
    Charles R. Marks, Plaintiff, v. Harry B. Goetchius and Johh Condit Smith, Defendants.
    (Supreme Court, Madison Special Term,
    July, 1908.)
    Affidavit — Form and requisites—Authentication—Affidavit taken in another State.
    Arrest on mesne process: Application for writ and proceedings thereon — Requisites and sufficiency of affidavit — Affidavit taken in another State: Motion to vacate order — Defendant’s right to move — Waiver;' Imposition of terms on vacating — Stipulation not to sue.
    A judge is without jurisdiction to grant an order of arrest upon an affidavit sworn to in another State, without the certificate as to the official character and genuineness of the signature of the officer administering the oath, required by section 844 of the Code of Civil Procedure.
    It is now the settled law that the defendant does not, by giving bail, waive his right to move to vacate an order of arrest within the time prescribed by section 567 of the Code of Civil Procedure.
    Where an order of arrest is vacated because the judge who granted it was without jurisdiction, the court has no power to impose as a condition that the defendant shall stipulate not to sue the plaintiff for false imprisonment.
    Motion to vacate order of arrest.
    Alexander, Watriss & Polk (H. W. Coley, of counsel), for plaintiff.
    Gignoux & Ried, for defendants.
   Coman, J.

The order of arrest in this action was granted June 1, 1908. The defendant was arrested June 23, 1908. The order to show cause was granted July 9, and returnable July 14, 1908. The order of arrest was granted solely upon what purported to be an affidavit made by Charles R. Marks, the plaintiff herein, purporting to have been verified in the county of Suffolk in the Commonwealth of Massachusetts, before one Abram Alexander, notary public. There are no certificates accompanying said affidavit as to the official character of the notary and the genuineness of his signature as required by section 844 of the Code of Civil Procedure.

My conclusion is, and in the written briefs submitted upon this motion this is not seriously disputed, that the affidavit was a nullity and that the situation is exactly as if the order of arrest had been granted upon an unverified, oral or written declaration of the plaintiff. Under these circumstances I think the justice who granted the order was without jurisdiction.

It is seriously contended, however, on the part of the plaintiff that the defendant by giving bail has waived all questions as to the regularity and sufficiency of the papers upon which the order of arrest was granted. There is some confusion in the authorities in this State upon this question, but I think it is now the settled law that the defendant does not by giving bail waive his right to move to vacate the order of arrest within the time prescribed by section 567 of the Code of Civil Procedure. It would be a very harsh and unreasonable rule, in my judgment, to require the defendant thus arrested to submit to actual incarceration in prison, pending his motion to vacate, in order to preserve his rights. The case of Mackey v. Lewis, 7 Hun, 83, seems to be the controlling authority upon this question and to overrule the previous Special Term decisions holding a contrary doctrine. The motion to vacate the order of arrest must be granted for the reasons above stated.

It is suggested by counsel for the plaintiff that, as a condition for granting this order, the defendant should be required to stipulate not to sue the plaintiff for false imprisonment. I have reached the conclusion that I have no power to make such a condition. Cases are called to my attention in which such conditions have been imposed upon vacating an order of arrest, but no authoritative case is cited to that effect, where the defendant was entitled to have the order vacated as a matter of right. Faulkner v. Morey, 22 Hun, 379. In such cases I think the authorities are unanimous that the court has no such power.

Motion granted.  