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Nelson v. Baruch

113 N.Y.S. 449 Court N.Y. Sup. Ct. English

Delivered by BISCHOFE, J.

Contents

Majority

p. 449
(60 Misc. Rep. 357.)
NELSON v. BARUCH.
(Supreme Court, Special Term, New York County.
August, 1908.)

Headnote

Pleading (§ 302*)—Verification—Sufficiency.
Where a pleading is verified by one not a party to the suit, it must show that the affiant derived his information from some person having knowledge of the facts.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 899; Dec. Dig. § 302.*]
Action by John V. Nelson against Bernard M. Baruch. On motion to compel acceptance of the answer.
Denied.
Paul Jones, for plaintiff.
Frederick W. Gatlin, for defendant.

A statement of the “grounds of belief” which the verification is to include, when made by a person other than the party (Code Civ. Proc. § 526), must necessarily be such as would show some actual connection between the information acted upon and the issues to which the verification is directed. The disclosure of the

p. 450
grounds of belief in the verification before me actually amounts to nothing more than the affiant’s statement of his conclusion that the information possessed by him would justify his belief. He states simply: '
“That the sources of deponent’s belief as to the matters not stated upon his knowledge are facts obtained in investigations made for and in behalf of the said defendant and the statements of witnesses in deponent’s possession relating to the matters referred to in the complaint and letters and documents in deponent’s possession relating to said matters.”

So far as I am advised by this affidavit, the person making the verification may have obtained no ■ information whatever from any individual who had actual knowledge of the accident which is the subject of this litigation, or from letters and documents which really afforded reason to take any definite view of the facts. The motion to compel the acceptance of the answer is therefore denied, with leave to the defendant to serve an answer properly verified, upon payment of motion costs within three days.

Ordered accordingly.