Rosenthal v. Cohn , 105 N.Y.S. 943 ( 1907 )

Wadhams, J.

Motion is made by the defendant for an order vacating the judgments and to compel plaintiff to receive answers. The answers were served within the time allowed hy statute and purported to he verified. Within twenty-four hours after receipt the plaintiff returned the answers indorsed with the following notice: “ Sir: Please to take notice that the within answer is hereby returned to you upon the ground that the same is not verified in accordance with the general rules of practice, and the same is therefore treated as a nullity in accordance with section 528 of the Code of Civil Procedure.” This notice was received by the defendant at nine o’clock in the morning, and at twelve o’clock of the same day judgment had been entered, execution issued and the sheriff had levied and placed a keeper in charge. The defects in the verification complained of are that no venue is stated, and that the jurat is subscribed “Wm. G. H. Mason, notary ¡No. 155.” It is not necessary to pass upon the sufficiency of the verification. The plaintiff is himself at fault in his practice, and may not take advantage of the defendant’s omissions. Section 528 of the Code of Civil Procedure provides: “ Where the copy of a pleading is served without a copy of a sufficient verification, in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice, with due diligence, to the attorney of the adverse party that he elects so to do.” Under this section the party aggrieved may proceed, but he must in his notice returning the pleading point out the precise defect in the verification. It is not sufficient to say simply that the pleading is not properly verified. Snape v. Gilbert, 13 Hun, 494; 1 Rumsey Pr. 345. In the case cited the notice which accompanied the papers which were returned read: “ Please to take notice that the plaintiff refuses to receive and hereby returns the within answer on the ground and for the reason that the same is not properly verified, and will treat the same as a nullity.” The court said: “This notice was too general. When a paper is returned on the ground of irregularity the objection ■must be stated explicitly, and the particular defect or omission should be pointed out so that the other party may understand wherein Ms papers are defective. The rule was intended to accomplish this result,?, This case, vyhich wa,s decided ip. the First Department in 1878, does not appear to have been questioned, and although it is a decision construing the Code it is equally applicable to the Code of Civil Procedure. Moreover, where a pleading is returned because of a defect in its verification and notice is served of an intention to treat the pleading as a nullity because of such defect, the party who served the pleading is entitled to a reasonable opportunity after the service of such notice in which to correct the error or supply the omission. It is for that very reason that the particular defect must be specified. Fusco v. Adams, 19 Civ. Pro. 48. The plaintiff in the case before me neither specified the particular defect nor gave the defendant a reasonable opportunity to correct his errors. Judgment was entered without notice to the defendant and within three hours after service of the notice execution had been levied. Under the circumstances the judgments must be vacated without the imposition of terms, and the plaintiff directed to accept service of the defendant’s answers within two days, after service of a copy of the orders to be entered upon these motions.

Motion granted.