Anderson v. Doty

Tbe complaint charges tbe defendant with doing an unlawful act, which in law constitutes a nuisance and is a crime for which tbe defendant may be indicted and punished. Tbe defendant was priv*239ileged t'o omit a verification of her answer, by virtue of section 523 of tbe Code of Civil Procedure, for tbe reason tbat sbe could, not be compelled to testify as a witness concerning tbe allegation contained in tbe complaint, tbat sbe maintained a bouse of ill-fame. As this appears on tbe face of tbe complaint, it was unnecessary for tbe defendant' to serve with ber answer an affidavit stating tbe reason why sbe claimed tbe right to serve an unverified answer. (Blaisdell v. Raymond, 5 Abb., 144; S. C., 6 id., 148; Wheeler v. Dixon, 14 How., 151; Lynch v. Todd, 13 id., 548.)

Tbe case of Roache v. Kivlin (25 Hun, 150) is not in point, fortbe reason tbat the complaint did not charge tbe .defendant with any act which constituted a crime. In tbat case tbe alleged cause-of action was for a criminal conversation with tbe plaintiff’s wife, and tbe defendant insisted tbat if be was required to testify concerning tbe same it would disgrace him. Tbe court held tbat it could not be assumed, without proof in some form, tbat tbe defendant could not testify as to some of the matters alleged in tbe complaint, without its having a tendency injurious to bis character. A witness is never excused from answering a question for tbe reason tbat bis answer would tend to disgrace him, unless it is made to-appear to tbe court tbat such would be its effect. Therefore, in such a case, if a party claims tbe right to serve an. unverified answer to a verified complaint, it should be aqcompanied by an-affidavit by which it will be made to appear tbat bis admission of any material fact in tbe complaint would tend to bring him into disgrace.

Tbe order appealed from is reversed, with ten dollars costs and disbursements, and tbe plaintiff required to accept tbe defendant’s unverified answer.

Order denying defendant’s motion to require plaintiff to accept an unverified answer reversed, with ten dollars costs and disbursements.