Plaintiff appeals from an order directing acceptance of service of an unverified answer. The order should *229be reversed and the motion to compel acceptance denied as the complaint does not impute a criminal charge.
The action is to recover premiums on workmen’s compensation and employers’ liability insurance policies, based upon the amount of the payrolls of the defendant. The complaint alleges that defendant agreed to permit plaintiff to examine and audit the books of defendant and to exhibit to plaintiff the amount of the payrolls but that defendant refused so to do, and refused to pay the premiums as agreed. It thus appears that the defendant is charged with a breach of contract only, in failing to perform, and not with any fraud in performance. Mere non-performance of the acts called for by the contract cannot be the basis of a criminal charge. In this respect does the case at bar differ from the cases relied upon by the respondent. Here the complaint obviously alleges no facts tending to charge the defendant with the commission of a crime. Upon the other hand, the authorities cited by the respondent apply only where it can be seen, or is made to appear, that the matter might be of aid in convicting the defendant of a crime. The rule is stated in Clapper v. Fitzpatrick (3 How. Pr. 314) as follows: “ To determine whether the verification of a pleading may properly be omitted, the material question is, whether the court can see that the matter contained in the pleading is such as might aid in forming a chain of testimony to convict the party of a criminal offense, if properly receivable in evidence.”
Another class of cases upon which the respondent relies is where the personal privilege of declining to answer questions is claimed by the witness. In such cases the witness may judge for himself as to the effect of his answer and determine whether it might imperil his liberty (People ex rel. Taylor v. Forbes, 143 N. Y. 219). The reason for this rule is that only the witness knows what the answer will be, and hence is in the best position to judge whether or not it may incriminate him. As was said in People ex rel. Lewisohn v. O’Brien (176 N. Y. 253, 264): “ The language of Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia (June, 1807), in Burr’s Trial (1 Burr’s Trial, 244), on the question whether the witness was privileged not to accuse himself, is as follows: ‘ If the question be of such a description that an answer to it may or may not criminate the witness according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not-.’ ”
This rule of absolute privilege obviously has no application to a pleading which upon its face has no tendency to incriminate. In such case, in order to be entitled to the privilege of serving an unverified pleading in answer to a verified complaint, the court *230must be enabled to see that the answer of the defendant might tend to incriminate him. As was said in Dehn v. Mandeville (68 Hun, 335): “ The complaint not containing allegations showing that the acts complained of constituted a crime, it was incumbent upon the defendant to make it appear in some way that there were allegations in the complaint in respect to the truth of which he could not be interrogated if under examination as a witness.
“ It is true that it is sufficient if they might have had that tendency, but to be entitled to the order asked for, that must have been made apparent to the court, either by a perusal of the complaint or in some other manner. Facts stated in an ordinary complaint upon a promissory note, might form a link in a chain of evidence tending to convict a party of a crime, but it would not be claimed that he could, for that reason, avail himself of the provisions of the Code mentioned, without making the facts appear in some manner.”
If there existed a principle that a defendant, when sued, might refuse arbitrarily by a mere claim of privilege not under oath to serve a verified answer, the latter requirement would become an exception instead of the usual requirement.
Respondent points to that portion of section 248 of the Civil Practice Act which re-enacts section 523 of the Code of Civil Procedure and provides that a verification may be omitted “ where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading.” This section has never been construed as conferring a right upon a defendant to refrain from verifying an answer upon a. bare claim of privilege. In Thompson v. McLaughlin (138 App. Div. 711) it was pointed out that an allegation in a complaint charging fraud not amounting to a crime, did not come within the exception requiring verification, and that an answer to such a complaint must be verified.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to compel acceptance of an unverified answer denied, with ten dollars costs.
Dowling, P. J., concurs.
Order affirmed, with ten dollars costs and disbursements.