Peyser agt. McCormack. OAKLEY of the same court, said: "It appears from the complaint that the action is founded upon a promissory note, payable not absolutely, but upon a condition, namely, the sale by the defendant of certain property then in his hands. be doubted whether such a note is an instrument for the payment of money only, within the meaning of section It may 246." 1. If it was doubtful in such a case how clear is it, in the case at bar, that the action is not for the recovery of money only? VIII. However, for the sake of the argument, let it be conceded that plaintiff's assumption is correct, and that the action is founded upon an instrument for the payment of money only, then there is another requisite required, when the verification is made by the attorney, which is not found in the verification in the complaint in this action, and that is, when there are facts stated upon information and belief the affiant shall set forth in the affidavit the grounds of his belief. This omission renders the verification defective (Treadwell agt. Perry et al., 10 How. Pr., 184). 1. The whole complaint is upon information and belief. IX. If the position assumed by the defendant is correct, that the complaint was not properly verified, then the defendant pursued the proper course by putting in his answer without verification. He was not bound under the circumstances by the verification at all. The plaintiff's attorney was therefore in error in returning the answer, and the court erred in granting judgment as though no answer had been interposed (Wagner agt. Brown's Admrs., 8 How. Pr., 212). 1. "The verification being insufficient on its face, the defendant was at liberty to treat the complaint as if it were. not verified, and to put in his answer without oath" (Fitch agt. Bigelow, 5 How. Pr., 237). X. The second ground of error alleged in the appeal is, that justice DONOHUE granted judgment in favor of the plain Peyser agt. McCormack. tiff upon an order of reference which had been set aside, and upon a referee's report, which was not made in pursuance of any existing order of the court. 1. The order of reference in this action bears date January 22d, 1874. 2. The paper upon which the judgment was based as to the amount due will be found at folios 50 to 54 of the case, and this paper is dated January twenty-first and was filed the same day, and purports to have been made in pursuance of an order which does not exist. 3. That the judgment is based upon this paper, see folios 65 and 66 of the case. XI. It will be claimed that the order of January fourteenth, entered without first submitting it to counsel for appellant for amendment, was valid until superseded by the order of January twenty-second, because plaintiff's attorney says judge LAWRENCE, on the hearing of the motion for the settlement and modification of the order, insinuated the reference should proceed. 1. The judge's insinuations are of no moment as against the language of the order entered and signed by him, and this order bears date January 22d, 1874. XII. The plaintiff's attorney violated all rules relating to the entry of orders on contested motions, and entered his order at his peril and must suffer the consequence (Whitney agt. Belden, 4 Paige Chy., 140; Van Santvoord's Equity Pr., vol. 1, page 450). 1. "If the order is special in its provisions the party enti tled to draw up the order should submit a copy thereof to the adverse party to enable him to propose amendments thereto, if he thinks proper" (Whitney agt. Belden, 4 Paige Chy., 140). XIII. The irregularity as to the reference being the direct result of the plaintiff's attorney's conduct, he must be held responsible for all the evil consequences that ensue from the report being made and filed before the order of the twenty Peyser agt. McCormack. second was made; and if he finds himself involved in difficulty by departing from the due course and practice of the court, he is not entitled to any relief at the hands of the court, and the justice erred in granting the judgment (La Farge agt. Van Wagenen, 14 How. Pr., 54). XIV. The order being important to the defendant, the true time of entering the order should appear. "The date or caption of the order should be made to correspond with the time of its actual entry " (Whitney agt. Belden, 4 Paige Chy., 140 and 141; Matter of Myers et al., 3 How. Pr., 234). XV. The respondent's attorney will urge upon the court that the answer was interposed for delay, and the appellant has no merits on his side. With this the court has nothing. to do, for the plaintiff being clearly irregular the court has no right to consider the question whether the defendant has merits or his motive is to delay (Hughes agt. Wood, 5 Duer, 603, note). XVI. The judgment should be reversed with costs and the defendant's answer adjudged sufficient, and the case at issue, and the plaintiff left to prosecute his action, as in an ordinary action where issue joined. Julius Lipman, for respondent. I. The appeal in this case is oppressive and obstructive of justice. The appellant has no interest. The complaint alleges a sale of the mortgaged premises by the mortgagors to the appellant and one William G. McCormack subsequent to the mortgage. The attempted answer of the appellant simply denied each and every allegation in the complaint. There is no personal claim or judgment of any kind demanded against him. He denies every allegation. Give him the benefit of the denial, and assume his answer had been duly verified and received. What then? There was no Peyser agt. McCormack. material issue raised, for the reason that, even although the appellant's denial were true, the plaintiff would, nevertheless, have been entitled to the judgment prayed for. If appellant had not purchased the premises that allegation did not injure him so long as no personal claim was made against him, and he could have no interest or right to object to decree of foreclosure and sale. The plaintiff ought not to be compelled to litigate with a party who, according to his own allegations, has no interest in the subject-matter of the suit, and from whom nothing is asked. The law does not permit it. No one can appeal from an order or decree who is not injured thereby; and even a party aggrieved by one branch of a decree does not thereby acquire a right to call in question another portion of the decree which has no bearing or effect upon his rights and interests (Cuyler agt. Moreland, 6 Paige, 273). II. Upon the face of the printed case there is nothing whatever to show any grounds for appeal against the judgment. The law assumes every thing in favor of its regularity. 1. A new trial will not be granted to correct a mere technical error (Devendorf agt. Wert, 42 Barb., 227; Van Vechten agt. Griffiths, 1 Keyes, 104; Stephens agt. Wider, 32 N. Y., 351; Casey agt. Fairchild, 18 Johns., 129). 2. Nor where the reason given for the decision is wrong, but the decision itself is right (Monroe agt. Potter, 22 How., 49; Deland agt. Richardson, 4 Denio, 95; Hottinger agt. National Exchange Bank, 6 Abb. [N. S.], 292). 3. An appellate court has authority to modify the judgment according to the justice of the case, without regard to technical errors (Brownell agt. Winnie, 29 N. Y., 400; Tilou agt. Kingston Mutual Ins. Co., 5 N. Y., 405; Fields agt. Moul, 15 Abb., 6; Staats agt. Hudson River Railroad Co., 33 How., 463). 4. Upon the answer having been returned, appellant ought to have made a motion to compel plaintiff's attorney to Peyser agt. McCormack. receive it. In place of that he remained passive until the motion to compute. 5. He then appeared and opposed the motion, based upon the ground of the supposed defective verification of the complaint; that ground was overruled by justice LAWRENCE, but merely on account of a defect in the preamble of the order; upon motion of appellant a new one was entered. 6. Although a new order of reference was entered, it was only pro forma and in aid and confirmatory of the first, so as to allow the appellant to appeal from it. The first order was not vacated, and both should be read together. Intermediate the first and second orders the reference took place, upon due notice, and the referee's report made and filed. 7. There having been no stay of proceedings, the plaintiff's proceedings were regular. 8. It was quite unnecessary, would have been only a waste of expense, to go over the same ground again under the second order. 9. The appellant sustained no prejudice by it; and even assuming, for the sake of argument, that an irregularity may have been committed, so long as the general facts and features show that the party complaining has not been prejudiced, the court will not set aside the judgment (Klock agt. Buell, 56 Barb., 398; Lamb agt. Camden & Amboy Railroad Co., 2 Daly, 455; Munroe agt. Potter, 22 How., 49; Deland agt. Richardson, 4 Denio, 95). III. Should the appellant raise the question of the sufficiency of the verification of the complaint, the plaintiff submits that it is perfectly regular and authorized by law. By section 157 of the Code, the affidavit or verification of the attorney is clearly and indisputably allowable in two cases: First. When the action or defense is founded upon a written instrument for the payment of money only, and such instrument is in his possession. And, second. When all the material allegations of the pleading are within his personal knowledge. |