Levi v. Jakeways

4 How. Pr. 126 | N.Y. Sup. Ct. | 1849

Gridley, Justice.

All the pleadings in this cause have been put in since the amended code took effect as a law. By the 157th section of that act, it is provided that "when AST pleading in a case shall he verified by affidavit, all subsequent pleadings (except demurrers) shall he verified also.” It is argued that this rule only applies to a case in which the complaint is verified. I do not think so. The language of the enactment will not admit of that construction; nor does the reason on which the rule is founded require it. The defence may consist of entirely new matter ; and if this be verified, there is the same propriety in requiring the plaintiff to admit or deny it on oath, as there is in requiring a defendant to admit or deny a sworn complaint.

The reply, however, was not returned to the plaintiff; and it would be very harsh to allow the defendant to treat it as a nullity, and have judgment, as he might do, under the 154th section, if no reply had been put in. It is possible that I should be justified in denying the motion altogether, under the decisions in 25th Wendell, 699, and 3d Howard’s Sp. T. Rep. 64. But as it may be important to the defendant that he should not be deprived of the right which the code gave him to a reply made under the sanction of an oath, the order will direct that the reply be set aside, and that the plaintiff have 15 days within which to serve a reply duly verified. Under the circumstances, the plaintiff is not to be charged with any costs of the motion.