151 N.Y.S. 361 | N.Y. App. Div. | 1915
The action is' in substance one for fraud and not for conspiracy. (Green v. Davies, 182 N. Y. 499.) Section 529 of the Code of Civil Procedure, which provides that the 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,” would, if valid, require this answer to be verified. Section 523 of the Code excuses a verification where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, and provides: “A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.” The provision quoted, however, does not grant full immunity, and, therefore, violates defendant’s constitutional rights. (Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Taylor v. Forbes, 143 N. Y. 219; People ex rel. Lewisohn v. O’Brien, 176 id. 253.) The language of the statute considered in the Counselman and Lewisohn cases is as broad or broader than in the section of the Code under consideration. We, therefore, think that the provisions of section 529, above quoted, are not valid where the answer is to a charge of a criminal offense. The defendant need not, therefore, verify his answer.
The order should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.