Opinion
October 19, 1906.
Schuyler C. Carlton of counsel [ Louis T. Noonan, attorney], for the appellant.
John F. Valieant of counsel [ Henry C. Quinby, attorney], for the respondent.
This is an appeal from an order of Special Term denying a motion to vacate an order of the Special Term granted ex parte for an examination of the defendant to enable plaintiff to frame his complaint.
The petition upon which the plaintiff moved for an order for the examination of the defendant purports to have been verified in the county of Essex, State of New Jersey, before one William P. Hadwin, alleged to be a notary public. Section 844 of the Code of Civil Procedure provides that when an oath or affidavit required in an action or special proceeding is taken without the State said oath or affidavit may be received in this State when the signature of the officer taking it is accompanied with the like certificates as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within the State. The verification to the petition contains no such certificate, and for that reason the affidavit was not entitled to be received. ( Turtle v. Turtle, 31 App. Div. 49.) There was, therefore, no basis for the order for the examination before trial.
Furthermore, section 873 of the Code of Civil Procedure provides that the "order must also direct the time of service of a copy thereof, which must be made within the State not more than twenty nor less than five days before the time fixed for the examination, unless special circumstances making a different time of service necessary are shown in the affidavit and that fact is recited in the order." In the order under review the service was directed to be four days before the date of the examination, and no reason for such shortening of the time was stated in the order, as required by this provision of the Code ( supra).
In Osborne v. Barber ( 105 App. Div. 236), where the time was, as in the case at bar, four instead of five days, without the reason therefor being stated in the order, it was held that the order must be reversed. Each of the defects noted was specifically pointed out upon the argument below, and objections raised thereto and stated in the order to show cause upon which the order appealed from was based.
This order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave, however, to the respondent to renew his application in the court below upon proper papers.
O'BRIEN, P.J., INGRAHAM, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to renew. Order filed.