Beckley v. Chamberlain — 47 N.Y. St. Rep. 56

Majority

p. 56

Albert J. Beckley, Resp’t, v. Winfield S. Chamberlain, App’lt.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Pleading—Verification op answer—Fraud.

An answer in an action to recover money paid on a sale induced by false representations must be verified. The privilege of serving an unverified o answer where the party pleading would be privileged from testifying as a witness concerning an allegation in the pleading, given by § 523, is expressly taken away by § 529 in actions for fraud.

Appeal from order denying motion to compel plaintiff to receive an unverified answer. 0 -

James P. Dill, for app’lt; L. R. Beckley, for resp’t.

—The complaint in this action shows that it is-brought to recover the consideration. paid for certain shares of stock sold by the defendant to the plaintiff, which it is alleged

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the plaintiff was induced to purchase by reason of certain false and fraudulent representations, which are fully set forth in the ■complaint. The defendant served thereto an unverified answer, which was returned with a notice that it did not comply with the provisions of the Code of Civil Procedure, §§ 523 and 529, which refer to the verification of a pleading. A motion subsequently made by the defendant to compel plaintiff to receive the unverified answer was denied upon the ground that the answer to be served must be verified under § 529 of the Code.

We have been referred by the appellants to the case of Frist v. Climm, 6 Civ. Pro., 30, as directly applying to the question here presented, and in which it was held that the defendant had the right in such a case to serve an unverified answer. We cannot, however, after an'examination of §§ 523 and 529, of the Code, agree with the conclusion reached in that case. The former section (523) provides'^ when a pleading must be verified; and in regard to when such verification may be omitted thus states the rule: “ In a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading."

This section contains the general rule, and was undoubtedly intended as extending the privilege to parties of omitting to verify their pleading in cases where the same would have a tendency to expose them to a penal liability or to a criminal charge. But it will be noticed that an exception has been made with respect to cases wherein a verification “ is otherwise specially prescribed by law.” Such an exception to the general rule thus laid down by § 523 is to be found in the cases referred to in § 529, wherein the defendant is not excused from verifying his answer. In addition to actions relating to confessed' judgments, fraudulent conveyances, and actions affecting specific property, the last paragraph of § 529 states that a defendant is not excused from verifying his answer to a complaint charging him “ with any fraud whatever affecting a right or the property of another.” This paragraph, being disjunctive, is not related necessarily with the cases enumerated in the preceding paragraphs of the,section, and its language is general, applying to any case of fraud whatever affecting a right or the property of another. So far, therefore, as an exemption is provided by § 523 in cases ¡of fraud, § 529 must be regarded as qualifying, and as constituting the exception which is otherwise specially prescribed for, depriving a defendant of the privilege extended by that section of not being compelled in certain actions to verify his answer.

We think that the purpose of this section (529) was to meet a •case like the present, which, were it not for this provision of law, would enable a defendant in a case based upon his fraudulent acts to serve an unverified answer. We do not think, therefore, as said in Frist v. Climm, supra, that § 529 is limited simply to fraudulent transfers of property, but, on the contrary, that effect must be given to every provision of that section ; and it will be

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entirely meaningless in its last sentence unless the interpretation? now put upon it is given to the words “ or with any fraud whatever affecting a right or the property of another.” And we are-also of opinion that this construction given to § 529 does not entirely destroy the privilege provided for by § 523, but that so far as § 523 extends the privilege of serving an unverified answer to cases' where the party pleading would be privileged from testifying as a witness concerning an allegation contained in a pleading, such privilege was expressly taken away in actions of fraud. This would still leave the privilege provided for by § 523 to extend to-all cases covered by such section excepting those which are otherwise specially provided for by § 529, which, as we have seen, covers a case such as the present, which is an action for deceit for false representations in the sale of stock.

We are of opinion, therefore, that the order appealed from-should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.