Felix v. Josephthal

Guy, J. The summons and complaint herein were served on J anuary sixteenth. On the afternoon of J anuary twenty-second, defendants served a copy of an unverified answer, which was returned within twenty-four hours. The next day, no copy of a verified answer or demurrer having been served in time, the plaintiff entered judgment by default. The motion to vacate the judgment was granted, not as matter of discretion, but on the following ground: “ Sharp practice was attempted in this proceeding,. and the result is the biter is bitten. An answer having been served within time and having been returned for want of a copy of the [268] verification, the plaintiff was bound to wait a reasonable time in order to permit the defendants to correct the defect pointed out, and at least twenty-four hours for that purpose should be allowed as a reasonable time. Instead of so doing, plaintiff proceeded to enter judgment and issue execution.” It-is claimed that the original answer was in fact verified, although it is admitted that the copy served did not purport to be verified. The opposing party has, however, the right to rely on the correctness of the copy served upon him for the purpose of a motion. Klenert v. Iba, 17 Misc. Rep. 69; Guarino v. Fireman’s Ins. Co., 44 id. 218; McCarron v. Cahill, 15 Abb. N. C. 282; Trowbridge v. Didier, 4 Duer, 448; Welsbach Commercial Co. v. Popper, 59 N. Y. Supp. 1016; 31 Cyc. 596. Otherwise a defendant having a dilatory or unmeritorious defense could serve a copy of an unverified answer and thus extend the time to plead by vacating the judgment entered thereon under the plea that he was not bound to serve a correct copy or even alter the original answer by filling in a verification thereon, and dat-' ing it under the date when it should have been served. Plaintiff was within his rights in entering judgment by . default, and also in having execution issued thereon. The court below, however, had power, in its discretion, to open the default and to permit defendants to answer on terms that were just and proper. The imposing of costs upon the plaintiff in the granting of the motion was clearly erroneous. Defendants should have been compelled to pay the ten dollars costs of motion, and all disbursements, including sheriff’s fees, incidental to the entry of judgment and the issuing of execution thereunder.. The order must, therefore, be modified so as to provide that the motion is granted upon payment by defendants to plaintiff of ten dollars costs and the sheriff’s fees, $164.93, and, as so modified, affirmed, without costs of this appeal to either party. Seabuby and Gebaed, JJ., concur. Order modified and, as so modified, affirmed, without costs