This action was brought to enforce a liability incurred, as alleged by the defendants and his co-trustees, in consequence of their failure to file an annual report as trastees of the Pyrolusite Manganese Company. The summons was personally served on the appellant defendant within the state, and the complaint was duly verified. The defendants answered separately, but the defendant Woodward served an unverified answer, which was returned the day it was served, with a notice electing to treat it as a nullity pursuant to section 528 of the Code of Civil Procedure. On the 18th of May, 1885, the appellant made a motion to compel the plaintiff to receive the unverified answer, which motion was denied and an order entered. Judgment was subsequently entered as on a default for want of an answer in an action upon contract, and therefore upon application to the clerk only.
Thereafter the defendant moved to set aside the judgment as irregularly entered, which motion was denied. This appeal involves the propriety of both orders denying the motions mentioned. The appellant insists, this being an action to recover a penalty, that he is not bound by the provisions of the Code to answer under oath the allegations in the complaint. And this view seems to be predicated of a number of decisions declaring, as they certainly do, the action to be in its nature ex delicto and in its character penal. It was so pronounced in the case of the Merchant's Bank agt. Bliss (35 N. Y., 412), and since that decision, as observed by chief judge Huger, in Stokes agt. Stickney (96 N. Y., 326), the subject of actions under the section of the statute of 1848 which create the liabilities of trustees upon facts alleged in this action, “has frequently been under the consideration of this court, with the uniform conclusion that the actions therein provided for are penal in character and are not in any respect based upon the theory of affording compensation to the injured party for damages sustained by reason of the omission complained of.” The logical effect of these decisions which he states, is to classify such actions under those *115usually designated as actions ex delicto and which at common law were extinguished by the death of the tort feasor.
The Code, however, by section 523, provides that where a pleading is verified, each subsequent pleading, except a demurrer, must also be verified. And further, that the verification may be omitted in the action where the party would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, and section 837 declares that a witness shall not be excused from answering a relevant question .on the ground only that the answer may tend to establish the fact that he owes a debtor, or is otherwise subject to a civil action; but provides that this does - not require a witness to give an answer which would tend to accuse himself of a crime or misdemeanor, or expose him to a penalty or forfeiture. Nor does it vary any other rule respecting the examination of a witness. The theory of the appellant, therefore, is that this is an action ex delicto for a penalty, and that as he could not be required to appear as a witness and answer any question which, would expose him to a judgment for a penalty, he is not bound to verify his answer.
It will doubtless have been observed that section 837, to which reference has been made, expressly declares that the witness shall not be excused from answering any relevant question on the ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil suit It is true that the statute of 1818, under which this action was brought subjects a trustee who fails to comply with some of the provisions of that statute to a penalty which in this particular instance is the payment to the creditor of a debt due from the corporation. In other words, it extends the liability of the corporation to the trustee and imposes upon him the obligation to pay the indebtedness. It is not, however, a penalty in the sense of a forfeiture, as in the case of Henry agt. Salina Bank (1 N. Y.. 83), and upon which the appellant herein relies. There it appears that if Chapman, the witness, had committed the act complained of, he forfeited not only *116twice the amount of the loan which he made on behalf' of the bank with which he was connected, but likewise forfeited the debt itself. Hence the word penalty or forfeiture, used in section 837, would seem to be used in the same sense. In other words, the penalty as to which the witness may be excused from testifying necessarily must involve a forfeiture, as illustrated by the case to which reference has just been made. And this must be a forfeiture as contradistinguished from the liability to pay a debt. It must be characterized by the loss oi some right, privilege, estate, honor, office or effects by an offense, crime, breach of condition or other act.
It is true that the obligation imposed to pay the debt is a quasi forfeiture of a man’s property, but that the legislature intended to make a distinction between it and such a penalty as mentioned is very clear, for the reason which has already appeared, namely, an express declaration that the witness should not be excused from answering where the answer would tend only to establish that he owed a debt or was otherwise subjected to a civil suit And this view is confirmed by the definition, first, of a criminal action and, secondly,, of a civil action. A criminal action is one prosecuted by the people of the state against a person charged with a public offense for the punishment thereof. Every other action is a civil action (see Bliss' Annotated Code, 1877, p. 1003).
We have been referred on this subject to the case of Clapper agt. Fitzpatrick (3 How., 314), decided in 1848. That, however, was an action of assault and battery and the section under which it was decided was quite different from that now under consideration, as will be seen by an examination of that case.
We are also referred to the case of Hughumen agt. Woodward (August No., 1885, How. Pr., 127), in which the general term of the city court held that in an action such as this a defendant was privileged from answering any question concerning the facts alleged in the complaint and could not be compelled to answer upon an examination before trial any question which *117would support the claim of the defendants either against him or his co-defendants.
The learned justice who wrote the opinion in that case, regarded the action, and properly, as penal in its character, and held that under the provisions of section 837, to which reference has been made herein, and the case of Henry agt. Salina Bank (supra), a party was not required to be a witness.
We cannot follow that case, however, because we think that the distinction between actions purely penal involving forfeiture, and actions in the nature of a forfeit which would merely impose the payment of a debt, was not considered.
For these reasons, it is thought that the motion to compel tire plaintiff to receive an unverified answer was properly denied and that the order appealed from should therefore be sustained.
A different result, however, has been arrived at with regard to the motion to set aside the judgment, upon the ground that it was irregularly obtained. It appears that an affidavit of merits had been served, and, as we have already learned, an answer also; but the latter was returned because it was not verified. The action is clearly not ex contractu, as appears from the cases already cited, and to which may be added Macomb agt. N. Y. C. and H. R. R. Co. (59 N. Y., 176), Wild agt. Suydam (64 N. Y., 173), Easterly agt. Barbour (65 N. Y., 262). And not being an action ex contractu, the clerk was not authorized, under section 1212 of the Code of Civil Procedure, to enter the judgment, the complaint not setting forth one or more causes of action embraced within, and contemplated by, section 420 of the Code.
It is contended, however, by the respondent that, assuming the judgment to have been irregularly entered, the defendant is not prejudiced, and, therefore, it should not be set aside, inas-' much as the appellant cannot set up any meritorious defense. The response to this is, that the answer is not before us, and that an affidavit of merits is upon file, which is regarded as destructive of the contention mentioned. '
*118. For these reasons it is thought that the order appealed from, in reference to the unverified answer, should be affirmed, and the order in regard to the vacation of the judgment should be reversed without costs of either party of this appeal. These conclusions each apply to three other cases presented at the same time this appeal was heard, and involving the question discussed and disposed of.
Ordered accordingly.
Daniels and Davis, JJ., concur.