People ex rel. Smith v. Allen

14 How. Pr. 334 | N.Y. Sup. Ct. | 1856

Paige, Justice.

The provisions in relation to the verification of a pleading are to be found in § 157 of the. Code. In the more recent decisions it has been held that a pleading may in all cases be verified by the attorney, where the party is not within the county where the attorney resides, or is incapable of making the affidavit; and that it may also be verified by the attorney, whether the party is within the county or not, when the action or defence is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the attorney, or when all the material allegations of the pleading are within the personal knowledge of the attorney'. This construction was given to this section of the Code by Justice Parker in Stannard agt. Mattice, (7 How. 4;) by Justice Barculo in Roscoe agt. Mason, (7 How. 121 ;) by Judge Duer in Le Fevre agt. Latson, (5 Sand. R. 650 ;) and by Justice Harris in Treadwell agt. Fassett, (10 How. 184.) Justice Hand gave a different construction to the 157th section in Hunt agt. Meacham, (6 How. 400.)

I am, on reflection, inclined to concur in the construction given to this section by Justices Parker, Barculo and Harris, and by Judge Duer, although the language of the section would seem, on the first view, not to justify it. The construction in which I concur is called for by the apparent intention of the legislature ; and I think it is necessary to give effect to all parts of the section. But the 157th section requires, when a pleading is verified by any other person than the party, that the person making the verification shall set forth, in the affidavit, his knowledge, or the grounds of his belief on the subject; This provision of the section is not sufficiently complied with in the affidavit of the attorney of the relator. The attorney should have set forth in his affidavit, specifically, his knowledge of each of the facts stated in the complaint, or the grounds of his belief on the subject. The usual affidavit, that the pleading is true, &c., in the language of the Code, although no allegation is stated in the pleading on information and belief, is not, in my judgment, a compliance with the 157th section. The person making the verification (when not the party) should specifically set forth therein his knowledge of each material fact stated in the pleading verified, or the grounds of his belief of the truth of. the allegation of the same, and so far as he speaks of his own knowledge, he must state what knowledge he has; and when he speaks of his belief, he must state the sources of his information, as well as the grounds of his belief. (11 How. Pr. R. 149; 5 id. 237; 10 id. 184.) This was not done by the plaintiffs’ attorney in this case. The affidavit of verification of the complaint being defective, the defendants Russell and Eastwood had a right to put in their answer without a verification. (8 How. 212.) The judgment entered against them must, therefore, be set aside, and the answer served by them must stand as the answer to the complaint.

As there is some reason for doubt in respect to the extent of the requirements of the 157th section of the Code, I will grant the motion to set aside the judgment without costs.

The affidavit of the defendant Eastwood, shows that the action should have been brought upon the second bond given by the sheriff, and not upon the one on which the action was actually brought. The defendants Russell and Eastwood are therefore, at all events, entitled to have the judgment set' aside on the payment of costs.