be recovered are situated, and all such process shall be made returnable by the clerk of said district court, at the court thereof, and the affidavit on which the process is issued shall be sworn or affirmed to before and filed with the said clerk or his deputy.

“ Sec. 2. This act shall take effect immediately.”  