Myers a Gerrits. Appeal from an order refusing to set aside a judgment. This was an action on two promissory notes. The complaint was verified as follows: [Venue.] Angelo L. Myers of said city, being duly sworn, doth depose and say, that the above complaint is true to his own knowledge, except as to those matters stated on information and belief, and as to those matters he believes it to be true. That the plaintiff is now absent from this State, which is the reason why this verification is not made by him: that deponent's knowledge is derived from possession of the notes in suit, and from other sources. [Jurat.] [Signature.] On the last day to answer, the defendant's attorney served an answer of general denial, unverified, which the plaintiff's attorney declined to receive, and entered up judgment as for want of an answer. The defendant moved, at special term, to set aside the judgment for irregularity, which motion was denied, and he now appealed to the general term. D. Evans, for the appellant.-I. The Code, section 157, which allows a substituted party to verify, must be complied with strictly, so far as to show with certainty, from the facts stated, that the person verifying is the attorney or agent. II. The Code (section 157) requires two things to appear, in an action on a written instrument (when the facts are not in the personal knowledge of the attorney), when verified by a person other than the plaintiff: 1st, that the person verifying is the agent or attorney; and 2d, that the instrument be in the possession of the agent or attorney so verifying. Neither of these facts exist here; the affidavit does not state he is agent or attorney, nor does he state that he was in possession of the notes at the time of verifying. III. If the verification showed a sufficient possession, this would be only one of the facts to be shown; the act requires also that he must be the agent; and to say that that affidavit shows possession, and proves the agency, is equivalent to saying that the Legislature ought not to have required proof of these Myers a. Gerrits. distinct things, and involves a judicial repeal of so much of the act, IV. It necessarily involves such repeal, because, if the principle is affirmed, it will only be necessary hereafter to place any writing sued on in the hands of the attorney's clerk, or any other person, and then he verifies the complaint or answer by swearing it is in his possession, &c., without his being, or professing to be, the agent or attorney of the party plaintiff or defendant. W. J. Osborne, for the respondent.-I. The complaint is verified under section 157 of the Code. The first ground of objection urged is, that Angelo L. Myers, the deponent, does not state that he is the agent or attorney of the plaintiff. Section 157 does not require that the deponent shall state in what capacity he makes the affidavit. It simply states that the affidavit "may be made by the agent or attorney," and the natural inference to be drawn from the possession of the notes as averred in the affidavit is, that the deponent was such agent. II. The second ground of objection is, that the deponent's knowledge, or the grounds of his belief, are not sufficiently set forth in the verification. It has been decided time and again that mere possession of a promissory note is evidence of ownership, and gives the holder the right to demand and receive payment of the same. (Mauran a. Lamb, 7 Cow., 174; Bank of Utica a. Smith, 18 Johns., 230.) And in the case of Smith a. Rosenthall (11 How. Pr., 442) it was decided that an averment of the possession of the note in suit was a sufficient setting forth of the deponent's knowledge or the grounds of his belief. Possession is a sufficient ground of knowledge. (See Lefevre a. Latson, 5 Sandf., 650.) Again, section 157 requires the deponent to set forth "his knowledge, or the grounds of his belief." Here the deponent swears that "the complaint is true to his own knowledge;" and the word "or" indicates that where "knowledge" of the averments in the complaint is expressly sworn to, no statement " of the grounds of belief" is necessary. (Tibballs a. Selfridge, 12 How. Pr., 64.) III. Another point to which the attention of the court should be called is, that the affidavit on which the order to show cause was granted, does not set up any merits, or pretend that there Myers a. Gerrits. is any defence to the suit. It seems, then, scarcely equitable that the plaintiff should be held to too strict a compliance with the statute. BY THE COURT.*-BRADY, J.-The verification in this case is sufficient. By section 157 of the Code, the verification may be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material facts relating to such instrument, - and embraced in the allegations of the pleading, be known to such agent or attorney. The possession of the instrument alone is enough to authorize an agent or attorney to verify the complaint. This seems to be very clear as a matter of construction, and is sustained by the case of Smith a. Rosenthall (11 How. Pr., 442). The doubt presented, however, arises from the fact that the verification does not contain an averment that the person making it is the agent of the plaintiff. The deponent states, however, that the plaintiff is absent, and that his knowledge is derived from the possession of the notes in suit, and the conclusion upon such facts fairly is, that the affiant is the agent of the plaintiff; at all events, it is sufficient to put the defendant to proof to the contrary, where he discloses no defence, and does not sustain his appearance by merits. The Code does not require the person who makes the oath to state that he is an agent, and if facts are presented from which that relation may be reasonably inferred, it ought to be considered as existing in a case like this. I think the order made at special term should be affirmed. * Present, DALY, F. J., HILTON and BRADY, JJ. The Merchants' Insurance Company a. Hinman. THE MERCHANTS' INSURANCE COMPANY OF THE CITY OF NEW YORK a. HINMAN. Supreme Court, First District; General Term, June, 1861. NEXT OF KIN.-INFANCY.-DELAY OF FORECLOSURE. The term "next of kin," used in 2 Rev. Stat., 451, § 23,-which provides that actions against next of kin of a decedent, to recover assets paid them by an executor or administrator, may be brought against all jointly, or one or more, -means those to whom, under the act of distribution, the estate of the deceased would pass. An action may properly be brought, under 2 Rev. Stat., 451, § 23, against infant next of kin, where the amount of the estate coming to them, as such next of kin, has been paid over to their general guardian. In such case the judgment should direct the money to be paid out of the funds in the hands of the guardian. Mere delay in foreclosing a mortgage, without any request or notice to foreclose, and where the interest has been paid, is not enough to charge on the mortgages the consequences of a fall in the value of the property. In June, 1850, Thomas Lewis executed to plaintiffs a bond conditioned for the payment of $20,000, and interest, which bond was secured by a mortgage upon five lots, in the county of Kings, made by Thomas Lewis and Clarissa C., his wife. Thomas Lewis died intestate, leaving him surviving, his widow, Clarissa C. Lewis, who afterwards intermarried with the defendant, Richard H. Hinman; Clara C. Lewis, Charles P. Lewis, and Thomas S. Lewis, infant children, and Joseph B. Lewis, who afterwards assigned his interest in decedent's estate to William Hutton. In August, 1854, Andrew V. Stout was appointed administrator of Thomas Lewis. The mortgage became due in June, 1851, and the interest was paid regularly up to July 1, 1855; and on the first of May, 1856, plaintiffs commenced an action to foreclose the mortgage, making the administrator a party. The premises were sold at public auction by the sheriff, on the third of November, 1856, in presence of the defendant, Richard H. Hinman, and the guardian ad litem of the infant defendants, and others. The sheriff reported a de The Merchants' Insurance Company a. Hinman. ficiency of $7,674.14, for which judgment was docketed against the administrator on the 17th of November, 1856, and an execution issued on the judgment to the sheriff of Kings county on the 18th of November, 1856. The accounts of the administrator were finally settled on the 11th of July, 1856, and the assets decreed to be paid as follows:-To the defendant, Clarissa C. Hinman, $18,109.13; and to each of the defendants, Clara C., Charles P., and Thomas S. Lewis, $9,054.57. Clarissa C. Hinman's share was, in fact, paid to Solomon Handford, who had advanced her money, and to whom she had assigned it; and the shares of the others were paid to their general guardian. The present action was brought to recover the deficiency. A decision upon a question which arose in a former stage of this case, is reported, 4 Abbotts' Pr., 312. The complaint was served December 26, 1856, and contained substantially the facts above set forth. The answer of the infant defendants, by their guardian ad litem, was served February 16, 1857, and contained a general denial, and alleged laches on plaintiff's part, in foreclosing the mortgage, and other outstanding debts of the decedent. The answer of Hinman and wife was served November 27, 1857, and denied that Mrs. Hinman was next of kin to Thomas Lewis, deceased, or that her husband received any of decedent's estate as next of kin, or that she had any separate estate, or that execution was duly issued against the administrator; and alleged laches on part of plaintiffs, and other outstanding claims against decedent. William Hutton did not appear; and as to him, the complaint was dismissed. Joseph B. Lewis was not served with process, and did not appear in the action. Judgment was rendered at special term against all the defendants, except the two last named, for the full amount of the claim, to be apportioned as the statute directs. And from that judgment the defendants appealed. Philip G. Galpin, for the appellants Hinman and wife.I. The appellant, Mrs. Hinman, is not contemplated by the statute as being liable, she not being one of the next of kin. (Coles a. Savage (cited), 18 Ves.,.53; Garrick a. Lord Camden, 14 Zb., 376, 381, 386; Watt a. Watt, 3 Пb., 244; Bailey a. Wright, 18 1b., 49; Cholmondey a. Lord Ashburton, 6 Beav., 86.) 1. The Statute of Distribution directs the estate to be distributed to the |
