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Phonoharp Co. v. Stobbe

46 N.Y.S. 678 Court N.Y. City Ct. Decision date 1897-07-15 English

Delivered by McCABTHY, J.

Contents

Majority

p. 678
(20 Misc. Rep. 698.)
PHONOHARP CO. v. STOBBE.
(City Count of New York, General Term.
July 15, 1897.)

Headnote

1. Complaint—Verification.
A verification of a complaint in an action by a corporation, made by an individual, who does not connect himself in any way with the corporation, but describes himself as the plaintiff, is a nullity; and the defendant is entitled to serve an unverified answer to such complaint.
2. Default Judgment—Vacation.
When judgment has been entered by a plaintiff as upon default, notwithstanding the service of an answer which plaintiff was bound to accept, it should be vacated without terms.
The Phonoharp Company brought this action against Frederick Stobbe to recover for goods sold and delivered. The complaint described the plaintiff as a foreign corporation. The verification was in the following form:
City and County of New York—ss.: John L. Pierce, plaintiff in this action, being duly sworn, says that the foregoing complaint is true to his own knowledge. except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. John L. Pierce.
Sworn to before me this sixth day of May, 1897.
Rufus P. Livermore, Notary Public, N. Y. Co.
p. 679
The defendant served an unverified answer, which was returned by plaintiff, who immediately entered judgment. Defendant then moved to compel the acceptance of the answer, and to vacate the judgment. The court granted the motion, on condition that the defendant within one day deposit the amount of the judgment entered, to secure the payment of any judgment which might be rendered against him. Defendant appealed.
Reversed.
Argued before VAN WYCK, C. J., and McCABTHY and SOHUCHMAN, JJ.
Meyer & Josephson, for appellant.
Sidney Osborne, for respondent.

The plaintiff is a foreign corporation, and can only act by its representative or agent. This verification is clearly defective, and may be treated as a nullity. Defendant then had a right to disregard this verification, and serve an unverified answer. This is perfectly proper and regular. Order is reversed, and plaintiff is compelled to accept the defendant’s unverified answer, without conditions. All concur.