Cherry v. Foley — 42 N.Y. St. Rep. 188

Majority

p. 188

James Cherry, Resp’t, v. John Foley, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Pleading—Y edification.

A verification stating that the affiant "knows the foregoing answer to be true ” is insufficient and should be treated as a nullity.

Appeal from a final order in summary proceedings in a district court in the city of Hew York for the first judicial district.

James Murphy, for app’lt; J. Callahan, for resp’t..

The answer denied that there was anything due upon the contract of hiring on a certain day, and also denied that a demand for the rent had been made. This was verified in the following language : “John Foley, sworn, says that he is the defendant herein, and that he knows the foregoing answer to be true.” This the court below held to be an insufficient verification. It has been repeatedly held that where there is nothing to indicate the affiant intends to swear that the contents of a pleading is true to his ,own knowledge, where the allegations are apparently made upon knowledge, that it is insufficient. Williams v. Riel, 11 How., 374 ; 5 Duer, 601 ; Tibballs v. Selfridge, 12 How., 64 ; Van Horne v. Montgomery, 5 id., 238; Sexaner v. Bowen, 3 Daly, 405 .

The case that comes nearest to holding a verification similar to the one under consideration good is The matter of the Application, etc., of Macaulay, 94 N. Y., 574 . In that case the affiant declared that “she knows the contents (of the petition) and that the same are. true; ” but in this case the affiant is very far from affirming that. He merely says that he knows the answer is true. We

p. 189

■do not think he could be convicted of perjury upon such an .affidavit, and that the justice was therefore justified in treating it .as a nullity.

The final order should be affirmed, but without costs.

Bookstaver and Bischoff, JJ., concur.