Phelps. Phelps.

the views expressed by presiding Justice SMITH in his opinion.

As to creditors who have attachments which have been levied upon assets of the corporation prior to the appointment of the ancillary receiver, they should be allowed to proceed and perfect their judgment and realize what they can out of the property levied upon, as the appointment of a receiver could not divest them of rights they acquired. The motion to dissolve the injunction as to the attaching creditors must be granted.

PHELPS v. PHELPS.

SUPREME COURT, HERKIMER COUNTY, SPECIAL TERM, NOVEMBER, 1883.

§§ 424, 439, 528, 844.

Affidavit.-Certificate to, taken without the state.-Effect of failure of, on order for publication. —Appearance.— What amounts to.

Where the affidavit and complaint on which an order for publication was granted were sworn to without this state and were not certified in the manner required to entitle a deed so acknowledged to be recorded in this state,-Held, that the papers were to be regarded as unverified,* and that, so regarded, they failed to give the court or officer any jurisdiction of the case, and the order for publication and the proceedings thereunder were without authority and void; that no subsequent laches of the defendant could give jurisdiction. When on a motion by a defendant to set aside the service of a summons by publication and all proceedings thereunder, his attorneys

* See Williams v. Waddell, 5 N. Y. Civ. Pro. 191; Harris v. Durkee, 5 Id. 376; Code Civil Procedure, 528. It seems, that proof of the laws of the state in which the affidavit was taken, empowering the officer taking it to do so, and if his signature may be substituted for the certificate. Vide Williams v. Waddell, supra.

Phelps v. Phelps.

indorse their names on the motion papers as attorneys for the defendant,-Held, that this was an appearance in the action sufficient to give the court jurisdiction of the case and of the person of the defendant.

(Decided November 12, 1883.)

Motion by defendant to vacate and set aside an order for the publication of the summons herein and all proceedings thereunder.

This is an action for absolute divorce. The summons was served by publication in 1878 and judgment taken on the defendant's failure to appear or answer in January, 1879.

The order for publication was granted on a complaint verified without the state before a clerk of the supreme court of Maine accompanied by a certificate purporting to be signed by one Appleby, who described himself as chief justice of the state of Maine, certifying that the person who took the affidavit was the proper person to make out and certify copies of all records and proceedings of the supreme judicial court, holden within and for the county of Knox, in the state of Maine, and that full faith and credit should be given to his acts and attestations.

In November, 1883, the defendant made this motion.

Louis Marshal, for the motion.

The verification was a nullity, and the complaint must be treated as unverified. Ladd v. Terre Haute, &c., R. R. Co., 13 N. Y. Weekly Dig. 209; Luther v. Brison, 4 N. Y. Monthly Law Bul. 91. . . . . . . The objections are directed to the jurisdiction of the court and are not merely irregularities, and cannot be amended or overcome by any claim of laches. Kendall v. Washburn, 14 How. Pr. 380; Titus v. Relyea, 16 Id. 371.

Phelps v. Phelps.

William H. King, opposed.

The complaint was properly verified. Code of Civil Procedure, §§ 525, 526, 844.

CHURCHILL, J.-The order of publication of the summons in this action was made by the county judge of Montgomery county, November 12, 1878, and was made upon a complaint and affidavit purporting to have been verified by the plaintiff in the state of Maine, on August 3, 1878. Prior to that time the law relating to the taking of affidavits in other states to be used in this state as it existed before the Code of Civil Procedure (2 R. S. 396, § 25, and Laws of 1869, chap. 133), had been repealed (chap. 417, Laws of 1877, § 1, sub. 3 [6], and subdiv. 4 [43]), leaving in force after September 1, 1877, section 844 of the Code of Civil Procedure, to govern the taking of such affidavits. By that section an affidavit taken in another state to be used in this state, must be taken before an officer authorized by the laws of the foreign state to take and certify the acknowledgment and proof of deeds to be recorded in that state, and that he was such officer and so authorized (Laws of 1869, chap. 557), must be certified in the manner required to entitle a deed acknowledged before him to be recorded in this state. In the affidavits presented to the county judge there is an entire failure (so far as the papers show), to comply with these requirements of the Code, and the papers are to be regarded as unverified by the plaintiff; so regarded they fail to give the courts or officer any jurisdiction of the case, and the order of publication and the proceedings subsequent thereto to judgment are without authority and void. Code, § 439. If the affidavit in question failed to give jurisdiction no subsequent laches of the defendant could give such jurisdiction. Titus v. Relyea, 16 How. Pr. 371.

The defendant's attorneys have indorsed their

Phelps v. Phelps.

names upon the motion papers served by them in this case as attorneys for the defendant, which is an appearance in the action, and is sufficient to give the court jurisdiction of the case and of the person of the defendant. Code Civil Pro. § 424; Mahoney v. Penman, 4 Duer, 603 (605).

*

An order should be entered vacating and setting aside the judgment of divorce heretofore entered in this action, and giving to the defendant 20 days after the entry of the order to be entered herein in which to make and serve a demand of a copy of the complaint of the plaintiff in this action, the proceedings subsequent thereto to be the same as though personal service of the summons had been made upon the defendant.

Let an order in accordance with the foregoing be drawn, and filed and entered in Montgomery county, and let the papers used on the motion also be filed in that county.t

* See on this subject Douglass v. Haberstro, 8 Abb. N. C. 230; S. C., 58 How. Pr. 276; Couch v. Mullane, 63 How. Pr. 79; Krause . Averill, 4 N. Y. Civ. Pro. 410; Code of Civil Procedure, § 421.

This case was, on appeal, affirmed by general term of the third department, see 32 Hun, 642.

De Silver v. Holden.

DE SILVER, RESPONDENT, v. HOLDEN, APPELLANT.

N. Y. SUPERIOR COURT, GENERAL TERM, MARCH,

1884.

SS 484, 1316.

Appeal from final judgment on overruling demurrer.-Joinder causes of action.-False representations and conversion. -Pleading.Damages. -Intent.

Upon an appeal from a judgment entered upon an assessment of plaintiff's damages, after a demurrer to the complaint had been overruled and final judgment ordered for plaintiff, the correctness of the order overruling the demurrer is involved. [']

A cause of action that by false and fraudulent representations, defendant had induced plaintiff to sign a bond for the payment of money secured by mortgage on plaintiff's real estate, which at defendant's request were made to a third person, to whom defendant delivered them, receiving a specified sum therefor, may be joined under subd. 6, § 487, of the Code, with a cause of action for the conversion of plaintiff's property by defendant. Both causes of action are for injury to personal property. [2]

After execution and before delivery of the bond, plain iff had a property therein, and the complaint alleges that defendant by false pretenses obtained the bond, which was as much an injury to property as a tortious taking and a conversion thereof. [3]

A special allegation of damage in such case is not necessary; the presumption that plaintiff will be obliged to pay the bond is enough.[]

An averment that with intent to deceive and defraud plaintiff, defendant falsely and fraudulently stated and represented certain matters of fact as to his own financial condition, and as to property owned by him, etc., implies that defendant knew the representations to be false when he made them.[*]

(Decided April 7, 1884.)

Appeal from a final judgment in favor of plaintiff, entered upon an order and interlocutory judgment overruling defendant's demurrer to the complaint, which was on two grounds: 1. That causes of action