McMullen v. Peart — 6 N.Y.S. 354

Majority

p. 354

McMullen v. Peart.

(Supreme Court, General Term, Fifth Department.

April 12, 1889.)

Headnote

Pleading—Verification—Waiver of Objections.

Defendant’s counsel contended that he had a right to interpose an answer without verification, and he was asked by the court if the complaint was verified, and he replied that it was, whereupon the court ruled that the answer must also be verified. Held, that such answer was a waiver of the right to take advantage of an apparently clerical error in the date of the'jurat of the complaint.

Appeal from Monroe county court.

Action by P. Allen McMullen against Joseph B. Peart, for goods sold and delivered. The action was commenced in tho municipal court of the city of Rochester, where plaintiff had judgment for want of an answer, which judgment was affirmed on appeal to the county court. Defendant now appeals to this court.

Waldo G. Morse, for appellant. J. D. Lynn, for respondent.

The complaint, which was filed in the municipal court, was for the recovery, on book-account, for goods sold and delivered by the respondent to the appellant. By the statute (Laws 1876, c. 196, § 9; and chapter 192, § 7, Laws 1877) a verified complaint may be served with the summons, in the municipal court of the city of Rochester, the same as in the supreme court, and, if so done, judgment may be taken by default, without further proof of the cause of action. The summons and a copy of the verified complaint were served on the defendant January 17, 1888. On the return-day—January 23d—the defendant appeared by attorney, but refused to answer otherwise than orally, and without oath. The offer thus to answer was rejected by the court. The claim now made by the appellant seems to be based upon the assertion that the summons was issued on the 13th day of January, 1888; that consequently there could have been no verification’of the complaint on the 16th, because the summons could not have been issued until the complaint was actually filed. This point, however, is not tenable, for it is only by a process of reasoning, and not by establishing it as a fact, that the complaint appears not to have been verified at the time of the issuing of the summons. An erroneous date in the jurat, as this one probably was, cannot relieve the defendant, when sued for money only, in the municipal court, from'answering under oath. Moreover, it appears in the record before us ■that in the municipal court no claim was made, but that the complaint was properly verified, for in answer to a question propounded by the judge, the ■counsel for the defendant is shown to have answered that the complaint was verified, whereupon a ruling was promptly made that the answer must also be verified. This response to the question of the judge, which was made by the attorney, was clearly a waiver of any right to take advantage of what appears to be purely a clerical error in the proceedings. The judgment of the county court should be affirmed, with costs. All concur.