Tausend v. Levy

PER CURIAM. The summons in this case was served without any complaint. Upon the return of the summons oral pleadings were indorsed upon the record, and to the complaint the defendant interposed a demurrer, which was sustained, with leave to the plaintiff to plead over. The plaintiff thereupon filed a written verified complaint, and the defendant filed an unverified answer containing a general denial. Thereupon, against the objection of the defendant, the court gave a judgment in favor of the plaintiff upon his verified complaint. This was error. The plaintiff should have been put to his proof. Unless a verified complaint is served with the summons, an unverified answer put the plaintiff to his proof. Sections 145 and 147, Municipal Court Act; Whitman v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760. The judgment was not a default judgment. The record contains the defendant's answer, -and he appeared when the judgment was taken. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.