Manners & Co. v. Sohnen
| Citation | 206 Misc. 845 |
| Parties | John Manners & Co. (New York) Inc., Plaintiff,<BR>v.<BR>Arthur Sohnen et al., Defendants. |
| Decision Date | 30 September 1954 |
| Court | United States State Supreme Court (New York) |
Arthur Block for Arthur Sohnen, defendant.
Harold O. N. Frankel for David Adler, defendant.
Seymour Stone for plaintiff.
The plaintiff has served a verified complaint setting up two causes of action. The first is against the defendant Sohnen for goods sold and delivered to that defendant. The second is against both defendants. There it is alleged that the defendant Adler was the plaintiff's vice president and general manager, and that he conspired with the codefendant to defraud the plaintiff as to the goods referred to in the first cause of action, and in setting up the second claim sued upon the defendants are in effect charged with acts of larceny, forgery and other crimes. Each defendant has served a separate unverified answer, which was treated as a nullity by the plaintiff (Civ. Prac. Act, § 253). Now before the court are motions to compel the plaintiff to accept the respective unverified answers to the verified complaint, or for leave to serve answers in such form as may be proper.
Each moving defendant urges that, since the complaint charges him with the commission of a crime or crimes (the manipulations charged to him are in fact being investigated by the District Attorney), he may claim the privilege against self incrimination and may serve an unverified answer in conformity with the provisions of section 248 of the Civil Practice Act, which exempts a party from verifying his answer where he is privileged from testifying as a witness concerning an allegation or denial contained in a pleading. The plaintiff asserts on the other hand that the second cause of action is in reality one for fraud, that the defendant has not shown that the answer would actually incriminate him, and that, under the express provisions of section 250 of the Civil Practice Act, a defendant is not excused from verifying his answer where the complaint merely charges the defendant with fraud affecting the right and property of the plaintiff.
The burden is not upon the defendant to show or shoulder the risk or danger of actual or imminent incrimination. And it seems to me that the question of whether or not a defendant may omit a verification does not depend on the form of the pleading but on the facts alleged. If those facts as set forth in the complaint support an action for fraud but also set out matters which spell out a crime, the mere labeling of the action as one in fraud does not deprive the defendant of the privilege against self incrimination. Having chosen to allege matters which on their face are such that they may constitute a crime or aid in the formulation of a chain of testimony tending to convict the defendant of a crime, the plaintiff has opened the door to the defendant's claim of privilege (Thompson v. McLaughlin, 138 App. Div. 711).
In the case of the defendant Adler, therefore, I conceive the law to be clear and definite (see, also, Brewster v. New York Evening Journal, 267 N.Y. 612; King v. Terwilliger, 259 App. Div. 437; Meyer v. Mayo, 173 App. Div. 199; Oppenheim v. Gunther, 193 Misc. 914, and Sunley v. Badler, 33 N. Y. S. 2d 642). But the plaintiff urges an additional factor to be considered on the application of the defendant Sohnen — that, since the complaint as against this defendant pleads two causes of action, the first of which, on contract, alleges no facts charging that defendant with the...
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David Webb, Inc. v. Rosenstiel
...33 N.Y.S.2d 642; Magowan v. Magowan, 39 Misc.2d 983, 242 N.Y.S.2d 336; Sup., see CPLR Section 3020(a), (b) 1; cf. John Manners & Co. v. Sohnen, 206 Misc. 845, 134 N.Y.S.2d 162; Knight v. Maybe, 44 Misc.2d 152, 253 N.Y.S.2d 59, and Practice Commentaries by Professor David D. Siegel, in McKin......
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Curran v. Pegler
... ... See John Manners & Co. v. Sohnen, ... 206 Misc. 845, 134 N.Y.S.2d 162. In any event, the legislature makes no distinction and the whole pleading must be accepted ... ...
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Pleadings
...responsive pleading was privileged, the pleader was exempted from verifying the pleading altogether. [See John Manners & Co. v. Sohnen , 206 Misc. 845, 134 NYS2d 162 (1954).] But now, under CPLR 3020(a), verification is excused only as to the privileged portion of the responsive pleading. [......
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Pleadings
...responsive pleading was privileged, the pleader was exempted from verifying the pleading altogether. [See John Manners & Co. v. Sohnen , 206 Misc. 845, 15-21 PLEADINGS §15:82 134 NYS2d 162 (1954).] But now, under CPLR 3020(a), verification is excused only as to the privileged portion of the......
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Pleadings
...responsive pleading was privileged, the pleader was exempted from verifying the pleading altogether. [See John Manners & Co. v. Sohnen , 206 Misc. 845, 134 NYS2d 162 (1954).] But now, under CPLR 3020(a), verification is excused only as to the privileged portion of the responsive pleading. [......