Ross v. Longmuir

15 Abb. Pr. 326, 24 How. Pr. 49

• Court: New York Supreme Court
• Decided: September 15, 1862
• Status: Published

Opinion

By the Court.—Welles, J.

This verification is nearly, if not exactly, in the language of that portion of section 157 of the Code, allowing the affidavit of verification to be made by the agent or attorney of a party, in a ease where the action or defence is founded upon a written instrument for the payment of money only, &c.

It is objected, on the part of the plaintiff, that the affidavit omits to set forth the knowledge or the grounds of belief of the agent who makes it. It is a sufficient answer to this objection, that there is nothing in the answer stated upon information or belief, but each and every allegation is stated positively and without qualification. That part of the affidavit, therefore, which refers to matters in the answer supposed to have been stated upon information and belief, may be treated as surplus-age.

It is further objected that the answer contains no defence; but this, I think, is an error. The defence interposed is that of a recoupment. It may not be a full defence to the whole cause of action, but it is a full defence to the extent of the recoupment which the plaintiff may be able to prove on the trial. If it is true to any extent, the defendant had a right to set it up. Besides, the plaintiff has no right to treat it as a nullity on that ground, and enter judgment as for want of an answer. If frivolous, the only way he can take advantage of it is by application to a judge of the court, under section 247 of the Code.

The order of the special term should be reversed, and the judgment set aside, with ten dollars costs of appeal.

Order accordingly.