Strauss v. Parker

9 How. Pr. 342

• Court: New York Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

Harris, Justice.

In respect to the verification, it is enough to say that, if the defendant’s attorney deems it insufficient, he may test the question by omitting to verify his answer. This he has a right to do, if the complaint has not been verified in the manner prescribed by the Code. But a defective verification furnishes no ground for setting aside the pleading.

So, too, if the plaintiff has failed to comply with the requirements of the 167th section of the Code, by stating the several causes of action which it contains separately, the defendant may demur to the complaint and allege for cause of demurrer, that several causes of action have been improperly united. Getty agt. The Hudson River Railroad Co. (8 How. 177.) But the entire complaint cannot be set aside upon that ground.

The complaint is not numbered, as required by the 87th rule. But the defendant’s attorney is mistaken in supposing that a pleading is to be set aside for this defect. The proper practice in this, and all other cases where the defect is merely formal, is, to return the pleading, and at the same time point out the defect. (White agt. Cummings, 3 Sand. 716; Levi agt. Jackeways, 4 How. 126.) If this be not done within a reasonable time, it will be held that the irregularity has been, waived. I know that "in Blanchard agt. Strait, (8 How. 83,) it was stated as one of the grounds upon which the complaint was set aside, that the causes of action had not been numbered in compliance with the 87th rule. But the decision was abundantly sustained upon other grounds, and the former practice in relation to formal defects in pleadings is certainly more reasonable, as well as convenient, and shoúld be retained.

The motion must, therefore, be denied, but I think it should be without costs.