Opinion
September, 1898.
J.W. Cummings, for appellant.
L.M. Martin, for respondent.
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, 723 and 728 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.