194 Misc. 13 | New Rochelle City Court | 1948
In this action brought against a defendant husband for alleged necessaries furnished his wife, the plaintiff has entered judgment by default. The defendant moves to vacate the judgment claiming that an answer properly verified was served in due time. A purported verified answer was served in due time, but was returned by the attorneys for the plaintiff to the.attorneys for the defendant with'notice “ that the plaintiff elects to treat your answer herein, which is hereto annexed, as a nullity on the ground that it is not verified.”
The plaintiff opposes the motion, contending that its notice of rejection was proper in form and timely and justified and further urges that if this be so, then the motion to open the default is addressed to the court’s discretion and is ineffective for want of a proposed pleading or an affidavit of merits.
The fact is that an answer was signed by the defendant and a notary undertook to sign what was intended to be a verification, but his signature was placed so out of contact with the signature as to make it appear that the answer is improperly verified.
It has long since been held that the omission of a venue or the statement of an improper venue in an affidavit does not invalidate the oath or render the affidavit a nullity when it is shown by proof aliunde that it was duly administered by a proper officer within the jurisdiction. (Fisher v. Bloomberg, 74 App. Div. 368.) And, where an affidavit was actually sworn to before the proper officer, but the officer administering the oath failed to certify the affidavit or to sign his name thereto, such omission does not render the affidavit fatally defective, but it may be corrected nunc pro tune. (1 Carmody on New York Pleading and Practice, § 282, citing Sage v. Stafford, 42 App. Div. 449; Fawcett v. Vary, 59 N. Y. 597.)
In any event, the advent of the Civil Practice Act was intended to and does do away with these technical problems that have no relation to the merits of the litigation, and, in this court’s judgment, any irregularity that exists in the defendant’s answer as served may be disregarded under section 105 of the Civil Practice Act. (Also, see People ex rel. Fifth Ave. & 37th St. Corp. v. Miller, 261 App. Div. 550.)
Arriving at this conclusion, as the court must, the defendant’s motion is one made as a matter of right, because no default in fact results, and therefore there is no occasion for an affidavit of merits.
The language contained in the moving papers seeking to characterize the conduct of the plaintiff’s attorney in entering a
The motion to open the default to vacate the judgment entered herein is accordingly granted, without terms. The plaintiff, however, is entitled to a prompt trial of the issues on the merits and the matter is accordingly set for calendar purposes for December 24, 3.948, for the purpose of fixing a trial date.