People ex rel. Kenyon v. Sutherland , 23 N.Y. Sup. Ct. 192 ( 1878 )

Gilbert, J.:

Power to hear the proceeding brought up by this certiorari was conferred upon the city judge by the twenty-sixth section of the City Court Act. (Laws of 1849, ch. 125 ; 2 R. S., 17, § 6 ; id., 34, § 1.) He was prohibited, however, from proceeding to hear the proofs and allegations of the parties, until proof should have been given to his satisfaction of the service of the notice of the proceeding on each of the creditors of the insolvent. (Laws 1847, ch, 366, §§ 1, 2.) It is not material to inquire whether an omission to give such notice is a jurisdictional defect, or a non-compliance with the statute only. For upon a certiorari to review a proceeding like that before us, the court may review all questions of jurisdiction, power and authority of the city judge to do the acts complained of, and all questions of the regularity of his proceedings. (People v. Assessors, 39 N. Y., 81; People v. Betts, 55 id., 600 ; People v. Board of Police, 69 id., 408.)

Independently of the positive requirement of the statute, notice is essential to the validity of all judicial proceedings which affect the person or the property of a citizen. (Bloom v. BurdicJc, 1 Hill, 139.) The insolvent act authorizes the discharge of the debtor without the consent of creditors who do not petition therefor. For that reason it is in derogation of the common law, and must, therefore, be strictly pursued. Another reason why the notice required by the statute is essential to the validity of the proceeding, is that by the terms thereof no discharge can be granted unless the provisions of the statute shall have been complied with. (2 R. S., 16, § 1.)

The only proof of a service of the notice in this case was a paper purporting to be an affidavit, but which did not contain the name of the deponent, unless a signature at the end of the paper and opposite the jurat can be so considered. It has been^hejd that if the deponent’s name be mentioned in the affidavit as deponent., his signature is not absolutely necessary, if he be properly and duly sworn. (Jackson v. Virgil, 3 Johns., 539; Milius v. Shafer, 3 Denio, 60.) But I can find no case in which an affidavit was held to be good which did not mention the deponent’s name in the body of the paper as the person who took the oath.

The provision of the statute which authorizes an affidavit to be read requires that the officer before whom it was taken sba.11 certify that it was taken before him. (2 R. S., 284, § 49.) Such a certificate must show who took the oath, as well as the matter sworn to, otherwise there would be no certainty that the same person who signed the affidavit took the oath. When the name of the deponent is inserted in the affidavit, both of those facts are certified by the usual jurat. But a certificate which leaves the fact by whom the oath was taken uncertain, cannot be deemed a compliance with the statute last cited. I think, therefore, that the affidavit in this case was not legal proof, and that it was improperly received as such. The officer was not authorized to receive any other than legal evidence. Although proof to his satisfaction was sufficient, yet that did not authorize him to dispense with any formality which was necessary to render the proof offered admissible according to the settled rules of evidence. Other objections to the proceedings were insisted on, but as this one is decisive of the case, we have not examined them.

Upon the ground that proof of the service of the notice to the creditors was not given, we are of opinion that the judgment should be affirmed.

BarNArd, P. J., concurred. Present- — -BarNArd, P. J., Gilbert and DykmaN, JJ.

Judgment affirmed, with costs.