Hull v. Ball

Harris, Justice. Three distinct causes of action were combined in this one suit. The defendants may have a common defence, yet each must defend for himself. Their interest is, in no respect, a joint or united interest. Whether, therefore, they answered separately or jointly, each was required to verify his answer. (Andrews agt. Storms, 5 Sand. 609.) The answer served being unverified, as to the defendants Ball and Baxter, the plaintiff’s attorney was not bound to receive it as their answer. But, as it was properly verified by the other defendant, the answer could not be returned. Under these circumstances, it was the duty of the plaintiff’s attorney, if he did not intend to waive his right to insist upon an answer, verified by all the defendants, to give prompt notice to the defendants’ attorneys, so that they might, if they had seen fit to do so, serve another answer duly verified, or, if the time to answer had expired, apply to the court for relief. (White agt. Cummings, 3 Sand. 716; Strauss agt. Parker, 9 How. 342; Strout agt. Curran, 7 id. 36.) The plaintiff’s attorney, having retained the answer from the 14th of August to the 22d of September without objection, must be deemed to have waived his right to insist upon any defect in the mode of verification. The motion must, therefore, be denied, with costs.