
    Syracuse Moulding Co. v. Squires.
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1891.)
    1. Appearance in Justice Court—Allowance by Justice.
    Where the return of the justice before whom a cause was tried states that “M. appeared and answered for the plaintiff, and was by me sworn as to his authority to appear, ” it shows a compliance with Code Civil Proo. N. Y. § 2890, which provides that the justice shall not allow a person to appear as an attorney unless such person’s authority as attorney is admitted by the adverse party, or is proved by the affidavit of himself or another.
    2. Same—Summons—Jurisdiction.
    A constable’s return of a summons in a justice’s court, which shows that it was served in the same town as that in which the venue was laid in the summons, but does not state that either party was a resident of the county in which the action was brought, sufficiently shows jurisdiction in the justice, under Code Civil Proo. N. Y. § 2869, subd. 3, which provides that an action against a non-resident of the county may be brought before a justice of the town in which he (defendant) is at the time of the commencement of the action.
    8. Same—Complaint—Verification by Agent.
    Under Laws if. Y. 1881, c. 414, § 1, which provides that, in an action in a justice’s court on a contract for the recovery of money only, the plaintiff or his agent may make a written complaint, which shall be subscribed by plaintiff or his agent, and shall be verified as provided by Code Civil Proo. N. Y. B 526, (prescribing what an affidavit of verification shall contain when made by a party or by a person other than a party,) the complaint in an action in a justice’s court on a written instrument for the payment of money, brought by plaintiff’s agent, who was in possession of the writing sued on, may be verified by the agent.
    4. Summons—Return of Constable.
    A certificate of a constable that the written summons and complaint were personally served on defendant at a specified time and place, by delivery to him of copies thereof, is not a sufficient compliance with Laws N. Y. 1881, c. 414, § 1, which requires service of summons in a justice’s court to be served on defendant by “delivery to and leaving with him personally true copies thereof;” the certificates being defective in not stating that the constable left with defendant the copies of the complaint and summons delivered by the constable to defendant. McMulUn v. Mackey, 6 N. Y. Supp. 885, approved. Reversing 13 N. Y. Supp. 547.
    Martin, J., dissenting.
    Appeal from Madison county court.
    Action by the Syracuse Moulding Company against Fred. D. Squires. A judgment for plaintiff was affirmed by the county court on appeal from a justice of the peace, and defendant again appeals. Code Civil Proc. N. Y. § 526, is as follows: “The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as the matters therein stated to be alleged on information and belief, and that as to those matters he believes to be true. Where it is made by a person other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party.” Section 2890 provides that “the attorney’s authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself or another. ” Laws JST. Y. 1881, c. 414, § 1, is as follows: “In an action brought in any of the justices’ courts of this state arising on contract for the recovery of money only, or on an account, the plaintiff or his agent, at or before the time of the issuing of the summons, may make a written complaint, stating in a plain, concise manner the facts constituting the cause of action, specifying therein the amount actually due from the defendant to the plaintiff in said action, and praying judgment against the said defendant for the amount so claimed to be due him, which said complaint shall be subscribed by the plaintiff or his agent, and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. 8aid summons and complaint shall be attached and shall be served upon the defendant by delivering to and leaving with him personally true copies thereof, not less than six nor more than .twelve days before the return-day thereof, and the official certificate of the constable making such service shall be sufficient evidence thereof.”
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Cameron & Kiley, for appellant. Edward S. More, for respondent.
   Per Curiam.

The appellant challenges the validity of the judgment in this case on the grounds (1) that the authority of the plaintiff’s attorney to appear for it was not proved as required by section 2890 of the Code of Civil Procedure; (2) that the justice acquired no jurisdiction of the parties; (3) that the complaint was not properly verified, as required by chapter 414, Laws 1881, and hence that the justice was not authorized to render the judgment appealed from without further proof; and (4) that the return of the constable was insufficient to justify the justice in entering judgment against the defendant upon the proof given." The appellant contends that there was not sufficient proof of the authority of Edward S. More to appear as attorney for the plaintiff in the justice’s court. The return of the justice shows that “E. S. More appeared and answered for the plaintiff, and 'was by me [the justice] sworn as to his authority to appear.” We think this was sufficient to show that section 2890 of the Code of Civil Procedure was complied with.

It is also claimed that it did not appear that the justice had jurisdiction of the parties, in that the return did not show that either of the parties was a resident of Madison county. The constable’s return shows that the summons and complaint were served on the defendant at the town of Cazenovia, which was the town in which the justice presumably resided, as the venue of the summons was Madison county, town of Cazenovia. Therefore, if the defendant was a non-resident of the county, the justice acquired jurisdiction, under subdivision 3, $ 2869, Code Civil Proc., which provides that an action against a non-resident of the county may be brought before a j ustice of the town in which he is at the time of the commencement of the action. We think, as there was no proof to the contrary, the return sufficiently shows that the justice had jurisdiction of the parties.

3STor do we think the plaintiff’s claim that the complaint.was not properly verified can be sustained. Chapter 414, Laws 1881, provides that the complaint shall be subscribed by the plaintiff or his agent, and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. It would seem that it was the intent of this statute that the complaint might be verified by the person subscribing it; if subscribed by the plaintiff, that it might be verified by him; if subscribed by his agent, that it might be verified by. such agent. When we refer to section 526, we also find that that section contemplates a verification by a person other than a plaintiff. But the appellant contends that it must be verified as required by section 525 of the Code. That section provides that the verification must be by the affidavit of the party, except, “(1) where the party is a domestic corporation, the verification must be by an officer thereof; (2) where the people of the state or a public officer- in their behalf is the party, the verification may be made by any person acquainted with the facts; (3) where the party is a foreign corporation, or where the party is not within the county where the attorney resides, * * * or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney, or where all the material' allegations of the pleading are within the personal knowledge of the agent or the attorney, in either case the verification may be made by the agent of or attorney for the party. ” In this case the action was founded upon a written instrument for the payment of money only, which was in the possession of the plaintiff’s agent who made the verification. We think it was sufficient.

The only remaining question is whether the constable’s return was .sufficient to give the justice jurisdiction to enter judgment in this action upon the proof given. The only proof in the case was as to the amount of interest due upon the draft in suit. Hence the question arises whether the return of the constable showed a sufficient compliance with the statute of 1881 to authorize the entry of the judgment appealed from without further evidence. That statute provides that the summons and complaint shall be attached, and •shall be served upon the defendant by delivering to and leaving with him personally true copies thereof. It also provides that the official certificate of the constable making such service shall be sufficient evidence thereof. The ■ certificate of the constable was to the effect that the within summons and • complaint were personally served on the defendant on the 11th day of July, 1890, at thé town of Cazenovia, by delivering to him copies thereof. The precise question here is whether the jurisdiction of the justice to render a judgment without further proof failed because the officer omitted to state in his return that he left with the defendant the copies of the summons and complaint that he delivered to him. This question was somewhat considered by this court in McMullin v. Mackey, 6 N. Y. Supp. 885. In the opinion delivered by Merwin, J., in that case, it was said that a similar return was not a sufficient compliance with the statute, as it did not show that the copies were left with the defendant. While this portion of the opinion was not concurred in by the other members of the court, a majority of the court are of the opinion that the doctrine of that case upon this question should be upheld, and that the constable’s return was insufficient to justify the justice in rendering a judgment in the case at bar without further proof. It therefore follows that the judgment should be reversed, with costs. Judgment of Madison county ■ court and judgment of justice reversed, with costs.

Martin, J.,

(dissenting.) I cannot concur in the conclusion reached by a majority of the court that the judgment should be reversed on the ground that the constable’s return was insufficient to justify the justice in rendering the judgment appealed from without further proof. It is true that in the case of McMullin v. Mackey, 6 N. Y. Supp. 885, Merwin, J., said that a similar return was insufficient. ' In that case the ease of Wilkinson v. Bayley, 71 Wis. 131, 36 N. W. Rep. 836, was cited, and much relied upon as sustaining that doctrine. An examination of that case at first seems to indicate that it holds the doctrine contended for; but, when the cases relied upon by the judge who wrote the opinion in the Wilkinson Case are examined, it appears that the rule or statute regulating the service in those cases was unlike the statute of 1881, as the rule or statute there under consideration provided that, where •the service should be made by a person other than the sheriff, it should be necessary for such person to state in his affidavit of service, inter alla, whether he left with the defendant a copy as well as delivered it to him. Matteson v. Smith, 37 Wis. 333. It is to be inferred, we think, that the statute referred to in the Wilkinson Case was similar to, if not identical with, rule 41 of the circuit court upon which the decision in the Matteson Case was based, and that it required the affidavit to state whether a copy was left with the defend.ant or not, as the judge in delivering the opinion says: “The affidavits do not state that a copy of the summons was left with any of the defendants, as required by section 2642, Rev. St.” If correct in assuming that in the cases • cited the statute or rule required that the affidavits should state whether or not a copy was left with the party served, they are clearly distinguishable from the case at bar. The statute of 1881 provides the manner of service, which is by delivering to and leaving with the defendant copies. It does not ■ direct as to the form of the constable’s return, nor that it shall show that the officer serving it left copies with the defendant as well as delivered them to him. I do not regard the Wisconsin eases as binding authorities upon this question. It seems to me that the return of the constable that he delivered •the copies to the defendant included leaving them with him. A delivery must be regarded as a full surrender of the possession of the thing to the person to whom it is delivered, and this could not be accomplished without complying with this statute by leaving the summons and complaint with him. 1 am of the opinion that the return was sufficient; that the certificate of the fact that .¿he delivered them to the defendant clearly implied that they .were left with him; and that the judgment should be affirmed. While the opinion of Merwin, J., in the McMullin Case, is adverse to this conclusion, it will be observed that it was not concurred in by the other members of the court. Hardin, P. J., concurred only in the result, while Martin, J., concurred only upon another distinct ground, which was specified. I think the judg-, ment should be affirmed, with costs. '  