Morris v. Fowler

Patterson, J.: This is a motion to compel the plaintiffs to accept an unverified answer and to set aside any judgment entered on default of service of an answer. The action is for goods sold and delivered and the allegations are positive, and none on information and belief. There is an attempted verification of the complaint made by Mr. Byrne, the attorney for the plaintiffs, and it is peculiar in form. He says that he resides in the borough of Manhattan and that lie is the the plaintiffs’ attorney; “ that he has read the foregoing complaint, and that the same is true of his own knowledge and belief, except as to the matters therein alleged on information and belief, and as to these matters he believes it to be true.” If that were all, it would be a good verification (Kieley v. Barron, 87 App. Div. 317), but the affiant goes on further to say “ that the grounds of his belief and the source of his information, as to the matters therein not stated on his knowledge, are as follows: * * * He has interviewed the defendant and has received letters from the defendant acknowledging his indebtedness to the plaintiffs and promising to pay same. Deponent further says that the reason this verification is not made by the plaintiffs or either of them, is that the plaintiffs are without the State of Hew York, and have no personal knowledge of the facts herein stated.” This is not a good verification, for the reason stated in Moran v. Helf (52 App. Div. 481), [247] viz.: That from the statements in the affidavit of verification, it appears that the attorney had no personal knowledge of the facts stated in the complaint. The defendant served an unverified answer which was returned. He insists that he was entitled to put in such an answer, and in view of what was held in the case last cited, 1ns contention is right. It was there decided that an unverified answer-may properly he served to a complaint which is verified as the one in the case at bar is. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. O’Brien, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result.