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1900]

De Gregori v. Saitta.

fendant by the New York Fruit-Importing Company, of which company the plaintiff was made receiver prior to the commencement of the action. Inter alia, the defendant interposed as an affirmative defense that he was employed by the importing company as its general manager, at a salary of $25 a week, and that in addition thereto it was agreed that he was to receive further and additional compensation for extra work performed outside of regular business hours, and in the nature of night work; that, in accordance with such agreement, he did perform such services; that all the moneys paid by the importing company to the defendant, over and above the amount of his salary, were paid to him on account of such extra work, and as part payment of his additional compensation; and that at the time of the dissolution of the importing company it was indebted to the defendant in

BILLS OF PARTICULARS IN COURTS NOT OF RECORD.-continued.

justice's court should specify the nature of such claim with reasonable certainty, it was held that he was not bound to furnish a formal bill of particulars, but it was sufficient if he specified the nature of his claim with reasonable certainty.

Harrington v. Ensign, 11 Wend. 554.

Thus when a defendant had specified that his demand was for grain, hides and boarding, and on the same day, after adjournment informed the plaintiff's attorney that he had also an account for a stove sold, and the justice on the trial, refused to receive evidence of the sale of such stove, it was held, that he had erred, and the judgment rendered by him for the plaintiff was reversed.

Id.

The principle laid down in the case last cited as to the formality and sufficiency of bills of particulars in justice's courts, is doubtless applicable to the same under the present section of the Code of Civil Procedure upon the subject, although the wording of the statutes is not the same.

A justice of a district court in New York City has power to amend a bill of particulars to conform to evidence, where such evidence was not objected to and the amendment is not of such a nature as to create surprise and none is claimed thereby.

Dermody v. Flesher, 22 Misc. 348; 83 St. Rep. 150; 49 Supp. 150.

Aside from the questions of form, and the time and manner of obtaining bills of particulars, the decisions of courts of record upon the subject are applicable to courts not of record.

Appellate Division.

divers sums of money over and above that claimed to have been loaned, and to recover which the action was brought. It is therefore clear that this answer raised a vital issue in the case; for if the plaintiff could show the arrangement which he averred in his answer, and that the compensation to which he was entitled therefor was greater in amount than the sum loaned, as claimed by the plaintiff, it would defeat the plaintiff's cause of action. Upon the trial, however, when testimony was offered tending to establish this defense, upon the objection of plaintiff's counsel it was excluded, on the ground that the defendant had failed to serve upon the plaintiff a bill of particulars of such claim. It does not appear from the return of the justice that at the time when issue was joined any request was made of the defendant to furnish a bill of particulars of his account in this regard or any other, nor does there appear in the record any demand, made by the plaintiff upon the defendant, to serve such bill of particulars. The first that appeared in respect thereto was upon the trial of the action, when the defendant sought to prove the rendition of extra service and the arrangement under which it was performed. It is manifest that the ruling of the court in this regard was error for which the judgment must be reversed. Section 2942 of the Code of Civil Procedure provides that, when issue is joined, the court, upon the request of either party, may require the adverse party to exhibit his account or demand, or to state the nature thereof; and, in case of failure to comply with such request, the court may preclude the party from giving evidence of such parts thereof as have not been exhibited or stated. By the terms of the Code, therefore, the court was not authorized to exclude the proof, because no such penalty had been incurred. There had been neither request at the time when the issue was joined, nor any order made requiring the defendant to exhibit his account in this respect. The demand for a bill of particulars after the trial was begun. was unauthorized and ineffectual for any purpose. Rosen v. Rosenthal, 22 Misc. Rep. 143; 82 St. Rep. 790; 48 Supp. 790. The purpose of the bill and of the order requiring it to be deliv

Climax Specialty Co. v. Smith.

ered is to apprise the party of the specific demands of his adversary, but the demand must be made under such circumstances as will give the party an opportunity to comply with it, and cannot be insisted upon when the request would operate to the surprise and prejudice of the party. The Code provides a simple, plain, and direct method of procedure, and before a penalty may be inflicted compliance must be had with its provisions. As there was an utter failure in this case to make such request, as required by the Code, the judgment should be reversed, and a new trial ordered.

Judgment of the municipal court reversed and new trial ordered; costs to abide the event. All concur.

CLIMAX SPECIALTY CO. v. SMITH et al.

[31 Misc. 275; 98 St. Rep. 42; 64 Supp. 42.]

(Supreme Court, Appellate Term. April 16, 1900)

ACTION BY DOMESTIC CORPORATION-VERIFICATION BY ATTORNEY-OFFICER ABSENT FROM ATTORNEY'S COUNTY-SUFFICIENCY.

Under Code Civ. Pro. § 525, subd. 3, providing that when the party is a foreign corporation, or not within the county where the attorney resides, a pleading may be verified by the attorney, where a complaint by a domestic corporation shows that all the corporate officers are absent

NOTE-VERIFICATION BY ATTORNEY OF PLEADING OF CORPORATION.

a. The statute.

b. When party a domestic corporation.

c. When party a foreign corporation.

a. The statute.

The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows:

1. Where the party is a domestic corporation, the verification must be made by an officer thereof.

3. Where the party is a foreign corporation; or where the party is not

Appellate Term.

[Apr.

from the county where the attorney resides the court is not without jurisdiction to render judgment on the complaint on the ground that the verification by the attorney was unauthorized.

Appeal from municipal court, borough of Manhattan.

Action by the Climax Specialty Company against Benjamin C. Smith and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Argued before BEEKMAN, P. J., and GIEGERICH and O'GORJJ.

MAN,

VERIFICATION BY ATTORNEY OF PLEADING OF CORPORATION,-continued.

within the county where the attorney resides, or if the latter is not a resident of the State, the county where he has his office, and capable of making the affidavit; or if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts is within that county, and capable of making the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party.

§ 525. Code of Civil Procedure.

The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.

§ 526 Code of Civil Procedure.

b. When party a domestic corporation.

Where a domestic corporation has its place of business and its officers reside and are in a county other than that of the residence of its attorney, the latter may verify the complaint in an action brought by such corporation.

High Rock Knitting Co. v. Bronner, 18 Misc. 627; 77 St. Rep. 725; 43 Supp. 725. Aff'd without opinion, 29 App. Div. 627; 52 Supp. 1143.

Syracuse Moulding Co. v. Squires, 61 Hun, 48; 39 St. Rep. 824; 15 Supp. 321; 21 Civ. Pro. 58.

1900]

Climax Specialty Co. v. Smith.

Samuel S. Walters, for appellants.

William Stuart, for respondent.

O'GORMAN, J. The judgment in this case, which was taken on defendants' default, and rendered upon a verified complaint, is assailed by the defendants upon the ground that the verification of the complaint was made by the plaintiff's attorney; defendants' contention being that a pleading of a domestic corporation must be verified by an officer, and that subdivision 3 of section 525 of the Code of Civil Procedure has no application

VERIFICATION BY ATTORNEY OF PLEADING OF CORPORATION,-continued.

In the case of High Rock Knitting Co. v. Bronner, just cited, the objection was made that under section 525 Code of Civil Procedure only an officer of a domestic corporation can verify its pleading. To this the court answered, "The section, in the first instance, had provided that a verification must be made by a party. A corporation as a party could not make a verification and therefore the first provision was incorporated, providing that the verification in such a case must be made by an officer, but the intent of such provision was to provide the manner and way in which the verification, in behalf of a corporation, should be made in order to give it force and effect as a party's verification, and as it seems to me, was not intended to override or exclude the effects of the subsequent clauses in the section referred to."

The case of Syracuse Molding Co. v. Squires was upon a draft in the attorney's possession at the time of the making of the verification, and the corporation's place of business was in a different county than that in which the attorney resided, which facts the court held were sufficient to warrant the verification of the complaint by such attorney.

The two cases last cited and that in the text appear to be the only cases in which the question under discussion has directly arisen, but by reason of the fact that the court of appeals does not appear to have passed directly upon the point and there are dicta in other cases throwing doubt upon the right of the attorney of a domestic corporation to verify its pleadings, under any circumstances, the question can hardly be considered settled.

The cases containing the dicta referred to are as follows:

Meton & Sons v. Isham Wagon Co., 4 Supp. 215; 15 Civ. Pro. 259.
Matter of St. Lawrence & A. R. Co., 133 N. Y. 270; 31 N. E. 218.

The verification by an agent or attorney of a petition to review a tax assessment, which petition the statute prescribes shall be "duly verified," is sufficient if it state that no officer or director of such corporation resides in

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