Klenert v. Iba — 39 N.Y.S. 836

Majority

p. 836

(17 Misc. Rep. 69.)

KLENERT v. IBA.

(City Court of New York,

General Term.

May 23, 1896.)

Headnote

Pleading—Unverified Answer.

Where the copy of a complaint served on defendant does not contain-any verification, and defendant is not informed that the complaint was verified, he has the right to presume that it was not verified, and to serve an unverified answer.

Appeal from special term.

Action by William Klenert against Casper Iba. From an order opening a default, plaintiff appeals.

Affirmed.

Argued before MCCARTHY, SCHUCHMAY, and COYLAY, JJ.

Abraham Levy, for appellant.

Daniel Daly, for respondent.

The plaintiff, by the stipulation and order of January 14, 1896, is precluded from raising the objection that, after the service of the amended complaint, a new notice of trial must be-served, on the ground that new issues have been formed, and are then, before the court. In the case at bar the plaintiff had clearly waived the same, as the order provided that the amended complaint was-granted without prejudice to any of the proceedings already had, or to the position of the cause on the day calendar.

Objection is also made to the service of the unverified answer to-the amended complaint. This, we think, is explained by the affidavit of the defendant’s attorney that the copy amended complaint

p. 837

served on Mm did not contain any verification, and that he did not know, and was not informed, that there was such verification attached to the original amended complaint. A paper served as a copy is assumed to be correct. It is true that the defendant’s attorney admitted due and timely service of a copy of the amended complaint, which was verified; yet, in the absence of knowledge on his part of such facts (as sworn to by him), he had a right to, and did, make an offer, which was as follows:

“Sir: As I have already notified you, the copy amended complaint which I received yesterday had no copy of any verification annexed or attached thereto. I therefore believed that the original amended complaint was not verified, and I served an unverified answer thereto, which has been returned to me, and which I herewith return to you, for the reason that same was originally served upon you on the 14th inst., and your return to me thereof was unauthorized. As I am informed that it is claimed that the original amended complaint was verified, I send you a copy thereof which was received by me, so that you may, if you desire, attach a copy of the verification thereto. If you do this, the bearer will serve upon you a verified answer.

“Dated New York, January 15,1896. Yours, etc.,

“Daniel Daly, Deft’s Attorney.

“To Abraham Levy, Esq., Plaintiff’s Attorney.”

The plaintiff did not accept tMs offer, and must, in view of all the circumstances, bear the consequences. The order opening the default was correct and fair and reasonable, and, being within the sound discretion of the court, must be sustained, with leave to comply with said terms by the appellant’s attorney.

Order affirmed, with costs. All concur.