Myers v. Gerrits

13 Abb. Pr. 106

Opinion

By the Court.

*— Brady, J.

—The verification in this case is sufficient. By section 157 of the Code, the verification may be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material facts relating to such instrument, and embraced in the allegations of the pleading, be known to such agent or attorney. The possession of the instrument alone is enough to authorize an agent or attorney to verify the complaint. This seems to be very clear as a matter of construction, and is sustained by the case of Smith a. Rosenthall (11 How. Pr., 442). The doubt presented, however, arises from the fact that the verification does not contain an averment that the person making it is the agent of the plaintiff. The deponent states, however, that the plaintiff is absent, and that his knowledge is derived from the possession of the notes in suit, and the conclusion upon such facts fairly is, that the affiant is the agent of the plaintiff; at all events, it is sufficient to put the defendant to proof to the contrary, where he discloses ■ no defence, and does not sustain his appearance by merits. The Code does not require the person who makes the oath to state that he is an agent, and if facts are presented from which that relation may be reasonably inferred, it ought to be considered as existing in a case like-this. I think the order made at special term should be affirmed.

Present, Daly, F. J., Hilton and Brady, JJ.