Brotherton v. Downey — 59 How. Pr. 206

Majority

p. 206

SUPREME COURT.

Hugh Brotherton agt. John Downey.

Headnote

Answer — denial of allegation in complaint, how may be made—Code of Civil Procedure,' sections 524, 526.

Denial of allegations in the complaint maybe made upon information and belief.

A party has no right to interpose an unqualified denial in a verification unless it be founded upon personal knowledge, and where he has not personal knowledge, but has knowledge or information sufficient to form a belief, he is not only- permitted but bound, at his peril, to deny upon information and belief.

First Department, General Term, June 1880.

This is an appeal from that part of an order made at a special term of this court held by Mr. justice Daniels, March 8, 1880, which strikes out paragraph 1 of the defendant’s answer as “ irrelevant and redundant.” “ Paragraph 1 ” of the defendant’s answer reads as follows: “ He denies, upon information and belief, each and every allegation contained in the complaint of the plaintiff Hugh Brotherton, excepting so far. as any or either of the allegations therein contained may be hereinafter admitted, denied or otherwise answered.” The order strikes out the whole of the above recited portion of the answer, and this appeal is taken from that part of the order. The complaint and answer are verified. The allegations in the complaint which charge the defendant with speaking false, scandalous and defamatory words are positively denied. An employment by Mr. Astor is admitted for purposes stated in the answer, and, also, the discharge of the plaintiff for disobedience of orders; so that the allegations of the complaint, denied upon information and belief,' are those respecting plaintiff’s business, his reputation as a workman, and the discharge of the plaintiff by reason of the alleged slanders, &c.

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B. F. Fissmn, for appellant.

I. Section 500 of the Code of Civil Procedure (sec. 149 of former Code) remains the same as it was in 1852, and of itself permits a denial upon information and belief. In 1858, in the case of Sackett agt. Havens, it was decided at a special term of the supreme court that a denial might be made upon information and belief (See 7 Abb. P. R., p. 371, note). In Davis agt. Potter ( 4 How., 155 , also 2 Code R., 99) an answer beginning: “ The defendant verily believes and,

therefore, answers and says that the plaintiff is not,” &c., held sufficient. There is nothing in the section which prohibits a denial upon information and belief, whilst the last sentence of the first subdivision of the section compels a denial upon information in cases where the party pleading has knowledge or information sufficient to form a belief. If he is limited in his denial to personal knowledge, and yet has knowledge or information sufficient to form a belief but is not permitted to deny in such form, he must either swear to what he does not personally know or be guilty of false swearing, if he should deny having any knowledge or information sufficient to form a belief or be cut off from a defense.

II. Under the former Code it was not necessary for the party pleading to be so particular for the reason that it was held unnecessary for a party to specify in his pleadings the allegations or denials which were within his personal knowledge and those which were on information and belief. The section of the former Code (sec. 157) read as follows: “ The verification must be to the effect that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief,” &c. The section (sec. 526) of the Code of Civil Procedure reads: “ The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief,” &c.; clearly showing that the party must, in his pleading, state when his allegations are made on information and belief.

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III. Section 524 of the Code of Civil Procedure places the question beyond a doubt. It reads: “ The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party they must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information.”- The result is that: 1. A party who answers of his own personal knowledge must simply deny. 2. A party who answers from hearsay and from facts and circumstances outside of personal knowledge must deny, upon information and belief, or be held to all the liabilities and responsibilities of one answering of his own knowledge. 3. A party who alleges he has not sufficient knowledge or information to form a belief, when he does possess it, is placed in the same category.

IY. The order of the special term so far as appealed from should be reversed, with costs of appeal.

Henry H. Xoramge, for respondent.

I. This action is brought to recover damages for slanderous words uttered by defendant respecting plaintiff and his business, &c. Section 500 of the Code says: “ The answer of the defendant must contain' a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. This is mandatory.” Section 524 in no manner modifies section 500 but refers merely to statements or allegations made by a party in a pleading and not to denials (Lloyd agt. Burns, 38 N. Y. Sup. Ct., 423 ).

II. This being an action of slander the defendant must know, of his own knowledge, whether he uttered the lan

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guage imputed to Mm. The clause in question denies “upon information and belief.” Under any circumstances this is not a good denial in an action of this, character. It has been frequently held that “ as to matters, the truth or falsity of which is within defendant’s own knowledge, a denial on information and belief is not sufficient ” (Edwards agt. Lent, 8 How., 28 ; Crucible Co. agt. Steel Works, 57 Barb., 447 ). The order appealed from should be affirmed, with costs.

The form of denial was proper. If defendant had no personal knowledge upon the subject he could not unqualifiedly deny. If he had knowledge or information sufficient to form a belief he could not deny such knowledge or information. What then was he to do ? Clearly to deny upon information and the belief formed therefrom. Under the Code of Procedure the denial, whether founded upon personal knowledge or upon information and belief, was in form the same, that is, absolute. By the verification the defendant was permitted, in a great measure, to impress upon the pleading the operation of his mind. When the denial was of matter not necessarily within his personal knowledge he could not verify it under the exception of matter stated upon information and belief. Whether such denial was really made upon knowledge or upon information and belief remained undisclosed upon the record. It was known only to the defendant and was- a matter between himself and Ms conscience. This was deemed unsatisfactory and, consequently, the Code of Civil Procedure provided for a distinct disclosure, upon the face of the pleading, of the character of the denial. Section 526 introduces what is, in substance, the old chancery verification (See Rule 18 of the court of chancery). The exception is no longer matter stated upon information and belief but matter stated to be alleged on information and belief. Of course that permits a party to so allege. Nor is this limited to affirmative allegations, for in section 524 we find that denials as well as allegations are referred to. It is,

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therefore, provided that unless the allegations or denials in a verified pleading are “ therein stated to be made upon information and belief of the party they must be regarded for all purposes, including a criminal prosecution, as having been' made upon the knowledge of the person verifying the pleading.” It is quite clear from these provisions that a party has no right to interpose an unqualified ' denial in a verification unless it be founded upon personal knowledge; and that where he has no positive knowledge but has knowledge or information sufficient to form a belief he is not only permitted but bound, at his peril, to deny upon information and belief.

Davis, P. J., and Ingalls, J., concurred.