Cherry v. Foley

New York Court of Common Pleas

Cherry v. Foley

16 N.Y.S. 853, 42 N.Y. St. Rep. 188, 1892 N.Y. Misc. LEXIS 636

DecidedJanuary 4, 1892

StatusPublished

This text of 16 N.Y.S. 853 (Cherry v. Foley) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cherry v. Foley, 16 N.Y.S. 853, 42 N.Y. St. Rep. 188, 1892 N.Y. Misc. LEXIS 636 (N.Y. Super. Ct. 1892).

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Opinion

Per Curiam.

The answer denied that there was anything due upon the contract of hiring on a certain day, and also denied that a demand for the rent had been made. This was verified in the following language: “John Foley, sworn, says that he is the defendant herein, and that he knows the foregoing answer to be true. ” This the court below held to be an insufficient verification. It has been repeatedly held that where there is nothing to indicate the affiant intends to swear that the contents of a pleading is true, to his own knowledge, where all the allegations are apparently made upon knowledge, it is insufficient. Williams v. Riel, 11 How. Pr. 374, 5 Duer, 601; Tibballs v. Selfridge, 12 How. Pr. 64: Van Horne v. Montgomery, 5 How. Pr. 238; Sexauer v. Bowen, 3 Daly, 405. The ease that comes nearest to holding a verification similar to the one under consideration good is In re Application, etc., of Macaulay, 94 N. Y. 574. In that case the affidavit declared that “she knows the contents [of the petition,] and that the same are true;” but in this case the affiant is very far from affirming that. He merely says that he knows the answer is true. We do not think he could be convicted of perjury upon such an affidavit, and that the justice was therefore justified in treating it as a nullity. The final order should be affirmed, but without costs.

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Per Curiam.

The answer denied that there was anything due upon the contract of hiring on a certain day, and also denied that a demand for the rent had been made. This was verified in the following language: “John Foley, sworn, says that he is the defendant herein, and that he knows the foregoing answer to be true. ” This the court below held to be an insufficient verification. It has been repeatedly held that where there is nothing to indicate the affiant intends to swear that the contents of a pleading is true, to his own knowledge, where all the allegations are apparently made upon knowledge, it is insufficient. Williams v. Riel, 11 How. Pr. 374, 5 Duer, 601; Tibballs v. Selfridge, 12 How. Pr. 64: Van Horne v. Montgomery, 5 How. Pr. 238; Sexauer v. Bowen, 3 Daly, 405. The ease that comes nearest to holding a verification similar to the one under consideration good is In re Application, etc., of Macaulay, 94 N. Y. 574. In that case the affidavit declared that “she knows the contents [of the petition,] and that the same are true;” but in this case the affiant is very far from affirming that. He merely says that he knows the answer is true. We do not think he could be convicted of perjury upon such an affidavit, and that the justice was therefore justified in treating it as a nullity. The final order should be affirmed, but without costs.

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Bluebook (online)

16 N.Y.S. 853, 42 N.Y. St. Rep. 188, 1892 N.Y. Misc. LEXIS 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-foley-nyctcompl-1892.

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