ROBINSON v. ECUADOR DEVELOPMENT CO.(Supreme Court, Special Term, Kings County.Headnote
1. Pleading—Verification—Answer by Corporation—Secretary’s Authority.The secretary of a foreign corporation is an agent thereof, in law, within Code Civ. Proc. § 525, providing that a verification of a pleading must be made by a party, except that where the party is a foreign corporation it may be made by the agent of or attorney for such party, and hence such secretary is authorized to verify the answer of his corporation defendant.
2. Same—Affidavit—Contents.
Code Civ. Proc. § 525, provides that the verification of a pleading must be made by a party, except in the case of a domestic corporation, when it must be made by an officer thereof, and in the case of a foreign corporation, when it must be made by the agent or attorney for the party. Section 526 provides that, where the verification is made by a person other than the party, he must set forth the grounds of his belief as to all matters not stated apon his knowledge, and the reason why it is not made by a party. Held, that since, under such sections, an officer of a corporation party is not to be deemed a party, within section 526, where the secretary of a foreign cSrporation defendant verified its answer his affidavit must set forth the grounds of his belief as to all matters not stated on his knowledge, but it was not necessary that it should also contain the reason why it was not made by the party.
Action by Frank Robinson against the Ecuador Development Company. Motion to compel plaintiff to accept service of its answer, which was returned on the ground that it was not properly verified for the defendant, a foreign corporation, in that the defendant’s secretary, who verified the same, had not set forth in his affidavit the grounds of his belief as to matters stated on information and belief in the answer. Motion denied, with leave to serve a properly verified answer within five days, on terms.
George D. Mumford, for plaintiff.
Sherrill & Lockwood, for defendant.
Section 525 of the Code of Civil Procedure provides that the verification of a pleading “must” be made by a “party,” “except” (only what is applicable being here cited) that where the “party” is a" domestic corporation it “must” be made by an officer thereof, and that where a foreign corporation it “may” be made by “the agent of or the attorney for the party.” This terminology shows that an “officer” of a corporation party is not to be deemed a “party.” If otherwise, this distinction between a corporation “party” and its "officer” would be a contradiction of terms. An officer of a foreign corporation is an agent thereof in law, and within the meaning of the Code provision. The secretary of this corporation can therefore verify this answer; but to do so be must comply with section 526, i. e. “set forth in the affidavit the grounds of his belief as to all matters not stated, upon his knowledge.” He need not set forth “the reason why it is not made by the party,” for that would be senseless in the case of a corporation, which cannot take an oath. It would be useless to refer to the contradictory decisions under the former Code of Procedure on this subject of verification of pleadings
The motion is denied; but with leave to the defendant to serve a properly verified answer within five days on payment of $10 costs.