27 Misc. 496 | N.Y. App. Term. | 1899
This is an action for slander. The complaint contains certain words, stated to have Been spoken of and concerning the plaintiff by the defendant,, and allegéd to he false, defamatory'and" scandalous. The answer contains this allegation only, “ The defendant * * * for an answer to the complaint of the plaintiff herein, on information and belief, denies each and every allegation in said complaint.”
The answer was verified by the defendant’s attorney in the usual form, and contained- .the statement required by subdivision 3 of section 525 of the Code of Civil Procedure, to the effect that the defendant was not within the state, and also alleged the source of the information concerning the matters stated in the answer. A motion was thereupon made at a Special Term of the City Court, that the answer be stricken out- as sham and frivolous, which motion was -granted, with leave to defendant to serve an amended answer upon terms.
It is conceded by the attorney for the respondent, that had the answer been verified by the defendant in person, the objections made by the appellant to its sufficiency would have been well taken, but he claims, that the defendant having been absent from the' county, and the verification having been made by his attorney, these facts are sufficient to take the case out of the well-settled rule, that where the allegations' set forth in a pleading must, from their very nature, be within the knowledge of the defendant, he cannot deny upon information merely, Edwards v. Lent, 8 How. Pr. 28.
This position is untenable. The issues in an action are framed by the pleadings. The verification is no part of a pleading. George v. McAvoy, 6 How. Pr. 200; Fusco v. Adam, 11 N. Y. Supp. 735.
The answer is the pleading of the defendant, and although the attorney, under certain circumstances provided for in section 525 of the Code, may verify the pleading of his client, that section cannot be so construed as to permit an answer to be considered as valid and sufficient, which if it had been verified by the party in person would be imperfect and defective.
In the case at bar, the verification is sufficient, but the answer is insufficient, and the fact that the defendant is absent from the county, and that his attorney has verified it in due form of law, does not cure the defects in the pleading itself.
The order of the General Term must be reversed, and that of the Special Term affirmed, with costs to the appellant.
MacLeau and Leventbitt, JL, concur.
Order of General Term reversed, and order of Special Term affirmed, with costs.