Southworth v. Curtis

6 How. Pr. 271 | N.Y. Sup. Ct. | 1851

Hubbard, Justice

The question on this motion is as to the sufficiency of the affidavit verifying the complaint. The particular objection is that under section 157 of the Code, it should have stated that the complaint was true to the knowledge of the party deposing. It is, however, to be observed that the Code does not prescribe the form of the affidavit, but requires when made by a party to the action, that it shall be to the effect that the complaint is true to his- knowledge, except as to matters stated on information or belief, and as to those he believes it to be true.

I regard this affidavit as a sufficient verification. The complaint contains positive averments of a cause of action; nothing is alleged on information, and hence the affidavit verifying its truth, implies that it is to the knowledge of the deponent. That this is its legal effect, is apparent from the consideration that if untrue or false, or in other words, if the party deposing had no knowledge whatever of the truth of the complaint, he might be indicted for perjury.

Upon trial it is always , understood, when a witness swears to the existence of a fact material to the controversy, he swears from his personal knowledge, although he does not in words so state; and if his testimony proves to be false, or he had no knowledge of the fact to which he affirmed, an indictment would lie. The law regards the substance, the intent and legal effect of the oath, rather than its phraseology, on the question of perjury.

In this case the plain import and intent of the affidavit is to verify absolutely, and upon sufficient knowledge, the truth of the complaint. If the words “ to deponent’s knowledge,” had been added, its legal effect would have been precisely the same.

The Codes of 1849 and 1851 are not materially different on the subject of verifying the complaint. The latter in addition to the former, requires that in a case of several plaintiffs united in interest, the affidavit must be made by some one acquainted with the facts.

It was supposed that this affidavit was defective in not stating that the deposing party was acquainted with the facts. But this objection has already been answered in the construction given to the affidavit, nor do I think taking this portion of the section with the preceding, that it shows that the legislature in amending section 157, intended that the affidavit should specifically state that the party making it, when one of several plaintiffs united in interest, was acquainted with the facts. It seems to me clearly where a party swears positively that a pleading is true, he must in law be understood as swearing that he knows it to be so, and if untrue, or he does not know it to be true, he must abide the consequences of wilful and corrupt perjury.

This affidavit I therefore deem sufficient; and as the complaint was properly verified, no notice of assessment before the clerk was .essential, and the motion must be denied, with $10 costs of opposing.