
    The American Book Co., Respondent, v. James T. Watson, Appellant.
    (County Court, Oneida County,
    September, 1898.)
    Pleading — Verification — Judgment by default — Venue.
    Where the affidavit of verification of a complaint in a Justice’s Court contains no venue; the complaint may be treated as unverified, and the defendant may file an unverified answer.
    A judgment entered by default, where the defendant files an unverified answer, under the above circumstances, is erroneous.
    This is an appeal from a judgment rendered by E. S. Williams, a justice of the peace of the town of Kirkland, ón the 7th day of May, 1897, for $41.95 damages and costs in favor of plaintiff and against defendant. Plaintiff sought to commence the action by the service of a summons and verified complaint. The affidavit of verification contained no'venue. Upon the return day of the summons defendant appeared and filed with the justice an unverified answer denying the allegations of the complaint. Plaintiff objected to the answer because the same was unverified, and asked that judgment be entered upon the complaint. Defendant objected to judgment being entered for the reason that the complaint had not been sufficiently verified and that the verification was defective. The defendant’s objection was overruled and judgment entered by the justice for the amount demanded in the complaint, •with costs. t
    J. W. Cummings, for appellant.
    L. M. Martin, for respondent.
   Durmore, J.

The affidavit of verification of the complaint contained no venue, and was, therefore, a nullity. Lane v. Morse, 6 How. Pr. 394; Thompson v. Burhans, 61 N. Y. 52, 63; Cook v. Staats, 18 Barb. 407.

The complaint was consequently unverified and the defendant ,had the right to file an unverified answer. Upon filing the answer issue was joined in the action and plaintiff had no right to enter judgment excepting upon proof of the facts alleged in the complaint. Defendant had the right to try the issue made. Plaintiff asks upon this appeal to be permitted to amend the verification pursuant to sections* 2944, Y23 and Y28 of the Code of Civil Procedure. If no error had been committed by the justice in the proceedings before him and an amendment "was sought simply to sustain the judgment on appeal arising from some inadvertence of the plaintiff which was not pointed out at the time, we think it would be a proper case 'to exercise the discretion and allow the amendment, but an amendment allowed now would not cure the error committed by the justice. Issue was joined in the action and the defendant had the right to try that issue. By entering judgment upon the complaint the justice must have held that the answer was insufficient and that there was no issue to try, and for this error the judgment must be reversed, with costs.

Judgment reversed, with costs.  