Morris v. Fowler

90 N.Y.S. 918 | N.Y. App. Div. | 1904

Lead Opinion

Patterson, J.:

This is a motion to compel the plaintiffs to accept an unverified answer and to set aside any judgment entered on default of service of an answer. The action is for goods sold and delivered and the allegations are positive, and none on information and belief. There is an attempted verification of the complaint made by Mr. Byrne, the attorney for the plaintiffs, and it is peculiar in form. He says that he resides in the borough of Manhattan and that lie is the the plaintiffs’ attorney; “ that he has read the foregoing complaint, and that the same is true of his own knowledge and belief, except as to the matters therein alleged on information and belief, and as to these matters he believes it to be true.” If that were all, it would be a good verification (Kieley v. Barron, 87 App. Div. 317), but the affiant goes on further to say “ that the grounds of his belief and the source of his information, as to the matters therein not stated on his knowledge, are as follows: * * * He has interviewed the defendant and has received letters from the defendant acknowledging his indebtedness to the plaintiffs and promising to pay same. Deponent further says that the reason this verification is not made by the plaintiffs or either of them, is that the plaintiffs are without the State of Hew York, and have no personal knowledge of the facts herein stated.” This is not a good verification, for the reason stated in Moran v. Helf (52 App. Div. 481), viz.: That from the statements in the affidavit of verification, it appears that the attorney had no personal knowledge of the facts stated in the complaint. The defendant served an unverified answer which was returned. He insists that he was entitled to put in such an answer, and in view of what was held in the case last cited, 1ns contention is right. It was there decided that an unverified answer-may properly he served to a complaint which is verified as the one in the case at bar is.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

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Concurrence Opinion

Laughlin, J. (concurring):

I concur in the views expressed by Mr. Justice Patterson, but wish to make some further observations. The provisions of section 526 of .the Code of Civil Procedure prescribing the form of verification of pleadings are plain and may be readily complied with in any case. There is no excuse for departing from the form therein prescribed and thus giving rise to technical questions as to whether such departure is or is not material. There is an inexcusable departure from the proper form of verification of the complaint in two respects. In the first part of the verification the affiant, instead of stating that the facts alleged in the complaint are true to his own knowledge as required, states instead that they are true to his own “ knowledge and belief.” With respect to the positive allegations of the complaint, the belief of the party who is verifying the pleading is utterly immaterial, and it was evidently inserted in this case with the idea that it qualified the positive statement that the allegations were true of his own knowledge. Doubtless it did not have that effect, but it was misleading and should not be there. Moreover, instead of following the requirements of section 526 of the Code of Civil Procedure in the verification concerning the allegations not made positively and stating “ except as to the matters therein stated to be alleged on information and belief ” — this verification is “ except as to the matters therein alleged on information and belief.” In view of the provisions of section 524 of the Code of Civil Procedure it may well be that since none of the allegations of the complaint are stated to be made on information and belief they must all be deemed to have been made on the personal knowledge of the affiant, yet that does not excuse this departure from the prescribed form of verification. It is impossible to determine from the verification which allegations of this complaint were intended to he made on the personal knowledge of the affiant, who verified the pleading and which were intended to be alleged on information and belief. If the simple form clearly prescribed by section 526 of the Code of Civil Procedure had been followed no such doubt could arise. It would then clearly appear that every allegation not expressly stated in the complaint to be made upon information and belief was upon the personal knowledge of the affiant. Substantial compliance with the prescribed forms should be enforced to the end that the time of the courts may be reserved for the decision of questions affecting the merits of the litigation.

Van Brunt, P. J., and Patterson, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.