Stannard v. Mattice

7 How. Pr. 4 | N.Y. Sup. Ct. | 1852

Parker, Justice.

The first point is not tenable. Though the summons was issued against both Henry Mattice and Adam Mattice, it was served only on the latter. It appears from the papers that the defendants named in the summons are severally as well as jointly liable; and in such case the plaintiff is at liberty to proceed against the defendant served, in the same manner as if he were the only defendant (Code, § 136, sub. 2). It is only where the defendants are jointly and not also severally liable, that judgment is necessarily to be entered against all the defendants (§ 136, sub. 1). The plaintiff gave notice with his complaint, at the time of service, of the reason why he proceeded against Adam Mattice alone.

The second ground for this motion is equally untenable. If several causes of action have been improperly united, the remedy is by demurrer (Code, § 144, sub. 5).

The third objection is, that the verification is irregular in being made by the attorney. Under this point, it is not claimed that the verification may not be made by the attorney, but that the verification being made by the attorney is insufficient Without enquiring whether a complaint can be set aside for such a reason, and whether .the defendant ought not, in such case, to treat the complaint as one not verified, I shall consider the question which the counsel preferred to submit, viz: the insufficiency of the verification.

Section 157 of the Code provides that the verification shall be made by the party, if such party be within the county where the attorney resides, and capable of making the affidavit. In no other case does the statute require the verification to be made by the party. But the same section further provides that the affidavit may also be made by the agent or attorney, if the action or fence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney; or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney. In either of these two cases last provided for, the affidavit may be made by the agent or attorney, wherever the party may be; that is to say, even though the party may be within the county where the attorney resides. It is contended by the defendant’s counsel that unless the action be founded on a written instrument in possession of the attorney, the attorney can in no case verify the complaint, without swearing that all the material allegations are within his personal knowledge. In other words, that an attorney can verify no allegation on his belief, as a party may do. That this is a wrong construction, is evident from the next clause of the same section, which provides that “ where the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party.” It is evident, therefore, that there may be cases in which an attorney may verify allegations on his belief.

Although the best form of expression to indicate the intentions of the legislature is not employed in the section in question, yet, I think, the intention can not well be mistaken, if effect is given, as it Ought to be, to all parts of the section. That intention is, that the pleading shall be verified by the party, if within the county where the attorney resides. If not, it may be verified by the attorney. It may also be verified by the attorney whether the party is within the county or not, when it rests on a written instrument in the possession of the attorney, or when the attorney has personal knowledge of all the material allegations of the pleading; and in all cases; the attorney must state in his affidavit of verification, his knowledge or the grounds of his belief, and the reason why it is not made by the party.

Reference has been made to Hunt vs. Meacham (6 How. Pr. R. 400), to show that in all cases not founded on a written instrument, the attorney must have personal knowledge of all the material allegations of the pleading. It does not appear by that case where the attorney resided; and though the language of the decision is broad enough to cover the position taken by the defendant’s counsel, it must be construed with reference to the facts before the court. I do not think the learned justice regarded that case as presenting the same question involved here.

The motion must be denied, but without costs.