American Audit Co. v. Industrial Federation of America

84 A.D. 304, 82 N.Y.S. 642

Opinion

McLaughlin, J.:

This action was commenced by the service of a summons and complaint, and before the time to answer had expired the following answer was duly served :

“'Supreme' Court, County of New York :

“ The above-named defendant, by L. M. Berkeley, its attorney, answering the complaint herein, denies having any knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs of the complaint designated third, fourth and fifth.

“ Wherefore the said defendant demands judgment that the complaint be dismissed, with costs.

11L. M. BERKELEY,

“ Attorney for Defendant,

“ Office and Post-office Address,

“ 220 Broadway,

“ Borough of Manhattan,

“ City of New York.

“ State and County of New York, ss. :

“ L. M. Berkeley, being duly sworn, says that he is the attorney for the above-named defendant; that he has read the foregoing answer; that the same is true to the knowledge of the deponent, except as to those matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true, and that the reason why this verification is not made by the defendant is that the said defendant is a foreign corporation.

“L. M. BERKELEY.

“ Sworn to before me this 20th day of March, 1903.

“ Frank L. Holt,

“ Notary Public, N. Y. Go.”

The plaintiff’s" attorney, upon the theory that the answer was not properly verified, elected to treat it as a nullity, gave notice to that effect and entered judgment as by default. The defendant then moved to vacate the judgment, which motion was denied, and it has appealed. . •

The answer was good in form and substance. It purported to be made by the defendant.' (Code Civ. Proc. § 524.) It denied any knowledge or information sufficient to form a belief as to the truth of certain allegations of the complaint. (Id. § 500.) The verification was also good. It was verified by the attorney and he had 'a right to verify it, the defendant being a foreign corporation. (Id. .§ 525, subd. 3.) It is claimed that the verification is defective.in that the attorney did not set forth the grounds of his belief, but the allegations of the answer are not on .information and belief. On the contrary, the defendant denies any knowledge or information sufficient to form a belief. It is difficult to see where one has no knowledge' or information whatever on a subject how he can state the grounds of his belief. The answer is in proper form to raise an issue. The verification is in proper form and is verified by a proper person. This being so, it necessarily follows that the plaintiff’s attorney had no right to disregard it.

But it is suggested that the motion was properly denied — and this seems to have been the view of the learned justice sitting at Special Term •—• because it did not serve with the moving papers an affidavit of merits. The answer was made a part of the moving papers, and besides there was no necessity for serving an affidavit of merits. The motion to vacate was made upon the ground that the plaintiff had returned an answer proper in form, properly verified, and served within the time prescribed by statute,- which had been disregarded by the plaintiff. If defendant was right in its contention, then it was entitled to have the judgment vacated, not as a favor, but as a matter of right. The court hád no discretion whatever in the matter. . It is only where the court can exercise its discretion, either in refusing or in granting the relief asked, that an affidavit of merits 'is required. The defendant was right in its contention and the judgment should have been vacated. It was unauthorized and the plaintiff’s attorney had no more, right to enter it than he would have had prior to the service of the summons.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson, O’Brien, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.