Wolcott v. Winston , 8 Abb. Pr. 422 ( 1859 )

Roosevelt, J.

The defendants, I think, were bound to verify their answer. The matter of the complaint involved no charge of felony. And even if it might be construed, as I think it could not, into a criminal misdemeanor, yet as the Code (§ 157) provides that no pleading in a civil suit can be used in any criminal prosecution as proof against the party, the defendants would incur no risk, if their statements were true, in swearing to them. Their oath could only be used in this action. And 2 Revised Statutes (§ 405) provides that a witness shall not be excused from answering on the ground merely that his answer may subject him to a debt or civil suit. The act of 1854, therefore, which gives the defendants the privilege of witnesses, does not exempt them from the obligation to verify their pleading.

The answer objected to must be stricken out (and judgment rendered for plaintiffs), unless it be duly verified, or another in its stead, in ten days from the service of this order.