Duparquet v. Fairfield — 18 N.Y. St. Rep. 8

Majority

p. 8

Adele H. Duparquet and Pieri Huot, App’lts, v. Charles Fairfield, Resp’t.

(Supreme Court, General Term, Third Department,

Filed September, 1888.)

Headnote

Complaint—Sufficiency of verification by attorney.

A verification to a complaint by an attorney is sufficient where he states his belief in those points of the complaint which are alleged on information and belief, and states that his information came from letters of the plaintiff and conversations with the defendant. Such letters and conversations are, therefore, grounds of his belief, for he says his belief rests on information, and he gives the sources of information. It is not necessary to specify in detail the sources of his information.

Appeal from a judgment of the Albany county court, rendered January 21, 1888, reversing a judgment recovered in the city court of Albany, November 7, 1887, in favor of plaintiffs, for $122.29. The action was brought in the city . court of Albany to recover for goods sold and delivered by

p. 9

the plaintiffs as co-partners. A summons, with a verified complaint, was served on defendant November 1, 1887.

On November 7, 1887, the return day named in the summons, plaintiffs duly appeared in court, defendant did not appear, thereupon the city court, upon filing the summons, verified complaint and proof of service thereof on the defendant, rendered judgment in favor of plaintiffs and against defendant for damages and costs, $122.29. The defendant appealed to the county court of Albany county. The judgment of the city court of Albany was reversed, with costs, and judgment of reversal and costs, amounting to $37.33, was entered in favor of defendant against plaintiffs. The plaintiffs bring this appeal from said judgment of the county court, reversing the judgment of the city court of Albany, and for costs.

The following is the verification to the complaint:

State of New York, ')

City and County of Albany, j ss‘''

Nathaniel B. Spalding, being duly sworn, says that he resides in the city and county of Albany, and that he is the attorney for the plaintiffs in the above-entitled action, and that the foregoing complaint is true of his knowledge, except as to those matters stated to be alleged upon information and belief, and that as to those matters he believes it to be true.

Deponent further says that the reason this affidavit of verification is not made by said plaintiffs is that neither of them are, or reside within the county of Albany, which is the county where deponent resides.

Deponent further says that his information as to all matters stated upon information and belief is derived from the admissions of the defendant to this deponent, and from letters received from said plaintiffs concerning the matters set forth in said complaint.

NATHANIEL B. SPALDING.

Subscribed and sworn to before me, )

this 1st day of November, 1887. j

George Tiffany,

Commissioner of Deeds, Albany Co., N. Y.

George H. Stevens, for app’lts; W. C. McHarg, for resp’t.

A plaintiff may allege all his complaint on information and belief and then may verify it. In that case there is really no fact positively sworn to.

This shows that the verification of a complaint (simply as a complaint) is quite different from affidavits upon which orders of arrest and the like can be granted. In the latter

p. 10

there must be positive statement of facts from which the court can form its opinion.

But in the case of a complaint no action can be had against the defendant until he has been served with a copy and has had an opportunity to answer. And when he answers he does not answer any matters stated in the verification but only the allegations of the complaint itself.

Now in this case the plaintiff’s attorney has stated his belief in those points of the complaint which are alleged on information and belief. He has stated that his information came from letters of the plaintiff and conversations with the defendant. Such letters and conversations are therefore the grounds of his belief. For he says his belief rests on information, and he gives the source of his information. Nor has it ever been thought necessary to specify in detail the information. It would be a useless labor for the attorney in such a case to give a copy of the letters or a full narration of the conversations.

The defendant cannot suffer. He has only to deny the complaint, if it be untrue. If it is true, then he should make no denial.

The verification _ only requires him to verify his answer. If he cannot do this, he ought not to defend.

We are of opinion that the verification of the complaint, though not quite formal, was practically sufficient.

The judgment of the county court is reversed and that of the city court affirmed, with costs.

Lardon and Ingalls, JJ., concur.