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served by way of response, not subsequent in time. 18 A plaintiff, who, after serving a verified complaint, serves an amended complaint, may serve it without verification if he choose, although defendant had, meanwhile, served a verified answer; and, thereafter, the pleadings may be unverified.19 Or, having served an unverified complaint, plaintiff may serve an amended complaint verified, and demand a verified answer.20 So, if defendant serves an unverified answer when he ought to have verified it, plaintiff, if he accepts it as sufficient, may serve an unverified reply, although the complaint was verified.
An answer, even though it interpose a counter-claim on which defendant might have sued by an unverified complaint in a separate action, must be verified if the complaint in the action in which it was interposed was verified, 21 and a privilege excusing from verifying the answer because of matter in the complaint as to which the defendant would be privileged from testifying, does not extend to such new matter. 22
One whose pleading is defectively verified cannot object to the lack of a verification of his adversary's responsive pleading 23
3. Excuse for omitting.] — The verification of a pleading required by reason of a previous pleading of the adversary being verified, may be omitted wherever the pleading contains an allegation or denial concerning which the party would be excused from testifying as a witness,24 or where the officer verifying for the corporation defendant would be excused.25 This exemption, however, does not extend to a charge of fraud on creditors, or affecting the right or property of others.26 Where the ground of ex
18 Hempstead v. Hempstead, 7 How. Pr. 8.
21 Thompson v. Killian, 25 Minn. 1ll. So far, however, as this case holds that failure to object to the omission of verification is not a waiver, it is not in accordance with our practice.
Contra in Innes v. Krysher, 9 Iowa, 295; Briggs v. Montgomery, 3 Heisk. (Tenn.) 673.
22 Fredericks v. Taylor, 52 N. Y. 596, 14 Abb. Pr. (N. S.) 77.
23 Fellows v. Menasha, 11 Wis. 558 (defect was lack of seal and statement of official authority in authentication of verification of complaint, without the State).
24 N. Y. Code Civ. Pro., $ 523; Gadsden v. Woodward, 103 N. Y. 242 (action against trustee of corporation founded on failure to file report); Rogers r. Decker, 131 N. Y. 490 (trustee of social club sued for debt must verify).
25 Goff v. Star Printing Co., 21 Abb. N. C. 211; Batterman v. Journal Co., 28 Misc. 375, 59 N. Y. Supp. 965.
26 Id., $ 529; Beckley v. Chamberlain, 65 Iun, 37, 19 N. Y. Supp. 745.
emption is a charge of crime apparent on the face of the adversary's pleading, an unverified answer to the allegation may be served without any explanation; 27 but where no crime is charged the defendant must show how the privilege arises.28 Where a tendency to disgrace not apparent on the face of the pleading is the ground for claiming exemption, such tendency must be alleged, either in an affidavit served with the unverified pleading or presented in opposition to plaintiff's proceeding as for want of an answer. That is to say, the privilege of a witness must, in either case, be made to appear.29
If it does appear, the exemption extends to the whole responsive pleading; but it does not extend to a pleading of new matter in avoidance, as a counter-claim.30
4. The remedy for defect or omission.] — The remedy for a defective verification is to treat the pleading as unverified; or, if the party is entitled to a verified pleading and it is served either unverified or with a defective verification, to treat it as a nullity, and to promptly give notice of his election so to do.31 The usual practice is to return the pleading with the notice indorsed thereon.32
A delay of more than twenty-four hours may waive the right to assert the defect or omission, unless excused. 33
5. Testing necessity or sufficiency of verification.] — If the complaint is not properly verified, the answer thereto may be unverified and defendant may move to compel its acceptance as a pleading in the cause and to vacate any judgment entered.34
Where the complaint is verified, either party may test the necessity or sufficiency of the verification of the answer, the plaintiff
27 Wilson v. Bennett, 2 Civ. Pro. Rep. 34 (libel); Batterman v. Journal Co.. supra (libel); Anderson v. Doty, 33 Hun, 238 (charge of keeping a bawdy house); Ray v. Sellers, 1 Duval (Ky.), 254 (injury to the person by nuisance, held within the exemption in Kentucky).
38 Dehn v. Mandeville, 68 Hun, 335, 22 N. Y. Supp. 984.
29 Roache v. Kivlin, 25 Hun, 150 (answer of defendant in criminal conversation, adultery not being, in this State, a crime). 30 Fredericks v. Taylor, 52 N. Y. 596. 31 Code Civ. Pro., & 528. See Vol. I, pp. 495, 496.
32 See Form No. 1038 for form of notice to indorse upon the pleading returned.
33 Paddock v. Palmer, 32 Misc. 426, 66 N. Y. Supp. 743.
by a motion to strike it out,35 the defendant by a motion to compel its acceptance. 36
The party serving a responsive pleading (see paragraph 2), which has been defectively verified, has a reasonable time after notice within which to correct it.37
6. Disclosing grounds of belief.] — When the affidavit is not made by the party, the affiant must disclose the source of his information and grounds of belief as to all allegations not based upon his knowledge. An unqualified denial of knowledge or information sufficient to form a belief does not require such disclosure.38
The affiant need not set forth a copy or the substance of the writing referred to as the ground of his belief; and the details of conversations need not be specified. 39
FORM No. 1016. Verification of pleading40 — by sole plaintiff or defendant. [Venue.]
A. B., being duly sworn, says, that he is the plaintiff [or, defendant] above named [or, the guardian ad litem"1 above named, for the infant plaintiff, C. D], that he has read the foregoing [complaint) and knows the contents thereof,42 that the same is true * to his own knowledge43 [if anything is stated on information and belief, add: except as to the matters therein stated to be
35 Fredericks v. Taylor, 52 N. Y. 596, 14 Abb. Pr. (N. S.) 77. 36 Goff v. Star Printing Co., 21 Abb. N. C. 211, 14 Civ. Pro. Rep. 3. 37 Fusco v. Adams, 11 N. Y. Supp. 735, 19 Civ. Pro. Rep. 48. 38 Am. Audit Co. v. Indus. Fed. of Am., 84 App. Div. 304, 82 N. Y. Supp. 642.
39 High Rock Knitting Co. v. Bronner, 18 Misc. 627, 43 N. Y. Supp. 725 : aff'd, 29 App. Div. 627; Duparquet v. Fairchild, 49 Hun, 471, 2 N. Y. Supp. 264, 15 Civ. Pro. Rep. 256.
40 N. Y. Code Civ. Pro., 88 523-526.
41 A guardian ad litem verifies as the party, instead of the infant, and is not required to state reasons. Vol. I, p. 492; Clay v. Baker, 41 Hun, 58, 11 Civ. Pro. Rep. 1.
12 An allegation that he has read or heard read the pleading, and knows the contents thereof, is unnecessary,
unless it appears by the pleading that he is of impaired sight or understanding.
43 The omission of the words “to his knowledge ” is not necessarily fatal. Matter of Macauley, 94 N. Y. 574. “ To his knowledge and belief " is improper. Morris v. Fowler. 99 App. Div. 245, 90 N. Y. Supp. 918.
alleged" on information and belief, and that as to those matters he believes it to be true*]. [Jurat.]
[Signature.] FORM No. 1017. Verification by one of several parties united in interest and pleading together.46 [Venue.]
A. B., being duly sworn, says † that he is one of the plaintiffs [or, defendants] above named, that he is acquainted with the facts stated in the foregoing complaint — or, answer; that the same is true [continuing as above from the *].
FORM No. 1018. Verification by two parties not united in interest,47 but pleading together. [Venue.]
A. B. and C. D., the plaintiffs [or, defendants — or, two of the plaintiffs — or, defendants] above named, being severally duly sworn, say, each for himself, that the foregoing complaint [or, answer] is true [continuing as in Form 1016 from the *].
FORM No. 1018. Verification by officer of domestic corporation.48 [Venue.]
A. B., being duly sworn, says, that he is president (or other officer4'] of the Company, the above named (plaintiff]
44 Omission of the words “ stated to be" is improper. Morris 1. Fowler, 99 App. Div. 245, 90 N. Y. Supp. 918.
45 Where all of the allegations are positive, the exception has no effect, and the verification on the affiant's knowledge remains unqualified. Kieley r. Barron, etc., Co., 87 App. Div. 317, 84 N. Y. Supp. 306.
Where all the allegations of the pleading are stated as made on information and belief, a statement " that the pleading is true as the deponent is informed and believes," without more, is sufficient. Orvis r. Goldschmidt, 2 Civ. Pro. Rep. ( Browne) 314, 64 How. Pr. 71.
successfully attacked as sham, as against the one not verifying and who is shown to have knowledge. Lacy r. Wilkinson, 7 Civ. Pro. Rep. 104.
47 See Vol. I, p. 492; Kinkaid r. Kipp, 8 N. Y. Super. Ct. 692.
48 A verification on behalf of a domestic corporation, if made by an appropriate officer, is regarded as made by the corporation as the party, and is not required to state reasons nor grounds of belief. Vol. I, p. 492; Henry v. Brooklyn Heights R. R. Co., 43 Misc. 589, 89 N. Y. Supp. 525; Duryea Co. v. Rayner, 11 Misc. 294, 32 Ñ. Y. Supp. 247; Glaubensklee t. Hamburgh, etc., Packet Co., 9 Abb. Pr. 104; Am. Insulator Co. v. Bankers' & Mer. Teleg. Co., 13 Daly, 200, 7 Civ. Pro. Rep. 443, 2 How. Pr. (N. S.) 120. Contra, Robinson v. Ecuador Devel. Co., 32 Misc. 106, 65 N. Y. Supp. 427, as to officer of foreign corporation.
46 Where the parties are suing or sted upon a joint liability, under which no individual recovery may be had, one may verify for all if he is acquainted with the facts. See Pad dock r. Palmer, 32 Misc. 426, 66 N. Y. Supp. 743. A copartner is presumed to have knowledge of copartnership trarsactions. Id. But a denial of any knowledge or information may be
49 The president is always a proper officer. The secretary, treasurer, or a director, is also a proper officer. See
and that the foregoing complaint [or, answer - or, reply] is true to the knowledge of the deponent [if any allegations are on information and belief, add: except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true). * [Unless deponent appears to be one of the recognized officers, may add: Deponent further says, that he is an officer of the said corporation, to wit — state — and that his powers and duties are — state].50
FORM No. 1020.
Verification by voluntary association. [As in case of domestic corporation ; except that if suing or sued in name of president or treasurer, such officer must verify, or any other officer verifying must do so as agent or attorney.]"
FORM No. 1021. Verification where the people, or a public officer in their behalf, is the party.
A. B., being duly sworn, says [here state residence, business, etc.], and that deponent is acquainted with the facts in respect to the matters stated in the foregoing complaint (or, answer], and that said complaint (or, answer] is true [continue as in Form 1016, from the *].
FORM No. 1022. Verification where the party is a foreign corporation. [Venue.]
A. B., being duly sworn, says, that he is the agent in of [or, that he is the secretary of32 — or, that he is the attorney for] the Company, plaintiffs [or, defendants] above named, sand, if not alleged in the pleading, add] which is a corporation created by or under the laws of the State of [or, the laws of the United States, and not located in this State), and that the foregoing complaint (or, answer] is true to the knowledge
Eastham r. York State Tel. Co., 86 App. Div. 562, 83 N. Y. Supp. 1019 (director). So is an attorney who swears he has been employed to act for the corporation in matters of that character. Matter of St. L., etc., R. R. Co.. 133 N. Y. 270.
50 See Matter of St. Lawrence, etc., R. R. Co., 133 N. Y. 270.
61 So held in Talmadge 0. Louns. bury, 23 Abb. N. C. 331, 10 N. Y. Supp. 129.
62 An officer of a foreign corporation is an “agent” thereof within the meaning of Code Civ. Pro., $ 25. Robinson v. Ecuador Devel, Co., 32 Misc. 106, 65 N. Y. Supp. 427.