Mary E. Kellogg, Appellant, v. Match Supply Company, Defendant, Impleaded with Charles M. Kellogg, Respondent

Mary E. Kellogg, Appellant, v. Match Supply Company, Defendant, Impleaded with Charles M. Kellogg, Respondent. Third Department, January 15, 1915. Pleading—when defendant need not verify answer — constitutional law — complaint charging criminal offense. Where a complaint charges a defendant with fraud which would amount to a criminal offense, he need not verify his answer. Section 529 of the Code of Civil Procedure, providing that a defendant is not excused from verifying an answer to a complaint charging him with fraud affecting the right or property of another, violates constitutional rights, where the facts charged in the complaint constitute a criminal offense. Appeal by the plaintiff, Mary E. Kellogg, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 10th day of November, 1914, requiring her to receive a copy of the unverified answer of the defendant Charles M. Kellogg. Holmes, Rogers & Carpenter [Charles P. Rogers of counsel], for the appellant. John C. Watson [J. Sheldon Frost of counsel], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The action is' in substance one for fraud and not for conspiracy. (Green v. Davies, 182 N. Y. 499.) Section 529 of the Code of Civil Procedure, which provides that the defendant is not excused from verifying his answer to a complaint charging him with “any fraud whatever, affecting a right or the property of another,” would, if valid, require this answer to be verified. Section 523 of the Code excuses a verification where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, and provides: “A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.” The provision quoted, however, does not grant full immunity, and, therefore, violates defendant’s constitutional rights. (Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Taylor v. Forbes, 143 N. Y. 219; People ex rel. Lewisohn v. O’Brien, 176 id. 253.) The language of the statute considered in the Counselman and Lewisohn cases is as broad or broader than in the section of the Code under consideration. We, therefore, think that the provisions of section 529, above quoted, are not valid where the answer is to a charge of a criminal offense. The defendant need not, therefore, verify his answer. The order should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.