Laimbeer v. Allen — 4 N.Y. Super. Ct. 648

Majority

p. 648

Laimbeer v. Allen and Whittlesey.

Headnote

The party verifying a pleading under the code, must subscribe his name to such pleading or to the affidavit appended.

An answer, regular in all respects except in the omission of the signature of the party to its verification, should not be disregarded, until notice is given of the defect and an opportunity afforded to correct it.

June 18, 1849.

Motion to set aside a default and judgment. The defendant in time, served an answer, signed by their attorneys, and certified by a commissioner to have been verified before him by both defendants. Neither of toem, however, appeared to have signed the answer or the affidavit which the commissioner certified. The plaintiff’s attorney, treating the answer as a nullity, and without communicating with the attorneys for the defendants, entered a default and perfected judgment against the latter.

T. C. T. Buckley, for the motion,

cited 3 J. R. 540; 25 Wen. 699; 3 Hill, 476 .

J. J Radcliffe, for the plaintiff,

cited Amended Code, § 157 ; 1 Barb. Ch. Pr. 155, 603, 604; 1 Code Reporter, 63, 114; 2 Moulton’s Ch. Pr. 27 to 29.

The answer was unquestionably defective, in the omission of the signatures of the parties verifying it. The practice has long been settled and uniform, that an affidavit should be signed by the deponent. A deposition, taken down by the officer, stands upon a different ground. (Clark v. Sawyer, 3 Sand. Ch. R. 352,414.) But the plaintiff’s attorney, instead of entering a default, should -have notified the opposing attorneys of the defect, and if they did not promptly obviate it, he might then have treated it as a nullity, and proceeded to enter his judgment. We find this practice was established several years since, in the supreme court, and it is so fair and reasonable that we adopt it without hesitation.

Motion granted.