the defendant, admits it to be true so far as the matter is set out issuably. But that admission does not aid a defect of substance, or prevent the plaintiff from taking advantage of it upon the trial. If a good defense be defectively set out, the plaintiff cannot take advantage of it on the trial. But where in truth there is no defense, the case is different; and although the allegations of the answer may be proved, yet if they constitute neither defense nor counter-claim, the defendant cannot have any benefit from them (Boyce v. Brown, 7 Barb. 81; Van Valen v. Lapham, 13 How. 243).

§ 154. (Am'd 1863.) Motion for judgment on answer.

If the answer contain a statement of new matter constituting a counter-claim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.

a. A party, by not availing himself of the remedy prescribed by this section, does not waive his right to take advantage, on the trial, of admissions made by the pleadings (Bridge v. Payson, 5 Sand. 217). The motion must be made to the court (Aymar v. Chase, 12 Barb. 301); upon the summons, complaint, and answer (Brown v. Spear, 5 How. 147). Affidavit of time when answer served, and that plaintiff has failed to reply or demur.

b. Review of order.—A party dissatisfied with an order striking out his answer or defense, can review it only by an appeal from the order; he cannot review it on an appeal from the judgment (Potter v. Carreras, 4 Rob. 629).

$155. Demurrer to reply.

If a reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.

c. On demurrer to a reply, if the answer is bad in substance, the plaintiff is entitled to judgment (Halliday v. Noble, 1 Barb. 138).

d. Departure.-A reply which is a departure is irregular, and may be struck out on motion (White v. Joy, 13 N. Y. 83). Where a plaintiff, a receiver, complained on a promissory note, but did not complain as receiver, and the answer alleged that the note was the property of a receiver, without naming him, and the reply stated that the plaintiff was the receiver mentioned in the answer, and as such sought to recover, the defendant demurred,― held that the reply was a departure, but not therefore insufficient; and the demurrer was overruled (id.)

CHAPTER V.

General Rules of Pleading.

SECTION 156. Pleadings to be subscribed and verified.

157. Pleadings, how verified.

158. How to state an account in pleading; Particulars.

159. Pleadings to be liberally construed.

160. Irrelevant or redundant matter to be stricken out, and indefinite matter made more definite.

161. Judgments, how to be pleaded.

162. Conditions precedent, how to be pleaded.

163. Private statutes, how to be pleaded.

164. Libel and slander, how stated in complaint.

165. Answer in such cases.

166. Answer in actions to recover property distrained for damage. 167. What causes of action may be joined.

168. Allegation not denied, when to be deemed true.

§ 156. (Am'd 1849, 1851.) Pleadings to be subscribed and verified.

Every pleading in a court of record must be subscribed by the party, or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also.

a Subscription.—The signature to a verification of a pleading, without more, is sufficient subscription to the pleading (Hubbell v. Livingston, 1 Code Rep. 63); where an infant is a party suing or defending by guardian, the attorney who conducts the suit may subscribe the pleadings (Hill v. Thacter, 3 How. 409; and see Anable v. Anable, 24 How. 92). If a pleading is served which does not appear to have been subscribed, it should be returned with notice of the defect (Ehle v. Haller, 10 Abb. 287; 6 Bosw. 661), or the defect will be waived (id.)

b. Verification.-The verification is no part of a pleading (George v. McAvoy, 6 How. 200). Omitting to verify the complaint, or by defectively verifying it, does not render the complaint irregular (Quin v. Tilton, 2 Duer, 648). But if a defendant either omit to verify his answer, or verify it defectively in a case in which a verified answer is required, and the answer is served without a verification, it may be returned, and the plaintiff may proceed for want of an answer (Strout v. Curran, 7 How. 36). The proper mode to test the question is by a motion for judgment for want of an answer (Moloney v. Dows, 2 Hilton, 247; Hull v. Ball, 14 How. 305). An answer for two defendants which requires to be verified by both, verified by one only, cannot be returned; it is good as to the defendant who has verified it, but if the plaintiff intends to insist that the answer is defective as to the party who has not verified it, he should give prompt notice of such his intention to the defendant's attorney. By keeping the answer forty days without any such notice, he waives his right to insist on the defect (Hull v. Ball, 14 How. 305). Where the answer was served without a verification, in a case in which it ought to have been verified, and the plaintiff's attorney kept the answer nineteen days, and then returned it as defective, but without pointing out the defect, and

afterwards moved for judgment for default of an answer,-the motion was denied (White v. Cummings, 3 Sand. 716).

a. Where an answer requires to be verified, a copy of the verification, and of the signature of the person before whom the affidavit was sworn, must be served with the copy answer, or the service will be irregular; and the party on whom it is served may return it. He has a right to assume that the original is not sworn (Graham v. McCoun, 5 How. 353). The copy should include verification, and the name of the officer before whom sworn; and if it omit to state the name of the officer before whom sworn, it may be treated as an unverified pleading (Graham v. McCoun, 5 How. 353; Hughes v. Wood, 5 Duer, 603, note; Trowbridge v. Didier, 4 id. 450). The practice of moving to set aside a pleading for want of a sufficient verification is not to be commended (Wilkin v. Gilman, 13 How. 225).

b. The term "subsequent pleading," means subsequent in order of pleading, not subsequent in order of time [when pled]; therefore, an amended complaint, served after an answer has been put in, is not a subsequent pleading to the answer. If the complaint is not verified, and after answer the plaintiff serves an amended complaint, that does not render it incumbent on the defendant to verify his answer (Hempstead v. Hempstead, 7 How. 8; White v. Bennett, ib. 59). If the complaint be not verified, yet defendant may verify his answer; and if he do so, the reply, if any, must be verified (Lin v. Jacquays, 2 Code Rep. 29; Levi v. Jacquays, 4 How. 126).

§ 157. (Am'd 1849, 1851.) Pleadings, how verified.

The verification must be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true, and must be by the affidavit of the party, or, if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defense 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 allegations of the pleading be within the personal knowledge of the agent or attorney. When the pleading is veried by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading.

a. Omitting verification.-The verification may be omitted in all cases where the party called upon to verify would be privileged from testifying as a witness to the truth of any matter denied by such pleading (Laws 1854, p. 153). The privilege of a party from testifying as a witness extends to the following cases: Where the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge (Clapper v. Fitzpatrick, 3 How. 314). If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is privileged; and the witness need not explain how he might be criminated by the answer. If the prosecution to which he might be exposed is barred by lapse of time, the privilege ceases and the witness must answer (Henry v. Salina Bank, 1 N. Y. 86). So, if the prosecution be under a foreign law (King of the Two Sicilies v. Wilcox, 15 Jurist, 214). Or if the witness has been protected by statute against the use of his testimony on a trial against himself (The People v. Kelly, 24 How. 369; Re Hackley, 24 N. Y. 74: Byass v. Smith, 4 Bosw. 679). A defendant is not excused from verifying his answer by the complaint charging him with fraud in making the assignment; it is the object of the action to have set aside (Wolcott v. Winston, 8 Abb. 422; and see The People v. Gay, 7 N. Y. 382).

b. Whether or not in an action for divorce, charging adultery, the complaint being verified, the answer must be verified is doubtful; that it need not (Sweet v. Sweet, 15 How. 169; Anable v. Anable, 24 How. 92); that it must be (Olney v. Olney, 7 Abb. 350; see 2 R. S. 144, § 39). In an action for libel, if the answer denies the publication, no verification is required (Blaisdell v. Raymond, 5 Abb. 144; 6 Abb. 148; and see Re Tappan, 9 How. 394; Moloney v. Dows, 2 Hilton, 247; The People v. Kelly, 24 How. 369; and see Lynch v. Todd, 13 How. 546; Wheeler v. Dixon, 14 How. 151; Springsteed v. Robinson, 8 How. 41).

c. When agent or attorney may verify.-The attorney may verify the complaint in two cases: (1) when the action is founded on a written instrument in his possession; and (2) when all the material allegations of the pleading are within his personal knowledge (Mason v. Brown, 6 How. 484; Treadwell v. Fassett, 10 id. 184; Wheeler v. Chesley, 14 Abb. 441); (3) when the party is absent from the county where the attorney resides (Roscoe v. Maison, 7 How. 121; Latson v. Lefever, 5 Sand. 650; Stannard v. Mattice, 7 How. 4). The guardian, or the attorney for the guardian, of an infant plaintiff should verify the complaint (Hill v. Thacter, 3 How. 409; Anable v. Anable, 24 How. 92; Rogers v. Cruger, 7 Johns. 581). Where a party has several agents, the verification need not be made by the agent who knows most about the matter (Drevert v. Appsert, 2 Abb. 165). The attorney in the action may verify on behalf of his nonresident client, although it appear that the client has a resident agent (id.)

d. Verification by party in interest.-Where the action is prosecuted or defended for the immediate benefit of one not a party to the record, but who is the party in interest, the pleading may be verified by him (Taber v. Gardner, 6 Abb. N. S. 147).

e. Verification as evidence.—Where the verification is by a party to the suit, all statements contained in it are evidence on the trial against the deponent (Morrell v. Cawley, 17 Abb. 76); but where the verification is by one not a party to the suit, his statements therein are not evidence against a party to the suit (Bowen v. Powell, 1 Lans. 1).

f. Form of verification.-The form prescribed need not be literally followed (Radway v. Mather, 5 Sand. 655; Harris v. Trip, 4 Abb. 232); a substantial compliance is sufficient (Waggoner v. Brown, 1 How. 212); the substitution of "facts" for "matters" would not render verification defective (Whelpley v. Van Epps, 9 Paige, 333). The verification need not state that the deponent has read the pleading (Patterson v Ely, 19 Cal. R. 28). It should be subscribed by the deponent (Laimbeer v. Allen, 2 Sand. 648); and semble not sworn before the attorney in the action (Gilmor v. Hempstead, 4 How.

153; Anon. id. 290; Post v. Coleman, 9 id. 64). Where the verification was without a venue, and the residence of the commissioner was not stated, nor was there any thing to show where it was sworn,-held that the verification was a nullity (Lane v. Morse, 6 How. 394).

a. Out of State.-Form of verification out of the State (see 2 R. S. 396, § 25; 12 Wend. 225; 3 Hill, 463; Lahens v. Fielden, 1 Barb. 22; Laws 1863, p. 449; City B'k v. Lumley, 28 How. 401).

6. Corporation.-When the verification is by an officer of a corporation, it is in fact the verification of the corporation, and the form of verification is that of a party to the action (Glaubensklec v. Hamburg Packet Co. 9 Abb. 104).

e. Attorney or agent.-Where the verification is by the attorney, he must set forth, in the affidavit of verification, his knowledge, or the grounds of his belief on the subject, and the reason why it was not made by the party (Stannard v. Mattice, 7 How. 4; Fitch v. Bigelow, 5 id. 237; Treadwell v. Fassett, 10 How. 184; Hubbard v. Nat. Pro. Ins. Co. 11 id. 149; Bank of Maine v. Buel, 14 id. 311; Boston Locomotive Works v. Wright, 15 id. 253; Soutler v. Mather, 14 Abb. 440; contra, Smith v. Rosenthal, 11 How. 442; Myers v. Gerrits, 13 Abb. 106). Semble it is not necessary to state the absence of the party where the agent or attorney has a knowledge of the facts (Gurney v. Wersuland, 3 Duer, 613; Ross v. Longmuir, 15 Abb. 326). Verifications by attorneys held sufficient (see Dixwell v. Wordsworth, 2 Code Rep. 1; Wheeler v. Chesley, 14 Abb. 441; Mason v. Brown, 6 How. 481; Stannard v. Mattice, 7 How. 4; Smith v. Rosenthal, 11 How. 442; Myers v. Gerrits, 13 Abb. 106; Wilkin v. Gilman, 13 How. 225; Wheeler v. Chesley, 14 Abb. 442). Verifications by attorneys held insufficient (see Fitch v. Bigelow, 5 How. 237; Treadwell v. Fassett, 10 How. 184; Hubbard v. Nat Pro. Ins. Co. 11 How. 149; Mead v. Gleason, 13 How. 313; Tibballs v. Selfridge, 12 How. 64; Soutler v. Mather, 14 Abb. 440; B'k of Maine v. Bull, 14 How. 311; The People v. Allen, id. 334; Boston Loco. Works v. Wright, 15 How. 253). The forms following have been held defective: "That he has read the foregoing complaint, and knows the contents thereof, and that the same is true" (Williams v. Riel, 11 How. 375; 5 Duer, 601; but see Southworth v. Curtis, 6 How. 271). "A. B., the above-named plaintiff, being duly sworn, says the above complaint is substantially true of his own knowledge" (Waggoner v. Brown, 8 How. 212); that the party had read the pleading, and "the same is true, according to the best of his knowledge and belief" (Van Horn v. Montgomery, 5 id. 238).

d. Where all the allegations in a pleading were made on information and belief, a verification in which it was stated that the affiant "believes it to be true, all the allegations therein being made on information and belief,” was held to be sufficient (Harnes v. Tripp, 4 Abb. 232).

e Where in a pleading all, the allegations are positive, and are none of them stated to be on information and belief, the verification that it is true to his knowledge, without adding the words, "except as to the matters therein stated upon information and belief. and as to those matters he believes it to be true," is a sufficient verification (Kinkaid v. Kip, 1 Duer, 692; and see Ross v. Longmuir, 24 How. 49; and S. C. on appeal, 15 Abb. 326). The form of verification by a party does not imply that appears it on the face of the pleading what matters are stated on personal knowledge and what on information and belief (Truscott v. Dole, 7 How. 221).

f. When two defendants put in a joint answer, one defendant cannot swear to the want of information sufficient to form a belief on the part of his codefendant (Kinkaid v. Kip, 1 Duer, 692). But where in an action against two defendants they answered, "As to each and every allegation of the complaint they say they have no knowledge or information thereof sufficient to form a belief," the verification was in the following form: The defendants, "being severally sworn, says, each for himself, that the foregoing answer is true to his own knowledge, except so far as the same alleges want of sufficient information to form a belief on the part of the other defendant, that as to such allega