SUPREME COURT.

#### Bernard Peyser, respondent, agt. Joseph E. McCormack, impleaded, &c., appellant.

*First Department, General Term,*

*May,*1876.

*Verification of complaint.*

A complaint in an action for the foreclosure of a mortgage of real estate with an accompanying bond, cannot be verified by the attorney for the plaintiff on the ground that the action is upon a written instrument, for the payment of money only, which is in his possession.

Where such a complaint is thus verified by the attorney for the plaintiff, the service of an unverified answer is regular.

Noah Davis, *presiding justice,*John R. Brady *and*Charles Daniels, *justices.*

Appeal from judgment, and from order of reference, to compute the amount due upon the bond and mortgage set out in the complaint.

*Joseph Fettretch,*for appellant.

The action was brought to foreclose a mortgage claimed to be owned by the plaintiff.

On or about the 25th day of November, 1873, the plaintiff, residing and being in the city of New York, filed his complaint for the foreclosure of said mortgage and made all the allegations thereof upon information and belief.

The plaintiff’s attorney verified the complaint, giving as his reason” for so doing and why the complaint was *206not verified by the plaintiff personally, “that the action is founded upon a written instrument for the payment of money only; and such instrument is in the possession of the deponent (said attorney), and that his knowledge is derived from said instrument and also from the admissions of the plaintiff.”

Defendant Joseph E. McCormack and wife appeared in the action and Joseph E. McCormack interposed an unverified answer, his counsel advising him that the affidavit attached to the complaint did not call for a verified answer.

The answer was returned with the indorsement thereon, set forth at folios 33 and 34.

On January sixth notice of application for an order of reference to compute amount due and for judgment was given as though no answer had been served.

On January fourteenth, after hearing the parties, justice Lawrence held the verification to the complaint to be good, and the defendant in default for want of answer and granted the reference.

On the third day thereafter justice Lawrence signed an order dated January fourteenth, proposed by the plaintiff’s attorney and presented without notice to the defendant, which order did not show what had taken place before the justice or his reasons for granting the order.

On the 20th day of January, 1874, justice Lawrence, on the application of the defendant, granted the order to show cause, at folio 42; and on the return of the said order the papers were taken by justice Lawrence, and on January twenty-second he entered and filed the order of reference sét forth at folios 47, 49.

Before the order of January twenty-second was made, and after the order to show cause had been served, the plaintiff proceeded to compute the amount due before the referee and filed the referee’s report of amount due on January 21,1874, as appears by the notice at folios 54 and 55.

The referee recites as his authority for inakipg the compu*207tation the paper signed by justice Lawbence, January 14th, 1874.

On February 6th, 1874, notice of motion for judgment was given, and on March twelfth judgment was given after hearing defendant Joseph E. McCormack in opposition, as appears by the decree at folios 62 to 70.

Such judgment was founded, as to the amount found due plaintiff, upon the referee’s report dated January 21st, 1874.

From the order of reference and the said judgment, entered as aforesaid, the defendant Joseph E. McCormack appealed, March 26th, 1874.

I. The first ground of error alleged on this appeal is, that justice Lawbence erred in granting the motion of the plaintiff for a reference to compute the amount due him as though no answer had been served; and in deciding that the complaint was properly verified.

II. The verification is not made by the plaintiff, though a resident of the city of Hew York, but is made by the attorney who states in the verification as his reason for making it (fol. 17), “ that the action is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the deponent, and that his knowledge is derived from said instrument and also from the admissions of the plaintiff to this deponent.

III. The Code *(sec.*157) permits an attorney to verify a pleading in any case where the party is absent from the county, and in other cases only where the action or defense is founded upon a written instrument for the payment of money only, in the attorney’s possession, or if all the material allegations of the pleading be within the personal knowledge of the attorney.

1. The attorney’s verification in this case is not founded upon the plaintiff’s absence from the city.

IV. The plaintiff’s claim that the action was founded upon a written instrument for the payment of money only, and the justice’s acquiescence in such claim by granting his appli*208cation for reference to compute amount due is erroneous, for a glance at the prayer in the complaint shows not that a sum of money only was demanded, but that certain kinds of equitable relief were also demanded. ,

1, The action was not founded on the bond alone; had it been the plaintiff’s practice would (had he given the grounds of his belief) have been correct.

Y. Being founded upon the bond and mortgage, he asked for more than a mere sum of money. He demanded certain things to be done, viz.: 1st. The barring and foreclosure of the equity of redemption of the various defendants in the real estate described in the complaint. 2d. A sale of the said real estate. 3d. That the moneys might be brought into .court. 4th. That he might be paid the amount due at the time of sale and costs and expenses thereof. 5th. That he might have judgment against some of the defendants for a deficiency. And 6th. That he might have other and further relief.

YI. Section 246 of the Code furnishes another rule by which we can determine whether this action is one founded upon a written instrument for the payment of money or not.

1. Subdivision 1 of said section declares: “In any action arising on contract for the payment of money only,” after filing certain proofs, the clerk shall thereupon enter judgment for the amount mentioned in the summons; and subdivision 2 of the section declares, “ that in other actions ” (than those for the recovery of money only) “ the plaintiff may apply to the court for the relief demanded in the complaint.”

2. The word “may” means “must.” A judgment rendered, except by the order of the court in such a case, would be irregular and void.

3. Could judgment have been entered in this action by the clerk ? Certainly not. Then the action is not one for the recovery of money only.

YII. In *Quin*agt. *Tilton*(2 *Duer,*649) judge Dube of the superior court, in an opinion concurred in by chief justice *209Oaklet of the same court, said: *“*It appears from the complaint that the action is founded upon a promissory note, payable not absolutely, but upon a condition, namely, the sale by the defendant of certain property then in his hands. It may be doubted whether such a note is an instrument for the payment of money only, within the meaning of section 246.”

1. If it was doubtful in such a ease how clear is it, in the case at bar, that the action is not for the recovery of money only?

VIII. However, for the sake of the argument, let it be conceded that plaintiff’s assumption is correct, and that the action is founded upon an instrument for the payment of money only, then there is another requisite required, when the verification is made by the attorney, which is not found in the verification in the complaint in this action, and that is, when there are facts stated upon information and belief the affiant shall set forth in the affidavit the grounds of his belief. This omission renders the verification defective *(Treadwell*agt. *Perry et*al., 10 *How.*Pr., 184).

1. The whole complaint is .upon information and belief.

IX. If the position assumed by the defendant is correct, that the complaint was not properly verified, then the defendant pursued the proper course by putting in his answer without verification. He was not bound under the circumstances by the verification at all.

The plaintiff’s attorney was therefore in error in returning the answer, and the court erred in granting judgment as though no answer had been interposed (*Wagner*agt. *Browns Admrs.,*8 *How. Pr.,*212).

1. “ The verification being' insufficient on its face, the defendant was at liberty to treat the complaint as if it were not verified, and to put in his answer without oath ” *(Fitch*agt. *Bigelow,*5 *How. Pr.,*237).

X. The second ground of error alleged in the appeal is, that justice Donohue granted judgment in favor of the plain*210tiff upon an order of reference which had been set aside, and upon a referee’s report, which was not made in pursuance of any existing order of the court.

1. The order of reference in this action bears date January 22d, 1874. •

2. The paper upon which the judgment was based as to the amount due will be found at folios 50 to 54 of the case, and this paper is dated January twenty-first and was filed the same day, and purports to have been made in pursuance of an order which does not exist.

3. That the judgment is based upon this paper, see folios 65 and 66 of the case.

XI. It will be claimed that the order of January fourteenth, entered without first submitting it to counsel for appellant for amendment, was valid until superseded by the order of January twenty-second, because plaintiff’s attorney says judge Lawbenoe, on the hearing of the motion for the settlement and modification of the order, insinuated the reference should proceed.

1. The judge’s insinuations are of no moment as against the language of the order entered and signed by him, and this order bears date January 22d, 1874.

XII. The plaintiff’s attorney violated all rules relating to the entry of orders on contested motions, and entered his order at his peril and must suffer the consequence ( *Whitney*agt. Belden, 4 *Paige*Chy., 140; *Van Santvoord's Equity Pr., vol.*1, *page*450).

1. “ If the order is special in its provisions the party entitled to draw up the order should submit a copy thereof to the adverse party to enable him to propose amendments thereto, if he thinks proper ” *(Whitney agt.*Belden, 4 *Paige Chy.,*140).

XIII. The irregularity as to the reference being the direct result of the plaintiff’s attorney’s conduct, he must be held responsible for all the evil consequences that ensue from the report being made and filed before the. order of the twenty-*211second was made ; and if he finds himself involved in difficulty by departing from the due course and practice of the court, he is not entitled to any relief at the hands of the court, and the justice erred in granting the judgment *(La Farge*agt. *Van*Wagenen, 14 *How. Pr.,*54).

XIV. The order being important to the defendant, the true time of entering the order should appear. “ The date or caption of the order should be made to correspond with the time of its actual entry ” ( *Whitney*agt. *Belden,*4 *Paige Chy.,*140 *and*141; *Matter of Myers et*al., 3 *How. Pr.,*234).

XV. The respondent’s attorney will urge upon the court that the answer was interposed for delay, aúd the appellant has no merits on his side. With this the court has nothing to do, for the plaintiff being clearly irregular the court has no right to consider the question whether the defendant has merits or his motive is to delay *(Hughes*agt. *Wood,*5 *Duer,*603, *note).*

XVI. The judgment should be reversed with costs and the defendant’s answer adjudged sufficient, and the case at issue, and the plaintiff left to prosecute his action, as in an ordinary action where issue joined.

*Julius Ligpman,*for respondent.

I. The appeal in this case is oppressive and obstructive of justice.

The appellant has no interest. The complaint alleges a sale of the mortgaged premises by the mortgagors to the appellant and one William G. McCormack subsequent to the mortgage. The attempted answer of the appellant simply denied each and every allegation in the complaint.

There is no personal claim or judgment of any kind demanded against him. He denies every allegation. Give him the benefit of the denial, and assume his answer had been duly verified and. received. What then ? There was no *212*material*issue raised, for the reason that, even although the appellant’s denial were true, the plaintiff would, nevertheless, have been entitled to the judgment prayed for. If appellant had not purchased the premises that allegation did not injure him so long as no personal claim was made against him, and he could have no interest or right to object to decree of foreclosure and sale. The plaintiff ought not to be compelled to litigate with a party who, according to his own allegations, has no interest in the subject-matter of the suit, and from whom nothing is asked. The law does not permit it.

So one can appeal from an order or decree who is not injured thereby; and even a party aggrieved by one branch of a decree does not thereby acquire a right to call in question another portion of the decree which has no bearing or effect upon his rights and interests *(Cuyler*agt. *Moreland,*6 *Paige,*273).

II. Upon the face of the printed case there is nothing whatever to show any grounds for appeal against the judgment. The law assumes every thing in favor of its regularity.

1. A new trial will not be granted to correct a mere technical error *(Devendorf*agt. *Wert,*42 *Barb.,*227; *Van Vechten*agt. *Griffiths,*1 *Keyes,*104; *Stephens*agt. *Wider,*32 *N. Y.,*351; *Casey*agt. *Fairchild,*18 *Johns.,*129).

2. Nor where the reason given for the decision is wrong, but the decision itself is right *(Monroe*agt. *Potter,*22 *How.,*49 ; *Deland*agt. *Richardson,*4 *Denio,*95 ; *Hottinger*agt. *National Exchange Bank,*6 *Abb. [N.*S.], 292).

3. An appellate court has authority to modify the judgment according to the justice of the case, without regard to technical errors *(Brownell*agt. *Winnie,*29 *N. Y.,*400 ; *Tilou*agt. *Kingston Mutual Ins. Co.,*5 *N. Y.,*405; *Fields*agt. *Moul,*15 *Abb.,*6; *Staats*agt. *Hudson River Railroad Co.,*33 *How.,*463).

4. Upon the answer having been returned, appellant ought to have made a motion to compel plaintiff’s attorney to *213receive it. In place of that he remained passive until the motion to compute.

5. He then appeared and opposed the motion, based upon the ground of the supposed defective verification of the complaint ; that ground was overruled by justice La. whence, but merely on account of a defect in the preamble of the order; upon motion of appellant a new one was entered.

6. Although a new order of reference was entered, it was onl *y pro forma*and in aid and confirmatory of the first, so as to allow the appellant to appeal from it. The first order was not vacated, and both should be read together.

Intermediate the first and second orders the reference took place, upon due notice, and the referee’s report made and filed.

7. There having been no stay of proceedings, the plaintiff’s proceedings were regular.

8. It was quite unnecessary, would have been only a waste of expense, to go over the same ground again under the second order.

9. The appellant sustained no prejudice by it; and even assuming, for the sake of argument, that an irregularity may have been committed, so long as the general facts and features show that the party complaining has not been prejudiced, the court will not set aside the judgment *(Klock*agt. *Buell,*56 *Barb.,*398 ; *Lamb*agt. *Camden & Amboy Railroad Co., 2 Daly,*455; *Munroe*agt. *Potter, 22 How.,*49 ; *Deland*agt. *Richardson,*4 *Denio,*95).

III. Should the appellant raise the question of the sufficiency of the verification of the complaint, the plaintiff submits that it is perfectly regular and authorized by law..

By section 157 of the Code, the affidavit or verification of the attorney is clearly and indisputably allowable in two cases: First. When the action or defense is founded upon a written instrument for the payment of money only, and such instrument is in his possession. And, second. When all the material allegations of the pleading are within his personal knowledge.

*214He need only bring himself within one of these provisions, and either will satisfy the statute *(Mason*agt. *Brown,*6 *How.,*484; *Myers*agt. *Gerritts,*13 *Abb.,*106; *Roscoe*agt. *Maison, 7 How.,*121; *Stanard*agt. *Mattice, 7 How.,*4; *Lefevre*agt. *Latson,*5 *Sandf.,*650; *Smith*agt. *Rosenthall,*11 *How.,*442 ; *Wilkins*agt. *Gilman,*13 *How.,*225).

In the present case the complaint is verified by this plaintiff’s attorney; and it is submitted that the verification is covered by both of these rules, although one only is sufficient.

1. It is covered by the first; it sets forth: *“*Deponent further says, that the reason why the verification is not made by the plaintiff is, that the action is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the deponent.”

If the written instrument is in the attorney’s hands that fact alone will entitle him to make the verification *(Stannard*agt. *Mattice, 7 How.,*4; *Treadwell*agt. *Fawcett,*10 *How.,*184; *Hubbard*agt. *Motional Protective Insurance,*11 *How.,*149; *Meyers*agt. *Gerritts,*13 *Abb.,.*106). And this is true, even if the party be in the same county ( *Wheeler*agt. *Chesley,*14 *Abb.,*441).

2. The verification-is covered by the second. It sets forth, as an additional reason why the plaintiff, did not make the verification: *“*And that his knowledge is derived from' said instrument, and also from admissions of the plaintiff to this deponent.”

3. The only condition or qualification of the right of the attorney to make the verification is, that the verification must set forth the attorney’s- knowledge, or (not and) his reasons for belief in the matter and the reasons why it is not made by the party *(Stannard*agt. *Mattice, 7 How.,*4; *Fitch*agt. *Bigelow,*5 *How.,*237; *Treadwell*agt. *Fawcett,*10 *How.,*184; *Hubbard*agt. *N. P. Insurance Co.,*11 *How.,*149; *Bank of State of Maine*agt. *Buell,*14 *How.,*311; *Boston Locomotive Works*agt. *Wright,*15 *How.,*253 ; *215*Soutter*agt. *Mather,*14 *Abb.,*440; *Smith*agt. *Rosenthal,*11 *How.,*442 ; *Myers*agt. *Gerritts,*13 *Abb.,*106 ; *Wilkins*agt. *Gilman,*13 *How.,*225).

In this case the verification fully meets those requirements. It sets forth that the complaint *“*is true of his own knowledge,” &c., and the reasons why it is not made by the party. This is all the law requires.

IV. The authorities last above cited even go further.; they establish that the attorney may verify a pleading, notwithstanding the foundation of the action is *not*a written instrument in the possession of the attorney, and though all the material allegations of the pleading may not be within the personal knowledge' of the attorney.

In the case of *Wheeler*agt. *Chesley*(14 *Abb.,*441) the verification was made by the attorney nearly in the identical term as that in the present, and was held sufficient; E. B. says: *“*The foregoing complaint is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true; that the reason why the verification is not made by the plaintiff is that the action is founded on a written instrument for the payment of money only, and such instrument is in the possession of deponent, and that his knowledge is derived from said instrument, and from information received by deponent from plaintiff; and that the grounds of deponent’s belief are the statements of plaintiff to deponent.”

This, it is submitted, is decisive of the present question. The verification in this case sets forth the attorney’s knowledge and his reasons for belief, and also the reason why the party did not make the verification himself.

The verification may, in all cases, be made by the attorney when the party is not within the county where the attorney resides, or is incapable of making it; and it may also be by the attorney, whether the party is within the county or not, when the action or defense is founded on a written instrument for payment of money only, and such instrument is in *216the possession of the attorney, or where all the material allegations of the pleadings are within the personal knowledge of the attorney *(People*agt. Allen, 14 *How.,*334).

Indeed, in one case it was held, where the verification was made by the attorney, that *“*the express statement that the belief referred to is founded upon the possession of the instrument, and that such possession is the reason why the affidavit is not made by the party, adds no force to the affidavit in the latter case and may be dispensed with; it is sufficient if the fact of possession is *stated;*the conclusion will be drawn by the court” (Smith agt. *Rosenthal,*11 *How.,*442).

*Y.*In all cases where the verification of the attorney was held insufficient, the reason generally was that the knowledge or grounds of belief were omitted. In this case they are not omitted.

VI. Should any question be raised by the appellant that the instruments founded on in the complaint are not “ for money only,” the respondent submits the following views :

The complaint recites the bond and then the mortgage, as collateral to the bond, and prays for decree of foreclosure and decree for deficiency.

The bond is a personal obligation for the debt; the mortgage is collateral to the bond for security of that debt, and is a lien or security only, and to become void on payment of the debt *(Kent’s Com., IV, p.*147; *Stoddard*agt. *Hart*23 *N. Y.,*556; *Kortright*agt. *Cady,*21 *N. Y.,*343).

Foreclosure is merely a disposition of the pledge *(Kent’s Com., IV, p.*205).

The action of foreclosure is, in principle, *“*on contract,” *i. e.,*the bond; but as it is also necessary to have the pledge disposed of by barring the right of redemption and a sale of the pledge, it is necessary to adopt the form of summons “ for relief ” *(sec. 129 of Code of Procedure).*The form of summons does not change the remedy or the nature of the cause of action. Forms of action must not be confounded *217with causes of action, for, although the former have been changed the latter remain as distinct as before the Code *(Carpenter*agt. *Stilwell,*3 Abb., 459). The prayer of the complaint in this action is for foreclosure of the mortgage, and for a personal judgment, under the bond, against the mortgagors for any deficiency. That liability arises only under the bond, not the mortgage.

A mortgagor may bring his action on the bond, without attempting to foreclose the mortgage *(Roosevelt*agt. *Carpenter,*28 *Barb.,*426). The true distinction between demands or rights of action which are single and entire and those which are several and distinct is, that the former immediately rise out of one and the same act or contract, and the latter out of different acts or contracts *(Secor*agt. *Sturgis,*2 *Abb.,*69; *affirmed*16 *N. Y.*[2 *Smith],*548). Claims both for legal and equitable relief may be united in one action *(Getty*agt. *Hudson River Railroad Co.,*6 *How.,*629 ; *New York lce Co.*agt. *Northwestern Insurance,*23 *N. Y.*[9 *Smith],*357).

There are several kinds of mortgages, besides those given as collateral security for payment of a bond ; for instance, to secure future advances, payment of notes, existing debts, performance of covenants, &c. In such cases, the mortgage is purely a pledge, and no personal liability attaches to the mortgagor; therefore, the action upon them is purely “ for relief,” while the action upon the bond and mortgage is a mixed action, of which the contract or bond forms the basis, and the action is, substantially, upon an instrument for the payment of money only. The only reason for the form of a summons “for relief” being used, is, that the plaintiff requires to apply .to the court before he can obtain judgment *(sec.*129 *of Code).*

Daniels, *J.*

— The action was prosecuted for the foreclosure of a mortgage given to secure the amount due upon a bond, and for a sale of the mortgaged premises.

*218The complaint was verified by the attorney for the plaintiff upon the sole ground that the action was upon a written instrument for the payment of money only, which was at the time in his possession.

By the complaint, it was alleged that the defendant appealing was one of the owners of the equity of redemption in the mortgaged premises, and upon his behalf an unverified answer was served denying all the allegations contained in the complaint. That was returned for the reason that the verification had been omitted, and the plaintiff applied for judgment in the case by default. That was opposed because of the service of this answer, but the court held it should have been verified to render it regular, and ordered a reference, and afterward judgment on the report of the referee.

Whether that decision was right is the substantial question presented by the appeal, for the second order was only an amplification of the one first made, for the purpose of showing that the reference was opposed upon the fact that an issue had been formed in the action by the service of the defendant’s answer. The mortgage was given at the same time as the bond to secure the same debt, and it was between the same parties. That rendered the bond and the mortgage substantially one instrument, to be construed and enforced together in an action of foreclosure upon them *(Rawson*agt. *Lampman,*1 *Seld.,*456 ; *Rogers*agt. *Smith,*47 *N. Y.,*324). The foundation of the action was the mortgage as much as it was the bond. It was upon both of them, and they were together essential to the right of the plaintiff to maintain it. In fact, the mortgage was the most important instrument of the two, for without it there could be no sale of the premises mentioned for the plaintiff’s benefit. That was the substantial foundation of the relief demanded, and which was secured by the judgment recovered. The action, therefore, was not upon a written instrument for the payment of money only, but upon an instrument for the payment of money providing for a sale of the defendants’ property in case of default, *219and for that reason the complaint could not be properly verified by the attorney, simply because the bond was in his possession (Code, *sec.*157). The instruments referred to in this provision are of the same description as those mentioned in subdivision 1 of section 129 of the Code, authorizing a notice to be inserted in the summons that in case of failure to answer the complaint, judgment will be taken for a specified sum of money; and upon which, by subdivision 1 of section 246, judgment may be recovered of course, without application to the court. The suits upon them are denominated actions on contract for the recovery of money only; and as they, by their terms, determine the amount to be recovered, the formality of an application to the court is not required for the purpose of procuring judgment upon them. It is in that class of cases the attorney' may verify the complaint upon the possession of the written instrument containing the contract, and not in those where an application to the court must be made before judgment can be taken, which was required in this case. The authorities particularly reliéd upon in support of the plaintiff’s practice were not cases of this description. But they involved demands upon which judgment could be taken without any previous application to the court *(Unges*agt. Genits, 13 Abb., 106 ; *Smith*agt. Rosenthall, 11 *How.,*442). Ho authority has been cited, and none found, sanctioning the verification made of the complaint by the plaintiff’s attorney in this case, and the provisions of the Code are directly opposed to it; for that reason, the reference was improperly ordered to compute the amount due upon the mortgage. The service of an unverified answer was regular ( *Williams*agt. *Riel,*11 *How.,*374); and even though it was served simply to delay the plaintiff, there was but one lawful mode of disposing of it, and that was by a trial of the issue which it formed upon the allegation of the complaint; the defendant was a necessary party to the action for the foreclosure of the mortgage. He had a right to defend it and appeal from the judgment.

*220The order of reference, and the judgment recovered upon the report of1 the referee, should be reversed, and the action should be tried upon the issue formed by the answer, but, as it is probable that the answer was served for the mere purpose of delay, the costs and disbursements on the appeal should abide the event of the suit.