Blatchford a. The New York & New Haven R. R. Co.

We understand, therefore, perfectly well what is meant by a complaint, an answer, and an affidavit. Each has a distinct name, and a distinct office to perform in the progress of an action; and though the two former, when verified, may in certain proceedings have all the force of an affidavit, there is no warrant for calling them affidavits. The Code denominates them pleadings, complaint, and answer, and such they are to be regarded.

Section 219 of the Code provides that the application for an injunction order may be made when it shall appear by the complaint that the plaintiff is entitled to the relief demanded; and section 220 provides that it may be granted at the time of commencing the action, or at any time afterwards, on its appearing satisfactorily by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. Gridley, Justice, in Miner v. Terry (6 How. Pr. R., 210), very justly says, that "where the complaint states all the facts necessary to lay the foundation for an injunction, and the plaintiff swears to this positively, it is too narrow a construction of the Code not to regard the complaint thus verified as an affidavit. It would be a useless act to restate all the facts of the complaint in the form of an affidavit." When the plaintiff cannot swear positively to all the facts stated in the complaint, it is always necessary to have the affidavit of a third person. We think section 225 of the Code sanctions the idea that the injunction is to be granted on the complaint and affidavits, for it says that the application to vacate or modify the injunction order may be made upon the complaint and the affidavits on which it was granted, or upon affidavits on the part of the defendant, with or without his answer. We think the provisions of the Code in this section clearly preserve the distinction between complaint, answer, and affidavit.

The motion to vacate or modify may be made on the complaint, if that only were used in obtaining the injunction order: if affidavits in addition were used, then upon them and the complaint; or the defendant might move on affidavits, with or without his answer.

If his answer is verified, it may be treated as an affidavit fairly, for the same reason that the complaint is regarded as such, for the obtaining the injunction order.

Blatchford a. The New York & New Haven R. R. Co.

If it is not verified, then, for the same reasons, affidavits must be used, to bring to the knowledge of the court the facts relied on to procure a vacation or modification of the injunction order.

Section 226 of the Code is imperative upon this court, if this view of the provisions of the Code is correct, that when the defendant uses only his answer on the motion to vacate or modify the injunction order, the plaintiff cannot use affidavits to sustain the injunction. It says, "If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits and proofs, in addition to those on which the injunction was granted."

Edwards, Justice, in Servoss v. Stannard (2 Code R., 56), says, "The word affidavit, in section 226 of the Code, can hardly be construed to mean answer. We find the words answer' and 'affidavit' throughout the Code applied to different objects, and certainly in their ordinary acceptation they are not synonymous. There are some words in the Code which the Legislature intended should have a signification different from that usually assigned them; these have been enumerated, and their arbitrary definition given. The word affidavit is not among the words to which the Legislature have attached a peculiar meaning; and I see nothing in the Code, nor am I aware of any decision. which would justify me in holding that an answer, verified in conformity with the Code, is an affidavit."

This reasoning appears to us conclusive; and we think, therefore, when the defendant does not use an affidavit or affidavits, on his behalf, the plaintiff is precluded from opposing his motion by affidavits or other proofs, in addition to those upon which the injunction was granted.

Mercier a. Pearlstone.

MERCIER a. PEARLSTONE.

New York Superior Court; Special Term, October, 1858. SERVICE OF AMENDED COMPLAINT.

Section 146 of the Code,―requiring an amended complaint to be served on the defendant--is to be construed by section 417,-requiring service of papers to be made on the attorney, if a party has an attorney;-and where a defendant has appeared by attorney, an amended complaint is to be served on the attorney, and not on the defendant personally.

A judgment, entered as upon failure to answer an amended complaint, which was served on the defendant personally, after he had appeared by attorney, is irregular, and should be set aside on motion of the defendant.

Motion to vacate judgment.

The facts are stated in the opinion.

PIERREPONT, J.-The plaintiff commenced his action by personal service of the summons and complaint upon the defendant, who afterwards duly appeared by attorney. Before the expiration of 20 days the plaintiff amended his complaint, and served it as amended upon the defendant, after he had appeared by attorney. Upon this amended complaint judgment was entered by default, more than 20 days after its service upon the defendant. The defendant moves to set aside the judgment as irregular, alleging various grounds of irregularity; and among others, that no service of the amended complaint was made upon the defendant's attorney.

The Code (§ 146) says: "If the complaint be amended, a copy thereof must be served on the defendant." Section 417, chap. 11, reads: "Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party."

The sections thus read seem wholly inconsistent; and the plaintiff insists that "the papers" mentioned in the latter section, the service of which must be made upon the attorney, are papers only as follow the service of the amended com

such

plaint.

Hicks a. Payson.

Section 408 of the same chapter reads thus: "Notices shall be in writing; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, when not otherwise provided by this act." "The next three sections" prescribe the manner of service upon the party or attorney. But the same chapter of the act provides "otherwise" (§ 417), where there is an attorney, and requires that the service shall be made upon him.

I have no doubt that the Legislature intended that where an attorney had appeared in an action, that all the subsequent papers should be served upon him. Such was the rule before the Code, and I find no indications of an intent to alter it.

After the plaintiff had served the defendant, who had appeared by attorney, he might have amended his complaint, and served it upon the attorney, and service upon the defendant personally was not necessary. If we are to construe the statute so as to require every amended complaint to be served personally upon the defendant, then no amended complaint could ever be served upon a defendant who had removed from, and remained out of, the jurisdiction of this court.

I am clearly of opinion that the judgment is irregular, and must be set aside. As this disposes of the motion, the other alleged irregularities need not here be considered.

HICKS a. PAYSON.

New York Superior Court; Special Term, September, 1858.

JURISDICTION OF NEW YORK SUPERIOR COURT.-SECURITY FOR COSTS.

A person residing in a county of this State, other than the city and county of New York, and bringing an action in the New York Superior Court, may be required to file security for costs, as being not a resident within the jurisdiction

of that court.

Motion for an order requiring the plaintiff to file security for

costs.

Hicks a. Payson.

The defendant moved for an order that the plaintiff file security for costs, on the ground that he resided at Haverstraw, Rockland county, in the State of New York. The motion was opposed on the ground that Haverstraw was within the jurisdiction of this court.

Abbott Brothers, for the motion.

Wm. A. Hardenbrook, opposed.

BOSWORTH, J.-A party to an action brought, or pending in any court, may be said to reside within the jurisdiction of such court, when both his person and his property can be subjected to the process of the court, issued to the sheriff of the county in which he resides. If the defendant recovers judgment in this action, execution against the property or the body of the plaintiff can be issued to and executed in Rockland county, as effectually and efficiently as if the action were in the Supreme Court, and the execution were upon a judgment in that court. The jurisdiction of the court as to that matter, is as comprehensive as that of the other, and it is difficult to assign a reason why the plaintiff should file security for costs, if suing in one court, and not when suing in the other.

Title 2, of chapter 10, of part 3 of the Revised Statutes, is but a modification of the rule of the Supreme Court, adopted the 14th of January, 1798, and looks primarily, so far as the question of residence is concerned, to plaintiff's residing out of the State. (See 2 Rev. Stats., 799, §1.)

When the Revised Statutes took effect, neither mesne nor final process, issued out of this court, could be executed out of the city and county of New York. When such was the law, a plaintiff residing out of it, resided out of the jurisdiction of the court. But the jurisdiction of the court, by subsequent statutes and the Code, has been enlarged. An execution from this court can be executed in any county of the State. Were the question an open one, I should think that this fact placed Rockland county within the "jurisdiction" of this court, within the meaning of that word as used in the title of the statute entitled "Of Security for the Payment of Costs." But although of this opinion, I deem it my duty to conform to the decision in 2 Sandf S. C. R., 632, and to grant the motion.