GOFF v. STAR PRINTING CO.

GOFF v. STAR PRINTING CO. N. Y. Supreme Court, Chambers; April, 1888. Verification of pleadings; privilege.] An unverified answer to a verified complaint may be served without any affidavit to the ground of privilege, where the pleadings themselves show,—as in the ease of an action for libel and an answer denying publication,—that the defendant would be privileged from testifying as a witness. It is only where the complaint does not itself show this, that such an affidavit is required. The same.] This rule applies "in an action against a corporation, though the verification in such case would be by an officer. These actions, four in all, were brought to recover $25,000 damages in each case, aggregating $100,000, for the publication in the “ Star ” newspaper of an article concerning the plaintiffs, alleged by them to be libelous. The four ■complaints were duly verified. The defendant answered in each case; the answers containing with other defenses, a •“ general denial ” of all the allegations of the several complaints. The answers were not verified. On being served plaintiff’s attorney gave admission of due and timely service, hut within two or three days gave notice to defendant’s attorney that they would treat the answers as nullities upon the ground that the complaints being verified, the answers should be verified ; the defendant not being entitled to the-, privilege and exemption from verification, under X. V. Code Civ. Pro. § 523. Defendant then mpved to compel plaintiff to accept the-service of the answers. G. E. P. Howard, attorney for defendant for motion, The verification may be omitted whenever the court can-see from the-pleadings that the person called upon to verify the same, would be privileged from testifying to the truth of any matter denied (N. Y. Code Civ. Pro. § 523; Scovill v. New, 12 How. Pr. 319; Lynch v. Todd, 13 Id. 546; Wheeler v. Dixon, 14 Id. 151; Blaisdell v. Raymond, 6 Abb. Pr. 148). In actions for libel if the answer denies-the publication no verification is required (Blaisdell v. Eaymond, above cited). The corporation is excused from verifying its answers in the case at bar, for the reason that the-verified pleadings would tend to accuse the corporation and its officers of a misdemeanor, and expose them to a penalty or forfeiture. Leavitt, Peters c& Whittaker, for plaintiff, opposed. —The exemption given by the Code, is applicable to cases only where the pleadings to be Answered contained allegations showing the adverse party guilty of an offense, as to-which he would be privileged, as a witness, from giving accusatory evidence against himself; he might in answer deny such allegations, without oath, and then compel bis-ad versary to prove the same (Fredericks v. Taylor, 52 N. Y. 596). If an officer of a corporation verifies a pleading he ■does not give accusatory evidence against himself, and he is not liable for the libels of the corporation unless it be proved that such libel was made by .his personal consent and knowledge (Mecabe v. Jones, 10 Daly, 222; N. Y. Crim. Pro. § 246). While it is true that the verification of the officer is the verification of the corporation, yet the execution is only extended where the party would be privileged from testifying, and a corporation cannot testify or be made -criminally liable for its acts. The answers set up by way of mitigation of damages, new matter, and the exemption in Code Civ. Pro., § 525, is not extended to new matter in avoidance of the allegations set forth in the complaint. If the party claims the right to this exemption, he should serve with his answer, or use in opposition to the motion, an affidavit showing that his answer would tend to -disgrace him. Without such affidavit the court cannot assume that an answer would have any such' tendency (Roache v. Kivlin, 25 Hun, 150). This has not been done. An admission of service imputes simply that a copy of the paper or pleading was delivered to the person signing the admission that it was received in session (Code Civ. Pro. § 434; Talman v. Bames, 12 Wend. 227; Frances v. Sitts, 2 Hill, 362). This section is as follows: “ § 523. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian ad, litem, must also be verified. But the verification may be omitted in a case where it is not otherwise specially-prescribed by law, where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution» against the party, as proof of a fact admitted or alleged therein.” [MAJORITY — O’Brien, J.] O’Brien, J. These actions, as shown by the complaints, .are for alleged libels. The answers are unverified. Section 523 of the Code of Civil Procedure provides that “the verification may be omitted where the .party pleading would be privileged from testifying as a witness- concerning an allegation or denial contained in the pleading.” Some of the cases are to the effect that the court will not assume, merely from the pleadings, that the reason why an answer was not verified was, that the party answering would be privileged from testifying as a witness, and it therefore seemed proper that where this right is claimed, that the party-claiming it should serve an affidavit showing his excuse for not verifying the answer. An examination of the cases will,, however, bear the construction that a distinction is made-between cases where the complaint itself does not show that the defendant would- be privileged, and cases, which from their very nature, it is evident that the defendant could not be compelled to testify. In the former class of cases an affidavit should be served, showing why the verification is not made. In an action for libel, where the answer denies the publication, no verification is required ; and, as it is evident from the complaint in this action that the defendant or its-officers would be privileged from testifying, an unverified answer, without any affidavit, is good (Wheeler v. Dixon, 14 How. Pr. 151). Where there is more than one party and any one would be privileged, verification may be omitted (Clapper v. Fitzpatrick, 3 How. Pr. 314). The motion should be granted, for the reasons that the-verified pleadings would tend to acensé the officers and the-corporation of a misdemeanor, and expose the officers and the corporation to a penalty or forfeiture. If called as witnesses they would be privileged from testifying to the truth 'of any matter denied. Motion compelling plaintiff to accept answer granted; no-costs.