Van Horne v. Montgomery, Willis & Thomas

5 How. Pr. 238

• Court: New York Supreme Court
• Decided: February 15, 1851
• Status: Published

Opinion

Gkidley, Justice.

The time of receiving the copy of the complaint was not the service, but the time of mailing it; and that it sworn to have been done on the 14th of December. It is indeed an unusual event that the letter should have been seven days in traveling from Herkimer to Utica; but it is positively sworn that the letter was mailed on the 14th, and Messrs. Bacon & White did not preserve the envelope, so as to determine when it was actually put in the post office. The answer was therefore served too late, and was accordingly returned with that information on the next day after it was received.

The complaint purported to be verified. It was sworn to by Harvey Doolittle, the cashier of the bank, and he states that" he had read the complaint and that the same was true according to the best of his knowledge and belief.This is no verification under section 157, if the cashier is to be regarded as a party. Still less, is it a good verification if he supposed to act as an agent or attorney; for then he should set forth his means of knowledge.

The action was on a promissory note, and the complaint not being verified, the damages must have been assessed by the clerk) and as a notice of appearance was given, the defendants’ attorney was entitled to five days notice of assessment (section 246 of the Code). This notice was not given, and the judgment is therefore irregular, and must be set aside.

Still the defendants’ time to answer has expired, and to enable him to plead, he must obtain the leave of court. He has shown a mistake as to the time when an answer was due, which is satisfactory; and he has made an affidavit of merits in a general form pursuant to the rule as laid down in the old Supreme Court rules, and in the 4th Hill, 61, note.

I am aware that it has been said in several cases, since the adoption of the Code, that the affidavit of merits should be special, setting up the facts, which constitutes the ground of defence, conformably to the practice in the Court of Chancery. But I see no reason for adopting that practice in common law actions. The guards, which the rule of the Supreme Court provided, are sufficient, in a case where no suspicion is thrown on the application by the circumstances of the case. The circumstances may be so suspicious in their character, that a party would be called on to explain those circumstances, and to state the facts, on which he relies for explanation or avoidance, in his affidavit. That, however, waS always the case; and affords no reason why, in an ordinary case at law, we should disregard the settled practice which has obtained in like cases since the court was established.

The result is, that the defendant is entitled to set aside the judgment with costs; but is obliged to ask as a favor to be permitted to answer, notwithstanding the time has expired. The proper mode is to grant the entire motion without costs (5 Wendell, 78).