Ansorge v. Kaiser, 22 Abb. N. C., 30).

4 rable and defeat the cause of action set up as a counterclaim, when they do not so appear, is new matter constituting a defence to the counterclaim, for it would be absurd to suppose that the Legislature intended that a fact appearing on the face of the counterclaim should defeat the counterclaim, but should not defeat it where the fact did not so appear, but was alleged in the reply.

The rule was different where the cause of action was alleged in the answer by way of set-off, and not by way of 5 counterclaim, and the case of Naylor v. Schenk (3 E. D. Smith, 135) applied the rule to the defence of set-off, and not to a counterclaim.

6

It is settled in this court that a plea of another action pending between the same parties for the same cause is a good defence to the action (Groshon v. Lyon, 16 Barb., 461). And under the provisions of the Code above cited, I think it also a defence to a counterclaim for which an affirmative judgment is demanded.

The cases cited by defendant have been examined, but, so far as they are inconsistent with the rule before stated, they should not prevail against the express language of the Code cited. The demurrer should, therefore, be overruled and judgment ordered for plaintiff with costs, with leave to the defendant to withdraw the demurrer within twenty days, on payment of costs.

Goff v. Star Printing Co., 21 Abb. N. C., 211.

GOFF v. STAR PRINTING CO.

New York Supreme Court, Chambers, April, 1888.

[Reported in 21 Abb. N. C., 211.]

1. 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 case 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.

2. 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 1 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 each containing, with other defences, a general denial of all the allegations of the several complaints. The answers were not verified. On being served, plaintiffs' attorneys gave admission of due and timely service, but 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 N. Y. Code Civ. Pro., § 523.*

Defendant then moved to compel plaintiffs to accept the service of the answers.

2

O'BRIEN, J. These actions, as shown by the complaints, are for alleged libels. The answers are unverified. Section 523 of 3

*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."

Goff v. Star Printing Co., 21 Abb. N. C., 211.

4 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."

5

. 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 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 defend6 ant 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 reason that the verified pleading would tend to accuse 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 7 privileged from testifying to the truth of any matter denied. Motion compelling plaintiff to accept answer granted; no

costs.

NOTE.-In Fredericks v. Taylor, 14 Abb. Pr. (N. S.), 77 (N. Y. Court of Appeals, 1873), it was held :

1. The question whether or not a pleading must be verified is one of substantial right.

2. A party has the right to have such a question determined summarily upon a motion; and consequently an appeal lies to the Court of Appeals from the order made on such motion.

Goff v. Star Printing Co., 21 Abb. N. C., 211.

In delivering the opinion of the Court, GROVER, J., said on these 8 points :

That the question whether or not a pleading must be verified, is one of substantial right, is, I think, clear. If the law required that it should be verified, the party upon which it is served has an absolute right to insist that it shall be, to constitute a pleading in the cause. If it does not require a verification, the party serving it has an absolute right to serve it without, and to insist that it shall be treated as a valid pleading.

Whether the order is appealable depends upon the inquiry whether a party has an absolute right to have the question, whether the proposed pleading complies with the law and the practice of the court, and has been properly served, determined in the one case by a motion to strike it out, and in the other, where there has been a refusal to receive it, by 9 motion to compel its acceptance as a pleading in the cause; or whether it is discretionary with the court either to decide the question upon motion, or leave the parties to the remedy of returning the pleading, in the former case, and taking subsequent steps in the cause upon the ground that there was no such pleading, and have the question determined upon the motion of his adversary to set aside such subsequent proceedings, or, in the latter, wait until subsequent proceedings are had, and then move to set the same aside. I think that the correct and better practice is, that when a question arises whether a pleading has been made and served according to law and the practice of the court, so as to become a part of the pleadings in the case, to give either party the right to a speedy and summary determination of the question upon motion, without requiring either to take any further proceedings in the cause, at the peril of having them set aside in case of a decision adverse to him, or of permitting a final judg ment to stand in case the paper tendered was not sufficient or in time. I believe the uniform practice of all the courts is in accordance with these views, and that such a motion was never denied upon the ground that it was in the discretion of the court whether it would consider and determine the question presented upon motion, or compel the parties to proceed further in the cause, relying upon the respective views of each upon the controverted question.

10

Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C., 464.

For a note on the distinction between motions to make more definite and certain, or for a bill of particulars, see p. 239 of this vol.

1

2

REUBENS v. LUDGATE HILL STEAMSHIP CO.

New York Supreme Court, First Dep., General Term, 1888. [Reported in 21 Abb. N. C., 464.]

A complaint in an action against a common carrier of goods for negligence, which alleges that "the defendant so negligently and carelessly behaved itself in transporting said fur that the same was damaged,” etc., is indefinite and uncertain and a motion to make it more definite and certain will be granted.*

Morris Reubens and Bernhard Reubens sued the Ludgate Hill Steamship Company (Limited), a common carrier of goods, to recover damages for negligence in transporting fur in one of its vessels.

The complaint after alleging, 1. that defendant was a foreign corporation; 2. the co-partnership of the plaintiffs, then proceeded as follows:

Third. That on or about June 22, 1887, the defendant undertook to transport to New York, for hire, by one of its vessels, called the "Ludgate Hill," ninety cases of fur, the property of the plaintiffs, and to deliver the saine safely and in good order to the plaintiffs at said city of New York, and that plaintiffs paid the defendant for such freight $178.77.

Fourth. That the defendant so negligently and carelessly misbehaved itself in transporting said fur that the same was 3 damaged, and plaintiff, by reason thereof, sustained damage in the sum of $408.51.

Judgment was demanded for $408.51, with interest and costs.

* This decision must be deemed a warning to pleaders to state the facts relied on as constituting negligence, with some detail if practicable safely to do so. Compare note in 20 Abb. N. C., 236, and group of cases there reported.

Code Civ. Pro., § 546, reads: "Where one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment.