—Baldwin, J. and Cope, J. concurring.
The verification to the complaint complies with the statute, treating the complaint as a pleading in an action of ejectment. (Prac. Act, sec. 55.) A somewhat different form, but amounting in substance to the same thing, is prescribed where an injunction is sought upon the complaint. (Prac. Act, sec. 113.) In the latter case, the affidavit must also state that “ the person making the oath has read the complaint, or heard the complaint read, and knows the contents thereof,” though without the use of these words a knowledge of the contents of a pleading is affirmed by every one who undertakes to swear to its truth. The complaint being properly verified, the answer should have controverted its material allegations specifically, and not having done so, they are, says the statute, “ for the purposes of the action to be taken as true.” (Prac. Act, sec. 66.) The allegations as to the ownership of the plaintiffs, the possession of the defendants, the withholding of that possession from the plaintiffs, and the value of the use and occupation and rents and profits during such possession being “ taken as true,” for the want of a specific denial in the answer, entitled the plaintiffs to the verdict which they obtained. And it is difficult to perceive why the verdict should not be allowed to stand for the whole amount of the damages found, if it can be rightfully allowed to *35stand for one dollar. There was no evidence introduced on the subject, the entire claim resting upon the uncontroverted allegation of the complaint. It is not like the case where, from the want of all evidence upon the subject of damages, or from the evidence being entirely incompetent, the Court may impose, as a condition of allowing the verdict in other respects to stand, the remitting of the damages found. Nor is it like the case where the Court may differ from the jury upon the effect of the evidence, and therefore, properly require a reduction of the damages recovered. It is a case upon an admission by the record. If good for anything, it is good for the entire amount specified.
The surprise alleged did not of itself entitle the defendants to a new trial, or to any reduction of damages. They may have been under the impression, from the verbal stipulation, that no objection • would be taken to the sufficiency of the answer, and been surprised when the objection was urged. Yet it is very evident that had the stipulation been at the time reduced to writing, there would have been no misapprehension as to its effect, and no surprise at the construction given. The surprise was not such that ordinary prudence could not have guarded against; and it is only when the surprise arises under circumstances of this kind, and when the proceeding which produces it prevents the presentation of the case upon its merits, that it constitutes a ground for a new trial. Verbal stipulations as to the pleadings or evidence cannot be regarded, except as they are admitted by the parties against whom they are invoked. Any other rule would lead to endless disputes. In the present case, the counsel of the plaintiffs only admitted that the verbal stipulation went to a waiver of the verification, and on the trial it was entered in the minutes of the Court as having only that extent. And it does not appear that any injury was occasioned to the defendants by the effect given to the stipulation. They do not state in the papers upon which the motion was made, that the value of the use and occupation and rents and profits is not correctly alleged in the complaint, nor that they can diminish the amount by any evidence which they can produce, nor that they intended to offer any evidence on the subject, nor that they have any defense whatever to the claim. One of the counsel does, it-is true, aver in his affi*36davit, that, as he “ is informed and believes,” the damages assessed are excessive and more than could be recovered on a fair trial of the action; but this averment is manifestly insufficient as a statement of a meritorous defense and of injuries received, upon which to justify any disturbance of the verdict. Ho facts are stated from which the Court can perceive that the damages are excessive, or that on another trial there would be any probability of a verdict for a less amount, or that there is any defense to the claim. In Blake v. Howe, (1 Aikens, 310) the Supreme Court of Vermont, in deciding a motion for a new trial in an action of ejectment on the ground of surprise said : “ The defendant ought not only to show a surprise, but to show that he is injured by it; to show that upon a new hearing he can make out such a title as would probably be not only a legal but an equitable defense of the action. If he would claim anything on account of the title of Brigham Howe, he should show to the Court what that title is.”
The cases of Peters v. Foss (16 Cal. 357) and Lestrade v. Barth (17 Id. 285) are not in conflict with these views. In the first case, as appears by the record on file, the defendants on the trial offered evidence material to the defense, which was excluded on the ground that the answer was insufficient to raise an issue, except upon one of the allegations of the complaint; and an amendment which was asked at the time was refused. Subsequently the Court below granted a new trial, and on appeal we affirmed its action, observing that the ■“ new trial having been granted for the purpose no doubt of affording the parties an opportunity to present the case fairly on its merits,” we did not feel at liberty to interfere. In the second case, material evidence offered on the trial was rejected on the ground that it did not support the allegations of the answer, and an amendment moved at the time was refused. Subsequently a new trial was granted to allow the defendants to make the amendment so as to authorize the admission of the evidence, and we affirmed the ruling, remarking that the power to grant amendments should be liberally exercised to secure a fair and speedy trial on the merits, and that we were not disposed to interfere with the action of the Court below in the exercise of this discretion. In both of these cases the evidence offered showed the defendants had meritorious *37defenses, and the sole purpose of the new trials was to enable the parties, by proper amendments of the answers, to present evidence in their support.
The instruction to the jury to render a verdict against the defendants jointly was proper. The defendants were not entitled to seperate verdicts merely from the fact that they prayed for such verdicts in the conclusion of their answer. They should have set forth with specific description the parcels which they severally occupied or claimed, and thus directed the attention of the plaintiffs to the course of defense upon which they would separately insist. Joining in a general denial, they were liable to a joint general verdict.
The order granting a new trial conditionally must be reversed, and the judgment as entered upon the verdict allowed to stand.
Ordered accordingly.
Thompson & Glassel, for Respondents, filed a petition for rehearing, and with it a brief containing several points, which, having been passed upon in the first opinion of the Court, are not inserted. Their other points were as follows:
I. The verification of the complaint was defective; and therefore the answer, though not verified, was sufficient to put in issue the allegations of the complaint. (Prac. Act, sec. 46.)
Conformity to a certain form of verification is required in order to put defendants on their oath. (Prac. Act, sec. 55.)
This was rigidly required in New York until the corresponding section of their statute was amended, and the words “ to the effect ” prefixed to the form of verification. (N. Y. Code, 1852, sec. 171; Vanhorn v. Montgomery, 5 How. 238; Davis v. Potter, 4 Id. 155; Mott v. Burnett, 1 Code R. [N. S.] 225; Waggoner v. Brown, 8 How. 212.)
The verification in question makes a broader exception to what is required to be positively sworn to than our statute authorizes. It excepts “ the matters therein stated on the information and belief of plaintiffs; ” whereas, the statute only authorizes an exception of matters stated on the information or belief of the deponent. It is obvious that the exception in question is more comprehensive than that authorized by the statute, to the extent that it embraces matters *38which may have been stated upon the information and belief of other parties than the deponent; matters of which the deponent had no information or belief whatever.
Nor can it be answered that the complaint does not contain any matters stated on information or belief, and that the objection above referred to is therefore inapplicable. The form of the affidavit implies the contrary. (Truscott v. Dale, 7 How. 221; Hackett v. Richards, 11 L. O. 315.)
The form of the required verification is not observed in another, though more immaterial particular, in this. The conjunction “ and ” is used instead of the disjunctive “ or.” Even this discrepancy has been held to be material. (Vanhorn v. Montgomery, 5 How. 238; Davis v. Potter, 4 Id. 155.)
Another objection to the verification is that it is made by but one of the plaintiffs, without any reason being given why the other did not join in it. (Prac. Act, sec. 55.)
II. Granting that the answer was insufficient, the plaintiffs were not exonerated from proof further than if no answer whatever had been filed. (Salus v. Kipp, 12 How. 342; Drum v. Whiting, 9 Cal. 422.)
The proceedings in such cases are regulated by sec. 150 of our Practice Act. This requires that “ where the action is for the recovery of damages in whole or in part ” * * the damages are to be assessed by a jury. In assessing these, the proceedings conform to those of executing a writ of inquiry at common law, (Salus v. Kipp, supra) that is, by proving the damages. (Gilbert v. Rounds, 14 How. 46; Adams on Ejectment, 391; cases cited in Prac. Act, sec. 150.)
III. The defendants being sued and charged as trespassers, and not as tenants holding under contract, are not liable for the use and occupation, or the rents of the premises. (1 Chitty’s Pl. 107; 3 Cal. 199; Id. 203-4-5; Id. 370-3; 1 Wend. 134; 1 John. 46; 1 Abbott, 207.) It cannot be determined from the pleadings what proportion of the $10,000 is chargeable to these elements, nor can it be ascertained what was the value of the profits, the element for which they are liable.
In regard to the profits, even if their value were ascertainable, *39there being no allegation or proof that defendants or their agents received them, the defendants were not liable therefor. (Ainslee v. Mayor of New York, 1 Barb. 177.)
Field, C. J. delivered the opinion of the Court on the petition—Baldwin, J. and Cope, J. concurring.
When this case was considered and decided by the Court, there was no brief on the part of the respondents on file. The time allowed for filing briefs had elapsed weeks previously. Since the decision was rendered, the respondents have filed their brief, with a petition for a rehearing, stating as an excuse for their delay, that they were to have five days time to answer the briefs on the other side, after service of a copy of the same, and that no such service has been made upon them. A provision to that effect is not inserted in the order of submission, and we cannot look beyond the record of the Clerk. Had such provision been contained in the order, we should not hesitate to grant a rehearing, without reference to the merits of the application in other respects.
We have, however, carefully examined the brief of the learned counsel of the respondents, and have considered the authorities cited with as much attention as if they had been presented before the decision; and after such examination and consideration, we must adhere to the decision rendered.
1. The fifty-fifth section of the Practice Act does, it is true, declare that “ in all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true.” But this section is to have a reasonable interpretation; if the pleading does not contain a statement of any matters on information or belief, there can be no occasion for any expression of belief in the affidavit as to any such matters. The object of the verification is to insure good faith in the averments of the party. If he aver matters positively, the verification will be sufficient if his affidavit state that the pleading is true of his own knowledge; if he aver matters “ upon information and belief,” or “ upon information or belief,” the verification will be sufficient, if his affidavit state that *40as to the matters thus alleged he believes the pleading to be true. To require anything further would be to sink the evident spirit and object of the statute into a mere observance of its letter.
It was not necessary that the verification should have been made by both of the plaintiffs. The affidavit of one of them was sufficient.
2. The damages in the case were assessed by the jury. The allegations of the complaint being, under the statute, taken as true for the purposes of the action, constituted conclusive evidence of the extent of those damages. The finding of a jury based upon an admission of the parties by pleadings or otherwise, is not less an assessment than if the finding were made upon conflicting evidence on the subject.
3. The allegation of the value of the “ use and occupation, rents and profits ” of the premises for the period during which the defendants were in the wrongful possession and excluded the plaintiffs, was sufficient to charge the defendants without any averment that they received such rents and profits. These terms “rents and profits ” are not used in a technical sense. The whole averment is in effect only that the value of the use of the premises, whilst the plaintiffs were excluded from their enjoyment, was the amount stated—a very proper averment as the basis of the damages claimed for the wrongful detention of the property.
The other positions of the respondents were fully considered in the opinion rendered.
Petition denied.