Opinion
No. 47/730.
04-08-1924
BARBIERI v. BARBIERI.
Milberg & Milberg, of Jersey City, for counterclaimant.
Petition by John Barbieri against Margaret Barbieri, in which defendant filed counter petition, and in which the validity of defendant's affidavit of noncollusion was raised. Affidavit held sufficient.
Milberg & Milberg, of Jersey City, for counterclaimant.
GRIFFIN, V. C. Margaret Barbieri, defendant, in her counterclaim for divorce, alleges that her maiden name is "Margaret Hollman."
The affidavit of noncollusion is as follows: "State of New Jersey, County of Hudson—ss.:
"Margaret Hollman being duly sworn according to law on her oath deposes and says: That she is the counterclaimant named in the foregoing counterclaim, and that her counterclaim is not made by any collusion between her and the petitioner herein, but in truth and good faith and for the causes set forth in said petition. Margaret Barbieri.
"Subscribed and sworn to before me this 25th day of October, 1920.
"Frederick R. Jeese,
"Attorney at Law of New Jersey."
The case was tried, and thereafter, on examining the papers, the mistake of inserting the maiden and not the marriage name in the body of the affidavit was discovered. The question then arises, Does this mistake render the affidavit invalid? If it does, then the defendant cannot be heard on her counterclaim.
In the case of Torrans v. Hicks, 32 Mich. 307, the affidavit began with a recital that "Fred B. Lee of said county being duly sworn," etc., it was signed "Charles H. Lee." Judge Cooley said that
"The recital of the name of Fred B. Lee in the beginning of the affidavit is apparently a clerical, error and to be overlooked as such. Charles H. Lee makes the oath, and had the name been omitted in the beginning there would have been no difficulty in holding that the affiantwas applying the facts recited to himself. But this affidavit is in legal effect the same, we think, that it would have been, if in the body of it there had been no recital of any name as that of an affiant."
In People v. Sutherland, 81 N. Y. 1, the Court of Appeals held that the name of the affiant need not be inserted in the body of the affidavit; it was sufficient if subscribed and sworn to before a proper officer; that the test of a good affidavit was, Could perjury be assigned on it? and this called for the identity of the person making oath, who "takes on responsibilities and incurs liability to the criminal law if he utters willful falsehood." In this opinion are cited Bac. Abr. Title Affidavit, and a number of English cases.
In Pincers v. Robertson, 24 N. J. Eq. 348, Chancellor Runyon said, speaking of the signing of the affidavit by deponent at the foot thereof, "The object is to facilitate identification of the affiant in case of prosecution for perjury."
In 3 Greenleaf on Evidence (16th Ed.) § 192, p. 194, the author says the rule in these cases seems to be this: That the proof must be sufficient to exclude the hypothesis that the oath was taken by any other person but the prisoner.
In this case the proof is plain that the affidavit was that of Margaret Barbieri; she says in her counterclaim that her maiden name was Margaret Hollman, which is true; her affidavit begins, Margaret Hollman being duly sworn, etc., which was a clerical error in stating her maiden and not her marriage name; she then signs her marriage name; and the officer in the jurat says that it was "subscribed and sworn to before me," and, turning to the subscription, the affidavit is correctly signed "Margaret Barbieri."
Thus her identity is clearly fixed, and, if her affidavit is false, the above facts afford proof of perjury.
My conclusion is that the affidavit is sufficient.