Youngs v. Seely , 12 How. Pr. 395 ( 1855 )

By the court—Welles, Justice.

The provisions of the Code on the subject of verifying pleadings, are contained in §§ 156 and 157. The latter of these sections declares that if the pleading is required to be verified, it must be done 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.

In this case, Mrs. Seely is made a party for the purpose of litigating and settling any claim she may have under her deed from her father, Abel B. Hunt. That deed is charged to be fraudulent. If it is valid, the plaintiff clearly has no claim or right in the premises. On that question her interest, in a legal point of view, is distinct and separate from her husband, the other defendant. Her right under the deed, if it shall be held valid, will amount to a separate estate, which she would have a right to dispose of under the statutes of 1848 and 1849, independently of her husband. If this view be correct, the answer should have been verified, as well by her as by her husband, Peter J. Seely.

The question of multifariousness does not arise on this motion. That question could only arise on a motion by the defendants to strike out a portion of’ the complaint, or upon demurrer to the complaint under § 144, sub.'5. By omitting to move or demur for that cause, the defendants are to be deemed as having waived the objection. (§ 148.)

I think, also, the special term was correct in ordering judgment unless the conditions of the order were complied with. The complaint made out a case for the relief demanded, except for the objection that several causes of action were improperly joined in the same action, which, as before remarked, can only be raised on demurrer, or motion to strike out.

Order appealed from affirmed, with $ 10 costs.