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of deponent (except as to those matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true), and that the reason why this verification is not made by the party is that the party is a foreign corporation (and where any allegation of the pleading is stated to be made on informa tion and belief, must set forth the sources of information and grounds of belief.53 See Form 1025]. [Jurat.]

[Signature.] FORM No. 1023. Short verification by agent or attorney when all the material allegations are

within his personal knowledge. [Venue.]

A. T., being duly sworn, says, that he is (one of] the attorney [s] for the plaintiff [or, the defendant] herein [or, the agent54 at of the plaintiff — or, defendant — herein). That the foregoing complaint (or, answer] is true * to the knowledge of deponent; and that all the material allegations of said complaint [or, answer] are within the personal knowledge of deponent.55 [Jurat.]

[Signature.] FORM No. 1024. The same, when the action or defense is founded on “a written instrument

for the payment of money only,”56 which is in his possession. [As in last Form to the *, continuing thus:] true to the [personal"] knowledge of deponent [but if any allegation is 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).

That this action [or, the defense in this action is founded upon a written instrument for the payment of money only, now in deponent's possession, which instrument is the source of de ponent's information and the grounds of his beliefs [may add other sources and grounds, if any; 59 see two next Forms]. [Jurat.]

53 Robinson v. Ecuador Devel. Co., supra. Not necessary when all the allegations in the pleading are on knowledge. Am. Audit Co. v. Ind. Fed. of Am., 84 App. Div. 304, 82 N. Y. Supp. 642.

54 The Code does not prescribe in what respect the agency must exist, or that the nature of it be stated in the verification. Beyer v. Wilson, 46 Hun, 397, 27 Wkly. Dig. 496, 12 St. Rep. 415.

55 No explanation of the source of the affiant's knowledge is necessary. Moran 1. Helf, 52 App. Div. 481, 65 N. Y. Supp. 113. If, however, the affidavit attempts to state the source

of his knowledge, from which statements it appears that he has no personal knowledge, the verification is a nullity. Id.; Morris 1. Fowler, 99 App. Div. 245, 90 N. Y. Supp. 918.

No reason need be assigned why the verification is not made by the party. Betts v. Kridell, 20 Abb. N. C. 1, 13 Civ. Pro. Rep. 157, 12 St. Rep. 163.

56 Foreclosure is not such a suit. Peyser v. McCormack, 7 Hun, 300.

57 This word is not necessary, but imports another ground for allowing substituted verification if no material allegations are on information and belief.

[Signature.] FORM No. 1025. Verification by attorney or agent, because the party is not within the county,

or is incapable.60 [Venue.]

A. T., being duly sworn, says, that he is [one of] the attorney [s] for the plaintiff [or, the defendant Y. Z.] in this action, and resides at in the county of [and, if in another State, name such State and add: and has his office at

, in the county of , in this State]; [or, if the verification is by an agent: that he is the agent of the plaintiff; that the plaintiff's attorney resides at , in the county of

1; 61 that the foregoing complaint [or, answer] is true to the knowledge of the deponent [but if any allegation is 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].

Deponent further says, that the grounds of his belief as to all matters therein not stated upon his knowledge, are as follows [as thus] : that he has possession of the notes mentioned in the complaint, and of letters from the defendant acknowledging his liability thereon and promising to pay the same,62 and of the notarial certificate of demand and of notice of dishonor, given to defendant upon the non-payment of said notes at maturity. [Or, thus: from information received from the letters of plaintiffs, now in deponent's possession, and also from the admissions of defendant

58 This Form is sustained by Hyde v. Salg, 27 Hun, 369. The statute includes a corporation plaintiff. Syr. acuse Molding Co. v. Squires, 15 N. Y. Supp. 321, 21 Civ. Pro. Rep. 58.

59 It was held in Matthews v. Smith, 9 Civ. Pro. Rep. 165, and Smith v. Rosenthal, 11 How. Pr. 442, that a disclosure of source of information and ground of belief was not in this case essential.

60 An answer cannot be interposed containing denials on information and belief, and verified by the attorney, in a case where from the nature of the charge the defendant himself must have knowledge. Pardi v. Conde, 27 Misc. 496, 58 N. Y. Supp. 410 (de

fendant charged with uttering slander).

61 It is the attorney's residence which determines the right to make the verification. Code Civ. Pro., $ 525.

62 Documents may be thus referred to for the mere purpose of verifying the pleading, without reciting tenor or annexing copies. Moorhouse 0. Hutchinson, 2 Dem. 429. But if the verified pleading is relied on as proof of matters in the documents in support of an application on the pleadings — as for instance, an attachment

copies must be given, or a separate affidavit produced which will satisfy the rule. See p. 903 of Volume I,

';.

.

to this deponent made on the day of , 19 , that he was owing to plaintiff the full amount as claimed in the complaint.] 63*

Deponent further says, that the reason why this verification is not made by said plaintiff [or, defendant] is that said plaintiff [or, defendant, or, that each of the officers of the plaintiff64] is not within the said county of 648 [or, if within the county is not capable of making this verification by reason of here state the cause, such as sickness]. [Jurat.]

[Signaiure.]

FORM No. 1026.

The same, for two or more parties united in interest and pleading together,

when neither acquainted with the facts is within the county.

[As in last Form to the *, substituting for last paragraph the following:]

That the reason why this verification is not made by either of said parties is that they are parties united in interest, and pleading together, but no one of them acquainted with the facts is within the said county of [Jurat.]

[Signature.]

FORM No. 1027. Verification of answer, referring exclusively to counterclaim therein.65 [Venue.]

Y, Z., being duly sworn, says, that he is the defendant above named, that the counter-claim contained in the foregoing answer, stated as the [second] defense therein, is true to the knowledge of the deponent [if any allegation is on information and belief, add: except as to the matters in said counter-claim stated to be alleged on information and belief, and that as to those matters he believes it to be true).

63 From High Rock Knitting Co. v. Bronner, 18 Misc. 627, 43 N. Y. Supp. 725; aff’d, 29 App. Div. 627; Dupar. quet 0. Fairchild, 49 Hun, 471, 2 S. Y. Supp. 264, 15 Cit. Pro. Rep.

256.

Neither the substance of the letters nor the conversations need be set forth. Id.

64 An attorney may verify for a domestic corporation when no officer is within the county of the attorney's

residence. Climax Specialty Co. v. Smith, 31 Misc. 275, 64 N. Y. Supp. 42, 7 Anno. Cas. 373; High Rock Knitting Co. o. Bronner, 18 Misc. 627, 43 N. Y. Supp. 725; affod, 29 App. Div. 627.

64a A mere allegation that the party resides in another county is not enough. Boyce x. Demars, 114 App. Div. 284.

65 Allowed by Code Civ. Pro., § 527, when complaint is unverified.

FORM No. 1028. Notice of election to treat pleading as a nullity.88 [Title of court and cause.]

Please take notice that the within answer is hereby returned and] plaintiff elects to treat the same as a nullity, on the ground that it is served without a copy of a sufficient verification (and if a form of verification is attached to the pleading, which is claimed to be irregular, state the objection explicitly by pointing out the particular defect or omission.] 07 [Dated.]

[Signature.]

Attorney for plaintiff. Το

Attorney for defendant.

66 See paragraph 4, p. 1363.

67 Snape v. Gilbert, 13 Hun, 494.

ARTICLE IV.

FILING AND SERVING PLEADINGS.

FORMS. I. DEMAND; AND ENLARGING TIME. 1037. Order for trial, to prevent sum

mary judgment against cor1029. Demand of copy of complaint.

poration in action for dam1030. Order extending time to serve

ages for non-payment of complaint.

note or other evidence of 1031. Affidavit to move for extension

debt. of time to answer or demur, 1038. Notice indorsed on pleading or otherwise move.

returned. 1032. Notice oi motion or order to show cause to enlarge time

III. FILING. to answer or demur, etc. 1039. Affidavit to move to compel 1033. Order extending time to plead,

filing of pleadings. etc.

1040. Certificate that pleadings are 1034. Stipulation extending time to

not filed. plead, etc.

1041, Order that pleadings, etc., be 1035. Conditions attached to such

filed or deemed abandoned. stipulation.

IV. OPENING DEFAULT. II. SERVING; AND RETURNING. 1042. Notice of motion or order to 1036. Notice indorsed on answer

show cause upon application served on co-defendant.

to open default and serve complaint.

I. DEMAND; AND ENLARGING TIME.

FORM No. 1029.

Demand of copy of complaint.68 [As in Form 437 or 439, Vol. I, pp. 736, 738.]

FORM No. 1030.

Order extending time to serve complaint.69 [Name of] Court (or, if court order] At a Special Term [etc.,

as in Form 820, p. 1174]. [Title of action.]

On the annexed affidavit of A. B., verified ,19 , and the summons [and other papers, if any]:

68 For demand of copy account or bill of particulars, see Article IX, p. 1394.

Where the defendant voluntarily appears, his demand for a copy of the complaint sets the time running, although service by publication is in progress. Eleventh Ward Bank I'.

Powers, 43 App. Div. 178, 59 N. Y.
Supp. 314; Sanders v. People's Co-op.
Ice Co., 44 Misc. 171, 89 Ñ. Y. Supp.
785.

69 For a fuller Form, see Vol. I, p. 410.

Before a default may be made by the court, or by any judge authorized

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