#### JOHN ORTNER, Plaintiff in Error, *v.*THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

*Perjury in affidavit annexed to claim against municipal corporation*— *what must he averred in indictment for.*

A prisoner was convicted of the offense of willfully and corruptly swearing false in an affidavit made for the purpose of obtaining audit of an unliquidated claim against the city of Buffalo, pursuant to the statute, which statute makes false swearing in an affidavit authorized by the act perjury. It was not averred in the indictment that the affidavit was authorized by the charter, or that it was made for the purpose required thereby, or that the claim to which it was appended was ever presented to the common council for audit. *Held,*that the indictment was fatally defective.

Wbit of error to the Court of Sessions in and for the county of Erie. During the trial a motion was made to quash the indictment for the reasons stated in the opinion, which motion was denied.

*Lewis & Gurney,*for plaintiff in error.

The indictment is bad for not alleging that it was necessary for Ortner to make this affidavit in order to collect his demand for repairing the outlet to the Georgia street sewer. This must appear from the indictment. *(The People*v. *Gaige,*1 Green Ch., 524; *People*v. *Allen,*5 Denio, *76; Dawson*v. *The People,*25 N. Y., 399.) If it was not necessary to make the affidavit, then it is extra-judicial and lays no foundation for perjury. *(U. S.*v. *Babcock,*4 McLean, 113; *The People*v. *Jacob Travis,*4 Parker Cr., 213; *Com.*v. *Pickering,*8 Gratt., 628; *State*v. *Ellison,*8 Blackf., 225; *Williams**324v. *State, 7*Humph., 47.) The forms of indictments for perjury upon affidavits, require an allegation that the party who administered the affidavit had authority so to do. (1 Archb. Crim. Pl. and Ev. [Lond. ed.], 566, 567; 2 Bishop on Criminal Procedure, §§ 844, 845, 846.) The indictment must proceed by particular averments to negative the allegations charged to be false, and must show the defendant guilty of the offense charged. (2 Archbold Cr. Pl. and Pr., 965, note; *State*v. *Bishop, 1*Chipman [Vt.], 120; *Dodge*v. *The State,*4 Zab., 455.) The indictment must state all the facts necessary to make the defendant guilty of the offense charged, and- if it does not do that, it is bad in substance. The indictment in this case does not show the defendant guilty of any offense punishable bylaw, and cannot he helped by an intendment, inference or guess. *(People*v. *Allen,*5 Denio; *Dawson*v. *The People,*25 N. Y., 399 ; Wharton’s Am. Crim. Law, § 379 [6th ed.] ; *Reynolds*v. *The State,*2 Nott & McCord, 365 ; *State*v. *Barber,*18 Vermont, 195; *State*v. *Keen,*34 Maine, 500 ; *State*v. *Godfrey,*24 id., 232; *Metzer's Case*v. *Hill,*5 Gratt., 682; *State*v. *Foster,*11 Iowa, 291.) The writ of error in this case brings up all the questions we here seek to review. (3 R. S., pp. 1033 to 1036 ; *People*v. *Blakely,*4 Parker Cr., 176.) The rule in regard to granting new trials upon the ground of newly discovered evidence, is the same in criminal as in civil cases. (1 Graham & Waterman on New Trials, 481.)

*Benjamin H.*Williams, district attorney.

The granting of a I motion to quash is discretionary with the court, and error does not! lie for its refusal. (Wharton’s Crim. Law, 519; *Com.*v. *Eastman,*1 Cush., 189 ; *State*v. *Putnam,*38 Maine, 296; *Lambert*v. People, 7 Cow., 535.) The indictment is sufficient. The perjury con-T sisted in swearing false in an affidavit authorized by section 7, of title 3, of the charter of the city of Buffalo. (Chapter 519 of Session Laws of 1870.) That section requires' claims against the city of Buffalo to be made out in a certain form, and that the4 shall not be received for audit unless made out in such form, and accompanied by the affidavit prescribed in said section. It was nol necessary to show that the city or any person had been defrauded *(King*v. *Crossly,*7 T. R., 351; 1 Hawk. P. C., 69, § 9.) It was nol *325necessary that the law should have required Ortner to make the affidavit for the purpose of collecting his claim. It is sufficient if the affidavit was one authorized by the charter of the city. (Charter of Buffalo, title 16, § 11; chap. 519, Session Laws of 1870.) It is sufficient to allege the substantial and specific facts constituting the perjury. *(Tuttle*v. *People,*36 N. Y., 431; *People*v. *Phelps,*5 Wend., 9; *People*v. *Warner,*id., 271; *People*v. *Tredway, 3*Barb., 470 ; 2 Chitty Crim. Law, 307; *Campbell v. People,*8 Wend., 636.) If the indictment contains the substance of the offense, and informs the defendant of the allegations against him, it will be upheld. (5 Wend., 20; 8 Barb., 552; 22 N. Y., 150; 2 Rev. Stat., 720, § 52; *King*v. *Dowlin,*5 T. R., 318.)

Gilbert, J.:

The gist of the offense of which the prisoner was convicted, consists of willfully and corruptly swearing false, in an affidavit made for the purpose of obtaining an audit of an unliquidated claim which he had against the city of Buffalo, by the common council of that city, pursuant to section 7 of title 3 of the charter thereof. That section prohibits the common council from auditing any such claim, unless it be made out in detail, with certain prescribed specifications, nor unless accompanied by an affidavit that the claim and the items and specifications thereof, are in all respects just and correct.* Section 11, of title 16, provides, that every person who shall willfully and corruptly swear false to any material fact in *any affidavit authorized by the act,*shall be guilty of perjury.

It is not averred in the indictment, that the affidavit was authorized by the charter, nor that it was made for the purpose required by section 7 of title 3, nor that the claim to which it was appended was ever presented to the common council for audit. The averment is, that the prisoner caused his bill to be presented to Hr. Ditto, the engineer, and that he made the affidavit before Hr. Pierce, who was a commissioner of deeds and a clerk in the office of the engineer. But it is not averred that it was any part of Hr. Ditto’s duties to receive the bill, or that he in fact received it for any purpose connected with an audit. Without the averments omitted, or equivalent ones sustained by proof, the offense would *326not be made out; for if the affidavit was made for any other purpose than that of obtaining an audit of the claim, and was misapplied, it was not authorized by the charter, and perjury could not be assigned upon it under section 11 of title 16. It is a familiar rule, that if the indictment does not set forth the facts requisite to constitute the offense charged, a conviction upon it must be reversed. '

The provisions of the Revised Statutes which define the crime of perjury, * cannot be applied to the case. It would not, under any circumstances, fall under subdivision 1 of that section. It might possibly fall under subdivision 12, if the indictment contained an averment that the affidavit was necessary in the prosecution of a private right of the prisoner. But the indictment does not show that fact. The learned district attorney replied to the objection that the indictment was defective, by referring us to the third subdivision of that section, which applies to a case where any oath may be lawfully required by any administrative officer. There are three answers to this : First. The oath was not in fact required, but was made voluntarily; nor does it appear that Mr. Pierce, who took the affidavit, was authorized by the common council, or that it was his duty as a city officer, to make such a requisition ; or that there is any law conferring such authority upon him. Second. It could not lawfully be required, but it was optional with the prisoner whether he would make" the affidavit, or forego the audit of his bill. Verifying it without the purpose of having it presented for audit, would not be an offense. Third. The administrative qfficers, referred to in subdivision 3, are those enumerated in title 5 of chapter 5, part 1, of the Revised Statutes, and Mr. Pierce’s functions do not bring him within that class, for he was not an administrative officer of any sort, but a clerk- only in the office of the engineer.

We are satisfied that the indictment is insufficient, and for that reason the conviction must be reversed; and, as no conviction can legally be had upon it, the prisoner must be absolutely discharged, †

Present — Mullin, P. J., Smith and Gilbert, JJ..

Judgment reversed, and prisoner discharged.

*

2 Laws 1870, 1179, § 7,

*

 2 R. S., 681, § 2.

†

 2 R. S., 741, § 24.