Fitch v. Bigelow & Hunt

5 How. Pr. 237

• Court: New York Supreme Court
• Decided: November 15, 1850
• Status: Published

Opinion

Parker, Justice.

The verification is defective. The Code requires (§ 157) that where the pleading is verified by the attorney, he should set forth in the affidavit his knowledge, and the reasons why it is not made by the party. The knowledge is here set forth, but the reasons why he made the affidavit are not stated. Good reasons are shown on this motion, viz., that the plaintiff resides out of this state; that the note in suit was taken by the attorney, and executed in his presence as the agent of the plaintiff, and that the plaintiff was not present when the business was transacted. But the statute requires these reasons to be set forth in the affidavit of verification.

The verification being insufficient upon its face, the defendant ■was at liberty to treat the complaint as if it were not verified and to 'put in his answer without oath. There was no injunction allowed upon the complaint. If there had been, the defendant might Have moved to dissolve it on- the- ground of the defective Verification. So also, if the insufficiency was not apparent upon the face of the paper, but depended on proof aliunde, as that the officer taking the affidavit was, a fictitious person, or was incompetent to act in the case, a notice by the defendant would probably be necessary (Gilmore vs. Hempstead, 4 How. Pr. Rep. 153). But in this case no motion was necessary. There was an omission of a material statement expressly required by the statute-. If a party may omit a part he may omit the whole of the requisite affidavit. The practice does not depend on the proportion omitted.

I think it is clear that the defendant might have put in his answer without verification, and that such was his proper course.

The motion must be denied but without costs, and the defends ants must have ten days further time to answer.