George v. McAvoy
New York Supreme Court
The action in this case was commenced by service of summons and complaint not verified. The defendant put in his answer without oath. The plaintiff then served what purported to be an amended complaint, in precisely the words of the original complaint, with the addition of a verification. The defendant refused to receive it, and the plaintiff in due time took judgment against him for want of an answer. A motion is now made to set aside the judgment for irregularity.
1Opinion of the Court
Pratt, Justice.
The motion must be granted. The verification is no part of a complaint under the Code. In serving a new complaint with a verification attached, is no amendment of that pleading. The defendant’s attorney, therefore, was not bound to receive it. At all events, as the allegations were not changed, it required no new answer.
Perhaps it might be well enough for the legislature to provide some way to enable the plaintiff, when he has reason to suspect the good faith of the defendant in putting in his answer, to require him to verify it, but I find no such provision now in the Code. As…
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