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132 Misc. 497

Northwest Engineering Co. v. Rappl

New York Supreme Court

Decided July 11, 1928

New York Supreme Court · decided 1928-07-11

Relies on Marshall v. . Murdock · Van Dyke v. New York State Banking Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1928-07-11

How this case has been cited

Cited by 7 later decisions — most recently November 1974

7 state decisions

20192819301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Thompson, J.

¶1Without doubt the affidavit is defective in that it fails to set forth the alleged cause of the detention of the property replevined “ according to the best knowledge, information and *498belief of the person making the affidavit.” (Civ. Prac. Act, §§ 1095, 1096, subd. 4; Wagman v. Raynor, 163 App. Div. 68.)

¶2It appears that before any action was taken on the part of the plaintiff it made a demand on the defendants for the return of the machine, and it was refused. So plaintiff here asks permission to amend its affidavit by inserting a clause setting forth these facts.

¶3This is not such a mistake, omission, irregularity or defect as may be corrected or supplied, or which must be disregarded. (Civ. Prac. Act, § 105.)

¶4The failure of the affidavit to meet this requirement goes to the validity of the writ itself and makes it void, everything necessary to the issuance thereof being jurisdictional. (23 R. C. L. 920.)

¶5Doubtless irregularities not essential to jurisdiction or in prejudice of substantial rights may be thus corrected. (Colcord v. Banco de Tamaulipas, 191 App. Div. 94, 97; Van Dyke v. N. Y. State Banking Co., 18 Misc. 661; Sulzbacher v. Cawthra & Co., 14 id. 545; affd., on opinion blow, 148 N. Y. 755.)

¶6Sufficient appears to establish that such an irregularity is not under consideration here.

¶7Before an omission may be supplied or a mistake corrected in a proceeding of this character, jurisdiction of the person, property and cause of action must have been regularly acquired. (Dexter & Carpenter, Inc., v. Lake & Export C. Corp., 196 App. Div. 766.)

¶8“ Section 768 of the Code of Civil Procedure [now Civ. Prac. Act, § 105], which permits the curing of technical defects or insufficiencies … cannot be used to cure defects which go to the jurisdiction of the court. Before the court can make an order in an action to cure defects in the proceedings it must obtain jurisdiction of the cause.” (Conklin v. Federal Trust Co., 176 App. Div. 572.)

¶9If these observations are correct, the court has not power to permit the plaintiff to amend its affidavit, and the motion must be granted.

¶10Motion granted, with costs. So ordered.

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