Paul Maniscalco, Respondent, v. Abraham Slamowitz, Appellant

Paul Maniscalco, Respondent, v. Abraham Slamowitz, Appellant. Second Department, January 10, 1908. Motion and. order — motion to vacate order of arrest on original papers — additional affidavits not authorized — verification by wrong person — appeal; When á motion to vacate an order of arrest is made on. the papers on which it was granted, an order denying the motion should not be-resettled 'to recite additional affidavits read by the plaintiff in opposing the motion, for in such case ' section 568 of the Code, of Civil Procedure, forbids the- use of additional-affidavits. The rule holds even though one of the additional affidavits corrected a defect in the jurat of the original affidavit which rendered it a nullity. An affidavit purporting to be by one person, but signed and sworn to by another, is a nullity. On an appeal from an order resettling an order denying a motion to vacate an order of arrest, the latter order will not be' reversed if there is no appeal therefrom. ■ Appeal by.the defendant, Abraham Slamowitz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of October,. 1907, granting the plaintiff’s motion to resettle an order, entered in-said clerk’s office on the- 18th day of May, 1,907, . which denied the defendant’s motion to* vacate an order of arrest by reciting in said order of the eighteenth two affidavits of the plaintiff as having been read in opposition to the motion. Jacob M. Leibner, for the appellant. Joseph Gans, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: • The motion to vacate the order of arrest was made on the papers on which it was granted, and hence the two new affidavits of the plaintiff could not be read in opposition (Code Civ. Pro. § 568). One of the affidavits on which the order of arrest was granted purported .to be by the plaintiff, but was in .fact signed by another, and the jurat attested that he swore to it. It was thus a nullity. .It was corrected after the. notice of motion to vacate the order of arrest was given, and it and a new affidavit by the plaintiff explaining the error are the two affidavits which the order of resettlement directed to be recited as having been read in opposition. They could not be read any more than any other affidavits. . The appellant also argues that the order denying the motion to vacate the order of arrest should be reversed, but there is no notice of appeal from that order in the record. The order of resettlement should be reversed. Woodward, Jenks, Hooker arid Miller, JJ., concurred. Order of resettlement reversed,' with ten' dollars costs and disbursements, in accordance with opinion, and motion denied, with costs.