CHAPTER V. General rules of pleading. SECTION 156. Pleadings to be subscribed and verified. 157. Verification of pleadings. 158. How to state an account in pleading. 159. Pleadings to be liberally construed. 160. Irrelevant or redundant matter to be stricken out. 161. Judgments, how to be pleaded. 162. Conditions precedent, how to be pleaded. 163. Private statutes, how to be pleaded. 164. Libel and slander, how stated in complaint. 165. Answer in such cases. 166. In actions to recover property distrained for damage, answer need not set forth title. 167. What causes of action may be joined in the same action. 168. Allegation not denied, when to be deemed true. § 156. [33.] (Am'd 1849, 1851.) Verification of pleadings. Every pleading in a court of record must be subscribed by the party, or his attorney; and, when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. I. WHAT IS SUFFICIENT SUBSCRIPTION. a. Agent.-An agent with power of attorney, but who has not been admitted as an attorney, cannot subscribe a pleading for either party. Weir v. Slocum, 3 How. 397; S. C. 1 Code R. 105, sub nom. Weare v. Slocum ; Dixey v. Pollock, 8 Cal. 570. b. Omission.-Where a party or his attorney has omitted to subscribe a pleading, notice of the defect should be given, and the pleading promptly returned. That the demurrer was not subscribed by the defendant or his attorney, will furnish no ground for objection, on an appeal from an order sus II. VERIFICATION OF PLEADING. a. Effect of omission.—Where the complaint is not verified, or the verification is imperfect, the pleading will not be irregular; in either case the defendant may answer without verification; the regularity of a subsequent judgment will not be affected by the irregularity of the verification of the complaint. Quin v. Tilton, 2 Duer, 648; Fitch v. Bigelow, 5 How. 237; S. C. 3 Code R. 216; Mason v. Brown, 6 id. 481; Stannard v. Mattice, 7 id. 4; Treadwell v. Fassett, 10 id. 184; Lane v. Morse, 6 id. 394; Waggoner v. Brown, 8 id. 212; Strauss v. Parker, 9 id. 342; Williams v. Riel, 11 id. 374; S. C. 5 Duer, 601; Webb v. Clarke, 2 Sandf. 649; S. C. 2 Code R. 16. b. Relation to complaint.-A verification is no part of a complaint; and a new complaint, served after answer, which corresponded with the original, except verification, might be disregarded as not an amended com plaint. George v. McAvoy, 6 How. 200; S. C. 1 Code R. N. S. 318. c. Answer.-If the answer be required to be verified by the oath of the party, and the answer be served without such verification, it may be returned, and the plaintiff may proceed as if no answer had been served. Strout v. Curran, 7 How. 36. d. Several defendants.-Where there are more than one defendant to an action, each must verify his answer, notwithstanding they unitedly or separately; if only one defendant have a common defense, whether it be put in verify, it is good as to him, and cannot be returned. Prompt notice must be given in that case by the plaintiff's attorney that he insists upon an answer, verified by all the defendants; he cannot insist on any defect in the verification after having kept the answer forty days without notice. Hull v. Ball, 14 How. 305. e. Sufficiency, how tested. Whether | A pleading cannot be retained nineteen days, or not a verification is sufficient, should be and then returned as defective; if returned tested by a motion for judgment, for want of as defective, e. g., as not verified, the party rean answer. Moloney v. Dows, 2 Hilt. 247; turning the paper must point out the defect. Aff'g S. C. 15 How. 261, sub nom. Molony White v. Cummings, 3 Sandf. 716; S. C. 1 v. Dows; Hull v. Ball, 14 id. 305. Code R. N. S. 107. f. Returning defective pleading. III. MISCELLANEOUS. a. Copy must be complete.-Service | it as sufficient, if doubtful. Wilkin v. Gilman, of a copy of the answer and verification must 13 How. 225. both be made; if there is any omission, it may be assumed that the original is in all respects like the copy, and if it is defective, the adverse party may move to set aside the pleading; it will be a fatal defect to omit the name of the officer before whom the answer was sworn. Graham v. McCoun, 5 How. 353; S. C. 1 Code R. N. S. 43; Hughes v. Wood, 5 Duer, 603 (n.); Trowbridge v. Didier, 4 id. 448; Littlejohn v. Munn, 3 Paige, 280. b. Practice in case of insufficiency. The courts do not commend the practice of moving to set aside the pleading for insufficient verification; where it is clearly defective, the better practice is to promptly return it, with the objection pointed out, but to treat c. Subsequent pleading.-The term in this connection means subsequent in order, or those in answer to the pleading verified, and not subsequent in time; e. g., an amended pleading, where an answer to an unverified complaint, itself unverified, is served, the plaintiff cannot subsequently verify his complaint, and move to set aside the answer as untrue. White v. Bennett, 7 How. 59; Hempstead v. Hempstead, id. 8. d. Effect of defendant's verification. If a defendant verify his answer, as he may do, the reply, if any, must be sworn to; all subsequent pleadings, in order after a verified pleading, must themselves be verified. Levi v. Jakeways, 4 How. 126; S. C. 2 Code R. 69; id. 29, sub nom. Lin v. Jaquays. § 157. [133.] (Am'd 1849, 1851.) Verification, mode of. The verification must be to the effect that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true, and must be by the affidavit of the party; or, if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defense 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 allegations of the pleading be within the personal knowledge of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief, on the subject, and the reasons why it is not made by the party. When a corporation is party, the verification may be made by any officer thereof; and when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. I. OMITTING VERIFICATION. a. Statutory.-"The verification of any pleading in any court of record in this State may be omitted in all cases where the party called on to verify, would be privileged from testifying as a witness to the truth of any matter denied by such pleadings." Laws of 1854, ch. 75, § 1. b. Protection to defendant.-If the defendant, on being examined as a witness, would not be obliged to answer as to its truth, he may, when pleading, deny the allegation, and omit to verify his answer. But if he declines to answer the allegation at all, on the ground that such answer might subject him to a criminal prosecution, he admits it, for the purposes of the action. Scovill v. New, 12 How. 319; Blaisdell v. Raymond, 5 Abb. 144; S. C. Aff'd, 6 id. 148; Moloney v. Dows, 2 Hilt. 247; Aff'g S. C. 15 How. 261, sub nom. Molony v. Dows; People ex rel. Hackley v. Kelly, 24 id. 369; S. C. 24 N. Y. (10 Smith), 74; Matter of Tappan, 9 How. 394. The law, as laid down in Thomas v. Harrop, 7 How. 57, has been changed by the statute of 1854, ch. 75. Where it is evident, from the pleadings to be answered, that an admission of the truth of its allegations might subject the party answering to a prosecution for felony, or might lead to such a result, his general affidavit to that effect should be received in the place of a verification of the answer, and he need not state the particular facts and circumstances in his affidavit, which lead him to that conclusion. Springsted v. Robinson, 8 How. 41. c. Betting, stakes.-Where the complaint does not state whether the defendant is prosecuted as winner or as stakeholder, but simply alleges that he received a sum of money contrary to the statute against betting, and the answer is a mere denial, the defendant must verify if the plaintiff has done so; there is no allegation in such a complaint that the act was criminal. Lynch v. Todd, 13 How. 546. d. Defendant as witness-affidavit. Where the complaint shows that the defendant would be privileged from testifying as a witness in the matter, the answer may be served without a verification, and need not contain any affidavit stating the grounds for so doing. Wheeler v. Dixon, 14 How. 151. See, to the same effect, Clapper v. Fitzpatrick, 3 id. 314; S. C. 1 Code R. 69, decided under the Code of 1848. e. Divorce.-Where the action is for a divorce on the ground of adultery, and the complaint is verified, the decisions are not harmonious on the question whether the answer need be verified. In Anable v. Anable, 24 How. 92, and Sweet v. Sweet, 15 id. 169, it was held that the answer ought to be verified; while in Olney v. Olney, 7 Abb. 350, the contrary was held. See 2 R. S. 144, § 39. f. Defective affidavit.-The verification must, in all cases, be complete; the omission, in a copy of the complaint served, of the name of the officer before whom the verification was made, will be a fatal defect; and the defendant may answer in such a case without verifying his pleading. Hughes v. Wood, 5 Duer, 603 (n.); Williams v. Riel, id. 601; S. C. 11 How. 374. 9. Privilege from testifying.-A party need not verify his pleading, in a case where he is privileged from testifying as a witness. Supra, note d. The criterion by which to determine whether a party may omit to verify his pleading, is to inquire, not whether the pleading may be used against him in a criminal prosecution, but whether, if called as a witness to testify to the same matter contained in the pleading, he would be excused from answering. If there is more than one party in the action, and one of them would be privileged from testifying, although the others might not be, the answer need not be verified. If any part of the pleadings would excuse a party from testifying as a witness, the rule is the same. Clapper v. Fitzpatrick, 3 How. 314; S. C. 1 Code R. 69. The rule is well settled, that a witness is not required to give any answer which will have a tendency to accuse himself of any crime or misde meanor, or to expose himself to any penalty or forfeiture; or where, by answering, a single link will be added to a chain of testimony tending to such a result. Where any such state of facts exist, the pleading need not be verified. Henry v. Salina Bank, 1 N. Y. (1 Comst.), 89. But the privilege ceases if the prosecution is barred by the lapse of time. id. The rule is the same if the prosecution be had under a foreign law. King of the Two Sicilies v. Wilcox, 1 Sim. N. S. 301, 330; 14 Jur. 751, 163; 15 Jur. 514. A witness will not be protected, in a criminal prosecution. against another, from giving testimony degrading to himself, or which would convict himself of a crime, if he has been protected by statute from the use of such testimony on a trial against himself. People ex rel. Hackley v. Kelly, 24 N. Y. (10 Smith), 74; S. C. 24 How. 369; Aff'g S. C. 12 Abb. 150; 21 How. 54; Byass v. Smith, 4 Bosw. 679. Where in making an assignment, and the object of the complaint charges a defendant with fraud the action is to set such assignment aside, he must verify his answer. Wolcott v. Winston, 8 Abb. 422. If the defendant, by verifying his answer, would charge himself with a debt, or bring about pecuniary loss, or would establish or help to establish facts subjecting him to a forfeiture of his estate, he need not do so. Henry v. Bank of Salina, 1 N. Y. (1 Comst.), 83; S. C. 5 Denio, 593; 1 How. App. Cas. 173; 2 R. S. 405. Where the answer would have a direct tendency to affect his moral character, the same is the rule as to collateral matter. People v. Gay, 7 N. Y. (3 Seld.), 378; Aff'g S. C. 1 Park. 308. II. VERIFICATION BY ATTORNEY OR AGENT. a. Absent party.-Where a party is not sides, the attorney may verify a pleading, notwithin the county in which the attorney re-withstanding the foundation of the action or defense is not a written instrument in the possession of the attorney, and though all the material allegations of the pleading may not be within the personal knowledge of the attorney. When this is the case, the verification must set forth the attorney's knowledge, or his reasons for belief in the matter, and also the reason why the party does not make the affidavit himself. Stannard v. Mattice, 7 How. 4; Fitch v. Bigelow, 5 id. 237; S. C. 3 Code R. 216; Dixwell v. Wordsworth, 2 Code R. 1; Treadwell v. Fassett, 10 How. 184; Hubbard v. National Protection Insurance Co., 11 id. 149; Bank of State of Maine v. Buel, 14 id. 311; Boston Locomotive Works v. Wright, 15 id. 253; Soutter v. Mather, 14 Abb. 440; contra, Smith v. Rosenthall, 11 How. 442; Myers v. Gerrits, 13 Abb. 106. b. Corporation.-If a summons is served on an agent of a corporation, who, by reason of his being an officer in it, is authorized to verify the answer, no grounds of belief need be stated in such case, as the agent's verification is that of the corporation. Glaubensklee v. Hamburg & American Packet Co. 9 Abb. 104. c. The agency -The complaint averred a contract with "A." as the agent of the defendants; "A." verified the answer, and recited in the affidavit his agency for the defendants in making the contract; held, that the affidavit was inadmissible as evidence of “A.'s” agency in making the contract. Bowen v. Powell, 1 Lans. 1. d. Reasons for substituted verification. Where the verification was by attorney, the omission to state the reasons why the oath was not made by the party, was error, and the verification was held insufficient. Fitch v. Bigelow, 5 How. 237; S. C. 3 Code R. 216. e. Stating grounds of belief, etc. examples. Where the defendant answered a complaint duly verified, by stating "that the reply is true, of the deponent's own knowledge, except as to those matters stated upon information and belief, and as to those matters he believes it to be true; that the ground of his belief is information derived from Willard Lawrence, the payee of the note mentioned in the complaint, and which he believes to be true; that the action is founded upon a written instrument, which is in the possession of the attorney; that the reason why the affidavit was not made by the plaintiff, was that he resided at Nashua, in the State of New Hampshire, and was not present to make it ;" a verification in such form held to be sufficient. Mason v. Brown, 6 How. 481. In a case we have already considered, Stannard v. Mattice, 7 How. 4, the affidavit was in the following words: "Being duly sworn, says, that he has read the foregoing complaint, and that he knows the contents thereof, and knows the same to be true, except as to the matters therein stated to be on information and belief, and as to those matters, he believes the same to be true; that the reason plaintiff does not make this affidavit, is, that he resides in Albany county; deponent has more knowledge of the record, evidence and proceedings than the plaintiff; that he, this deponent, has been the plaintiff's attorney in all the proceedings set out in the complaint, and knows the existence thereof, as therein stated, of the deed in the clerk's office; heard the defendant admit the fact that said deed was executed when he was not present, and when said Henry Mattice was on his way off to leave this State. Deponent knows the fact, from information, that Henry Mattice was unembarrassed and owed no debts, and was in easy circumstances in January, 1850; that the plaintiff is a poor man, and that it will be an unnecessary expense to send to him to make oath to his complaint, and further deponent says not." Jurat, subscription, etc., in due form. The above verification was held to be sufficient. In every case, where the verification is not made by the party, the agent or attorney making it, so far as he speaks of his own knowledge, must state what knowledge he has, and when he speaks of his belief, he must state the grounds of such belief. The Code expressly requires this, and it cannot be dispensed with. Treadwell v. Fassett, 10 How. 184. The following verification was held to be defective, in that, although the notes being in his possession was sufficient to authorize him to make the verification, the statement of that fact was not a sufficient statement of the grounds of the belief to which he had sworn. One of the plaintiff's attorneys, being duly sworn, says, that the foregoing complaint is true, of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters, he believes it to be true, and that the promissory notes mentioned in the said complaint are in the possession of said attorneys. id. See, also, Soutter v. Mather, 14 Abb. 440; Wheeler v. Chesley, id. 441; Myers v. Gerrits, 13 id. 106. The same ruling was followed in Hubbard v. National Protection Insurance Co. 11 How. 149; in Smith v. Rosenthall, 11 id. 442. T. R. STRONG, J., held, that the following verification was sufficient, in opposition to the foregoing cases. The defendant made his promissory note, and the action was against him; the complaint was wholly on information and belief; one of the plaintiff's attorneys verified the complaint, and, in addition to the affidavit of a party, stated that he was in possession of the promissory note on which the action was brought-no other fact was contained in the affidavit-and, in this case, the learned judge held, that "the express statement, that the belief referred to is founded upon the possession of the instrument, and that such possession is the reason why the affidavit is not made by the party, adds no force to the affidavit in the latter case, and may be dispensed with; it is sufficient if the fact of possession is stated; the conclusion will be drawn by the court. See, in this connection, Lefevre v. Latson, 5 Sandf. 650; S. C. 10 N. Y. Leg. Obs. 246, sub nom. Lat and the attorney in the county of Sullivan: "That deponent's knowledge of all the material allegations in the answer is founded upon communications made to him by the defendant, through his son, and that the answer is true to deponent's own knowledge, except," etc. In Wheeler v. Chesley, 14 Abb. 441, a verification, in the following form, was held good: above action; that the foregoing complaint is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true; that the reason why the verification is not made by the plaintiff is, that the action is founded on a written instrument for the payment of money only, and such instrument is in the possession of deponent, and that his knowledge is derived from said instrument, and from information received by deponent from plaintiff, and that the grounds of deponent's belief are the statements of plaintiff to deponent." son v. Lefevre, where it is held that the attorney, or other agent, is required to state only his information and belief. A., being duly sworn, says that the above complaint is true, to his own knowledge, except as to those matters stated on information and belief, and, as to those matters, he believes it to be true; that the plaintiff is now absent from this State, which is the reason why this verification is not made by him; that deponent's knowl-R. B. "says he is attorney for plaintiff in the edge is derived from possession of the notes, and from other sources.. This affidavit was held good in Myers v. Gerrits, 13 Abb. 106. The following affidavit was held defective by HARRIS, J. (the action was on a promissory note, and the affidavit was made by one of the plaintiff's attorneys): "That he is one of plaintiff's attorneys in this action; that said plaintiff is not now in the said county of Albany, where deponent resides; that this action is founded upon a written instrument for the payment of money only, to wit: the promissory note set forth and described in the foregoing complaint, and which note is now in the possession of deponent as such attorney; that the said complaint is true of deponents' own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes the same to be true." Meads v. Gleason, 13 How. 309. The affidavit in Tibballs v. Selfridge, 12 id. 64, was held defective, in that it did not state that the deponent knew the complaint to be true, and it was further held, that such allegation could not be supplied by any subsequent statement of the grounds of his knowledge. In this case, GOULD, J., uses the following strong and pointed language: "I can see no good reason why the courts should not require a compliance with the section 157, so full as to need no explanation, or why, if a party means to say what the law requires, he should not say it. If the verification means that it is true to his own knowledge, let it say so; and let the courts, in all cases, insist on that form, and not its equivalent." id. 65. In the verification of an answer by an agent of the defendant in an action on a written instrument, where the allegations of the answer are stated positively and without qualification, it is not necessary that the agent should state his knowledge, or the grounds of his belief in the verification. Ross v. Longmuir, 24 How. 49; S. C. 15 Abb. 326; Gourney v. Wersuland, 3 Duer, 613. It is held, that an attorney of a non-resident client, although he has a resident agent, and all the information that the attorney possesses has been derived from said agent, may, himself, make the affidavit. And where it appears that the party has more than one agent, it is not imperative that the agent who knows most about the matters should make the verification. Drevert v. Appsert, 2 Abb. 165. HARRIS, J., in Wilkin v. Gilman, 13 How. 225, held, that a verification in the following form was sufficient. It was made by the defendant's attorney, for the reason that the defendant resided in the city of New York, The following verification was held insufficient: A. B. says that he is one of the firm of B. & B., attorneys for plaintiff in this action; that the foregoing complaint is true to his own knowledge, except as to those matters therein stated on information and belief, and as to those matters, he believes, etc.; that this action is founded on a written instrument for the payment of money only, viz., a promissory note, and such instrument is in possession of deponent's firm, as attorneys for plaintiff. Soutter v. Mather, 14 Abb. 440. A. B. says he is agent for defendant in this action; that the foregoing answer is true to his own knowledge (except as to those matters therein stated on information and belief, and as to those matters he believes it to be true); that the reason why the verification is not made by defendant is, that all the allegations in the answer are within the personal knowledge of deponent, and not within the personal knowledge of defendant. Ross v. Longmuir, 15 Abb. 326; S. C. 24 How. 49; and that the omission of the words in parenthesis would not have vitiated the affidavit. 15 Abb. 327 (n). GOULD, J., in Bank of the State of Maine v. Buel, 14 How. 311, the following verification was held to be defective, on the ground that, although the attorney had stated some grounds for his belief as to parts of the complaint, yet, as to other parts, absolutely essential to the plaintiff's right of action, he did not profess to give any grounds of his belief, not even the information of his own client. The plaintiff's attorney, after making the usual affidavit of a party in an action, further says, "that the drafts or bills of exchange set out in the complaint are both in the possession of deponent; and he has heard defendant, in talking of same, admit, or at least assume, that they were genuine, and that he had money thereon from the plaintiff; and the same information has been communicated to deponent by the president of said bank-(the plaintiff's).” |