Sexaner v. Bowen — 10 Abb. Pr. 335

Majority

p. 335

SEXANER against BOWEN.

New York Common Pleas;

General Term, March, 1871.

Headnote

Verification.

A verification of an answer, stating that the same “ is true, except as to the matters therein stated,” &c.,'is insufficient, and judgment may be entered as upon failure to answer.

p. 336

It is not necessary that the precise language of the Code (§ 157), should be used, but the verification must be to the effect that the pleading is true to the knowledge of the affiant.

Appeals from' three orders refusing to set aside judgments for irregularity.

Three actions were brought, by Louis Sexaner, by Grustavus Petzold, and by Jacob Klaiber, respectively, against the defendant, Henry C. Bowen, who was their employer, to recover balances alleged to be due them, for work, labor, and services.

On the last day to answer, the defendant’s attorney served answers of general denial and breach of contract, which were verified as follows:

[Venue.]

Henry C. Bowen, being duly sworn, says, that he is the defendant in this action, and that the foregoing answer is true, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.

[Jurat.] [Signature.]

These answers were returned by the plaintiffs’ attorney, on the same day, with an indorsement thereon to the effect that the verification was defective; and on the following day he entered judgments as upon failure to answer.

Defendant then moved, at special term, to set aside the judgments for irregularity.

These motions were denied, and the defendant appealed.

Q. Q. Prentiss, for the defendant, appellant.

George F. Lqngbein, for the plaintiff, respondent

I think the verification of the answer in each of these cases was insufficient.

The Code, section 157, requires the verification of a pleading, when, made by a party to the action, to be to the effect that the same is true to Ms knowledge, except as to those matters stated on information and belief, and that as to those matters he believes it to be true.

It is not necessary that the precise language used in that section should be employed, but it is requisite that the affidavit of verification should be not only tc the effect that the pleading is true, but also to the effect that the same is true “ to the knowledge” of the affiant (Williams v. Riel, 11 How. Pr., 374 ; Tibballs v. Self-ridge, 12 Id., 64).

It is urged, that if a pleading contained false statements, an indictment for perjury would lie against the party deposing as well where the affidavit was simply that the same was “true” as where it contained an averment that the same was “true to his knowledge.”

However that may be, it is sufficient to know that the Code requires the latter mode of verification, and that if it had no other merit, it would, at least, preclude a party indicted for perjury from asserting or claiming that he was informed and believed that the allegations and matters stated in the pleading were true, and that he therefore thought he would be justified in swearing, that it was true.

As the complaints were duly verified, the answers should also have been properly verified, and as such was not the case, the plaintiffs’ attorney had a perfect right to return them as he did, and enter up judgments as for want of answers.

It appearing that said judgments were regularly

p. 338

entered, the judge at special term was right in denying the motions to set the same aside for irregularity, and the orders appealed from should be affirmed.

Charles P. Daly, Ch. A, and Darremore, J., concurred.

Orders affirmed.

Footnotes

* Present, Daly, Ch. J., and Loew and Larremore, JJ.