Williams v. Riel — 12 N.Y. Super. Ct. 601

Majority

p. 601

Williams v. Riel and Granges.

Headnote

An affidavit, verifying a complaint, which merely states that the complaint is true, without stating that it is true to the knowledge of the party making the affidavit, is substantially defective. A defendant, in such a case, may serve an unverified answer. If the plaintiff refuses to receive the answer, and enters up judgment, the latter will be set aside for irregularity.

When the affidavit of verification, annexed to the copy of a complaint, contains neither the name of any person who has sworn to it, nor of any officer before whom it has been sworn to, it may be treated as unverified, and an unverified answer may be served.

At Chambers,

Sept. 27, 1855.

The defendant, Riel, moves to set aside a judgment, which has been entered against him, for irregularity. An unverified answer was served on plaintiff’s attorney, within twenty days after service of the summons; He returned it, with a notice in writing, that he^refused to receive it, because it was not verified. After twenty days from the service of the summons, the plaintiff entered up judgment, as for want of an answer.

p. 602

The defendant insists, that the verification of the complaint was so defective, that he had a right to treat the complaint as an unverified pleading, and to serve an unverified answer. That is the only question that arises on this motion.

The complaint is on a note made by Granger, payable to order of Riel, and by him endorsed to the plaintiff. The allegation, as to the making of the note, its contents, its delivery to the payee, the endorsement and delivery of it by him to the plaintiff, its presentment at maturity for payment, its non-payment, and notice to the endorser, are direct and absolute. Nothing is alleged on information and belief. The verification is in these words:

11 City and County of New York, ss:—Joseph H. Williams, the plaintiff, being duly sworn, says—That he has read the foregoing complaint, and knows the contents thereof, and that the same is true.

“ Sworn to before me, &c."

J. R. Flanagan, for defendant, Riel.

Geo. Stevenson, for plaintiff.

The Code requires that the affidavit, verifying a pleading, shall “ be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters, he believes it to be true."

The affidavit, in this case, does not state that the person making it has any knowledge, whether the complaint is true or not.

The Code is not satisfied with an affidavit which states that a pleading is true, and states only that. It must also state that the person making it knows every averment in it to be true, except such as the pleading itself professes to state on information and belief.

The verification being substantially defective, the next question is, what course may a party, served with such a pleading, pursue in reference to it?

The complaint is perfect, as a pleading,' without being verified. The verification is important, merely with reference to subsequent

p. 603

proceedings. If the complaint is verified, the answer must be, or it may be refused. If no answer is put in, a plaintiff, in some cases, may take judgment for the amount mentioned in the summons ; whereas, if not verified, an assessment and proof of damages would be necessary before judgment could be entered.

It is obvious, therefore, that a defendant must answer a complaint, whether it is verified or not. If not verified, the answer need not be. If a plaintiff wishes to verify his complaint, there is no difficulty in domg it with substantial accuracy. If he chooses to leave it substantially defective, a defendant should be permitted to disregard the verification, and treat it as an unverified pleading.

The following decisions support this view:—Quin v. Tilton, 2 Duer, 648 ; Lane v. Morse, 5 How. Pr. 394 ; Waggoner v. Brown, 8th id. 212; Fitz v. Bigelow, 5th id. 237; Hubbard v. Cutter, 11th id. 149-152.

If this view be correct, the judgment was irregularly entered. An order will be entered, setting it aside, with $5 costs, and declaring the service of the answer to be regular, on defendant’s stipulating not to bring any action by reason of the levying of the execution issued on the judgment.

Footnotes

[1] Note.—In October, 1866, in Hughes, et al, v. Wood, the defendant moved to set aside a judgment, for irregularity. The summons and complaint were served on the 16th of September, and. judgment was entered October I, for want of an answer. An unverified answer had been served, on the 6th of September, and was returned, for the reason that it was not verified. The defendant produced the copy of the complaint, that had been served with the summons. The copy of the verification, annexed to it, did not contain, in any part of it, the name of an affiant, nor the name of any officer before whom it had been sworn to. Boswokth, J.—A defendant is not obliged to verify his answer unless the complaint is duly verified. Whether the latter had been sworn to, or by or before whom, the defendant could only know from the copy of the complaint served on him. That did not notify him that either of the plaintiffs, or any one in their behalf, had sworn to it. Having no such notice, he was right in treating it as unverified, and putting in an unsworn answer. The plaintiff being clearly irregular, I have no right to consider the question, whether the defendant has merits, or his motive is to delay. The plaintiff's attorney having acted in good faith, but erroneously, the judgment ia set aside, with $6 costs.