Tallmadge v. Lounsbury

Headnote

Associations—Actions—Verification of Pleadings.

Code Civil Proc. If. Y. § 525, provides that a pleading must be verified “by the affidavit of the party, * * * except as follows: (1) Where the party is a domestic corporation, the verification must be made by an officer thereof;” and, (3) “where all the material allegations of the pleading are within the personal knowledge of the agent or attorney, * * * the verification may be made by the agent of or the attorney for the party. ” Reid that, where a voluntary association is sued by its treasurer, (Code Civil Proc. If. Y. § 1919,) the answer cannot be verified by any other officer of the association, except as the agent or attorney of the treasurer.

Action by Daniel W. Tallmadge and George G. Martin against Phineas C. Lounsbury, as treasurer of the Republican League of the United States, a voluntary association. The answer was not verified by the treasurer, nor by any one for him, but by the secretary of said association, and on that ground plaintiffs returned it. Defendant then moved to compel plaintiffs to accept the answer. Plaintiffs relied on Code Civil Proc. H. Y. §§ 524-526, which are as follows:

“Sec. 524. Form and Construction of Certain Allegations and Denials in Verified Pleading. 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.

“Sec. 525. Verification, How and by Whom Made. [Amended by chapter 542 of 1879.] The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: (1) Where a party is a domestic corporation, the verification must be made by an officer thereof. (2) Where the people of the state are, or a public officer in their behalf is, the party, the verification may be made by any person acquainted with the facts. (3) Where the party is a foreign corporation, or where the party is not within the county where the attorney resides; or, if the latter is not a resident of the state, the county where he has his office, and. capable of making the affidavit; or if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney,—in either case the verification may be made by the agent of or the attorney for the party.

“Sec. 526. Form of Affidavit of Verification. 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, 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. ”

Section 1919 provides that actions by or against unincorporated associations ' shall be in the name of the president or treasurer of the association.