Opinion
June Term, 1900.
Herbert H. Walker, for the appellant.
David M. Neuberger, for the respondent.
The order which was made extending the defendant's time to answer was probably irregular, but it was not void, and the plaintiff never having appealed therefrom or taken other steps to procure it to be vacated, it was valid and operated to extend the defendant's time to answer.
The averments contained in the complaint are positive, nothing being alleged upon information and belief, and the verification is that these allegations are true. This, therefore, constitutes a complete verification under section 526 of the Code of Civil Procedure. ( Matter of Macaulay, 94 N.Y. 574.)
So far, therefore, as the verification of the positive averments of the complaint are concerned, no explanation of the source of the attorney's information was necessary, for in terms he said he was possessed of actual knowledge of the matters which he verified by his oath. Had the matter remained in that form, the verification answered every requirement of law and constituted such a pleading as required the defendant to make answer under oath. But the difficulty which the verification presents is that it goes too far in statement, as the affiant immediately proceeds to show that, as to the matters to which he made oath as facts within his knowledge, the statement was not in accordance with the truth. He says: "The sources of the deponent's information as to the facts alleged in the complaint are conversations with the plaintiff." From this statement it appears that the attorney for the plaintiff had no personal knowledge of any of the facts alleged in the complaint. This qualifies the former statement and shows the attorney disqualified to make the verification. It was, therefore, defective, and the defendant was authorized to treat it as an unverified pleading (Code Civ. Proc. § 528), and, therefore, had a right to serve an unverified answer, and plaintiff was bound to accept it. It follows that the order should be affirmed, with ten dollars costs and disbursements.
PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.