Dehn v. Sherman ( 1909 )

Smith, P. J. :

This action was commenced on the 27th of March, 1909, with the service of a summons and notice of judgment. The defendant appeared and a copy of the plaintiff’s verified complaint was served on the twentieth of April. Thereafter various extensions of time were given to the defendant until the 7th day of September, 1909,' when she served an unverified answer. • This was returned as unverified, and was again served by the defendant, who claimed the right to serve an unverified answer because the letters “ ss ” had been omitted from the verification in the plaintiff’s complaint. Finally this motion was made; by the defendant at a Special Term held on the twenty-fifth of September to compel the plaintiff to receive the unverified • answer or for permission to serve a verified answer if the relief first asked for were denied. The court held that the complaint was properly verified ..and the plaintiff was entitled to a verified answer, but allowed the defendant to serve an answer within twenty days upon payment of ten dollars costs. From this order the plaintiff appeals. ■ , - '

■ We are of opinion that this order should not have been granted without something' to- show that the defendant, had a meritorious defense. There is no affidavit of merits attached; there is no verified answer accompanying the notice of motion. The fact of the defendant’s insistence upon serving an unverified answer raises a suspicion as to the merits of her defense. In the plaintiff’s papers is included a letter from the- defendant, which to an extent recog-, nizes the. plaintiff’s claim. It may be that á failure to object preliminarily waived a compliance with the rule that a verified answer must be served with the notice of motion, or that a general affidavit of merit's must be served. "It did not waive, however, the right of the plaintiff to insist that some facts appear before the court to show that the defendant was not merely seeking delay. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, without costs, with leave to. renew upon papers .showing that the defendant has a.'substantial defense to the plaintiff’s cause of action.

" All,concurred.

Order reversed, with ten dollars costs and-disbursements, and motion denied,, without costs,, with leave to renew upon papers showing that defendant has a substantial defense to plaintiff’s cause of -action. -