Hyde v. Salg

Section 525 of the Code of Civil Procedure expressly enacts as to verification: “ Wheré the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney.”

1. Mr. Tracy’s affidavit states (1) that he is one of the attorneys of the plaintiffs, and (2) that the action is founded upon a written instrument for the payment of money only, now in (his) deponent’s possession for collection, which said instrument, is the source of deponent’s information and belief.

If the affidavits had used the words, “ the ground of his belief,” instead of the “ source of deponent’s information and belief,” it would have been in the exact language of section 526, of the Code of Civil Procedure. However, it was in substantial compliance with the requirement of that section in that regard. The criticism made by the appellant, that the affidavit is wanting in “ the reason why it is not made by the party ” is unsound. The provision of section 525, we have quoted, allows the verification to be made by an attorney when the action is founded upon a written instrument for the payment of money, which is in the possession of the attorney, and those facts when stated constitute the reason why the attorney verifies.

*371If otherwise, those facts appear, he is by the statute authorized to verify, and we cannot see any more beneficial compliance with the statute to be gained by requiring the attorney to state as a reason why he verifies, that the facts he has stated authorize him to verify. He has, by the statement of those facts, brought, his case within the provision of the statute; and therefore, he has shown “ the reason why ” the verification is not made by the party. (See Ross v. Longmuir, 24 How., 49; Smith v. Rosenthall, 11 id., 442; lefevre v. Latson, 5 Sandf., 650; Wheeler v. Chesley, 14 Abb., 441; Gourney v. Wersuland, 3 Duer, 613.) The point decided in Kirkland v. Aiken (66 Barb., 211), has no bearing upon the questions presented by this appeal. The notice accompanying the' return of the defendant’s answer was sufficiently definite. (Snarpe v. Gilbert, 13 Hun, 495.) The order should be affirmed, with ten dollars costs and disbursements.

Order affirmed, with ten dollars costs and disbursements.