Snape v. Gilbert

New York Supreme Court

Snape v. Gilbert

20 N.Y. Sup. Ct. 494

DecidedMarch 15, 1878

StatusPublished

This text of 20 N.Y. Sup. Ct. 494 (Snape v. Gilbert) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Snape v. Gilbert, 20 N.Y. Sup. Ct. 494 (N.Y. Super. Ct. 1878).

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Opinion

Ingalls, J.:

The main objections to the verification to the answers are two :

First, That it is not therein stated that Matthew H. Gilbert was at the time the agent or attorney of the defendants.

Second, That it is not stated that the defendants were not, at the time, within the county of New York.

The verification is not a strict compliance with the statute, although for all practical purposes, it is a substantial compliance. It is therein stated by Matthew H. Gilbert, who verified the answers, that he is a son of one of the defendants, and had heard read the answer, and that the same was true of his own knowledge; that the reason why he made such verification was that the defendant Gilbert was absent from home, and not there to make the same; that all the allegations of the answer were'within his personal knowledge. In a case, where there is a substantial compliance with the statute, and no evidence of intentional evasion of its requirements, the court is justified in holding the party objecting to the sufficiency of a'verification, to strict practice on his part.

The notice which accompanied the papers, which were returned, is as follows: “ Please to take notice that the plaintiff refuses to [496]*496receive, and. hereby returns the within answer, on the ground and for the reason that the same is not properly verified, and will treat the same as a utility.”

This notice was too general. "When a paper is returned on the ground of irregularity the objection must be stated explicitly, and the particular defect, or omission, should be pointed out, i o that the other party may understand wherein his papers are defective. The rule was intended to accomplish this result. (Chemung Bank v. Judson, 10 How., 133; Broadway Bank v Danforth, 7 How. 264; Sawyer v. Schoonmaker, 8 How., 198.)

The judge at Special Term made a proper order, which should be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Order affirmed with costs.

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Ingalls, J.:

The main objections to the verification to the answers are two :

First, That it is not therein stated that Matthew H. Gilbert was at the time the agent or attorney of the defendants.

Second, That it is not stated that the defendants were not, at the time, within the county of New York.

The verification is not a strict compliance with the statute, although for all practical purposes, it is a substantial compliance. It is therein stated by Matthew H. Gilbert, who verified the answers, that he is a son of one of the defendants, and had heard read the answer, and that the same was true of his own knowledge; that the reason why he made such verification was that the defendant Gilbert was absent from home, and not there to make the same; that all the allegations of the answer were'within his personal knowledge. In a case, where there is a substantial compliance with the statute, and no evidence of intentional evasion of its requirements, the court is justified in holding the party objecting to the sufficiency of a'verification, to strict practice on his part.

The notice which accompanied the papers, which were returned, is as follows: “ Please to take notice that the plaintiff refuses to [496]*496receive, and. hereby returns the within answer, on the ground and for the reason that the same is not properly verified, and will treat the same as a utility.”

This notice was too general. "When a paper is returned on the ground of irregularity the objection must be stated explicitly, and the particular defect, or omission, should be pointed out, i o that the other party may understand wherein his papers are defective. The rule was intended to accomplish this result. (Chemung Bank v. Judson, 10 How., 133; Broadway Bank v Danforth, 7 How. 264; Sawyer v. Schoonmaker, 8 How., 198.)

The judge at Special Term made a proper order, which should be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Order affirmed with costs.

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20 N.Y. Sup. Ct. 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snape-v-gilbert-nysupct-1878.

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