Bowery Savings Bank v. Ward — 188 A.D. 593

Majority

p. 593

Bowery Savings Bank, Respondent, v. Walter E. Ward, Appellant, Impleaded with The City of New York and Others, Defendants.

First Department,

July 3, 1919.

Headnote

Pleading—complaint — verification by agent of allegations made upon information and belief.

A verification of a complaint by an agent is defective, where there is no allegation that as to matters alleged upon information and belief the affiant believes it to be true, and where the affiant fails to set forth in the affidavit the grounds of his belief as to said allegations.

Appeal by the defendant, Walter E. Ward, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1919, denying his motion to compel plaintiff to accept service of his unverified answer, excepting so much of the order as grants him leave to serve a properly verified answer.

Joseph Steven Frank, for the appellant.

Henry M. Bellinger of counsel [David Belkin with him on the brief], for the respondent.

The defendant sought to serve an unverified answer, contending that the complaint was unverified in that the attempted verification was defective.

I am of the opinion that defendant’s claim must be sustained upon the ground that the verification by the agent for plaintiff does not comply with the requirements of the Code of Civil Procedure. The agent for plaintiff had the right to verify the complaint under section 525, subdivision 3, as all the material allegations thereof were alleged to be within his personal knowledge.

Section 526, however, requires that “ The affidavit of verification must be to the effect, that the pleading is true to

p. 594

the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.”

The verification of the complaint is defective in that: (1) There are three paragraphs of the complaint, the facts contained in which are alleged upon information and belief (Il-a, XVII and XVIII), and there is no allegation that as to those matters the affiant believes it to be true; (2) the verification being by the agent, and not by the party, he has failed to set forth in the affidavit the grounds of his belief as to the three paragraphs in question, which are not stated on knowledge, but on information and belief.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, P. J., Smith, Page and Philbin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.