Ross v. Longmuir — 15 Abb. Pr. 326

Majority

p. 326

ROSS a. LONGMUIR.

Supreme Court, Seventh District; General Term,

Sept., 1862.

Headnote

Verification by Attorney.

Where a verification is made by an agent or attorney in the case of an action or defence founded on an instrument for the payment of money only, and such instrument is in his possession, the verification need not set forth the knowledge or grounds of belief of the deponent, if all the allegations of the pleading are made in a positive form, and none are expressed as made on information or belief.^[3]

Where all the allegations in a pleading are made positively, and none are expressed to be on information and belief, the verification should omit the usual phrase, “ except as to those matters therein stated on information and belief, and as to those matters he believes it to be trueand that phrase, if inserted, may be regarded as surplusage,^[2]

A claim for recoupment against the cause of action, though it be not a full defence ■ to the whole cause of action, may be set up by answer as a defence ; and, if it were otherwise, the plaintiff could not disregard such an answer as therefore frivolous, and enter judgment as of course.

Appeal from an order refusing to set aside a judgment.

p. 327

This action was brought by James Ross against Alexander Longmuir. The complaint was verified, and the defendant-served an answer, claiming a recoupment. The answer was verified by an agent of defendant in the following form;

[ Venue.]

“ A. B., being duly sworn, says: that he is, and has for a long time been, agent for the defendant in this action; that the foregoing answer is true to his own knowledge, ^except as to those matters therein stated on information and belief, and as to those matters he believes it to be true.^[3] Deponent further says, that the reason why the verification is not made by the defendant is, that all the material allegations in the answer are within the personal knowledge of deponent, and not within the personal knowledge of the defendant.”

\Ju/rat.] [Signature.]

Plaintiff’s attorney returned the answer, objecting that the verification was insufficient, and he then entered judgment against the defendant as for want of an answer.

The defendant moved at special term to set aside the judgment, but his motion was denied, and he now appealed.

This verification is nearly, if not exactly, in the language of that portion of section 157 of the Code, allowing the affidavit of verification to be made by the agent or attorney of a party, in a ease where the action or defence is founded upon a written instrument for the payment of money only, &c.

It is objected, on the part of the plaintiff, that the affidavit omits to set forth the knowledge or the grounds of belief of the agent who makes it. It is a sufficient answer to this objection, that there is nothing in the answer stated upon information or belief, but each and every allegation is stated positively and without qualification. That part of the affidavit, therefore, which refers to matters in the answer supposed to have been

p. 328

stated upon information and belief, may be treated as surplus-age.

It is further objected that the answer contains no defence; but this, I think, is an error. The defence interposed is that of a recoupment. It may not be a full defence to the whole cause of action, but it is a full defence to the extent of the recoupment which the plaintiff may be able to prove on the trial. If it is true to any extent, the defendant had a right to set it up. Besides, the plaintiff has no right to treat it as a nullity on that ground, and enter judgment as for want of an answer. If frivolous, the only way he can take advantage of it is by application to a judge of the court, under section 247 of the Code.

The order of the special term should be reversed, and the judgment set aside, with ten dollars costs of appeal.

Order accordingly.