11 How. Pr. 374 | The Superior Court of New York City | 1855
The Code requires that the affidavit, verifying a pleading, shall “ he to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true.”
The affidavit in this case does not state that the person making it has any knowledge, whether the complaint is true or not.
The Code is not satisfied with an affidavit which states that a pleading is true, and states only that. It must also state that the person making it knows every averment in it to be true, except such as the pleading itself professes to state on information and belief.
The complaint is perfect as a pleading without being verified. The verification is important, merely with reference to subsequent proceedings. If the complaint is verified, the answer " must be, or it may be refused. If .no answer is put in, a plaintiff in some cases may take judgment for the amount mentioned in the summons; whereas, if not verified, "an assessment and proof of damages would be necessary before judgment could be entered.
It is obvious, therefore, that a defendant must answer a .complaint, whether it is verified or not. If not verified, the answer need not be. If a plaintiff wishes to verify his complaint, there is no difficulty in doing it with substantial accuracy. If he chooses to leave it substantially defective, a defendant should be permitted to disregard the verification, and treat it as an unverified pleading.
The following decisions support this view:—Lane agt. Morse, 5 How. Pr. 394; Waggoner agt. Brown, 8th id. 212; Fitz agt. Bigelow, 5th id. 237; Hubbard agt. Cutler, 11th id. 149-152.
If this view be correct, the judgment was irregularly entered. An order will be entered setting it aside, with $5 costs, and declaring the service of the answer to be regular, on defendant’s stipulating not to bring any action by reason of the levying of the execution issued on the judgment.