65 N.Y.S. 427 | N.Y. Sup. Ct. | 1900
Section 525 of the Code of Civil Procedure provides that the verification of a pleading “ must ” be made by a “ party ”, “ except ” (only what is applicable being here cited) that where the “ party ” is a domestic corporation it “ must ” be made by an officer thereof, and that where a foreign corporation it “ may ” be made by “ the agent of or the attorney for the party ”. This terminology shows that an “ officer ” of a corporation party is not to be deemed a “party”. If otherwise, this distinction between a corporation “ party ” and its “ officer ” would be a contradiction of terms. An officer of a foreign corporation is an agent thereof in law, and within the meaning of the Code provision. The secretary of this corporation can therefore verify this answer; but to do so he must comply with section 526, i. e. “ set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge.” He need not set forth “ the reason why it is not made by the party”, for that would be senseless in the case of a corporation, which cannot take an oath. It would be useless to refer to the contradictory decisions under the former Code of Procedure on this subject of verification of pleadings.
The motion is denied; but with leave to the defendant to serve a properly verified answer within five days on payment of $10 costs.