13 How. Pr. 225 | N.Y. Sup. Ct. | 1856
This was a proper case for verifying the answer by the attorney. The defendant did not reside in the same county with his attorney. The verification itself is in proper form. The attorney swears that the answer is true of his own knowledge, except such matters as are stated on information and belief—and, as to those matters, he believes it to be true. But one other thing remained to make the verification complete. It is required that when a 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. It is insisted that this requirement has not been complied with. The allegations in the answer are made, not positively, but upon information and belief. In respect to such allegations, the attorney, in making his verification, was required to state, that he believed them to be true, and also the “ grounds of his belief on the subject:” in other words, why he believed “the allegations to be true.” To meet this requirement, he has stated, that his knowledge of all the material allegations in the answer is founded on communications made to him by the defendant’s son. The language is inappropriate. The attorney had no knowledge at all on the subject. He did not profess or need to have. What he obviously meant to say -was, that the information upon which he founded his belief that the allegations of the answer were true, was derived from the defendant’s son. If this had been stated in the verification, I should have deemed it sufficient; and perhaps the language as it stands,
Nor do I think the plaintiff’s practice is to be commended. I will not here say that a motion like this, to set aside an answer for want of a sufficient verification, is not proper. An unverified answer, where a verification is required, is an unauthorized pleading, and, as such, perhaps it may be set aside. But the better practice in such cases is, where the verification is so clearly defective that the attorney is willing to take the risk of treating it as insufficient, promptly to return the answer, with the reasons for not receiving it. If it be doubtful whether the verification is sufficient or not, it is better, generally, to make no question about it, and treat it as sufficient.
Upon the whole, I think I shall best dispose of this motion by denying it, without costs to either party.