Strunk v Paterson/Obama et al: Memorialization of NOM Hearing - New York State Supreme Court Kings...

8/8/2019 Strunk v Paterson/Obama et al: Memorialization of NOM Hearing - New York State Supreme Court Kings County - 1

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Strunk v. Paterson et al. 29642-08

Strunk Affidavit Page 1 of 6

AFFIDAVIT OF Christopher-Earl: Strunk in esse, Plaintiff Witnessat the January 11, 2011 Hearing on the Notice of Motion for Amended

Complaint in Strunk v Paterson et al. New York State Supreme Court

Kings County Index No.: 29642-08

Present:

The Honorable Supreme Court Justice David I. Schmidt

Part 47 Court Room 521

360 Adams Street

Brooklyn New York 11207

Joan Duffy, Esq. Supervising Assistant Attorney General

for the New York Attorney Generals Office

Joel Graber, Esq. Special Assistant Attorney General

120 BROADWAY -NEW YORK, New York 10271

Representing the State of New York as an interested party

Christopher-Earl Strunk in esse

Self-represented Plaintiff w/o an attorney

593 Vanderbilt Avenue 281


STATE OF NEW YORK )) ss.COUNTY OF KINGS )Accordingly, I, Christopher-Earl: Strunk in esse, being duly sworn, depose and sayunder penalty of perjury:

1. This is the AFFIDAVIT OF Christopher-Earl: Strunk in esse,Witness at theJanuary 11, 2011 Hearing on the Notice of Motion for Amended Complaint in

Strunk v Paterson et al. New York State Supreme Court of Kings County Index No.:

29642-08 before the Honorable Supreme Court Justice David I. Schmidt with the

appearance of Joan Duffy, Esq. Supervising Assistant Attorney General for the New

York Attorney Generals Office and Joel Graber, Esq. Special Assistant Attorney


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General representing the State of New York as a party-in-interest opposing the

Motion to Amend the Complaint.

2. After the Court called those in attendance including several law clerks andthe audience to order, the Honorable Justice Schmidt questioned Plaintiff as to the

subject request for relief to amend the complaint and status of the underlying

complaint without there being a recording or transcript of the proceeding.

3. As to the proposed amended complaint, the Court asked whether Plaintiffexpects the Court to remove Barack Hussein Obama from office; to wit Plaintiff

responded NO as that remains a Federal matter. Plaintiff seeks a declaratory

judgment as to breach of fiduciary duty by the Defendants failure to provide equal

treatment and protection of Plaintiff along with those similarly situated in regards

to the certification of the Presidential / Vice Presidential candidates ballot access at

the 2008 Election cycle; and as well as plaintiff seeks further discovery as to the

scheme to defraud and unjust enrichment.

4.

That Plaintiff stated the NYS Board of Elections never responded to the

request for documentation of the various certifications of ballot access for the

various Presidential and Vice Presidential candidates; and as previously expressed

to the Court Plaintiff had filed in Washington DC a FOIA case 08-cv-2234 for the

travel records of Stanley Ann Dunham germane herein with a motion for summary

judgment decision pending before Judge Richard J. Leon.

5. The Court asked if Plaintiff is seeking to obtain a copy of Barack HusseinObama Jr.s (BHO Jr.) Certified Birth record herein; to wit Plaintiff responded

"NO". Plaintiff seeks a decision by the Court as to whether or not the Candidate(s)

are eligible for Office of President of the United States (POTUS) as required with


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the United States Constitution Article 2 Section 1 Clause 5 as required as a

regulation by the New York State Board of Elections including inter alia based upon

the Certificate of Live Birth published August 21, 2008 byAnnenberg Political Fact

Check at FactCheck.orghttp://www.factcheck.org/elections-

2008/born_in_the_usa.html (see Exhibit A); and that as a prima facie matterPlaintiff seeks a Court decision herein as to whether or not Obama in fact has Dual

Allegiance, is not a Natural Born Citizen per se but merely a Native-Born citizen if

that; because BHO Jr.s father, BHO Sr., is a British subject with a student visa at

that time, and is shown to be the purported father of BHO Jr. by both the

newspaper announcement and the COLB shown by Fact Check.org; and therefore,

at best BHO Jr. is only a "Native" born citizen, if that, with only one U.S. Citizen

parent mother as a minor at his birth, and that without two U.S. Citizen parents -

BHO Jr. is NOT a "Natural" born citizen at best is Native born.

6. The Court asked to know Plaintiff's understanding of the difference between"Native" and "Natural" born citizen, to wit Plaintiff explained on a blood and soil

basis as of the Law of Nations as related to the 1961, 1963 and 1969 Vienna

Convention Treaty matters as to citizenship status as with the children of diplomats

and tourists who were not certified admitted by the U.S. Customs Service; and

7. Plaintiff provided the Court with a copy of the SCOTUS decision inMcCreery's Lessee v Somerville22 US 354 (1824) (see Exhibit B), and

8. That the Court responded favorably to Plaintiffs argument and contentionexpressing familiarity with the difference between the Naturaland Nativeborn, as

there is within Jewish law similar precedent and commented that the Court agreed

there is a difference and would read the SCOTUS decision Plaintiff provided.


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9. The Court then asked Mr. Graber to respond; to wit Mr. Graber and Ms.Duffy were in appearance without representing any specific defendant herein, that

the State contends that based upon the record filed to date Defendants were not

served back in 2008, that Plaintiff has failed to file a default motion as to

defendants within one year, and that the State opposes the Motion for Amended

Complaint to add twenty-four defendants with CPLR 305 that Mr. Graber

especially finds the proposed addition of Zbigniew Brzezinski frivolous.

10.To wit Plaintiff responded first to the proposed addition of ZbigniewBrzezinski as a necessary party based upon the involvement of Zbigniew Brzezinski

and his sons Ian and Mark early-on to run both the McCain and Obama campaigns

and that Plaintiff contends such involvement is about Zbigniew Brzezinskis

fixation with Afghanistan going back to 1978; and that Zbigniew Brzezinski nor

anyone is above the law;

11.That Plaintiff explained that had he known that McCain like BHO Jr. wasalso not a Natural-born citizen he would not have voted for McCain / Palin and as

there was already a question of eligibility with BHO Jr. as a result of the NYS SOS

and NYS BOE breach of fiduciary duty that a pattern of malice is shown as

to Defendant NYS BOE placing Roger Calero of the Socialist Workers Party onto

the ballot, when in fact is a Nicaraguan born and to date is not even a naturalized

citizen should have been kicked off the ballot as done in New Jersey and California;

but to the contrary all were included by NYS BOE Defendants'

malicious maladministration of the law and regulations.


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12.Further, to wit Plaintiff responded in the matter of service of Defendants,assuring that Defendants were served in 2008 by a third party; however, Plaintiff

would recheck and verify for the Court and update the record.

13.That the Court asked why Plaintiff does not just go ahead and file a new caserather than try to amend the 2008 case; to wit, Plaintiff based upon information and

belief expressed concern the statutory time that has passed since the 2008 Election

requires Plaintiff standing depend upon amending the case rather than filing a new

one.

14.Further, the Court asked Plaintiff [in regards to the underlying complaint] ifPlaintiff believes there is a civil action for sedition, treason and or conspiracy as

alleged; to wit Plaintiff responded by saying he did not know if a Civil action for

Sedition, Treason, and or conspiracy exists; but that under the New York State civil

rights law there is a cause of action much like 42 USC 1983, and that Plaintiff

emphasized that injuries were caused by Sedition, Treason, conspiracy as well as

fraud as willful failure of the BOE and Secretary of State to provide equal

treatment of ballot certification terms for BHO Jr., McCain and Calero injuring

Plaintiff along with those similarly situated.

15.To wit, the Court held there is no state civil action for sedition, treason andor conspiracy notwithstanding whether or not Plaintiffs wording of injury were

intended, is vague.

16.That the Court found that there were so many procedural questions thatwould otherwise end up in Appellate Court anyway in that the best way to expedite

the matter of importance requires Plaintiff to proceed as quickly as possible and

therefore entered an order (see Exhibit C):


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"The motion for leave having come on to be heard, and the Court having

heard plaintiff in support thereof, and the Attorney General's Office in

opposition thereto, NOW, it is hereby ORDERED, that the motion is denied

in entirety."

17.That the foregoing is Affirmants best recollection of the hearing as true andsubstantively complete, notwithstanding additional ancillary matters discussed,

and absent a transcript of the hearing accordingly wishes by due service upon the

Court and appearing parties without timely objection, that this affidavit be duly

admitted by the Court as part of the permanent record for use after entry of the

order shown as Exhibit C.

___________________________Christopher-Earl: StrunkSworn to before me

This ___ day of January 2011

_____________________Notary Public


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AFFIDAVIT OF Christopher-Earl: Strunk in esse,Plaintiff Witness at the January 11, 2011 Hearing on the Notice of

Motion for Amended Complaint in

Strunk v Paterson et al. New York State Supreme Court Kings

County Index No.: 29642-08

Exhibit A


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Born in the U.S.A.August 21, 2008Updated: November 1, 2008

The truth about Obama's birth certificate.

Summary

In June, the Obama campaign released a digitally scanned image of his birthcertificate to quell speculative charges that he might not be a natural-borncitizen. But the image prompted more blog-based skepticism about thedocument's authenticity. And recently, author Jerome Corsi, whose bookattacks Obama, said in a TV interview that the birth certificate the campaignhas is "fake."

We beg to differ. FactCheck.org staffers have now seen, touched, examinedand photographed the original birth certificate. We conclude that it meets allof the requirements from the State Department for proving U.S. citizenship.

Claims that the document lacks a raised seal or a signature are false. Wehave posted high-resolution photographs of the document as "supportingdocuments" to this article. Our conclusion: Obama was born in the U.S.A. jusas he has always said.

Update, Nov. 1: The director of Hawaiis Department of Health confirmed Oct31 that Obama was born in Honolulu.

Analysis

Update Nov. 1: TheAssociated Press quoted Chiyome Fukinoas saying that

both she and the registrar of vital statistics, Alvin Onaka, have personallyverified that the health department holds Obama's original birth certificate.

Fukino also was quoted by several other news organizations. The HonoluluAdvertiser quoted Fukinoas saying the agency had been bombarded byrequests, and that the registrar of statistics had even been called in at homein the middle of the night.

Honolulu Advertiser, Nov. 1 2008: "This has gotten ridiculous," statehealth director Dr. Chiyome Fukino said yesterday. "There are plenty ofother, important things to focus on, like the economy, taxes, energy." . . .

Will this be enough to quiet the doubters? "I hope so," Fukino said. "Weneed to get some work done."

Fukino said she has personally seen and verified that the Hawaii StateDepartment of Health has Sen. Obamas original birth certificate on record inaccordance with state policies and procedures."

Since we first wrote about Obama's birth certificate on June 16, speculation

Page 1 of 7FactCheck.org: Born in the U.S.A.

1/14/2011http://www.factcheck.org/elections-2008/print_born_in_the_usa.html


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on his citizenship has continued apace. Some claim that Obama posted afake birth certificate to his Web page. That charge leaped from theblogosphere to the mainstream media earlier this week when Jerome Corsi,author of a book attacking Obama, repeated the claim in an Aug. 15interview with Steve Doocy on Fox News.

Corsi: Well, what would be really helpful is if Senator Obama wouldrelease primary documents like his birth certificate. The campaign has a

false, fake birth certificate posted on their website. How is anybodysupposed to really piece together his life?

Doocy: What do you mean they have a "false birth certificate" on theirWeb site?

Corsi: The original birth certificate of Obama has never been released,and the campaign refuses to release it.

Doocy: Well, couldn't it just be a State of Hawaii-produced duplicate?

Corsi: No, it's a -- there's been good analysis of it on the Internet, andit's been shown to have watermarks from Photoshop. It's a fakedocument that's on the Web site right now, and the original birthcertificate the campaign refuses to produce.

Corsi isn't the only skeptic claiming that the document is a forgery. Amongthe most frequent objections we saw on forums, blogs and e-mails are:

The birth certificate doesn't have a raised seal. It isn't signed. No creases from folding are evident in the scanned version. In the zoomed-in view, there's a strange halo around the letters. The certificate number is blacked out. The date bleeding through from the back seems to say "2007," but the

document wasn't released until 2008. The document is a "certification of birth," not a "certificate of birth."

Recently FactCheck representatives got a chance to spend some time withthe birth certificate, and we can attest to the fact that it is real and three-dimensional and resides at the Obama headquarters in Chicago. We canassure readers that the certificate does bear a raised seal, and that it'sstamped on the back by Hawaii state registrar Alvin T. Onaka (who uses asignature stamp rather than signing individual birth certificates). We even

brought home a few photographs.




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The Obama birth certificate, held by FactCheck writer Joe Miller

Alvin T. Onaka's signature stamp




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The raised seal

Blowup of text

You can click on the photos to get full-size versions, which haven't beenedited in any way, except that some have been rotated 90 degrees forviewing purposes.

The certificate has all the elements the State Department requires for

proving citizenship to obtain a U.S. passport: "your full name, the full name ofyour parent(s), date and place of birth, sex, date the birth record was filed,and the seal or other certification of the official custodian of such records."The names, date and place of birth, and filing date are all evident on thescanned version, and you can see the seal above.

The document is a "certification of birth," also known as a short-form birthcertificate. The long form is drawn up by the hospital and includes additionalinformation such as birth weight and parents' hometowns. The short form isprinted by the state and draws from a database with fewer details. TheHawaii Department of Health's birth record request form does not give the

option to request a photocopy of your long-form birth certificate, but theirshort form has enough information to be acceptable to the State Department.We tried to ask the Hawaii DOH why they only offer the short form, amongother questions, but they have not given a response.

The scan released by the campaign shows halos around the black text,making it look (to some) as though the text might have been pasted on top ofan image of security paper. But the document itself has no such halos, nor




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do the close-up photos we took of it. We conclude that the halo seen in theimage produced by the campaign is a digital artifact from the scanningprocess.

We asked the Obama campaign about the date stamp and the blacked-outcertificate number. The certificate is stamped June 2007, because that'swhen Hawaii officials produced it for the campaign, which requested thatdocument and "all the records we could get our hands on" according to

spokesperson Shauna Daly. The campaign didn't release its copy until 2008,after speculation began to appear on the Internet questioning Obama'scitizenship. The campaign then rushed to release the document, and therush is responsible for the blacked-out certificate number. Says Shauna:"[We] couldn't get someone on the phone in Hawaii to tell us whether thenumber represented some secret information, and we erred on the side ofblacking it out. Since then we've found out it's pretty irrelevant for the outsideworld." The document we looked at did have a certificate number; it is 1511961 - 010641.

Blowup of certificate number

Some of the conspiracy theories that have circulated about Obama are quiteimaginative. One conservative blogger suggested that the campaign mighthave obtained a valid Hawaii birth certificate, soaked it in solvent, thenreprinted it with Obama's information. Of course, this anonymous bloggerdidn't have access to the actual document and presents this as just onepossible "scenario" without any evidence that such a thing actually happenedor is even feasible.

We also note that so far none of those questioning the authenticity of the

document have produced a shred of evidence that the information on it isincorrect. Instead, some speculate that somehow, maybe, he was born inanother country and doesn't meet the Constitution's requirement that thepresident be a "natural-born citizen."

We think our colleagues at PolitiFact.com, who also dug into some of theseloopy theories put it pretty well: "It is possible that Obama conspired his wayto the precipice of the worlds biggest job, involving a vast network of people




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and government agencies over decades of lies. Anythings possible. But stepback and look at the overwhelming evidence to the contrary and your senseof whats reasonable has to take over."

In fact, the conspiracy would need to be even deeper than our colleaguesrealized. In late July, a researcher looking to dig up dirt on Obama insteadfound a birth announcement that had been published in the HonoluluAdvertiseron Sunday, Aug. 13, 1961:

Obama's birth announcement

The announcement was posted by a pro-Hillary Clinton blogger whogrudgingly concluded that Obama "likely" was born Aug. 4, 1961 in Honolulu.

Of course, it's distantly possible that Obama's grandparents may haveplanted the announcement just in case their grandson needed to prove hisU.S. citizenship in order to run for president someday. We suggest that thosewho choose to go down that path should first equip themselves with a high-quality tinfoil hat. The evidence is clear: Barack Obama was born in theU.S.A.

Update, August 26: We received responses to some of our questions fromthe Hawaii Department of Health. They couldn't tell us anything about theirsecurity paper, but they did answer another frequently-raised question: why

is Obama's father's race listed as "African"? Kurt Tsue at the DOH told usthat father's race and mother's race are supplied by the parents, and that "weaccept what the parents self identify themselves to be." We consider itreasonable to believe that Barack Obama, Sr., would have thought of andreported himself as "African." It's certainly not the slam dunk some readershave made it out to be.

When we asked about the security borders, which look different from someother examples of Hawaii certifications of live birth, Kurt said "The bordersare generated each time a certified copy is printed. A citation located on thebottom left hand corner of the certificate indicates which date the form wasrevised." He also confirmed that the information in the short form birthcertificate is sufficient to prove citizenship for "all reasonable purposes."

by Jess Henig, with Joe Miller

Sources

United States Department of State. "Application for a U.S.

Passport." Accessed 20 Aug. 2008.




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State of Hawaii Department of Health. "Request for Certified Copy of

Birth Record." Accessed 20 Aug. 2008.

Hollyfield, Amy. "Obama's Birth Certificate: Final Chapter."

Politifact.com. 27 Jun. 2008.

The Associated Press. "State declares Obama birth certificate

genuine" 31 Oct 2008.

Nakaso, Dan. "Obama's certificate of birth OK, state says; Healthdirector issues voucher in response to 'ridiculous' barrage"

Honolulu Advertiser 1 Nov 2008.

Copyright 2003 - 2010, Annenberg Public Policy Center of the University of Pennsylvania

FactCheck.org's staff, not the Annenberg Center, is responsible for this material.




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Exhibit B


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1

MCCREERY'S LESSEE V. SOMERVILLE,

22 U. S. 354 (1824)http://supreme.justia.com/us/22/354/case.html

U.S. Supreme Court

McCreery's Lessee v. Somerville, 22 U.S. 9 Wheat. 354 354 (1824)

McCreery's Lessee v. Somerville

22 U.S. (9 Wheat.) 354ERROR TO THE CIRCUIT

COURT OF MARYLAND

Syllabus

The statute of 11 and 12 William III, c. 6, which is in force in Maryland, removes

the common law disability of claiming title through an alien ancestor, but does not

apply to a living alien ancestor, so as to create a title by heirship, where none

would exist by the common law, if the ancestor were a natural born subject or

citizen. Thus, where A died seized of lands in Maryland, leaving no heirs except

B., a brother, who was an alien, and had never been naturalized as a citizen of

the United States, and three nieces, the daughters of the said B, who were native

citizens of the United States; it was held that they could not claim title by

inheritance through B, their father, he being an alien and still living.

The case agreed stated that William McCreery was seized and possessed of a tractof land in Baltimore County, in the State of Maryland, called Clover Hill and died

possessed thereof about 1 March, 1814. He had previously executed an instrument

of writing purporting to be his last will and testament, by which he devised the

above tract of land to those under whom the defendant, Somerville, claimed; but it

was witnessed by two persons only, and was therefore inoperative to pass lands in

Maryland, the laws of which require three witnesses to a will for that purpose. W.

McCreery left at his death no children, but a brother, Ralph McCreery, a native

of Ireland, who is still living and who has not been naturalized, and three

nieces, Letitia Barwell, Jane McCreery, and Isabella McCreery, the latter being the

lessor of the plaintiff, who are the daughters of the said Ralph, and native born

citizens of the United States. The devisees under the will applied by petition to

the Legislature of Maryland to confirm the will, and the legislature, accordingly,

without the knowledge or consent of the lessor of the plaintiff, passed an act for

that purpose; saving, nevertheless, the rights of all persons claiming title to the


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2

lands devised, by conveyance from any of the heirs of W. McCreery. The action

was brought to recover an undivided third part of Clover Hill.

Upon this case, judgment was rendered by the court below for the defendant, and

the cause was brought by writ of error to this Court.

MR. JUSTICE STORY delivered the opinion of the Court.

The title of the lessor of the plaintiff to recover in this case depends upon the

question whether she can claim as one of the coheirs of her deceased uncle, her

father being an alien and alive at the commencement of the present suit. It is

perfectly clear that at common law her title is invalid, for no person can claim

lands by descent through an alien, since he has no inheritable blood. But the

statute of 11 and 12 Wm. III, ch. 6, is admitted to be in force in Maryland, and that

statute, beyond all controversy, removes the disability of claiming title bydescent, through an alien ancestor. The only point, therefore, is whether the

statute applies to the case of a living alien ancestor, so as to create a title by

heirship where none would exist by the common law, if the ancestor were a

natural born subject.

We have not been able to find any case in England in which this question has been

presented for judicial decision. In the case ofPalmer v. Downer, 2 Mass. 179, in

the State of Massachusetts, the facts brought it directly before the court, but it does

not appear to have attracted any particular attention, either from the bar or the

bench. It may then be considered as a question of new impression, and is to be

settled by ascertaining the true construction of the statute of William.

That act is entitled

"An act to enable his Majesty's natural been subjects to inherit the estate of their

ancestors, either lineal or collateral, notwithstanding their father or mother werealiens."

The title is not unimportant, and manifests an intention merely to remove the

disability of alienage. It proceeds to enact

"That all and every person or persons, being the King's natural born subject or

subjects within any of the King's realms or dominions, should and might,

thereafter, inherit and be inheritable, as heir or heirs, to any honors, &c., lands,

&c., and make their pedigrees and titles, by descent, from any of their ancestors,

lineal or collateral, although the father and mother, or father or mother, or other


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3

ancestor, of such person or persons by, from, through, or under whom he, she, or

they should or might make or derive their title or pedigree were or was or should

be born out of the King's allegiance and out of his Majesty's realms and dominions

as freely, fully, and effectually, to all intents and purposes, as if such father and

mother, or father or mother, or other ancestor or ancestors, by, from, through, or

under whom he, she, or they should or might make or derive their title or pedigree,

had been naturalized, or natural born subjects."

In construing this enactment, it ought not to escape observation that the language is

precisely such as Parliament might have used if the intention were confined to the

mere removal of the disability of alienage. It declares that persons might lawfully

inherit and be inheritable as heirs, and make their titles and pedigrees, by descent,

from any of their ancestors, although their parents were born out of the realm;

plainly supposing that they might take as heirs by descent, but for the circumstance

of the alienage of the intermediate ancestors, through whom they must claim. Itspeaks of such intermediate ancestors, as persons who were or should be born out

of the realm, and it enables the party to take, as heir, as effectually as if such

ancestors had been natural born subjects. Now this language imports no more

than a removal of the defect, for want of inheritable blood. It does not, in terms,

create a right of heirship, where the common law, independently of alienage,

prohibits it; it puts the party in the same situation, and none other, that he would be

in, if his parents were not aliens. If his parents were natural born subjects, and

capable to take as heirs of the deceased ancestor, it is clear that he could not inherit

by descent through them, as they would intercept the title, as nearer heirs. The only

cases in which he could inherit, living his parents, are those where the common

law has prohibited the parents from taking, although they have inheritable blood.

Such are the cases of a descent from brother to brother, and from a nephew to an

uncle, where the common law has disabled the parents of the deceased brother or

nephew from taking the estate by descent, upon the ground that inheritances cannot

lineally ascend. 2 Bl.Comm. 208, 212, and Christian's Note.

If the legislature had intended, not only to create inheritable blood, but also to

create absolute heirship, some explanatory language would have been used. The

statute would have declared, not only that the party should make title by descent; inthe same manner as if his parents were natural born subjects, but that he should

be deemed the heir, whether his parents were living or dead. No such explanation

is given or hinted at, and if we are to insert it, it is by expounding the language

beyond its obvious meaning and limitations. We do not feel at liberty to adopt this

mode of interpretation in a case where no legislative intention can be fairly inferred

beyond the ordinary import of the words.


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4

This construction is not impugned by the explanatory act, afterwards passed in 25

Geo. II, ch. 39. It seems that inconveniences were apprehended, in case persons

should be held by the statute of William, to gain a future capacity to inherit, who

did not exist at the death of the persons last seized. The statute of Geo. II therefore,

after reciting the act of William, declares, that it shall not be construed to give any

right or title to any persons to inherit as heirs, &c., by enabling any such persons to

claim, or derive their pedigree, through any alien ancestor, unless the persons so

claiming

"were, or shall be, in being, and capable to take the same estate as heir or heirs,

&c., by virtue of the said statute, at the death of the person who shall last die

seized," and to whom they shall claim to be heir or heirs.

Then follows a proviso,

"That in case the person or persons who shall be in being, and capable to take, at

the death of the ancestor, so dying seized, &c., and upon whom the descent shall be

cast, by virtue of this act, or of the said recited act, shall happen to be a daughter

or daughters of an alien, and that the alien father or mother, through whom such

descent shall be derived by such daughter or daughters, shall afterwards have a

son born within any of his Majesty's realms or dominions, the descent, so cast

upon such daughter or daughters, shall be divested in favor of such son, and such

son shall inherit and take the estate, in like manner as is allowed by the common

law of this realm, in cases of the birth of a nearer heir."

Then follows a provision for the case of the subsequent birth of a daughter, who is

enabled to take as a coheir with the other daughters. It has been argued that this

proviso includes the cases of all children born after the descent cast in the lifetime

of their alien parents, and therefore supposes the descent may be cast,

notwithstanding their parents are living. Admitting this to be the true construction

of the proviso, and that it is not restrained to posthumous children, the case of the

plaintiff is not aided by it, for the clause, that the son shall take, in like manner as

is allowed by the common law, in cases of the birth of a nearer heir, shows that

Parliament had in view cases where the children might, at common law, take asheirs, although their parents were living; and yet the common law divested the title,

so cast by descent, upon the birth of a nearer heir. For instance, if lands are given

to a son, who dies, leaving a sister his heir, if the parents have, at any distance of

time afterwards, another son, the common law divests the descent upon the sister in

favor of such son, and he is entitled to take the estate as heir to his brother. 2

Bl.Comm. 208, Christian's Note, 5 Co.Litt. 11, Doct. & Stud. 11 Dialog. c. 7.


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5

We think, then, that this proviso does not shake the construction, already given by

us, to the statute of William. For here the case of after-born children is expressly

provided for, which would otherwise be excluded by the declaratory clause of the

statute, and if it was contemplated that the act of William created a new title, by

heirship, independently of alienage in the parents, beyond the rules of the common

law, the natural presumption is that the declaratory clause would, in some manner,

have expressed that intention. So far from affirming a new title, by heirship, it

asserts that the true construction of that statute excludes all persons who were not

in being at the time of the descent cast, and then "capable to take the estate as heir

or heirs, &c., by virtue of the said statute of William," and we have already seen,

that the terms of that statute give no other capacity than would exist if the parents

were natural born subjects. The exception, then, of after-born children, out of the

declaratory clause of the act of George II, carries no implication that the legislature

was dealing with any other cases except those where, if the alien parents wereliving at the time of the descent cast, the children were capable of taking, as heirs

at common law, in their own right, independently of the alienage. Mr. Justice

Blackstone, in his learned Commentaries, 2 Bl.Comm. 251, gives no explanation

of these statutes, which extends them beyond such cases, and his omission to

notice the larger construction, now contended for by the plaintiff, would be

somewhat remarkable if that had been deemed the true interpretation of the

statutes.

In the absence of all authority, we do not feel ourselves at liberty to derogate from

the general doctrine of the common law as to descents, by incorporating into the

statute of William a case which is not within its terms, and is not called for by any

clear legislative policy.

Judgment affirmed with costs.

{Emphasis by Plaintiff)


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Exhibit C


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P R E S E N T. - ~r / D ~ v I D ~ . ~ ~ H ~ I ? ~

A t aU s TMT - ? s r t 7& !be 8CoratoftkSC.teofNewYork,Wdin.sdfutkComty of KinCI, at tbe comtbrw, h t e d atCivicCanter,Boreagb7Brrktyn, CItymd Sbteo f ~ e w ~ o r ~ r t h e ~ ~ P - d a y a f 201 1

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E N T E R

HOM. DAVID L SCHMi3T


23/23

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS---------------------------------------------------------------------------x

Christopher Earl Strunk, Index No.: 29642 / 08

Plaintiff,AFFIDAVIT OF SERVICE

-against-David A. Paterson et al.

Defendants.

-------------------------------------------------------------------------x

STATE OF NEW YORK )

) ss.

COUNTY OF KINGS )

Accordingly, I, _________________________, being duly sworn, depose and say under penalty ofperjury:

a. Am over 18 years of age and not a party to this action.b. My place of business is located at 593 Vanderbilt Avenue Brooklyn New York 11238.c. On January 18, 2011 , Christopher Strunk gave me one (1) Original and three (3) copies each of

the AFFIDAVIT OF Christopher-Earl: Strunk in esse, Plaintiff Witness at the January 11,

2011 Hearing on the Notice of Motion for Amended Complaint in Strunk v Paterson et al.

New York State Supreme Court Kings County Index No.: 29642-08 affirmed 1/18/11, for

service by the United States Postal Service.

d. On January 18, 2011, I placed a complete set into a properly addressed envelope with properpostage with Personal and Confidential written in the lower left corner and deposited each

with the USPS for mail delivery upon:

The Honorable Justice David I. Schmidt

of the Supreme Court of New York StatePart 47 Court Room 521

360 Adams Street


Joan Duffy, Esq. Assistant Attorney Generaland

Joel Graber, Esq. Assistant Attorney General

for the New York Attorney Generals Office

120 BROADWAY -NEW YORK, New York 10271

Kimberly A. Galvin, Esq.New York State Board of Elections

40 Steuben St.

Albany , NY , 12207

___________________________Sworn to before me

This ___ day of January 2011

_____________________

Notary Public

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