
    Mary E. Kellogg, Plaintiff, v. Match Supply Company and Charles M. Kellogg, Defendants.
    (Supreme Court, Albany Special Term,
    November, 1914.)
    Pleading — allegations contained in complaint — when answer need not be verified — when defendant privileged from testifying — Code Civ. Fro., § 523.
    Where a complaint alleging a cause of action for damages for inducing plaintiff to purchase certain corporate stock by false and fraudulent representations made by defendants contains also an allegation that they unlawfully conspired and confederated for the purpose of defrauding plaintiff in the sale to her of such stock, the answer need not be verified.
    As a defendant would be privileged from testifying concerning the allegation of conspiracy if he chooses to claim his privilege, the case is governed by section 523 of the Code of Civil Procedure which permits the omission of a verification in such a case.
    Motion to require plaintiff’s attorneys to receive an unverified answer of defendant Charles M. Kellogg.
    John C. Watson, for defendant Kellogg and motion.
    Holmes, Rogers & Carpenter (Charles P. Rogers, of counsel), for plaintiff, opposed.
   Chester, J.

The defendant Kellogg has served an unverified answer which has been returned to his attorney because the same was not verified. This motion is made to require the plaintiff’s attorneys to receive such answer notwithstanding it is not verified. The complaint was verified and in form states but a single cause of action. It is difficult to determine from this whether the cause of action intended to be alleged is one for damages for conspiracy or whether it is one for damages for inducing the plaintiff to purchase certain stock in the defendant Match Supply Company by means of false and fraudulent representations made by the defendants which the plaintiff relied upon in buying the same.

An examination of the entire complaint leads me to believe' that the pleader intended to allege a cause of action against the defendants for damages for inducing her to purchase the stock in question by means of false and fraudulent representations made by the defendants, which she relied upon in buying the stock. If that is a correct view of the complaint and that was all it contained the case would undoubtedly be governed by Beckley v. Chamberlin, 65 Hun, 37, which held that in such a case where the complaint was verified the answer must also be verified. In that case the court expressly refused to follow the case of Frist v. Climm, 6 Civ. Pro. 30, where substantially the contrary was held, but the complaint in question here contains an allegation that the defendants unlawfully conspired and confederated together for the purpose of defrauding the plaintiff in the sale to her of such stock. In that allegation a crime is charged, and while I think the allegation is immaterial in a complaint stating a cause of action for damages for false and fraudulent representations, yet so long as it is in the complaint and has not been stricken out the defendants must answer it. The case is not, therefore, within the rule laid down in Beckley v. Chamberlin because in that case there was no such allegation.

The defendant Kellogg, who seeks to interpose this unverified answer and who it is claimed was one of the parties to the alleged conspiracy, would be privileged from testifying as a witness concerning the allegation of conspiracy if he chooses to claim his privilege and, therefore, it seems to me that the case is governed by section 523 of the Code of Civil Procedure which permits the omission of a verification in such a case.

The motion must be granted, with ten dollars costs to abide the event.

Motion granted, with ten dollars costs to abide event.  