JAILLARD v. TOMES

JAILLARD v. TOMES. N. Y. Supreme Court, First Department; Chambers, August, 1877. Pleading.—Sham Answeb. Where a verification of an answer, made by the defendant’s agent or attorney, contains an allegation inconsistent with an allegation in the answer, defendant may be required to verify in person. Motion by plaintiff to strike out an answer as sham. Louis Jaillard and another, sued Benjamin Tomes and Robert H. Melvain, for goods sold and delivered. The complaint alleged, that at the times mentioned in the complaint, the defendants Tomes and Melvain were copartners, carrying on business in the city of New York, and also contained other allegations in respect to the sale and delivery of the goods therein mentioned. The complaint was verified, and required, therefore, a verified answer. The defendant Benjamin Tomes put in an answer denying every allegation in the complaint. This answer was verified by one of his attorneys, who stated "in the verification that the ground of his belief as to the truth of the answer “is information derived from the defendant Robert H. Melvain, who was a partner of said Tomes at the times mentioned in the complaint.” This statement, in the verification, was directly contradictory to the statement contained in the answer, that the defendants were not copartners. Coudert Brothers, for plaintiff. Weeks & Forster, for defendant. See Code of Oiv. Pro. §§ 525, 528. [MAJORITY — Van Brunt, J.] Van Brunt, J. [After stating the facts.]—I think that the plaintiffs are entitled to an order requiring the defendant Tomes to serve an answer verified by himself in the action, and that the plaintiffs are also -entitled to the costs of this motion.