Gray v. Kendall

10 Abb. Pr. 66, 5 Bosw. 666

Opinion

By the Court.

*—Bosworth, Ch. J.

This action cannot be maintained unless the plaintiffs were, or unless some one of them was, a creditor of the limited partnership of Ely, Bowen & McConnell at the time it was commenced.

The allegations employed to show that they were such creditors should be sufficiently definite and specific to inform the defendants when, in what manner, and by what contracts of said firm, it is claimed that they became indebted to the plaintiffs severally, and in what amount.

It is as important in a suit like the present, as in one brought to recover a judgment in personam, that these particulars should be stated, in order that the defendants may set up by answer that said alleged demands have been paid or settled, or if no such demands ever existed, that issues may be formed by the pleadings which will show what claims must be proved to establish the fact that the plaintiffs were severally creditors, when this action was commenced.

This will not subject the plaintiffs to any inconvenience which is not common to all plaintiffs who institute an action, and claim relief on the ground that the defendants, or some of them, are their debtors.

To allow the plaintiffs in the present case to state less than this in their complaint, will expose the defendants to the hazard of having notes made by them produced and offered in evidence at the trial, which the plaintiffs do not now own, or to which there may be a good defence, without its being in their power to establish these facts; and that solely because the complaint does not enable them to know what are the notes or causes of action which the plaintiffs intend to prove, to show that they are such creditors as the complaint alleges.

We know of no rule of pleading, nor of any precedent, which sanctions a complaint like the present, in respect to that portion of it to which the order appealed from relates.

In respect to so much of the order as relates to the verification of the amended complaint, it is sufficient to say that the same rule applies to that as to an answer.

When any pleading is verified, “ it must be by the affidavit of the party, or if there be several parties united in interest and pleading together, by at least one of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit.” (Code, §§ 156, 157 [133, 134].) It is provided by statute that whenever, in any statute, any “ party or person is described or referred to by words importing the singular number,” several persons shall be deemed to be included. (2 Rev. Stats., 2d ed., 778, § 11.)

When the Code requires the verification to be made by the affidavit of the party, it requires the affidavit to be made by every party who unites in such pleading whose interest is several. If this be not done, the adverse party should not be required to treat it as a pleading verified as the Code requires.

The rule has been applied to answers in which several persons not united in interest have joined. There is no reason why it should not be applied to a complaint in an action commenced by several persons as plaintiffs who are not united in interest. At all events, £he Code does not discriminate between them, but, on the contrary, applies the same rule to both.

The order should be so modified as not to require any of the plaintiffs, whose demands consist in whole or in part of promissory notes made by the limited partnership, to do more in respect thereto than to describe such notes accurately, or to set forth copies of them. In other respects, it should be affirmed. Order accordingly.

Present, Bosworth, Ch. J., Woodruff and Moncrief, JJ.