■«*.: .,■&>■ (finrnpU ICam irlinnl ICibrary Cornell University Library KFN6011.B35 The rules of pleading under the code :an 3 1924 022 786 887 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022786887 BY THE SAME AUTHOR. Trial P ract ice. The rules of practice applicable to the Trial of Civil Actions in Courts of Record, under the New York Code, and other States having similar Codes, with an appendix of Forms. Price, delivered, $4.50. New Trials and Appeals. The rules of practice applicable to the review of Judicial Determinations in Civil Ac- tions and Special Proceedings, under the New York Code, and other States having similar Codes, with an appendix of Forms. Price, delivered, $4.50. PUBLISHED BY WIIvI^IAMSON LAW BOOK COMPANY, Rochester, N. Y. ^l: 2^' Entered, according to act of Congress, in the year eighteen hundred and ninety, BY EDWIN BATLIES, In the office of the Librarian of Congress, at Washington. WEED, PERSONS & COMPANY, PRINTERS AND B L E C T R O T Y P E R 3 , ALBANY, N. Y. PREFACE. Since the enactment of the Code, and the abolition of forms of actions, every action is an action upon the case in the sense that it is founded upon the particular facts set forth in the complaint. No set form of words is now essential to the proper statement of any cause of action or defense. The pleader may choose his own language and Btate his case in his own way, if in so doing he confines himself to facts which are pertinent and material. Under the Code, that pleading is best which states clearly in the fewest words the facts from which flow all the legal conclusions necessary to the support of the pleader's case. Skill in pleading is still an essential quali- fication of a successful lawyer, and a proper pleading is as im- portant now as formerly ; but the Code regards the substance rather than the form of a pleading, and mere technical defects, by which neither party could be prejudiced, have ceased to be im- portant. An attempt has been made to present in the following pages a clear and concise statement of the rules of pleading established by the Code as construed and applied by the decisions of the courts. In this attempt, the IsTew York Code, which is the basis of the codes of many of the Code States, has been adopted as the ex- pression of the rules of Code pleading. The authorities cited have been taken from the decisions of the courts of every State in which a Code has been adopted, and in rare instances from the decisions of courts of other States holding tlie same rnle of pleadino'. Where there is a conflict of authorities, that fact has teen noted, and the cases given in the foot-notes. By this iv Peefaoe. method it was hoped that a volume, though made to conform par- ticularly to the rules of pleading established by the New York Code of Civil Procedure, would be found of use to the practi- tioner in other Code States. In addition to the statement of the rules of pleading, a few chapters of the book have been devoted to the practice relating to pleading, and an appendix of forms is given. These forms are intended rather as suggestions than as precedents, for under the present system, precedents of pleadings are of doubtful value. Each cause of action set forth in a pleading must stand or fall upon the facts of that particular case ; and no collection of forms can furnish a system of ready-made pleadings, though it may serve as a reminder of a necessary allegation that otherwise would have been omitted. The general plan of the work appears in the table of contents, and the matters of detail in the index. EDWIN BAYLIES. Johnstown, N. Y., May 10, 1890. TABLE OF CONTENTS. Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 1. Section 2. Section 3. Section Section Section Section Section 8. Section 9. Section 10. Section 11. Section 12. Section 13. Section 14. Section 15. Section 16. Section 17. Section 18. Section 19. CHAPTER I. The system of pleadings introduced by the Code. Page. Abolition of forms and former rules of pleading 3 Effect of the Code aa to the substance of pleadings 5 Blending of law and equity 6 Pleadings authorized by the Code 9 When an issue of law or fact arises on the pleadings 12 Truth, as a requisite of Code pleadiug 13 Substitutes for cross-bill furnished by the Code 15 Partial defenses 17 Pleadings in actions of libel and slander 17 Other changes in pleading introduced by the Code 18 CHAPTER II. General rules of pleading. Pleading defined 20 Every material fact should be pleaded 20 No judgment can be based on a cause of action or defense not pleaded 21 Facts should be pleaded, not evidence of the facts 22 Facts and not conclusions of law should be pleaded 23 What are facts and what conclasions of law 24 Stating facts according to their legal effect 26 Anticipating possible defenses 28 That which the law implies need not be alleged 80 Matters judicially noticed need not be pleaded 31 Hypothetical pleading 32 Certainty as to time, place and value 82 Conciseness in pleading 34 Consistency in pleadiug 35 Pleading performance of conditions precedent 36 Pleadiug j urisdictional matters 39 Pleading an action or defense founded on an instrument for payment of money only 40 Pleading an account 43 Pleading private statutes 43 vi Table of Contents. Page. Section 20. Pleadings in libel and slander 44 Section 31. Pleading mitigating circumstances ' 45 Section 22. Pleading title in replevin 45 CHAPTER III. Formal rules of pleading. Section 1. Requirements as to writing or printing , 46 Section 3. Folioing pleadings 46 Section 3. Subscription and indorsement 46 Section 4. Separating and numbering causes of action and defenses 47 Section 5. Form of allegations or denial in verified pleading 50 Section 1. Section 2. Section 3. Section Section Section Section Section 8. Section 9. Section 10. CHAPTER IV. Verification of pleadings. When verification is optional with the pleader 51 When a pleading must be verified 53 When the answer or reply to a verified pleading may be un- verified 54 By whom pleadings may be verified 56 When the verification may be by the agent of or attorney for the party 58 Form of verification by a party _ 59 Form of verification by an agent or attorney 61 Form of verification by guardian ad litem 63 Form of verification by an oiEcer of a corporation 64 Remedy for defective verification 64 CHAPTER V. Oonstruotlon of pleadings. Section 1. Pleadings to be liberally construed 66 Section 3. Construing pleading most strongly against the pleader 68 Section 3. Construction on demurrer 70 Section 4. Construction on the trial 71 Section 5. Facts specifically alleged prevail over general statements and conclusions 72 Section 6. Whether the pleadings allege a contract or a tort 73 CHAPTER VI. Oopy account. Section 1. When a party is entitled to a copy account 76 Section 3, Demand, how and when made 77 Section 3. Proceeding when copy account is furnished on demand 77 Section 4. Proceeding when the demand is not complied with 78 Section 5. Proceedings when a defective account is served , 79 Table of Contents. Vll CHAPTER VII. BUI of particulars. Page. Section 1. Nature, scope and office of a bill of particulars 81 Section 3. In what action a bill of particulars may be ordered 82 Section 3. Eitlier party may be required to furnish a bill of particulars. 84 Section 4. The demand of relief not controlling 84 Section 5. When a bill of particulars will not be ordered 85 Section 6. Application for order 87 Section 7. Form and contents of the order 88 Section 8. Form and contents 'of a bill of particulars 89 Section 9. Proceedings when no bill is furnished 90 Section 10. Proceedings where a defective or evasive bill is furnished. ... 91 Section 11. Amendment of the bill 91 Section 12. Effect of the bill 92 CHAPTER VIII. Proceedings preliminary to pleading. Section 1. Discovery of books, papers and documents 93 Section 2. Examination of a party in aid of pleading 101 Section 3. Motions based upon defects in pleadings of adverse party 109 CHAPTER IX. The complaint. Section 1. General requisites of a complaint 109 Section 2. Title of the action 110 Section 3. Statement of the cause of action U3 Section 4. What constitutes a single cause of action 113 Section 5. A single cause of action cannot be divided 115 Section 6. Provisions of the Code as to joinder of causes of action 116 Section 7. Joinder of claims arising out of the same transaction, etc 117 Section 8. The several causes of action must affect all the parties 119 Section 9. Joinder of demands held in both an individual and representa- tive capacity 122 Section 10. Joinder of causes of action upon claims against trustees 122 Section 11. Joinder of causes of action against executors 123 Section 12. Causes of action which cannot be joined in the same complaint. 123 Section 13. Complaint by or against executors ■. 125 Section 14. Complaint by or against a receiver 127 Section 15. Complaint by guardians 128 Section 16. Complaints by corporations and associations 129 Section 17. Complaint by or against public officers 130 Section 18. Alleging permission to sue 133 Section 19. Mode of pleading a contract 133 Section 20. Allegations as to consideration 135 Section 21. Alleging performance of conditions 136 Section 22. Alleging a demand in an action on contract 139 viii Table of Contents. Page. Section 23. Alleging the breach of a contract 141 Section 34. Allegations of damage in action on contract ....... 143 Section 25. Allegations of damage in actions of tort 143 Section 26. Allegations of wrongful intent 146 Section 27. Complaint on an account stated 147 Section 28. Complaint for assault and battery 148 Section 29. Complaint in replevin 149 Section 30. Complaint in an action for conversion or trover 153 Section 31. Complaint in action for malicious prosecution 155 Section 32. Complaint in action for abuse of legal process 156 Section 38. Complaint in action for false imprisonment 157 Section 34 Complaint in action for conspiracy 158 Section 35. Complaint in action for fraud or deceit 158 Section 36. Complaint in action for libel or slander 161 Section 37. Complaint in action for slander upon title 164 Section 38. Complaint in an action for seduction 164 Section 39. Complaint in an action for death by negligence 165 Section 40. Complaint in actions for negligence generally 167 Section 41. Complaint in action under the Civil Damage Act 167 Section 42. Complaint in ejectment 168 Section 43. Complaint In partition 170 Section 44. Complaint in action for dower 173 Section 45. Complaint in action against claimant for dower 174 Section 46. Complaint in action to compel determination of claims against lands 175 Section 47. Complaint in action to foreclose a mortgage . 176 Section 48. Complaint in action for a nuisance 178 Section 49. Complaint in action for absolute divorce 179 Section 50. Complaint in an action for a separation 181 Section 51. Complaint in creditor's action 183 Seciion 52. Complaint in action against a stockholder 186 Section 53. Complaint in action by creditors against trustees of corporations 189 Section 54. Complaint in action for interpleader 190 Section 55. Complaint by judgment-creditor against defendants not sum- moned 191 Section 56. Complaint in action for services, etc 191 Section 57. Complaint in action upon a policy of Insurance 193 Section 58. Complaint against the maker of a note 194 Section 59. Complaint ag&inst indorser of promissory note 195 Section 60. Complaint on a bill of exchange or check 197 Section 61. Complaint against guarantor 199 Section 63. The demand of judgment 199 CHAPTER X. Demurrer to the complaint. Section 1. When a demurrer to the complaint may be interposed 303 Section 3. Want of j urisdiction of the person of the defendant or of the subject of the action 206 Table of Contents. IX Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 11. Section 12. Section 1. Section 2. Section 3. Section 4. Section 5. Section 6- Section 7. Section 8. Section 9. Section 10. Section 11. Section 12. Section 13. Section 14. Section 15. Section 16. Section 17 Section 18. Section 19. Section 20. Section 31. Section 22. Section 23. Section 24. Section 25. Section 26. Section 27. Section 28. Section 29. Section 30 Section 31. Section 32, Page, Want of legal capacity to sue 207 Auotlier action pending between the same parties 207 Misjoinder of parties 209 Defect of parties 209 Misjoinder of causes of action 210 No cause of action stated 211 Form of the demurrer 315 Effect of an omission to lemur 317 Decision of the demurrer and proceeding thereupon 817 Effect of a demurrer as an admission of facts 220 CHAPTER XI. The answer. Contents of the answer 221 Necessity of a demand for judgment 233 When the answer should contain a general or specific denial. . 223 Form and sufficiency of general or specific denials. 326 Denials of knowledge or information sufficient to form a belief ; 330 What may be sliown under a general denial 331 Defenses which must be pleaded to be available 235 Equitable defenses 288 Pleas in abatement and pleas in bar 241 Defense of non-joinder of parties 248 Plea of a former action pending 245 Plea of former judgment 245 Plea of tender 248 Usury as a defense 250 Discharge in bankruptcy 353 Statute of limitations 252 Answer in action for determination of claims to land 353 Answer in replevin, trover or trespass 353 Answer in action for divorce or separation 354 Answer of joint-debtor not served with summons 256 Alleging fraud as a defense to an action on contract 257 Answer in action of slander or libel 358 Distinction between a defense and a counterclaim 359 Requisites of a counterclaim 361 Counterclaim must be a cause of action in favor of defendant 363 Counterclaim by persons sued in representative capacity 264 Must be a cause of action against the plaintiff 364 Counterclaim in actions upon assigned demands 365 Counterclaim in action by trustee or plaintiff without interest 367 Counterclaim in actions by an executor or administrator 368 Relation between the counterclaim and plaintiff's cause of action """ Counterclaim in actions on contract 273 X Table of Contents. Page. Section 33. Counterclaim in action of foreclosure 276 Section 34. Counterclaim against co-defendants 277 Section 35. Counterclaims and set-offs in equity 279 Section 36. Mode of pleading a counterclaim 280 Section 37. Mode of trial and judgment on counterclaims 281 CHAPTER XII. Demurrer to the answer. Section 1. When demurrer to the answer is authorized 282 Section 2. Mode of taking demurrer 285 Section 3. Principles governing the decision on demurrer 286 CHAPTER XIII. The reply. Section 1. When a reply is required to form an issue 287 Section 2. Requisites of the reply 289 Section 3. Reply required by court 290 Section 4. BfEect of a failure to reply 290 CHAPTER XIV. Demurrer to the reply. Section 1. When a demurrer to a reply is authorized 291 CHAPTER XV. Service and filing of pleading. Section 1. Time of service of the complaint 292 Section 2. Time of service of the answer or demurrer 293 Section 3. Time of service of a reply or demurrer to the answer 295 Section 4. Extension of time to plead 295 Section 5. Mode of service 299 Section 6. Papers to accompany the pleading served 302 Section 7. Filing pleadings 303 CHAPTER XVI. Amendment of pleading of coiurse. Section 1. Right to amend without leave of court 304 Section 2. Time in which a party may amend as of course 307 Section 3. Nature and extent of amendments as of course 308 Section 4. Effect of an amendment 311 Section 5. Remedy for improper amendments 313 Section 6. Pleadings amended of course must be served and answered. . 314 Table of Contents. xi CHAPTER xvn. Amendments on motion before triaL Page. Section 1. Xatnre and extent of amendments allowed on motion 315 Section 2. The motion for leave to amend 318 Section 3. Terms imposed on granting a motion to amend 320 Section 4. Service of tlie order and amended pleading 321 CHAPTER XVIII. Amendment of pleadings at the triaL Section 1. Conforming the pleadings to the proofs 321 Section 2. Proceedings in case of variance between the pleadings and proof 327 Section 3. Inserting allegations material to the case 330 Section 4. Amendment as to parties 330 Section 5. Power of a referee to amend pleadings 332 CHAPTER SIX. Amendment of pleading after trial, or on appeaL Section 1. Power to amend pleadings after trial 333 CHAPTER XX. Supplemental pleadings. Section 1. Nature and object of supplemental pleading 337 Section 2. Supplemental complaint 338 Section 3. Supplemental answer or reply 343 Section 4. Application for leave to serve a supplemental pleading 344 Section 5. Decision of a motion for leave to file supplemental pleading. . 346 Section 6. Proceedings when the motion is granted 348 CH.\PTER XXI. Sham answers or defenses. Section 1. Power of the court to strike out a sham answer 350 Section 2. What answers are sham 3.52 Section 3. Motion to strike out a sham answer .- 352 Section 4. Proceedings when answer is stricken oat 354 CHAPTER XXII. Frivolous pleadings. Section 1. Remedy for frivolous pleading 354 Section 2 What pleadings are frivolous 355 Section 3. The motion foi judgment on a frivolous pleading 357 Section 4. The order, and proceedings thereunder 359 xii Table of Contents. CHAPTER XXIII. Striking out irrelevant, redundant or scandalous matter. Page. Section 1. What is irrelevant, redundant or scandalous matter 360 Section 2. The motion to strike out irrelevant and redundant matter 361 Section 3. Principles governing the decision of the motion 362 CHAPTER XXIV. Inde£nite and uncertain pleadings. Section 1. Remedy for indefinitenesa and uncertainty 366 Section 2. Time and mode of making the motion 363 Section 3. Proceedings under the order 370 CHAPTER XXV Default. Section 1. Failure to serve complaint on demand 371 Section 2. Judgment on failure to answer 373 Section 3. Application to the court for j udgment by default 375 Section 4. Proceeding on default of a defendant not personally served in the State 379 Section 5. Judgment on failure to answer in action to foreclose a mortgage 380 Section 6. Default in matrimonial actions 381 Section 7. Failure to reply 383 Section 8. Relief from default • 383 CHAPTER XXVI. Application of the rules of pleading to special proceedings. Section 1. Rules of pleading applied in proceeding for a mandamus ... . 386 Section 2. Pleadings in Surrogate's Courts 390 CHAPTER XXVII. Pleadings in a Justice's Court. Section 1. Pleadings authorized in a Justice's Court 391 Section 2. Form of pleadings in J ustices' Courts 392 Section 3. The complaint 393 Section 4. Joinder of causes of action in the complaint 394 Section 5. Verified complaint under the act of 1881 395 Section 6. The answer 396 Section 7. Answer that title of lands will come in question 397 Section 8. Counterclaims in Justices' Court 400 Section 9. Effect of a failure to plead a counterclaim 403 Section 10. Judgment upon the counterclaim 403 Section 11. Demurrers in a Justice's Court ; 404 Section 12. Time of joining issue in a Justice's Court 405 Section 13. Amendments of pleadings in Justice's Court 406 TABLE OF CASES Page. Abbev. Clark 236, 344,397 Abbott V. Allen 141 Abbott V. Fuller 318 Abramsv. Mitchell 295 Aeerv. Hotchklss 261, 279 Adams V. Bissell 119 Adams & Lang v. West Shore, etc. , R. B. Co 310 Adams V. Mayor 193 Adams v. Mayor of New York 134 AdamsT. Koberts 290 Adams T. SherriU 37, 19B Adee V. Bigler ] 84, 185 Addington v. Allen ]47, ]o9 Adsit V. Butler 185, 186 Agawam Bank v. Egerton 351 Ahlymeyer V. Healy 95 Ahoyke v. Wolcott 98 Alrd V. Fireman's Journal Co 259 Ayres V. O'Farrell 292 Ayres v. Covill 286 Ayrault V. Chamberlain 35, 286 Aymar y. Chase 383 Alabama y. Burr 23 Albany City Savings Bank v. Burdiok. . 278 Albert Palmer Co. V. Shaw 298 Alburtisv. McCreadv 406 Alder V. Blnomingdaie 43, 196 Aldrioh V. Lapham 177 Alexander V. Katte 8, 200 Alger y. Soovllle 133 Allen V. Allen 75 Allen y. Addington 160 Allen V. Clarke 190 Allen y. City of Buffalo 209 Allen y. Compton 313 Allis V. Leonard 337 Allen V. Malcolm 280,287 Allen V. McMonagle 154 Allen y. Patterson 20,67, 70 Allyn y. Thurston 185,186 Alston v. Mechanics' Mut. Ins. Co 320 American Bible Society y. Stark . 17 American Dock and Imp. Co. v. Staley. 288 American Insulator Co. y. Bankers & Merchants' Tel. Co 64 Ames V. Eathbun 330 Anable y. Anable 63 Anderson y. Doty 56 Anderson y. Hill 118 Anderson y. Kiohards 213 Anderson y. Speers ... 35 Anderton V. Wolf 216 Andrews y . Astor Bank 197 Andrews v. Bond 4, 332 Andrews y . Cleyeland , 88 Andrews y. Murray 190 Andrews V. Prince 102 Andrews V. Storms S7 Andrews y. Townshend 95 Andrews y. Van Duser 258 Page. Anibal y. Hunter 258 Anonymous 355 Ansert V. Ansert 83 Appleby y. Elkins 389 Argall V. Jacobs 289 Argall y. Pitts 378 Argersinger v. Leyor 337, 409 Arrieta y. Morrissey 370 Armstrong y. Hall ^. .. 123 Armstrong v. McKelvey ». . . 279 Armstrong V. Percy 142 Armstrong V. Weed 360 Arnold V. Angel 7, 21 Arnott y . Nichols 256 Arosemena v. Hinckley 154 Arthur V. Brooks 33, 329 Arthur V. Griswold 161 Arthur y. Homestead Fire Ins. Co. ..10, 288 Argotsinger V. Vines 143 Ashley V. Harrison 145 Ask ins y. Hearna 27U, 271 Atkinson V. Collins 193 Atkinson v. Manks 190 Atlantic & Paciflc Tel. Co. v. Baltimore &Ohio R. E. Co Atwood y. Austin Auburn City Bank v. Leonard.. 208, 339, £06 406 240 241 248 76 Aulger V. Clay Austin V. Eawdon 4,74, Austin y. Seligmau 5 Austin V. Schluyter 169 Averellv. Day 224 Ayery V. Leach 148 Avery v. New York Cent., etc., E. E. Co. 368 Avery V, Starbuck 338 Babcock V. Lipe Bacon V. Burnham 42, Badeaux v. Niles Badger V. Benedict Badgiey v. Decker 15, Badlam y. Springsteen Baggott y. Boulger Bailey y. Dean Baileyy. Lane 351,353,357, Bailey V. Lee Baird y. Morford Bailey v. Eyder 21, Bakery. Curtiss Balcombe v. Northup Baldwin y. Berrian Baldwin y. Briggs Baldwin V. Martin Baldwin V. Munn 36. Ballou v. Parsons Baldwin V. Roberts Baldwin y. Eood Baldwin v. United States Tel. Co Ball v. Evening Post Pub. Co. 81, 82, 83, 407 196 23 lis 164 274 205 164 185 S71 286 363 263 38 134 339 133 323 286 85 258 XIT Table of Cases Page, lialtimore & Ohio E. E. Co. v. Arthur.. 190 Bangsv. Mcintosh 137 Bangs V . Ocean Nat. Bank 81, 85 Bank of America V. Senior 197 Bank of Geneva v. Gulick 41 Bank of Genesee v. Patchin Bank 4, 236 Bank of Lowville v. Edwards. .30, 68, 197 207, 359 Bank of Wilmington v. Barus 350 Barber V. Bennett 361, 362, 368 Barber y. Morgan 147, 159, 160 Barberv. Rose 17 Barclay V. Sands 229 Barclay V. Quicksilver, etc., Co 206 Barclay v. Yeomans 169 Bogardus v. New York Life Ins 23, 36 Barhydt V. Ellis ]99 Barhyte V. Hughes 270,271 Barker V. Foster 351 Barnard v. Morrison 204 Barnes v. Smith 121 Barnes V. Gibbons 310 Barnes v. Harris 39 Barnes v. Henshaw 91 Barnett V. Myer 317 Barnes v. Quigley 4, 159 Barney V. Worthington 27, 198 Bartley v. Richtmyer 164 Bartholomew v. Lyon 205,207, 217, 336 Bartlett v. Prescott 67 Barton v. Speis 211 Barr V. Shaw 125 Barrett v. Warren 150 Barruso v. Madan 136 Barstow V. Hansen 346 Bassett v. Fish 318, 331 Bassett v. Lederer 835 Basey V. Gallagher 7 Bassil V. Elmore 143,145, 164 Bass V. Comstock 368 Bate V. Fellows 348 Bate v. Graham 15,335 Bates V. Eosekrans 66, 69, 261, 288 Bates V. Voorhies. .316 Bathgate v. Haskin 16, 260, 277, 279 Baumv. Clause 257 Baxter v. Brooklyn Life Ins. Co 36 Baylis T. Stlmson 228 Beale v. Hayes 205 Beach V. Barrens 232 Beach v. Bay State Steamboat Co .. .70, 166 Beach v. Fulton Bank 316 Beach V.King 135 Beach v. Mayor 103,103 Beach v. Ran ney 145, 146 Beardsley V. Stover 316 Beardsley Scythe Co. v. Foster 183, 185 Bearss V. Coply 313 Beatty v. Bartholomew County Agri- cultural Society 2.36 Beaty v. Swarthout 235, 336 Bebinger v. Sweet 49, 167, 317 Beck V. Allison 335 Beck V. Stephani 337 Becker v. Boone 248 Beckhoefer v. Huber 347 Bedell V. Sickles 365 Bedford v. Terhune 335 Bfcebe v. Marvin 351 Beecber V. Conradt 139 Beers V. Waterbury 263 Beers V. Shannon 112, 126 Beidlerv. Fish 143 Belden V. Curtiss 244 Bell V. Lesbini 384 Bell V. Merrifleld 7,300,303,314 Bell V. Sun Printing, etc., Assoc ...163, 164 Bell V. Spotts 2HS Bell V. Wallace 29 Page. Bell T. Gates 252 Bellinger v. Cralgue 31, 260 Benedict V. Dake 362, 369 Benedict v. Tanner 352 Benedict v. Seymour 35, 49 Bendit v . Annesley 223, 310 Bendernagle V. Cocks 115 Bengston v. Thlngvalle Steamship Co. 129, 236 Bennett V. Hurd 29 Bennett V. Judson 27 Bennett T. Leeds Manuf. Co 51, 229, 230 Bennett V. Preston 213 Bennett v. Warden 88, 86 Bentley V. Jonea 23 Benware v. Pine Valley 38 Bernhard V. Sellgman 4 Berney v. Drexel. 9,25, 152, 153, 155, 209, 316 Besson V. Southard 155 Betts V. Bache 4 Betts V. Kridell 63,310 Beveridge v. New York Elevated K. R. Co • 346 Bewley V. Equitable Life Ins. Co 319 Beyer V. Wilson 14, 59, 60,62 63 Blackie V. Neilson ' 85 Blackmar v. Thomas 70 Blair V. Bartlett 16, 246, 405 Blair v. Claxton 275 Blaisdell v. Raymond 56. 163 Blank V. Hartshorn 13, 35 Blake v. Eldred 226, 229, 362, 36.5, 369 Bliss V. Bliss 265 Blood V, Kane 264 Blossomv. Barrett 217 Bickwell v. Lancaster, etc.. Fire Ins. Co 193 Bidwell Astor Mut. Ins. Co 201 Bigler v. Morgan 137 Bigelow V. Dunn. .., 316,407 Bihinv. Bihin 235 Billinger v. Vanderbeck 248 Birdsall V. Puller 407 Birdseye V. Smith 13 Birkley V. Presgravef 121 Bisbey V. Shaw 18,258, 269 Bishop V. Davis 159 Bishop v. Sullivan 54 Bluing V. Ten Eyck 146 Boorman V. Pierce 103 Bockover V. Harris 264 Bockes V. Lansing 119,332 Bogardus v. New York Life Ins. £0. 136 137, 220 Bogardus V. Parker 173 Bokelv. Bokel 180 Bond V. Mitchell 149 Boughton V. Otis 189 Boughton V. Flint 140 Bonnellv. Griswold 389, 220 Bonnell v. Wheeler 211 Bonney V. Bonney 313 Boomerv.Koon 233 Booth V. Farmers, etc., Nat. Bank. .5, 118 Booth V. Powers 234,835 Booth V. Rogers 386 Boots V. AYashburn 1,31 Boss V. World Mut. Life Ins. Co 237 Boreel v . Lawton 269, 275 Boston Silk and Woolen Co. v. Eull.l6, 260 261 Boston Locomotive Works v, Wright.. 63 Bostwlckv. Menck 339 Bostwlclc v. Scott 184 Bothwell v. Millikan 248 Bowghen v. Nolan 60 Bowdoin v. Coleman 15, 337 Buwe V. Arnold 183, 184 Bowe V. Joy 245 Table of Cases. XV Bowraan V. Pusteii Bowmanv. Sheldon 299,361, Boyce v. Brockway Boyce v . Rrown 5, 6, 20, 23, 20, Boyd V. Dowie Boyle V. City of Brooklyn Bracket T. Griswold 160, Bradley v. Albemarle F. Co 29!), Bradley V. A Idricti 7, Bradner v. Holland 130, Bradner V. Howard Bradshaw V. Callaghan Bradstreet v. Bailey Braisted v. Johason Brandon Manuf. Co. v. Bridgman Branhara v. San Jose Brainard v. Jones Brazill V. Isham 20,237,247, Bretz V. Mayor, etc., of New York Brevort V. Brevort Brennich v. Weselman 248, 249, Brewer v. Temple Brewster v. Sacket Bruce v. Burr Bridge v. Payson 49, BrifTfis V. Hilton BripKS V . Berffen Brig^s V. Briggs BrinkerhofT v. Brown Brinkerhoff v. Brinkerhoff Brinkerhotf V. Perry Brisbane v. Brisbane. . - Bristol V, Burt Bristow V. Lane Brockleman y. Brandt... Brod V. Heymann Brodhead v . Brodhead Broadway Bank v. Luff Brooklyn Trust Co. v. Bulmer Brooklyn Bank V. DeGranw Brooklyn Life Ins. Co. v. Pierce Brooks V. Bates Brooks V. Hanohett 299,368, Brooks V. New York Bronsou V. Markey.". ;..71, Brotherton V. Downey .'>1, 229, Brownellv. Nat. Bank of Gloversville. Brown V. Baboock Brown V. Brown Brown y. Brockett ... Brown V. Buckingham . ..370,273,274, Bro^vn V. Charaplin Brown v. Chadsey loo. Brown V. Curtis Brown V. Feeter Brown V. Ferguson .. Brown v. Harmon 33, Brown v. Jenison Brown V. Kimmel Brown V. Leigh 306, Brownv. Mayor Brown v. Mitchel Brownv. Finer Brown v. Richardson Brown V. Kyckman Brown v. Saratoga R. R. Co Brown y. Southern Mich. R. R. Co Brown V. Stebbins Broome V. Taylor 39, Bruce v. Burr 36, Brush V. MuUany Bruce y. Piatt Bruce V. Tilson Bryant y. Bryant S63, Bryan, Matter of 103, Buchanan V. Comstock Buddington v. Davis 33, Buessv. Kock 139,213, Buffalo Catholiclnstitute v. Bitter — 296 102 230 206 260 44 233 2,")2 118 89 231 291 276 360 264 120 290 370 101 154 313 156 295 299 256 295 348 95 29 369 319 213 230 367 330 385 147 281 26 1.58 199 157 348 166 353 148 308 246 317 163 344 32 220 367 141 41 275 376 189 139 369 104 340 283 314 330 Page. Buttalo Lubricating Oil Co. v. Everest. 365 Bull v. Colton 407 Bull V. Rothschild 339,340, 343 Bullard v. Sherwood 375, 378 Bullock v. Bemis 338,333,333 BuUwinker V. Ryker 173 Bump v. Betts 156 Bnnge v. Koop C9 Burnet v. Bisco 135 Burckle V. Eokhart 40 Burden y. Burden. 180 Burlve V. Ashley 41 Burke V. Thorne 09,288 Burley V. German American Bank. 221, 227 Burton V. Beasley 163 Bnrnham V. Acton 44 Burnett V. Gould 181,185 Burrall y. Bowen 251 Burrall V. DeGroot 31 Burral: v. Moore 306,311, 358 Burroughs v. Garrison 263 Burroughs V. Wilson 196 Burrows V. Miller 208, 245 Cushy. Prosser .5, 18, 258, 259 Bush V. Stevens 135 Bushnellv. Chautauqua Co. Nat. Bank 30 Butlerv.Keut 143,144 Butler v. Mason 28 Butler V. Mann 83 Butler V. Viele 23, 35 Butler V Wentworth 36 Butterfield V. McCumber 351 Bntterfleld V. McOmber 113 Button y. Schuyler's Steam Tow-Boat Line 323, 333 Butts V. Phelps 26 Buycev. Buyce 131 Byrne V. Benton 51 Byrnes v. Byrnes 113 Byrnesv. Dunn 316 Byxbiev. Wood 75 Cadwell V. Goodnough 88 Cady V. Allen 337 Cohen v. Continental Life Ins. Co 38 Cahill V . Farmer 360 Cahillv. Palmer 33 Caldwell V. Cassidy 140 Caldwell V. Raymond 163 Calhoun V. Hallen 328 Calvo y. Davis 70 Cannon V. Davies 383 Campbell V. American Z.ylonite Co .... 298 Campbell V Foster 138 Campbell V. Genet 263 Campbell V. Hoge 97 Canada Southern K. E. Co. v. Gebhard 36 Canales V. Perez 212 Can dee V. Hey wood 139 Candler V. Pettit 343 Corhett V. De Comeau 105, 106 Cardwell V. Cardwell 83, 180, 183 Carpenter V. Adams 310 Carpenter v. Allen 356 Carpenter V. Butler 133 Carpenter v. Manhattan Life Ins. Co. 270, 271 273, 373 Carpenter V. Ottley 339 Carpenterv. West 363, 365 Carrier V. Dellay ...320 Carroll V. White 163 Carson y. Coclt 213 Carter V. De Camp 9, 316 Gary v. Western Union Tel. Co 233 Case V. Hotchkiss 148 Case V. Pharis 81,90,93, 327 Case V. Phoenix Bridge Co 37 Castle V. Houston 357 Castle V. Noyea 246 XYl Table of Cases. Page. Castree V. Gavelle 236 Castro V. Uriarte 125 Cass vHigenbotam S48, 260, 270, 274, 278 Cassard V. Hiumaa 95 Catlin V. liillings 377 Catlln V. Doughty ]83 Catlin V. Gunther 327 CauUdna V. Bolton 228 Coulter V. Bower 141 Cavalli v. Allen 240 Cayl us V . New York, etc . , R. E. Co 159 Cazeaux V. Mali ' 159 Certvvell V. Hoyt 15,165 Chambers V. Jones 31 Chambers v. Lewis 188, 189,270, 374 Chamberlain V. Barnes 257 Chadbourne v. Delaware, Lackawanna, etc.,R.R. Co 93 Chamboret V. Cagney 260,371, 272 Chandler V. Hoag 189 Chapin V. Dobson 332 Chapin v. Merchants^ Nat. Bank 151, 1-53 Chapin V. Thomson 103, 106 Chapman v. Chapman 229 Chapman V. Lemon 379 Charlick V. Flushing E. R. Co 97 Chase v. Curtis 190 Chappell V. Bissell 195 Chatfleld V. Simonson 8,261 Chautauque County Bank v. Risley 132 Chase v. Curtis 189 Chautauque County Bank V. White. .. 183 Chemical National Bank v. Carpeutier. 37 196 Chemung Canal Bank V. Judson . ... 39 Chesebrough v. New York A Erie R. R. Co 134, 193 Chi Ids V. Hart 149, 151 Chitte[iaugo Cotton Co. v. Stewart 331 Christy. Armour 138 C'hi'istopher V. Stockholm 126 Churchill V, Churchill 13 Churchill V. Gardner 30 Churchman v. Merritt 101, 103 City Bank v. Doll 354 City of Buffalo T.Holloway 23, 26 Citizens' Bank v. Classen 36 Citizens' Savings Bank v. Bauer 3'77 Claire V, Claire 148 Claflin V. Jaroslauski 358 Clafflin V. Reese 231 Claflin V. Taussig 28 Clarkv.Bowa 2S, 72 Clarkv. Clark 255, 352 Clark V. Dales 34 Clark V. Dillon 66, 69, 73, 326, 32T, 366 Clark V. Hnrwood..., 361, 363 Clark V . Humphrey '. 307 Clark V. Jefferson, etc., E. H. Co.... 353, .361 Clai-k V. People 147 ClarkY. Post 31, 334 Clauser V. Jones 213 Clay V.Baker 63 Clay Co. V. Simonsen 25, 286 Clayton V. Jones , 195 Clem V. Holmes 165 Clemens V. Davis 15,326, 337 Clifford V. Dam 232 Clift V, Roelger 4'3, 196 Clifton V. Brown 30.5,307 Clinton V. Eddy 235,260,289,291, 316 Close V. Nat. City Bank 67 Clothier V. Adriauce 42,191) Clough V. Murry 361 Clute V.Emmerich 110, 111 Clyde V , Rogers 98 Coakley V. Mahar 138 Cobbv.Dows 118 Cockerill V. Loonam 261, 288 Page. Codd v.Codd 180 Coffin V. McLean 263,267,279 Coffin V. Reynolds 217 Coggill v. American Exchange Bank. . . 26 Cohn v. Husson 15, 290, 335 Cohen v. Leham 241 Colburn v. Woodworth 115 CoUinsv. Coggill 352 Collins v. Singer Manuf. Co 228 Collin.sv. Swan 284,3.51,356, 360, 363 Coins V. Alburtis 225 Colrick V. Swinebume 92 Colt V. Davis 263, 350, 355, .360, 365 Coltou V. Jones 368 Colvin V. Corwin 115 Colwell v. New York* Erie R.E. Co... 118 Commercial Bank v. Pfeiffer 368 Commercial Bank of Eochester v. City of Rochester 23, 25 Commercial Bank v. Spencer 351, 360 Commissioners of Excise v. McCut- lough 353 Commonwealth V. Pittsburgh 2.-;6 Commonwealth Bank V. Fryor .351 Connoss.v. Meir 34 Compton V.Hughes 118 Comstock V. Smith 135 Conaughty v. Nichols 4, 5, 73, 75 Cone V. Niagara Falls Ins. Co 193 Conoley v. Castello 197 Conklingv. Gandall 41, 42, 186 Connah v. Hall 154 Connersville v. Connersville Hydraulic Co 212 Conro V. Port Henry Iron Co 183 Continental Construction, etc., Co. v. Vinal 339 Cookv. Chase 206 Cook V. Litchfield 245 Cookv. Soule 275 t:ook v. Warren 23, 66, 67, 196, 198, 356 Coolvingham v. Lasher 244 Coope V. Bowles 128 Cooperv.Burr HI Cooper V. Greeley 163 Cooper V. Jones 305,306 Corbin v. Knapp 342 Cordier v. Cordier 181, 245 Cordier V Thompson 126 Corey V. Maim 26 Corington V. Powell 69 Cornell V. Knox 224,225 Cornish V. Wormser 94,98, 99 Cornwall V. Cornwall 348 Conger V. Johnson 32 Coulter V. Bowes 176 Coulter V. Richmond 43 Cothrau v. Hanover Bank 344 Cowing V. Altman 32, 324 Cowles V. Cowles 265 Cox V. James 23^ Coxv. Nat. Bank 197, 198 Cragin v. Lovell 261, 26.5, 284 Craig V. Barkis 199 Craigv. Ward 327 Craiuv. Petrie 145 Cramer V. Comstock 356 Cramer y. Lovejoy 408 Crane v. Crane 238 Crane v Maynard 134 Crandall v. Beach Ill Crandall V. Clark 36, 37 Crary v Gorham 239 Crippen V. Hudson 185 Crim V. Starkweather 140 Cromwell V. Burr 262 Cromwell V. Hewitt 197 Croonie V. Craig 393 Crooke V. Corbin 103 Table of Cases. xvii Page. Cropsey v. Sweeney 27, HO Cropsey V. AViirgenhorn 59 Cross V. "Weed 1G3 Crowley v. Panama R. R. Co IfiG Crowley V. Royal Exch. Ship Co 3:j6 Cruger V. Hudsoa River R. R. Co 67 Crupt V. Phillips 'Sd •Culver V. Burgher 137 Culver V. Van Anden 161, IDS Cunard v. Francklyn 76 Currie v. CowIp'^ 261, 373 Curtiss V. Baldwin 358 Curtiss V. Masten 350, :-*51 Cushman v. Jewell 3?3 Cutler V. Wright 31 Cutler V. Wright .... - 330,251 Ciitterv. Pool 95, 06 Outterlia v. Armstrong ]76 Cythe V. LaFouDtain 340 Davton v. Connah Dabney V Greeley Dacalv. Simmons Dagnere ■^. Orser Dake V. Miller Dann V.Baker Dambtnannv. Schulting Daniel V. Daniel Daniels v. Tearney Barrett V. Donnelly Darrow v. Miller Dauchy v. Brown Davenport Glucose Manuf. Co. 137 358 251 316 40 .311, 349 389 83 .. .. 31 36 367 406 . Taus ...152, Davenport V. Sniffen, Davidson V. Alfaro Davidsburgh V. Knickerbocker Life Ins. Co Davis V. Chapman Davis V. Dunham ... Davis V . Garr Davis V. New York Concert Co ... Davis V. NewTork, Lake Erie &We'^t- ernR. R. Co 316, Davis V. Morrell . "Davis V Mayor, etc., of New York .. Davis V. Standish Davis V. Slamford 101, Davis V. Toulmin Davis V. Willis Davison V. Powell 110, Davison v Scbermerhorn Dawley V. Brown ..208, 323, 2-12, Dayv. Pool, Dayton v. Connah Dagel V. Raaren Dean V. Mace Debolt V. Carter DeBussierre V. Holladay De Oarrillo V Carrillo 83, Decker v. Kitrhen * Decker v. Mathews Decker v. Saltsman Dederickv. Hoysradt DeForest v. Baker DeForest v. Fulton Fire Ins. Co Deitrichs v. Lincoln & Northwestern R. R. Co Delafieldv. Kinney Delano V. Duchart Delano v. Rawson DeLavallete V. Wendt De Leyer v. Michaels De Lisle v. Hunt 337, Deraaresl V Darg . Derrick v. Hubbard Denithorne v. Denithome Denel v. Sanford Denniaou V. Carnahan Dennison v. Dennison 205, 236 De Nobele v. Lee 135, 40 Deslinsv. Bevins.... 288 DePeysterv. Wheeler 327 Depew V. Dewey 386 Depewv. Leal 85 DePuy V. Strong 205, SOG, 317 Despard v . Walbridge 240 Derby V. Yale :M7 Desmond v. Brown 3 '13 Des Arts V. Leggret .- 3i8 Dewey V. Moyer 31, oO Dewitt V. Swift 3(1j Deyett v. Seymour ..95, 96 Dezengremel V. Dezengremel ..28, 235, 323 Diamond Matnh Co. v. Roeber 135 Diamond v. Williamsburgh Ins. Co 317 Dias Y. Short 163 Dicken.s v. New York Cent. R. R. Co. 33, 49 Dickenson v. Vanderpoel 244 Dick V. Phillips .. , 96 Dicliie V. Austin 94,95, 96 Dillayev. Parke 236 Divan V. Loomis 30 Divine T, Divine 139 Divine V. Duncan ■ 308, 349 Dixv. Palmer 374 Dobsou V. Pearce 239 Dodge V. Colby 9, 164, 211, 216 Dodge V. Fearey 348 Dodge V. Wellman 239 Doev. Broad 83 Doev. Phillip 83 Dolcherv.Fry 135 Dohttle V. Eddy 139 Donahue v. Henry 271 Donohue v. Mayor 276 Douglass V. Ireland 245 Dooan v. Dinsmore 32 Dooieyv. Royal Baking Co 86 Doran V. Dinsmore 360, 361 Dorance v. Henderson 344 Dorman V.Lang 399 Dorn V. Fox ; 190, 191 Dorrellv. Hannah 286 Doty V. Brov,-n 246 Doughty V . Crozler 409 Dounce v. Dow 276 Downer v. Mellen 379 Dowsv.Durfee 148 Dows V. Green 308 Doyle v. Wulren 185 Drake V. Cockroft 34, 25, 273, 375, 303 Drake V. Drake 9,216 Draper v. Draper 173 Drake V. Thayer . 81,85, 89 Drevert V. Appsert 59 Drought V. Curtiss 337,347 Drury V. Clark 177 Dubois V. Beaver... 48 Dubois V. Cassidy 123 Dubois V. Hermance 160, 237, 256 Dubuque Co. v. Reynols 309 Duckworth V. Roach 189 Dudley v. Press Pub. Co 101 Dudleyv. Scranton 159 Duffany y . Furgerson 159 Duncan v. Ray 92 Dunham V. Bower 16 Dunham v. Mann 137 Dunham V. Merchants' Mut. Ins. Co... 103 Dunlevy V. Tallmadge 184 Dunn V. Gibson 313 Dunnigan V. Crummey 328 Duparquetv. Falrchild 63 Durant v. Abendroth 102 Durantv. Gardner 203 Duval V, Busch 53 Burgee v. Lester 237 Table of Cases. Dwight V. Germania Ina. Co. .79, Diizengremel v. Duzengremel ... Page. 82, 84 89, 90 .... 28 Eaglestnn v. Son Earl V. David Earle V. Seott Early V. Smith East V . Cai n Eaiton Nat. Bank v. Buffalo Chemical Works 184, East River Bank v. Rogers Eaton V. Balcom Eaton V. Burnett Eaton V . ^Vells Ebbets V Mai-tine 343, 345, Eddy V. Beach Edgerton v. Page 269, Edsall V. Brooks Edson V. Uirvan 8, 200, 211, Edwardsv. Burris Edwards V. Lent Eichelberger V. Old Nat. Bank Eighmie V. Taylor 316,317, Eldrfge v. Adams Eldridge V. Bell , Eld ridge v. Mather Ellis V. Van Ness Elliott V. Kennedy Ellsworth V. Putnam Elting V. Vanderlyn Eltouv. Markham El wood V. Gard ner Emery V. Bally Emeryv. Pease 7,147, Enos V. Thomas Ensign v. Sherman 20, 168, Ervin y. Oregon R. & N. Co 99, Equitable Lile Ins. Soo. y. Stevens. 203, Esmay v. Fanning 1.54 Esmond y. Bullard 190 Esmond y. Van Beuschoten 361 Esselstyne V. Weeks 28 Estes y. Wilcox 185, 186 Bstes V. Estes 162 Evans y. Backer 47 Evans y, Lichtenstein 307 Evansy. Williams 232, 392 Evertson v. Miles 147 Exchange Bank y. Monteath 96 Exner V. Exner 48 Fabricotti y. Launitz 284, 360 Fairbanks V. Bloomfleld 134 Fairchilds V. Rushmore 351 Fairchild v. Ogdensburgh, etc., R. R. Co 195, 197, 356 Fales y. Hicks 359 Fallon V. Lawler 22 Fallon y. Durant 51 Farcy y. Lee 193 Farmers' Nat. Bank y. Leland 350 Farmers', etc.. Bank v. Rogers 355 Farmers* Loan & Trust Co. v. United Lines Tel. Co 3.39 Farnam y. Feeley 155 Farish y. Austin 133 Farrand v. Harbeson 313 Farron y. Sherwood 27,30, 192 Fasnaoht v. Stfthn 360 Fassett y. Tallmadge 306 Faulksv. Kamp 367 Pay V. Grinsteed 237,250 Fay y. McKeever 212 Fellows v. Fellows 120 Fells V. Vestvali 192 Fellows V. MuUer 350 FergusoQ y. Crawford 239 Page. Fergerson v. Fergerson 21 Ferguson v. Virginia, etc., R. R. Co — 69 Ferner V. Williams 87, 140,196, 198 Fern y. Vanderbllt J3 Fettretch v. McKay.... 260, 284, 351, 352, 363 364, 368 Flckett V. Brice 1.37 Field V. Mayor, etc., of N. Y 21 Field y. H urst 206 Fieldv. Knapp 233 Field y. Morse 308 Field y. Stewart 370 Finckey. Rourke 342 Finky. Jetter 85 Finkv. Justh 2.59 First Baptist Church of Utica y. Utlca & Schenectady R. R. Co , Fish y. Hose Fisher y. Charter Oak Life Ins. Co 29 213 200 215 Fisher V. Gould 219 Fish V. FoUey 116 Fisher V. Hall 205,217 Fleischman V. Bennett. ...163,345,346, 349 Fleischmann y. Stern 224, 225 Fleurot V. Durand 81 Flickinger y. Wagner 146 Flood V. Reynolds ....2.jl . Co. 320 119 377 197 312 309 337 168 Flowers' Executors v. Gan" Flynn v. Bailey .. Flynnv. Hudson River R. R. Foden v. Sharp Fogg v E(fvvards Follower v. Laughlin Foot v. Sprague Foote v. Roberts 15, Ford y. Ames 70 Ford v. David 3' Ford v. Ford 316, 317, 322 Ford y. GrifHn 213 Ford y. Mattice 36i Fordyce V Nelson 195 Foren V. Dealey 352 Forrest V. Mayor 125 Fosdick V. Grdtf 354 Forsyth v. Edmiston 163, 368 Foster y. Elliott 69 Fosterv. Hazen 222 Foster y. Van Reed 193 Fouldes V. Willoughby. 153 Fourth Nat Bank v. Boynton 303 Fourth Nat. Bank y. Scott 205, 217 Fowles y. Bowen 145 Fowles V. Kennedy 244- Fowlesy. New York Indemnity Ins. Co. 193 Fowles V. Westervelt 131, Fox V. Erie Preserving Co Fox V. Moyer 183, Frank v- Bush 305, 306, 310, 311. Frank V. Kaminsky .' 15i Franklin Life Ins. Co. y. Dehority 223 Franklin v. Talmadge 110 Fraser v. Frnser 181 Franchot y. Leach 137 Frazier y. Gibson 397 Fredericks y. Taylor 55, 56 Freeman V. Fulton Fire Ins. Co ]9,> Freer y. Denton 368 Frees V. Ford 40 Freeson V, Bissell . ... 339 Freiberg V. Branigan 307, 108 French V. Salter 122,124 Freund v . Paten 289 Frey v. Johnson 137 Friddle V. Crane 199 Friedburg y. Bates 83 Prink V. Hampden Ins. Co 393 Pirmerty V. Barker 361 Frist V. Climm 55 394 IM I 313 Table of Cases. xir Page. Trostv. Koon 177 Frost V. Yonkers Savings Bank J4^ Fry V. Bennett 66, 362, 22-1, 258, Fuller V. Webster Fire Ins . Co Fuller V. Lewis Fullerton V. Dalton 325, Fulton Fire Ins. Co. v. Baldwin. . .9, 207, "Funnanv. Van Sise 15, Furbish V. Robertson 242, Gadsden v. Woodward Gaffney v. Bipelnw Gallagher v. Stoddard Gainbline v. Haight Gardner v Clark Gardner V. Lansing Gardner v. Kraft Gardner v. Ogden 121 , Gardinier T. Knox Garfield V. Paris Garner V. Hannah Garner V. Thorn 120, Garrison V. Oarr 2!ty, Garrison V. Howe Garvey v. Fowler 198, Garvey V. N. T. Life Ins. & T. Co Gas-light Co. v. Rome, W.i O.K. R. Co. Gasper y . Adams 22,26, Gassett V. Crocker Gas-Works Co. v. Standard Gas-Licht Co 84,344, Gates T. Preston Gault V. Babbitt Gawthrop V. Leary Gay T. Paine 37, Gay T. Gay Gebhard T. Squier 79, Gee V. Cbase Manuf. Co 81, 83, Geeryv. Geery Geenia v. Keah Gels V. Leow Geisler y. Acosta Genesee Mut. Ins. Co. v. Moynihen.227, Genesee Elver Nat. Bank y. Mead George v. Grant George V. McAvoy 51, 54, George v. Jennings Gerber v. Monie — ,. Germond v. Gerinond Gerry V. "Webster Getty V. Hud.son Elver R. R. Co. .201, 303, Getty V. Town of Hamlin Gibson V. Van Derzee Gilbert v. Allen Gilbert V. Cram Gilbert V. Fairchild Gilbert V. Pritchard Gilbert V. Pounds Gilbert v. Rounds Gilbert V. York 34,40,205, Gilesv. Betz Gilchrist v. Gilchrist's Executors. ..315, Gillett v. Fairchild Gillettv Roberts 160, Gillespie v. Torrance 16, Gillman v. Gillman Gilmore v . Burnett Given v. Webb 146, Glacier Mountain Silver Mining Co. v. Willis ■■ Gieason V. Moen 16, Glassner v. "Wheaton a- • •,• • Glaubensklee v. Hamburg & Am. Packet Glen '& Hall Alaniif. Co. v. Hall... 270, Glenny V. Hitchins 27, Glenney v. Stedwell Page. Glens Falls Paper Co. V. White 190 Goch y. Marsh 361 Goddard v. Benson 246, 2«, 349 Goddard V. Pardee Medicine Co — ^7 Goggin v. O'Donnell 2+4 Goings V. Patton T^i Goldsmith V. Glatz 83 Goodman y. Eobb 32, 283 Goodrich V. James 90 Goodwin V. Conklin 2H5 Goodwin v. Griffis T.j, 74 Goodwin v. Massachusetts Mut. Life Ins. Co ... . 237 Goodwin V. Wortheimer 151, l.'il, 335 Goodyear V. Phoenix Rubber Co 64 C3ondvear Vulcanite Co. v. Frissello — 133 Gould" V. Allen 142 Gould V. Glass 07, 1.32, 399 Goull V.Horner 237, 200 Gowdy V. Poiillain 319 Gourney V. Weisenland 62 . Cam man 147, 213 . Dunnigan 287 . LeRoy 238 . McCown .100 196 133 286 193 Grahan Graham Grandin v. Graham v. Graham v. Machado 37 Graham v. Pinrkney. Graham v. Scripture 28, Vi2, Orangey. Gilbert 261,271, Granger v. Howard Ins. Co — Grant v. Johnson 136, 139 Grantman v. Thrall -..128, S99 Graves v. Cameron 323 Graves V. Waite 20, 75 Gray V. Angler 243 Gray v. Brown 309 Gray V. Durland 164 Gray V. Green 138, 243 Gray V. Kendall .57 Greene V, Herder 104 Green v. Howard 302, 386 Green v. Lippincott 206 Green v. Milbank 238 Green y. Smith 257 Greenbaum V. Turrill 351 Greensburgh, etc.. Turnpike Co. v. Si- dener 217 Greenfield v. Carlton 204 Greenfield v. Massachusetts Mut. Life Ins, Co 227,2.32, 366 Gregory v. Hartley 177 Gregory V. Oaksmith 26 Gregory V. Wright 34 Greentree V. Rosenstock 75 Greer V. Allen 102, 103 Grider V. Apperson 241 GrifTen v. Cohen 305,313, 314 Griffin y. Todd .3.56 Griffin V. Long Island R. R. Co. .228, 231, 233 233, 353 Griffith v. Follett 29 GrifBths y. Henderson 213 .230, .208, . 95, Griggs v. Griggs Griggs V. St. Paul Grinnellv. Church Griswold V. Laverty Grocers' Bank v. O'Rorke Groesbeckv. Dunscomb.. Grosbon V. Lyon Gross V. Bock Gross V. Clark Groot V. Agens Grow V. Garlock 313 Guernsey V. Carver 115 Gunning V. Appleton 297 Gulliver v. Newark Fire Ins. Co 385 Gunn V. Fellows 48 Gurnee v. Beach 31, 41, 194, 196 Gurueyv. Atlantic, etc., Ry. Co 276 133 220 13 30 350 220 24.5 350 91 245 XX Table of Cases. Page. Haekford v. N. T. Cent. R. R. Co 161 Hackett V. Richards 34 Haddow V. Haddow 317 Haddonv Lundy 335,389.841 Hadderi v. New York Silk Manuf. Co., 353 Hadden v. St. Louis, etc., K. R. Co... 245 Hadleyv. Boehm 344, .S47 Haddix v. Einstman 147 H.iL'ciiy V Atidrews 284, 364 HiLitrht V. Badserly 238 Haight V. Holley 31, 241 Haines V Herrick 227 Haire V.Baker 208, 840 Hake V. Buel 154 Hale V. Rodgers 102, 105 Hale V. Omaha Nat. Bank. ...8, 71, 202, 218 213, 214, 366 Hale V. Swineburne 230 Hallv, Allen 195 Hall V.Fisher 122, 156 Hallv. Hodskins 48 Hall v. McKechnie 393, 409 Hallv.Olney 338,408 Hall v. Tavlor 132 Hall v. United States Reflector Co 21 Hallet V. Carter 150 Hallet V. narrower 112, 130 Hallet v. Eighter 379 Hallidayy. Noble 292 Hallock v. Miller 143, 145 Hallock V. Belcher 143 Halseyv. Gerdes 169 Halstead V. Black 40 Halstead v. Nelson 259 Hamburger v. Baker 242 Hauies v. Tripp 60 flainmerslaugh v. Farrior 58 Hamilton V. Hough 32 Hamilton v. Third Ave. R. R. Co 326 Hammond v. Earle,26, 322, 238,384. 286, 369 Hammond V. Hudson River, etc., Co.. 185 Hammond V. Pennock 159 Hamlin V. Haight 69 Handy V. Draper 187, 188 Hanseev. Mead 236 Hanson V. Lehman 230 Hapf V. Myers 115 Harbison v. Van Valkenburgh. ... 97, 98 Harden V. Woodside 406 Hargrave V. Hunt 209 Harker V. Mayor of New York 31 Harlow V Hamilton 23, 229, 368 Harlock V. Le Baron 372 Harmony V. Bingham 327 Harper v. Chamberlain 205 Harrington V. Slado 319,349 Harriottv. Welis 328 Harrisv. Eldridge 311 Harris v. Equitable Life Ass. Soc 257 Harris V. Turnhrldge 3,82, 336 Harris v. White 29, 44 Harrison v. Wood 373 narrower V. Heath 337 Harrold v. New York Elevated R.E. Co. 106 Hart V. Coy 163 Hartford Bank V. Green 220 Hartley V. Herring 145 Harvey V. Brisbin 286 Harvey V. Cherry 193 Hashrouck v. Shuster 343 Haskell V. Village of Penn Yan 28, 167 Hass V. Taylor 1.54 Hasting.^ V. Drew 188 Hastings v. Thurston 185 Haswellv Lincks 185 Hatch V. Central Nat. Bank 316 Hatch v. Peet .. . .86, .87, 72 Hathorn V. Congress Spring Co. . . 258, 259 Hauckv. Craighead 337,328 Hauenstein V, KuU 128 Hauseman v. Sterling 95 Havemeyer V. Fuller 145, 163 Havermeyer V. IngersoU 101 Haxtun V. Bishop 140 Hays V. Berrymau 298 Haywood V. .Jones .. 287 Hayward V. Hood 349 Haymond V. Saucer 165 Hazard \'. Harding 157 Hazard V. Wilson 297 Heidenhimer V. Wilson 274 Hecker v Mitchel 245 Heigle V. Willis 263,403 Heine V. Anderson 152 Heinrich V. England 148 Heishon V. Knickerbocker Life Ins. Co. 104 105 Hempstead V. Hempstead .53 Hennequin v. Clews 2^yi Hemmingway V. Poucher 27 Heenan v. N. Y. & West Shore, etc., E. E. Co 40 Henderson v. Acklemire 196 Henderson v. Commercial Advertiser Association 161 Henderson V. Henderson 1'2 Henderson V. Manning 51, 329 Henderson v. Savage 886 Hendricks V. Carpenter '6>ii'i Hendricks v. Decker 337, 344 Henry v. Cleland 134 Henry v. Daly 263 Henry v. Henry 180, 1.S3 Hepburn v. Archer 98 Herbert v. Day '26'i Herr v Bamberg ^;.i8 Herrington V. Santa Clara County.. . 69 Hess V. Buffalo, etc , R.E. Co 17^. 2U Hess V. Buffalo & Niagara Falls K. 1'l. Co 131 Hewitt V. Mason 367 Hewlett V Wood 173 Heyde v Heyde 180 Heyev. Bolles 231 Heywood V. Tillson 146 Hicks V. Charlick 98 Hicksville, etc.,E. R. Co. v. Long Island B. E. Co 273 Hierv. Grant 237, 2.82 Hlggins V, Crichton 131 Higgins V.Newtown & FlushingR.R.Co. I;i2 Higgenbotam V. Green SI, 86 Higertv. Trustees of Indiana Univer- sity 141 Hildreth v. White 170 Hilly. Allison 69 Hill V. Bailev 336 Hillman v. Hillman 309, 211 Hilliardv. Smith 3S Hillsv. Place 140,195,197, S4S! Hilton V. Hun 36.') Hinckley v. Troy & Albia R. R. Co. 269, 370 379, 311 Hinman V. Judeson 239 Hiortv. Bott 154 Hirst V. Brooks 140 Hobart V. Frost 216 Hodges V. Hunt 391 Hodge V. Sloan 135 Hochstetter v. Isaacs 338, 333 Hoeninghaus V. Chaleyer 86,87, 88 Hoes V. Bover 177 Hoffv.Pentz 77, 80 Hoffman v. Barton 396 Hoffman V . lloffmau 340 Homes V. Broughton 31 Holbrook V. Baker 40 Hotham v. East India Co 20 Table of Cases. XXI Page. Holmes v. Holmes 134 Holmes V. Jones Sb Holland V. Hopkins Si HoUing-shead V. Woodward 286 Holiister V. HollUter 40 Hollisterv. Livingston .,.,2^-!i9, 3'j^ Hollister T. Stewart '23.\ 24.5 Holly V. Graf S3:^ Zi'J Holyoke T. Adams 34-j, 'M6. 3i^ Hopkins v. Everett 2~¥\ Hopkins v. Hopkins 369, 3T0 Hopkins V. Lane 363, 26i, 27ti Hoppoug:h V. Stnible 239 Homer V. Wood 3n HornfatrerT. Hornfager 20S, 309, 337 Hosley V. Black -. 36, 193 Hotaiinsv. Hotaling 139 Hotchkiss V. Crocker 110 Houshtalins V. Houghtaling 48 Houghton T. Skinner 345,347 Howardv.Daly 137 Howard v. France 140 Howard v. Mich. South. R. R. Co. 304, 310 Howard v. Tiffany 361 Hovre Machine Co. v. Robinson 336 Howe V . Willson 48 Ho^e SewiDs- Machine Co. v. Haupt... 39^ H()w.;U V AdaTis 140 Hollands v. Edmonds 39, 140 Hovi T. American Esch. Bank 95, 98 Hof t T Sheldon 337,347,348 Hovr V Sbelp 310 Hubbard V. Gorham . 3?4, 364 Hubbard v Nat. Prot. Ins. Co.. 5*3, 62 Hubbell V. Fowler 390 Hubbell V. Meigs 11?, 159, 160 Hudson v. Swan .31, 149, 333 H j-'h-E-n V. Woodward 55 Hn^'h^s r. Chicago, etc., E. W. Co 370 Hu-hes V. Heath 330 HuL'ne? V. Wood 53. -54, 300 Hulbertv. Young 12:<. 394 HuUv. Ball 57, 65 HuUv. Smith a52. 356 Humphrey v. Cortelyou 83, S9 Hummei v. >roore 36 Hu-, V VanDyck 334 Hunt V. Bennett 30, 1H2 Hunt V Chapman 277 Hunt V. Hudson River Fire Ins. Co. . .. 2-- Hutit V. Farmers' Loan & Trust Co .. ZS'J Hunter v. Hudson River Iron and Ma- cbineCo 151 Hunter V. Powell 118 Huntington Bank V. Hysell li*4 Hurlbut V. Post 364 Hurst V. Litchfield lf^2 Hurst V. Watkir &1 Hutchins v. Smith 17S Hutchingson V. Ainsworth 115 Hutson V. Morrisania Steamship Co. 302 Hvatt V. McMahon 3:3 Hydev. Salg fi2 Hynds v. Griswold 363, 3ii5 Hynes v. McDermott l'-i4 Ingraham v. Baldwin 305 Ingraham v. Gilbert 135 Ingram v. Root 156 Ingersoa v. MiUer 15, 164, 165 Inslee v. Hampton 16 Isaac V. Velloman 363 Ives V. Miller ~'''-5 Irving Nat. Bank V. Corbett 207 Jackson v. Brunkins 211 Jackling V. Edmonds 94 Jackson V. Jones 94 Jackson V. Murry 316 Page. Jaillard V. Tomea 59 James V. McPbee 330 Javcocks V. Ayres 358 Jeffras v. McKillop &. Sprague Co 360 Jenkins v. Brown ... 406 Jeroliman v. Cohen 306 Jenkins v. Putnam 103, 106 Jenkins v. Van Schaack 172 Jes.=.up V, Hulse 1>5 JesT. Jacob 115 John V. Duncan 155 Johns V. Pattee :ii>3 Johnson v. Brown 326 Johnston v. Bryan -)71 Johnson r. Consolidated Mining Co . . . 9d Johnson v. Finch 156 Johnson v. Johnson 1^0 Johoson V. Kelly 21.5 Johnson V. McConnell U9 Johnson v. Wygant 137, ISS Johnson v. Snyder 34^3 Johnson V. White 2t'9 Jones V. Axen 29 Jones v. City of Petaluma 239 Jones V Grant 27S Jonesv. Ludlum 339, 360 Jones V. Norwood 367 Jones V. Minneapolis 3S Jones V. Phcenis Bank Co 73 Jones V. Piatt rJ Jones V. Townsend 255 Jordan v. Nat. Shoe it Leather Bank.. 2'j7 209, 279 Jordan & Skaneateles Plank Road Co. v. Marley 30 Joseph Dixon Crucible Co. v. N. Y. City Steelworks 350 358 Joslyn T. Joslyn 323,333 Judah T. Vincennes University 213 Juddv. Smith 193 Judge V. Hall 34. 40, 305 Juillard V. Hamlin 104 Judson V. StillweU, 365 Jutte V. Hughes 142,143,179 Kain v. Dickel 351 Kane V. Kane IcO Kapp V. Barthan 311 Karker v. Haverly 137 Katz V. Kuhn 251 Kay V. Churchill 350, 351, 352, 3.54, 357 Kayv. Whittaker 378, 352. 35b, 363 Keeler V. Brooklyn ElevatedR. R. Co.. 245 Keeler v. Van Wi'e 31o Keenholts v. Becker 145, hr> Keef V. Kaufman llg Keesling v. Watson 195 Keller V. New York Cent. R. R. Co.... 166 Kellogv. Church 236 Kellogg V. Baker d2 Kellogg V. Paine 7S, 79, SO, 89 Kelsey V Covert 377 Kelsey V. ^^argent S5 Kelseyv. Ward 208, 245 Kelsey V. Weston 31 Kelly V. Barnett 356 Kelly V. Breusing 33,133 Kelly V. Downing 214, 215 Kelly V. Esford 97 Kelly V. Taintor 2.59 Kelly V. Waterbury 253 Kellyv. West 248 Kemble V. Herndon 170 Kemp V. Mitchell 317 Kendall V. Stone 144, 164 Kennedy v. New York Cent. & H. R. R. R. Co 144, 166. 167 Kennedy V. Press Publishing Co 143, 144 Kent V. Highleyman 148 xxn Table of Cases. Pap;e. Kentv. Friedman 278 Kerner V. Leouard -^^o Kerr V. Hay ....dBb Kerschv. Kome, Watertown&Ogdens- bureh R. R. Co 83 Ketohum v . State • 313 Keteltas v. Myers 30, 68, 70, 194, 195 Ketchraan v. Zerega 33, 283 Kiefer v. Thomas 353 Kiersted y. West 2B3 KifC V. Youmans K8 Killians V. Ebbinghaus 190 Kincaid V. Dwinelle 183 Kinderhook Bank v. Giflord 317 Kiiif? y. Byron 39 King V . Stafford 359 King y. Mackellar 325, 330 KiDgsland v. Stokes 125,126, 177, 213 Kinkaid y. Kipp 57, 60 Kiiiiiier V. Kinoier 230 Kinney V. Roberts 103 Kirky. Woodbury County 288 Kirkland V. Aiken 59 Kirtz y. Peck 238 Klein V. Klein 183 Klincky. Colby 18,253,259 Klinger y. Bondy 233, 234 Knapp y. City of Brooklyn 23, 26, 73 Knapp y. Burnham 279 Knapp y. Fowler 321, 333 Knapp y. Roche 143, 231, 334, 235, 336 Knapp V. Simon 23, 334 Kneedter y. Sternberg 231, 333 Knight y. Beach 248 Knight y. Wilcox 164 Knowlesy. Gee 23 Knowlton y. Bannigan 103 Knox y. Commercial Agency 258, 284 Koenigy. Nott 6B Kohlbrenner y. Elsheimer I Kolzman y. Kibhen 213 Kortright y. Cady 348 Kraft y. Coykeiidall 190 Krekeler y. Ritter - ...237,247 Lackey y. Vanderbilt 13,299, 362 Laddy. Arkell 387 Ladue V. Andrews 60 La Farge y. Halsey 263 LaFayette Ins. Co. y. Rogers 30 Laffey y. Chapman 23 Laird V. Taylor .. 155 Laidley v. Cummings 352 Lambert y. Craft 148 Launey V. Mayor 319 Lamport y. Abbott 203 Lamont v. Cheshire 239 Lane y. Oilbert 365, 378 Lane y. Williams 85, 86 Lane y. Hyde 287 Lane V. Hayward 329 Lane V.Salter 191 Lang V. Witte 158 Langsdale y. GirtoD 207 Langworthy y. Smith 134 Lanney V. Mayor 319 Lansi ng y Hadsall 378 Lantz y. King 134 Laphan y. Price 407 Laraway V. Perkins 143 Lasher V. Williamson 303 Lattimery. Wheeler VA Lattimerv. N. V. IVletallic Spring Co.. .'!."i7 Lattin y. McCarthy 3.'), 201 Latham y, Richards 342, 347 Lath rop V. Godfrey 276 Lauh y, Buckmiller 301 Lavender V. Hudgana 146 Laverty V. Snetheo 147 153 Page. LaWT.Maher 350 Law V. McDonald 115 Lawler v. Levy 156 Lawrence v. Bank of Republic 224 Lawrence V. Cabot 239 Lawrence v. Derby 351 Lawrence y . Miller 137 Lawrence V Spencer 164 Lawyer V. Rosebrook 188 Leach v. Boynton 352, 3.56 Leary V. Boggs 227 Leary v. Moran 213 Leavenworth V. Packer 16,260, 261 LedgerwoodManuf. Co. v. Baird 51, 229 Ledwich v. McKim 5 Ledyardy. Jones 144 Lee y. Blias 20 Lee Bank y. Kitching 360, 363 Lefferts v. Brampton 95 Lefferts y. Silsby 244 LefTerts y. Snediker 353, 356 Lefler v. Field 160, 256 Lehman y. Griswold 270, 272 Leigh v. Atwater 83 Lemmon v. Moore 165 Lemon V. Stevenson 67, 69 Lemon V. Trull 276 Leonard v. Columbia Steam Navigation Co 166 Leonardy. Foster 407 Lerche v. Brasher 264,269, 274 Le Roy v. Marshall 7 LeRoyy. Piatt 238 Leslie v. Harlow 3t6 Leslie y. Leslie 289 Lester y. J ewett 137 Lettman y. Ritz 161, 337 Levi V. Booth 154 Levi V. Haverstick 244 Levi y. Jakeways 54 Levyy. Burgess 36, 137 Levey y. Bull 128 Levyy. Bend 225 Lewis y. Albemarle, etc., R. R. Co 193 Lewis V. Barton .. 250, 351 Lewis v. City of Buffalo 14Z Lewis V. Kendall 33 Lewis v. Maloney 245 Leyenberger V. Paul 146 Lichtenbergy.Herdtf elder 184 Liegeois v. McCracken 219 Lienau V. Lincoln 26 Lignot V. Redding 274 Like V. McKinstry 164 Lillienthal V. Hotaling 290 Linden y. Doetsch 169,174 Linden V. Graham 143,144,145, 1B4 Linden y. Hepburn 7,201, 302 Lindsay V. Mulqueen 75, 76 Lindsay y. Jackson 37y Lindsley V. Simonds 187 Lippencott V. Goodwin 49 Liscombe y. Agate 82, 84 Litchfield v. Flint 112 Little v. Denn 399 Littell V. Sayre 313 Little,1ohn V. Greeley 363,365 Livermore V. Bainbridge 370 Liverpool, etc., Ins. Co. y. Gunther ... 23 Livingston V. Curtis 97 Livi ngston County y. Morris 169 Livingston v. Hammer 230 Livmgston v. Muller 293 Livingston v. Smith 28 Lobdeil v. Stowell 247 Lookliny. Moore 140,195, 197, 248 Lockwood V. Bigelow 286 Lockwoodv. Salhenger 353 Lockwood V. Thorne 148 Table of Cases. XXlll Page. Lloyd V. Burns 231 Lone Island Bank v. Boynton 350 Longprey V. Yates 13, 35 Loop V. Gould 107 Loosey V. Orser 35,71,233 Lord V. Vreeland 213 Lorillardv. Clyde 70,211, 386 Lorillard Fire Ins. Co. v. Meshural 345 Losch V. Pickett. 69 Louisville, Evansville, etc., Ry. Co. v. Payne .... 26 Louisville, etc , R. R. Co. v.Scbmidt... 73 Loveland V. Hosmer 258 Lovett V. Cowman 316 Lovet V. German Reformed Church ... 177 Low V. Archer 142, 14'j Low V. Graydon 94 Lowe V. Rommell 407 Lowther V. Crummie 406 Lowryv. Inman 218 Lubricating Oil Co. v. Standard Oil Co. 27 129 Luce V. Alexander 227 Luceua V. Crawford 19-3 Lucas V. New York Cent. R. R. Co. 122, 166 Ludewig V. Pariser 106 Ludington V. Slawson 292 Ludlow V. Coit 385 Ludlow V Dole 192 Lugar V. Byrnes 364 Lunn V. Shermer 205 Lund V. Seamans' Savings Bank 283 Luther V. Brison 52 Lutweller V. Lionell 142 Lybecker v. Murray 351 Lyies V. Holies 232 Lynch V. Henderson 94 Lynch V. Levy 42, 197 Lyon V. Blossom 329 Lyon V. Isett 344, 345, 347 Lyons V. Murat 63 Lyon V. Yates 377 Macauley V. Bromell 239 Macauley v. Bromell & Barkley Printing Co 51 Macaulay, Matter of 60 Maclay V. Sands 51 Maokv. Burt 232 Mackeyv. Auer 213,214 Maddox V. Randolph Co 38 Madus V. Lawerance 262 Magauran V. Tiffany 67 Maherv. Hibernialns. Co 160, 201 Mahler V. Schmidt 120,121 Mahler v. Transportation Co 166 Malaney V. Cronin 172 Malcolm v. Allen 342 Malcolm v. O'Reilly 1.52 Malone V. Stillwell 121 Malonyv. Dows 156, 158 Mandeville V. Reynolds 239, 241 Manley V. Rassiga 128 Mann v. Fairchild 7 Manning V. Tyler 250 Manning v. Winter 333 Mansnr V. Streight 169 Manufacturers' Bank v. Hitchcock. 350, 351 Maples V. Mackey 256 Martina v. Albro 98 Marange V. Morris 137 Maretzeek v. Cauldwell 2,58, 283 Marie V. Garrison 9, 31, 70, 203,211, 212 2)5, 366 Margraf V. Mnir 202 Market Nat. Bank v. Pacific Nat Bank. 295 Marks V. Townsend 156,157, 158 Marquisee v. Brigham 359 Marris v. Sliter 136 Page. Marsdon v. Sweet ....28, 224,247 Marsh v. Masteron 246 Marsh V. McNair 320 Marsh V. Falkner 159 Marshall County v. Jackson County ... 38 Marshall V. Rockwell 194 Marshall v. Kockwood 41 Marryv. Jones 299, 361 Martin v. Clews 104 Martin v. Erie Preserving Co 3.50 Martin V. Gould 333,385 Martin v. Kanouse 73, 366 Martin v. Kunzmuller 266 Martin v. Mattison 213 Mason V. Wells 243 Mason V. Whitely 308 Mather V. Carroll 385 Mathews V. Beach 223. 289 Matthews V. Cady 4 Matthews V. Cbicopee Mfg. Co 344 Matthews v. Hubbard 81, 88, 89, 93 Mattison v. Smith 233, 236, 323 Mattoon V. Haker 361 Maule V. Crawford 2.0O, 251 Maxwell V. Farnam 203 Maxwell V. Pratt 206,244 May V. First Div. St. Paul & Pacific R. R. Co 169 Mayer V.Louis 251 Mayor, etc., V. James 350 Mayhew v Robinson 241, 343 Maynard V. Talcott 143 Mayo V. Davidge 274,285 Mayorv.Doody 37,43,194 Mayor V. Marrener 83 Mayor, etc., of N. Y. v. Mabie 275 Mayor V.Noll 107 McAllister V. Kuhn 27 McAllister v. Pond 95, 93 McButt V. Hirsch 133 MoCall V. Nave 148 McCartee V. Chambers 241 McCarron v. Cahill 212 McCarthy v. McCarthy ,386 McCarty V. O'Dnnnell 352 McCaslan v. Latimer 337 McClung V. Foshour 31 MoCoon V.White 103 McCoy V. Bolpy 177 McCrane v. Mayor 337 McCullough V. Colby 319 McCulIoch V. Vibbard 365 McDonald V. Davis 390, 346 MoDonough V. Dillingham 19^13, 74 McDonald V. Kountze 118, 119 McDonald V. Mallory 166 McElwain V. Willis 183 McElwee v. Hutchinson 231 McEncroe V. Decker 327 McFarlaud V. Gutter 147 McGrane v. Mayor, etc., of New York. 320 McGregor V. Ball 108 McGuffln V. Dinsmore 96, 106 McHarg V. Eastman 43, 189, 190 McHenry V. Hazard LJS McIIIhenney V. Magie 98 Mcintosh V. Lown 116 Mcintosh V, Mcintosh 180, 182 Mclntyre V. Costello 174 Mclntyre v. New York Cent. R R. Co. 167 Mclntyre V Ogden 365 McKane V. Brooklyn Citizen 238, 2.59 McKay V. Fiebelle 313 McKee v. Metropolitan Life Ins. Co. 299, 30.J McKenzie V. Farrell 34,291 McKernan V. Robinson 133 McKyringv. Bull 222, 231, 235 McLachlin v Brett 265 McLoughlin v. Campbell 26 XXIV Table of Cases. Page McLouchlin V. Kelly 88 McLou}2:hlia v. Nichols 40 McMahonv. Allen 339,341,345, 347 McMullen v. Eafferty 187 McMurray V. McMurray 321 McMurry V. Gifford 32,256 WcNairv. Gilbert 92 McNamara v. Bitely 399 McNamara V. NcNainara 180, 182 M<;Queenv. Babcook 308,309, 316 McVey V. Caniwell 365 ]Mead v. Darragh 406 Mead V. Strattor 168 Meads V. GleasoTi 53 Mechanics' Bank V. Sheenhan 106 Mechanics' Bank. v. Straiten 41, 194 Mechanics' Bank of Williamsburgh v. Foster 237 Mechanics' Banking Association v. Spring Valley Shot and Lead Co ... 68 Mechanics & Traders' Bank v. Dakin. 183 184, 185 Medbury V. Swan 346 Meehanv. Harlem Savings Bank 331 Mebesy V. Kahn 97 Meriden Britannia Co. V. Zinzen 136 Melhado v. Pougheepsie Transp. Co. 28 166, 167 Melvin v. Wood 93 Menifee v. Clark 286 Mercer V. Sayre 91 Merchants' Bank V. Bliss 134 Merchants' Bank V. Griswold 198 Merch. Exch. Nat. Bank v. Commercial Warehousing 251 Merchants' Nat. Bank V. Sheehan '.. 101 Merchants', etc., Bank v. Evans 195 Mergnelle v. Continental Bank Note Co. 94 Merrill v. Grinnell 110 Merrifleld V. Cooley 7 Merritt V. BrlEgs 332 Merritt v. Millard 26, 284 Merritt V. Seaman 113 Metropolitan Trust Co. v. Tonawanda R.E. Co 273, 379 Metropolitan Life In.«. Co. v. Meeker.. 388 Metzar v. Pearsall 51, 329 Meyerv. Amidon 159, 160 Meyer V. Hibsher 30,135, 197 Meyerv. Van Collem 313 Miaghan v. Hartford Fire Ins. Co.. .. 326 Milk V.Christie 110 Miller V. Barber 159, 160 Miller v. Fen ton 16 Miller V. Hughes 354 Millerv.Kent 83 Miller v. Losee 390 Miller V. Manace 347 Miller v. McClasky 227, 330 Miller V. Milligan 1.55 Miller V. Shall .301 Miller v. White 188, 189, 190, 347 Millikin V. Carys 1 Millikeu v. Western Union Tel. Co.. 70, 331 Mills V. Collins 356 Miln V. Vose 353, 361 Mllner v. Milner 340 Minneapolis Harvester Works v. Libby. 305 Minnesota C. N. Lumber Co. v. Rich- ardson sni Mingst V. Bleck 237 Mitchell V. Allen 344,347, 349 Mitchell V. Bunch 245 Mitchell V. Bunn 317,338 Mitchell V. Mitchell 179, 180 Moherly V. Peck 347 Moffatt V. McLaughlin 173, 311 Molony v. Dows 361 Moody V . Deutsch 155 Page. Moodyv. Moody 273 Moore v. Bellein 90, 91 Moser V. Cochrane 273 Mnore v. Cross 42 Moore v.Hobbs 26,305 Moore V, McClure 27 Moore v. Noble 159 Moores V Lehman 169 Moran v. Long Island City 299, 303 Moran v. Morrissey 89 Morange v. Morange 340 More v. Bennett 163- Morse v. Saitts 159 Morel V. Garelly 320,346,348 Morey v. Safe Deposit Co 352, 353 Morey V. Tracey 191 Morey V. Ford 204,384 Morgan v. Smith 375 Mornv. Leroy 307 Mornan V Carroll 209 Morningstar V. Cunningham 343 Morrell V. Morrell 180 Morrellv. Irving Fire Ins. Co 335 Morrison V. O'Reilly 230 Morrison v. Sturges 94, 95 Mosher V. Hotchkiss 199 Moseley v. Moseley 257 Moses V. Bo we 151 Moses V. Walker 150 Mount V. Scholes 347 Moulton V. Beecher 156, 809, 311 Monroe V. Douglass 31 Muldoon V. Blackwell 291 Muldowney v. Morris & Essex E. E. Co. 200 Mulf»rd V. Hodges 114 MuUer V. Bush, etc., Manuf. Co 86 Muller V. Earle 339 Muller V. Eno 276 Mullerv. Levy 101, 103 Mundyv. Wight 257 Mungerv. Albany City Bank 367 Munger V. Albany Nat. Bank 140 Munn V. Barnum 354 Mungt^r V. Hess 154 Mungerv. Shannon 355,356,358 Murphy V. Dickinson 370 Murry v. Deyo Murray V. New York Life Ins. Co Mussina v. Clark ... Mussina V. Stillman Musgrove v. Mayor, etc. , of New York 366 193 158 353 51 239 200 375 266 336 Murtha v . Curley Myers V. Burns Myers V. Davis Myers V. Dorraan Myers v. Myers 180 Mynderse v. Snook 265 Nat. State Bank v. Boylan 264 National Bank v. Lewis 2.50, 351 National Benefit Assoc, v. Bowman. . . 28 Nat. Bank of Metropolis v. Orcutt.250, 351 National Ole Meter Co. v. Jackson ... 94 National Bank v. Van Derwerker 130 Nat. Life Ins. Co. v. Robinson 23B Nash V. McCauley 13 Nathans V. Hope 113,114 Nassau Bank V. Yandes 190 Nebenzahl V. Townsend 35, 134,125, 156 Neftel V. Lighthouse • 73 Nehreshemer v. Bowe 363 Nellis V. Clark 257 Nellis V. De Forest 216 Nelson V. Marshall 95 Nelson v. Plimpton Fire-Proof Elevator Co 137, 138 Newman v. Otto 224 Neudecker v. Kohlberg 66 Table of Cases. XXV Page. Nenberger v. Webb SBO Newv. Aland 319 Newcombv. Alney .- 267 Newcorub v. Hale 199 Newel V. Butler 83, 8"i Newell V. Doty 225 Newellv Salmon .. .263,264 New England Iron Co. v. N. Y., etc., LoanCo 94, 95 New Haven & Northampton Co. v. Qiiintard 238 New Haven Web Co. v. Ferris 385 Newman v. Supervisors of Livingston Co 350, 386 New Orleans Oas Co. v. Dudley 250 Newton V. Hook 246 New York Ice Co. v. North Western Itis. Co 201, 361, 368 New York Cent. Ins. Co. v. Nat. Protec- tion Ins. Co 237 New York Car Oil Co. v. Richmond ... 1.50 New Yorli Infant Asylum v. Roosevelt 83 New Yorli Life Ins. Co. v. Universal Life Ids. Co 299, 303 New York Marbled Iron Works v. Smith 30 31,51, 194 New York Monitor Milk Pan Co. v. Remington Works 318, 331 New York Trust & Loan Co. v. Helmes 2S New York, etc.,Trausp. Co. v. Hurd.. 312 New York, etc., R. R. Co. v. Schuyler 118 130, 190, 209 Nicollv.Fash 244 Nichols V. Dusenbury 222 Nichols V. Drew 124, 2U Nichols V. Jones 353, 3.53, 3.i6 Nightengale v. Continental Life Ins. Co. 319 Nimmons V Hanniou 189 Nimmons v. Tappau 189 Noble V. Trotter 301 Nolan V. Skelly 235 Nolton V. Western R. E. Co 167 Nones V. Hope Mutual Life Ins. Co 206 Norris v. Glenn . 230 Northern Ins. Co. v. Wright 199 Northrup v. Nortlirup 136 Norton v. Huxley 246 Nourny v. Dubosty 42 NoxQu V. Bentley 286 Oakley r. Morton 36 Oakley v. Town of Mamaroueck — 23, 29 O'Beirne V. Lloyd 114,116 Oberlander V. Spiess 159, 160 G'Blenis y. Karing 263 O'Brien V Garniss 273 O'Brien V. McCann 233 O'Brien V. Mayor 115 O'Brien V. St. Paul 179 Ocean Nat. Bank V. Olcott 185 O'Callaghan V. Cronan 146 O'Dougherty v. Bennington Paper Co. 115 174 Oechsv. Cook 224 Ogdensburg, etc., R. R. Co. v. Vermont, etc., K. R Co 200 Ogdeusburgh Bank v. Van Rensselaer. 67 130 Oglev Kniclierbocker Life Ins. Co — 303 Ohio, etc., Ry. V. Nickless 27 Ohly V. Ohlv 180 Olcott V. Carroll 67, 211, 213, 367 Oldfleld V. New York & Harlem R. R. Co 167 Oleryv. Brown 69 Olmsted v. Brown 145 Olmsted v. Miller 146 Olney V. Hatcliff 94, 99 Olendorf v.Cook 170 Page. Onderdonk V. Mott 7 Oneida Co. Bank v. Bonney 245 O'Neill V. N. Y. C. &H. R. R.R. Co .... 323 Ontario Bank v. New Jersey Steamboat Co 232, 233 Oregon Steamship Co. v. Otis 326, 333 Ormsbee v. Brown 344 Orvis V.Dana 81, 83,85, 87 Orvis v. Goldschmidt 60 Osburn V. Loveli 334 Oscanyan v. Winchester Repeating Arms Co 233 Osgood V. Magnire 208, 245 Osgood V. Whittlesey 205, 318, 316 Osborne V. Clark '28 Ostrander V. Conkey 305,311,313 Otman V. Griftin 85 Ostroni V. Bixby 352,353 Oulman v. Schmidt 405 Oviatt V. Hughes 189 Owens V. Loomis 243, 245 Paciac Mail Steamship Co. v. Irwin. 863, 367 Padgett V. Sweeting 2.57 Page V. Boyd 73 Pahquioque Bank V. Martin 196, 198 Palmer V. Davis 209 Palmer v. Smith 258 Painev. Brown 138 Panov. Vilmar 238 Papflnger v. Yutte 39 Pardage v. Cole 136 Pardee v. Fish 140 Pardee V. Suhenck 13 Park V. Wiley 248 Parker v. Crane 135 Parker v. Parmell 137 Parker V. Stroud 140 Parks V.Morris Axe & Tool Co 276 Parshall V. Tillou 183, 227 Parsons V. Hayes 49 Parsons V. Nash 264 Parsons V. ^utton 91, 269 Partridge V. Badger.. ..30, 31, 67, 68, 199 Passavaut V. Cantor 81, 85 Patchin V. Peck 205 Patch V. Tribune Association 213 Patterson V. Baker 32, 69 Patterson V. Copeland 12'7 Patterson V. Patterson 267,268 Patterson V. Wilkinson 163 Pattison V. Adams 149 Pattison V. O'Connor 293 Pattison V. Powers 177 Pattison V. Richards 260,270 Pattison v. Taylor 26 Paxton Cattle Co. v. Arapahoe Bank... 289 Payne v. Sheldoti 185 Peabody V. Bloomer 264 Peabody v. Washington County Mut. Ins. Co 193,209,212 Peart V. Pe.art 369, 370 Pease v. Smith 153, 154, 1.55 Peck V. Brown 287 Pearsall v. Frazer 136 Peck V. Newton 7 Peck V. Vaudemark 8 Peets V. Bradt 30 Pegram v. Carson 95 Pelzer v. Benish 161 Pendergast V. Greenfield 268 People V. Albany Common Pleas 399 People V. Allen 53 People's Bank v. Mitchell 7 Peoplev. Banker 286 People V. Bennett 4 People V. Booth 286 People V. Christopher 229 People V. ayde 35a Table of Cases. People V. Common Council of Troy — 313 People V. Commisslouersof Highways. 23 , 207, 209, People V. Conner People V. Crooks , People V. Curtis People V. Delaware, etc People V. Dennison 263, 270, People V. Empire Mut. Life Ins. Co ... Petersou V Haffner People V. Hydraulic Co People V. Judges of Oneida C. P People V. McCumber.. . 25, 231, 351, 353, 3r.6, 357, People V. Mayor, etc., of N. Y.209, 213, People V. Monroe Common Pleas People V. Mutual Gas-LightCo 58, People V. Nolan, People V. Northern R. R. Co People V. Ovenshire People V. Phillips People V. Ransom People V . Rector of Trinity Church People V. Ryder People V. Snyder . -■ 31, People V. Supervisors of Westchester. People V. Supervisors of Oswego People V. Supervisors of Ulster People, ex rel. Swinburne, v. Nolan People V. Tilton People V.Tweed 270, People V. Walter Poople V. Whitwell People V. Williamsburgh, etc., Co People V Woods Perrow V. Lindsay 94, Perry v. Dickerson 113, 115, 345, Petree v. Lansing Peyser v. McCormack 43, Phelps V. Bostwick Phelps V. Ferguson Phelps V. Nowlen Phelps V. Piatt 94, Phelps V. Vischer , .43, Phillips V. Besick 113, 115, Phillips V. Gorham Phillips V. Hagadon PhiUips V. Melville Philli ps V. Prescott Philips V. Rose , Phillips V. Suydam Phillips V. Therasson Phcenix Bank v. Donnell Phoenix v. Dupuy Pickert v. Dexter Pinschower V. Hanks Pierce V. Van Dyke Pierson v. McCurdy .313, Pine V. Huber Manuf . Co, Piokard v. Collins Pinkneyv. Keyler Pinneyv.King Piper V . Newcomer , , Pitch er v . Hen nessey Pittsburgh, Cincinnati, etc., R. R. Co. V. Hison Plainer V. Lehman 248, Place V. Minster 158, Piatt V. Piatt Piatt V. Townsend Piatt & Washburn ReQning Co. v. Hep- worth ... Plumnner V. Belden Plumbv. Whipples 305, Poillon V. Lawerance — Pope V. Terre Haute Poppingerv. Yutte 38, 207, Porous Plaster Co. v. Seabury. ..7. 201, Porter v. Kin|j:sbury 33, 24;J, Page. Porter v . Wormser 236 Post V. Simmons 385 Potter V. Bacon 141 Potter v. Ellice 205, 209, 217 Potter V. Frail 237 Potts V. State 209 Powell V. Paciac R. R. Co 148 Powell V. Powell ....154 Powers V. French 194 Powers V. Hughes 85 Powers V. Rome, etc., R. R. Co. 51, 224, 229 357 Powers V. Snedeker 86 Pramagiori v. Pramagiori 180 Pratt V. Collins 265 Pratt V. Hudson R. R. Co ;i35 Pratt Manuf. Co. v, Jordan Iron Works. 51 229, 357 Prentice V. Janssen 173 Pricev. Brown 336,333 Price V. McClave 43,196, 198 " ■ "" ■ 407 49 320, 337 Price V. Peters Price V. Price Prindle v. Aldrich Prindle v. Caruthers..20, 30, 31, 41, 135 194 212 Pritchard V. Dratt 172 Proctor's Admr- v. Andrews 320 Prosser v. Matthiessen 243, 244 Prouty V. Eaton 260 Proutyv. Lake Shore, etc., R. R. Co... 341 Providence Rubber Co. v. Goodyear ,. 23 Pruden V. City of Lockport 311 Pryce v. Jordan 195 Pullen v. Wright 330 Purdy v. Warden 90 Purves v. Mozlt 150 Quiu V. Astor 89 Quinv. Case 298 Quin V. Lloyd 331,285 Quin V . Moore 167 Quimbyv. Claflin 316, 333 Quintard v. Newtqu 67 Raddie V. Buckgaber Radley V. Houghtailing Radway v. Mather RafFerty v. Wil Mams 97, Ramsby v. Beezley Ramsden v. Bamsden Randolph V. Mayor Rapalee v. Stewart Rathbun v. Markham Ratzer v. Ratzer 245, Ravvley v. Brown Ransom V. Anderson Uawson v. Wetniore Raymond v. Brooks Ray nor v. Brennan 118, Rayner V. Julian Raynor V. Timerson 233, Read v. Brook in an Read v. City of Buffalo 140, Read v. Lambert Reecev. Smith Rector v. Ridgewood Ice Co 309, Redfleld v. Holland Purchase Ins. Co... Reed v. Clark Cove Guano Co 159, Reed v. Mayor, etc., of New York Keed V. Reed Reeder V. Sayer .334, Reeve V. Fraker Reformed Prot. Dutch Church v. Brown Reilly v. Cavanaugh Reining V. City of Buffalo 20, 36. Rensselaer, etc., Plaukroad Co. v. Wet- sel Renton v. St. Louis 226 337 60 273 154 181 291 235 369 348 150 351 333 101 124 131 236 30 197 71 212 311 193 3'>6 318 36 332 197 116 213 38 364 312 Table of Cases. xxvu Page. Requav. Guggenheim 69 Restoff V. Ehrlch 104 Revere Copper Co. v. Dimock 252 Reynolds V. Ellis 184 244 385 154 37 310 397 283 311 165 Reynolds v. Hurd Reynolds V. Palen Reynolds V. Shuler Rhoda V. Alameda County Ricev. Childs Rice V. Hollenbeok. Rice V. O'Connor 374, Rider V. Bates 305 Riddle V. McGinnis Richards V. Beach 187 Richards V. Coe 187 Richardsv. Edick 69, 212 Richards v. North rnp 48 Richards V Warring 197 Richards V. Westcott 167 Richardson v. Bates 295 Richardson v. Case 256 Ritcherv.MclMurray 230 Richter V, Cramer 31 Richtmyer v. Richtrayer 209 Higgv. American Tract Society 25 Rilev y. Corwin. Rindge V. Baker Risley v. Wightman Roache V. Kivlin Robb V. Montgomery Robert Gere Bank v. Inman. 332 7 330 56 136 .230,' 350, 351 353, 356 Roberts V. Waters 220 Robertsonv. Bennett 308, 310 Robertson v. Robertson 340 Robertson V. Russell 103, 103 Robin V. Long 350,354,355 Robbins V. Palmer 356 Bobbins V.Wells 207, .348 Robinson v. Brisbane 343 Robinson V. Comer 83 Robinson v. Flint 118 Bobinson v. Frost 231,232, 2.33 Robinson V. Hatch 258, 259 Robinson V. Weil 92 Robyv. Hallock 230,350 Rockwell V. Merwin 127 Rockwell V. yaunders 149 Rocky Mountain Nat. Bank v. Bliss.. 187 Rodgersv. Brazeale 213 Rodi V. Rutgers Ins. Co 192 Roe V. Angevine 235 Roe V. Campbell 147 Roe V. Roe 2.55 Roeber V. Dawson 375 Rogers V.King 238,289 Rogers V. Lafayette Agricultural Works 207 Rogers V. Rath bun 313 Rogers V. Rathbone 362 Rohrbach v. Germania Fire Ins. Co.. . 193 Romans V. Langevin 30, 68 Rome Exchange Bank v. Eames.. . 21, 185 Romeyn v. Sickles 322, 324 Roorae v. McGovern 151 Roome v. Nicholson 353 Koosa V. Saugerties, etc. , Road Co.361, 303 368 Rooseveltv. Bull's Head Bank 248 Roosevelt V. Gardinier 89,110 Kootv.Foster 149, 361 Root v. King 257 Root V. Lowndes 162 Rootv. Price 112,130 Rosenfleld V. Shebel 344 Rosenthal v. Dessau 343 Rossner V. New York Museum Associa- tion 300 Rossiter V. Schultz 28 Eoss V . Dinsmore 305, 306, 365 Page. Rossv.Duffy 36,286 Ross V. Longmulr 60, 63 Ross V. Mather 4,159 Ross V. Ross 358 Ross V. Sadgbeer 135 Ross V. Terry 75 Roussel V. St. Nicholas Ins. Co 193 Rout V. Woods 213 Rothschild V. Meyer 156 Royer Wheel Co. v. Fielding 185 Ruben v. Ludgate Hill Steamship Co. . . 367 Rudde V. Ruckgaber 260 Rundell v. Butler 163 Russell V. Conn. Russell V. Spear Ryokman v. Haight Ryan v . Lewis Ryerson v. Kauffield .407, .151, 170 309 90 408 154 Ryle V. Harrington 73 Safford v. Drew 166, 167 Safford V. Hynds 340 Sage V. Mosher 343, 347, 348 Sager v. Blain . . 4 SaEory v. New York&N. H. R. R. Co.. 316 Salisbury v. Stinson 28, 141 Salinger v. Lusk 229 Salomon V. Van Tragg 154 Salt Springs Nat. Bank v. Burton .... 195 Salters v. Kipp ... 377, 378 Sandford V. Halsey 134 Saramis v. Brice 406 Samson V. Freedraan 276 San Minguel Co . Comm . v. Long 71 Sanborn v. Hale _ 207 Sanders V. Farrell 214 Sanders v. Leavy 169 Sanders v. Village of Yonker8..205, 206, 215 Sanderson V. Caldwell 163 Sands V. Calkins 306,311 Sands V. St. John 28, 224, 335 Sargent V. Steubenville 195 Savage y. Aiken 390 Savage v. Allen 241 Sawyer V. McLouth 194 Saxton V. Dodge 356 Sa.vles V. Wooden 2.58 Scilaus V. Manhattan Gas Co 233 Schellens v. Equitable Life Ass. Society 367 Schenck V. McKee 303 Schenck V. Naylor 73, 141 SchencUe V. Rowell 193 Schepmoes V. B(»usson 106 Schmidt V. Selinger , 100 School District V. Piatt 213 Schnaderbeck V. Worth 270 Schubart v. Harteau 374 SchuhadD V. Roth 298 Schultze V Rodewell 351 Schultz V. Third Ave. R. R. Co 200 Schwab V. Furniss 386 Schwab V. Wehrle 307 Schwarz v. Oppold 232 Schwinger V. Kavraond 16 Scofleld V. Doscher 132 ScoBeld V. Van Syckle 206 Scofleld V. Whitelegg 23, 25, 73, 149, 150 Scott V. Lara 160 Scott V. .luhnson 237 Scott V. Royal Exch. Shipping Co 337 Scott V. State 286 Scott V . Stockwell 288 Scovillv New .56 Scranton v. Farmers & Mechanics' Bank 136 Scroggs V. Palmer 128 Seaman v. Low 81 Seaver V. Hodgkin 71, 212 Seaver v. Mayor 319 Seavey v. Mayor 319 xxvin Table of Cases. Page. Secorv. Pendleton 125,207, 317 Secorv. Sturgis 113, 114, 115, 247 Seselken v. Myer 75, 128 Selisrraan v. Dudley 276 Seligman v. Heal Estate Trust Co — 96 Selover v. Coe 2;!i! Seueca Cuunty Bauk v. G-arlinghouse.. 307 311 Senorita V. Simons 59, 62 Seward V. Miller 360 Sexauer v. Bowen 60 Seymour V. McKinstry 235,237 Shaffer V. Holm SS Shankland v. Banlett 90 Shaler & Hall Quarry V. Bliss ]S9 Sharp V. Johnson 146 Sharp V. Mayor of New York 159 Shaw V. Cock 818 Shaw V. Dwight 184, 185 Shaw V. Jayne 7,23, 156, 157 Shaw V. Van Rensselaer 103 Shaw V. Republic Life Ins. Co 138 Shaw V Tobias 31 Sheelian v. Hamilton 239, 241 Sheldon V. .^daras 317 Sheldon V. Clark 29 Sheldon v. Hoy 125 Sheldon V. Lake 24, 48 Sheldon v. Sabin 51, 231 Sheridan V. Smith 249 Sheriden V. Jackson 23, 25, 3.36 Shermanv. Bushnell 230 Sherman v. New York Cent. R. R. Co. 27 230, 256, 259 Shortv. Barry 7, 200 Short V.May 303 ShultzY. DePuy 198 Shull V. Green 400 Shute V. Hamilton 223 Sidenbergv. Ely 243 Simonsonv. Blake 177,200, 203 Simmons V. Eldridge 183 Simmons v. Fairchild 71 Simmons V. Kayser 261, 288 Simmons V. Liudley 169 Simmons V Lyons 149,330 Sirason V. Satterlee 218 Simmons t. Vanderbilt 103 Simpson v. Rome, Watertown, etc., K. R 408 Simpkins V. French 248,349 Simser V. Cowan 23, 150 Sinclair V. Fitch 71 Sinclair V. Neill 332 Singer V. Cavers 313 Sisson V. Lawrence 397 Sixpenny Savings Bank v. Sloan 356 Skeltonv Scott 126, 177 Skinner v. Powers 258 Slackv. Heath 134,209 Sloan V. McDowell 208 Slocura V. Wheeler 204 Smith V. Britton 132, 133 Smith V. Brown 192 Smith V. Countryman 292 Smithv.Duer 133 Smith V. Fellows 43, 194 Smith V. Felton 379 Smith V. Frost 75 Smith V. Geortner 123 Smith V. Gratz .237 Smith V. Greenln 283 Smithv Hall 75,270,393 Smith V. Henry 320 Smith v. Hicks 92 Smith V. Holmes 143 Smith V.Hilton ■.i7S Smith V. Laird 310 Smith V. Levlnus 112,131 Page. Smith V. Lockwood 25 Smith V. Long 169 Smith V, McDonald 96 Smith V. McClnskey 139 Smith V. Mead 3.56 Smith V. Mitten 400, 407 Smith V.N. Y. Cent. E. B. Co 31 Smith V. Pflster 87, 135, 194,299, 310 Smith V. Rathbun 219, 326, 829, 332, 333 Smith V. Rosenthal 62 Smith V. Smith 157, 180, 18-', 2)6 Smith V. Stags 333 Smithv. Wells 337 Snape V. Gilbert. 65 Snyder V. White 230,306, 310 Solis V. Manning 156 Solms V. Lias 145 Southard V. Benner 184 Southwick V. First Nat. Bank.. 21, 23, 140 324, 3;i6 Southwortb V. Curtis 60, 374 .Scatter V. Mather 63 Spahn V. Spahn 255 Sparman v. Krini 75 Spear v. Downing 41, 66,69, 135 Spear V. Hart 224 Spears v. Mayor, etc. , of New York. . . 346 .^peirs V. Parker 29 Spencer V. Babcock 71,286 Spencer v. Rogers' Locomotive Works. 43 196 Spencer v. Tooker 308, 313 Speyer V. Colgate 137 Speyers V. Torstrich 94 Spice V. Steinruch 212 Spellman V. Welder.. 43,196, 204 Spooner V. Keeler 18, 2.58, 259 Sprange V. Duoton 370 Sprague V. Parsons 26 Spring V. Short 184 Springer V. Dweyer 263 Springstead V. Lawson 35, 118 Springsted v. Robinson 56 Sprout V. Newton 142 Spuyten Duyvill Rolling Mill Co. v. Wil- liams 305, 311, 369 Squire V. Gould 143 Stafford v. Davidson 194 Stacy V. Bennett 329 Stacy V. Graham 140 Stallknecht v. Pennsylvania R. E. Co . . 166 Standartv Burtis 302, 214 Stanley V. Campbell 138 Stanley v. Chappell 394 Stapenhorst v. American Manuf. Co. . 145 Staples V. Anderson 375 Staples v. Goodrich 114,115 State V. Roche 231 Star Steamship Co. v. Mitchell 147, 159 Stark V. Star 115 Strakosch V. Press Pub. Co 104 stebbins V. Harmon 97 Stedeker V. Bernard 359 Steele V. Smith 39 Stent V. Continental Nat. Bank 51, 229 Stenton v. Jerome 148 Stephens V. Lockwood 115 Stephens v. Fox 188 Stern V. Drinker 28 Sternv. Knapp 319, 845 Stevens V. Hyde 1.50 Stevens V. McMillin 351 Stevens V. Rodger 143. 148 Stevens V Webb 81,83, 85 Stevens v. Mayor 7 Stevenson v. Maxwell 139 Stevenson v. Newnham 146 Stewart v. Beebe .. 127 Stewart V. Bouton 364 Taj5le of Cases. XXIX Page. Stewart T. Isidor 344, 347 Stewai't V. Munroe 173 Stewart v. Travis 26 Stewart V. Wilson 163 Stiebelinff V. Lockhouse 83 Stiles V. Comstocli 36 Stiles V. Fisber 312 Stitt V. Little 159 Stilwell V. Carpenter 112, 120 Stillwellv. Kelly 306 St. John V. Griffith 27, 363 St. John V. Northup 72,160. St. Louis Lager Beer Bottling Co. v Colorado Bank Stoddard v. Onondaga Conference 170 StoUes V. Stickney 124 Stone V. Cooper 444 Stowell V. Chamberlain 246, 247 Stowell V. Otis 233,253 Stone V. White 14 Strong V. Sproul 244, 3.o2, 3.54, .■!55, 356 Strong V. Strong 95,180,265,344 Stryker v. New York Exch. Bank 30n Stuart V Biusse 34 Studwell T. Charter Oak Life Ins. Co... 2.S8 Sturm V. Atlantic Mut. Ins. Co 193 Struvcrv. Ocean Ins. Co 204, .OeO Sullings V. Goodyear, etc. . Co 243 Sullivan V. Miller 184 Supervisors of Saratoga v. Seabury ... . 220 Swamp, etc.. Land District V. Feck ... 205 Swart V. Boughton... 8, 23, 26, 200,213, 214 Sweet V. Coon 406 Sweet V. Ingeron 35, 118,1:^ Sweeney V. Sturgis 106 Sweet V. Tuttle 242,243 Swift V. Kingsley 71 Swinburne v. Stockwell ...51, 224, 229, 3.56 357 Swinerton y. Columbian Ins. Co 31 .107 .149, Taber V. Gardner Tate V. Evans Taylor v. Atlantic Mut. Ins. Co Taylor v. Crane Taylor v. Guest 147, 159, Taylor v. Mayor, etc , of New York. 267, Taylor v. Richards 33, 242, Teall V. City of Syracuse Tebo v. Baker Teel V. Fonda Tell V. Beyer Tennant V. Pflster Tennessee, Virginia, etc., R. R. Co. v. Staub Terwilliger V. Wands 143, Texier V. Gouin Thatcher v. Hope Cemetery Associat'n. Thatcher v. Morris Thayer v.Gile 23,25,26, Therasson V Peterson Thierry V. Crawford Thomas v. Beebe Thomas V. Bennett Thomas v. Dakin Thomas V. Desmond Thomas V. Jones Thomas V. Nelson Thomas v. Utica & Black River R R. Co Thomason V. De Mott Thompson v. Erie Ry. Co . .95, 350, 352, 363, Thompson V. Gould - Thompson v. Halbert. . .34, 223, 234, 335, Thompson v. Whitmarsh 58 69 26 169 190 263 276 244 2S3 J18 108 29 234 205 141 145 235 202 134 153 326 237 159 128 130 23 405 328 J25 1.56 355 363 J 42 284 286 Page. Thomson v. Madison Building & Aid As- sociation 395 Thomson V. St Nicholas Nat. Bank... 119 Thomson V. Smith 139 Thorp V. Keokuk 68 Throop V. Hatch 44,106 Thumb V. Walrath 223 Thurman V. Anderson 339 Tibbetts V. lilooU 130 Tibballs V. Selfrldge 60, 63 Tiffany V. Bowerman 340 Tiffany v. St. John 248 Tiflanyv. Williams 130 Tighev.Pope 317,320 Tiltouv. Beecher 83, 83, 367 Tilsoo V. Clark 258 Tillspaughv. Dick 373 Timv.Tim 180 Timnions v. Wiggins 195 Tipton V. Feitner 138 Tisdale v. Moore 213 Tisdaie v. Morgan 337 Tobias V. Harland 143,144 Toles y. Adee 199 Toll V. Mohawk Valley, etc., Ins. Co... 309 Toomey V. Andrews 304 Tompkins v. Elliot 136 Tomlinv. Tonica, etc., R. R. Co 313 Tomlinson V. Van Vechten 29.5 Tooker v. Arnoux 41, 317, 320, 335, 336 Torey v. Culver 190 Torrey V. Field 2.58 Town of Essex V. N. Y., etc., R. R. Co. 363 Town of Meiitey v. Cook 238 Townshend v. Townshend 334 Towsley V. Denison 148 Train V. Freidinan 86 Traver v Eighth Ave. R. R. Co 243, 243 Traver V. Halstead 137 Travis V. Peabody Ins. Co 317 Traphagen v. Traphagen 240 Treadwell v. Fassett 63, 63 Treat V. Hath orn l.iO Triscomy V. Orr 69 Tripp V. Pulver 336 Tripp V. Vincent 16 Troy & Boston R. R. Co. v. Tibbits..308, 316 317, 320 Trowbridge V. Didier 300 Trubee V.Allen 245 Truesdell V. Rhodes 209 Truesdell V. Sarles 21 Truscott V. King 238 Tuffts V. liraisted 133 Tugman V. National Steamship Co ... 5 Turner V. O'Brien 155 Turnerv. Roby 247 Turner v. Turner 155 Turnerv. White 35 Turnow V. Hochstadter 335 Tuthill V. Clark 399 Tuthill V. Morris 249 Tylerv. ^tna Fire Ins. Co 299 Tyler V. Willis 260 Tyng v. Commercial Warehouse 337 Twinam V. Swart 150 trnderhill V. PhiUips 135,194 Union Nat. Bank of Troy v. Barrett . . 317 Union Bank V. Bush 73 Union Pacific Ry. Co. v. Credit Mobilier .3.S5 United States V. Ames 220 United States Life Ins. Gov. Jordan... 219 Utica Ins. v. Scott 316 Urquhartv. City of Ogdensburg ....28, 167 Valleau V. Cahill 132 Valton V. Nat. Fund Life Ass. Co 237 Van Alstyne V. Freday 358 XXX Table of Cases. Page. Van Renthuysen V. Stevens 110 Van BehthuyseD V. Lyle 303 Van lieiischoteriv. Yaple 363 Villi Biunt V. Day 6T, 2B1 Vrtn De Sande V. Hall 20,256 Vaiidenburgh V. Van Valkenburgh 149 Vanderbiltv Bleeker 313 Vanderbilt T Mathis 146 Viuidersliue V. Newton 143 Vandeventer v. New YorU &N. H. E. K. Co 166 Vanderzeev. Hallenbeck 83,85, 88 Van Horn v. Monteomery 374 Van Leuven V. Lyke 48 Van Liew v. Johnson 202 Van Namee V. People 110 Van Rensselaer v. Bonesteel 30 Van Renssslaer V. Brlce 361 Van Sohaick V. Winne 20, 25, 141, 142 Van Valen V. Lapham 274 Van Valkenburgh v. American Popular Life Ins. Co 193 Van Voorhis V Budd 110 Van Wyok v. Guthrie . . .' 258 Van Zandt V. Cobb 98 Vassar V. Livingston 260 Veederv. Baker 124 Veeder V. Cooley 71, 74 Velie V. Newark City Ins. Co 13, 351 Vermeule V. Beck 120 Verrnilya V. Beatty 33 Vibbard V Roderick .326 Vicars v. Wilcocks 145 Victory Webb, etc., Manuf. Co. v. Beecher 71 Viele V. Gray 147, 163 Vilas Nat. Bank V. Moore 356 Vilmar V. Schall 75 Vinal V. Core 155 Vincent V. Conklin 154 Vischer V. Conant 83 Voessing V. Voessing 171 Volkeningv. De Gratf 147, 148, 335 Vrooman v. Ditmas 250 Vrooman V. Jackson 323 Von Sachs V. Kretz 289 53, Wadley V. Davis "Wadley, Matter of "Waggoner V. Brown Wakeman V. Dalley Wakeman v. Everett Walkenshavv V. Perzel . .. Walkerv. Granite Bank 94, 96, 99, Walker V. Popper Walker V. .Shoemaker . . Wall V. Buffalo Water Works Co Wall V. Buger 80, 211 Wall V. Bulger Wallace v. Bennett 144, Wallace v. McConnell Wallace V. Walsh Walling v. Schwarzkopf Walmsley V. Nelson .^. . Walter v. Fowler 284, Walter V. Lockwood 23, Walter V, Walter. Walters V. Bushwick R R. Co Walterniire V. AValtermire Walsh V. Cornett 406, AValsh V. Durkin Walton V. Coe 187, Wanser v. Wickoflf Wandle V. Turney Wandell v. Edwards Ward V. Colyhan Ward v.Duke Ward V. Hogan Ward y. Gore Page. Ward V. Neal 213 Ward V. Stout 28ft Wardv. Strlngham 110 Wardv.Ward 211 Waring V. Indemnity Fire Ins. Co 193 Warner v, Ross 205 Warmouth V. Cramer 163 Warner V. Blakeman 160 Warner V. Nelligar 168,169 Warth V. Radde 131, 133 Warren V. Van Pelt 276 Wachter v. Quenzer 18,258, 359 Washburn V. Herrick 305, 307 Washburn V. Wilkinson 177 Watson v. Thibou 339,340 Watson V. Rushmore 308 Watson V. Bailey 237 Watson V. Johnson 288 Wayland V. Lyon 350,351 Wetmore v. Jennys 89, 90 Wetmore V. Porter 7, 8, 126 Wetmnre V. Truslow 349 Weaver v . Barden 337, 231, 232, 235 Webb V. Foster 350 Webb V. Vanderbilt 204 Webb V. Van Zandt 358 Weber V. PoTTler 110 Webster V. Bond 339, 240, 241 Websterv. Stockwell 106, 107 Webster v.Tibbitts 213 Weeks V. Keteltas 118 Weeks v. Stroble 400 Weed V. Case 147 Weide V. Porter 27 Weilv.Martin 111,331 Weller V. Newbach 17.5 Welch V. Preston 305, 311 Weller V. Hersee 135 Wells V. Jewett 121,147, 159 Wells V. Yates 801 Wells V. Van Aken 84 Wenraan V. Mohawk Ins. Co 140 Wendtv. Peyser 53, 57 Wernerv. Tuch 249 West V. American Exchange Bank 224 Westv. Burns 340 Westv. Bowen 286 Western Transp., etc., Co. v. Kilder- house 250 Western v. Worden 318 Wesley V. Bennett 161 Westervelt V. Ackley 3S4 Weston V. McCormick 385 Wheeler v.Bavidge 143 Wheeler V. Billings 227, 231, 233 Wheeler V. Curtiss 287 Wheeler V. Dakin 133 Wheeler V. Dison 56 Wheeler v. Floral Mill, etc., Co 26 Wheeler V, Garcia 137 Wheeler v. LawsoQ 234 Wheeler V.Lee 220 Wheeler V. Nesbit 155 Wheeler & Wilson Manuf. Co. v. Wor- rall 2S, 141 Wheeler V. Warner 140 Wheelock V. Lee 7, 40 Wheelock v. Nooan 2.38 Whitaker V. Masterton 189 White V. Brown 1.51 White \'. Bennett 54 Whits V. Coatsworth 246, 247 White V. Cu Turnings 65 White V. Drake 284 White V. Downey 103 White V. Hapeman 169 White V. Joy 137,293 Whitev.Kidd 363, S65 White V. Mayor, etc., of New York 306 Table of Cases. XXXI 189 180 13 Page. White V. Miller 343 White V. Nellis 164 Whltev.Plaoe 404 White v. Spencer 72 Wbitford V.Panama K. R. Co 166 Whitehall Lumber Co. v. Edmands 364 Whitehall, etc., R. R. Co. v. Myers. .79, 90 Whittemore v. Weiss S.58 Whiting V. Mayor, etc., of NewTorli . 319 Whitlocli ¥. Curtis 396 Whitney Arms Co. V. Barlow Whitney V. Town or Ticonderoga ... . Whittlesey V. Delaney 27, Whittier V. Bates Wiclis V. Cornwall 121 Wies V. Jj'anning 33 Wigand v, Dejouger 86, 88 Wiaand V. Sichel ...343, 244 Wiggins V. Tallmadge 399 Wilcox V. Palmeter 391 Wilder y. Boynton 260, 261 Wilder V. Ranney 119 Wilder V. Seelye 248 Wile V. Sweeney 286 Wiles V. Suydam 117,118, 134 Wiles V. Phillippi Church Trustees . . 236 Wiley V. Brigham 328, 333 Wilkie V. Moore ! 95 Wilkin V. Gilman 65 Wilkin V. Eaplee 358 Wiikerson V. Rust 213 Wilmarth V. Babcock 17 Wilmington, Columbia, etc., R. E. Co. v. Garner 169 Willard V. Reas 209 Wiliardy. Bridge 392 WilUnk V Renwiols 316 Willover V. Hill 238, 359 Willover v. First Nat. Bank ol Clean. 267, 268 Williams V. Allen 93 Wilhams V. Ayrault 308, 345 Williams v. Cooper 31U Williams v. Estate o£ Cameron 132 Williams V. Healy 134,136,137 138 Williams y. Hayes 33,361,364 Williams y. Hill 146 Williams y. Merchants & Traders' Fire Ins. Co 193 Williams y. People's Eire Ins. Co 33 Williams V. Rice 51,52, 60 Williams y. Shaw 78, 90 Williams v. Slote .• 8 Williams y. Tilt 28 Williams y. Western Union Tel. Oo . 105 Williams V. Willis 235,260,289 Williamson y. Williamson 53,65, 311 Williamson v. Yingling 312 Willis V. Bailey 87 Willis y. Hudson 234 Willis V. Taggard 332 Wilson v. Bennett 56, 65 Wilson y. Doran 339,348, 349 Wilson V. Forsyth 184 Wilson V. Fowler 91 Wilson V. tJoit 145 Wilson V. Mayor, etc., ofNevyTork — 205 Winchellv. Martin 88 Winfled v. Bacon 241 Wing V. Hayden 36 Wing, Matter of 132 Winne V. Colorado Springs Co Winne V. Sickles Winslow V. Ferguson Winston y. English Winter V. Quarters Winstandley V. tlariden Wirgman y. Hicks Wise V. Gersner 310, Witkowski y. Para more 85, Witherhead y. Alien Wit hers, V. Toulmin Witheriugham v. Lafoy Witherspoon v. Van Dolar Wittig V, Moltz Wochoska V. Wochoska Wolcott y. McFarlan Wolcott V. Van Santvoord 140, 195, Wolf V. Howes Wolfe v.Superyisors of Richmond Co. 28, Wood y. Keal Wood y . Kiibish Wood y. Mayor Wood V . North Western Ins . Co Woody. Rabe Wood V. Raydure 51, Wood y. Shultis 406, Wood y. Whiting Wood y. Wood Woods V. DeFiganiere 95, Woodbury V. Sackrider 66, Wooden V. Strew 33, Woodruff y. Cook Woodruff V. Bradstreet 143, Woodruff y. Leonard 42, Woodworth y. Bank of America Woo.ley V. Newcombe Woolsey V. Trustees of Rondout Wooster v . Chamberlin 243, Wright y. Delafleld Wright V. Hooker Wright V. Jewell Wrightv. Monre Wright y. Williams Wrightv. Wright 8,242, Wyman v. Remond ..308, 26 351 352 104 69 220 353 356 90 l.'i4 359 344 195 316 197 29 167 108 163 276 193 349 339 408 234 180 98 198 361 34 144 198 140 25 330 244 31 73 354 139 312 343 309 XeniaBankv. Lee 35,71,269,270, 274 ITamato Trading Co. v. Brown 55, 102 Yates V. Bigelow 77, 80 Yates V. Hoffman 126 Yertore V. Wiswall 166 Ynguanzo V. Saloman 158 Younger y. Dufflie 163,363, 365 Young V. Catlett 330 Youngv. Edwards 201, 202 Young V, De Mott 65 Youngv. Hill 148 Youngs V, Kent 227,356 Youngs V. Seeley 57 Zabriskie v. Smith. 147,159, 161, 205, 211, 317 244 Zeigy.Ort 162 Zimmerman v. BickerhoflF 98 Zimmerman v. Erhard 113, 114 Zoellner v. Newberger 57 Zornv.Zorn 124,180,181 Zorkowskl v, Zorkowski 180 CODE PLEADING. CHAPTER I The System of Pleadings Inteoduced by the Code. Section 1. Abolition of forms and former rules of plead- ing. — In the year 1848, the Legislature of the State of jSTew York, deeming it expedient that the then existing forms of actions and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding in all cases should be established, passed an act entitled "An act to simplify and abridge the practice, pleadings and pj-oceedings of the courts of this State," now commonly known as the Code of Procedure, or, as it is frequently termed, the Old Code. It was the intention of the Legislature to create a system of practice so simple in its details, that under it a person unskilled in the practice of the law might act as his own attorney in a court of record, and conduct liis cause therein from its commencement to its close, with no greater hindrance from technical rules of pro- cedure than if the action were pending before a justice of the peace. A simple, informal system of pleading became an essen- tial part of this scheme, as well for the protection of the court as the convenience of the litigant. The old system of pleadings, based on logical and scientific rules which the experience of cen- turies had dictated, was deemed too cumbersome, complex, arti- ficial and technical to form a part of the new procedure, and tlie Code, therefore, provided that " all forms of pleadings heretofore existing are abolished, and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufE- 4 System op Pleadings Inteoduced by the Code. Abolition of forms and former rules of pleading. ciency of the pleadings is to be determined, are those prescribed by this act.'" In the year 1876, the Legislature enacted the Code of Civil Procedure, which, like its predecessor, contained a chap- ter devoted to pleadings in courts of record,^ and provided that "this chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.'" Although the language of section 140 of the Code of Proced- ure indicated an intention on the part of the Legislature to wholly abolish the system of pleadings then in existence, so far as related to matters of form, it in reality abolished the prior practice and forms of pleading only in a qualified manner, as it also pro- vided by section 471 that existing statutory provisions relating to actions, not inconsistent with the Code and in substance applica- ble to the new actions authorized by it, should not be afEected by that act. So far, therefore, as a statutory form was not inconsist- ent with the Code of Procedure it might still be safely followed.* The abolition of tlie forms of pleading by the Code left un- changed the substantial distinction between actions on contract and those founded on tort.^ The plaintiff could not allege a breach of contract simply and recover for a tort, nor could he allege a cause of action for a tort and recover as upon a breach of contract;" but if he set forth facts constituting a cause of action on contract and established those facts on the trial, he could recover for the breach of contract, although tlie complaint was in form for a conversion ;'' and although the parties might go down to the trial upon a particular theory which was not supported by proof, the plaintiff would not be turned out of court and compelled to com- mence a new action, if there were facts alleged in the complaint, ' Code of Procedure, § 140. ' Chapter VI. ' Code of Civil Pro., § 518. - Betts V. Bache, 23 How. 197; 14 Abb. 279; 9 Bosw. 615; Bank of Genesee T. Patcbin Bank, 13 N. Y. 309, 314; People v. Bennett, 5 Abb. 384; 6 id. 343. ' Austin V. Rawdon, 44 N. Y. 63; Andrews v. Bond, 16 Barb. 633. « Barnes v. Quigley, 59 N. Y. 265; Ross v. Mather, 51 id. 108; Matthew v. Cady, 61 id. 651; Bernhard v. Seligman, 54 id. 661; Sager v. Blain, 44 id. 445. ■■ Conaughty v. Nichols, 42 N. Y. 83. System of Pleadings Inteoditced by the Code. 5 Effect of tlie Code as to the substance of pleadings. and sustained by the evidence sufficient to justify a recover}'- upon a different tlieorj' or in a different form of action.' The Legislature was never wholly successful in the attempt to abolish the distinction between forms of actions. Although the pleader was not required to give a name to his action, and might on the trial have such judgment as was warranted by the facts alleged and proved, the courts were frequently called upon to name the action for him. Thus, before the Code the actions of as- sumpsit and on the case were concurrent remedies for many injuries resulting to personal property from non-feasance, mis-feasance and malfeasance.^ Under the Code, if the complaint set forth a cause of action either in tort or assumpsit, it was sufficient, and a re- covery might be had according to the facts, regardless of form.' But if the pleader joined another cause of action with the one thus pleaded, and the defendant demurred on the ground of the misjoinder of causes of action, viz., one for a tort and one on contract, the court, in order to decide the issue of law raised by the demurrer, was compelled to first decide whether the action was in tort or assumpsit, and to do this was compelled to fall back upon old precedents and principles established when actions still had names and forms.* In fact, for a long time after the adoption of the Code of Procedure, the spirit and object of the act were in a measure misapprehended, and the new system was measured by the standards of the old. But so complete and thorough was the departure from the former rules and forms of pleading that it was found unsafe to 'rely upon analogies derived from the old system in giving practical effect to the new, and the Code system was, tlierefore, treated as an entirely new theory of pleading, to be construed and carried into effect according to its terms, and upon principles peculiar to itself.' § 2. Effect of the Code as to the substance of pleadings. The Code abolished all the forms of pleading theretofore existing - Id.; Ledwicli v. McKim, 53 N. Y. 307; Tugman v. National Steamship Co., ■76 id. 207; Eldridge v. Adams, 54 Barb. 417. 2 1 Chitt. PI. 153. » Austin V. Seligman, 18 Fed. Rep. 519; 21 Blatch. C. Ct. 506. * Booth V. Farmers & Mechanics' Nat. Bank, 65 Barb. 457, ^ Bush V. Prosser, 11 N. Y. 347; Boyce v. Brown, 3 How. 391. 6 System of Pleadings iNTiiODtroKD by the Code. Blending of law and equity. but did not abolish the fundamental principles by which legal controversies had been conducted. It has made but little change in the substance of pleading. Under it the pleader may use his own language, but the necessary matter must be there, and be stated in an intelligible and issuable form capable of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matters of law only. A good pleading should be material, single, true, unambiguous, consistent, and certain to common intent as to time, place, person and quantity, and not redundant, or argumentative, or hypothetical, or in the alterna- tive.^ These rules of pleading and the limit of their application will be considered more fully hereafter. § 3. Blending of law and equity. One of the evils charged to the former judicial system of this State was an alleged inability to determine in what forum to apply for redress. The jurisdic- tion of actions at law and of suits in equity was vested in distinct tribunals. Parties frequently applied to courts of law for relief when, as they afterward found, their cases belonged to a court of equity, and vice versa. In some cases the parties were denied a hearing altogether ; the courts of law and equity both declining jurisdiction and each alleging that it appertained to the other. To correct this difficulty the Constitution conferred jurisdiction in law and equity on one tribunal. The difficulty, however, was only partially obviated, as there was one system of pleading and practice at law and another in equity, and it was still necessary to determine in advance to which side of the court jurisdiction be- longed. Commissioners were, therefore, appointed to devise and report a system of practice that should furnish a uniform course of procedure in all cases, whether of legal or equitable cogni- zance. The result of the labors of the commission was the Code of Procedure, and later, the present Code. Under the Code there is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions have been abolished.^ The rules of pleading ' Boyce v. Brown, 7 Barb. 80. = Code of Procedure, § 69; Code of Civil Pro., § 3339. System of Pleadings Introduced by the Code. 7 i — _ Blending of law and equity. are essentially the same whatever may be the character of the relief desired,' although if the cause of action or defense depends upon equitable principles it may sometimes be proper to set forth the facts- and circumstances much more at length than would be necessary in a case depending upon common-law principles only.2 But the Code did not attempt to abolish the distinction between law and equity,^ nor the inlierent difference between legal and equitable relief,* nor the principles by which the rights of parties are determined.'' The names of actions no longer exist, but we re- tain in fact the action at law and the suit in equity.^ Under the Code a plaintiff will not be turned out of court because he has mistaken the form of the remedy, nor will his complaint be dis- missed because he has prayed for a judgment to which he is not entitled, if the case which he states entitles him to any remedy, whether legal or equitable.' The pleader need not give a name to his action, nor declare that it is at law or in equity ; but he can have no relief which is not consistent with the case made by the complaint and embraced within the issue. If the allegations of the complaint warrant legal relief only, he cannot have equitable relief upon the evidence f and if they would warrant equitable relief only, he cannot have legal relief upon the proofs. He must maintain his equitable action upon equitable grounds or fail though he has proved on the trial a good cause of action at law.® If all the allegations of the complaint are made for the purpose of pro- ■ Millikin v. Carys, 5 How. 273. » Shaw V. Jayne, 4 How. 119, 121. s Shaw V. Jayne, 4 How. 119; Basey v. Gallagher, 20 Wall. 670. * Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Le Roy v. Marshall, 8 How. 373. ' Peck V. Newton, 46 Barb. 178; Merrifield v. Cooley, 4 How. 273; Onder- donk V. Mott, 34 Barb. 106. « Stevens v. Mayor, etc., of N. Y., 84 N. T. 296. ■ Emery v. Pease, 20 N. T. 62; Eindge v. Baker, 57 N. Y. 209; Murtha v. Carley, 90 N. Y. 373; Porous Plaster Co. v. Seabury, 43 Hun, 611; Bell v. Merrifield, 109 N. Y. 203; Wetmore v. Porter, 93 N. Y. 76, 80. 8 Stevens v. Mayor, etc., of N. Y., 84 N. Y. 396; People's Bank v. Mitchell, 73 N. Y. 415; Short v. Barry, 58 Barb. 177; 40 How. 310. ' Bradley v. Aldrich, 40 N. Y. 504; Arnold v. Angel, 63 N. Y. 508; Mann v. Fairchild, 3 Keyes, 111; Wheelock v. Lee, 74 N. Y. 495. 8 ' System of Pleadings Inteoduoed by the Code. Blending of law and equity. curing equitable relief, and that relief alone is asked for, and the facts stated do not show the plaintiff entitled to equitable relief, he cannot have legal relief if no answer is interposed, even though the complaint contains averments under which legal relief might have been granted had the defendant answered.^ So if the com- plaint is so framed that either legal or equitable relief might be granted under it if demanded, and the demand is for legal relief only, no judgment for equitable relief can be granted if no answer is interposed.^ This result follows from the provision of the Code that where there is no answer, the judgment shall not be more favorable to the plaintiif than that demanded in the complaint ; although when there is an answer the court may permit the plain- tifE to take any judgment consistent with the case made by the complaint and embraced within the issue.^ Where the relief to which a party would be entitled is the same whether his cause of action is deemed to be of a legal or equitable nature, he may frame his complaint with a double aspect, and if every fact necessary to the action is stated, may have any relief to which the facts en- title him consistent with that demanded in the complaint, although no answer is interposed.^ The relief demanded in a pleading is unimportant so long as the facts stated entitle the partj' pleading them to some form of relief. The courts now uniformly admin- ister the relief to which the facts set fortli ia the pleading seem to entitle the party without regard to the particular form of relief demanded.^ But it is still important that a person about to com- mence an action under the Code should bear in mind the essential distinctions between actions at law and suits in equity, and, having determined whether he will seek legal or equitable relief, if a choice of remedies is permissible, that he should adapt the statement of facts in his pleadings to the relief desired. ' Swart V. Boughton, 35 Hun, 281; Alexander v. Katte, 63 How. 362. ' Edson V. Qirvan, 29 Hun, 422. And see Fisher v. Charter Oak Life Ins. Co., 67 How. 191. = Code of Civil Pro., § 1207. " Hale V. Omaha Nat.^Bank, 49 N. T. 626; Bradley v. Aldrich, 40 N. Y. 512; Williams v. Slote, 70 N. T. 601. 5 Wetmore v. Porter, 93 N. Y. 76; Wright v. Wright, 54 N. Y. 437; Peck v. Vandemark,99 N. Y. 29; Chatfield v. Simonson, 93 N. Y. 309, 216. System of Pleadings Inteoduced bt the Code. > 9 Pleadings autliorized by tlie Code. § 4. Pleadings authorized by the Code. — Under the old sys- tem, the pleadings of the several parties to the action were first, the declaration; second, the plea ; third, the replication ; fourth, the rejoinder ; fifth, the surrejoinder ; sixth, the rebutter ; and seventh, the surrebutter. These pleadings were employed in pre- senting the facts ; and followed each other in the order named. The rebutter and surrebutter were rarely used in actual practice. In addition to these pleadings were the general or special demur- rers which might be interposed by either party to any pleading of his adversary to raise the question of law as to its sufiiciency. Under the Code the first pleading on the part of the plaintiff is the complaint,' which must contain the title of the action, a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and a demand of the judg- ment to which the plaintiff supposes himself entitled.^ The only pleading on the part of the defendant is either a de- murrer or an answer.^ He may demur to the whole complaint, or to one or more separate causes of action therein stated ; and in the latter case, he may answer the causes of action not demurred to.* The demurrer to the complaint can be taken only upon the grounds of objection specified in the Code,^ and will be available only upon the grounds specified.^ If the defendant demurs, he thereby raises an issue of law,' and all further pleading on his part in respect to the matter demurred to is at an end or suspen- ded until this issue is determined. If the defendant answers instead of demurring, his answer may contain a general or specific denial of each material allegation of the complaint controverted by him, or of any knowledge or in- formation thereof sufficient to form a belief, or a statement of ' Code of Civil Pro., §478. 3 Code of Civil Pro., § 481. 3 Code of Civil Pro., §487. * Code of Civil Pro., §493. ' Code of Civil Pro., § 488; Marie v. Garrison, 83 N. Y. 14. « Carter v. De Camp, 40 Hun, 358; Berney v. Drexel, 33 Hun, 419; Drake v. Drake, 41 Hun, 366; Dodge v. Colby, 108 N. Y. 445; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People v. Crooks, 53 N. Y. 648. ' Code of Civil Pro., § 964. 2 1® System of Pleadings Introduced by the Code. Pleadings authorized by the Code. any new matter constituting a defense or counterclaim.^ The de- fendant may set forth in his answer as many defenses, or counter- claims, or both, as he has, whether they are such as were formerly denominated legal or equitable.^ He may even set up a partial defense to the entire complaint or to any separate cause of action therein set forth.^ A denial in the answer of any material alle- gation in the complaint raises an issue of fact* as to the matter de- nied, and as to such matter the pleadings have performed their oflice and are at an end. On the other hand, each material allegation of the complaint which the defendant has not controverted by his answer stands admitted for all the purposes of the action.' Whether any further pleadings are required in the action after the defendant has answered, depends upon the nature of the an- swer. If the answer contains a statement of new matter, not con- stituting a counterclaim, it will be deemed controverted by the plaintifE, by traverse or avoidance, as the case requires,^ and as to such new matter an issue of fact is joined by force of the statute, without further pleading on the part of the plaintiff,' unless the court directs a reply thereto. If the answer contains new matter constituting a defense by way of avoidance, the court may in its discretion, on the defendant's application, direct the plaintiff to re- ply to the new matter.' If a reply is directed by the court and is not served by the plaintiff, each material allegation of new mat- ter in the answer to which the reply is required miist be taken as true for all purposes of the action,' and the defendant may apply on notice for such judgment as he is entitled to on the facts admitted.^" If no reply is required by the court as above stated, there is no necessity for any further pleading on the part of the plaintiff, unless the answer is demurrable, or contains new matter ' Code of Civil Pro., g .500. 2 Code of Civil Pro., §507. 3 Code of Civil Pro., g 508. " Code of Civil Pro., § 964. s Code of Civil Pro. , § 522. 6 Code of Civil Pro., | 522. ' Code of Civil Pro., g 964; Arthur v. Homestead Fire Ins. Co., 78 y. Y. 462. 8 Code of Civil Pro., § 516. 9 Code of Civil Pro., g 522. '0 Code of Civil Pro., |§ 515, 516. System of Pleadings Introduced by the Code. 11 Pleadings authorized by the Code. constituting a counterclaim which would stand admitted unless controverted by a reply. ^ The plaintiff may demur to a counterclaim or a defense con- sisting of new matter, contained in the answer.^ If- he demurs, no further pleading on his part can be required until after the decision of the demurrer. If he does not demur, and the answer contains a counterclaim, he may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff or any knowledge or information thereof sufficient to form a beHef ; and it may set forth in ordiuMy and concise language, without repetition, now matter, not inconsistent witli the complaint, con- stituting a defense to the counterclaim.' The reply may contain two or more distinct avoidances of the same defense or counter- claim, but they must be separately stated and numbered.^ The reply, when any reply is necessary, closes the jjleadings on the part of the plaintiff. The defendant may now demur to the reply, or to a separate traverse to or avoidance of a defense or counterclaim contained in the reply, upon the ground that it is insufficient in law upon its face.^ If the reply is not demurrable the pleadings in the action are completed and at an end. There is no need of any pleading to put in issue any fact alleged in the reply, as each allegation of new matter therein is deemed controverted by the defendant, by traverse or avoidance, as the case requires,^ and an issue of fact arises upon the allegations implied by the statute.' It may happen that upon the decision of a demurrer to the complaint, answer or reply, the party demurring may find it necessai-y to withdraw his demurrer and plead over by way of answer or reply if the demurrer is overruled ; or in case the ' Code of Civil Pro., § 533. 2 Code of Civil Pro., §§ 494, 495. ^ Code of Civil Pro., § 514. < Code of Civil Pro., § 517. ' Code of Civil Pro., § 493. 6 Code of Civil Pro., § 522. ' Code of Civil Pro, , § 964. 12 System of Pleadings Introduced by the Code. When an issue of law or fact arises on the pleadings. demurrer is sustained, the party whose pleading is demurred to may find it necessary to amend his pleading. The court in its discretion may allow the party in fault to plead anew or amend upon such terms as are just.' And upon the application of either party the court may, and in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made, includ- ing the judgment or decree of a competent court rendered after the commencement of the action, determining the matters in con- troversy, or a part thereof. The supplemental pleading may be in addition to or in place of the former pleading.^ § .5. When an issue of law or fact arises on the pleadings. — An issue arises on the pleadings when a fact or a conclusion of law is maintained by one party and controverted by the other. Issues are of two kinds, of law and of fact.^ An issue of law arises only upon a demurrer. An issue of fact arises in either of the following cases : 1. Upon a denial contained in the answer of a material allega- tion of the complaint ; or upon an allegation contained in the answer that the defendant has not sufficient knowledge or infor- mation to form a belief with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer. 3. Upon a material allegation of new matter, contained in the answer, not requiring a reply, unless an issue of law is joined thereupon. 4. Upon a material allegation of new matter contained in the reply, unless an issue of law is joined thereupon.* There may be a complaint and an answer served in an action, which will present all the facts upon which the rights of the par- ties depend, without presenting any issue. Thus, if the plaintiff ' Code of Civil Pro., § 497. ' Code of Civil Pro., § 544. 3 Code of Civil Pro., g 963. " Code of Civil Pro., § 964. System of Pleadings iNTEODtrcED by the Code. 13 Truth, as a requisite of Code pleading. declares on a promissory note, and the answer merely sets up a counterclaim for goods sold, to whicli there is no reply, there is no issue.' § 6. Truth, as a requisite of Code pleading. — It is said that one of the principal objects of the Legislature in adopting the Code was to abolish the use of fictitious allegations in pleading, which had been permitted under the old system, and to introduce and require absolute verity instead, so that the parties in their allegations should have the same regard to truth that prevails be- tween members of society in their daily communications with each other.^ The theory of the Code is that the party plead- ing knows, or should know, beforehand, what is the truth of his case, and that he should state the truth and nothing but the truth in his pleading.^ This doctrine was applied with much strictness in the earlier cases' under the Code and was held to prohibit the pleader from stating a single cause of action, in different forms, in separate counts, to guard against a variance on the trial between the allegations and the proofs.* But it is not now considered that the statement of the same cause of action in different counts necessarily violates any provision of the Code ; ^ and it is conceded that there may be distinct and separate lines of fact all tending to establish a right to the same relief, which a careful pleader not only may, but should, embody in his pleading to meet a possible emergency on the trial. ^ The attempt of the framers of the Code to introduce absolute verity into pleadings has not been crowned with perfect success. - Pardee v. Schenck, 11 How. 500. A defendant cannot raise an issue of fact by denying matter not alleged in the complaint. Grinuell v. Churcli, 65 How. 399. ^Lacliey v. \^anderbilt, 10 How. 1.55; Bush v. Prosser, 11 N. T. 347; People Y. McComber, 18 N. Y. 315, 323. 'Dunning v. Thomas, 11 How. 281. ^Dunning v. Thomas, 11 How. 281; St. John v. Pierce, 23 Barb. 862; Lackey V. Vanderbilt, 10 How. 155; Churchill v. Churchill, 9 How. 552; Dicliens v. New York Cent. R. E. Co., 13 How. 228;, Whittierv. Bates, 3 Abb. 477; Xashv, McCauley, 9 Abb. 159; Fern v. Vanderbilt, 13 Abb. 73. ^ Blank v. Hartshorn, 37 Hun, 101 ; Longprey v. Yates, 31 Hun, 433; Birds- eye V. Smith, 33 Barb. 317; Velie v. Newark City Ins. Co., 65 How. 1. « Velie V. Newark City Ins. Co., 65 How. 1. 14 System of Pleadings Introduced by the Code. Truth, as a requisite of Code pleading. The Code permits a partj' suing on a note to set forth a copy of the instrument and to state that there is due him thereon from the adverse party a specified sum which he claims, and makes such an allegation equivalent to setting forth the instrument ac- cording to its legal effect.' Under this provision of the Code a complaint setting forth a copy of a note in effect alleges that all the persons whose names appear at the end of the note signed it as makers at the day it bears date, although as a matter of fact some of the persons whose names so appear may have received the note as a completed instrument and may have signed it long after its exeeiition, at the time of transferring it, and for the purpose of giving it credit with the transferee.^ This was not permissible under the old system of pleading, which required the declaration to state the contract according to its legal effect and as of the day when signed.'' Under the Code an antedated note is well pleaded if alleged to have been made on the day of its date. ^ It is evident from the form of verification prescribed that the framers of the Code intended that each allegation of a verified pleading should be true to the knowledge of the party verifying, or should be believed by him to be true, and that the pleading should disclose what allegations were made on personal knowl- edge and what allegations were made upon information and be- lief.^ But the method adopted to compel parties or their agents to swear to nothing but the truth in verifying pleadings has been found inefficient in practice ; and a verified pleading, all the alle- gations of which are apparently made upon the personal knowl- edge of the person verifying, will be held sufficient although it is evident that such person could not have had such knowledge.^ The Code does not wholly dispense with fictions. The series of pleadings authorized by it was too limited to raise an issue in all cases, and it was therefore provided that an allegation of new matter in the answer to which a reply is not required, or of new ' Code of Civil Pro., § 534. = Denick v. Hubbard, 36 Hun, 188. 2 Stone V. White, 8 Gray, 589. < Denick v. Hubbard, 36 Hun, 188. ' Code of Civil Pro., §§ 534, 530. « See Beyer v. Wilson, 46 Hun, 397. System of Pleadings Inteoduced by the Code. 15 Substitutes for cross-bill f urnisbed by tbe Code. matter in a reply, is to be deemed controverted by the adverse party by traverse or avoidance as the case requires.' It can hardly be claimed that this unreal, elastic, phantom pleading created by the statute for the purpose of raising the fiction of an issue is consistent with a system of pleadings founded upon abso- lute verity. Traces of legal fictions are still preserved in our system of pleading, though perhaps without the sanction of the Code. la an action brought b.y a parent for the seduction of a child the old fiction of loss of service is still retained as the foundation of the right of action, and must still be alleged in the complaint, although as a matter of fact, there was no actual loss of service, and the actual damage consisted in the expense incurred and labor per- formed in caring for the seduced in sickness or pregnancy re- sulting from the wrongful act, and in the wounded feelings and disgrace fiowing from it.^ In certain cases pleadings are " deemed " f amended and the courts are required to treat them as amended, although, in fact, no actual amendment has been made or con- templated.' But these are exceptional cases, and it will be con- ceded by all opponents of Code systems of practice and procedure that what the Code has failed to accomplish in compelling truthfulness in pleading is the result of changes made in the original plan on its adoption by the Legislature. § 7. Substitutes for cross-bill furnished by the Code. — Under the old system of pleading, a defendant might plead a set-off to the plaintiff's demand, or set up matter by way of recoup- ment, but if he had any affirmative relief to obtain, founded on any collateral claim and touching the matters in suit, and beyond what the scope of the complainant's suit would afford him, he was obliged to seek it by way of a cross-suit, and could not plead it by way of answer. The defendant, in such case, filed a cross-bill at the time of putting in the answer, and when both 'Code of Civil Pro., § 532. ' See Ingerson v. Miller, 47 Barb. 47; Badgley v. Decker, 44 Barb. 577; Fur- man V. Van Sise, 56 N. Y. 435; Certwell v. Hoyt, 6 Hun, 575. ' See Cohu v. Husson, 113 N. Y. 662; Foote v. Roberts, 7 Rob. 17; Bowdoin V. Coleman, 6Diier, 183; 3 Abb. 431; Bate v. Graham, 11 N. Y. 237; Clemens V. Davis, 4 Hun, 260. 16 System of Pleadings Inteoduced by the Code. Substitutes for cross- bill furnished by the Code. causes were at issue, obtained an order that they be heard to- gether. The Code permits a defendant to set up a counterclaim in his answer, which embraces all the matters wliich could formerly be pleaded either by way of recoupment, or set-off, and also secures to the defendant all the relief which either an action at law or a bill in equity or a cross-bill would have secured on the same state of facts.' The defendant is not compelled to resort to his remedy by way of counterclaim, but may bring an independent action against the plaintiff,^ except in a case where a judgment against him in the first action would establish that he had no right to maintain the second.^ A defendant was sometimes compelled to resort to a cross-bill under the old practice, in order to lay before the court a contro- versy between himself and a co-defendant as to matters involved in the suit, and to obtain a determination of his ultimate rights as against his co-defendant.'' The same relief may now be obtained by an answer, containing the proper demand, served upon the attorney for any defendant to be affected by the determination.* A defendant was also compelled to resort to a cross-bill in some cases, in order to bring before the court a defense which arose after issue and before the hearing.^ Such defenses may now be presented by supplemental answer.' A cross-action may still be necessary to the protection of a de- fendant's rights where he seeks to have new parties brought in. The Code, therefore, provides that where an application is made by a defendant to bring in another person as a party, the court may, and where the protection of the apphcant's rights requires it, must permit the defendant to bring a cross-action for that pur- 'Vassearv. Livingston, 13 N. T. 248; Bathgate v. Haskin, 59 N. T. 533; Leavenworth v. Packer, 52 Barb. 132; Gleason v. Moen, 2 Duer, 639; Boston Silk and Woolen Mills v. EuU, 37 How. 299; 6 Abb. (X. S.) 319; Scliwinger v. Raymond, 83 N. Y. 192. ^ Inslee v. Hampton, 8 Hun, 280; Gillespie v. Torrance, 25 Hun, 306. 3 See Blair v. Bartlett, 75 N. Y. 150; Dunham v. Bower, 77 N. Y. 76. « Story's Eq. PI., § 3D2. 6 Code of Civil Pro., § 521. « See Miller v. Penton, 11 Paige, 18; Tripp v. Vincent, 3 Barb. Ch. 613. 'Code of Civil Pro., §544. System of Pleadings Introduced by the Code. 17 Partial defenses — Libel and slander. pose. The cross-action must be brought in the same court, unlesa the order otherwise specially directs. If it directs that the action be commenced in another court, the latter court may, by order, at any time after the cross-action is commenced, remove to itself the original action, with like eiiect as if it had been brought therein. Unless the court otherwise directs, the original action and the cross-action mast be tried and judgment rendered tlierein, as if they were one action.' This provision of the Code furnishes the only remaining vestige of the old cross-bill as formerly known, and presents the only case in which it is either necessary or proper.^ §8. Partial defenses. — At common law a partial defense could not be pleaded for reasons peculiar to that system; and hence to avoid injustice, such matters which could not be pleaded were admissible under the general issue and without notice to the adverse party.^ The Code abolished the general issue, but it allows the defendant to set forth as many defenses and counter- claims as he may have,* including a partial defense to the entire complaint or to one or more separate causes of action therein set forth. A partial defense includes matter tending only to miti- gate damages in an action to recover damages for a breach of promise to marry, or for a personal injury, or an injury to property.^ § 9. Pleadings in actions of libel and slander. — The Code dispenses with the necessity of stating in a complaint in an action for libel or slander any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter and allows the plaintiff to state generally that it was spoken of or concern- ing him, and also allows the defendant to prove mitigating cir- cumstances, notwithstanding that he has pleaded or atteuapted to 'Code of Civil Pro., § 760. ' See American Bible Society v. Stark, 45 How. 160. 3 Wilmartli v. Babcock, 2 Hill, 194; Barber v. Rose, 5 Hill, 76; 31 Wend. 273. ^ Code of Civil Pro , § .507. ' Code of Civil Pro., g 508. See, also. Code of Civil Pro., § 536. 3 18 System of Pleadings Introduced bt the Code. Otlier changes in pleading introduced by tlie Code. plead a justidcation.^ Before the Code, the defendant could not give the truth, of tlie charge in justification unless it was specially pleaded ; and if pleaded, he could give no evidence in mitigation tending to disprove malice, as the justification wae regarded as a reiteration of the charge and conclusive evidence of malice. If he failed in his justification, the damages were enhanced. If he did not justify, he was precluded from giving any evidence in mitigation which tended to prove, or formed a link in the chain of proof, that the words complained of as slanderous were true. These perils in the path of the defendant were removed by the" Code.^ § 10. Otlier changes in pleading introduced by the Code. — Other, and equally important, changes in the rules of pleading were introduced by the Code, which will be noticed hereafter. The system of demurrers was greatly modified, and many defects which before could be reached only by special demurrer, became, under the Code, the subject of correction by motion. By reduc- ing the number of pleadings authorized and requiring a direct statement of the facts in controversy, the time required to bring the cause to issue was materially shortened and the possibility of a speedy judicial settlement of the controversy increased. Some- thing of precision was sacrificed by the change ; and some matters before determined before trial were carried to the Circuit for set- tlement ; and even the legislative intent to force causes to speedy trial and judgment in many cases miscarried. The system has never yet been adojjted which could wholly circumvent the inge- nuity of a skillful attorney in devising pretexts for delay and impediments in the way of the speedy trial of a hope]?fes cause when delay would operate to the benefit of his client. Many minor questions which before the Code were involved in doubt, were settled by an explicit provision in that act; and it must also be admitted that many matters before well settled and certain were rendered uncertain by loose expressions in the statute and the use of words which had no settled legal meaning. ' Code of Civil Pro.,§ 535. ' Spooner v. Keeler, 51 I^. Y. 527; Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 13 N. Y. 67; Klinck v. Colby, 46 N. Y. 437; Waohter v. Quenzer, 29 N. Y. 547. System of Pleadings Introduced by the Code. 19 Other changes in pleading introduced by the Code. It was the intent of the framers of the Code that the pleadings should be directed to the ultimate relief desired by the parties to the exclusion of all remedies merely provisional. Subsequent amendments have to a certain extent frustrated this original in- tention and made the right to a provisional remedy depend in cet"- tain cases upon the insertion in the complaint of allegations wholly foreign to the statement of a cause of action, and even made the right to a recovery in the action depend upon proof of these extrinsic matters. Under the Old Code, a plaintiff framing a complaint upon an express or implied contract, alleged the ex- istence of the contract and its breach in accordance with the pro- vision of that act requiring the complaint to contain a plain and concise statement of the facts constituting a caiise of action, and if other facts existed which entitled him to the arrest of the de- fendant, and he wished to avail himself of this remedy, instead of burdening his complaint with allegations of these extrinsic facts, he incorporated them in an affidavit, and on this applied for the provisional remedy. If he proved upon the trial the contract and its breach, he recovered judgment regardless of the extrinsic facts upon which he obtained his order of arrest. But under the pres- ent Code, as amended, a plaintiff framing a complaint on an ex- press or implied contract, other than a promise to marry, and de- siring to obtain an order for the defendant's arrest upon the ground that the defendant was guilty of a fraud in contracting or incurring the liability, or upon the ground that the defendant, since making the contract, or in contemplation of making the contract, has removed or disposed of his property with intent to de- fraud his creditors, or is about to remove or dispose of the same with like intent, must allege these facts in his complaint, although they constitute no part of his cause of action, and must prove them upon the trial or fail in the action.^ These allegations of extrinsic matters have now become pertinent and material and can no longer be treated as mere surplusage;^ but the amendment 'Code of Civil Pro., §549. s McDonoiigh v. Dillingham, 43 Hun, 493. 20 General Rules of Pleading Pleading defined — Every material fact Rhould be pleaded. which reverses tlie old rule' and makes them pertinent and mate- rial, either engrafts an exception upon other provisions of the Code, or requires the application of new rules to their construc- tion. Since the adoption of the Code, certain statutory proceedings denominated actions, but in effect special proceedings, have lost their peculiar features, and are now governed by the Code both as to practice and pleading ; and the practice and pleadings in in- ferior courts have been made to conform tnore nearly to that of the higher courts. The tendency of the Code has been toward uniformity in every step in the progress of all actions in all courts. CHAPTER II. General Rules of Pleading. Section 1. Pleading defined. — Pleading is the statement, in logical and legal form, of the facts which constitute the plaintiff's cause of action or the defendant's ground of defense. It is the formal mode of alleging that on the record which would be the support or defense of the party in evidence.^ § 2. Every material fact should be pleaded. — The ofHce of a pleading is to apprise the adverse party of the facts upon which the pleader relies to sustain his cause of action or defense. There- fore the general rules of pleading require each party to state in his pleading every fact which he must prove upon the trial in or- der to establish prima facie a cause of action or defense.* The failure of a party to allege in his pleading a fact essential to his case may prove fatal on the trial unless the court permits ' See Graves v. Waite, 59 N. Y. 156; Lee v. Ellas, 3 Sandf. 736. n Chitt. PI. 195; Read v. Brookman, 3 Term R. 159; Hotham v. East India Co., Doug. 278; Boyce v. Brown, 7 Barb. 80. 'Van Sohaicli v. Winne, 16 Barb. 89. ■■ Prindle v. Carutliers, 15 N. T. 435; Van De Sande v. Hall, 13 How. 458; Allen V. Patterson, 7 N. Y. 476; Reining v. City of Buffalo, lOa N. Y. 308, 312. General Rules of Pleading. 21 No judgment can be based on a cause of action or defense not pleaded. the omitted averment to be supplied by amendment. No proof can properly be received of any issuable fact not alleged in the pleadings if the proper objection is taken.' The court may upon the trial, in the furtherance of justice, amend a pleading by inserting an allegation material to the case ; but the court may impose such terms as it deems just as a condition of the amend- ment/ and the necessity of asking for an amendment always places the moving party at a disadvantage on the trial. § 3. No judgment can be based on a cause of action or de- fense not pleaded. Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly admin- istration of justice without tbem. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but on the other hand will tend to ensnare and mis- lead his adversary.^ If the plaintiff is to recover it must be upon the case as it is substantially embodied in the complaint ; and if the defendant can succeed in defeating wliat otherwise appears to be a legal and valid claim, it must be upon some denial or defense alleged in the answer. To avoid the possibility of surprise the law requires tliat each party shall be apprised substantially of the ground intended to be relied upon by his adversary in the course of the trial when that may take place ; and when the pleadings fail to do that, the party chargeable with the failure can derive no advantage from evidence appearing upon the trial, tending to establish the existence of a cause of action or defense not in- cluded in his pleadings.'' It does not alter the rule or affect its : Bailey v. Eyder, 10 N. T. 363, 370; Ferguson v. Ferguson, 2 N. Y. 360; Kelsey v. Weston, 2 X. Y. 500. 2 Code of Civil Pro., g 733. 3 Southwick V. First Xat. Bank, 84 X. Y. 430; 01 How. 164. * Bailey v. Ryder, 10 X. Y. 363; Ferguson v. Ferguson, 2 N. T. 360; Kelsey V. Weston, 3N. Y. 500; Dewey v. Moyer, 9 Hun, 473; 73 N. Y. 70; Brazill v. Isham, 13 N. Y. 9; Truesdell v. Sarles, 104 N. Y. 164; Clark v. Post, 113 N. Y. 17; Southwick v. First Nat. Bank, 84 N. Y. 430; Rome Exchange Bank v. Eames, 1 Keyes, 588; Wright v. Delafield, 25 N. Y. 266; Hall v. United States Reflector Co., 30'Hun, 375 ; McClung v. Foshour, 47 Hun, 421; Arnold v. Angel, 62 N. Y. 508; Field v. Mayor, etc., of N. Y., 6 N. Y. 179; Hudson v. Swan, 83 N. Y. 553. 22 General Rules of Pleading. Facts should be pleaded, not evidence of the facts. application, that the cause is one of equitable cognizance. In equity the proofs and allegations must correspond. The examination of the case by the court is contined to the issues made by the plead- ings, and proofs without the requisite allegations are as unavailing as sucli allegations would be without the proofs requisite to sup- port them.^ Neither does it affect this rule that it is probable that the failure to allege the cause of action or defense has not misled the adverse party. The latter cannot be deprived of his objection to a recovery on grounds not alleged in the pleadings of his opponent by any assumption or speculation that he has not been injured.^ But although a pleading does not in terms set forth all of the facts necessary to support a particular cause of action or defense, if, on the trial, evidence supporting it is admitted without objec- tion, and no question is raised on the trial as to the sutEciency of the pleading to sustain the cause of action or defense proved, the party may have judgment in accordance with the case made by the evidence.' So where a case is tried without reference to the plead- ings, and no exception is taken raising the question that a party is precluded thereby from giving evidence showing the actual transaction, the judgment may be in accordance with the proofs.* If, however, a party fails to prove the cause of action or defense which he has set up in his pleadings, the objection is taken on the trial, and no amendment of the pleading is asked for or ordered, a judgment for such party, based upon a cause of action or defense entirely separate and distinct from that alleged, will bereversed on appeal.' § 4. Facts should be pleaded, not evidence of the facts. It is a fundamental rule of pleading under all systems that the facts constituting the cause of action or defense should be pleaded ' Providence Rubber Oo. v. Goodyear, 76 U. S. (9 Wall.) 788, 793. 2 Southwick V. First Nat. Bank, 84 N. Y. 420. 3 Knapp V, Simon, 96 N.Y. 384; Fallon v. Lawler, 103 N. Y. 338; Liverpool, etc., Ins. Co. v. Guuther, 116 U. S. 113; Williams v. People's Fire Ins. Co., 57 N. Y. 274. ^ Cowing V. Altman, 79 N. Y. 167. ' Southwick v. First Nat. Bank, 84 N. Y. 420; 61 How. 164; Gasper v. Adams, 28 Barb. 441. Geneeal KtixES OF Pleading. 23 Facts and not conclusions of law should be pleaded. and not the evidence of such facts.^ The facts which are to be alleged under the Code are issuable facts, or in other words, facts essential to the cause of action or defense, and not those facts which merely go to establisli such essential facts.^ The criterion in every sucb case is, whether the allegation in question can be made the subject of a material issue. If it can, it has a right to be found in the pleadings ; if not, it ought not to be there.* A refusal to deliver property on demand may be evidence of a con- version of the property ; but the ultimate fact to be established is the conversion, and an allegation of the demand and refusal would be an immaterial averment and should not be pleaded* § 5. Facts and not conclusions of law sliould be pleaded. It is a well-settled rule of pleading that the pleader must allege facts and not conclusions of law.^ An allegation of a conclusion of law without the facts upon which it is based is an immaterial averment.^ The pleader may not aver a legal conclusion as an equivalent for the group of separate facts from which it is an in- ference.' The allegations of a pleading should be such, and so stated, as to permit a distinct traverse and evolve a definite issue.* No issue can be framed upon an allegation as to the law.' And ' Bogardus v. New York Life Ins. Co., 101 N. Y. 328, 343; Kelly v. Breusing, 33 Barb. 123; Walter v. Lockwood, 23 Barb. 228; 4 Abb. 307; Oakley v. Town of Mamaroneck, 39 Hun, 448; Knowles v. Gee, 4 How. 317; SBarb. 300; Harlow V. Hamilton, 6 How. 475; Boyce v. Brown, 7 Barb. 80; Hyatt v. KcMabon, 25 Barb. 457; Shaw v. Jayne, 4 How. 119; Wooden v. Strew, 10 How. 48; CaMU V. Palmer, 17 Abb. 196; Badeau v. Niles, 9 Abb. N. C. 48. ' Knowles v. Gee, 4 How. 317; Williams v. Hayes, 5 How. 470. ' Williams v. Hayes, 5 How. 470. * Thayer v. Gile, 42 Hun, 268; Simser v. Cowan, 56 Barb. 395. 5 Swart V. Boughton, 35 Hun, 281; Scofield v. Whitelegge, 49 N. Y. 259; Commercial Bank of Rochester v. City of Rochester, 41 Barb. 341; Thomas v. Desmond, 12 How. 321; Alabama v. Burr, 115 U. S. 413; Laffey v. Chapman, 9 Col. 304. 6 Scofield V. Whitelegge, 49 N. Y. 259. ■■ Cook V. Warren, 88 X. Y. 87; Knapp v. City of Brooklyn, 97 N. Y. 520; City of Buffalo v. Holloway, 7 N. Y. 493; Sheridan v. Jackson, 72 X. Y. 170; Butler V. Viele, 44 Barb. 166; Bentley v. Jones, 4 How. 201; Laffey v. Chap- man, 9 Colorado, 304. 8 Cook V. Warren, 88 N. Y. 37. 9 People V. Commissioners of Highways, 54 N. Y. 276. i!4 General Roles of Pleading. What are facts and what are conclusions of law, when the facts are stated from which the court may draw tlie proper legal conclusions it is neither necessary nor proper to state the conclusions.^ To the general rule that a pleading must state facts and not conclusions of law, there are certain statutory exceptions. The Code permits a party pleading a judgment or other determination of a court or officer of special jurisdiction to allege that the judg- ment or determination was "duly made" or "duly given " with- out stating the facts conferring jurisdiction.^ It also allows a party pleading the performance of a condition precedent in a con- tract to state generally that he, or the person whom he represents, "duly performed" all the conditions on his part, without stating the facts constituting performance.^ It also allows the pleader to allege that there is " due " him a specified sum on an instrument for the payment of money only, a copy of which is set forth in the pleading.'' It also allows the plaintiff in replevin to allege generally that the defendant " wrongfully " took the chattel, with- out setting forth the facts showing that the taking was wrongful.'^ These and similar exceptions will he moi-e fully noticed hereafter. § 6. What are facts and what are conclusions of law. — There is a broad distinction between the statement of a truth and the allegation of a fact. The terms " fact " and " truth ""are often used in common parlance as synonymous, but as emploj^ed in refer- ence to pleading, they are widely different. A fact in pleading is a circumstance, act, event or incident, while a truth is the legal principle which declares or governs the facts and their operation and effect.'' The facts which the Code requires to be set forth are not propositions which are true in law, biit physical facts capable as such of being established by evidence, oral or dociunentary, and from which, when so established, the right to maintain the 1 Sheldon v. Lake, 40 How. 489; 9 Abb. (N. S.) 306; Lawrence v. Wright, 2 Duer, 673. ° Code of Civil Pro., § 533. a Code of Civil Pro., § nS'i. 4 Code of Civil Pro., § 584. 6 Code of Civil Pro., § 1731. « Drake v. Cockroft, 4 E. D. Smith, 34; 10 How. 377; 1 Abb. 203. General Rules oe Pleading. 25 What are facts and what are conclusions of law. action or the validity oT the defense follows as a necessary conclu- sion of law.^ Ordinarily the narration of a transaction, whether by stating all the details of it or by stating those details according to their legal eifect, is the narration of a fact. A statement of a conclusion of law is usually a statement of the riglit or liability flow- ino; from certain facts. An allegation that A. loaned B. a dollar is the fact, and that B. owes A. a dollar is the law. An allegation that the defendant " converted " the property of the plaintiff is an allegation of a fact.^ An allegation that a person is of un- sound mind, is an allegation of a fact and not of a conclusion of law.^ So an allegation that by a foreign law " the title to all the personal propertj' of which the testator was possessed at the time of his decease vested immediately thereafter in the plaintiff," is not an allegation of law but of fact.* So in an action for a breach of covenant of seizin an allegation tliat the defendant was not the true owner and was not seized of the premises in fee is an allega- tion of a matter of fact.^ An allegation that the plaintiff was and is entitled to the posses- sion and the rents and profits of lands," or that a party to a con- tract failed to fulfill his obligations,'' or that the ])laintiff paid money by compulsion and not voluntarily,^ or that a gi-antee pro- cured a deed by false and fraudulent representations and prac- tices, and by undue and improper influences,^ or that the defend- ant wrongfully detained the property mentioned in the complaint,'" or that a specified act was contrary to statute,^' or was done pur- suant to statute,'^ or that it was the duty of a party to do or to - Lawrence v. Wright, 3 Duer, 673; Clay County v. Simonsen, 1 Dak. T. 403. = Thayer v. Gile, 42 Hun, 268; Berney v. Dresel, 63 How. 47] ; 83 Hun, 34. ^ Riggs V. American Tract Society, 84 N. Y. 830. '-Berney v. Drexel, 63 How. 471; 33 Hun, 34. ' WooUey v. Newcombe, 87 N. Y. 605. Whether an allegation that a person is the owner of land is a conclusion of law or the ultimate fact depends upon the context. Turner v. White, 73 Cal. 299. « Sheridan v. Jackson, 73 N. Y. 170. ' Van Schaick v. Winne, 16 Barb. 89. * Commercial Bank of Rochester v. City of Rochester, 41 Barb. 341. s Butler V. Viele, 44 Barb. 166. '» Scofield V. Whitelegge, 49 N. Y. 259. " Smith V. Lockwood, 13 Barb. 209. "People V. McCumber, 27 Barb. 633; 15 How. 186. 4 26 General Rules of Pleading. Stating facts according to their legal effect, refrain from doing a specified act/ or that' an act is nnlawfnl,^ oi that an assessment, levy and sale, etc., were illegal and void anc not according to the provisions of the statute,' or that the contraci set forth in the complaint is inoperative and void for want of an adequate and sufficient consideration therefor,'' is an allegation oi a conclusion of law. So an allegation that an attachment waj illegal, nnauthorized and void,'^ or that an execution and judg- ment are void," or that the defendant is "indebted" to the plain- tiff in a specified sum,'' or that the plaintiff is " an innocent pur- chaser,"^ or "that the plaintiffs became subscribers to the capital stock " of a corporation by signing and delivering a certain agree- ment among themselves, is an allegation of a conclusion of law.' § 7. Stating facts according to tlieir legal effect. — By the elementary rules of pleading facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it, and this rule of pleading still exists under the Code." A plain- tiff' in stating a cause of action against a corporation may, and should state the acts complained of as being the acts of the corpo- ration itself. It is neither necessary nor proper to aver in the complaint that the acts were done by and through the authorized ' City of Buffalo v. HoUoway, 7 N. Y. 493; McLaughlin v. Campbell, 14 Week. Dig. 194; Taylor v. Atlantic Mut. Ins. Co., 3 Bosw. 106; Corey v. Mann, 6 Duer, 679; 5 Ahb. 91; 14 How. 163. But see Gregory v. Oaksmith, 12 How. 134. ^ Ensign v. Sherman, 18 How. 35; 14 How. 439; Knapp v. City of Brooklyn, 97 N. Y. 520. ^ Swart V. Boughton, 35 Hun, 281. * Hammond v. Earle, 58 How. 426. So an allegation that " for a good and sufficient consideration " further time was given is a mere legal conclusion. Winne v. Colorado Springs Co., 3 Colorado, 155. * Sprague v. Parsons, 12 Daly, 392; 14 Abb. N. C. 330. 'Louisville, Evansville, etc., Ry. Co. v. Payne, 103 Ind. 183. ■"Butts V. Phelps, 79 Mo. 803; Merritt v. Millard, 5 Bosw. 645; Lienan v. Lincoln, 2 Duer, 670; Moore v. Hobbs, 79 N. C. 535. 8 Wing V. Hayden, 10 Bush (Ky.), 276. 'Wheeler v. Floral Mill, etc., Co., 9 Nev. 254. ■"Thayer v. Gile, 43 Hun, 268; Canada Southern R. R. Co. v. Gebhard, 109 D". S. 537; Gasper v. Adams, 38 Barb. 441; Boyce v. Brown, 7 Barb. 80; Pattisou V. Taylor, 8 Barb. 250; Coggill v. American E.xch. Bank, 1 N. Y. 113; Stewart V. Travis, 10 How. 148; Brown v. Champlin, 66 N. Y. 214. General Rules of Pleading. 27 Stating facts according to tbeir legal effect. agent of the corporation. ^ So in an action against a principal to recover damages sustained through false representations made by an agent, the plaintiff may properly allege that the principal him- self committed the wrong.^ So in an action against a principal for goods sold and delivered, it is proper to allege a sale and de- livery to the defendant without alleging the instrumentality of the agent who made the purchase.^ So a principal suing upon an oral contract made for him by an agent may allege generally that it was made by him, and prove the averment by showing that he made it through an agent.'' And generally, in pleading a contract made by a duly authorized agent for and on behalf of his principal, it is sufficient to aver it as the contract of the principal without disclosing the fact of tlie agency.'' A party may allege generally that the defendant converted to his own use the property described in the pleading, without giving a narrative of the acts performed by the defendant in order to accomplish the conversion.* Where the liability of a party depends upon a promise it is not necessary to allege the promise if facts are averred from which a promise will be implied.^ Under the present system of pleading a party is at liberty to state the actual facts which raise a cause of action in his favor or a defense to an action.* In an action to set aside a judgment obtained without consideration and by fraud and collusion, the plaintiff may allege facts which, if proved, authorize the inference that the judgment was without consideration, and fraudulently and coUusively obtained, without using the word "fraud" or "fraudulent" to characterize the transaction.' Where facts are pleaded from which an ultimate fact necessarily ' Lubricating Oil Co. v. Standard Oil Co., 43 Hun, 153. « Bennett v. Judson, 21 N. Y. 238. 3 Sherman v. New York Central R. R. Co., 23 Barb. 239. * Ohio, etc., Ry. v. Nickless, 73 Ind. 383. « Weide v. Porter, 23 Minu. 429 ; Moore v. McClure, 8 Hun, 557, Contra St. John V. Griffith, 1 Abb. 39. « Thayer v. Gile, 43 Hun, 368; McAllister v. Kuhn, 96 U. S. 87. ' Farron v. Sherwood, 17 N. Y. 327; Cropsey v. Sweeney, 27 Barb. 310; 7 Abb. 129; Glenny v. Hitchius, 4 How. 98. 8 Barney v. Worthington, 37 N. Y. 113; Hemmingway v. Poucher, 98 X. Y. 281. 9 Whittlesey v. Delaney, 73 N. Y. 571. 28 GENKBA.L Rules of Pleadi.vg, Aaticipatiag possible defenses. results, it is the same as though the ultimate fact were specidcalli pleaded.^ But if facts are alleged in detail followed by a genera statement of the ultimate fact, the detailed statement will contro the generality, and in case of conflict will prevail.^ § S. Anticipating possible defenses. — It is neither necessary nor pi'oper for tlie party pleading to anticipate and negative a pos sible plea of the adverse party.' Thus, it is unnecessary for th( plaintiff to allege in his complaint any facts or circumstances t( anticipate or avoid the statute of limitations.'' That objection car be taken only by answer.' So in an action for negligence it is un necessary to aver in the complaint that the injury complained o: occurred without fault of the plain tiff.'' So where a pleading alleges the existence of an agreement which would be void by th( statute of frauds if not in writing, it is not necessary to aaticipat( the defense and allege that the agreement was in writing.^ So ir an action for goods sold and delivered it is not necessary to alleg( non-payment of the purchase-price, although it is proper to do so. A plaintiff suing upon o. quantum meruit for work, labor andser vices performed under a contract to labor for a definite period, neec not allege in his comi^laint an excuse for not fully performint his contract. That is a matter for reply to a defense interposing ' Osborne v, Clark, 60 Cal. 633. » Clark V. Bowe, 60 How. 98. ' Hunt V. Hudson River Fire Ins. Co., 2 Diier, 481; Cahen v. Gontinenta Life Ins. Co., 69 N. Y. 300; Claflin v. Taussig, 7 Hun, 223; Williams v. Tilt 3S N. Y. 319, 323; National Benefit Assoc, v. Bowman, 110 Ind. 355. ^ Sands v. St. Jolin, 36 Barb. 638; 23 How. 140; Bsselstyue v. Weeks, 12 N" Y. 635; 2 Abb. 273 ; Butler v. Mason, 16 How. 546; 5 Abb. 40. ' Code of Civil Pro., i^ 418; People v. Williamsburgh, etc., Co., 47 X. T 586; Baldwin v. Martin, 14 Abb. (N. S.) 9; Dazengremel v. Duzengremel, 2^ Hun, 457. " Urquhart v. City of Ogdensburg, 23 Hun, 75 ; Wolfe v. Supervisors o Richmond County, 19 How. 370; Haskell v. Village of Penn Yan, 5 Lans. 43 48; Melhado v. Poughkeepsie Transp. Co., 27 Hun, 99. ' Livingston v. Smith, 14 How. 490; Hilliard v. Austin, 17 Barb. 141; Mars ton V. Sweet, 66 N. Y. 30G; New York Trust & Loan Co. v. Helmer, 12 Hun 35; Horner v. Wood, 15 Barb. 371; Stern v. Drinker, 3 E. D. Smith, 401 ; Elt ing V. Vanderlyn, 4 Johns. 237. * Salisbury v. Stinson, 10 Hun, 243; Rossiter v. Schultz, 62 Wis. 655. Se( Wheeler & Wilson Mauuf. Co. v. Worall, 80 Ind. 297. Genkeal Rules of Pleading. 29 Anticipating possible defenses. the contract.' A complaint in an action for a statutory penalty need not negative mere matters of defense.^ An exception in a statute must be negatived in pleading, while a proviso need not;^ and this, it is said, is on the groiind that an exemption by proviso is a matter of defense that a party must show to relieve him of liability.* Where an exception is embodied in the enacting clause of a statute, he who complains for a violation of the statute must plead the exception.^ Where an exception is incorporated in the body of the clause of the statute, he who pleads the clause ought to plead the exception. But where there is a clause for the bene- fit of the pleader, and afterward follows a proviso which is against him, he may plead the clause and leave it to his adversary to show the proviso.^ Where a clause or section of a statute giving an action for an offense contains a proviso which forms no part of the plaintiff's title and merely furnishes matter of excuse for the defendant, it need not be negatived in the complaint.' A complaint in an action against a woman need not allege whether she is married or single, but if it alleges that she is mar- ried, it must state facts sufficient to show a liability, notwithstand- ing the coverture.^ Where an action is brought against a town to recover damages for its neglect to keep a bridge in repair, it is not necessary to insert in the complaint , an averment that the defendant had money with which to make the necessary repairs.^ Matters which merely anticipate a defense may be stricken out on motion.'" Wolfe V. Howes, 30 N". Y. 197. •' Bell V. Wallace, 81 Ala. 433. 3 Harris v. White, 81 N. Y. 533. * Spiers v. Parker, 1 Term R. 141. ^ First Baptist Churcli of Utica v. Utica & Sclienectady R. R. Co., 6 Barb. 313; Harris v. White, 81 N. Y. 533. ' Jones V. Axen, 1 Ld. Raym. 119. ' Sheldon v. Clark, 1 Johns. 513; Bennet v. Hiird, 3 Johns. 438; Teel v. Fonda, 4 Johns. 804. And see King v. Bryan, 3 Str. 1101; Steele v. Smith, 1 B. & Aid. 94. 8 Broome v. Taylor, 76 N. Y. 564. 9 Oakley v. Town of Mamaroneck, 39 Hun, 448. And see Griffith v. Follett, 20 Barb. 630. "> Brooks V. Bates, 7 Col. 576. 30 Gkneeal E.DLES OF Pleading. That which the law implies need not be alleged. § 9. That which the law implies need not be alleged.— A direct allegation of a fact which the law implies is not necessary under the Code, though the insertion of such an allegation in a pleading is common and often proper.' A direct allegation that a publication was false and malicious is not necessary to a complaint in an action for libel, which sets forth a publication which is unambiguous and incapable of being understood in any other sense than as defamatory to an extent that must necessarily expose the plaintiff to contempt and ridi- cule."'' An averment that on a specified day the defendant made an instrument in writing is equivalent to an averment of the delivery of the instrument,^ and an averment of indorsement to the plain- tiff legally imports a. delivery." An allegation that certain drafts were accepted by a corporation by its treasurer includes an aver- ment of authority to the treasurer to accept the drafts," and an averment of a decree for a bankrupt's discharge includes an alle- gation of the decree in bankruptcy, the appointment of an as- signee, and an assignment to the latter as necessary incidents of the discharge.*^ An allegation of a refusal implies a demand, and is equivalent to an allegation of demand and refusal.' Where facts are stated from which the law implies a promise, it is not necessary to the legal sufficiency of the pleading that it should contain a direct averment of the promise.* Whatever is necessarily understood or implied in a pleading ' Hunt V. Bennett, 19 N. Y. 173; Van Rensselaer v. Bonesteel, 24 Barb. 365. 'Hunt v. Bennett, 19 N. T. 173. s Churchill v. Gardner, 7 Term R. 596; Peets v. Bradt, 6 Barb. 663; Prindle V. Caruthers, 15 N. Y. 425; Meyer v. Hibsher, 47 N. Y. 265; Keteltas v. Myers, 19 N. Y. 231; La Fayette Ins. Go. v. Rogers, 30 Barb. 491; Romans t. Langevin, 34 Minn. 313. ^Bank of Lowville v. Edwards, 11 How. 216; Qriswold v. Laverty, 3 Duer, 691; New York Marbled Iron Works v. Smith, 4 Duer, 363. ' Partridge v. Badger, 25 Barb. 146. « Dewey v. Moyer, 9 Hun, 473, 484; 72 N. Y. 70. 'Divan v. Loomis, 68 Wis. 150. "Farron V. Sherwood, 17 N. Y. 237; Cropsey v. Sweeney, 27 Barb. 310; 7 Abb. 139; Bushnell v. Chautauqua Co. Nat. Bank, 10 Hun, 378; Glenny v. Hitchins, 4 How. 98; Jordan & Skaueateles Plank Road Co. v. Morler, 23 N. Y. 553. General Kules of Pleading 31 Matters judicially noticed need not be pleaded. forms part of it as much as if it was expressed,^ and facts im- pliedly averred may be traversed in the same manner as if they were expressly averred.^ When the complaint in an action on a promissory note sets forth a copy of the note and states that there is due to the plain- tiff thereon a specified sum, this implies that the plaintiff owns the instrument in some legal manner of deriving title, and a general denial will put that fact in issue as though it had been expressly alleged.^ But where the plaintiff is not an original party to the note, his title must be expressly or impliedly alleged, and merely setting out a copy of the note with an allegation that it was made by the defendant, indorsed by the payee, and was not paid at maturity, is not sufficient.' § 10. Matters judicially noticed need not be pleaded. — It is never necessary in pleading to state matters which the court is supposed to know, and of which it is bound to take notice,' and therefore it is unnecessary to state mere matter of common or public statute law,'' matters of public history', or any other mat- ter which ought to be generally known within the limits of the jurisdiction of the court.^ But foreign laws,^ the laws of other States," private statutes," and by-laws of municipal corporations,-'" must be pleaded. "Partridge v. Badger, 25 Barb. 146; Daniels v. Tearney, 102 U. S. 415. ' Prindle v. Caruthers, 15 N. T. 425; Haight v. HoUey, 3 Wend. 263; Marie V. Garrison, 8.3 N. Y. 14, 23; Bellinger v. Craigue, 31 Barb. 534; Chambers v. Jones, 11 East, 406. ^ Ricbter t. Kramer, 19 Daily Reg. , No. 39. See New York Marbled Iron Works V. Smith, 4 Duer, 863; Burrall v. De Groot, 5 Duer, 379. ■• Gurnee v. Beach, 40 Hun, 108. *Shaw V. Tobias, 3 N. Y. 188; Stephens on Plead. 351-353. « Shaw V. Tobias, 3 N. Y. 188; People v. Ottawa Hydraulic Co., 115 111. 281. ' People V. Snyder, 41 N. Y. 397; Swinerton v. Columbian Ins. Co., 87 N. Y. 174. ' Smith V. New York Cent. R. R. Co. , 43 Barb. 255. And see 3 Wait's Law &Pr. (5th ed.) 377-381. ' Monroe v. Douglass, 5 N. Y. 447. '"Holmes v. Broughton, 10 Wend. 75; Cutler v. Wright, 22 N. Y. 472. ui Bla. Com. 85; Steph. on Plead. 347. 1' Harker v. Mayor of New York, 17 Wend. 199; People v. Mayor of New York, 7 How. 81. 32 General Rules of Pleading. Hypothetical pleading — Certainty as to time, place and value. §11. Hypothetical pleading. — Under the old system pleading it was a rule that a plea must either traverse or deny, confess ami avoid. ^ This rule has been frequently applied un( the Code,^ and is as necessary under the present system as it \ under the old.^ This rule necessarilj^ prohibits the statement facts in a hypothetical or alternative form ; and under it a coi is bad which assumes to set up matter in avoidance of a charge the complaint, but does not confess the charge,"' as, for example count which alleges that if the defendant spoke any slanden words of and concerning the plaintiff of the nature of th charged in the complaint, they were confidential and privileg and were not spoken in malice.^ But this rule is not inflexil and the courts have sometimes permitted a defense to be hy thetically predicated upon a fact alleged in the complaint, : presumptively within the knowledge of the defendant, in c nection with a denial of any knowledge or information sutfici( to form a belief.*^ § 12. Certainty as totinie, place and value. — Under the ^ system of pleading it was necessary to state the time when evi material and traversable fact happened, but generallj^ it was ] necessary to prove the time as alleged.' Under the Code, if i time when a fact happened is material to constitute a cause of tion or a defense, it must be stated,* and a faihtre to state it r ders the pleading demurrable.' In an action against the indor of a note, the time when notice of dishonor was given is mater: and allegation that notice of dishonor was given, without an aS ' 1 Chitty's PI. (14tb Am. ed.) 536. ' Lewis V. Kendall, (i How. 59; Buddington v. Davis, 6 How. 401. 3 Goodman v. Robb, 41 Hun, 605. * McMurray v. (iiffiord, 5 How. 14; Boyce v. Brown, 7 Barb, 80; Conger Johnson, 2 Denio, 96; Arthur v. Brooks, 14 Barb. 533; Wi€s v. Fanning How. 543; Hamilton v. Hough, 13 How. 14. ' Gfoodman v. Robb, 41 Hun, 605; Buddington v, Davis, 6 How. 401. ' Brown v. Ryckman, 12 How. 813; Ketcham v. Zerega, 1 E. D. Smith, 5 Taylor v. Richards, 9 Bosw. 679; Dovan v. Diusmore, 33 Barb. 86; 20 He 503. ' 1 Chitty's PI. 357. 8 People V. Ryder, 12 N. Y. 433. ' Patterson v. Baker, 6 N. Y. Sup. Ct. (T. & C.) 76; 3 Hun, 398. General Rules of Pleading. 33 Certainty as to time, place and value. gation when such notice was given, is an immaterial averment, and does not constitute or aid in constitutinsr a cause of action. But if the nature of the controversy is such that a statement of tlie facts, without a statement of the time when they occurred, would constitute a cause of action or defense, an allegation as to the time is immaterial, and its absence does not render the pleading de- murrable. Thus an allegation that the defendant assaulted and beat the plaintiff would be a sufficient allegation of the material fact, without any statement of the time of the assault.^ When the only materiality of the statement of the time is to show the order in which events occurred, it is snfSeient to aver that a certain event occurred after another without giving the date of either. - It was also a general rule of pleading imder the old system, that the place as well as the time of every traversable fact should be stated,^ and that if the matters alleged were local in their na- ture, the truth of the venue was material and of the substance of the issue.'' The question of where a contract was made, if material to give it validity or to aid in its construction, is for the jury upon the evidence, and like every other fact should be averred in pleading that the judgment may be in accordance with the allegations as well as the proofs of the parties. If a plaintiii seeks to enforce a contract prohibited by the laws of the State in which he brings his action, he must plead facts showing that the contract was not within the statute and was not vitiated by it, by an averment of the place where the contract was made, and that by the laws of that place sugji contracts were autliorized. In such case it is not for the defendant to allege as a matter of defense that the con- tract was made within the State and is, therefore, illegal ; as the place of making the contract is so intimately connected with the plaintiff' s case, and is so material to his right of action, that its affirmation is essential to the validity of his complaint. 1 See People v. Ryder, 12 N. T. 433. ' Brown v. Harmon, 21 Barb. 508; Kellogg v. Baker, 15 Abb. 286, 289; Mar- tin V. Kanouse, 2 Abb. 330. ' Gilbert v. Fairchild, 4 Denio, 80. * Stepb. PI. 288; 1 Chitt. PI. 284; Vermilya v. Beatty, 6 Barb. 429. ' Thatcher v. Morris, 11 N. Y. 437. 5 34 General Rules of Pleading. Conciseness in pleading. Where one agrees to sell and deliver at a particular place anc the other agrees to receive and pay, an averment of a readiness and willingness to receive and pay at that place is indispensably necessary to a good complaint in an action by the purchaser foi non-deliver3^^ "Where an action is brought in a County Court the complaint must allege that the defendant is a resident of the county in order to show jurisdiction both of the person of the defendant, and oi the action.^ Allegations of value have been held material in actions for ser- vices or goods sold,^ but ordinarily go only to the amount of dam- ages and are not traversable.* In actions of trover the plaintifi must prove the value of the articles converted as the basis of his recovery, and may allege the same to furnish & prhna facie meas- ure of damages ; but such an allegation in the complaint is need- less, and if denied, raises no technical issue.^ § 13. Conciseness in pleading. — One of tlie principal rules of pleading under the Code is that which requires conciseness in all statements of fact. The complaint must contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition,* and a statement of new matter in an answer or reply must be in ordinary and concise language- without repetition.' Irrelevant, redundant or scandalous matter contained in a pleading may be stricken out upon the motion oi a person aggrieved thereby.* The rule requiring a concise statement of the facts constituting each cause of action without unnecessary repetition does not pre- ' Clark V. Dales, 20 Barb. 43, « Gilbert v. York, 41 Hun, 594; Judge v. Hall, 5 Lans. 69. 3 Gregory v. Wright, 11 Abb. 417. ■•McKensie v. Farrell, 4 Bosw. 193; Stuart v. Binsse, 10 Bosw. 436; Connoss V. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 E. D. Smith, 13 ; Wood- ruff V. Cook, 25 Barb. 505. 6 See Connoss v. Meir, 2 E. D. Smith, 314; WoodrufE v. Cook, 25 Barb. 505; Thompson v. Halbert, 109 N. Y. 329, 332. "Code of Civil Pro., § 481. ' Code of Civil Pro., §§ 500, 514. 8 Code of Civil Pro., s; 545. General Rules of Pleading. 35 Consistency in pleading. elude the plaintiff from stating, in separate counts, several causes of action arising out of the same transaction, if the statement of each cause of action is probably needful to prevent a failure of justice in consequence of a variance between the pleading and the proof.^ Thus in an action for labor and services, the plaintiff may set forth in one count that the labor and services veere per- formed under a special contract at an agreed price, and if he is in doubt as to his ability to satisfactorily establish the contract on the trial, he may add another count for the same services upon a quantum meruit? Each cause of action and each defense separately stated in a pleading must be complete in itself and cannot be aided by alle- gations in another count in the same pleading to which it does not so refer as to make them in effect a part of itself.' In alleging the facts necessary to each cause of action or defense it may fre- quently happen that matters alleged in one count must of necessity be repeated in another. This is not a viohition of the rule re- quiring a concise statement of facts and prohibiting uimecessary repetition. § ii. Consistency in pleading. — It is somewhat peculiar that the rule requiring consistency in pleading is hmited to the plead- ings on the part of the plaintiff. If several causes of action are united in a complaint they must be consistent with each other.* If new matter is set forth in a reply it must be consistent with the complaint. But a defendant may set forth in his answer as many defenses or counterclaims/ or both, as he has, whether they are 'Blank v. Hartshorn, 37 Hun, 101; Lougprey v. Yates, 31 Hun, 433; Velie V. Newark City las. Co., 65 How. 1; Birdsey v. Smith, 82 Barb. 217. s Blank v. Hartshorn, 37 Hun, 101 ; Lougprey v. Yates, 31 Hun, 432. 3 Lattiu V. McCarthy, 17 How. 239; 8 Abb. 225; Benedict v. Seymour, 6 How. 398; Xenia Bank v. Lee, 2 Bosw. 694; 7 Abb. 372; Ayrault v. Chamberlain, 33 Barb. 239; Loosey v. Orser, 4 Bosw. 391; Anderson v. Speers, 8 Abb. X. C. 382. ■" Code of Civil Pro., § 484. Nebenzahl v. Townsend, 61 How. 853; Spring- stead v. Lawson, 23 How. 302; 14 Abb. 328; Sweet v. Ingerson, 13 How. 331. ' Code of Civil Pro., §514. 36 Gbnekal Rules of Pleading. Pleading performance of conditions precedent. such as were formerly denominated legal or equitable/ and whether they are consistent or inconsistent with each other.^ § 15. Pleading performance of conditions precedent. — Where the right of action depends upon the performance by the plaintiff of a condition precedent, he is bound to allege and prove the performance of such condition or some excuse for its non- performance ; ' and if an excuse is relied upon, he should allege his readiness to perform, and the particular circumstances which constitute such excuse.* Under a complaint setting out a contract and averring its performance by the plaintiff, evidence of excuse for non-performance is not admissible. ° But this rule is said to be of very little consequence, as the plaintiff may amend his com- plaint on the trial and then give the evidence.*^ Where the non-performance of a condition precedent is oc- casioned by the act of a party either disqualifying himself from performing on his part, or by his giving notice that he will not perform, the party seeking his remedy is not bound to aver per- formance or a readiness to perform on his part, but may allege the facts constituting his excuse, and if the proof sustains them, 1 Code of Civil Pro., §507. « Ross V. Duffy, 12 St. Rep'r, 584. Section 507 of the Code of Civil Proced- ure as originally enacted required that the several defenses or counterclaims set forth in the answer should be consistent with each other, but the limiting clause was stricken out by the amendment of that section in 1879. The section as it now stands is a substantial re-enactment of the last two sentences of sec- tion 150 of the Code of Procedure, under which it was held that inconsistent defenses might be united. Bruce v. Burr, 67 N. Y. 237; Stiles v. Comstock, £ How. 48; Butler v. Wentworth, 9 Plow. 382. This is the rule also under the Codes of Ohio, Colorado and North Carolina. Citizens' Bank v. Closson, 29 Ohio St. TS Hummel v. Moore, 15 Fed. Rep. 380; Reed v. Reed, 93 N. C. 517. That a party cannot deny in one count what is afHrraed by him in another, see Baird v. Mor- ford, 29 Iowa, 581; Barrett v. Donnelly, 38 Mo. 492. 3 Bogardus v. New York Life Ins. Co., 101 N. Y, 328; Hatch v. Feet, 2c Barb. 575; Oakley v. Morton, 11 N. Y. 25; Levy v. Burgess, 64 N. Y. 390, 394 Reining v. City of Buffalo, 102 N. Y. 308. ■» Oakley v. Morton, 11 N. Y. 25, ' Baxter v. Brooklyn Life Ins. Co., 44 Hun, 184; Baldwin v. Munn, 2 \Vend 399; Crandall v. Clark, 7 Barb. 169; Oakley v. Morton, 11 N. Y. 23. « Hosley v. Black, 28 N. Y. 438. General Rules of Pleading. 37 Pleading pert'ormance of conditions precedent. lie will establish his right to recover such damages as he has suf- fered by the non-]3erforinaiice of the other party. ^ The Code provides that iu pleading the performance of a con- dition precedent in a contract it is not necessary to state the facts constituting. performance ; but the party may state generally, that he, or the person wliom he represents, duly performed all the con- ditions on his part ; and further provides that if that allegation is controverted, the party must on the trial establish performance.^ This provision furnishes a simple and easy mode of stating per- formance and one that is generally adopted. But it is always optional with the pleader whether he will allege due performance of all the conditions on his part or state facts showing such per- formance.^ If he elects to adopt the latter mode of pleading, he must state facts showing performance, and not circumstances which are mere evidence, nor mere legal conclusions.^ A general allegation in a j)leading of the due performance of a condition precedent is insufficient except in cases of contract when it is authorized by statute.^ But the application of the section is not limited to contracts wherein conditions precedent are expressly stated, but extends as well to contracts wherein such conditions are implied. Thus an averment in a complaint against the indorser of a note that the note was duly presented for payment and pay- ment thereof demanded and refused, that it was thereupon duly protested for non-payment and notice thereof duly given to the defendant, is a sufficient statement of the performance of the con- ditions precedent to the liability of an indorser.'' Although the general form of pleading performance of a con- dition precedent authorized by the Code applies only to a condi- tion precedent in a contract, the rule requiring the plaintiff to allege in his complaint every fact essential to the cause of action ' Clarke v. Crand'all, 27 Barb. 73. ' Code of Civil Pro , § 533; Case v. Phoenix Bridge Co., 33 Jones & Sp. 35. 3 Mayor v. Doody, 4 Abb. 127. " Hatcb V. Peet, 33 Barb. 575. ' Rhoda V. Alameda County, 53 Cal. 850. ' Adams v. Sherrill, 14 How. 297; Chemical Nat. Bank v. Carpenter, 9 Abb. N. C. 301; Gay v. Paine, 5 How. 107; Ferner v. Williams, 37 Barb. 9; 14 Abb. 215. Contra, Graham v. Machado, 6 Duer, 514. 38 Geneeal Rules of Pleading. Pleading performauce of conditions precedent. as well as those necessary to give the court jurisdiction to enter- tain the particular proceeding/ requires that he should allege in some form the performance by hi in of every condition precedent wliether his cause of action is on contract or in tort ; and it is immaterial, so far as relates to the application of this rule, whether the condition be imposed by a statute giving the particu- lar right of action, or be provided by contract, or has its existence by force of some principle of the common or statute law.^ The act to be performed may constitute no part of the cause of action, and may be required merely to give the defendant an opportunity to satisfy the plaintiff's demand and thus escape the cost and vexation of an action, but the principle is the same. Thus where the charter of a city provides that no action or proceeding to recover or enforce any claim against the city shall be brought i;ntil the expiration of forty days after the claim shall have been presented to the common council, the provision attaches as a con- dition precedent to any action against the city; and it is, therefore, necessary to allege in a complaint in an action against the city for a tort, that the claim was presented to the common council and that forty days had expired after such presentation before the commencement of the action.^ So under the section of the Code prohibiting an action on an undertaking given on appeal until the expiration of ten days from the service upon the attorney for the appellant of written notice of the entry of a judgment or order affirming the judgment or order appealed from, or dismissing the appeal,^ the delay of ten days after service of such notice is a con- dition precedent to a right to maintain an action on the under- taking and must be alleged in the complaint.^ So where a statute prohibits an action upon a judgment except upon leave of court first obtained, a complaint on the judgment must allege that such leave was obtained.'' So where the liability of the defendant ' See ante, p. 20. « Reining v. City of Buffalo, 102 N. Y. 308. 3 Reining v. City of Buffalo, 103 N. Y. 308; Jones v. Minneapolis, 31 Minn. 230; Benware v. Pine Valley, 53 Wis. 537; Maddox v. Randolph Co., 65 Ga. 316; Marshall County v. Jackson County, 36 Ala. 613. « Code of Procedure, § 348; Code of Civil Pro., t; 1309. - Rae V. Beach, 76 N. Y. 164; Porter v. Kingsbury, 71 N. Y. 588. ' Graham v. Scripture, 30 How. 501. GrENEEAL EULES OF PlEADING. 39 Pleading jurisdictional matters. depends upon a request or demand made before suit, such request or demand before suit must be alleged and proved to enable the plaintiff to maintain his action.^ §16. Pleading jurisdictional matters. — It was a settled' rule of pleading before the Code, that in an action on a judgment rendered by a justice of the peace, or other officer of limited jurisdiction, the complaint must allege facts showing jurisdiction of the subject-matter and of tlie person of the defendant, and that a mere averment of jurisdiction was not sufficient.^ The Code has changed this rule and now provides that in pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring juris- diction; but the judgment or determination may be stated to have been duly given or made, and that if that allegation is contro- verted, the party pleading must on the trial establish the facts conferring jurisdiction.^ The jurisdiction of a superior city court in an action or a special proceeding brought therein must always be presumed. It is not necessary to set forth in a complaint in such an action, or in a petition or other statement of the case in such a special proceed- ing, any of the jurisdictional facts specified in the section of the Code of Civil Procedure defining the jurisdiction of the superior city courts;* and where the defendant in the action, or the person against whom the special proceeding is instituted, appears, the want of jurisdiction, by reason of the non-existence of any of those facts, is a matter of defense and is waived by the appear- ance, unless it is pleaded in defense.^ It is unnecessary to allege jurisdictional facts in an action brought upon a judgment or other determination of a court of general jurisdiction of this State or of an officer of such court, as jurisdiction is presumed.^ But whether ' Howland v. Edmonds, 24 N. Y. 307. « Barnes v. Harris, 3 Barb. 603; 4 N. Y. 374. 3 Code of Civil Pro., g 532. " Code of Civil Pro., § 263. 5 Code of Civil Pro., § 266; Papfinger v. Yutte, 102 N. Y. 38. « Cruyt V. Phillips, 16 How. 130; 7 Abb. 205; Chemung Canal Bank v. Jud- son, 8 N. Y. 254. 40 Geneeal Kules of Pleading. Pleading an action or defense founded on an instrument, etc. section 532 of the Code of Civil Procedure applies to judgment of courts of otlier States, or foreign judgments, has been doubted, and it is therefore advisable in pleading such judgments to allegi the facts which show jurisdiction in the court by which they wen rendered. Where an action is brought in a County Court the complain should distinctly allege that the defendant is a resident of th( county, as the lack of such an allegation in the complaint is i jurisdictional defect which will be fatal to the pleading if thi proper objection is taken. ^ There has been considerable confiic of authorities as to whether the residence of the defendant withii the county is an essential fact which goes to the jurisdiction o: the cause and cannot be waived by consent,^ or whether it goe merely to the jurisdiction of the person, and may be waived.* § 17. Pleading an action or defense founded on an instru ment for the payment of money only. — Where a cause o action, defense or counterclaim is founded upon an instrumen for the payment of money only, the party may set forth a cop; of the instrument and state that there is due to him thereon fron the adverse party, a specified sum which he claims. Such ai allegation is equivalent to setting forth the instrument accordiuj to its legal effect,* and it accomplishes nothing more. It was no the intention of the Legislature or the framers of the Code tha a complaint should be good that merely set forth a copy of th' instrument with a statement that there was due to the plaintii thereon from the person named as a defendant, a specific sun without averring that the defendant delivered or executed th' ' DeNobele v. Lee, 15 Jones & Sp. 373; 61 How. 272; HoUister v. Hollistei 10 How. 532; McLaughlin v. Nichols, 13 Abb. 244. But see Halstead v. Blaci 17 Abb. 237. ■' Gilbert v. York, 41 Hun, 594; 111 N. Y. 544; Judge v. Hall, 5 Lans. 6£ Frees v. Ford, 6 N. Y. 176. 3 Gilbert V. York, 41 Hun, 594; 111 N. Y. 544; Judge t. gall, 5 Lans. 6E Frees v. Ford, 6 N. Y. 176. See, also, Burckle v. Eokhart, 3 N. Y. 133; Whee lock V. Lee, 74 N. Y. 495; Davidsburgh v. Knickerbocker Life Ins. Co., 9 N. Y. 536; Heenan v. New York, West Shore, etc., R. R. Co., 34 Hun, 602. ^Holbrook v. Baker, 16 Hun, 176; Dake v. Miller, 15 Hun, 856. = Code of Civil Pro,, 8 534. Geiteeal Rules of Pleading. 41 Pleading an action or defense founded on an instrument, etc. instrument, or that it belonged to the plaintiff, or in any way averring the defendant's liability to the plaintiff or the plaintiff's title,^ unless, perhaps, where the action is brought by the payee of a promissory note against the maker. ^ In an action upon a promissory note by one not a party thereto, the complaint must allege that tlie plaintiff has acquired title thereto, or other facts from which his ownership of the note can be legally inferred.' It is not necessary for the plaintiff' to allege the facts establishing his title to the note, if he alleges that he is the holder and owner, as an allegation in that form will imply that he owns the instru- ment in some legal manner of deriving title.'' The provision of the Code allowing a party to set forth a copy of the instrument and state that there is due him thereon from the adverse party a specified sum, is not applicable where the liability of the adverse party is conditional and depends upon facts outside the instru- ment. In such case the extrinsic facts must be averred.'' To make a complaint good under this section of the Code the obliga- tion must, on its face, be a complete, valid, binding obligation, and then it is sufficient to set it out and state the amount claimed to be due upon it.*' It is not necessary that the instrument should contain an express promise to pay, if it is one from which upon its production, and proof of its execution, the law implies such a promise.' But where the obligation is upon its face incomplete or invalid, and other facts not contained in it, need to be stated to show its validity, it is not sufficient to merely set it out, and such other facts must be alleged.* Thus, if the instrument is not a promissory note, and does not express a consideration, a conside- ration must be alleged.^ ' Conkling v. Gandall, 1 Keyes, 338; 4 Abb. Ct. App. Dec. 433; Bank of Geneva v. Gfulick, 8 How. 51. = Marshall v. Rookwood, 13 How. 453. 3 Gurnee v. Beach, 40 Hun, 108. ^Prindle v. Caruthers, 15 N. Y. 435; Mechanics' Bank v. Straiten, 3 Keyes, 365; 86 How. 190; 5 Abb. (N. S.) 11. 'Tooker v. Arnoux, 76 N. Y. 397; Conkling v. Gandall, 1 Keyes, 338. 6 Broome v. Taylor, 76 N. Y. 564. ■ Burke v. Ashley, 13 Hun, 637. 8 Broome v. Taylor, 76 N. Y. 564. 'Spear v. Downing, 33 How. 30; 34 Barb. 533; 13 Abb. 437. 6 42 General Rules of Pleading. Pleading an action or defense founded on an instrument, etc. Where it is sought to charge a defendant as indorser of a note, the complaint should allege the making of the note, its indorse- ment, its due presentation for payment, a demand and refusal, protest for non-payment, and the giving of notice of protest to the indorser,! or facts excusing the omission of presentment, de- mand, protest or notice. Facts excusing want of notice of protest cannot be shown under an allegation of notice.^ Where the action is brought against the indorser only on his contract of indorse- ment, the setting out of a copy of the note without also setting out a copy of the indorsements thereon does not bring the com- plaint within the provisions of section 534 of the Code so as to give the plaintiff the aid of that section, as a copy of the instru- ment upon which the action is founded is not set forth. ^ And where an action ia brought by the payee of a note against an in- dorser only, the complaint must not only allege the making of the note, ownership by the plaintiff, its indorsement by the de- fendant, presentation for payment, non-payment, protest and notice, but it must allege special circumstances charging the defendant as first indorser to I'ebut the presumption that his rela- tion to the paper was that of second indorser.^ Any fact showing that the indorsement was made by the defendant to give the maker credit with the payee will be sutficient to support the action,'' Although the Code requires that the pleadings in an action shall be in the English language, it is sufficient to set forth a copy of an instrument for the payment of money only, though the instru- ment be written in a foreign language." But the pleader is never under any obligation to set forth in his pleading a copy of an in- strument upon which his cause of action, defense or counterclaim ' Cook V. Warren, 88 N. T. 37; Conkliug v. Gandall, 1 Keyes, 238; Alder v. Bloomingdale, 1 Duer, 601; Spellman v. Welder, 5 How. 5; Price v. McClave. 6 Duer, 544; Spencer v. Rogers Locomotive Works, 17 Abb. 110. ' Clift V. Rodger, 25 Hun, 39. 3 Woodruff V. Leonard, 1 Hun, 632. ^ Woodruff V. Leonard, 1 Hun, 633. See, also, Bacon v. Burnham, 87 N, Y. 614; Phelps v. Vischer, 50 N. Y. 69; Clothier v. Adriance, 51 X. Y. 322. i^ Lynch v. Levy, 11 Hun, 145. See Moore v. Cross, 19 N. Y. 337; Coulter V. Richmond, 59 N. Y. 478; Clothier v. Adriance, 51 N. Y. 333. " Nourny v. Dubosty, 12 Abb. 128. General Kules of Pleading. 43 Pleading an account — Pleading private statutes. is founded. That form of pleading was designed for liis con- venience, and if he so desires, he may waive the privilege of pleading in this form, and set forth the material facts according to their legal effect.^ If he adopts the form of pleading author- ized by the Code, he need not follow the precise language of that act. If his pleading is within the spirit of the act it is sufficient.^ An action upon a bond and mortgage is not founded upon an instrument for the payment of money only, and, therefore, the Code provision does not apply to a complaint in such action.' § 18. Pleadiug an account. — It is not necessary for a party to set forth in a pleading the items of an account therein alleged ; but in that case he must deliver to the adverse party, within ten days after a written demand thereof, a copj' of the account, which, if the pleading is verified, mnst be verified by his affidavit to the effect that he believes it to be true, or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or ca- pable of making the affidavit, by the affidavit of the agent or at- torney. If he fails to do so he is precluded from giving evidence of the account. The court or judge authorized to make an order in the action, may direct the party to deliver a further account where the one delivered is defective. The court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party .^ The practice in relation to procuring a copy account or a bill of particulars, and the cases in which a party is entitled to an amplification of the pleadings in this manner, will be noticed in a subsequent chapter. § 19. Pleading private statutes. — The court will take judi- cial notice of a public statute of this State, and therefore it is unnecessary to plead it.* But the rule is otherwise as to private ' Mayor, etc. , of N". T. v. Doody, 4 Abb. 137. » Smith V. Fellows, 36 Hun, 384. 5 Peyser v. McCormack, 7 Hun, 300. ■•Code of Civil Pro., §531. 5 Ante, p. 31 ; McHarg v. Eastman, 7 Rob. 137; 35 How. 305. 44 General Rules of Pleading. Pleadings in libel and slander. statutes of this State/ and as to statutes of other States, whether pubhc or private.^ Such statutes must be pleaded. A statute of another State must be averred in the same manner as other facts.^ In pleading a private statute or a right derived therefrom, it is sufficient to designate the statute by its chapter, year of passage and title, or in some other manner with convenient certainty, with- out setting forth any of the contents thereof.* Blackstone sa3's : " The distinction between public and private statutes is this : A general or public act is a universal rule that re- gards the whole community, but a special or private act is rather the exception than the rule.'" There are statutes which are local in one sense, but are nevertheless public statutes ; for it is not necessary, to render a statute public, that it should be equally ap- plicable to all parts of the State. It is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits prescribed by the statute.'^ All statutes which are of a penal nature, are public laws, although they may be limited in their operation and effect to particular localities or parts of the State ; and all remedial statutes, where all persons may come within their purview, are general and not private laws.' § 20. Pleadings in libel and slander.— It is not necessary, in an action for libel or slander, to state in the complaint any extrin- sic fact for the purpose of showing the application to the plaintiff of the defamatory matter, but the plaintiff may state generally that it was published or spoken concerning him, and if that alle- gation is controverted, the plaintiff must establish it on the trial. In such an action the defendant may prove mitigating circum- stances, notwithstanding he has pleaded or attempted to prove a justification.* = Bretz V. Mayor, etc., of N. Y., 6 Rob. 325; 35 How. 130; 4 Abb. (N. S.) 258. ' Throop V. Hatch, 3 Abb. 33; Harris v. White, 61 N. Y. 533. ' Throop V. Hatch, 8 Abb. 33. ^ Code of Civil Pro., § 530. ' 1 Black. Com. 86. « Bretz V. Mayor, etc., of N. Y., 6 Rob. 325; 35 How. 180. ' Burnham v. Acton, 85 How. 48. « Code of Civil Pro., § 535. General Eules of Pleading. 45 Pleading mitigating circumstances — Pleading title in replevin. § 21. Pleading mitigating circumstances. — In an action to recover damages for a breach of promise to marry, or for a per- sonal injury, or an injury to property, the defendant may prove at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff's damages if they are set forth in the answer, either with or without one or more de- fenses to the entire cause of action. A defendant in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that descrip- tion.' § 22. Pleading title in replevin. — An allegation in a plead- ing interposed by either party to an action of replevin to the effect that the party pleading, or a third person, was at the time when the action was commenced, or the chattel was replevied, as the case may be, the owner of the chattel, or that it was then his property, is a sufficient statement of title unless the right of action or defense rests upon a right of possession by virtue of a special property, iu which case the pleading must set forth the facts upon which the special property depends, so as to show that at the time when the action was commenced, or the chattel was replevied, as the case may be, the party pleading, or the third person, was entitled to the possession of the chattel.^ Where the defense to the action is that a chattel, to recover which the action is brought, was distrained doing damage, an al- legation that the defendant, or the person by whose command he acted, was then lawfully possessed of the real property, and that the chattel was distrained while it was doing damage thereupon, is sufScient, without setting forth the title to the real property .^ 'Code of Civil Pro., g 536. 'Code of Civil Pro., §1720. 3Codeof Civil Pro., §1724. 46 FoEMAL Rules of Pleading. Requirement as to writing or printing — Subscription and indorsement. CHAPTER IIL FoEMAL KULES OF PLEADING. Section 1. Requirement as to writing or printing. — Every pleading must be plainly and legibly written or printed in black ink upon durable paper of good material, and if imprinted by type-writer such paper must be of linen quality equal in weight to sixteen pounds to the double cap ream of seventeen by twenty- eight inches in size.^ It must bo in the English language, though the proper and known names of process and technical words may be expressed in - appropriate and customary language. It must be made out in words at length, and not abbreviated, except that such abbreviations as are commonly employed in the English language may be used, and numbers may be expressed by Arabic figures or Roman numerals in the customary manner.^ These rules apply to copies filed or served as well as to the originals. § 2. Folioing pleadings. — Every pleading exceeding two folios in length must be distinctly numbered and marked at each folio in the margin; and all copies, either for the parties or the court, must be numbered or marked in the margin so as to conform to the original draft and to each other.^ The word " folio " signi- fies one hundred words, counting as a word each figure neces- sarily employed.* § ?>. Suljscription and indorsement. — A pleading must be subscribed by the attorney for the party. ^ If the pleading is a demurrer to the complaint, or an answer, it must be subscribed by the defendant's attorney, who must add to his signature his office address, specifying a place within the State where there is a post-office ; and, if in a city, he must add the street and street ■ Code of Civil Pro, § 796; Rule 19, Sup. Ct. « Code of Civil Pro., §33. 3 Rule 19, Sup. Ct. *Code of Civil Pro., ^ 3343. 'Code of Civil Pro., §520. Formal Rules of Pleading. 47 Separating and numbering causes of action and defenses. number, if any, or other suitable designation of the particular locality.^ The statute does not require the plaintiff's attorney to add his office address to his signature to a pleading, as his address will be specified in the summons." But the general rules of practice require that all papers served or filed shall be indorsed or subscribed with the name of the at- torney or attorneys, and his or their office address or place of business, and make this rule applicable to parties appearing in person.' Every pleading must be indorsed with the title of the cause.* The title of the cause consists of the name of the coui-t in which the action is brouglit, and if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial, and the names of all the parties to the action, plaintiff and defendant.' § 4. Separating and numljering causes of action ami de- fenses. — Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered.^ If the answer contains several defenses or counterclaims, each defense or counterclaim must be separately stated and numbered.^ If the reply contains two or more distinct avoidances of the same defense or counter- claim, they must be separately stated and numbered.' The rules of pleading at common law required distinct causes of action of the same nature to be stated in separate counts;^ but it was found that it was sometimes very difficult, if not altogether impossible to separate the causes of action in tort so as to establish distinct and independent causes of action, and hence the practice grew up, of alleging in a single count, where the injury was a 'Code of Civil Pro,, § 421. 2 Code of Civil Pro., § 417. 3 Rule 3, Sup. Ct. See Evans v. Packer, 3 How. (N. S.) 504; 101 N. Y. 289. « Rule 19, Sap. Ct. s Code of Civil Pro., § 481. « Code of Civil Pro., § 483. ' Code of Civil Pro., § 507. 8 Code of Civil Pro., § 517. " ^ 9 1 Chitt. PI. 330. 48 Formal Hules op Pleading. Separating and numbering causes of action and del'eDses. continuing one, that it was committed on a day designated, and on divers other days between the day so alleged and the bringing of the action.^ It is possible, that in an action for trespass by cattle, where the injury is a continuing one, committed by the different animals on the same or on different days, so that it is impracticable to separate the acts of trespass, this method of stat- ing the several trespasses in a single count is still permissible.^ Under the former practice, the plaintiff, in an action known as trespass quare clausiim fregit, might allege in a single count that the defendant broke the plaintiff's close, on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff. In such action the injury to the grass and crops and to the plaintiff's person was stated, not as a separate cause of action, but in aggravation of the trespass.^ As there is nothing in the Code prohibiting a party from alleging in one count all the damages he may have suffered from a single trespass, that form of pleading is still good.* The plaintiff may allege in a single count the entry upon his premises by the defendants, his arrest by them and forcible removal to the county jail, as the matters so pleaded all go to make up a single cause of action for an illegal or false imprison- ment.^ So the plaintiff may allege in a single count that the defendant led him into making a hard and unconscionable lease, and then, after the plaintiff had sown crops, turned him off, pro- cured his arrest on a malicious charge of embezzlement, and took possession of his household goods, and that all these acts were in pursuance of the defendant's plan to defraud the plaintiff. These facts will constitute a single cause of action for an abuse of the process of the law to compel the plaintiff' to surrender up his 1 1 Chitt. PI. B84. - Richardson v. Nortlirup, 66 Barb. 85. See Dubois v. Beaver, 25 N. Y. 123. ^ See Hall v. Hodskins, 30 How. 15, 27 ; Hongbtaling v. Hougbtaling, 5 Barb. 379; Howe v. Willson, 1 Denio, 181; Van Leuven v. Lyke, 1 N. Y. 515. ■• Gilbert v. Pritcbard, 41 Hun, 4G. See American Union Tel. Co. v. Mid- dleton, 80 N. Y. 408; Whatling v. Nasb, 41 Hun, 579. The case of Gilbert v. Pritcbard, above cited, seems in direct opposition to that of Gunn v. Fellows, 41 Hun, 257. - Exner v. Exner, 3 Abb. N. G. 108. See Sheldon v. Lake, 9 Abb. (N. S.)306. Formal Rttles of Pleading. 49 Separating and numbering causes of action and defenses. property and rights to the defendant.^ A plaintiff in an action to recover damages for fraud may state in a single count a series of fraudulent acts of the defendant by which the fraud was con- summated, or "which go in aggravation of damages.^ So in an action to recover damages for negligent acts causing death, the plaintiif may allege in one count all the acts of nesrligence of the defendant "with an allegation that such negligent acts produced the injury complained of.' The Code merely requires that where the complaint sets forth two or more causes of action the statements of the facts constitut- ing each cause of action shall be separate and numbered.^ This requirement is met by stating the several causes of action in separate paragraphs and numbering them;^ but, in practice, the plaintiff usually distinguishes the first cause of action pleaded from those "which follow, by prefixing to each of the latter the phrase " and for a further cause of action the plaintiff complains," etc., or some other equivalent words, as well as by separating and num- bering the several causes of action.'^ The Code requires that each defense or counterclaim shall be separately stated and numbered,' and this requirement "would be met by merely stating the several defenses or counterclaims in separate paragraphs, consecutively numbered. No formal com- mencement or conclusion is required to mark each defense,* but it is customary to commence all defenses after the first with the "words " and for a further defense," etc., or other equivalent words.' In separating the several causes of action or defenses, the pleader should bear in mind that each cause of action or each defense separately stated must be complete in itself, and cannot be aided by allegations in another count of the same pleading, to "which it 1 Bebinger v. Sweet, 1 Abb. N. C. 263; 6 Hun, 478. 2 Price V. Price, 3 Hun, 611. 3 Diclfens v. N. Y. Cent. R. R. Co., 13 How. 228. " Code of Civil Pro., § 483. ' Parsons v. Hayes, 4 Law Bull. 31. * See Benedict v. Seymour, 6 How. 398. ' Code of CivU Pro., ^ 507. 8 Bridge v. Payson, 5 Sandf. 210. ' Benedict v. Seymour, 6 How. 398; Lippencott v. Goodwin, 8 How. 342. 7 50 Formal Rules of Pleading. Form of allegations or denials in verified pleadings. does not so refer as to incorporate the matter therein set forth and make it in fact and in effect a part of itself.^ § 5. Form of allegations or denials in verified pleadings. — The Code requires that the allegations or denials in a verified pleading shall, in form, be stated to be made by the party plead- ing, and provides that unless they are therein stated to be made upon the information and belief of the party, they must be regarded for all purposes, including a criminal proseciition, as hav- ing been made upon the knowlege of the person verifying the pleading, and that an allegation that the party has not sufficient knowledge or information to form a belief with respect to a mat- ter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or in- formation.^ It also provides that the affidavit of verification shall be to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true.' These provisions of the -Code render it necessary that every pleading intended to be verified should be framed with regard to the knowledge of the person who is to verify it in respect to the matters alleged or denied, whether that person is the party or his agent or attorney. Although the allegations ^f a pleading are in form the allegations of the party, and although each fact stated may be within the personal knowledge of such party, yet, if for any reason the pleading is to be verified by a person other than the party, and such person has no personal knowledge of some or all of the facts, the pleading should clearly indicate that such facts are alleged upon information and belief. So, if the pleading is to be verified by the party, and the transaction to which the action relates was intrusted to the management of agents or servants, or if for any other reason, the facts relating to it are not within the ' Lattin v. McCarthy, 17 How. 239; 8 Abb. 235; Benedict v. Seymour, 6 How. 298; Xenia Bank v. Lee, 2 Bosw. 694; 7 Abb. 373; Ayrault v. Chamberlain, 33 Barb. 229; Lossey v. Orser, 4 Bosw. 391. 2 Code of Civil Pro., § 524. 3 Code of Civil Pro., §526. Veeification of Pleadings. 51 When verificatioa is optional with tlae pleader. personal knowledge of the party, such facts should be stated to be alleged upon information and belief. A fact may be alleged upon information and belief, even though it may be within the personal knowledge of the person verifying the pleading ;^ and it seems that a denial may be made upon in- formation and belief, when the person verifying the pleading has no personal knowledge as to the facts denied, but has information sufficient to induce him to believe that the allegations which he denies are not true,^ though there are cases holding that a denial on information and belief is unauthorized and frivolous,^ at least where it appears from the pleadings that the facts denied upon information and belief were within the personal knowledge of the party verifying the pleading.* CHAPTER IV. Yeeification of Pleadings. Section 1. When verification is optional with the pleader. — As a general rule, it is optional with the plaintifE whether he wiU verify his complaint or serve it without verification. As a plead- ing, a complaint is as perfect without a verification as with it.' The verification is no part of the complaint,'^ and, as a rule, is im- ■ New York Marbled Iron Works v. Smith, 4 Duer, 362. ' Wood V. Eaydure, 39 Hun, 1-44; Ledgerwood Manuf. Co. v. Baird, 14 Abb. N. C. 318; Stent v. Continental Bank, 5 Abb. N. C. 88; Metraz v. Pearsall, 5 Abb. N. C. 90; Henderson v. Manning, 5 N. Y. Civ. Pro. R. 221; Sheldon V. Sabin, 4 N. Y. Civ. Pro. R. 4; Brotherton v. Downey, 31 Hun, 436; 59 How. 206; Macauley V. Bromell & Barkley Printing Co., 67 How. 252; Musgrove v. Mayor, etc., of N. Y., 19 Jones & Sp. 528; Maolay v. Sands, 94 U. S. 586; Ben- nett V. Leeds Manuf. Co., 110 N. Y. 150. ^ Swinburne v. Stookwell, 58 How. 312; Pratt Manuf. Co. v. Jordan Iron, etc., Co., 33 Hun, 148, 544; Powers v. Rome, etc., R. R. Co., 3 Hun, 285. " Fallon V. Durant, 60 How. 178; 3 Law Bull. 13; Byrne v. Benton, 13 Week. Dig. 100, 5 Williams v. Kiel, 11 How. 874. * George v. McAvoy, 6 How. 200. 52 Verification of Pleadings. Whea verification is optional with the pleader. portant merely with reference to subsequent proceedings.' To this rule there are exceptions. If the defendant cannot be per- sonally served with the summons, and it is necessary to serve by publication, the complaint must be verified, as an order for the publication of the summons must be founded upon a verified complaint.^ So where a judgment has been obtained against two or more defendants alleged to be jointly indebted on contract, and the summons in the action has been served upon one or more, but not upon all of the defendants, and a subsequent action is brought by the judgment-creditor to charge the defendants not served as provided in section 1937 of the Code of Civil Procedure, the com- plaint in such action must be verified.^ The word " affidavit," as used in the Code, includes a verified pleading ;* and whenever a plaintiff is entitled to a provisional remedy on making certain proof by affidavit, a verified complaint is a convenient form of affidavit, especially where the right to the remedy depends upon the nature of the action. So where the action is one in which the clerk would be authorized to enter judgment on de- fault,'^ the verification of the complaint may not only prevent the defendant from setting up a defense for the mere purpose of delay, but in case of default may save the trouble and inconvenience of making proof before the clerk on the entry of judgment.^ But these considerations present mere questions of convenience and expediency. If the complaint is not verified, it is optional with the defend- ant whether he will verify his answer or not, unless he pleads a defense which does not involve the merits.' The defendant may verify a part of his answer to an unverified complaint, and leave the remainder unverified. The Code provides that if the com- plaint is not verified, and the answer sets up a counterclaim, and ' Williams v. Riel, 11 How, 374. ' Code of Civil Pro., § 439; Williamsou v. Williamson, 64 How. 450; Luther V. Brison, 4 Law Bull. 91. 3 Code of Civil Pro., ^ 1938. ■> Code of Civil Pro., § 3348. 'Code of Civil Pro., g 430. « See Code of Civil Pro., § 1313. ' Code of Civil Pro., § 513. Veeification of Pleadings. 53 When a pleading must be verified. also a defense by way of denial or avoidance, the affidavit of veri- fication may be made to refer exclusively to the counterclaim.^ If the prior pleading of the adverse party is defectively verified, it may be treated as an unverified pleading, and the answer or re- ply thereto may be unverified.^ And although the original plead- ing was properl}' verified, if the copy served contains no verifica- tion, the party served may treat it as an unverified pleading, and serve an unverified answer or reply thereto.^ If there are several defendants having several interests, and the copy complaint served on some of them is verified, and the copy served on tiie others is not, the defendants cannot serve a joint unverified answer, but those on whom the copy containing the verification was served must verify their answer, and the other defendants may serve an unverified answer.* § 2. When a pleading must be verified. — As a general rule where a pleading is verified, each subsequent pleading, except a demurrer or the general answer of an infant by his guardian ad litem, must also be verified.'' There are certain exceptions to this rule which will be noticed in the next section. The term " subsequent pleading," as used in the provision of the Code above cited, applies only to pleadings in answer to the pleading verified, or to such as are subsequent in order of plead- ing rather than to such as are subsequent in time ;^ and although a defendant may have served a verified answer to a verified com- plaint, this will not preclude the plaintiff from serving an amended complaint without a verification.' If the plaintiff has served an unverified complaint to which the defendant has served an un- verified answer, the subsequent service of a new complaint in all 1 Code of Civil Pro., § 537. ^ Code of Civil Pro., § 528; Hubbard v. Nat. Prot. Ins. Co., 11 How. 149; Treadwell v. Fassett, 10 How. 184; People v. Allen, 14 How. 334; Waggoner V. Brown, 8 How. 213; Meads v. Gleason, 18 How. 309. 2 Hugbes V. Wood, 5 Duer, 603, note. ■■ Wendt V. Peyser, 14 Hun, 114. ^Code of Civil Pro., S 523. « Hempstead v. Hempstead, 7 How. 8; Duval v. Buscb, 13 Civ. Pro. R. 366; 13 St. Rep'r, 753. ' Hempstead v. Hempstead, 7 How, 8. 54 Verification of Pleadings. When the answer or reply to a verified pleading may be unverified. respects like the original, except tliat it is verified, does not com- pel the defendant to serve a verified answer. The new pleading is not an amended complaint.^ If an answer is verified, a reply- must be verified also." A defense which does not involve the merits cannot be pleaded unless it is verified.^ § 3. When the answer or reply to a verified pleading may he unTerifled. — Although the original pleading is properly veri- fied, if the copy served contains no verification, an answer or reply to the pleading may be unverified.'' If, however, a true copy of the pleading and verification is subsequently served, the party serving it is entitled to a verified answer or reply.* Although the complaint is verified, the general answer of an infant by his guardian ad litem need not be verified.^ And in an action for divorce, the answer of the defendant may be made without verifying it, notwithstanding the verification of the com- plaint.' The Code provides that in a case where it is not other- wise specially prescribed by law, the verification may be omitted where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the plead- ing.^ By this it was intended that in all cases where the plead- ing to be answered contained allegations showing the adverse party guilty of an offense as to which he would be privileged as a witness from giving accusatory evidence against himself, he might in answer deny such allegations without oath, and thus compel his adversary to prove the same. The provision is de- signed to apply only to cases where the accusatory matter is con- tained in the pleading to be answered, and does not authorize a party to serve an unverified pleading merely because he has set up therein new matter in avoidance founded upon accusations against 'George v. McAvoy, 6 How. 200. See White v. Bennett, 7 How. 59. '' Levi V. Jakeways, 4 How. 126. 5 Code of Civil Pro., § 513. ■• Hughes V. Wood, 5 Duer, 603, note. ' Bishop V. Sullivan, 8 Law Bull. 7. «Code of Civil Pro., §523. 'Code of Civil Pro., g 1757. » Code of Civil Pro., g 523. Verification of Pleadings. 55 When the answer or reply to a verified pleading may be unverified. himself as to which he would be privileged from testifying as a witness.^ The Code provides that a competent witness shall not be ex- cused from answering a 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. But this provision does not require a witness to give an answer which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture, nor does it vary any other rule respecting the examination of a witness.^ Where the creditor of a manu- facturing corporation seeks to recover from one of its trustees the amount of a debt due the plaintiff from the corporation upon the ground that the defendant has become liable therefor by reason of his failure to make the annual report required by the general manufacturing law, the action is for a penalty or forfeiture, and the defendant may serve an unverified answer, althongh the com- plaint be verified.^ A defendant is not excused from verifying his answer to a com- plaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other instrument, or transferred or delivered money or personal property, with intent to delay, hinder or defraud creditors, or with being a party or privy to such a transaction by another person with like intent toward the creditors of that person, or with any fraud whatever affecting a right or the property of another.* But it seems that in an action to recover the contract-price of goods, the defendant may serve an unverified answer to a verified complaint which alleges that the defendant was guilty of fraud in contracting the debt and sets forth in detail specific representations to induce the credit given as the means by which the fraud was accomplished.^ ' See Fredericks v. Taylor, 53 N. Y. 596, construing § 157 of the Code of Procedure and § 1, chap. 75, Laws of 1854. 5 Code of Civil Pro., §837. ^Gadsden v. Woodward, 103 N. Y, 243. See Hughen v. Woodward, 3 How. (N. S.) 127. "Code of Civil Pro., § 529. 5 Frist V. Climm, 67 How. 214. See Yamato Trading Co. v. Brown, 27 Hun, 248. 66 Verification op' Pleadings. By whom pleadings may be verified. Where a complaint alleges that the defendant owns and keeps a bawdy-house which is a public nuisance and prays that a con- tinuance thereof maybe enjoined, the answer may be unverified.' So in an action for libel the answer may be unverified although the complaint is verified.^ The fact that a party may be excused from testifying as a wit- ness as to certain allegations in the pleadings of his adversary does not exempt him from the operation of the general rule that facts not denied are deemed admitted. Ilis proper course is to serve an unverified pleading containing a denial of the accusatory alle- gations.' If it appears on the face of the pleadings that he would be excused from testifying as a witness concerning certain alle- gations therein, it is not necessary for him to serve with the pleading an affidavit showing an excuse for omitting the verifica- tion.* But if it does not so appear it would seem at least proper to serve such aflidavitwith the unverified pleading.'^ If the party served returns the pleading and refuses to accept it because it is unverified, the right to serve it in that form may be determined by motion to compel the party to accept it as a pleading in the cause.^ If the party served has not returned it, and disputes the right of the adverse party to serve an unverified pleading, he may give notice to the party that elects to treat the pleading as a nul- lity,^ or he may move to strike it out.^ § 4. By whom pleadings may be verified. — The verification must be made by the afiidavit of the party, or, if there are two or more parties united in interest and pleading together, by at least one of them who is acquainted with the facts, except as fol- lows: ' Anderson v. Doty, 33 Hun, 338. 2 Wilson V. Bennett, 2 Civ. Pro. R. 34; Blaisdell v. Raymond, 5 Abb. 144; e Abb. 148. ^ Scovill V. New, 12 How. 319; Springsted v. Robinson, 8 How. 41. * Wheeler v. Dixon, 14 How. 151; Blaisdell v. Raymond, 5 Abb. 144; 6 Abb, 148; Anderson v. Doty, 33 Hun, 238. 6 Roaohe v. Kivlin, 25 Hun, 150. « Fredericks v. Taylor, 53 N. Y. 596. 'Code of Civil Pro., § ,528. 8 Fredericks v. Taylor, 53 N. Y. 596. Veeification of Pleadings. 57 By -wboia pleadings may be verified. 1. Wliere the party is a domestic corporation the veritication must be made by an officer thereof. 2. "When the people of the State are, or a public ofiBcer, in their behalf, is the party, the verification may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation ; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the State, the county wliere he has his office, and capable of making the affidavit ; or, if there are two or more parties united in interest, and pleading together, where neither of them acquainted with the facts, is within that county, and capable of making the affidavit ; or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the at- torney ; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney ; in either case the verification may be made by the agent of or attor- ney for the party. -"^ The above provision of the Code permits one of two or more parties who are united in interest and plead together to verify the pleading where the party verifying is acquainted with the facts. If the verification is positive and absolute it is not neces- sary that the party verifying should state that he is acquainted with the facts.^ But one of two defendants answering jointly cannot swear to the want of sufficient information to form a belief on the part of his co-defendant.^ Where parties who are not united in interest plead together all must join in the verifi- cation.* The maker and indorser of a promissory note are not so united in interest that one may verify for both.' Where hus- band and wife are joined as defendants, and the interest of the wife in the subject of the litigation is, in a legal point of view, distinct and separate from that of her husband, she should verify the answer as well as her husband.^ 'Code of Civil Pro., § 535. ' Zoellner v. Neveberger, 1 Law Bull. 29. 3 Kinkaid v. Kipp, 1 Duer, 692. Code of Civil Pro., §526. 3 Code of Proc, § 157. * Code of Civil Pro., § 534. 62 Veeifioation of Pleadings. Form of verification by an agent or attorney. agent or attorney will be regarded as swearing that every allega- tion of the answer is true to his own knowledge, notwithstanding that the afKdavit of verification contains the usual exception as to matters stated to be alleged upon information and belief.^ As in such case there are no matters stated upon information and belief the Code does not require a setting forth of any grounds of belief.^ Where some of the allegations of a pleading verified by an agent or attorney are alleged upon information and belief; a statement of the source of the deponent's information, taken in connection with the other statements of the affidavit of verifica- tion, is, in effect, a statement of "the grounds of his belief," though the words quoted are not used. It has never been thought necessary to specify in detail tJie information.^ A statement in an attorney's verification that the action is founded upon a written instrument for the payment of money only in the deponent's pos- session for collection, "which said instrument is the source of deponent's information and belief" is a substantial compliance with the requirement that the grounds of belief shall be set forth.* It would seem from the authorities that if an attorney or agent verifying a pleading states facts which, under the Code, authorize him to verify it, he thereby complies with, the requirement that he shall set forth the reason why the verification is not made by the party ; and that the bare fact that another person is autliorized to verify a pleading is a sufficient reason why the part}' does not.^ Thus, if an attorney states in the affidavit of verification that the action is founded upon a written instrument for the payment of money only which is in the possession of the attorney, this is a sufficient statement of the reason why the verification is not made by the party.^ So where an agent in the affidavit verifying an ' Beyer v. Wilson, 46 Hun, 397. « See Code of Civil Pro., § 536; Ross v. Longmuir, 24 How. 49; 15 Abb. 326; Qourney v. Wersuland, 3 Duer, 613. ' Duparquet v. Fairchild, 49 Hun, 471. •■ Hyde v. Salg, 27 Hun, 369; Contra, Treadwell v. Fassett, 10 How. 184; Soutter V. Mather, 14 Abb. 440; Hubbard v. National Protection Ins. Co., 11 How. 149. 5 Smith V. Rosenthall, 11 How. 442; Hyde v. Salg, 27 Hun, 369. " Hyde v. Salg, 27 Hun, 369; Senorita v. Simonds, 1 Oregon, 374. Verification of Pleadings. 63 Form of verification by a guardian ad litem. answer states that all the material allegations are within his per- sonal knowledge, it is sufficient without assigning any reason why the veritication was not made by the party.' A statement by an attorney in his affidavit of verification that he could not find his client in the city and that it was his last day to plead, furnishes no legal reason why the verification was not made by the party.^ The Code permits the verification of a pleading by the agent of the party, but does not prescribe in what respect the agency must exist, nor require that the nature of it be stated in the verifica- tion.' But where a pleading is verified by an agent or attorney the affidavit should state that the person verifying is the agent of or attorney for the party, as this is an essential fact. And although a verification may be practically sufficient which substitutes equivalent words for the plain language of the statute, or which states facts from which the necessary allegations may be gathered by way of inference or implication, such verifications are always doubtful experiments, not favored by the courts, and are clearly not to be followed as precedents.^ § 8. Form of verification by a guardian ad litem.— Where an action is brought by an infant by a guardian ad litem the guardian is not the party plaintiff to the action, and neither is he the agent or attorney of the party as those words are usually understood or applied. But as the guardian is appointed to prose- cute the action in behalf of the infant, and as the complaint is his pleading and not that of the infant, he is, in that sense, the party pleading, and therefore, the party, within the contemplation of the Code, who may, as such, verify a pleading. A guardian veri- fies as a party and not as agent or attorney, and need not set forth the grounds of his belief or the reason why the verification was not made by the infant.' : Betts V. Kridell, 13 Civ. Pro. R. 157; 12 St. Rep'r, 163; 20 Abb. X. C. 1. ' Lyons v. Murat, 54 How. 23. - Beyer v. Wilson, 46 Hun, 397. Contra, Boston Locomotive Works v. Wright, 15 How. 253. ■" See Tibballs v. Selfridge, 12 How. 64. ' Clay V. Baker, 41 Hun, 58; Anable v. Anable, 34 How. 92. 6J^ Verification of Pleadings. Form of verification by officer of corporation — Defective Verification. § 9. Form of verification by an officer of a corporation. — It was held under the old Code' that the verification of a plead- ing by an officer of a corjjoration is in fact the verification of the corporation, and that the officer making it need not state the grounds of his behef,^ and it has also been held that this is still the rule under the present Code.* These decisions are authority until overruled or reversed, though they do not seem founded on any satisfactory reasons, and do seem to he in conflict with the language of the statutes on which they are based^ and with the interpretation of the word " party " as given by the courts.* § 10. Remedy for defective verification. — The remedy for a defective verification of a pleading is to treat the same as an un- verified pleading. Where the copy of a pleading is served with- out a sufficient verification, in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provi- ded he gives notice with due diligence, to the attorney of the ad- verse party, that he elects so to do." If a complaint, or a counterclaim contained in an answer to an unverified complaint, is defectively verified, the party served with the pleading has a clear right to serve an unverified answer or re- ply.'' Ordinarily this is all the remedy required, as a party can- not be prejudiced by a mere defect in verification, where the ad- verse party had a right to omit any verification. If, however, the pleading defectively verified is in answer or reply to a pleading duly verified, the remedy of the party prejudiced by the defect- ive verification is to promptly give notice to the attorney of the adverse party that he elects to treat the pleading as a nullity. A defect iu verification, or the want of any verification, is ordinarily an irregularity which may be waived, and the right to take ad- ' Code of Procedure, § 157. ' Glaubensklee v. Hamburgh & Am. Pacliet Co., 9 Abb. 101. ' American Insulator Co. v. Bankers & Merchants' Tel. Co., 2 How. (N, S.) 120. " Code of Procedure, § 157; Code of Civil Pro., §§ 525, 526. 'People V. Mut. Gas-Light Co., U Hun, 157^74 N. Y. 434; Goodyear v. Phffinix Rubber Co., 48 Barb. 522. 5 Code of Civil Pro., § 528. ■■ See ante, p. 53. Veeification of Pleadings. 65 Remedy for defective verification. vantage of the defect or omission may be lost by delay.' But where the summons is served by publication under an order based upon a complaint to which the verification is fatally defective, the defect is jurisdictional, and the defendant may move to set aside the summons and order of publication upon the ground that the com- plaint presented to the justice granting the order was not verified.^ The Code does not in terms require that the pleading defect- ively verified shall be returned with the notice of election to treat it as a nullity ; but there would be manifest inconsistency in re" taining a paper and at the same time treating it as a nullity. The usual practice is to return the pleading, with the proper notice in- dorsed upon it. The objection to the verification must be stated explicitly in the notice, and the particular defect or omission should be pointed out, so that the other jjarty may understand wherein it is claimed that the verification is defective. A notice that the plaintiff refuses to receive and returns an answer on the ground and for the reason that it is not properly verified, and that he will treat it as a nullity, is too general.' Where it is doubtful whether the verification of a pleading is sufficient or not, the better practice is to receive it without ques- tion.'' And if a pleading properly verified is returned upon the ground that the verification is defective, the party serving it should move at Special Term for an order requiring the adverse party to receive it as a pleading in the cause. The sufficiency of the veri- fication can be determined on the hearing of the motion. If the verification is clearly defective, the party to whom the pleading is returned should serve a pleading duly verified, or, if the time to make such service has expired, should apply to the court, on no- tice, for leave to serve a verified pleading. ' Hull V. Ball, 14 How. 305; Wilson v. Beuuett, 3 Civ. Pro. R. 34; White V. CummiDgs, 3 Sandf. 716. * Williamson v. Williamson, 04 How. 450. '' Snape v. Gilbert, 13 Hun, 494. * Wilkin V. Gilman, 18 How. 225. 9 66 Construction of Pleadings. Pleadings to be liberally construed. CHAPTER V. - CONSTECCTION OF PLEADINGS. Section 1. Pleadings to be liberally consti'ued. — The Code provides that the allegations of a pleading must be liberally con- strued, with a view to substantial justice between the parties.' Tliis section refers to rules of pleading and not to rules of law.^ It modifies the former rules of construction so far as they relate to mere matters of form, but not in matters of substance.^ It re- quires that pleadings shall not be condemned for want of form, not that substantial defects shall be disregarded.* It does not mean that substantial averments may be omitted,* nor does it authorize a recovery upon facts not pleaded, or upon evidence which dis- proves those which are pleaded.*" Although pleadings are to be construed liberally, that does not necessarily mean that they shall be held to say what they do not, nor that words which have a fixed legal meaning, settled by the common law, or by statute, shall be enlarged by an inaccurate popular use. Where the same word has different meanings, one the result of judicial or statutory defi- nition, and the other founded upon an inaccurate popular use, the latter can only be adopted in construing a pleading where it plainly appears from other averments or the whole tenor of the paper that such was the sense in which it was employed.^ This is not in conflict with the general doctrine, that under the liberal rule of construction established by the Code, a word, purely ambiguous, and capable of two different meanings, should have a reasonable construction, and be so construed as to support ' Code of Civil Pro., § 519. ' Fry V. Bennett, 5 Sandf. 54. 3 Bates -v. Rosekrans, 23 How. 98; Clark v. Dillon, 97 N. T. 370. ■> Spear v. Downing, 34 Barb. 532; 22 How. 30; 13 Abb. 437. « KcEnig V. Nott, 2 Hilt. 323; 8 Abb. 884. « Neudecker v. Kohlberg, 81 N. Y. 296. ' Cook V. Warren, 88 N. Y. 37. That words should be construed according to their popular sense. See Woodbury v. Sackrider, 3 Abb. 402. Construction of Plbamngs. 67 Pleadings to be liberally construed. rather than to defeat the pleading.^ But where the word has a fixed legal meaning, and the other parts of the pleading indi- cate that it is used in that sense, and there is nothing from which an intention to use it in a different or popular sense can be fairly implied, tliere is no such ambiguity as requires an arbi- trary choice of meanings to support the pleading, and the sense phiinly intended must prevail.^ A pleading must be construed according to what it says and not according to what the pleader intended if it would be neces- sary to supply omitted allegations in order to conform the plead- ing to such an intention.^ In construing pleadings regard must be had to the facts stated, and a pleading cannot be sustained upon implications unless the3' of necessity follow from what has been alleged.'' The court will not assume in favor of a pleading any thing which is not averred, for the law does not presume that a party's pleadings are less strong than the facts of the case will warrant.'' But where facts showing a cause of action or defense are substantially, although imperfectly alleged, the pleading must be held suificient under the statutory rule that the allegations of a pleading must be liberally construed with a view to substantial justice ;'' and whatever is necessarily understood or implied from the facts stated will be construed as forming a part of the pleading as much as if it was expressed.^ Where in an action on a promissory note the complaint sets forth a copy of the note, and states that there is due and owing to the plaintiff a sum specified, with interest, and demands judg- ment, these allegations, though not strictly in accordance with the ' Allen V. Patterson, 7 N". Y. 476; Olcott v. Carroll, 39 N. T. 436; Quintard V. Newton, 5 Rob. 73. A restricted meaning will not be given to words sus- ceptible of a more liberal construction if such construction is necessary to a defense on the merits. Close v. Nat. City Bank, 14 Abb. (N. S.) 336. ' Cook V. Warren, 88 N. Y. 37. ' Gould V. Glass, 19 Barb. 179; Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 240. * Magauran v. Tiffany, 62 How. 351. ' Cruger v. Hudson River R. R, Co., 13 N. Y. 190; Lemon v. Stevenson, 36 111. 49; Bartlett v. Prescott, 41 N. H. 493. 'Van Brunt v. Day, 81 N. Y. 3.51; 8 Abb. N. C. 336. ' Partridge v. Badger. 25 Barb. 146; ante, p. 30. 68 CONSTEDOTION OF PlEADINGS. Construing pleadings most strongly against the pleader. language of the section of the Code relating to pleading instru- ments for the payment of money only, will be liberally construed, and the technical detect will be disregarded. Under the present system of pleadings mere technical objections will not be encour- aged further than is necessary for the due and orderly adminis- tration of justice.^ An allegation that a note was indorsed by the defendants will be held to imply that it was lawfully indorsed by them ; ^ an alle- gation that certain drafts were accepted by a corporation by its treasurer will be held to include an averment of authority by the treasiu'er to accept the drafts;^ an allegation in an answer that certain persons executed a deed to the defendant will be construed as an admission that the deed was signed, sealed and delivered ; * and an averment of the indorsement of a note to the plaintiff imports a delivery to and vesting of title in him.^ So an aver- ment that a written instrument was made and entered into includes its delivery.^ In construing a pleading it must be taken as an entirety. If the pleading is an answer and contains matter in confession and avoidance every part of the pleading must be taken, and if the avoidance is ample the confession cannot be separated from it. Ifothing extrinsic can be considered on the question of construc- tion. In this respect it differs from the effect of the pleading when read in evidence. In that case it is read as the declaration of the partjr, and takes its place as any other testimony to be con- sidered by the jury in connection with the other testimony, and the jury may find that the confession is true and the avoidance is false.' § 2. Construing pleadings most strongly against the pleader. — It has been held in a number of cases that the provis- ' Keteltas v. Myers, 19 N. Y. 231. 'Mechanics' Banking Association v. Spring Valley Shot & Lead Co., 25 Barb. 419. 3 Partridge v. Badger, 25 Barb. 146. " Thorp V. Keokuck Coal Co., 48 N. Y. 253. ' Bank of Lowville v. Edwurds, 11 How. 216. - Romans v. Langevin, 34 Minn. 312. ■■ Whitney v. Town of Ticonderoga, 53 Hun, 214. CoNSTEtJCTION OF PlEADINGS. 69 Construing pleadings most strongly against tlie pleader. ion of the Code, to the effect that pleadings must be liberally construed with a view to substantial justice between the parties, abrogated the old well-settled rule that a doubtful pleading should be construed most strongly against the pleader.' But this view of the effect of the Code provision is erroneous. The Code has modified the old rule, but the modification extends only to matters of form and does not apply to the fundamental requisites of a cause of action or defense.- The principle that a doubtful pleading is to be construed most strongly against the pleader is still applied by the courts.' It is still the duty of a party to pre- sent a clear and unequivocal statement of his cause of action or defense, and he is not permitted now more than formerly to so frame his pleading by the insertion of doubtful or uncertain alle- gations therein, as to throw upon his adversary the hazard of cor- rectly interpreting its meaning, or the burden of an application to the court for an order directing the pleading to be made more definite and certain.^ If an answer is capable of being construed either as setting up a mere defense, as payment, or a counterclaim requiring a reply, the answer will be construed as setting up only the defense of payment and not as containing a counterclaim requiring a reply .^ So if a complaint is so framed that it is uncertain for which of two causes of action the plaintiff is suing, it should receive a con- struction most favorable to the opposite party." If the place > Olery v. Brown, 51 How. 93; Richards v. Edick, 17 Barb. 260, 370; Fergu- son V. Virginia, etc., R. R. Co., 13 Nev. 184; Poster v. Elliott, 33 Iowa, 316. Under tlie Wisconsin practice a pleading is construed most favorably to the pleader if no demurrer is interposed; Hamlin v. Haight, 32 Wis. 337. ' Clark V. Dillon, 97 N. Y. 370; Spear v. Downing, 34 Barb. .522; 34 How. 30-, 13 Abb. 437. - Bunge V. Koop, 48 N. Y. 22."), 231 ; Burke v. Thorne, 44 Barb. 363; Hill v. Allison, 51 Texas, 390; Tate v. Evans, 54 Ala. 16; Triscony v. Orr, 49 Cal. 612; Herrington v. Santa Clara County, 44 Cal. 496; Winter v. Quarles, 43 Ala. 693; Clark v. Dillon, 97 N. Y. 370; Lemon v. Stevenson, 36 111. 49; Corington v. Powell, 2 Met. (Ky.) 327; Patterson v. Baker, 34 How. 180; 50 Barb. 432. The rule applies even to contradictory allegations; Losch v. Pickett, 36 Kansas, 216. * Clark V. Dillon, 97 N. Y. 370. ' Bates V. Roaekrans, 23 How. 98; Burke v. Thorne, 54 Barb. 363. ^ Requa v. Guggenheim, 3 Lansing, 51. 70 Construction of Pleadings. Construction on demurrer. where a thing happened or was done is material, and the pleading is ambiguous as to the place, the presumption should be against the party whose pleading it is.' The maxim that everything shall be taken most strongly against the party pleading, or rather that if the meaning of words be equivocal they shall be construed most strongly against the party pleading them, must be taken with the qualification that the lan- guage of the pleading is to have a reasonable intendment and construction, and that when a matter is capable of different meanings that sliall be taken which will support the pleading and not the other which will defeat it.^ § 3. Construction on demurrer, — Pleadings even on demur, rer are to be liberally construed.^ A complaint on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment,'' and all reasonable intend- ments are indulged in support of the pleading demurred to.* Where a complaint states facts sufficient to constitute a cause of action and in addition facts constituting a defense, the whole must be considered together, the allegations tending to discharge as well as those tending to charge the defendant, in order to deter- mine on demurrer whether the complaint states a cause of action.'- If a complaint alleges two grounds upon which equitable relief is claimed, one of which is good and sufficient and the other insutii- cient, the latter will not vitiate or detract from the effect of the allegation as to the former.' In construing a complaint contain- ing several counts or an answer setting up several defenses or counterclaims, each count must stand alone, and be considered as ■ Beach v. Bay State Steamboat Co., 30 Barb. 433; 10 Abb. 71; 18 How. 335. ' Allen V. Patterson, 7 N. Y. 476. See ante p. 66. 3 Wall V. Bulger, 46 Hun, 348; Keteltas v. Myers, 19 X. T. 231, 333; Black- mar V. Thomas, 28 N. T. 67, 71; Ford v. Ames, 36 Hun, .';;i. 'Marie v. Garrison, 83 N, T. 14, 33; Millikeu v. Western Union Tel. Co., 110 N. Y. 408. ' Lorillard v. Clyde, 86 N. Y. 384. « Calvo V. Davies, 73 N. Y. 211. ' Boyle V. City of Brooklyn, 71 N. Y. 1. CONSTEUCTION OF PlEADINGS. 71 Construction on the trial. a separate and distinct pleading, except so far as by express refer- ence it embodies allegations of another count. ^ If the complaint contains two or more connts and one of them states a good cause of action, a general demurrer to the complaint will be overrnled.^ So a general demurrer to an entire answer will be overruled if the answer contains one good traverse to the allegations of the complaint.' In construing a complaint on demurrer, the demand for judg- ment will not necessarily characterize the nature of the action, or determine the right of the plaintiff to recover on the facts pleaded;'' though, as will be shown hereafter, the demand for relief is not wholly unimportant, and if, on the facts pleaded, the plaintiff is not entitled to any relief which he has demanded, the demurrer may be sustained, although the complaint states facts on which the party would be entitled to other relief. § 4. Constructiou on the trial. — The requirement of tlie Code that the pleadings must be liberally construed applies as a rule of construction upon the trial. Where neither of the parties have resorted to any of the remedies provided by tlie Code for the cor- rection or amendment of the pleadings, and the case comes up for trial on the issues joined, the court will be astute in spelling out from the facts at large or from such of them as may be pertinent, a cause of action or defense.'' The courts have gone to a great extent in sustaining pleadings on a trial, oven though they were extremely informal and defective, and sometimes contained aver- ments which rendered it questionable what form of action was really intended.^ Where it can be seen from an answer that a particular defense was intended, it will be sufficient to admit evi- ' Victory, Webb, etc., Mauuf. Co. v. Beecher, 55 How. 193; Simmons v. Fair- child, 42 Barb. 404; Loosey v. Orser, 4 Bosw. 391, 405; Xcnia Bank v. Lee, 2 Bosw. 694; 7 Abb. 327; Swift v. Kingsley, 24 Barb. 541; Spencer v. Babcock, 22 Barb. 326; Sinclair v. Fitch, 3 E. D. Smith, 677. ■' Hale V. Omaha Nat. Bank, 49 N. Y. 626; Seaver v. Hodgkin, 63 How. 128; Bronsou v. Markey, 53 Wis. 98. ' San Minguel Co. Comm. v. Long, 8 Col. 438. ■> Hale V. Omaha Nat. Bank, 49 N. Y. 626. s Read v. Lambert, 10 Abb. (N. S.) 428. « Veeder v. Cooley, 2 Hun, 74. 72 Construction of Pleadings. Facts specifically alleged prevail over general statements and conclusions. dence of such defense on the trial, although it is so defectively pleaded that it would be held bad on demurrer.' So if it appears from the complaint that it was the intention of the plaintiff to allege a certain fact, and that it is substantially though defectively alleged, the defendant can take no advantage of the defect on the trial. It is only incurable defects that can be then taken advant- age of. And the courts will be less strict in considering the ques- tion of sufficiency of allegations in a complaint after the defendant has answered on the merits and has waited until the trial to raise the objection than they would be if the question had been pre- sented to them by demurrer to the complaint.^ It has been said that if a party is dissatisfied with the vagueness and uncertainty of his adversary's pleading, he has his remedy by motion, and that if he does not avail himself of the remedy he will be presumed to have been satisfied with the pleading as it stood.' But it has also been said that while it is competent for a party to move to make the pleading of his adversary more definite and certain, yet, inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal statement of his alle- gations, the onus of having them made so cannot be cast upon his adversary by his own fault in failing to perform his duty; and that if he so frames his pleading that it is susceptible of two mean- ings, the failure of his adversary to move to have it made more definite and certain will not prevent the application of the general rule that a pleading susceptible of two meanings shall be construed unfavorably to the pleader.'' § 5. Facts specifically alleged prevail over general state- ments and conclusions. — In construing a pleading a specific statement of facts will always prevail as against a general state- ment, whether the general statement should be regarded as a mere conclusion of law or not.'' An averment of a legal conclu- ■ White V. Spencer, 14 N. Y. 347. •' St. John V. Northrup, 33 Barb. 35. ' Wall V. Buffalo Water-Works Co., 18 N. Y. 119. " Clark V. Dillon, 97 N. Y. 370. ' Clark V. Bowe, 60 How. 98; Hatch v. Peet, 33 Barb. 575; Page v. Boyd, 11 How. 415; Ryle v. Harrington, 14 How. 59. Construction of Pleadings. 73 Whether the pleading alleges a contract or a tort. sion is of no avail as against an admitted fact ;^ and a statement of the law as applied to certain facts stated does not conclude even the party pleading it.^ An averment of a mere conclusion without any fact to support it will always be disregarded.' The very object of the new system of pleading was to enable the court to give judgment according to the facts stated and proved, with- out reference to the form used or to the legal conclusions adopted by the pleader.'' Epithets will never outweigh inferences legiti- mately drawn from the facts stated." § 6. Whether the pleading alleges a contract or a tort. — The rule of pleading established by the Code requires the com- plaint to contain a plain and concise statement of the facts con- stituting the plaintiff's cause of action, and a demand for such judgment as the plaintiff supposes himself entitled to on the facts set forth therein. Nothing more is necessary in any case. The pleader is not required to state, either in the summons or in the complaint, the class of actions to which he conceives his cause of action belongs, as the same are denominated in judicial procedure. If the complaint states facts entitling the plaintiff to any relief whatever, then it is for the court to determine, when the ques- tion is properly presented, whether the cause of action averred is founded in contract or tort. The character of the cause of action must, in all eases, be determined by an analysis of the averments in the complaint, together with the nature of the relief demanded.^ If the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it in the nature of an action ex contractu] Where the allegations of a complaint set forth a cause of action ex contractu, and are sufficiently sustained by the testimony, it ■Jones V. Phoenix Bank, 8 N. T. 228; Getty v. Town of Hamlin, 46 Hun, 1; Scofield V. Whitelegge, 49 N. Y. 259, 261. 'Union Bank v. Bush, 36 N. Y. 631. 'Schenck v. Naylor, 2 Duer, 675; Knapp v. City of Brooklyn, 97 N.Y. 520. ^ Wright V. Hooker, 10 N. Y. 51; Union Bank v. Bush, 36 N. Y. 631. 'Louisville, etc., R. R. Co. v. Schmidt, 106 Ind. 73. 'McDonough v. Dillingham, 48 Hun, 493; Conaughty v. Nichols, 42, N. Y. 83; Elwood v. Gardner, 45 N. Y. 349; Neftel v. Lightstone, 77 N. Y. 96. ' Goodwin V. Griffis, 88 N. Y. 629. 10 74 CONSTEUCTION OF PlEADINGS. Whether the pleading alleges a contract or a tort. is not enough to authorize a nonsuit that the complaint also con- tains allegations suited to an action ex delicto} In all cases where the pleader avers the sale and delivery of property to the defendant at a fixed and agreed price, which re- mains unpaid, and also alleges that the defendant perpetrated a fraud in making the purchase, hy means of false representations as to his solvency, and a question of doubt is presented as to whether it was the intention of the pleader to set forth a cause of action ex contractu or ex delicto, the omission to allege that dam- ages have accrued to the plaintiff by reason of the fraud is ac- cepted by the court as a circumstance indicating the purpose of the pleader to rely upon the contract as constituting the cause of action.^ Where one joint owner of personal property has assumed to sell the interests of the other owners, they may repudiate tlie sale and bring trover, or ratify the sale and sue for the money re- ceived ; and where the complaint in an action by such other owners contains a demand merely for the value of their interest in the property, and does not contain the words commonly used in an action for a wrongful conversion of personal property, it will be construed as evincing an intent on the part of the pleader to waive the tort and set forth a cause of action on contract.' Where it is doubtful whether a complaint states a cause of action for a breach of contract only or a cause of action for the conver- sion of personal property, if it appears that any part of the prop- erty alleged to have been converted is not of a species for which an action of trover could be maintained, this will properly char- acterize the entire action as one on contract.'' A complaint which alleges an agreement by the defendants to deliver certain securities, a demand therefor, and that the defend- ants wrongfully refused to deliver them, and had wrongfully dis- posed of and converted them to their own use to the great damage of the plaintiff, and prays judgment for the value of the secu- rities, with interest, as the damages sustained by the plaintiff by ' Veeder v. Cooley, 2 Hun, 74; Austin v. Rawdou, 44 N. Y. 68. "McDonough v. Dillingham, 43 Hun, 493. 2 Goodwin v. Griffis, 88 N. Y. 639. * Austin V. Rawdon, 44 N. Y. 63. CoNSTEUCTION OF PlEADINGS. 75 Whether the pleading alleges a contract or a tort. means of the premises, states a cause of action on contract and not in tort.' In such case the allegation of a wrongful refusal to de- liver the securities, and of a wrongful disposition and conversion thereof, will be construed as an averment of the breach of the agreement and not as the gist of the action.^ But where the ac- tion is not founded upon a mere breach of an agreement to deliver property to the plaintiff, but upon the wrong done to the plain- tiff by the conversion of his property by the defendant, a different rule of construction applies.^ And where a complaint alleges the ownership of certain bonds by the plaintiff, their possession by the defendant, a demand for their return, and a refusal by the defendant to deliver them, it will be construed as stating a cause of action in tort, and not on contract.* A pleading is ordinarily to be construed according to its entire scope and effect rather than according to a single sentence or ex- pression therein. It may happen that after the statement in the complaint of a cause of action which clearly indicates its nature and the relief sought, the pleader may insert an allegation foreign to such cause of action, inconsistent therewith, and unnecessary to be stated ; and in such case, the court in construing the plead- ing may disregard the unnecessary allegation and treat it as stat- ing only the cause of action set up by the other allegations.^ When a complaint states a cause of action on contract the fact that it also contains allegations of fraudulent representations made by the defendant does not necessarily fix the character of the ac- tion and stamp it as one in tort.'' The words "false" and " fraudulent" have no significance in a pleading of themselves.'' A complaint, in an action brought by the purchaser of goods to recover the damages sustained by him by reason of the failure of the goods to correspond with the warranty and representations of > Austin V. Rawdon, 44 N. Y. 63; and see Vilmar v. Schall, 61 N. Y. 564. = Austin V. Rawdon, 44 N. Y. 63. 3 Smith V. Hall, 67 N. Y. 48; Smith v. Frost, 70 N. Y. 65. 4 Smith V. Frost, 70 N. Y. 65. 5 Allen v. Allen, 53 Hun, 398; Segelken v. Meyer, 94 N. Y. 473, 484; Green- tree V. Rosenstock, 61 N. Y. 583; Conaughty v. Nichols, 42 N. Y. 83. «Byxbie v. Wood, 24 N. Y. 607; Sparman v. Krim, 83 N. Y. 245; Ross v. Terry, 63 N". Y. 613; Graves v. Waite, 59 N. Y. 156. ■■ Lindsay v. Mulqueen, 26 Hun, 485. 76 Copy Account. When a party is entitled to a copy account. the defendant, which alleges that the defendant warranted and fraudulently represented the goods to be of a certain quality ; that the plaintiff relying on the warranty and representations and be- lieving them to be true was thereby induced to jjurchase and did purchase the goods ; that the goods were not of the quality war- ranted and represented, but were of a greatljr inferior quality, all of which the defendant knew at the tinae of the fraudulent war- ranty and representations, states a cause of action for a breach of warranty only, and not a cause of action for fraud or deceit.^ An averment of knowledge of the falsity of the representation does not destroy the action on contract. The true test of a plead- ing, whether it is for tort or contract in such cases, depends upon the averment of an intent to cheat or deceive by representations alleged to be false to the knowledge of the party making thera.- CHAPTER VI. Copy Account. Section 1. When a party is entitled to a copy account. — When a party has not set forth in his pleading the items of an ac- count therein alleged, the adverse party may serve upon him a writ- ten demand of a copy of the account, and when this has been done, the party pleading the account must, within ten days after such demand, serve upon his adversary a copy of the account, which must be duly verified if the pleading containing the account was verified. In case he fails to do so, he is precluded by the statute from giving evidence of the account.^ The account which an adverse party may require to be deliv- ered to him is an account containing items ; and this includes an account stated, where it contains items, but not otherwise.'' And ' Lindsay v. Miilqueen, 26 Hun, 485. ' Lindsay v. Mulqueen, 26 Hun, 485. 3 Code of Civil Pro., § 53L " Cunard v. Francklyn, 49 Hun, 233. Copt Account. 77 Demand — Proceedings when copy account is furnished on demand. where a party has served an account stated, he cannot be required to furnish a further account, showhig the transactions upon which the account stated was based. ^ § 2. Demand, how and when made. — The demand of a copy of an account pleaded by the adverse party should be in writing,^ but it need not assign any reason why it is made.^ It should be subscribed or indorsed with the name of the attorney and his of- fice address,* and indorsed with the title of the cause.^ A copy should be made to correspond with the original demand to be used with proof of service in case further proceedings should become necessary. The demand should then be served upon the attor- ney for the adverse party, and not upon the party .^ It may be made before or after issue joined, and at any time before trial.^ Delay in making the demand may render it ineffectual. A de- mand within ten days of the trial would be unavailing, as the ad- verse party has ten days in which to comply with it.* The ad- verse party may wait until the last day to comply with the de- mand, and then serve a defective account, rendei'ing an applica- tion for a further account necessary, or he may ignore the demand, rendering it necessary' to apply for an order precluding him from giving evidence of the account on the trial. Then again, the main object of procuring an account is to enable the party to see in advance what items are claimed, so that he may be prepared with his evidence on the trial. The demand should be made suf- ficiently in advance of the trial to enable, the party to make this preparation, notwithstanding the default or evasion of his adver- sary. § 3. Proceedings when copy account is furnished on de- mand. — If the demand is properly made in a proper case, the at- ■ HofE V. Pentz, 1 Abb. N. C. 388. » Code of Civil Pro., §531. 3 Tates V. Bigelow, 9 How. 186. « Rule 2, Sup. Ct. = Rule 19, Sup. Ct. « Code of Civil Pro., §799. ' Yates V. Bigelow, 9 How. 186. 8 Code of Civil Pro., § 531. 78 Copy Account. Proceedings when the demand is not complied with. torney upon whom it is made should comply with it in good faith, and for that purpose, within the ten days following the demand, should prepare and serve upon the attorney for the adverse party a copy of the account pleaded.' The copy account so served should specify the several items, stating with all practicable par- ticularity the date, amount, and general character of each item, as the party pleading intends to have it allowed upon the trial. It should state the facts which the party intends to prove, and which it would have been necessary to have stated in the plead- ing, had not the short form of pleading authorized by the Code been adopted.^ It need not give the items of payments or offsets with which the adverse party is entitled to be credited.^ If the pleading containing the account is verified, the copy ac- count must be verified by the affidavit of the party pleading it, to the effect that he believes it to be true, or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney.* The copy account must be indorsed or subscribed with the name of the attorney and his office address or place of business,' must be folioed if of more than two folios in length, and must be indorsed with the title of the cause.'' It is the copy account which should be served, and the original should be retained by the party as it is in effect a part of his pleading. § 4. Proceedings when the demand is not complied with. — The Code provides in substance that a party who has pleaded an account without setting forth the items thereof, and has wholly failed to deliver to the adverse party a copy of the account within ten days after a written demand therefor has been served npon him is precluded from giving evidence of the account.^ It would ' Code of Civil Pro., § 531. ' Kellogg V. Paine, 8 How. 329. ' Williams v. Shaw, 4 Abb. 209. * Code of Civil Pro,, §531. 5 Rule 2, Sup. Ct. « Rule 19, Sup. Ct. ' Code of Civil Pro., § 531. Copy Acco0nt. 79 Proceedings where a defective account is served. eeem from the language of tlie statute that a trial court would be authorized to exclude evidence of the account on an objection taken thereto and proof of a demand and of failure to comply therewith, without any formal order made in advance of tlie trial.^ But it has been held to be the better practice,^ and indeed absolutely necessary,^ for a party who intends to preclude his adversary from proving an account on the ground that he has not complied with a demand for a copy thereof, to make applica- tion to the court by motion before the trial, for an order pre- cluding him from giving evidence of his account on the trial; and it is also held that it is not error to admit evidence of an account, notwithstanding a demand for a copy thereof has been made and disregarded, where an order excluding such evidence has not been secured before trial." Tlie motion should be based upon the pleading containing the account, upon the demand and proof of service, and upon an atSdavit showing a failure to comply with the demand. The motion should be made upon the usual notice or, in a case demanding it, upon an order to show cause. If tlie party pleading the account relies upon an account stated, he may be precluded from giving evidence of the items of his demand further than may be necessary to prove the settlement of the sum due." § 5. Proceedings where a (lefectire account is served. — Where a party, on demand, made in writing for a copy of an account, has served an account which is defective, he may be com- pelled to furnish a further account on an application made for that purpose. The Code provides that the court, or a judge authorized to make an order in the action may direct the party to deliver a further account where the one delivered is defective.^ ■ It is a matter of daily practice for the court to exclude on the trial evi- dence of an item, not embraced in a copy account or bill of particulars served, on the bare objection of the party; and if the power exists as to one item it should extend to all. See Dwight v. Germania Ins. Co., 84 N. Y. 493, 506. ^ Kellogg V. Paine, 8 How. 339; Gebhard v. Squier, 13 Civ, Pro. 43. 3 Whitehall, etc., R. R. Co. v. Myers, 16 Abb. (N. S.) 34. * Gebhard v. Squier, 13 Civ. Pro. 43. ' Goings V. Patten, 17 Abb. 839; 1 Daly, 168. « Code of Civil Pro., § 531. 80 Copy Account. Proceedings where a defective account is served. The motion for an order directing a further account may be made at any time before trial/ though there are the same reasons for moving promptly iu this case that dictate prompt action where no account is furnished on demand.^ The motion should be based upon the pleading containing the account, upon the de- mand and proof of service, and upon the copy account served, though it will not be necessary to serve any of these papers upon the adverse party. If an order is made directing a further ac- coimt it should specify the particulars in which the copy served is defective. If this order is not complied with an application should then be made to the court for an order precluding the party from giving evidence of the account,' and for such other or further relief as may be proper. If on the demand, the pleader has furnished an account stated a further account should not be ordered:* The Code prescribes the penalty which follows a fail- ure to deliver a copy account at the demand of the adverse party but is silent as to the penalty for a failure to deliver a further account when ordered by the court. The court has always pos- sessed the power to enforce obedience to its orders, and is never at a loss for appropriate remedies to compel a compliance there- with. If a plaintiff refuses to obey an order of the court requir- ing him to furnish a copy of his account, the court may, as a penalty, stay his proceedings until he complies with the order, or may, in advance, order that his proof be excluded, or may strike out his complaint and dismiss the action.' • Yates V. Bigelow, 9 How. 186. 2 Ante, p. 77. 2 Kellogg V. Paine, 8 How. 329. See D wight v. Germania Life Ins. Co., 8-1 N. Y. 493, 506. "Hoff V. Pentz, 1 Abb. N. C. 288; Cunard v. Francklyn, 49 Hun, 333. > Gross V. Clark, 87 N. Y. 273. Bill of Pakticolaes. 81 Nature, scope and office of a bill of particulars. CHAPTER VII. Bill of Pabticulaes. Section 1. Nature, scope and office of a bill of particulars. — A bill of particulars is in aid of a pleading, and is sometimes called an amplification of the pleading.^ The particulars are deemed a part of the pleading the same as if incorporated in it ; ^ and on the production of an order for a bill and proof that one was delivered under it, the parties will not be allowed to give evidence beyond it.^ The ofiice of a bill of particulars is to amplify a pleading and indicate specifically the claim set up, while its effect is to restrict the proofs and limit the demand to the matters specified in it. Its entire scope and nature is to furnish information to an oppo- nent and to the court of the specific proposition for which the party contends in respect to any material and issuable fact in the case, and not to disclose the evidence relied upon to establish any such proposition.* It is not the office of a bill of particulars to furnish a defendant with facts whereon to found an afiirmative defense in his behalf. ^ It is not the office of a bill of particulars to state the grounds upon which a party claims to recover, but only to point out the items or particulars of his claim. "^ A bill of particulars is only necessary when justice demands that a party should be apprised of matters with greater particularity than is required by the rules of pleading.' A bill of particulars is not the appropriate remedy for indefi- niteness and uncertaintj' in pleading, but for want of particularity. ' Matthews v. Hubbard, 47 N. Y. 428; Higgenbotam v. Green, 35 Hun, 214. » Fleurot v. Durand, 14 Johns. 339. 3 Holland v. Hopkins, 3 B. & P. 243; Hurst v. Watkis, 1 Camp. 69. * Passavant V. Cantor, 48 Hun, 546; Higgenbotam v. Green, 35 Hun, 314; Hall V. Evening Post Pub. Co., 38 Hun, 11; Newell v. Butler, 38 Hun, 104; Drake v. Thayer, 5 Rob. 694; Gee v. Chase Manuf. Co., 13 Hun, 630; Bangs v. Ocean Nat. Bank, 53 How. 51; Orvis v. Dana, 1 Abb. N. C. 368; Stevens v. "Webb, 4 Civ. Pro. R. 64; Garfield v. Paris, 96 U. S. 557. ' Drake v. Thayer, 5 Rob. 694; Case v. Pharis, 106 N. Y. 114. ' Seaman v. Low, 4 Bosw. 337. 1 Orvis V. Dana, 1 Abb. N. C. 368, 387. 11 82 Bill of PAETiotrLAES. In what actions a bill of particulars may be ordered. For the former defect the remedy is by motion under section 546 of the Code.' A pleading may be free from indefiniteness and uncertainty and yet so general that the opposite party cannot pre- pare to meet it at the trial. The common counts in assumpsit are familiar instances of pleadings of that nature. In such cases an application to the court for a bill of particulars is the appropriate remedy.^ But if the original pleading itself states the proposi- tions or facts relied upon by the pleader so specifically and par- ticularly that to require him to give further information in refer- ence thereto would compel him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for.^ The real purpose of ordering a bill of particulars is to reach jus- tice between the parties by evolving the truth from their discordant statements, and to give the parties every reasonably facility for coming to the trial fully prepared for all that may be produced by the other side.* The object is to enable a party reasonably to protect himself against surprise, not to impede the prosecution of the action nor unnecessarily increase its expense.' § 2. lu what actions a bill of particulars may be ordered. ■ — The Code provides that the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party.'' The power to order a bill of particulars is an incident to the general authority of the court in the administration of justice and has not been abridged by the Code. It extends to all descriptions of actions when justice demands that a party should be apprised of the matter for which he is to be put for trial with more partic- ularity than is required by the rules of pleading, and is not con- fined to actions upon demands for money made up of various items.' > Tilton V. Beecher, 59 N. Y. 176, 183. 2 Ball V. Evening Post Pub. Co., 38 Hun, 11. 3 Newell V. Butler, 38 Hun, 104. ■■ Liscombe v. Agate, .51 Hun, 388. 5 Butler V. Mann, 9 Abb. N. C. 49. ' Code of Civil Pro., § 531. ' Tilton V. Beecher, 59 N. Y. 176; D wight v. Germania Ins. Co., 84 N. Y. 493; Liscombe v. Agate, 51 Hun, 288. Bill of Paeticulaes. 83 In what actions a bill of particulars may be ordered. ' A bill of particulars has been ordered in an action of libel/ escape,^ ejectment,^ trover/ slander/ trespass/ crim. con.^ quo warranto,^ and may be ordered in an action for divorce, though in actions of the latter class the power is rarely exercised.^ In an action brought for services and disbursements the plain- tiii may properly be required to state the particnlar months during which his expenses were incurred, the amount paid for railroad fares and hotel bills, so far as practicable, and the amount paid for office expenses.'" A broker may be required to show fully and specifically each item of an account which he charges against his client.^' A bill of particulars may be ordered in an action for obstructing a right of way;'^ in an action to charge trustees of a savings bank with a fraudulent misappropriation of its assets ; '^ in an action to recover damages for false representations concerning the plaintiff whereby he was prevented from obtaining employment ; " in an action for dam.ages sustained by reason of a conspiracy to with- hold evidence in a previous action /^ in an action for a fraudulent combination and conspiracy to procure money on false vouchers /^ and in actions for damages resulting from negligence.'^ ' New York Infant Asylum v. Roosevelt, 35 Hun, 501; Orvis v. Dana, 1 Abb. N. C. 268; 6 Daly, 434; Ball v. Evening Post Pub. Co., 38 Hun, 11. '- Davies v. Chapman, 6 Add. & El. 767. s Doe V. Phillips, 6 Term. R. 597; Doe v. Broad, 2 Man. & Gr. 523; Vischer V. Conant, 4 Cow. 396; Stevens v. Webb, 17 Weekly Dig. 213. - Humphrey v. Cottelyou, 4 Cow. 54; Robinson v. Comer, 13 Hun, 291. ' Jones V. Piatt, 60 How. 277; Stlebeling v. Lockhouse, 21 Hun, 457; Gar. dinier v. Knox, 27 Hun, 500; 15 Weekly Dig. 222; Daniel v. Daniel, 2 Civ. Pro. R. 238; Early v. Smith, 12 Irish Com. L. appendix, 35. « Johnson v. Birley, 5 B. & A., 540. ' Tilton V. Beecher, 59 N. Y. 176; Shaffer v. Holm, 28 Hun, 264 8 People v. Nolan, 63 How. 271; 10 Abb. N. C. 471. ' Cardwell v. Card well, 12 Hun, 92; Ansert v. Ansert, 2 Law. Bull. 19. See De Carrillo v. Carrillo, 53 Hun, 359. '» Gee V. Chase Manuf. Co., 12 Hun, 630. " Miller v. Kent, 23 Hun, 657; 60 How. 388. " Vanderzee v. Hallenbeck, 14 Civ. Pro. R. 99; 14 St. Rep'r, 449. '3 Friedburg v. Bates, 24 Hun, 375. ■•' Goldsmith v. Glatz, 27 Week. Dig. 453. IS Leigh V. Atwater, 2 Abb. N. C. 419. " Mayor v. Marrener, 49 How. 86. " Kersch v. Rome, Watertown & Ogdensburgh R. R. Co., 14 St. Eep'r, 446. 84 Bill of Pakticulaes. Either party required to furnish — The demand of relief not controlling. The power of the court to order a bill of particulars is most frequently exercised in actions on contracts involving accounts, but as will be seen from the foregoing cases, the power is not restricted to any particular class of actions and may be exercised in all cases where it appears that justice requires that a more par- ticular statement should be given to the moving party of the claim made against him than has been furnished by the pleading of his- adversary. A bill of particulars may be ordered in an action on an account stated, where the defendant seeks to open the account and assail the balance of the account as stated, whether he admits or denies that the account was looked over and a balance struck.' A bill of particulars may be ordered of the consideration for which certain assignments were executed and delivered.^ § 3. Either party may be required to furnisli a bill of par- ticulars. — The Code declares that the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party .^ Under this provision of the Code the court has power to order a bill of particulars on the application of the plaintiff as well as on the application of the defendant, and a defendant may be ordered to give the particulars of the facts which he expects to prove although his answer does not seek or demand affirmative relief.* § i. The demand of relief not controlling. — The word "claim" as used in the statute authorizing the court to order a bill of particulars, is not equivalent to " demand " and " cause of action " and was not designed to restrict the exercise of the power to cases in which affirmative relief is asked. The " claim " referred to in the section, when considered in its application to the answer of a defendant, is whatever is set up by him as a reason why the action may not be maintained against him, whether the matter is- ' Wells V. Van Aken, 39 Hun, 315. 2 Gas- Works Co. v. Standard Gas-Light Co., 47 Hun, 255. 3 Code of Civil Pro., § 531. ■» Dwight V. Qermania Life Ins. Co., 84 N. T. 493; Liscomb v. Agate, 51 Hun, 288. Bill of Paeticulaes. 85 When a bill of particulars will not be ordered. -set up as a bare defense or as a basis for a demand for affirmative relief.' § 5. When a bill of particulars will not be ordered. — "Whether a bill of particulars shall be ordered, aud what shall be the scope of the bill, if ordered, is a inatter resting in the sound 'discretion of the court of original jui-isdietion, to be determined by the particular facts of each particular case.^ But there are certain general principles which guide the courts in the exercise of tliis discretion. If the original pleading states the facts relied upon so specifi- cally and particularly, that to require the party pleading to give further information in respect thereto would force him to disclose the evidence which he expects to produce to support them, a bill of particulars is uncalled for, and will be denied.^ So an applica- tion for a bill of particulars will be denied when it calls upon the pleader to furnish information presumably more within the knowl- •edge of the moving party than of his adversary j' or where the moving party has already been furnished with the means of ob- taining the information soiight."* So a bill of particulars will be de- nied where the granting of the order would compel the pleader to furnish arguments and legal conclusions rather than facts.^ Thus, ' See Orvis v. Dana, 1 Abb. ^r. C. 368, 281; Kelsey v. Sargent, 100 N. Y. 602. ' Higgenbotam v. Green, 35 Hun, 214; Vanderzee v. Hallenbeck, 14 Civ. Pro. E. 99; 14 St. Rep'r, 449; Passavant v. Cantor, 48 Hun, 546; Witkowski V. Paramore, 93 N. Y. 467. ' Passavant v. Cantor, 48 Hun, 546; Higgenbotam v. Green, 25 Hun, 314; Hall V. Evening Post Pub. Co., 38 Hun, 11; Newell v. Butler, 38 Hun, 104; Drake v. Thayer, 5 Rob. 694; Gee v. Chase Manuf. Co., 12 Hun, 680; Bangs V. Ocean Nat. Bauk, 53 How. 51; Orvis v. Dana, 1 Abb. N. C. 268; Stevens V. Webb, 4 Civ. Pro. R. 64; Ottman v. Griffin, 53 Hun, 164. ' Passavant v. Cantor, 48 Hun, 546; Fink v. Jetter, 38 Hun, 163; Powers v. Hughes, 7 Jones & Sp. 483; Young v. De Mott, 1 Barb. 30; Blackie v. Neil- son, 6 Bosw. 681. = Depew V. Leal, 5 Duer, 663; Lane v. Williams, 37 Hun, 388. In the former case the action was between partners, aud the moving party had an order for ihe inspection of the partnership books and papers. In the latter case the moving party had examined the party pleading at length upon the subjects specified in the motion for the bill. 6 Bennett v. Wardell, 43 Hun, 452. 86 Bill of Particulars. When a bill of particulars will not be ordered. where, in an action of partition the complaint alleges that one of the defendants claims an interest in the premises under an appar- ent devise which is void, an order will not be granted requiring tlie plaintiff to furnish a bill of particulars stating the particular grounds on which the devise is claimed to be void.^ So w^here the complaint in an action for malicious prosecution alleges that the plaintiif's credit and business were injured by the prosecution,, the plaintiff cannot be compelled to furnish a bill of particulars of the persons who i-ef used to give him credit ; the amount of credit refused ; the damages sustained by each refusal ; the times when credit was refused ; the name of each person who stopped dealing with the plaintiff ; and the amount of custom lost by each person.^ And, generally, a plaintiff will not be required to furnish a bill of particulars of matters amounting to mere evidence of special damage.^ A defendant should not be compelled to give a bill of particulars of the contributory negligence set up in the answer,* nor should he be compelled to give a bill of particulars of mitigating circumstances in an action of libel.^ So in an action to recover damages for injuries to property resulting from negli- gence, a bill of particulars of the items of damage will rarely be ordered. ^ A party will, not be required to furnish a biU of particulars where it appears that he has not the information necessary to pre- pare it, and that the facts are all in possession of the moving party .'^ Where the plaintiff is unable to state the precise dates or amounts of disbursements in transactions with the defendant, and the de- fendant has books of account containing the dates, the plaintiff will not be required to furnish a bill of particulars.* A plaintiff who has unnecessarily alleged the sale and delivery of goods, wares and merchandise, as the consideration of a note ■ Bennett v. Wardell, 43 Hun, 452. « Lane v. Williams, 37 Hun, 388. ^ Dooley v. Royal Baking Powder Co., 1 Law Bull. 18. ^ Dazel V. Haaren, 20 Abb. N. C. 285, note. - Holme.s v. Jones, 13 St. Rep'r, 57; 13 Civ. Pro. R. 260. « MuUer v. Bush, etc., Mauuf. Co., 1 How. (N. S.) 50. ' Wigand v. Dejonge, 18 Hun, 405; Powers v. Snedeker, 5 Law Bull. 23; Hoeninghaus v. Clialeyer, 23 St. Rep'r, 528. 8 Train v. Friedman, 4 Civ. Pro. R. 109; 17 Week. Dig. 573. Bill of Particulars. 87 Application for the order. set forth iu the complaint as the cause of action, may defeat a de- mand for a bill of particulars of the goods, wares and merchan- dise, by serving an amended complaint omitting a statement of the consideration of the note.' "Where the answer in an action on contract negatives the per- formance of the contract by the plaintiff as set forth in the com- plaint, by alleging that the plaintiff did not perform certain acts specifically set forth, this is in effect a denial of the plaintiff's cause of action, and cannot be regarded as setting np any such claim as to render it proper to require a bill of particulars of the matters so alleged.^ § 6. Application for the order. — The application for an order directing the delivery of a bill of particulars to the moving party should be made to the court^ even though the issues in the action have been referred.* It should be made on the usual notice to the adverse party, and should be based on the pleading sought to be amplified and an affidavit showing the necessity for the order. ^ As the order will not be granted as of course but will be granted or refused according to the case presented, it is important that the affidavj^t, in connection with the pleading, should show clearly that justice demands that the moving party should be apprised with greater particularity of the claim made against him. The aflidavit should allege a want of knowledge on the part of the moving party of the facts as to which he demands a bill of particulars. Except in very rare cases this affidavit should be made by the moving party and not by his attorney.^ If the application is made before answering, and the defendant desires an extension of time to plead, he may incorporate in his moving papers the substance of the affidavit required by the rules of court^ on application for an extension of time to answer, and obtain this ' Smith V. Pfister, 39 Hun, 147. ' Goddard v. Pardee Medicine Co., 52 Hun, 85. 3 Code of Civil Pro., § 531. < See Walter v. Walter, 4 Hun, 195. ' Willia V. Bailey, 19 Johns. 268 ; Orvis v. Dana, 1 Abb. N. 0. 268. - Hoeuinghaus v. Chaleyer, 22 St. Rep'r, 528. ' Rule 24 Sup. Ct. 88 Bill of Paeticulars. Form and contents of the order. f urtbei- relief in case his application is granted.^ The application may be made either before or after issue, but if the moving party is guilty of laches in making the motion it will operate to his prejudice." It was held under the old practice that the fact that a bill of particulars was not applied for until after issue joined was a suspicious circumstance, and that the judge to whom the application was made should require a good excuse for the delay in moving, and before granting the motion should be well satisfied that the object of the party was not delay.' After the issues have been referred and a trial commenced before the referee, it will be too late to move for a bill of particulars.'' If the plaintiff has been guilty of great laches in taking any steps to bring the cause to trial, he may be thereby precluded from opposing the motion on the ground of the laches of the defendant in making it.^ The motion for a bill of particulars may always be opposed upon the groiind that the pleading is sufBciently specific in its allegations ; or that the particulars sought are presumably within the knowledge of the moving party ; or that he has the means of informing himself in respect thereto; or that, for any other reason, a bill of particulars is unnecessary.^ But the merits of the case cannot be inquired into on the motion.' §7. Form and contents of the order. — An order for the delivery of a bill of particulars should specify the several matters as to which fuller details are required. The scope of the order is ordinarily a question of discretion depending upon the circum- stances of the case.^ > Piatt V. Townsend, 3 Abb. 9; 5 Duer, 668. ' Vanderzee v. Hallenbeck, 14 St. Rep'r, 447 ; 14 Civ. Pro. R. 99; De Car- rillo V. Carrillo, 53 Hun, 359, 361. ^ Andrews v. Cleveland, 3 Wend. 43. < Cadwell v. Goodnougb, 38 How. 479; 3 Rob. 706; 3 Rob. 633. Taking « deposition by consent is not the beginning of a trial. McLaughlin v. Kelly, 23 Abb. N. C. 286. s Winchell v. Martin, 14 Week. Dig. 458. « See Wigand v. Dejonge, 18 Hun, 405; Hoeninghaus v. Chaleyer, 33 St. Rep'r, 528 ; ante, p. 85. ' Matthews v. Hubbard, 47 N. Y. 428. 8 Witkowski v. Paramore, 93 N. Y. 467. Bill of PAETiouLAESi S9 Form and contents of a bill of particulars. Under the old practice the order directed that a bill of par- ticulars be furnished to the moving party by a certain day or that the adverse party then show cause why the same has not been done. If no good cause was shown on that day the court made the order absolute.' It is now the usual practice to direct that a bill of particulars be delivered to the moving party within a time specified, which is usually ten days from the service of a copy of the order. The order sometimes provides that the party be precluded from giving evidence upon the trial as to the matters referred to in the order, further than is specified in the bill of particulars.^ § 8. Form and contents of a bill of particulars.— Where a bill of particulars has been ordered, the party has his election whether he will comply with the order and serve the bill, or ap- peal from the order and obtain a review of it at the General Term, or whether he will refuse to obey the order and accept the penal- ties imposed in consequence of such refusal. If he elects to serve a bill of particulars he should prepare a bill which is in substantial compliance with the terms of the order. If he is called upon for the particulars of an account, he should state with all practicable particitlarity the date, amount and char- acter of each item as he proposes to establish it by proof at the trial.^ If the party cannot state the precise date of an item he should at least give the month or year.* Though the time may not be material in the pleading, it is in the bill of particulars.' The bill should state how the items claimed became due.^ It need not include items on which no claim is made,' nor need it state more than the party is bound to prove.* It is not necessary to specify items already described in the pleadings ; ^ and whei-e - Roosevelt v. Gardinier, 3 Cow. 463; Brewster v. Sackett, 1 Cow. 571. ' Dwight V. Germania Life Ins. Co., 84 N. Y. 493, 506. ^ Kellogg V. Paine, 8 How. 329; Wetmore v. Jennys, 1 Barb. 53. ' Humphrey v. Cottelyou, 4 Cow. 54. ' Quin V. Astor, 2 Wend. 577. « Moran v. Morrissey, 18 Abb. 131; 28 How. 100. ' Drake v. Thayer, 5 Rob. 694. 8 Matthews v. Hubbard, 47 N. Y. 438. ' People V. Monroe Common Pleas, 4 Wend. 200. 12 90 Bill of Paeticulars. Proceedings when no WU is furnished. an account has already been delivered it is allowable to refer to it generally in the bill of particulars.' A plaintiff is not bound to furnish particulars of set-offs or payments by the defendant with which he has volunteered to credit him in his complaint.^ Although the original pleading is verified the bill of particulars need not be verified unless the order requires it,^ though the prac- tice seems to be otherwise understood in the city court of New York/ § 9. Proceedings when no bill is furnished. — When an order has been made requiring a party to furnish a bill of particulars of his claim, and the order has not been comphed with, the adverse party may rest until the trial, and then, by taking the proper ob- jections, preclude the part}^ in default from giving evidence of such claim.' But this is not the only remedy. If a plaintiff re- fuses to obey the order of the court requiring him to furnish a bill of particulars of his claim, the court may as a penalty stay his proceedings until he complies with its order, or may in advance order that liis proof be excluded, or it may strike out his com- plaint.'' Before the Code it was the undisputed law that the court could strike out the declaration and dismiss the action, if an order requiring the service of a bill of particulars was not obeyed.'^ So if the defendant has been ordered to serve a bill of particulars of a counterclaim and has refused to obey the order, the plaintiff may move for an order precluding the defendant from giving ' Goodrich v. James, 1 Wend. 389. 2 Williams v. Shaw, 4 Abb. 209; Giles v. Betz, 1.5 Abb. 385; Ryckman v. Haight, 15 Johns. 232; Case v. Pharis, 100 N. Y. 114. 3 Shaukland v. Bartlett, 15 Civ. Pro. R. 24; 17 St. Rep'r, 385. ■> Withers v. Toulmin, 13 Civ. Pro. R. 1. - Dwight V. Germania Life Ins. Co., 84 N. Y. 493. There seems to be some question as to the power of the court to exclude evidence on the trial for a failure to comply with an order for a bill of particulars where no order for the exclusion of the evidence has been obtained in advance. See Whitehall, etc., R. R. Co. V. Myers, 16 Abb. (N. S.) 34; Moore v. Belleni, 10 Jones & Sp. 184. " Gross V. Clark, 87 N. Y. 373. ' Symonds v. Craw, 5 Cow. 279; Wetmore v. Jennys, 1 Barb. 53; Purdy v. Warden, 18 Wend. 671. Bill of Paeticulaes. 91 Proceedings where a defective or evasive bill is furnished. evidence at the trial of such counterclaim,^ or may move for an order striking out so much of the answer as contains the counter- claim.^ It is probably the safer practice to settle all questions as to the exclusion of evidence for failure to comply with the order of the court by an application to the court in advance of the trial.' The proceedings on an application of this nature are substan- tially the same as on the failure to furnish a copy account on de- mand.* § 10. Proceedings where a defective or eyaslTe bill is fur- nislied. — Where a party lias been ordered to furnish a bill of particulars, and has attempted to comply with the order, the adverse party, if dissatisfied with the bill furnished, should move for an order directing a further bill. He cannot wait until the trial of the cause and then raise an objection to tlie sufficiency of the bill.^ This application should be made to the court on' the usual notice, and should be based on the original pleading, the prior order for the bill of particulars, and the bill served under such order. On such application the court may make an order directing the service of a further bill of particulars, and may provide in the order that in case of a failure to comply therewith the pleading of the party be stricken out.^ The same penalties attach to a failure to serve a further bill of particulars when ordered, as to a failure to serve any bill iinder the original order, and the proceedings of the moving party are substantially the same in both cases. § 11. Amendment of the Wll. — Where a defendant has been allowed to amend his answer on the trial, the plaintifE may be allowed to amend his bill of particulars also,' and where there is ' Mercer v. Sayre, 3 Jolins. 248. » Wilson V. Fowler, 44 Hun, 89. ' See Gebhard v. Squier, 13 Civ. Pro. R. 43; Whitehall, etc., R. R. Co. v. Myers, 16 Abb. (N. S.) 34; Moore v. Belleni, 10 Jones & Sp. 184. ■* See ante, p. 78. ' Barnes V. Henshaw, 21 Wend. 426; Whitehall, etc., R. R. Co. v. Myers, 16 Abb. (N. S.) 34. « Gross V. Clark, 87 N. Y. 273; Wilson v. Fowler, 44 Hun, 89. ' Melvin v. Wood, 3 Keyes, 533; 4 Abb. (N. S.)438. 92 Bill of Paeticulaes. Effect of the bill. no possibility of surprise the court ma)- allow the amendment of a bill of particulars at the close of the evidence, so as to include an item omitted by mistake but clearly proved upon the trial.^ A plaintiff who has unnecessarily furnished a statement of pay- ments or offsets which he has voluntarily credited, and by mis- take has presented the matter in such a manner as to imperil his right or to render his meaning ambiguous, may on the trial obtain leave to strike out the credit. It seems that an amendment is always permissible where it seeks to strike out what is immaterial to the bill and a needless addition, leaving the moving party's side of the account unchanged.^ § 12. Effect of the bill. — The effect of a bill of particulars is to restrict the proofs of the party serving it to the matters speci- fied.^ But the bill of particulars, like the pleading it amplifies is entitled to a reasonable construction. If the plaintiff in an action for professional services has furnished a bill of particulars, speci- fying the nature of his services, the dates between which they were rendered and the amount claimed, his proofs will be re- stricted in these respects ; but the addition to an item of the words "per agreement," will not restrict him to proof of a special agreement fixing the price." Slight variances between the bill of particulars and the evidence will not be regarded. Ya- riances are immaterial unless they are calculated to mislead.' A variance of a year between the evidence given on the trial and the statement in the bill of particulars as to the time of sale of a horse, will not be regarded.' A verdict will not be interfered with merely because evidence has been given of greater damage, loss or value than the amount specified in the bill of particulars, if the evidence was let in without objection.'' • Parsons v. Sutton, 66 N. T. 93. » Case V. Pharis, 106 N. Y. 114. ' Matthews v. Hubbard. 47 N. T. 428. « Robinson v. Weil, 45 N. Y. 810. ' M'Nair v. Gilbert, 3 Wend. 344; Smith v. Hicks, 5 Wend. 48. « Duncan v. Ray, 19 Wend. 530. 'Chadbourne v. Delaware, Lackawanna, etc., R. R. Co., 6 Daly, 215; Colrick V. Swinburne, 105 N. Y. 503. Peoceedings Peeliminaet to Pleading. 93 Discovery of books, papers and documents. Although the plaintiff, after delivering a bill of particulars of his demand, cannot himself give evidence out of it at the trial, yet if the defendant's evidence shows that there are other items which the plaintiff might have included in his demand, he is en- titled to recover all that appears due to him.' CHAPTER VIII. Peoceedings Peeliminaet to Pleading. Section 1. Discovery of books, papers and documents. — It frequently happens that a party is unable to frame his plead- ings without the production, discovery or inspection of books, papers and documents in the possession of the adverse party, and that a proceeding to obtain such discover^' or inspection becomes an essential preliminary to pleading. A court of record, other than a justice's court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a cop)y, of a book, document or other paper, in his possession or under his control, relating to the merits of the action, or of the defense therein.^ The application for a discovery may be made in the following cases : 1. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the defend- ant, which may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant. 2. The plaintiff may be compelled to make a like discovery of books, papers and documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff.' To entitle a party to procure such a discovery or inspection, he ' Williams v. Allen, 7 Cow. 314. 2 Code of Civil Pro., § 803. ' Rule 14, Sup. Ct. The Code provides that the general rules of practice must prescribe the cases in which a discovery or inspection may be compelled and the proceedings for that purpose where they are not prescribed in that act. Code of Civ. Pro,, § 804. •4 Proceedings Peeliminart to Pleading. Discovery of books, papers aad documents. ihould make an application to the court or to a judge authorized make an order in the action, upon a petition, stating the facts md circumstances upon which the rehef is claimed, and that the )ooks, papers and documents whereof the discovery or inspection vith copy is sought are not in the possession nor under the control )f the moving party. The moving party must show to the satis- "action of the court or judge the materiality and necessity of the liscovery sought, the particular information which he requires, md that there are entries in the book or paper referred to of the natter he seeks a discovery of, or inspection with copy. The petition should close with a prayer foi- the relief desired, and should be duly 'verified by affidavit.' The petition should point out the particular books, papers or iocuments which the party desires produced with snfiicient pre- jision to enable the adverse party to know what is required, ;hough it is not necessary to describe them with perfect accuracy;^ t should allege that the books or papers are in the possession or inder the control of the adverse party,^ or was in his pos- iession so recently as to raise a presumption of continuance of jossession.^ An allegation that the moving party is advised and 7eril3' believes that a paper is under the control of the adverse Darty, is sufiicient until denied.^ The petition must specify what nformation is wanted, '' and must allege positively, and not on nere information and belief, that the books or papers referred ;o contain such information,' even though the party in whose ' Code of Civil Pro., § 805; Rule 15, Sup. Ct. 5 Low V. Graydon, 14 Abb. 443; Cornish v. Wormser, 53 Hun, 40; Jackling 1. Edmonds, 3 E. D. Smith, 539; Merguelle v. Continental Bank Note Co., 7 Rob. 77 ; Phelps v. Piatt, 54 Barb. 557; Speyers v, Torstrich, 5 Rob. 606; Olney J. HatcliflF, 87 Hun, 286. 2 Code of Civil Pro., § 803. ■* It seems that \vhere the petition shows a paper in the hands of the adverse jarty "when last seen, the burden is on the latter to show what he did with it. Perrow v. Lindsay, 53 Hun, 115; Low v. Uraydon, 14 Abb. 443. ' National Oleo Meter Co. v. Jackson, 23 Jones & Sp. 444. ^ People V. Rector, etc., of Trinity Church, 6 Abb. 177; Lynch v. Henderson, [0 Abb. 345, note ; New England Iron Co. v. N. Y. Loan, etc., Co.. 55 How. 351. ■" Walker v. Granite Bank, 44 Barb. 39; 19 Abb. Ill; People v. Rector, etc., if Trinity Church, 6 Abb. 177; Dickie v. Austin, 65 How. 420; Morrison v. Sturges, 36 How. 177. Proceedings Peeliminabt to Pleading. 95 Discovery of books, papers and documents. behalf the application is made is absent and therefore unable to verify the petition.' At least it must appear on the face of the petition that there is a probability that the books or papers contain the information sought.^ But absolute proof of the existence of documentary evidence of the matter in question is not required.' It should also allege that the moving party has requested an inspection of such books and papers, and that the request was denied/ and that he is not in pos- session of the information sought, and cannot obtain it except from, an inspection of the books and papers.^ It must be made to ap- pear from facts and circumstances set forth in the petition that a discovery or inspection is necessary.^ The opinion of the party as to the necessity of the discovery cannot take the place of facts,'' nor is a mere allegation of advice of counsel sufficient, though such an allegation is proper in connection with the facts.* Facts should be stated which will enable the court to determine whether the information sought is material,' and it should appear that it is ma- terial to the apphcant's case, and not merely to that of the adverse party .^^ The petition must show that the papers relate to the mer- its, and in what respect they relate to the merits." ' Walker v. Granite Bank, 44 Barb. 39; 19 Abb. 111. ^ New England Iron Co. v. N. Y. Loan & Imp. Co., 55 How. 351; Pegram v. Carson, 10 Abb. 340; Hoyt t. American Excb. Bank, 1 Duer, 652 ; 8 How. 89; Thompson v. Erie Ry. Co., 9 Abb. (N. S.) 313; Davis v. Dunham, 13 How. 435. It has been held that it is not enough to show that the papers will probably furnish the desired information (Dickie t. Austin, 65 How. 430), nor that they will furnish information to obtain evidence which may be material. Morrison V. Sturges, 26 How. 177. 3 Ahlymeyer v. Healy, 12 St. Rep'r, 677; Lefferts v. Brampton, 34 How. 357. ■• Gross V. Bock, 14 Civ. Pro. R. 314. See McAllister v. Pond, 15 How. 399. - Hausemau v. Sterling, 61 Barb. 347; McAllister v. Pond, 15 How. 399. See Deyett v. Seymour, 13 Civ. Pro. B. 137. «\Vilkiev. Moore, 17 How. 480; Gelson v. Marshall, 6 How. 398; McAllis- ter V. Pond, 15 How. 399. ' Wilkie V. Moore, 17 How. 480. 8 McAllister V. Pond, 15 How. 399; Strong v. Strong, 3 Rob. 675; 1 Abb. (N. S.) 233. « Brooklyn Life Ins. Co. v.Pierce,7 Hun, 336; Morrison v. Sturges, 26 How. 177. '» Cutter V. Pool, 3 Abb. N. C. 130; Andrews v. Towushend, 16 Jones & Sp. 163; 2 Civ. Pro. R. 76; Saiiger v. Seymour, 42 Hun, 641. " Oassard v. Hinman, 6 Duer, 695; Morrison v. Sturges, 26 How. 177; Woods T. De Figaniere, 25 How. 533. 96 Peooeedings Peeliminaey to Pleading. Discovery ol' books, papers and documents. The petition should be verified by the party, and if verified by his attorney, some excuse or reason should be given why it is so verified.^ The petition may be verified by a person other than the party, if he has the requisite knowledge of the facts ;^ but the absence of the party will not justify the substitution of allega- tions on information and belief, for the positive allegations re- quired by the courts.' Where the application is in behalf of a partnership, one partner may verify alone.* The application should be made ex parte on a petition so framed and verified.^ Perhaps an application made on affidavits and no- tice would not be denied because not founded on a petition,^ but there is no reason why the practice prescribed by the statute should not be followed. Upon the presentation of the petition, the court or a judge authorized to make an order in the action may make an order directing the party against whom the discov- ery or inspection is sought, to allow it, or in default thereof to show cause before the court, at a time and place and upon a no- tice therein specified, why tlie prayer of the petition should not be granted, and if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days.^ A peremptory order compelling the production of books and papers for examination and inspection cannot be granted ex parte, although coupled with an order directing the party to be examined as an adverse party before trial.* The order to show cause may be vacated by the judge who granted it, or by the court, upon satisfactory proof by affidavit that it ought not to have been granted, or that it has been com- plied with, or that the party required to make the discovery or '- Phelps v. Piatt, 54 Barb. 557. - Exchange Bank v. Monteath, 4 How. 280. See Strong v. Strong, 1 Abb. (N. S.)233; 3 Rob. 675. s Walker v. Granite Bank, 44 Barb. 39; 19 Abb. 111. " Seligman v. Real Estate Trust Co., 20 Abb. N. C. 310. 5 Cutter V. Pool, 3 Abb. N. C. 130. ^ See Johnson v. Consolidated Silver Mining Co., 3 Abb. (N. S.) 413. 'Code of Civil Pro., §805. 8 Dick V. Phillips, 41 Hun, 603. See, also, McGuffin v. Dinsmore, 4 Abb. N. C. 241; Smith V. Macdonald, 1 Abb. N. C. 850; 60 How. 519; Code of Civil Pro., § 809. Proceedings Peeliminaey to Pleading. 97 Discovery of books, papers and documents. permit the inspection has not tlie possession or control of the book, document or other paper directed to be produced or inspected.' On the return of the order to show cause, the court may make such an order with respect to the discovery or inspection prayed for as justice requires.^ A petition for the inspection of documents to enable a party to frame a pleading will not be granted where it is apparent from the petition that the party can frame the pleading without the inspection.^ And generally speaking an order for in- spection to enable a party to plead will not be granted unless clearly necessary.* If it appears that information sought to enable the plaintiif to frame his complaint is already in his possession or in the possession of his assignor, an inspection of the defendant's books will be denied. An assignee of the cause of action stands in the shoes of his assignor on an application for a discovery of books and papers.'' So where the moving party has declined to avail himself of permission to inspect books or papers an applica- tion for an order to inspect the same will be denied.'^ So an in- spection of the books of a corporation will be denied where the relations of the moving party to the corporation are such as to entitle him to inspection without an order.' But in an action be- tween partners for an accounting either partner is entitled at any stage of the action to an order requiring the production of all partnership books and the papers and accounts relating thereto, and their deposit with the clerk to be inspected and copied.* And in such an action brought by the personal representative of a deceased partner, an inspection of the partnership books may be ordered to enable the plaintiff to frame the complaint.^ But where an action is brought by the personal representative of a deceased ' Codeof Civil Pro., § 806. ■' Code of Civil Pro., § 807. = RafEerty v. Williams, 18 Jones & Sp. 66. ••Mehesy v. Kahn, 18 Jones & Sp. 209; Campbell v. Hogs, 2 Hun, 308; Walmsley v. Nelson, 3 Abb. N. C. 137; Dickie v. Austin, 65 How. 430. <> Dyett V. Seymour, 13 Civ. Pro. R. 137. " Walmsley v. Nelson, 3 Abb. N. C. 137; McAllister v. Pond, 15 How. 390; Harbison v. Von Volkenburgb, 5 Hun, 454. ' Charlick v. Flushing R. R. Co., 10 Abb. 130. * Kelly V. Eckford, 5 Paige, 548; Stebbins v. Harmon, 17 Hun, 445. ' Livingston v. Curtis, 54 How. 370. 13 98 Peockedings Preliminaey to Pleading. Discovery of books, papers and documents. partner to set aside a sale of the partnership interest of the dece- dent on the ground of fraud committed by the purchasing partner in inducing the sale, a general inspection of the books of the firm will not be ordered before judgment.^ As a general rule a dis- 30 very of the books of a co-partnership will not be ordered in an iction against one of the co-partners, but where the peculiar cir- 3umstances of the case require a departure from the rule a dis- 30very may be ordered.^ In a proper case a discovery may be ordered to enable a party to frame a bill of particulars.^ A party may defeat an application for a discovery or inspection by presenting on the hearing an affidavit containing an absolute md unequivocal denial of the possession or control of the books jr papers referred to in the petition.^ But where it appears from ;he motion papers that the party against whom the discovery or inspection is sought was in possession of the paper in question, a 3are denial of possession or control is not an answer to the applica- ;ion. He must satisfy the court that the paper is not in his pos- 3Ssion or under his control, and show what he has done with it, md how it got out of his possession.* An inspection of books and papers is not a matter of right, but rather of discretion." The Code authorizes the court to make such jrder as justice requires,'' and does not require that the order shall 30 made in every case where the petitioner has complied with the ' Piatt V. Piatt, 61 Barb. 53; 11 Abb. (X. S.) 110. But a full and free inspec- tion and discovery of partnership books and papers was ordered in an action jrougbt by the executors of a deceased partner to set aside a settlement, etc., nade by them with the surviving partners through the fraudulent representa- .ions of the latter, and to recover the difference between the sum paid them md the sum which should have been paid. Zimmerman v. DickerhofE, 12 St. Jep'r, 613; 28 Week. Dig. 93. 2 Martine v. Albro, 26 Hun, 559; 63 How. 215. ^ Cornish v. Wormser, 53 Hun, 40. ^ Mcllhenney v. Magie, 13 Civ. Pro. E. 16; Bradstreet v. Bailey, 4 Abb. 333; ihoyke v. Wolcott, 4 Abb. 41; Hoyt v. American Exch. Bank, 8 How. 89; 1 Duer, 652; Woods v. De Figaniere, 25 How. 522; 1 Bob. 681; 16 Abb. 1. ' Perrow v. Lindsay, 53 Hun, 115; Hepburn v. Archer, 20 Hun, 535; Hicks 7. Charlick, 10 Abb. 129. ^ See Harbison v. Von Volkenburgh, 5 Hun, 454; Van Zandt v. Cobb, 12 How. )44; Clyde v. Rogers, 87 N. Y. 635; 94 N. Y. 541. ' Code of Civil Pro., § 807. Pkoceedings Peeliminaky to Pleading. 99 Discovery of books, papers and documents. statute and rules of court. If a discovery or inspection is directed by the court on the return of the order to show cause, a referee may be appointed by the order to direct and superintend it, whose certiiicate, unless set aside bj' the court, is presumptive, and, except in proceedings for contempt, conclusive evidence of compliance or non-compliance with the terms of the order. A fixed sum, not exceeding twenty dollars, may be added to the costs of the motion for the fees of the referee. "^ The order granting the application must specify the mode in which the discovery or inspection is to be made, which may be either by requiring the party to deliver sworn copies of the mat- ters to be discovered, or to allow an inspection with copy, or by requiring him to produce and deposit the same with the clerk, unless otherwise directed in the order. The order must also specify the time within which, the discovery or inspection is to be made ; and when papers are required to be deposited, the order must specify the time the deposit shall continue.^ The order should definitely describe the books and papers to be produced, and should not contain a general clause directing the production of all other books and papers containing entries re- lating to the matter, as to which information is sought.^ An order for the inspection of the books and papers of a foreign corporation should not require it to produce before a referee in this State books kept and in continual use in its oflice in a dis- tant State, but should direct it to produce and deliver to the moving party sworn copies of so much of their contents as relates to the subject-matter mentioned in the order within a reasonable time designated in the order.'' The court or judge may direct that the order directing the discovery or inspection of books, papers or documents, shall ope- rate as a stay of all other proceedings in the cause, either in whole or in part, until such order shall have been complied with or vacated, and the party obtaining such order, after the same > Code of Civil Pro., § 807. = Rule 16, Sup. Ct, 3 Walker v. Granite Bank, 44 Barb. 39; 19 Abb. Ill; Olney v. Hatcliff, 37 Hun, 286. See Cornish v. Wormser, 53 Hun, 40. " Ervin v. Oregon K. & N. Co., 33 Hun, 566. 100 PliOCELDING.S PeELIMINAEY TO PlEADING. Discovery of books, papers and documents. shall be comialied with or vacated, shall have the like time to prepare his complaint, answer, reply, or demurrer, to which he was entitled on the making of the order.' The order should be served upon the attornej for the party against whom it is made.^ Where an order made as prescribed by the Code directs a dis- covery or inspection, the party in whose behalf it was made, may, upon proof by affidavit that the adverse party has failed to obey it, and upon notice to him, apply to the court for an order to punish him for the failure. Upon the hearing of the application the court may, upon the payment of such a sum for the expenses of the applicant, as the court fixes, and upon the compliance Avitli such other terms as it deems just to impose, permit the party in default to comply with the order for a dis- covery and inspection; and for that purpose it may direct that the application to punish him stand over to a future time. Upoa a final hearing of the application to punish the party in default, the court, in a proper case, may direct that his complaint be dis- missed, or his answer or reply be stricken out, and that judgment be rendered accordingly ; or it may make an order striking out one or more causes of action, defenses, counter-claims or replies interposed by him ; or that he be debarred from maintaining a particular claim or defense in relation to which the discovery or inspection was sought. Where the party has failed to obey an order allowing an inspection by the adverse party, and requiring him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document or other paper be ex- cluded from being given in evidence; or it may punish the party for a contempt, or both.' A book, document or other paper produced under an order for a discovery or inspection has the same effect when used by the party requiring it, as if it were produced on notice according to the practice of the court.* ■■ Rule 17, Sup. Ct. - Rossner v. New York Museum Association, 30 Hun, 182; Schmidt v. Se- linger, 1 Law Bull. 61. 3 Code of Civil Pro., §808. Code of Civil Pro., §809. Proceedings Pebliminaet to Pleading. 101 Examination of a party in aid of pleading. § 2. Examiuatiou of a party in aid of pleading. — A party who is not in possession of facts necessary to enable him to frame hiis complaint, answer or reply, and cannot obtain them by a dis- covery of books, docnments or papers in possession of his adver- sary, as pointed out in the last section, may obtain the necessary information by means of a compulsory examination of the adverse party before pleading, if such party has knowledge of the facts desired. A party may be examined before issue is joined in the action, and even for the purpose of enabling a plaintiff to obtain the facts from which to frame his complaint.' An order may be made for the examination of a party against whom an action is about to be brought, although the cases in which such an order should be granted are rare.^ So an order may be made for the examination of the plaintiff in order to en- able the defendant to obtain the facts from which to frame his answer.' So an order may be made for the examination of the plaintiff to enable the defendant to obtain such information as will enable him to furnish a bill of particulars.^ The examination may be had in an action brought in any court of record other than the mayor's court of the city of Hudson, the recorder's court of the city of Utica, the recorder's court of the city of Oswego, and the justices' court of the city of Albany.* The statute does not limit the right to any particular class of ac- tions or except any from its operation, but the court will not grant an order for the examination of a defendant to enable a plaintiff to frame a complaint in an action of libel when the object of the examiuation is to obtain from the defendant information connect- ' aienuey v. Stedwell, 64 N. T. 130; 1 Abb, N. C. 337; Brisbane v. Brisbane, 20 Hun, 48; Davis v. Stanford, 37 Hun, 531; Muller v. Levy, 53 Hun 133- Churchman v. Merritt, 51 Hun, 375; Raymond v. Brooks, 59 How. 383; Haver- meyer v. Ingersoll, 12 Abb. (N. S.) 301. ^ Merchants' Nat. Bank v. Sheehan, 101 N". Y. 176. ' Dudley v. Press Pub. Co., 53 Hun, 347; Strakosch v. Prefe Pub Co 53 Hun, 503. ' " * Ball V. Evening Post Pub. Co., 48 Hun, 149. « Code of Civil Pro., § 870. 102 Peoceedings PiJELiMiNAEy TO Pleading. Examination of a party in aid of pleading. ing him with the publication of the. hbel,' nor in an action for fraud and deceit, to estabhsh the fraud.^ A person not a party, but a mere witness for a party, cannot be examined for the purpose of enabUng a plaintiff to frame his com- plaint.' The application for an order for the examination of a party may be made to a judge of the court in which the action is pending or if it is pending in the supreme court to a county judge ; or, if the action is' not pending but is expected to be brought, to a judge of the supreme, or of a superior city court, or to a county judge.* The moving party must present on the application an affidavit setting forth the names and residences of all the parties to the action and whether or not they have appeared ; and if either of them has appeared by attorney, the name and residence or ofiice address of the attorney; or if no action is pending, the names and residences of the expected parties thereto.'' If an action is pending, the affidavit must set forth the nature of the action and the substance of the judgment demanded ; and if the application is made by the defendant before answer, or by either party after answer, the nature of the defense. ° It is not enough to constitute compliance with this requirement that the affidavit states that the action is brought to recover damages for certain breaches on the part of the defendant of a contract in writing,^ or that it is for a recovery under a specified chapter and part of the Revised Statutes,* or that it is brought to reform a ' Brandon Mfg. Co. v. Bridgman, 14 Hun, 122. See Pliosnis t. Dupuy, 2 Abb. N. C. 146; Kinney v. Roberts, 26 Hun, 166. ^ Andrews v. Prince, 31 Hun, 233; Yamato Trading Co. v. Brown, 27 Hun,. 248. = Knowlton v. Bannigan, 11 Abb. N. C. 419; 3 Civ. Pro. R. 317; Matter of Bryan, 3 Abb. N. C. 289. ■* Code of Civil Pro., § 872. The special county judge of Oneida county may make the order. Kinney v. Roberts, 26 Hun, 166. ' Code of Civil Pro., § 872, subd. 1; White v. Downey, 3 Law Bull. 98; Dunham v. Merchants' Mut. Ins. Co., 12 Jones & Sp. 387; 56 How. 240; 6 Abb. N. C. 70; Beach v. Mayor, 14 Hun, 79; 4 Abb. N. C. 336. «Code of Civil Pro., § 872, subd. 3; Robertson v. Russell, 30 Hun, 243;: Durant v. Aberdroth, 1 Law Bull. 3. ' Hale V. Rogers, 22 Hun, 19; Greer v. Allen, 15 Hun, 4.33. - Boorman v. Pierce, 56 How. 251. Proceedings Peeliminakt to Pleading. 103 Examination of a party in aid of pleading. mortgage.^ The grounds upon which the relief is sought must be stated with reasonable certainty, and the plaintiff must estab- lish by his affidavit that he has a cause of action against the de- fendant.^ An examination of the defendant will not be ordered to enable the plaintiff to Und out whether he has a cause of action.^ So an examination of the plaintiff will not be ordered unless the moving papers show that the defendant has a good defense to the action,* and the nature of that defense,^ and that the facts which he states that he expects to show by the plaintiff would tend to support that defense.^ If no action is pending when the application is made, the affi- davit must set forth the nature of the controversy which is expected to be the subject thereof;^ and in all cases the affidavit must set forth the name and I'esidence of the person to be exam- ined, and that the testimony of such person is material and neces- sary for the party making such application, or the prosecution or defense of such action, and at the option of the applicant, the place where he is sojourning, or where he regularly transacts business.* The affidavit must specify the facts and circumstances which show that the examination of the person mentioned is material and necessary.' The judge must be able to see from the facts stated that the testimony is material and necessary.^" It is not enough to state that the examination of the party is material and necessary, but it must be made to appear that the testimony of the party is material and necessary." It must appear from the ' Churcliman v. Merritt, 51 Hun, 375. - Muller V. Levy, 53 Hun, 123; Churchman v. Merritt, 51 Hun, 375. See Simmons v. Vanderbiit, 59 How. 411. 3 Muller V. Levy, 53 Hun, 123; Juillard v. Hamlin, 2 Civ. Pro. R. 321, n. ^ McCoon V. White, 60 How. 149. ' Walters v. Bushwick R. R. Co., 8 Week. Dig. 390. ' Shaw V. Van Rensselaer, 60 How. 143. ■" Code of Civil Pro., g 872, subd. 3. 8 Code of Civil Pro., § 872, subd. 4. ' Rule 83, Sup. Ct ; Chapin v. Thompson, 16 Hun, 53; Crooke v. Corbin, 33 Hun, 176; Greer v. Allen, 15 Hun, 432. i» Jenkins v. Putnam, 106 N. Y. 373; Robertson v. Russell, 30 Hun, 243. • " Chapin v. Thompson, 16 Hun, 53; Beach v. Mayor, 14 Hun, 79; Fourth Nat. Bank v. Boyuton, 89 Hun, 441; Greer v. Allen, 15 Hun, 433. 104 Pbocbbdings Pkeliminaey to Pleading. Examination of a party in aid of pleading. affidavit that the testimony of the adverse party must be obtained before the moving party can properly frame and serve his plead- ing.i If it appears that the moving party lias sufficient informa- tion to enable him to draw a complaint on information and belief, and that the object of the examination is to find out whether he has a cause of action, the motion will be denied.^ And generally where it appears from the plaintiff's affidavit that he can frame a sufficient complaint without the examination of the defendant the examination will not be ordered.' A bare statement in the affi- davit that the testimony is material and necessary is not enough.'' The Code also provides that if an action is pending, the affida- vit shall set forth tliat the person to be examined is about to depart from the State ; or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial ; or that any other special circumstances exist which ren- der it proper that he should be examined as therein prescribed; but that this provision does not ap])ly to a case where the person to be examined is a party to the action.^ As a person not a party cannot be examined for the purpose of enabling a plaintiff to frame a complaint' it would seem that the provision is inapplica- ble to an application by the plaintiff for that purpose. The Code also provides that if no action is pending the affida- vit must set forth that the person expected to be tlie adverse party is of full age, and a resident of the State, or sojourning within the State; or that he has an office within the State where he regularly transacts business in person, specifying the place, and if it is in a city, the street and street number, or other designation of the particular locality ; or if two or more persons are expected to be tlie adverse parties, that each is of full age, and so resident ' Strakoscli v. Press Pub. Co., 53 Hun, 503; Winston v. Englisli, 14 Abb. (N. S.) 119; Hynes v. McDermott, 7 Daly, 313; Greene v. Herder, 7 Rob. 463; Heisbon v. Knickerbocker Life Ins. Co., 13 Jones & Sp. 34. ' Juillard v. Hamlin, 3 Civ. Pro. R. 321, n. See KestofE v. Ebricb, 1 Law Bull. 3. 3 Martin v. Clews, 23 Jones & Sp. 552; 18 St. Rep'r, 463. But, see, Heishon V. Knickerbocker Life Ins. Co. , 13 Jones & Sp. o4. 1 Matter of Bryan, 8 Abb. N. C. 289. 5 Code of Civil Pro., § 872, subd. 5. « See ante, p. 102. Proceedings Peeliminaey to Pleading. 105 Examination of a party in aid of pleading. or sojourning, or lias such an office; and also the circumstances which i-ender it necessary for the protection of the appUcant's rights that the witnesses' testimony should be perpetuated.^ If the party or person to be examined is confined iu a prison or jail within the State under a sentence fo# a felony, that fact should be stated in the affidavit.^ The Code also requires that the affidavit shall set forth any other fact necessary to show that the case comes within sections 870 or 871 of that act ; and if the party sought to be examined is a cor- poration, that it shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examina- tion or inspection is desired.^ If special circumstances exist which render it necessary that the order for the examination of the party should be served upon him more than twenty or less than five days before the time fixed for the examination, such circumstances should be stated in the affidavit.^ The affidavit may be made by the moving party, by his attorney, or by a third person.'' If made by the attorney, the materiality of the testimony of the witness must be alleged upon his own knowledge, or if made upon information, the sources of the information must be given. ^ The application must be made to a judge, and not to the court at Special Term, and the mode of procuring the examination pre- scribed by the Code must be strictly followed.^ The Code pro- vides that the judge to whom such an affidavit is presented must grant an order for the examination if an action is pending ; if no action is pending, he must grant it if there is reasonable ground to believe that an action will be brought as stated in the affidavit, and that the application is made in good faith to pre- ' Code of Civil Pro., § 872, suM. 6. 2 Code of Civil Pro., § 877. 2 Code of Civil Pro., g 873, subd. 7; Williams v. Western Union Tel. Co. 15 Jones & Sp. 380. ■> See Code of Civil Pro., g 873. ' Corbett v. De Comeau, 54 How. 506; 4 Abb. N. C. 252. • Hale V. Rogers, 22 Hun, 19. ' Heisbon v. Knickerbocker Life Ins. Co., 77 N. Y. 278. 14 106 Peooebdings Preliminary to Pleading. Examination of a party in aid of pleading. serve the exjiected testimony ; otherwise he must dismiss the ap- pHcation.' In a number of cases it has been held that the lan- guage of the statute is mandatory ; and that when an affidavit conforming to the requirements of the Code is presented to the judge, he has no di8cretion,%at must grant the order, as the party is entitled to it as a statutory right. ^ On the other hand it has been held in a number of cases that the court is not bound to grant the order in every case where the application is formally correct, but that it may examine into the facts and the object of the application, to see that the law is not being perverted to mis- chievous and unjust ends f and it seems that the language of the Code is not absolutely mandatory, so as to deprive the judge of all discretion, even where the affidavit conforms to its require- ments, and that if from the nature of the action, and the other facts disclosed, the judge can see that the examination is not nec- essary for the party seeking it, he is not compelled to make the order.'' The order is clearly discretionary where the party or per- son to be examined is confined in a prison or jail within the State under a sentence for a felony.^ Where the person to be examined is a party to a pending action or is expected to be a party to an action to be brought, the order may, in the discretion of the judge, designate and limit the par- ticular matters as to which he is to be examined. The order must require the party or person to be examined to appear before the judge, or before a referee named in the order for the purpose of tak- ing the examination at a time and place therein specified.* Where the person to be examined is a resident of the State, he cannot be required to attend in any county other than that in which he 1 Code of Civil Pro., g 873. ' Oorbett v. De Comeau, 4 Abb. N. C. 253; 54 How. 506; Ludewig v. Pari- ser, 4 Abb. N. C. 346; Webster v. Stocliwell, 3 Abb. N. C. 115; Harrold v. New Yorlii Elevated R. R. Co., 31 Hun, 268; Davis v. Stanford, 37 Hun, 531; Sweeney v. Sturgis, 24 Hnn, 163; McGuffiu v. Dinsmore, 4 Abb. N. G. 241. ' Chapin v. Thompson, 16 Hun, 53; Schepmoes v. Boussou, 1 Abb. N. C. 481. ■• Jenkins v. Putnam, 106 N. Y. 272. See Mechanics' Bank v. Sheehan, 101 N. Y. 176. 6 Code of Civil Pro., §877. 6 Code of Civil Pro., §873. Peoceedings Pkeuminaky to Pleading. 107 Examination of a party in aid of pleading. resides, or where he has an office for the regular transaction of business in person. Where he is not a resident, he cannot be re- quired to attend in any other county than that wherein he is served with a subpoena, unless for special reasons stated in the af- fidavit, the order otherwise directs.^ If the person to be exam- ined is confined in a jail or prison within the State under a sen- tence for a felony, the order must require the production of the prisoner by the person in charge of the prison or jail, at the prison or jail, but it may prescribe such regulations and restric- tions with respect thereto as the judge deems proper." The order must direct the time of the service of a copy thereof, which must be made within the State not more than twenty nor less than five days before the time fixed for the examination unless special cir- cumstances, making a different time of service necessary, are shown in the affidavit and that fact is recited in tlie order.^ If the party to be examined is a corporation the order should direct the examination of such officers or directors, and the production of such books as are named in the affidavit.^ The order should not contain any extension of time or any other special relief.^ A copy of the order and of the affidavit upon which it was granted must be served upon the attorney for each party to the action in like manner as a paper in the action f or if a party has not appeared in the action, they must be served upon him as directed in the order. If no action is pending they must be per- sonally served upon each of the persons named therein as expected adverse parties.' The order, to be effectual, must be served upon the party personally as well as upon his attorney, as service on the attorney alone is not sufficient to give the court jurisdiction to punish the party for not obeying the order.^ But the failure to serve the order on the party is no ground for setting aside or ' Code of Civil Pro., §886. 2 Code of Civil Pro., § 877. 3 Code of Civil Pro., § 873. ' Code of Civil Pro., § 873, subd. 7. ' Gross V. Little, 1 Civ. Pro. B. 103. « Code of Civil Pro., § 875; Plummer v. Belden, 8 Hun, 455. ' Code of Civil Pro., § 875. s Tebo V. Baker, 16 Hun, 183; 77 N. Y. 83; Mayor v. Noll, 56 How. 214; Loop V. Gould, 17 Hun, 585; Freiberg v. Brauigan, 3 Abb. 121. lOS Pboobedings Pbeliminaey to Pleading. Examination of a party in aid of pleading. vacating the order.^ Witness fees at the rate prescribed by law in an action in the Supreme Conrt must be paid or tendered when the order is served upon the party or other person required to attend. If the party or person so served fails to obey the order his attendance may be compelled and he may be punished in like manner, and the proceedings thereon are the same as if he failed to obey a snbpojna issued from the court in which the action is pending, or if no action is pending, from the court of which the judge is a member.^ Payment or tender of the fees of a witness is essential to the right to punish him for disobedience of the order.' The Code provides that " the examination of a party, or an ex- pected party, is subject to the same rules as if he was examined upon the trial. The judge or referee, upon every other examina- tion taken as prescribed in this article, must insert therein every answer or declaration of the person examined, which either party requires to be inserted. The deposition, when completed, must be carefully read to and subscribed by the person examined; must be certified by the judge or referee taking it ; and, within ten days thereafter, must be filed in the ofHce of the clerk ; or, if no action is pending, in the office of the clerk of the county in which it was taken ; together with the stipulation or order, under which it was taken; the affidavit upon which the order was granted; and proof of the service of a copy of the order and of the affidavit. If, upon an examination before a referee, the person examined refuses to answer any question, the referee must report the fact to the court or judge, who must determine whether the question is relevant, and whether the witness is bound to answer it.'"* It also fixes the character and effect of the deposition as evi- dence,^ and provides for the taking of a deposition by consent,' and for use upon a motion.'' ' Webster v. Stockwell, 3 Abb. N. C. 115. 2 Code of Civil P^o.,t^ 874. 3 Freiberg v. Branigan, 3 Abb. N. C. 121; Wood v. Keal, 3 Abb. K. C. Ii2; Tebo V. Baker, 77 N. Y. 33; Gawtlirop v. Leary, 9 Week. Dig. 176; McGregor V. Ball, 7 Week. Dig. 313. <■ Code of Civil Pro., § 880. ' Code of Civil Pro., §§ 881-883. « Code of Civil Pro., §879. 1 Code of Civil Pro., §885. The Complaint. 109 Motions based upon defects, etc. — General requisites of a complaint. § 3. Motions based upon defects in pleadings of adverse party. — A party who has been served with a pleading containing irrelevant, i-eduudant or scandalous matter should consider whether he is aggrieved by the insertion of such matter, and, if he decides in the affirmative, should move to strike it out.' So if a party has been served with a pleading containing one or more denials or allegations which are so indefinite or uncertain that the precise meaning or application thereof is not appai-ent the party served should apply to the court for an order requiring the pleading to be made definite and certain by amendment.^ If either of these motions is made it must be noticed before demurring or answer- ing the pleading and within twenty days from the service thereof.^ The practice on these motions will be noticed hereafter. CHAPTER IX. The Complaint. Section 1. General requisites of a complaint. — The first pleading on the part of the plaintiff is the complaint.* It must contain the title of the action, specifying the name of the court in which it is brought ; if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial ; and the names of all the parties to the action, plaintiff and defendant. It must also contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and a demand of the judgment to which the plaintiff supposes himself entitled.* In an action triable by the court with- out a jur}', the plaintiff may, in a proper case, demand an inter- locutory judgment and also a final judgment, distinguishing them ' Code of Civil Pro., §545. « Code of Civil Pro., § 546. '' Rule 23, Sup. Ct. * Code of Civil Pro., §478. 5 Code of Civil Pro., §481. 110 The Complaint. Title of the action. clearly.' If the complaint sets forth two or more causes of action, the statement of the facta constituting each cause of action must be separately stated and numbered.^ This latter requirement has been noticed in another chapter.' § 2. Title of tlie action. — The conaplaint must contain the title of the action, specifying the name of the court in which it is brought ; if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial ; and the names of all the parties to the action, plaintiff and defendant.^ The summons must be similarly entitled,^ and in case the sum- mons and complaint are drawn in compliance with the require- ments of the Code there can be no variance in the title. Under the old practice it was held that a failure to specify the name of the court in either the summons or complaint was a fatal defect,^ but that if the name of the court was stated in the sum- mons the omission of the name from the complaint was a defect which might be cured by amendment or wholly disregarded.' A complaint is defective which fails to specify the name of the county which the plaintiff designates as the place of trial, and the defect is not cured by a statement of the place of trial in the summons, although both are served together. But the defect may be cured by amendment." The title of the action nmst contain the names of all the par- ties to the action, plaintiff and defendant.^ The law recognizes but one Christian name'" and therefore the ' Code of Civil Pro., | 482. 2 Code of Civil Pro. , | 483. ' Chapter III, i^ 4, p. 47. " Code of Civil Pro., § 481. 'Code of Civil Pro., §417. " Ward V. Striagham, 1 Code R. 118. ■" Van Benthuysen v. Stevens, 14 How. 70; Van Naniee v. People, 9 How. 198. 8 Hotchkiss V. (^rocker, 15 How. 336; Merrill v. UriuuelJ, 10 How. 31. See Davison v. Powell, 13 How. 287. 9 Code of Civil Pro., § 481. '» Van Voorhis v. Budd, 39 Barb. 479; Franklin v. Talmadge, 5 Johns. 84; Roosevelt v. Gardiner, 3 Cow. 463; Milk v. Christie, 1 Hill, 103; Weber v. Fowler, 11 How. 458; Clute v. Emmerich, 26 Hnn, 10. The Complaint. HI Title of the action. omission of the middle name of a party is of no consequence.' If a defendant is known by one name as well as another, he may be sued under either naiue,^ and, of course, may be designated in the caption of the complaint by the name used in the title of the siunmons. A party may sue under the name by which he is commonly known, though that may not be his true name.' If the plaintiff is ignorant of the name or part of the name of a defendant, he may designate that defendant in the title of the summons and complaint by a fictitious name, or by so much of his name as is known, adding a description identifying the person intended. So when the plaintiff demands judgment against an unknown person he may designate that person as unknown, adding a description tending to identify him. When the name or remainder of the name, or the person becomes known, an order must be made by the court upon such notice and terms as it pre- scribes, that the proceedings already' taken be deemed amended by the insertion of the true name, in place of the fictitious name, or part of a name, or the designation as an unknown person, and that all subsequent proceedings be taken under the true name.* The use of a fictitious name is allowable only when the 2:)laintifE is ignor- ant of the true name of the defendant;'" and when a fictitious name is used in the complaint there should be a distinct allega- tion that the defendant is so sued by reason of ignorance of his true name.^ If the wife of a defendant is made a party, and her Christian name is unknown, that part of her name which is necessarily the same as her husband's should be stated ; and it is not sufficient to omit that part of her name and merely designate her as the wife of the defendant. But an error of this character may be cured by amendment.^ Where the cause of action stated in the complaint is against a defendant in a representative capacity, or in favor of the plain- ' Clute V. Emmericli, 26 Hun, 10. = Bagleston v. Son, 5 Rob. 640. ^ Cooper V. Burr, 45 Barb. 9. " Code of Civil Pro., §451. ' Crandall v. Beacli, 7 How. 271. 6 Gardner v. Kraft, 53 How. 499. ' Weil V. Martin, 34 Hun, 645. 112 The Complaint. Statement of the cause of action. tiff in that capacity, the title of the complaint should clearly in- dicate that fact by adding to the name of the party words indica- ting liis representative character, as, for example, John Doe, as executor of the last will and testament of Richard Roe, deceased. The representative capacity is properly indicated by inserting the word " as " between the name of the party and the words show- ing the representative character, as in the illustration given. The mere addition to the name of the party of his official title is not of itself sufficient to show that the action is brought by or against him in a representative character, and the added title will be regarded as but a description of the person.' But if the com- plaint shows by appropriate averments that the action is brought by or against a person iu a representative capacity the defect in the title will be cured. ^ So where the whole body of the com- plaint shows a cause of action in favor of the plaintiff, not in his representative but in his individual character, the descriptive words in the title may be rejected, leaving the action to stand as one in the individual capacity of the plaintifE." §3. Statement of the cause of action. — The Code provides that the complaint must contain a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.* The complaint must state facts as distinguished from mere con- clusions of law,^ and from the circumstances which are mere evi- dence of the facts. ^ Every fact material to the cause of action intended to be set up should be pleaded.'' If two or more causes of action are set forth in the complaint the statement of the facts > Root V. Price, 23 How. 372; Butterfield v. McOmber, 33 How. 150; Hallet V. narrower, 33 Barb. 537; Merritt v. Seaman, 6 N. Y. 168. « Root V. Price, 33 How. 373; Butterfield v. McOmber, 33 How. 150; Hallett V. narrower, 33 Barb. 537; Merritt v. Seamau, 6 N. Y. 168; Smitli v. Levinus, 8 N. Y. 473; Beers v. Shannon, 73 N. Y. 292; Stilwell v. Carpenter, 63 N. Y. 639; 3 Abb. N. C. 338. = Litchfield v. Flint, 104 N. Y. 543. "Code of Civil Pro., §481. ' Ante, p. 23. « Ante, p. 23. ' Ante, p. 20. The Complaint. 113 What constitutes a single cause of action. constituting eacli cause of action must be separate and numbered.* Each cause of action thus separately stated must be complete in itself, as it cannot be aided by the allegations of another cause of action joined with it, to which it does not so refer as in effect to make it a part of itself.^ If necessary to guard against a possible variance between the pleadings and the proof, several causes of action arising out of the same transaction may be stated in sepa- rate counts.' If the pleading is to be verified, the facts must be stated to be alleged upon information and belief so far as they are not within the knowledge of the person verifying.* § i. What constitutes a siugle cause of action. — There is no rule of law or legal principle which precludes a plaintiff from prosecuting several actions upon several causes of action. The holder of several promissory notes may maintain an action on each; a party npon whose person or property succeasisre distinct trespasses have been committed may bring a separate snit for Beecher v. Conradt, 13 N. Y. 108; Thomson v. Smith, 63 N. Y. 301; Smith V. McCluskey, 45 Barb. 610; Divine v. Divine, 58 Barb. 264. And see Grant V. Johnson, 5 N. Y. 247. «Freeson V. Bissell, 63 N. Y. 168; Stevenson v. Maxwell, 2 N. Y. 408; Buess V. Koch, 10 Hun, 299; Bruce v. Tilson, 25 N. Y. 194. 3 Thomson v. Smith, 63 N. Y. 301. " Wright V. Moore, 21 Wend. 330; Dolittle v. Eddy, 7 Barb. 74; Candee v. Heywood, 84 Barb. 352; Hotaling v. Hotaling, 47 Barb. 163. 140 The Complaint. Alleging a demand in an action on contract. Therefore, a complaint in an action against an indorser should contain an averment of a demand of payment of the maker at the time and place specified.' But it is the settled law of this State, that where the parties to. any agreement, whether it is a bill of exchange, a promissory note, a bond for the payment of money, or a contract for tlie sale of goods, have stipulated for the pay- ment of a specific sum of money on demand, or at a specified time, at a particular place, an allegation of a demand of payment is not necessary to support an action on the contract against the party so contracting to pay, as a demand before suit is not essential to a recovery against him.^ No right of action exists against a depositary of money until an actual demand of it; and there is no right of action upon a certifi- cate of deposit issued by a bank in ordinary form until a demand of payment has been made.^ The complaint in an action to recover the deposit should therefore allege a demand of the deposit and the neglect or refusal of the depositary to deliver it. But where a person receives money, not to hold until called for, but under a positive duty to remit, he is not entitled to demand before suit by the owner, and no demand need be alleged.* The obligation of a party to refund money voluntarily paid to him by mistake arises only after notice of the mistake and demand of payment ; and therefore in an action against him to recover the money so paid, a demand must be alleged and proved.* In pleading a demand the plaintiff may either state the facts constituting it, or may allege generally that the demand was duly made. 1 Parker v. Stroud, 98 N. Y. 379; Wolcott v. Van Santvoord, 17 Jolins. 248; Woodwonh v. Bank of America, 19 Johns. 392; Ferner v. Williams, 14 Abb. 215; 37 Barb. 10; Crim v. Starkweather, 88 N. Y. 839. = Hills V. Place, 36 How. 26; 7 Rob. 389; 5 Abb. (N. S.) 18; 48 N. Y. 528; Howland v. Edmonds, 24 N. Y. 307; Wheeler v. Warner, 47 N. Y. 519; Wen- man V. Mohawk Ins. Co., 13 Wend. 267; Locklin v. Moore, 57 K. Y. 360; Caldwell v. Cassidy, 8 Cow. 371 ; Read v. City of Buffalo, 67 Barb. 526; Hiret V. Brooks, 50 Barb. 334; Haxtun v. Bishop, 3 Wend. 13. 3 Hunger v. Albany City Nat. Bank, 85 N. Y. 580; Pardee v. Fish, 60 X. Y. 265; Howell v. Adams, 68 N. Y. 314; Boughton v. Flint, 74 N. Y. 476; Phelps V. Bostwick, 22 Barb. 314. " Stacy V. Graham, 14 N. Y. 492; Howard v. France, 43 N. Y. 593. 5 Southwick V. First Nat. Bank, 84 N. Y. 420; 61 How. 164. The Complaint. 141 Alleging the breach of a contract. § 23. Allegiug the breach of a contract. — In pleading the breach of a con tract the plaintiff should allege facts which when proved upon the trial, will show that the defendant has been guilty of a breach of the contract exisiting between thein.^ If the complaint in an action to foreclose a mortgage alleges the giving of a bond, it shonld also allege default in the performance of the condition of the bond.'-^ In an action upon a written agreement to pay money it should appear from the complaint that the sum demanded remains unpaid.^ And it is held in some States that in all actions for breaches of contract for the payment of money the complaint must allege, directly or inferentially a non-payment of the money to which the plaintiff is entitled.'' Such was the rule in this State under the old practice; but under the Code it has been held that in an action for goods sold and delivered, a com- plaint alleging that the plaintiff sold and delivered to the defend- ant certain goods for which the defendant agreed to pay a specified sum, is sufficient without any allegation that the demand has not been paid or that it remains due and unpaid.^ The rules of pleading do not require the same particularity in setting forth a breach of the contract as in setting forth its terms. A substantial averment of a breach is sulficient.^ In an action for a breach of covenant it must appear from the complaint either in express words or by necessary implication that the covenant has been broken by the defendant.'' But it is enough that the breach assigned is according to the substance, though not according to the letter of the covenant.* The plaintiff mjiy follow and negative the words of the covenant if by so doing he necessarily shows that the covenant has been broken.^ He need not allege that the 1 Van Schaick v. Winne, 16 Barb. 89. » Coulter V. Bower, 4 Law Bull. 94. 3 Higert v. Trustees of Indiana University, 53 lud. 326. ■• Wheeler & Willsou Manuf. Co. v. Worrall, 80 Ind. 297. ' Salisbury v. Stinson, 10 Hun, 242. ' Tennessee, Virginia, etc., R. R. Co. v. Staub, 7 Lea (Tenn.), 397. ' Sohenck v. Naylor, 2 Duer, 675. « Potter V. Bacon, 3 Wend. 583. " Brown v. Stebbins, 4 Hill, 154; Abbott v. Allen, 14 Johns. 248; Ward v. Hogan, 11 Abb. N. C. 478. 145i The Complaint. Allegations of damage in actions on contract. breach occurred before the commencement of the suit/ nor, if the covenant contains an exception in favor of the defendant, need he allege that the breach was not within the exception.^ But if the contract is conditioned for the pei'formance of either of two acts in the alternative the complaint should allege the non-performance of both acts.' In alleging the breach of an agreement the plaintiff must state facts in an issuable form, and not his conclusions. It is not enough to aver that the defendant failed to fulfill his obligations by virtue of the instrument sued upon, but the facts should be stated upon which this legal conclusion is based.'' § 2i. Allegations of damage ia actions on contract. — In an action to recover damages for a breach of contract the plaintiff must allege facts from which it will appear that he has sustained some damage. Thus, in an action to recover damages for a re- fusal to receive and pay for certain gold contracted for by the de- fendant the plaintiff must allege facts showing how he was dam- aged by such refusal, and a mere allegation that by reason of such refusal he was damaged to a specified amount without specifying how that, or any, damage arose, is insufficient.^ A recovery of special damages must be based upon a distinct and definite statement in the complaint.^ But where damages necessarily result from a breach of contract on the part of the de- fendant it is not necessary that they should be specially stated in the complaint.' Damages resulting from loss of profits are special and should be specifically alleged.' 1 Smith V. Holmes, 19 N. T. 371; Maynard v. Taloott, 11 Barb. 569; Lewis V. City of Buftalo, 29 How. 335. ' Wheeler v. Bavidge, 9 Exch. 668. - Lutweller v. Lmnell, 13 Barb. 513; People v. Tilton, 13 Wend. 597. < Van Schaick v. Winne, 16 Barb. 89. ' Thompson v. Gould 16 Abb. (N. S.) 434. See Gould t. Allen, 1 Wend. 183. « Armstrong v. Percy, 5 Wend. 535; Low v. Archer, 13 N. T. 277; Hallook V. Belcher, 43 Barb. 199; Vanderslice v. Newton, 4 N. Y. 130; Sprout v. New- ton, 48 Hun, 209. ' Laraway v. Perkins, 10 N. T. 371; Jutte v. Hughes, 67 N. T. 267. = Beidler v. Fish, 14 111. App. 623. The Complaint. 143 Allegations of damage in actions of tort. § 25. Allegations of damage in actions of tort, — Damages are either general or special. Qeneral damages are such as the law presumes to have ensued, and which necessarily flow from the act complained of. Special damages are such as do not necessarily ensue but were actually caused by the act complained of.^ It is essential to the maintenance of an action for a tort that damages should accompany the act complained of, as otherwise it is damnum absque injuria for which no action lies. It is there- fore necessary to the statement of a cause of action for a tort that the complaint should allege damage to the plaintiff or facts from which such damage may be inferred." It is not necessary in order to authorize a recovery in an action for a tort, to specifically allege in the complaint such damages as would necessarily and naturally result from the act complained of.^ It is however a general rule that damages which are not the necessary result of the act complained of, and consequently are not implied by law, must be jDarticularly stated in the complaint in order to prevent a surprise upon the defendant ; and that, if not so stated, the plaintiff will not be permitted to give evidence of them on the trial ; * and that if the action be not sustainable independent of the special damage, and none be alleged, the com- plaint will be held bad on demiirrer as not stating a cause of ac- tion,^ or may be dismissed on the trial.* In an action for slander in uttering words not actionable ^jfey se, the plaintiff in order to recover, must allege and prove special damages, and the special damages must be particularly stated in the complaint.^ There is a statutory exception to this rule. In an action of slander brought by a woman for words imputing un- 1 WoodrufE V. Bradstreet Co,, 85 Hun, 16. - Knapp V. Roche, 94 N. Y. 339, 333, 333. s Jutte V. Hughes, 67 N. Y. 267; Arzotsinger v. Vines, 83 N. Y. 308. * Stevens v. Rodger, 35 Hun, 54; Butler v. Kent, 19 Johns. 233; Squier v. Gould, 14 Wend. 159. ' Kennedy v. Press Publishing Co., 41 Hun, 433; Butler v. Kent, 19 Johns. 238. « WoodrufE V. Bradstreet Co., 85 Hun, 16. • Bassil V. Elmore, 65 Barb. 637; 48 N. Y. 561; Tobias v. Harland, 4 Wend. 537; Hallock v. Miller, 3 Barb. 630; Linden v. Graham, 1 Duer, 670; Terwilli- ger V. Wands, 17 N. Y. 54. 144 The Complaint. Allegations of damage in actions of tort. chastity to her, it is not necessary to allege and prove special damages.' In order to maintain an action for slander of title to lands, the words spoken must be false, must be uttered mali- ciously, and must be followed as a natural and legal consequence by a peciiniary damage to the piaintifE, which must be specially alleged in the complaint and substantially proved on the trial.^ So where an action is brought to recover damages for libel on a thing, the owner of the thing must allege and prove that he has sustained pecuniary loss as a necessary or natural consequence of the publication. 2 And in order to maintain an action for libel where the law does not necessarily imply that the plaintiff sus- tained damage by the act complained of, the complaint must state with particularity that damage resulted, in order to disclose a cause of action.'' A complaint in an action by a private citizen against a public officer for misbehavior in office, whether from misfeasance or non- feasance, should allege a special damage peculiar to the piaintifE.' But in an action against a sheriff for neglecting to return an exe- cution it is not necessary for the plaintiff to allege or prove spe- cial damage." In an action by an administratrix to recover damages for a wrongful act, neglect or default by which the death of the intes- tate was caused, it is not essential to the right to recover nominal damages that the complaint should contain an allegation that the widow or next of kin for whose benefit the action is brought sus- tained damage by reason of the death of the intestate; but whether the plaintiff in such action can recover more than nomi- nal damages under a complaint containing no allegation on the subject of damage is undetermined.'' Where special damage is the foundation of the cause of action 1 Code of Civil Pro , § 1906. ' Kendall v. Stone, 5 N. Y. 14; Linden v. Graham, 1 Duer, 670. 2 Kennedy v. Press Publishing Co., 41 Hun, 433. ^ Woodruff V. Bradstreet Co., 35 Hun, 16; Stone v. Cooper, 3 Denio, 293; Wallace v. Bennett, 1 Abb. N. C. 478. ^ Butler V. Kent, 19 Johns. 233. « Ledyard v. Jones, 7 N. Y. 550. ■ Kenney v. New York Cent. & H. R. R. R. Co., 49 Hun, 535. The Complaint. 145 Allegations of damage in actions of tort. it is a material allegation and must be fully and accurately stated to be available on the trial.' Thus, if the plaintiff claims that by reason of a slanderous charge he has lost customers in trade, he should not only state that fact but also state the names of the customers ;^ or if he claims that by reason of slander of his title he was prevented from mortgaging or selling his property, he should state in his complaint the names of the persons who refused for that cause to loan or purchase.-'' The special damages which should be alleged in the complaint should be such as proceed wholly and exclusively from the wrongful act complained of, and not such as proceed from some wrongful act of a third person although remotely connected with and in some degree induced by the wrongful act of the defend- ant.'' Thus, in an action of slander the special damages must be the natural, immediate and legal consequence of the words spoken by the defendant, and not such as arise from a repetition of those words by a third person.^ But this rule is not inflexible ; and there may be cases in which the injury following a repetition of slanderous words may be charged back upon the original speaker as damage flowing directly and naturally from his wrongful act.^ The special damages alleged in an action of slander must be based upon a pecuniary loss sustained by the plaintiff. Mental or bodily suffering, loss of society, or of the good opinion of neigh- bors or friends, will not support an allegation of special dam- age.' Among the things which may be pleaded as special dam- age may be mentioned by way of illustration a refusal of civil 1 Havemeyer v. Fuller, 60 How. 316; Solms v. Lias, 16 Abb. 311; Low v. Archer, 12 N. Y. 277. = Hallock V. Miller, 2 Barb. 630; Hartley v. Herring, 8 Term R. 133; Tobias V. Harland, 4 Wend. 537; Stapenborst v. American Manuf . Co., 46 How. 510. ' Linden v. Graham, 1 Duer, 670. « " Grain v. Petrie, 6 Hill, 522. 5 Beach v. Ranney, 2 Hill, 309; Vicars v. Wilcocks, 8 East, 1; Ashley v. Harrison, 1 Esp. 48; Terwilliger v. Wands, 17 N. Y. 54; Anonymous, 60 N. Y. 363; Olmsted v. Brown, 13 Barb. 657. 6 Terwilliger v. Wands, 17 N. Y. 54; Fowles v. Bowen, 30 N. Y.20; Olmsted V. Brown, 12 Barb. 657; Keenholts v. Becker, 3 Denio, 346. ' Wilson V. Goit, 17 N. Y. 443; Beach v. Ranney, 3 Hill, 309; Bassell v. El- more, 48 N. Y. 561 ; Terwilliger v. Wands, 17 N. Y. 54. 19 146 The Complaint. Allegations of wrongful intent. entertainment at a public house ;^ the exclusion of the plaintiff from a home with her uncle until she had cleared up her char- acter f the refusal of persons to coatinue to provide fuel, cloth- ing, etc., as formerly f the loss of marriage ; the loss of hospi- table, gratuitous entertainment; the failure to procure employ- ment, the loss of customers ; and, generally, the prevention of the plaintiff from receiving what would otherwise be conferred upon him, though gratuitously.* § 26. Allegations of wrongful intent. — In certain classes of actions the intent with which the defendant committed a wrong- ful act is wholly immaterial, and need not be alleged, and in others the intent with which tiie act was done is the very gist of the action, and must be alleged and proved. The exercise of a legal right cannot be affected by the motive which controls it; and an act which does not amount to a legal injury when done with a good intent, does not become actionable because done with a bad intent.^ If a person has probable cause for instituting a criminal prosecution, no action for malicious prosecution will lie against him although he was actuated by hatred and ill-will." To sustain such action the plaintiff must show both malice on the part of the defendant, and want of probable cause for the prose- cution, and want of probable cause cannot be inferred from the existence of malice.'' But as malice on the part of the defend- ant is an essential element of the plaintiff's right of action, the wrongful intent of the defendant must be made to appear by a distinct allegation of malice.* A false representation does not amount to a fraud at law, uu- 1 Olmsted v. Miller, 1 Wend. 506. ' Williams v. Hill, 19 Wend. 305. * 3 Beach v. Ranney, 3 Hill, 309. ■* 1 Stark, on Sland. 195, 203. ' KifE V. Youmans, 86 N. Y. 324; Phelps v. Nowlen, 72 N. T. 39; O'Calla- ghan V. Cronan, 121 Mass. 114; Pickard v. Collins, 33 Barb. 444; Heywood v. Tillson, 75 Me. 235; Stevenson v. Newnham, 96 E. C. L. 281. * Lavender v. Hudgaus, 33 Ark. 768; Plickinger v. Wagner, 46 Md. 580; Sharp V. Johnston, 4 Mo. App. 575; Leyenberger v. Paul, 13 111. App. 635. ■ Bitting V. Ten Eyck, 83 Ind. 421; 8 Wait's Act. & Def. 388. * Vanderbilt v. Mathis, 5 Duer, 804; Given v. Webb, 7 Rob. 65. The Complaint. 147 Complaint on an account stated. less made with a fraudulent intent. An intent to deceive is an essential element of the fraud, and to support an action for the recovery of damages sustained by reason of the false representa- tion, the intent to deceive must be alleged and proved.' It is not, liowever, necessary that the intent to deceive should be al- leged in express terms if all the averments taken together im- pute a fraud intentionally committed.^ But an express averment is preferable, and more in accordance with the spirit of the Code.^ In an action for slander, where the words uttered are presump- tively privileged, the complaint must allege that they were spoken maliciously.* A wrongful intent on the part of the defendant is not essential to support an action of trover,'' and an intent to injure the plain- tiff is not essential to a right of action for an assault where there was an intent to do the wrongful act from which the injury re- sulted. « § 27. Complaint on an account stated. — The essential fact to be alleged in the complaint in an action based upon an account stated, is that the plaintiff and defendant accounted together, and that on such accounting the defendant was found to be indebted to the plaintiff in a certain sum.' It is customary to add an alle- gation that the defendant promised to pay the balance found due and has not paid it,* but this is not essential to a statement of the 1 Addington v. Allen, 11 Wend. 402; Taylor v. Guest, 58 N. Y. 262; Wells V. Jewett, 11 How. 242; Barber v. Morgan, 51 Barb. 116; Clark v. People, 2 Lans. 329; Star Steamsliip Co. v. Mitchell, 1 Abb. (N. S.) 396; Brown v. Brockett, 55 How. 82; Evertson v. Miles, 6 Johns. 138; Weed v. Case, 55 Barb. 534. ^ Barber v. Morgan, 51 Barb. 116. 8 Zabriskie v. Smith, 13 N. Y. 322. "Viele V. Gray, 18 How. 550; 10 Abb. 1. ^ Laverty v. Snethen, 68 N. Y. 522; Roe v. Campbell, 40 Hun, 49; Haddis V. Einstman, 14 111. App. 443. « Peterson v. HafEuer, 59 Ind. 130. ■ Emery v. Pease, 20 N. Y. 62; Graham v. Camman, 13 How. 360; 5 Duer, 697; McFarland v. Gutter, 1 Mont. 383; Lockwood v. Thorne, 18 N. Y. 2S5, 288. " See 2 Chitt. PI. 90; Volkening v. De Graaf, 81 -N. Y. 268; Graham v. Cam- man, 18 How. 360; 5 Duer, 697. 148 The Complaint. Complaint for assault and battery. cause of action. It is sufficient to allege the facts from which the duty to pay arises, without alleging the promise,' and it is never necessary to anticipate and negative the defense of payment.^ A promise to pay may be inferred from a retention of an account for a length of time without objection f but an allegation in the complaint that one of the parties to an account made a statement of it and delivered it to the other, and that the latter made no objection to it, is not an allegation of the essential fact that the parties stated an account, and that such statement showed that there was due to the plaintiff the sum which he seeks to recover.* It takes two parties to make an account stated, the debtor and the creditor. There must be a mutual agreement between them as to the allowance and disallowance of their respective claims, and as to the balance as it is struck upon the final adjustment of the whole account and demands of both sides.^ The assent may te express or implied, and may be inferred from the retention of the account for a considerable time without objection to its cor- rectness.*^ The acknowledgment by the debtor that a certain sum is due, creates an implied promise to pay.' In an action on an account stated, it is never necessary to set forth the subject-matter of the original debt.' § 28. Complaint for assault and battery. — In an action to recover damages for an assault and battery, the essential allega- tions in the complaint are, that the defendant assaulted and beat the plaintiff ; and if the plaintiff seeks to recover special damages, such damages should be alleged.^ ' Ileinricli v. England, 34 Minn. 395; Claire v. Claire, 10 Neb. 54. 2 See ante, p. 28. 3 Kent V. Higbleyman, 17 Mo. App. 9; Young v. Hill, 67 N. Y. 163, 173. " Emery v. Pease, 20 N. Y. 62; St. Loais Lager Beer Bottling Co. v. Colo- orado Bank, 8 Col. 70; Brown v. Kimmel, 67 SIo. 430. 6 Stentou V. Jerome, 54 N. Y. 480; Vollcening v. De Graaf, 81 N. Y. 268. 6 Lockwood V. Tborne, 11 N. Y. 170; 18 N. Y. 285; Lambert v. Craft, 98 N. Y. 843, 350; Powell v. Pacific E. R. Co., 65 Mo. 658; Avery v. Leacli, 9 Hun, 106; Case v. Hotchkiss, 1 Abb. Ct. App. Dec. 334; Towsley v. Denison, 45 Barb. 490; Dows v. Durfee, 10 Barb. 213. ' McCall V. Nave, 53 Miss. 494. 8 McCall V. Nave, 53 Miss. 494, ' Stevens v. Rodger, 35 Ilun, 54; ante,, p. 143. The Complaint. 149 Complaiut in replevin. It is not essential to the statement of a cause of action, that the plaintiff should allege the motive, object or intent of the assault, though such motive may be material on the question of damages.' A party may be liable in damages for an unwarranted assault, al- though it may not have been committed in anger.^ § 29. Complaint in replevin. — An action of replevin can be maintained only by one who has the general or special property in the thing taken or detained, and therefore the complaint in such action must allege that the plaintiff has a general or special property in the chattel which is the subject of the action. An allegation that the plaintiff is entitled to the immediate possession of the property is not sufficient.' If the action is brought by the general owner of the property, he may allege generally, that at the time when the action was commenced he was the owner of the chattel, or that it was then his property, -and this will be a sufficient statement of his title.* But if the right of action rests upon a right of possession by vir- tue of a special property, the complaint must set forth the facts upon which the special property depends, so as to show that at the time when the action was commenced, the plaintiff was enti- tled to the possession of the chattel.^ The plaintiff's title must be correctly stated. If the plaintiff claims, in his complaint and on the trial, that he is the sole owner of the property in suit, he must stand or fall upon that claim, and cannot, in case iiis claim turns out to be invalid, fall back upon a claim of lien.^ Where the complaint contains a sufficient statement of the plaintiff's title, a general allegation that the defendant wrongfully took the chattel is sufficient, without setting forth the facts 1 Root V. Foster, 9 How. ,37. ' Jolinsou V. McConnell, 15 Hun, 293 3 Bond V. Mitcliell, 3 Barb. 304 ; Rockwell v. Saunders, 19 Barb. 473 ; Pat- tison V. Adams, 7 Hill, 136; Scofield v. Wliitelegge, 49 N. Y. 259; 13 Abb. (N. S.) 320; Vandenburgh v. Van Valkenburgh, 8 Barb. 317. " Code of Civil Pro., § 1730; Simmons v. Lyons, 55 N. Y. 671; Tell v. Beyer, 38 N. Y. 161; Childs v. Hart, 7 Barb. 370. 5 Code of Civil Pro., § 1720. « Hudson v. Swan, 83 N. Y. 553. 150 The Complaint. Complaint in replevin. showing that the taking was wrongful. Where the taking of the chattel is not complained of, but th§ action is founded upon its wrongful detention, the complaint must set forth the facts showing that the detention was wrongful.^ A complaint which alleges that the defendant wrongfully detains a chattel from the plaintiff, without alleging that the plaintiff has a general or special property in the chattel and is entitled to its immediate possession, or any other fact showing that the detention is wrong- ful, does not state a cause of action, and may properly be dis- missed on the trial.^ Where the plaintiff's case depends upon a wrongful detention without a wrongful taking, the complaint should contain an averment of a demand and refusal.^ Where the taking was wrongful, and the action is against the original wrong-doer, no demand need be alleged or proved.* And where the defendant had notice of the plaintiff's title, no demand is necessary.^ But although goods have been tortiously taken, a hona fide purchaser will not be liable in replevin until after de- mand and refusal to deliver." Thus, a hona fide purchaser of ex- empt property at a constable's sale is not hable to an action to re- cover possession thereof without a previous demand.^ So one who has purchased at a sheriff's sale under an execution, goods in the possession of the judgment debtor, is not liable to an action brought by the true owner to recover the goods or their value, until a demand therefor has been made and refused.* And where 1 Code of Civil Pro., § 1721. •' Scofield V. Whitelegge, 49 N. T. 359; 12 Abb. (N. S.) 320. 3 Scofield V. Whitelegge, 49 N. Y. 259; 12 Abb. (N. S.) 320; Purves v. Mozlt, 5 Rob. 653; 3 Abb. (N. S.) 409; 33 How. 478; Stevens v. Hyde, 33 Barb. 171; Fuller V. Lewis, 13 How. 319; 3 Abb. 383; Treat v. Hathorn, 3 Hun, 646. It was held, under the old Code, that in an action for an unlawful detention of personal property, it was unnecessary to allege in the complaint any demand or refusal; that the wrongful detention was the fact to be established, and that a demand and refusal was mere evidence of that fact. Simser v. Cowan, 56 Barb. 395. ■■ New York Car Oil Co. v. Richmond, 19 How. 505; 10 Abb. 185; 6 Bosw. 213; Moses v. Walker, 3 Hilt. 536. ' Hallet V. Carter, 19 Hun, 629; Pierce v. Van Dyke, 6 Hill, 613. « Barrett v. Warren, 3 Hill, 348; Gillet v. Roberts, 57 N. Y. 38. ' Twinam v. Swart, 4 Lans. 363. * Rawley v. Brown, 18 Hun, 456. The Complaint. 151 Complaint in replevin. personal property is demised, there must be a demand after the termination of the term, to sustain replevin.' The mere omission of a defendant to return property according to agreement is no conversion without a demand.^ A complaint against one who merely detains personal property delivered to him by a wrong-doer should allege a demand of the property and a refusal to deliver it.^ Such an allegation is essen- tial to a complaint in replevin against an assignee for the beneiit of creditors who has merely received, under the general assign- ment, property which his assignor had obtained by fraud.* But where the action is brought directly against the fraudulent ven- dee such an allegation is unnecessary.' A complaint which alleges that the plaintiff was and is the owner of certain personal property ; that the property came into the possession of the defendant ; that the plaintifE has requested its return ; and that the defendant has refused to return it and has converted it to his own use, states a cause of action without any further allegation of facts showing the detention to be wrong- ful.' An allegation that the defendant took the property of the plain- tiff imports a wrongful taking;' and therefore where a complaint alleges that the plaintiffs are co-partners ; that the defendant is the sheriff of the county ; and as such sheriff took from the posses- sion of the plaintiffs certain merchandise owned by them, and wrongfully detains the same, it states facts sufficient to constitute a cause of action.' In an action to recover goods from insolvent defendants who purchased the goods with the preconceived intention not to pay for them, it may be proper for the plaintiff to allege facts show- ing the insolvency of the defendants at the time of the purchase, ' White V. Brown, 5 Lans. 78. - Ryerson v. Kauffield, 13 Hun, 387. - Fuller V. Lewis, 13 How. 219; 3 Abb. 383. * Fuller V. Lewis, 13 How. 219; 3 Abb. 383; Roome v. McQovern, 8 Daly, 60; Goodwin v. Wortlieimer, 99 N. Y. 149. ' Hunter v. Hudson River Iron & Machine Co., 20 Barb. 493. « Chapin v. Merchants' Nat. Bank, 31 Hun, 539. ' Childs V. Hart, 7 Barb. 370. 8 Moses V. Bo we, 35 Hun, 560. 152 The Complaint. Complaiat in an action for conversion, or trover. the fraudulent suppression of tlieir insolvency, and the design of the defendants in making the purchase, including fraudulent rep- resentations made to others by which property was obtained, although the facts so alleged may partake somewhat of the char- acter of evidence.^ Where the plaintifE seeks to recover damages for an injury to or depreciation in the value of the chattel while it was in the possession or under the control of the defendant, he must set forth the facts in his complaint and demand judgment accord- ingly-' The complaint should conclude with a demand for the judg- ment to which the plaintiff deems himself entitled. This is ordinarily for a delivery of the property to the plaintifE and for damages for its detention, or in case a delivery of the property cannot be had, for the value of the property, together with the plaintiff's costs and disbursements in the action. § 30. Complaint in an action for conversion, or trover. — The complaint in trover should contain a statement of the plain- tiff's title to the property converted or his right to its possession ; a description of the property and a statement of its value; the acts of the defendant which deprived the plaintiff of his property; and a demand of judgment for the damages sustained. An action for conversion will lie in favor of a plaintiff who has either the title to the property or the right to its immediate pos- session ; he need not have both.' The plaintiff maj"- allege generally that at the time of the con- version he was the owner of the property and lawfully in the possession thereof without setting forth in detail how he acquired such title or possession.^ The property should be described with particularity sufficient to identify it if it is capable of identifica- tion, and the time when the property was converted should be alleged with reasonable certainty, as the value of the property at - Davenport Glucose Manuf. Co. v. Taussig, 31 Hun, 563. = Code of Civil Pro., g 1722. 3 Davis V. Morrell, 16 Weekly Dig. 530. ■• Malcom v. O'Reilly, 89 N. Y. 156; Heine v. Anderson, 3 Dner, 308; Berney V. Drexel, 33 Hun, 34. The Complaint. 153 Complaint in an action for conversion, or trover. the time of the conversion may constitute tlie measure of dam- ages. But allegations of time in this class of actions are not very- important; and if the time is incorrectly alleged the true time may be shown on the trial.^ The mode of alleging the act of conversion mnst depend upon the facts of the case. It is not necessary for the plaintifE to allege the details from which his title, or possession, or the conversion by the defendant would follow as their legal effect. Instead of giving a narrative of all the acts performed by the defendant in order to accomplish a conversion, it is permissible for the pleader to allege generally that the defendant converted the property to his own use.^ A fuller statement of the fact may be preferable, but excessive particularity is not required in the statement of the manner in which a wrong was committed as the defendant is pre- sumptively better informed of the facts than the adverse party, and the general rule of pleading applies that less particularity is required where the facts lie more in the knowledge of the oppo- site party than of the party pleading. If the pleader elects to give a narrative of the acts constituting the conversion, he must be governed in his allegations by the general rules of pleading and the facts of his particular case. A wrongful intent on the part of the defendant is not an essential element in a conversion and need not be alleged.' It is enough that the rightful owner has been deprived of his property by some unauthorized act of another as- suming dominion or control over it." Any unauthorized act which deprives another of his property permanently or for an indefinite 1 See ante, p. 33. 2 Thayer v. Gile, 43 Hun, 268; Decker v. Mathews, 12 N. Y. 313; Berney v. Drexel, 83 Hun, 34. Where conversion is alleged as a fact, in general terms, that is suflBcient to admit of any evidence on the trial of issues joined that tends to establish such conversion. Under such an allegation the plaintiii may show that the defendant obtained possession of the property through assign- ment from one having no valid title thereto; that the rightful owner demanded the property and that the defendant refused to deliver it, or that the defendant disposed of the property under such circumstances as will uphold an action against him. Id. See Chapin v. Merchants' Nat. Bank, 31 Hun, 539. « Boyce v. Brockway, 31 N. Y. 490; Pease v. Smith, 61 N. Y. 477; Laverty V. Snethen, 68 N. Y. 522; ante, p. 147. ^ Boyce v. Brockway, 31 N. Y. 490; Pease v. Smith, 61 N. Y. 477; Laverty V. Snethen, 68 N. Y.533; Fouldes v. Willoughby, 8 M. & W. 540. 20 154 The Complaint. Complaint in an action for conversion, or trover. time is a conversion.^ No manna] taking on the defendant's part is necessarj.- An assumed act of ownership inconsistent with the dominion of the plaintiff, whereby he snffers damage, gives the right of action.^ But where there is no manual taking, and words are relied upon as constituting the conversion, they must have been uttered under such circumstances, in proximity to the prop- erty, as to show a defiance of the owner's riglit, and a determina- tion to exercise dominion and control over the property and to exclude the owner from the exercise of his rights.'' In certain cases it may be necessary for the plaintiff to prove upon the trial that he demanded his property of the defendant and that the latter refused to deliver it. This will be necessary where the property came lawfully into the possession of the defendant and he has since done no act in denial of the plaintifE's rights.* The sole object of a demand is to turn an otherwise lawful pos- session into an unlawful one by reason of a refusal to comply with it, and thus to supply evidence of a conversion.* But where the acts of the defendant amount to a denial of the plaintiff's right independent of any refusal to comply with a demand, as for example, where the defendant has unlawfully taken the plaintifE's property,^ or, having lawfully obtained its possession, has subse- quently unlawfully sold or disposed of it so as to deprive the plaintiff of it permanently or for an indefinite time, no demand and refusal need be proved.^ If a person, in good faith, and in ■ Hiort V. Bott, L. R., 9 Exch. 86. ■ Bristol V. Burt, 7 Johns. 254; Connah v. Hall, 23 Wend. 462; Reynolds v. Shuler, 5 Cow. 323; Wltheriugham v. Lafoy, 7 Cow. 735. 2 Pease v. Smith, 61 X. T. 477; Latimer v. Wheeler, 1 Keyes, 468; Bristol v. Burt, 7 Johns. 254; Allen v. McMonagle, 77 Mo. 478; Eamsby v. Beezley, 11 Oregon, 49. ^ Gillet V. Roberts, 57 N. Y. 28. " Ryerson v. KaufEeld, 18 Hun, 387; Arosemena v. Hinckley, 11 Jones & Sp. 43; Goodwin v. Wertheimer, 99 N. X. 149. « Pease v. Smith, 61 N. Y. 477; Esmay v. Fanning, 9 Barb. 176; Munger v. Hess, 28 Barb. 75; Vincent v. Conklin, 1 E. D. Smith, 303; Glassner v. Wheatou, 2 E. D. Smith, 352. ■> Connah v. Hale, 23 Wend. 463; Pease v. Smith, 61 N. Y. 477; Salomon v. Van Praag, 6 Hun, 529. 8 Powell V. Powell, 71 N. Y. 71; Pease v. Smith, 61 N". Y. 477; Haas v. Taylor, 80 Ala. 459; Levi v. Booth, 58 Md. 305; Hake v, Buell, 50 Micb. 89. The Complatnt. 155 Complaint in action for malicious prosecution. the ordinary course of business, has purchased stolen goods, and subsequently, without knowledge of the theft, has sold and de- livered them to a third person, he will be liable to the true owner for a conversion of the goods without a demand, and although the goods were never in his actual possession.^ Although it may be necessary to prove a demand and refusal in order to make out a cause of action for a conversion it does not follow that the complaint must contain a direct allegation that the plaintiff demanded the property and the defendant refused to deliver it. If the complaint alleges that the plaintiff is the owner of the property in question and that the defendant has wrongfully converted the property to his own use, the failure to allege a demand and refusal will not render the pleading de- murrable, nor will it debar the plaintiff from proving the demand and refusal if such proof becomes necessary on the trial.' But if the plaintiff attempts to state in a narrative form the acts of the defendant constituting the conversion, and a refusal to deliver on demand is an essential part of the wrongful act, it must be alleged in the complaint. §31. Complaint inaction for malicious prosecution, — To support an action for malicious prosecution it must be alleged and proved that a prosecution was commenced against the plaintiff; that it was instituted or instigated by the defendant ; that it was malicious; that it was without probable cause; and that it has legally and finally terminated in the plaintiff's favor.^ The complaint must allege both malice and want of probable cause. It is not sufficient to allege merely that the charge was false and malicious.'' The malice of the defendant should be alleged as a fact ; and the circumstances which amount to mere 1 Pease v. Smitli, 61 N. Y. 477. 2 Berney v. Drexel, 33 Hun, 34. 3 Wheeler v. Nesbitt, 65 TJ. S. 544; Miller v. Milligan, 48 Barb. 30; Farnam V. Peeley, 56 N. Y. 451; Wanser v. Wyckoff, 9 Hun, 178; Laird v. Taylor, 66 Barb. 139; Vinal v. Core, 18 W. Va. 1. ^ Besson v. Southard, 10 N. Y. 236; Miller v. Milligan, 48 Barb. 30; John v. Duncan, 3 Law Bull. 30; Brown v. Chadsey, 39 Barb. 253; Given v. Webb, 7 Rob. 65; turner v. O'Brien, 11 Neb. 108 ; Moody v. Deutsch, 85 Mo. 287; Tur- ner V. Turner, 85 Tenn. 387. 156 The Complaint. Complaint in action for abuse of legal process. evidence of malice, or wliicli merely tend to aggravate the ordi- nary damages which necessarily result from the alleged wrong, should not be pleaded.^ But the complaint m.ay contain a state- ment of facts tending to show the motive of the defendant in instituting the proceedings if it also tends to show special damage which could not be proven on the trial without such statement.^ The fact that the prosecution has legally and finally terminated in the plaintiff's favor is an indisjjensable matter both of averment and proof, and is part of the allegation and proof of want of probable cause.^ If an allegation of the termination of the prose- cution is accompanied by a statement of the manner of its termi- nation, and the facts stated do not show that no further proceed- ings can be had upon the charge, it will not be sufficient.* But an allegation that a nolle prosequi had been entered on the indict- ment against the plaintiff, with the concurrence and assent of the defendant, will sufficiently show a final termination of the prosecution.^ A plaintiff in whose favor a final judgment has been rendered on a trial may sue for malicious prosecution, although an appeal has been taken from the judgment and is pend- ing.^ But it has been held that where an action for malicious prosecution is based upon an arrest under an oi'der which has since been vacated, the complaint should allege that no appeal has been taken from the order vacating the order of arrest.^ § 32. Complaint in action for abuse of legal process. — Where the process of the court is illegally and wrongfully used i Solis V. Manning, 37 How. 13; Eddy v. Beach, 7 Abb. 7^ Sliaw v. Jayne, 4 How. 119; Malony v. Dows, 15 How. 261, 265. ' Brockleman v. Brandt, 10 Abb. 141 . 3 Gallagher v. Stoddard, 47 Hun, 101; Brown v. Chadsey, 89 Barb. 253; Hall V. Fisher, 30 Barb. 441; Nebenzahl v. Townsend, 61 How. 353; Rothschild v. Meyer, 18 111. App. 284; Johnson v. Finch, 93 N. C. 205; Lawler v. Levy, 83 La. Ann. 220. This rule does not apply where the defendant had no oppor- tunity to defend. Bump v. Betts, 19 AVeud. 421. « Thomason v. De Mott, 18 How. 539; 9 Abb. 242. In this case the state- ment was that the district attorney had certified on the indictment that the case was frivolous and ought not to be tried. ' Moulton V. Beecher, 8 Hun, 100. « Marks v. Townsend, 97 N. Y. 590. ' Ingram v. Root, 51 Hun, 238. The Complaint. 157 Complaint in action for false imprisonment. to compel the surrender of property or rights, a right of action accrues to the party injured.^ The action to recover the damages sustained by reason of abuse of legal process differs materially from an action for malicious prosecution and from an action for false imprisonment both in the matter of pleading and proof. An action will lie against one who wrongfully and willfully causes an execution to issue on a judgment which he knows to be paid and satisfied, under which the property of the defendant in the execution is taken and sold, and in such action it is not neces- sary that actual malice should be alleged in terms or explicitly proved.^ So an action may be maintained against one who has wrongfully sued, arrested and imprisoned the plaintiff for a wrongful or fictitious claim, without alleging or proving a want of probable cause. ^ Where a landlord without right has tiirned his tenant off the farm and seized his personal property, and for the purpose of compelling the tenant to abandon his rights has caused his arrest on a false and fictitious criminal charge, the tenant may maintain an action to recover the damages he has sus- tained without alleging or proving the termination of the crimi- nal prosecution.* § 33. Complaint in action for false imprisonment. — A complaint which alleges that at a specified time and place the defendant unlawfully seized the plaintiff and compelled him to go to the common jail of the county and there imprisoned him against his will for a specified time, to the great damage of the plaintiff, and demands judgment for damages, is a good pleading under the Code, and sufficiently states a cause of action for false imprisonment.^ It is neither necessary nor proper to set forth in the complaint the particular instrumentality by which the plaintiff was restrained of his liberty, nor all the facts and circumstances of his arrest.*^ - Brown v. Feeter, 7 Wend. 301; Bebinger v. Sweet, 1 Abb. N". C. 363; 6 Hun, 478; Smith v. Smith, 20 Hun, 555. See Brown v. Mclutyre, 43 Barb. 344. - Brown v. Feeter, 7 Wend. 301. 3 Hazard v. Harding, 63 How. 326. ■ * Bebinger v. Sweet, 1 Abb. N. C. 363 ; 6 Hun, 478. ' Shaw V. Jayne, 4 How. 119, 133. « Shaw V. Jayne, 4 How. 119, 133; Eddy v. Beach, 7 Abb. 17. 158 The Complaint. Complaint in action for conspiracy — Complaint in action for fraud or deceit. It is not necessary to allege that the defendant acted from ma- licious motives, or that the arrest and imprisonment were without probable cause, as such allegations form no part of a statement of a cause of action for false imprisonment.^ If the plaintiff has sustained special damages by reason of the false imprisonment they should be alleged.^ § 34. Complaiut in action for conspiracy. — The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defrai;d, or to cause other injury to person or property, which actually resulted in damage to the per- son or property of the plaintiff.^ A general allegation of fraud or collusion is sufficient to shut out a demurrer to a complaint in this class of actions, although it may be more correct to state the facts upon which the allegation is founded. A complaint for conspiracy and fraud may state the fact of combination, its object, and its injury to the plaintiff, without stating details of facts to show the complicity of the de- fendants.* A complaint in an action for conspiracy to defraud is sufficient which alleges that the defendants, K. & M., conspired with S. to cheat and defraud the plaintiff by inducing him to part with his goods with a preconceived intent not to pay for them, and that in carrying oat this conspiracy, false and fraudulent repre- sentations were made to the plaintiff by S., on which the plaintiff relied, and parted with specified goods to his damage, etc. Such general allegations may be proved on the trial by any circum- stance going to establish it.^ § 35. Complaint in action for frand or deceit. — The com- plaint in an action for fraud or deceit, when brought by the purchaser against the seller to recover the damages which he has 1 Marks v. Townsend, 97 N". Y. 59O; Brown v. Chadsey, 39 Barb. 253. = Molony v. Dows, 15 How. 261; Lang v. Witto, 3 Law Bull. 23. 3 Place V. Minster, 65 N. Y. 89. "• Ynguanzo v. Saloman, 3 Daly, 153. See McHenry v. Hazard, 45 Barb. 657. « Place V. Minster, 65 N. Y. 8!). Great latitude is allowed in the statement of the particular acts from which the conspiracy is to be inferred. Mussina V. Clark, 17 Abb. 188; Tappan v. Powers, 2 Hall, 277. The Complaint. 159 Complaint in action for fraud or deceit. sustained by reason of having been induced to make tbe purchase by the false and fraudulent representations of the vendor, must in substance state the representations, and aver their falsity, and that they were made with intent to deceive the plaintiff and in- duce him to make the purchase, and that they did induce him to make such purchase to his damage.^ Every fraudulent representation upon which the plaintiff re- lies to sustain his cause of action should be stated, as such only as are pleaded can be proved.^ The plaintiff may allege directly that the representations were made with intent to deceive and defraud the plaintiff" or he may allege facts which taken together necessarily imply that a fraud has been committed.* To sustain the action it must appear that the defendant believed or had reason to believe at the time he made them, that the representa- tions were false, or that, without knowledge, he assumed or in- tended to convey the impression that he had actual knowledge of their truth, and that the plaintiff relied upon them to his injury.^ In either case the defendant will be guilty of fraud.'' An allega- tion that the defendant "falsely and fraudulently represented " that certain facts existed is a sufficient allegation that the defend- ant knew the representation to be false when he made it,' and charges an intentional fraud.' A complaint mav be so framed as ' Barber v. Morgan, 51 Barb. 116; Cazeaux v. Slali, 25 Barb. 578; Ross v. Mather, 51 N. Y, 108. ' Reed v. Clark Cove Guano Co., 47 Hun, 410; Wells v. Jewett, 11 How. 342. 3 Morse V. Suitts, 19 How. 275: Addington v. Allen, 11 Wend. 402; Star Steamship Co. v. Mitchell, 1 Abb. (N. S.) 396. - Barber v. Morgan, 51 Barb. 116; Sharp v. Mayor of New York, 40 Barb. 256; 25 How. 389; Zabriskie v. Smith, 13 N. Y. 322. ' Marsh V. Pklker, 40 N. Y. 562; Wakeman v. Dalley, 51 X. Y. 27; Stitt v. Little, 63 N. Y. 427; Taylor v. Guest, 58 N. Y. 262; Meyer v. Amidon, 45 N. Y. 169; Oberlanderv. Spiess, 45 N. Y. 175; Caylus v. New York, etc., R. R, Co., 10 Hun, 295; Duffany v. Ferguson, 66 N. Y. 482; Hubbell v. Meigs, 50 N. Y. 480; .itkins v. Elwell, 45 N. Y. 753. ' Bishop V. Davis, 9 Hun, 343; Hammond v. Pennock, 61 N, Y, 145. ' Thomas v. Beebe, 25 N. Y. 244; Miller v. Barber, 66 N. Y. 558; Ross v. Mather. 51 N Y. 108; Barnes v. Quigley, 59 N. Y, 265; Moore v. Noble, 53 Barb. 425; 35 How. 385. 8 Dudley v. Scrantou, 57 N. Y. 424 160 The Complaint. Complaint in action for fraud or deceit. to allege a fraud although the words " fraud" or " fraudulently '' ai-e not employed to characterize the transaction or any of the acts of the defendant.' J3at it must in some way appear from the allegations of the complaint that the representations were made with intent to defraud and that the plaintiff was deceived thereby.^ To sustain an action for fraudulent representations a close relation must be shown between the representations and the injury claimed, and also that the representations must have been made to influence the conduct of the plaintiff or of a class of persons in which he was included. The fraud and injury must be connected; the one must bear to the other the relation of cause and effect to such an extent that it shall appear that the damage flowed from the fraud as the proximate and not as the remote cause.' In a legal sense a person is not damaged by a false representa- tion by which he was not influenced. Fraud without damage or damage without fraud will not sustain an action for deceit ; and a false and fraudulent representation made by one party to induce a contract entered into by the other is not actionable unless the party to whom it was made believed the representations to be true and acted upon the faith of it to his damage.* It is incumbent upon the party claiming to recover in an action for deceit founded upon false representations to show that he was influenced by them, and to allege the fact in his complaint as well as prove it on the trial.5 In an action to recover damages for deceit in inducing the plain- tiff to purchase worthless property it is not necessary or proper to allege in the complaint a return or an offer to return the prop- erty." In an action for falsely and fraudulently representing a person as solvent, the complaint should allege that the representa- tions were made with intent to deceive and defraud ; but if it i See Warner v. Blakeman, 4 Keyes, 487; 4 Abb. Ct. App. 530; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Whittlesey v. Delauey, 73 X. Y. 571. = Lefler v. Field, 53 N. Y. 621; Dubois v. Hermance, 56 N. Y. 673. 3 Brackett v. Griswold, 113 N. Y. 454. ••Taylor v. Quest, 58 N. Y. 363; Scott v. Lara, Peake's Cases, 336; Allen v. Addingtou, 7 Wend. 11; 11 Wend. 375; Meyer v. Amidon, 45 N. Y. 169; Ober- lander v. Spiess, 45 N. Y. 175; Lefler v. Field, 53 N. Y. 631. > Taylor v. Quest, 58 N. Y. 362; Barber v. Morgan, 51 Barb. 116. Miller v. Barber, 66 N. Y. 558; Hubbell v. Meigs, 50 N. Y. 487. The Complaint. 161 Complaint in action for libel or slander. alleges this in substance, though not in direct and technical lan- guage, it is sufficient.^ The essential constituents of an action for fraud and deceit are representation, falsity, scienter, deception, and injury.^ There must have been a false representation, known to be such, made by the defendant, calculated and intended to iniiuence the plaintiff, and which came to his knowledge, and in reliance upon which, he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he claims. All these matters must concur.^ § 36. Complaint in action for libel or slander. — In an action for libel or slander it is not necessary to state in the complaint any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter ; but the plaintiff may state generally that it was pitblished or spoken concerning him, and if that allegation is controverted, the plaintiff must establish it on the trial.'' The complaint in an action for libel should contain an aver- ment that the defendant published concerning the plaintiff cer- tain defamatory matter which should be stated fully. It is not necessary to set out the whole of the obnoxious publication, and it will be sufficient to set out the particular passages complained of provided their sense be clear and distinct.* The precise words published should be set out."* It is common and proper to allege that the publication was false and malicious ; but the law will presume it to be false ; and where it is unambiguous and not capable of being understood in any other sense than as defamatory to an extent that must necessarily ex- 1 Zabriskie v. Smith, 13 N. Y. 323, ' Arthur v. Griswold, 55 N. Y. 400, 410. 3 Bracket! v. Griswold, 113 N. Y. 454. * Code of Civil Pro., § 535; Wesley v. Bennett, 5 Abb. 498; 6 Duer, 688; Henderson v. Commercial Advertiser Association, 46 Hun, 504. ^ Culver V. Van Anden, 4 Abb. 375. ' Finnerty v. Barker, 7 N. Y. Leg. Obs. 816. If the words were published in a foreign language they should be set forth in that language with an aver- ment of their meaning in English. Lettman v. Ritz, 3 Sandf. 734; Pelzer v. Beniah, 67 Wis. 391. 21 162 The Complaint. Complaint in action for libel or slander. pose the plaintiff to contempt and ridicule, tlie law will infer malice, and the absence of a direct averment of falsity and malice will not render the pleading legally objectionable.' An allegation that the words published are a libel is a sufficient allegation of falsehood and malice.^ Where the defamatory matter is presump- tively privileged, the complaint should contain an averment of malice ; and a general averment that the words were published falsely and maliciously is sufficient.' In an action for slander the complaint should allege that the defendant spoke concerning the plaintiff in the presence and hearing of divers persons'* certain defamatory matter which should be set out in the precise language used, or as nearly in the ex- act language of the defendant as possible.' The words must be proved strictly as alleged." If the defamatory words impute the commission of a crime the complaint need not allege malice.^ In an action for libel if the words published are not libellous ^er se, the complaint must allege the extrinsic fact on which the plaintiff rehes to show the alleged libellous character of the words complained of. This fact must be distinctly averred, and it will not be sufficient to allege it by way of innuendo.' The same rule applies in actions for slander.' The office of an innuendo is to connect the published words with persons or facts previously named, and being merely explanatory, cannot enlarge the sense 1 Hunt V. Bennett, 19 N. Y. 173; Dixon v. Allen, 69 Cal. 537. " Hunt V. Bennett, 19 N. Y. 173. 3 Viele V. Gray, 18 How. 550; 10 Abb. 1; Younger v. Duffie, 26 Hun, 442. ■• See Frank v. Kaminsky, 109 111. 26; Desmond v. Brown, 88 Iowa, 13. - Forsyth v. Edmiston, 2 Abb. 430; 5 Duer, 653. If spoken in a foreign lan- guage, the foreign words should be set out with a translation in English (Zeig V. Ort, 8 Finn. [Wis.] 80), and with an allegation that they were understood by those who heard them. Warmouth v. Cramer, 8 Wend. 394. 6 Estes V. Estes, 75 Me. 478; Wood v. Hilbish, 23 Mo. App. 389. Actionable words not counted on cannot be given in evidence. Eundell v. Butler, 7 Barb. 260; Keenholts v. Becker, 8 Denio, 346; Root v. Lowndes, 6 Hill, 518. ■ Burton v. Beasley, 88 Ind. 401. 8 Caldwell v. Raymond, 3 Abb. 198; Culver v. Van Anden, 4 Abb. 375; Stewart v. Wilson, 23 Minn. 449; Fry v. Bennett, 5 Sandf. 54; Ward v. Coly- han, 30 Ind. 395. » Hart V. Coy, 40 Ind. 553; Ward v. Colyhan, 30 Ind. 395; Rundell v. Butler, 7 Barb. 260. The Complaint. 163 Oomplaiut ia action for libel or slander. of words, or supply or alter them where they are deficient.' A complaint in slander for words actionable only because spoken of the plaintiff in his business or profession must contain appropriate averments by way of inducement and colloquium. If a physician brings an action for the speaking of words disgraceful to him in his profession, he must aver in his complaint that he was a prac- ticing physician at the time the words were uttered, and that they were spoken of and concerning him in his profession.^ When the words spoken have such a relation to the profession or occu- pation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence is nec- essarily to be reposed, they are actionable although not applied by the speaker to the profession or occupation of the plaintiff ; but when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable unless such application be made.^ Extrinsic averments are not necessary in a complaint in an ac- tion for libel where the words used by the defendant, giving them their natural construction, tend to injure the reputation of the plaintiff and expose him to hatred, contempt or ridicule. It is only where the words used would not of themselves naturally import a criminal or disgraceful charge that extrinsic averments are necessary.'' If the words used by the defendant have by local usage a peculiar meaning, that meaning should be averred.^ It is still necessar}' under the Code to aver and prove any fact nec- essary to explain the meaning of the words used.^ If the words used in the defamatory charge are not actionable 1 Blaisdell v. Raymond, 14 Hqw. 265; 4 Abb. 446; Gault v. Babbitt, 1 111. App. 130; Patterson v. Wilkinson, 55 Me. 42; Brown v. Finer, 6 Bush (Ky.), 518; Bell V. Sun Printing, etc.. Association, 3 Abb. N. C. 157; Havemeyer v. Fuller, 60 How. 316; 10 Abb. N. C. 9; Fleischman v. Bennett, 87 N. Y. 231. » Carroll v. White, 33 Barb. 615. 3 Sanderson v. Caldwell, 45 N. T. 398. * More V. Bennett, 48 N. Y. 472; Cooper v. Greeley, 1 Denio, 361; Crosswell T. Weed, 25 Wend. 621. = Edsall V. Brooks, 3 Rob. 284. ' Dias V. Short, 16 How. 322. 1G4 The Complaint. Complaint for slander upon title — Complaint in action for seduction. per se, the plaintiff must allege and prove special damage, in the manner pointed out in a preceding section.^ § 37. Complaint in action for slander upon title. — Many of the rules applicable to an action for personal slander, by words not actionable pe?' se, apply to actions for slander of title to land. The essential facts to be alleged and proved are that the plaintiff had title to certain lands ; that the defendant, in the presence of divers persons spoke certain specified words impeaching the plain- tiff's title ; that such words were false ; that they were uttered maliciously, and with intent to injure the plaintiff; and that by reason thereof, the plaintiff sustained pecuniary damage, which should be specially alleged.^ An action will also lie for a slander upon title to personal prop- erty ; and the complaint in such action will be substantially the same as in an action for slander upon title to lands.^ § 38. Complaint in an action for seduction. — In theory, an action for seduction is based upon the loss of service.'' The ac- tion is not maintainable upon the relation of parent and child, but solely upon that of master and servant.'* A seduction simply, if unaccompanied by loss of service, gives no cause of action to the parent.^ But evidence of the rendition of the slightest services will be sufficient to establish the relation of master and servant in an action for seduction, and will support a recovery for the heavi- est damages, and on the question of damages the actual loss of ser- vice is often an unimportant factor.^ It has even been held that I See ante, p. 143; Wallace v. Bennett, 1 Abb. N. C. 478; Bell v. Sun Print- ing & Publishing Association, 3 Abb. N. C. 157; Bassell v. Elmore, 48 N. Y. 561. « Kendall v. Stone, 5 N. Y. 14; Dodge v. Colby, 108 N. Y. 445; Like v. McKinstry, 41 Barb. 186; 4 Keyes, 397; 3 Abb. Ct. App. Dec. 62; Edwards v. Burris, 60 Cal. 157; Linden v. Graliam, 1 Duer, 670; Bailey v. Dean, 5 Barb. 297. 3 See Like v. McKinstry, 41 Barb. 186; 4 Keyes, 397; -3 Abb. Ct. App. Dec. 63. * Knight V. Wilcox, 14 N. Y. 413; Lawrence v, Spence, 39 Hun, 169; Gray V, Durland, 51 N. Y. 434. ' Bartley v. Richtmyer, 4 N. Y. 38; Knight v. Wilcox, 14 N. T. 413. « Gray v. Durland, 51 N. Y. 484 ; White v. Nellis, 31 N. Y. 405. ' Badgley v. Decker, 44 Barb. 577; Ingersou v. Miller, 47 Barb. 47. The Complaint. 165 Complaint in action for death by negligence. aside from the ground of loss of service, an action for seduction of a minor daughter may be maintained by the mother, where, prior to the seduction, the daughter was able to earn her own sup- port, but in consequence of the seduction became unable to do so, and the burden of caring and providing for her was thrown upon the mother by virtue of the statute making the mother liable for the support of an indigent child.' But in this class of actions, 'the loss of service, or actual injury to the plaintiff's rights as master must still be alleged and proved.^ In an action by the father for the seduction of his daughter, an allegation that " she is under the age of twenty-one years and un- married, and was so at the time of the seduction, and that the plaintiff then was and still is entitled to her attentions and ser- vices," sufficiently avers the relation of master and servant.' The complaint may allege the time of the acts of connection with a continuendo, and evidence may be received under it for any time covered by the complaint.* § 39. Complaint in action for death by negligence. — The Code provides that the executor or administrator of a decedent who has left him or her surviving a husband, wife, or next of kin may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death. ^ A complaint under this statute should state the time when the wrongful act was committed in order that it may appear to have been subsequent to the adoj)tion of the statute, but it need not in terms allege that the cause of action arose after the passage of the - Furman v. Van Sise, 56 N. Y. 435. See also Certwell v. Hoyt, 6 Hun, 575. - Ingerson v. Miller, 47 Barb. 47. This is unnecessary under the Virginia Code. Clem v. Holmes, 33 Gratt. (Va.) 722. 3 Riddle v. McGinnis, 23 W Va. 353; Clem v. Holmes, 33 Gratt. (Va.) 733. * Lemmon v. Moore, 94 Ind. 40. See Haymond v. Saucer, 84 Ind. 3. 'Code of Civil Pro., §1903. 166 The Complaint. Complaint in action for deatii by negligence. act nor need it in any manner directly allude to the statute.^ But the complaint must state all the facts which are requisite to bring the case within the statute.^ It should allege that the decedent left a husband, widow, or next of kin, according to the fact,^ but it is not necessary to state their names.* The complaint should allege the wrongful act, neglect or default of the defendant and that the decedent's death resulted therefrom. A general aver- ment of negligence will be sufficient to admit proof of the fact. It need not allege the absence of contributory negligence where it alleges that the death was caused by the wrongful and willful neglect and default of the defendant.^ The place where the cause of action arose is material and should be alleged.'' If the cause of action arose in another State the complaint should allege as a fact the existence of a statute of that State, giving a right of action for the wrongful act.' The existence of such statute will give a right of action to an administrator appointed by a surrogate of this State.* If the cause of action arose on the high seas, on a vessel hailing from and registered in a port within this State, and owned by citizens thereof, these facts should be alleged, as they are necessary to bring the case within the statute.' The plaintiff should allege his official character as executor or administrator, and that letters testamentary or of administration have been duly issued to him by the surrogate of a county within this State.'" It is always proper to allege that the persons for whose benefit the 1 Brown v. Harmon, 31 Barb. 508; Yertore v. Wiswall, 16 How. 8. - Brown v. Harmon, 21 Barb. 508. 3 SafEord v. Drew, 3 Daer, 637; Lucas v. New York Cent. R. R. Co., 31 Barb. 245; Kenney v. New York Cent. & H. R. R. R. Co., 49 Hun, 535. ^ Keller v. New York Cent. R. R. Co., 34 N. Y. 173; 3 Abb. Ct. App. Dec. 480. ' Melhado v. Poughkeepsie Transp. Co. , 37 Hun, 99. « Beach v. Bay State Steamboat Co., 30 Barb. 483; 18 How. 335; 10 Abb. 71; Vandeveuter V. New York & N. H. R. R. Co., 27 Barb. 244; Cro%vley v. Panama R. R. Co., 30 Barb. 99; Whitford v. Panama R. R. Co., 23 N. Y. 465; Mahler V. Transportation Co., 35 N. Y. 353. ' Throop V. Hatch, 3 Abb. 33; Stallknecht v. Pennsylvania R. R. Co., 53 How. 305. » Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48; Stallknecht v. Pennsylvania R. R. Co., 13 Hun, 451; 53 How. 305. ' McDonald v. Mallory, 77 N. Y. 546; 7 Abb. N. C. 84. io Kenney v. New York Cent. & H. R. R. R. Co., 49 Hun, 535. See ante, p. lij. The Complaint. 167 Complaint for negligence generally — Complaint under Civil Damage Act. action is brought have sustained a pecuniary loss, to a specified amount from the decedent's death.^ But sucli an allegation is not necessary to the statement of a cause of action under the statute, and without it the plaintiff may recover nominal damages at least. ^ § 40. Complaint in actions for negligence generally. — The essential fact to be established in an action to recover damages for negligence is that the plaintiff, without fault on his part, has sustained damage througli the negligence of the defendant. A general allegation that the injury was caused by the negli- gence of the defendant is sufficient to authorize evidence of the neglect or misconduct of the defendant tending to produce the injury.' This rule is equally applicable whether the defendant would be liable for ordinary or only for gross negligence. De- grees of negligence are matters of proof and not of averment.* It is not necessary to allege in the complaint that the injury did not occur through the negligence of the plaintiff. An averment in the complaint that the negligence of the defendant was the cause of the injury is equivalent to an allegation that it is the sole cause.' § 41. Complaint in action under the Civil Damage Act. — The statute commonly known as the Civil Damage Act provides that every husband, wife, child, parent, guardian, employer or other person who shall be injured in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons, who, by selling or giving away intoxicating liquors, shall have caused the intoxication, in whole or in part of such person, 1 SafEord v. Drew, 3 Duer, 627, 641. ' Kenney v. New York Cent. & H. R. R. R. Co., 49 Hun, 535; Quin v. Moore, 15 N. Y. 483; Mclntyre v. New York Cent. R. R. Co., 43 Barb. 533. 3 Oldfield V. New York & Harlem R. R. Co., 14 N. Y. 310. * Nolton V. Western R. R. Co., 15 N. Y. 444. ' Urquhart v. City of Ogdensburgh, 33 Hun, 75; Haskell v. Village of Penn Yan, 5 Lans. 43, 48; Wolfe v. Supervisors of Richmond Co., 19 How. 370; Hackford v. New York Cent. R. R. Co., 13 Abb. (N. S.) 18; Richards v. Westcott, 3 Bosw. 589; Melhado v. Poughkeepsie Transportation Co., 37 Hun, 99. 168 The Complaint. Complaint in ejectment. and any person or persons owning or renting or permitting tho occupation of any building or premises, having knowledge that intoxicating liquors are to be sold therein, shall be liable sev- erally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages.^ A widow of a person whose death necessarily followed and was attributable to his intoxication, if injured in her means of sup- port, may maintain an action under this statute against the ven- dor of the liquor which, in whole or in part, caused such intoxi- cation, and against the owner of the building in which such liquor was sold in the cases specified in the statute.^ In stating a cause of action under this statute it is snfBcient to aver facts which come within the language of the statute.' The complaint should allege the relationship of the plaintiff to the intoxicated person ; the sale or giving away of liquors to such person by the defendant, his agents or servants; that such person became intoxicated; that such intoxication was caused in whole or in part by the liquors so sold or given to him by the defendant ; that in consequence of such intoxication the intoxicated person did or omitted to do some act, or was killed, injured or otherwise incapacitated, stating the facts as they exist ; and that by reason thereof the plaintiff was injured in person, or property, or means of sujDport, and has sustained damage in a sum specified. If the action is brought against both the vendor of the liquor and the owner of the building in which the sale was made, the complaint should allege the ownership of the premises, and the renting or permission to occupy the same with knowledge that intoxicating liquors were to be sold therein. § 42. Complaint in ejectment. —The complaint in an action of ejectment should state what estate the plaintiff claims in the land in question ;* should describe the property claimed with common certainty by setting forth the name of the township or 1 Laws of 1873, chapter 646. ' Mead v. Stratton, 87 N. Y. 493; Ford v. Ames, 36 Hun, 571; Davis v. Stan- dish, 26 Hun, 608. 3 Ford V. Ames, 36 Hun, 571. ^ Warner v. Nelligar, 13 How. 402; Ensign v. Sherman, 14 How. 439. The Complaint. 169 Complaint in ejectment. tract, and the number of the lot, if there is any, or in some other appropriate manner, so that from the description possession of the property claimed may be delivered, where the plaintiff is entitled thereto ;' should state that the plaintiff was in possession of the property on some day after his title accrued ; that the de- fendant afterward, and on a specified dnj, entered into possession thereof and unlawfully withholds such possession from the plain- tiff,^ to his damage in a specified sum. It is not necessarj' to state in detail the facts constituting the estate or interest claimed in the laud, but the general form or character of the estate or interest must be averred.^ Thus, it is sufficient for the plaintiff to allege that he has the lawful title to the property as the owner in fee-simple.'' It has been held that where the complaint states that the plaintiff is seized in fee and that the defendant unlawfully witliholds the possession, an omis- sion of an averment that the plaintiff is entitled to the possession does not render the comj^laint demurrable.' But this doctrine does not seem to be unquestioned, and it has also been held that an allegation of title without an allegation of the I'ight to the pos- session of premises is not sufficient to support a complaint in ejectment.* If the plaintiff claims the entire property he cannot without amendment recover an undivided interest.' 1 Code of Civil Pro., § 1511. As to what is a sufficient description, see Gla- cier Mountain Silver Mining Co. v. Willis, 137 U. S. 471; St. John v. Nor- thrup, 23 Barb. 25; Livingston County v. Morris, 71 Mo. 603; May v. First Div. St. Paul & Pacific K. E. Co., 26 Minn. 74; White v. Hapeman, 43 Mich. 267. ^ Warner v. Nelligav, 13 How. 402; Ensign v. Sherman, 14 How. 439; Tay- lor V. Crane, 15 How. 358. 3 Austin V. Schluyter, 7 Hun, 275. ' Sanders v. Leavy, 16 How. 308; Ensign v. Sherman, 14 How. 439; Walter V. Lockwood, 23 Barb. 238; 4 Abb. 307. ■ Wilmington, Columbia, etc., R. R. Co. v. Garner, 27 S. C. 50; Halsey v. Gerdes, 17 Abb. N. C. 395. « Linden v. Doetsch, 40 Hun, 239, 240; Moores v. Lehman, 20 Jones & Sp. 283. Under the Indiana statute the plaintiff must state that he is entitled to the possession of the premises, and that the defendant unlawfully keeps him out of possession, and an allegation of ownership and an unlawful keeping out of possession is insufficient. Ind. Rev, St., § 1054; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297. This is the rule under the Wisconsin statute. Barclay v. Teomans, 37 Wis. 683. '' Smith V. Long, 12 Abb. N. C. 113. 22 170 The Complaint. Complaint in partition. A failure to properly describe tlie premises in the complaint is not a sufficient ground for a dismissal of the complaint on the trial, and the court may permit it to be then amended.'^ In de- termining whether the property claimed is described with common certainty as required by the statute, the courts will not apply the strict rules of common law special pleading.^ A tract known by a particular name may be described by that name in the com- plaint.' The demand for judgment will be for the recovery of the property or its possession, and if the case requires it, for damages for with- holding the property.* These damages include the rents and profits or the value of the use and occupation of the property where the plaintiff can legally recover either." § 43. Complaint in partition. — When two or more persons hold, and are in possession of real property as joint tenants, or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property accord- ing to the respective rights of the persons interested therein, and for a sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners.'^ So where two or more persons hold as joint tenants or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for a partition of the real property to which it a.ttaches according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such action the property cannot be sold ; and if it appears at any stage thereof that partition cannot be made without great prejudice to the owners, the complaint must be dismissed. But such a dismissal will not affect the right of any party to bring a 1 Olendorf v. Cook, 1 Laus. 37; St. Jolin v. Northrup, 23 Barb. 25; Eussell V. Conn, 20 N. Y. 81. 2 Kemble v. Herndon, 28 W. Va. 524. 3 Hildreth v. White, 66 Cal. 549. * Code of Civil Pro., § 1496. ' Code of Civil Pro., § 1497. 6 Code of Civil Pro., § 1532. The Complaint. 171 Complaint in partition. new action after the determination of the particular estate.^ So a person claiming to be entitled as a joint tenant, or as a tenant in common by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for a partition thereof whether he is in or out of possession, notwithstanding an apj^arent devise thereof to another by the decedent, and possession under such a devise. ' But in such action the plaintiff must allege and establish that the appa- rent devise is void.^ 'No person other than a joint tenant or a tenant in common of the property can be plaintiff in the action.^ There are certain persons or classes of persons who must be made parties to an action for partition. Every person having an undivided share, in possession or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years; every person entitled to the reversion, remainder or inheritance of an undi- vided share, after the determination of a particular estate therein ; every person who by any contingency contained in a devise or grant or otherwise is or may become entitled to a beneficial inter- est in an undivided share thereof ; every person having an inchoate right of dower in an undivided share in the property ; and every person having a right of dower in the property, or any part thereof, wliich has not been admeasured, must be made a party to the action.* There are certain persons who may or not be made parties to the action as the plaintiff may elect. The plaintiff may at his election make a tenant in dower, by the curtesy, for life^ or for years, of the entire property, or a creditor, or other person having a lien or interest, wliich attaches to the entire property, a defend- ant in the action.^ He may also, at his election, make a creditor having a lien on an undivided share or interest in the property a defendant in the action. In tliat case he must set forth the nature of the lien, and specify tlie share or interest to which it attaches.® 1 Code of Civil Pro. , § 1533. " Code of Civil Pro., S 1537; Voessing v. Voessing, 12 Hun, 678. 3 Code of Civil Pro., § 1538; Boyd v. Dovrie, 65 Barb. 287. < Code of Civil Pro., § 1538. ' Code of Civil Pro., ^ 1539. « Code of Civil Pro., § 1540. 172 'i'uK Complaint. Complaint in partition. The essential allegations in a complaint in partition will neces- sarily vary according to the persons made parties, and the nature of their respective rights or interests in the property. The com- plaint must describe the property with common certainty, and must specify the I'ights, shares and interests therein of all the parties so far as the same are known to the plaintiff. If a party, or the share, right or interest of a party, is unknown to the plain- tiff; or if a share, right or interest is uncertain or contingent; or if the ownership of the inheritance depends upon an executory devise ; or if a remainder is a contingent remainder, so that the party cannot be named ; that fact must also be stated in the com- plaint.^ Ordinarily, the plaintiff should allege in his complaint that he is in possession of the premises sought to be partitioned or should aver his ownership in such language that possession would be im- plied therefrom.^ But it is not now necessary for the plaintiff to allege possession where the property is held adversely by a de- fendant under a void devise, whether such defendant is the origi- nal devisee or his grantee.^ It is not necessary to set forth the rights and titles of the sev- eral parties at large, nor to allege the seisin of the ancestor or person from whom the parties derive title. It is sufficient to state in general terms the rights, shares or interests of the several parties.* The complaint may, and to be strictly regular should allege, where, infants are interested, that the parties to the action do not own other lands in common, as required by the sixtj'-fifth rule of the court. But this averment is no part of the statement of the plaintiff's cause of action, and an omission to make this averment is at most a mere irregularity in procedure which cannot be taken advantage of by demurrer.' If any of the parties claim a specific lien for moneys paid to 1 Code of Civil Pro., § 1542. ^ Stewart v. Munroe, 56 How. 193; Jenkins v. Van Schaack, 3 Paige, 243. 3 Malaney v. Cronin, 44 Hun, 270; Hewlett v. Wood, 63 N. Y. 75, 78; Hen- derson V. Henderson, 44 Hun, 420. ■ Bradshaw v. Callaglian, 8 Johns. 558. 5 Pritchard v. Dratt, 32 Hun, 417; Moffatt v. McLaughlin, 13 Hun, 449. The Complaint. 173 Complaint in action for dower. extinguish liens on the premises sought to be partitioned, the complaint may set up such claim and ask that an account may be taken of such advances.' If the plaintiff seeks to compel a de- fendant to account for rents, he should allege the facts entitling him to such relief and specifically demand it in the complaint.^ § 44. Complaint in action for dower. — The essential facts which give a right of action for dower are (1) marriage; (2) seisin of the husband during coverture of an estate of inheritance ; and (3) death of the husband. The complaint in an action for dower must describe the prop- erty in which the dower is claimed with the same common cer- tainty as in an action of ejectment, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner, and must set forth the name of the plaintiff's husband.^ A complaint which alleges that A. B. C. was the husband of the plaintiff at the time of his decease and had been for many years prior thereto ; that he died on a day specified ; that at the time of his decease and for many years prior thereto, he was seized in fee-simple and possessed of the lands and premises de- scribed in the complaint ; that the defendant is in actual possession of the premises and wrongfully withholds from the plaintiff the possession of her dower therein, states a good cause of action.' It is unnecessary to allege 'in a complaint for dower that the plaintiff's husband died intestate. The presumption is in favor of intestacy, and any matter that would bar dower is a matter of de- fense to be interposed by answer.' It is not necessary for the 1 Bogardus v. Parker, 7 How. 305. See Prentice v. Janssen, 7 Hun, 86; 14 Hun, 548; 79 N. Y. 478. » Bullwinker v. Ryker, 13 Abb. Pr. 311. See Code of Civil Pro., § 1589. 3 Code of Civil Pro., § 1606. ■* Draper v. Draper, 11 Hun, 616. The Revised Statutes required the plain- tiff to state that she was possessed of an undivided one-third part of the prem- ises as her reasonable dower, as widow of her husband, naming him; and it was held in the case cited that a complaint in the form stated in the text suiBciently alleged the fact of marriage; that the plaintiff is the widow of the deceased; and was possessed, that is, seized in law, of her dower in the premises. * Draper v. Draper, 11 Hun, 616. m The Complaint. Complaint in action against claimant of dower. plaintiff to allege or prove that lier husband went into actual pos- session of the property out of which the dower is claimed. Where it is alleged that the husband was seized of an estate of inherit- ance in the land, this title will draw after it the right to possession, and where it exists, the owner of the title is in constructive pos- session of the property.' The demand of judgment may be in the alternative form, that a distinct parcel of the property be admeasured and laid off as the plaintiff's dower, or that in case such actual admeasurement should not be practicable, that the property be sold, etc.^ § 45. Complaint in action against claimant of dower. — A person claiming, as owner, an estate in fee, for life, or for years, in real property, may maintain an action against a woman who claims to have a right of dower in the whole or a part of the property, to compel the determination of her claim, unless she is an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense. Bat such an action cannot be commenced until the ex- piration of four months after the death of the defendant's hus- band.' The plaintiff in such action should allege his estate in the prop- erty ; and should describe the land with convenient certainty. If he admits the defendant's right of dower in the premises, he should allege facts showing the existence and extent of the right, and demand judgment that the defendant's dower be admeas- ured.^ "With the exception of the allegation of the plaintiff's estate in the property, the complaint should allege substantially the same facts as would be required to support an action for dower brought by the defendant. A failure to allege that the defendant claims to have a right of dower in the premises will not render the complaint demurrable.' If the plaintiff does not admit that the defendant has a right of 1 Mclntyre v. Costello, 47 Hun, 289. ^ See O'Dougherty v. Kemington Paper Co., 42 Hun, 192. 3 Code of Civil Pro., § 1G47. « Code of Civil Pro., § 1648. ' Linden v. Doetsch, 40 Hun, 239. The Complaint. 1Y5 Complaint in action to compel determination of claim to lands. dower in the property', he should allege his estate therein, describ- ing the land with convenient certainty, and also allege that the defendant unjustly claims to liave a right of dower in the whole or a part of the property, and demand judgment that she be for- ever barred from such claim.^ § 46. Complaint iu action to compel determination of claim to lands. — Where a person has been, or he, and those whose estate he has, have been, for three years in the actual pos- session of real property, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain an action against any other person, except a person who is when the action is com- menced an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, to compel the determination of any claim adverse to that of the plaintiff, which the defendant makes to any estate in that property, in fee, or for life, or for a term of years not less than ten, in possession, reversion or remainder. But this section does not apply to a claim for dower.^ The action may be maintained by or against a corporation as if it was a natural per- son ;' but notwithstanding the general language of section 16S6 of the Code, it cannot be maintained against an infant.^ The complaint in such an action must set forth facts showing: 1. The plaintiff's right to the real property ; whether his estate therein -is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him. 2. That the property at the commencement of the action was, and for the three years next preceding, has been in his actual possession, or in the actual possession of himself and those from whom he derives his title. 1 See Code of Civil Pro., § 1649. * Code of Civil Pro., § 1638. For the right of action to determine a claim for dower and the pleadings therein, see Code of Civil Pro., g§ 1647-1649, ante, p. 173. 3 Code of Civil Pro., § 1650. * Weiler v. Newbach, 47 Hun, 166. 176 The Complaint. Complaint in action to foreclose a mortgage. 3. That the defendant unjustly claims an estate therein, in fee, or for life, or for a term of years not less than ten, in possession, reversion, or remainder. The complaint must describe the property with common cer- tainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropri- ate manner, so that if the action was ejectment and the plaintifE succeeded therein, possession of the property ntiight be delivered from the description alone. The demand of judgment must be to the effect that the defendant and every person claiming under him be forever barred from all claim to any estate of inheritance, or freehold, or for a term of years not less than ten, in possession, reversion, or remainder, in the property described in the com- plaint.^ § 47. Complaint in action to foreclose a mortgage. — The complaint in an action to foreclose a mortgage should allege the execution and delivery of the mortgage, its date, the names of the parties thereto, its terms and conditions, the time when and the place where it was recorded, the default in the payment of the amount secured thereby, or such other breach of the cove- nants contained therein as give the right to enforce it against the property therein described, and the amount due to the plaintiff thereon. It should also describe the mortgaged premises in sub- stantially the language of the mortgage. If the action is not brought by the mortgagee, the complaint should allege such facts as will show a right in the plaintiff to maintain the action. If a bond accompanied the mortgage, the complaint should allege the giving of the bond, its conditions, and default in the performance of those conditions.^ If the mortgage was given to indemnify the plaintiff an allegation that the plaintiff was compelled to pay will be sufficient, without the additional allegation that the defendant has failed to repay the plaintiff.' A judgment of foreclosiire can- 1 Code of Civil Pro. , § 1639. ' Coulter V. Bower, 64 How. 133. See Davies v. New York Concert Co., 41 Han, 493. 3 Cutterlin v. Armstrong, 101 Ind. 258. The Complaint. 177 Complaint in action to foreclose a mortgage. not be rendered for a breach of condition not set forth in the complaint.^ The complaint in an action to foreclose a mortgage on real property must state whether any other action has been brought to recover any part of the mortgage debt, and if so, -whether any part thereof has been collected.^ If proceedings have been taken on the bond it should be alleged that that form of remedy has been exhausted." If junior mortgagees or grantees, or junior judgment creditors are made parties, the complaint should allege generally they have or claim some interest in or lien upon the mortgaged premises, which, if any, is subsequent to the plaintiff's mortgage. The com- plaint need not allege any detail of their titles or the extent and relative priority of their interests.* "Where some of the defend- ants are infants the complaint should allege that fact, that the infants have an interest in the mortgaged premises, and whether it is paramount to or subordinate to the interest mortgaged.^ Where the bond and mortgage were executed bv an executor and trustee, as such, it is not necessary to allege that the mort- gagor was such executor or trustee, or to state the facts showing his appointment.^ The demand for relief should be full and explicit, and in ordi- nary cases, the demand will be for the foreclosure and sale of the mortgaged premises for the payment of the mortgage debt, and that the defendant or defendants who are personall}' liable be adjudged to pay any deficiency arising after the sale ; ^ and that the defendants and all persons claiming from, through or under them subsequent to the commencement of the action be forever barred and foreclosed of all right, title, lien and equity of redemp- 1 Wasliburn v. Wilkinson, 59 Cal. 538. ^ Code of Civil Pro., § 1639; Pattisou v. Powers, 4 Paige, 549. 3 Lovet V. German Reformed Church, 13 Barb. 68; Gregory v. Hartley, 6 Neb. 356. ^Drury v. Clark, 16 How. 424; Hoes v. Beyer. 108 Ind. 494; McCoy v. Boley, 21 Fla. 803; Frost v. Koon, 30 N. Y. 438, 448. ' Aldrich v. Lapham, 6 How. 129. « Kingslandv. Stokes, 35 Hun, 107; 58 How. 1; Skelton v. Scott, 18 Hun, 375. '< See Simonson v. Blake, 30 How. 484; 13 Abb. 331. 23 178 The Complaint. Complaint in action for a nuisance. tioii in and to the mortgaged premises, and every part thereof, and that the plaintifE recover his costs in the action. § 48. Complaint in action for a nuisance. — The Code of Civil Procedure provides that an action for a nuisance may be maintained in any case where such an action might have been maintained under the laws in force immediately before that act took efEect.^ It provides that a person by whom the nuisance has been erected, and the person to whom the real property has been transferred may be joined as defendants in such an action ; ^ and that a final judgment in favor of the plaintiff may award him damages, or direct the removal of the nuisance, or both.^ An action wherein the complaint demands judgment for a sum of money only is not affected by these provisions.'' The old Code in force immediately before the Code of Chnl Procedure took effect, abolished the writ of nuisance* and pro- vided that " injuries heretofore remediable by writ of nuisance are subjects of action, as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both." '' It was held that an action under this provision of the Code, to abate a nuisance and to recover damages for its erection and continuance, was a substitute for the statutory remedy by writ of nuisance, and that the plaintiff must aver in his complaint all that was before requisite to maintain an action of that nature.' In such an action the plaintiff must aver that he was tlie owner of the freehold at the time the acts complained of were commit- ted, and that the defendant was a tenant of the freehold of the land on which the nuisance complained of was erected.^ Mere possession might be sufficient to sxistain an action where the plain- tiff' sought to recover damages only.' 1 Code of Civil Pro., § 1G60. 5 Code of Civil Pro., § 1661. 3 Code of Civil Pro., g 1663. " Code of Civil Pro., ^ 1663. ' Code of Procedure, § 453. * Code of Procedure, g 451. ' Ellswortli V. Putnam, 16 Barb. 565; Hess v. Buffalo, etc., R. R, Co., 39 Barb. 391. ° Ellswortb V. Putnam, 16 Barb. 565; Hutchins v. Smith, 63 Barb. 251. 9 Ellswortli V. Putnam, 16 Barb. 565. The Complaint. 179 Complaiat in action for absolute divorce. The complaint should specifically describe the particular nui- sance complained of.^ If the action is to recover damages, such damages as necessarily result and naturally flow from the injury complained of may be recovered without any special averment.^ § 49. Complaint in action for absolute divorce. — In either of the following cases a husband or a wife may maintain an action against the other party to the marriage, to procure a judgment divorcing the parties and dissolving the marriage by reason of tlie defendant's adultery : 1. Where both parties were residents of the State when the of- fense was committed. 2. When the parties were married within the State. 3. When the plaintiff was a resident of the State when the of- fense was committed, and is a resident thereof when the action is commenced. 4. Where the offense was committed within the State, and the injured party, when the action is commenced, is a resident of the State.' The complaint in an action for absolute divorce must allege the fact of marriage, and such other facts as to the residence of the parties, the place of marriage or the place where the adultery is committed as will bring the case within the stat- ute. The statute does not require the plaintiff to allege that the oifense was committed with any designated person, or at any speci- fied time, or at any particular place or locality in this State, nor indeed that its commission took place at all in this State, except in a single case for the purpose of showing that the cause of ac- tion is within the jurisdiction of the court.* But the fact of the defendant's adultery must in all cases be alleged ; and if the persons with whom the adultery was committed are known, they should be named in the complaint, and the adultery should be charged with reasonable certainty as to time and place ; and if the persons with whom the adultery was committed are unknown, 1 O'Brien v, St. Paul, 18 Minn. 176. ' Jutte V. Hughes, 67 N. T. 267. 3 Code of Civil Pro., § 1756. ^ Mitchell V. Mitchell, 61 N. T. 398. 180 The Complaint. Complaint in action for absolute divorce. that fact should be alleged, and the defendant should be charged with having committed adultery with persons whose names are unknown, stating times and places, if known, or if unknown, at times betweeu certain specified dates, and in certain towns or cities named, with an averment that the plaintifE is unable to state more particularly the times and places. This seems to be the rule deducible from the authorities.^ The complaint should also allege that the adultery charged was committed witliout the consent, connivance, privity or procure- ment of the plaintiff ; that five years have not elapsed since the discovery of the fact that such adultery had been committed ; and that the plaintiff has not voluntarily cohabited with the de- fendant since such discovery ; and also, where, at the time of the offense charged, the defendant was living in adulterous inter- course with the person with whom the offense is alleged to have been committed, that five years have not elapsed since such adul- terous intercourse was discovered by the plaintiff.^ If the action is brought by the husband, and he wishes to question the legiti- macy of any of the children of his wife, he should distinctly al- lege in his complaint that they are, or that he believes them to be, illegitimate.^ The plaintiff cannot unite a cause of action for an absolute di- vorce with a cause of action for a limited divorce,* nor can an amendment be allowed, changing an action for a limited divorce to an action for an absolute divorce.^ But acts of adultery com- 1 Mitchell V. Mitcliell, 61 N. Y. 398; Codd v. Codd, 3 Johns. Ch. 224: Ger- mond V. Germond, 6 Johns. Ch. 347; Wood v. Wood, 3 Paige, 113; Bokel v. Bokel, 3 Edw. Ch. 376; Kane v. Kane, 3 Edw. Ch. 389; Morrell v. Morrell, 1 Barb. 318; Heyde v. Heyde, 4 Sandf 692; Anonymous, 17 Abb. 48; Strong- V. Strong, 8 Rob. 719; Pramagiori v. Pramagiori, 7 Rob. 302; Tim v. Tim, 47 How. 253; Cardwell v. Cardwell, 12 Hun, 92. ^ Rule 73, Sap. Ct.; Myers v. Myers, 41 Barb. 114; Zorkowski v. Zorkowski, 27 How. 37. 3 Rule 76, Sup. Ct. ■* Zorn V. Zorn, 88 Hun, 67; Johnson v. Johnson, 6 Johns. Ch. 163; Smith v. Smith, 4 Paige, 92; Mcintosh v. Mcintosh, 12 How. 289; Henry v. Henry. 17 Abb. 411; 37 How. 5; 3 Rob. 614; McNamara v. McNamara, 9 Abb. 18; Bur- dell V. Burdell, 2 Barb. 473. ' Ohly V. Ohly, 3 Law Bull. 13. The Complaint. 181 Complaint in an action for a separation. mitted by the defendant since the commencement of the action may be pleaded by way of an amendment to the complaint/ or the plaintiff may base a new action on the newly-discovered facts.^ § 50. Complaint in an action for a separation. — The com- plaint in an action for a separation from bed and board should allege that the parties are husband and wife, and either that both the plaintiff and defendant were residents of the State at the time of the commencement of the action ; or, that the parties were married within the State and that the plaintiff was a resident thereof at the time of the commencement of the action ; or, if the parties were not married within the State, that they became resi- dents thereof and have continued to be residents thereof at least one year, and that the plaintiff was a resident of the State when the action was commenced.' The complaint must also allege either the cruel and inhuman treatment of the plaintiff by the defendant ; or, such conduct on the part of the defendant toward the plaintiff as may render it unsafe and improper for the defendant to cohabit with the plain- tiff ; or, the abandonment of the plaintiff by the defendant ; or, where the wife is plaintiff, the neglect or refusal of the defend- ant to provide for her.'' The complaint must specify particularly the nature and circumstances of the defendant's misconduct, and must set forth the time and place of each act complained of with reasonable certainty.^ These specific allegations present the mat- ters upon which issue is to be joined. To be issuable every circum- stance thus alleged must be material in establishing some ground recognized by the statute ; and where the complaint contains a detailed statement of a series of scandalous, indecent and licen- tious acts committed by the defendant with females other than the plaintiff, without any averments of connecting facts tending as a whole to establish a ground for a separation, such statement is im- 1 Fraser v. Fraser, 3 Law Bull . 66. 2 Cordier v. Cordier, 26 How. 187. 3 Code of Civil Pro., § 1763; Ramsden v. Eamsden, 28 Hun, 285; 2 Civ. Pro. R. 416. * Code of Civ. Pro., § 1762. ' Code of Civ. Pro., § 1764. 182 The Complaint. Complaint in creditor's action. proper and may be stricken from the complaint.^ Charges of adultery and of cruel usage are distinct and independent in their character and cannot be joined together in the same action.^ AH the matters of fact tending to establish a ground for a judg- ment for separation which were known to the plaintiff before com- mencing the action should be alleged in the complaint or they will be deemed waived. But matters which have occurred since the commencement of the action which tend to support it may he brought before the court by way of supplemental complaint.' § 51. Complaint in creditor's action. — There are several dis- tinct modes of procedure by means of which the property of a judgment-debtor may be reached and applied to the satisfaction of the judgment against him. The most direct remedy is by way of levy and sale under execution.* But this remedy is not always available. The property of the judgment-debtor may be of such a nature that it cannot be seized under execution, or the property may have been transferred by the debtor and be held by a third person with a view to evading the payment of the debt. The statute therefore provides a remedy by way of a judgment-credi- tor's action to compel the discovery of any thing in action or other property belonging to the judgment-debtor, and of any money, thing in action, or other property due to him or held in trust for him; to prevent the transfer thereof or payment or delivery thereof to him or to any other person ; and out of the same to procure satisfaction of the plaintiff's claim.^ In this action the interest, if any, of the judgment-debtor in a contract for the pur- chase of real estate may be reached and applied to the satisfaction of the judgment.* But there are certain limits to the application and scope of this remedy.^ The object of this statute is to aid a 1 Klein v. Klein, 3 Jones & Sp. 57; 11 Abb. (X. S.) 450; 43 How. 166. ' Zornv. Zoru, 38 Hun, 67; Smitb v. Smith, 4 Paige, 93; Mcintosh v. Mc- intosh, 13 How. 389; Henry v. Henry, 17 Abb. 411; McJTamara v. McNamara, 9 Abb. 118. 3 Cornwall v. Cornwall, 30 Han, 573. •* Code of Civil Pro., § 1340. ' Code of Civil Pro., § 1871. 9 Code of Civil Pro., V 1874. ■> Code of Civil Pro., § 1879. The Complaint. 183 Complaint in creditor's action. judgment-creditor, who has exhausted his remedy at law, in dis- covering the debtor's property, and in reaching choses in action and equitable interests ; and in order to maintain an action under this statute the complaint should show that the plaintiff is a judgment-creditor, that an execution against the property of the judgment-debtor has been issued out of a court of record to the sheriff of the proper county, and that such execution has been i-eturned unsatisfied in whole or in part.^ If at the time of the commencement of the action the judgment-debtor was a resident of the State, the complaint should show that the execution was issued to the sheriff of the county where the debtor resided. If he was not then a resident of the State, the complaint should show that the execution was issued to the sheriff of the county where the debtor has an office for the regular transaction of busi- ness in person ; or, if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court other than the court in which the judgment was rendered, in which case it must appear to have been issued to the sheriff of the county where a tran- script of the judgment is filed.^ The complaint should also al- lege such facts in relation to the debtor's property or interests in property as will show a right to the aid of the court in procuring the application thereof to the satisfaction of his judgment.^ There are cases in which a judgment-creditor may maintain an action to reach the property of the judgment-debtor and apply it in satisfac- tion of his judgment independent of any statute,^ as, for example, the class of cases based upon an allegation that the debtor possesses property, which, in its nature, is subject to seizure and sale upon execution, but that by reason of some fraudulent incumbrance thereof, or fraudulent transfer thereof, the execution cannot be 1 Code of Civil Pro., § 1871; Fox v. Moyer, 54 X. Y. 125, 128; Bowe v. Ar- nold, 31 Hun, 356. ' Code of Civil Pro., § 1873; Beardsley Scythe Co. v. Foster, 36 N. T. 561; 34 How. 97; Parshall v. Tillou, 13 How. 7. 3 See Catlin v. Doughty, 13 How. 457; Mechanics & Traders' Bank v. Dakin, 51 N. Y. 519; Simmons v. Eldridge, 39 How. 309; 19 Abb. 296. ■* See Conro V. Port Henry Iron Co., 13 Barb. 27, 58; Chautauque County Bank v. White, 6 N. Y. 236. 184 The Complaint. Complaint in creditor's action. enforced.' But with one exception, which will be noticed hereafter, the plaintiii in such action must be a judgment-creditor. A creditor at large cannot assail an assignment or other transfer of property by the debtor as fraudulent, against creditors, but must first estab- lish his debt by the judgment of a court of competent jurisdiction, and either acquire a lien upon the specific property or be in a situa- tion to perfect a lieu thereon and subject it to the payment of his judgment upon the removal of the obstacle presented by the fraud- ulent assignment or transfer.^ The rule is well settled that a creditor's bill filed for the purpose of removing a fraudulent ob- struction must show that such removal will enable the judgment to attach upon the property.' To entitle himself to a remedy against the real estate of his debtor the plaintiff m.ust show in his complaint that there is such particular real estate ; that the judgment would have been a lien thereon if the fraudulent ob- struction had not been interposed ; that by reason of such inter- position his execution cannot reach it, and therefore his remedy at law is not sufficient.* ISTot only must there be a judgment, but the creditor must have exhausted all the remedies known to the law to obtain satisfaction of it before resorting to equity. If he seeks ehoses in action or equitable assets he must show an execution issued on the judgment and returned unsatisfied.' If he seeks real or personal estate which would be liable to execution, but for fraudulent obstructions placed in the way by the debtor, he maist show an execution issued^ and outstand- 1 See Mectanics & Traders' Bank v. Dakin, 51 N. Y. 519. ' Southard v. Benner, 73 N. Y. 424; Sullivan v. " Miller, 106 X. Y. 635; Reynolds v. Ellis, 103 N. Y. 115, 123; Geery v. Geery, 63 N. Y. 252; Adee v. Bigler, 81 N. Y. 349; Burnett v. Gould, 37 Hun, 866. 3 Spring V. Short, 90 N. Y. 538; Lichteuberg v. Herdtfelder, 103 N. Y. 303. - Wilson V. Forsyth, 24 Barb. 105. ' Geery v. Geery, 63 N". Y. 353; Dunlevy v. Tallmadge, 33 N. Y. 457; Shaw V. Dwight, 37 N. Y. 244, 249; Genesee River Nat. Bank v. Mead, 18 Hun, 303; Gardner v. Lansing, 28 Hun, 413. ' Easton Nat. Bank v. Buffalo Chemical AVorks, 48 Hun, 557; Geery v. Geery, 63 N. Y. 252; Lichtenberg v. Herdtfelder, 33 Hun, 57; Bowe v. Arnold, 31 Hun, 256; Bostwick v. Scott, 40 Hun, 212; Fox v. Moyer, 54 N. Y. 125, 129. There are cases holding or intimating that a complaint in ,an action to reach real property fraudulently conveyed need not allege the issuing of an execu- tion on the judgment where it is alleged that the debtor has no other property The Complaint. 185 Complaint ia creditor's action. ing, or returned unsatisfied.^ The rule is the same where the ac- tion is brought to enforce a resulting trust in lands purchased and paid for by the debtor, and by his direction conveyed to another person.' In this class of actions the complaint should allege the re- covery of a judgment, the issuing of an execution thereon, and ^ either that it is still outstanding or has been returned unsatisfied as the case demands. ISTo allegation of insolvency of the judgment- debtor will take the place of these averments or excuse their omis- sion.* The fact of the issuing and return of the execution unsatis- fied must be directly averred. An allegation that an execution was issued, that a specified sum was made thereon, and that the balance of the judgment remains unpaid is not an allegation that the execution has been returned unsatisfied in whole or in part.' There should also be a direct averment that the transfer or other disposition of the debtor's property was made with intent to hin- der, delay and defraud creditors, and is therefore void, if such is the fact relied on.*" A fraud not charged in the complaint cannot be made the subject of proof on the trial.^ But it is not neces- sary to point out in the complaint the particular features or clauses in an assignment which are relied on to establish its invalidity.' out of which the judgment can be satisfied. See Payne v. Sheldon, 63 Barb. 169, 174, 175, and the cases there cited. 1 Adsit V. Butler, 87 N. Y. 585; McElwain v. Willis, 9 ^yend. 548, 561i Mechanics', etc., Bank v. Dakin, 51 N. Y. 519, 522. Where there has been an actual levy on property, an action in aid of the execution, to remove fraudulent claims upon that property, may be maintained without a return of the execution. Beardsley Scythe Co. v. Foster, 36 N. Y. 561, 565. » Haswell v. Lincks, 87 N. Y. 687; Royer Wheel Co. v. Fielding, 31 Hun, 274; Shaw v. Dwight, 27 N. Y. 244, 249; Baston Nat. Bank v. Buffalo Chemi- cal Works, 48 Hun, 557. 3 Estes v. Wilcox, 67 N. Y. 264; Allyn v. Thurston, 58 N. Y. 622; Ocean Nat. Bank v. Olcott, 46 N. Y. 13. * Adee v. Bigler, 81 N. Y. 349; Estes v. Wilcox, 67 N. Y. 264; McElwain v. Willis, 9 Wend. 548; Beardsley Scythe Co. v. Foster, 3b N. Y. 561; 34 How. 87; Crippen v. Hudson, 13 N. Y. 161. ' Beardsley Scythe Co. v. Foster, 36 N. Y. 561; 34 How. 97. « Beardsley Scythe Co. v. Foster, 36 N. Y. 561; 34 How. 97. ' Rome Exchange Bank v. Eames, 1 Keyes, 588; Bailey v. Ryder, 10 N. Y. 363; Doyle V. Mulren, 1 Sweeny, 517; 7 Abb. (N. S.) 268. « Jessup V. Hulse, 29 Barb. 539; Hastings v. Thurston, 18 How. 530; 10 Abb. 418; Hammond v. Hudson River, etc., Co., 20 Barb. 378. 24: 186 The Complaint. Complaint in action against a stockholder. There are certain classes of actions which may be brought by creditors, or those representing them, to set aside fraudulent con- veyances made by the debtor, in which it is not necessary to allege or prove the recovery of a judgment against the debtor, or the issuing or return of any execution against his property. It is provided by statute " that any executor, administrator, receiver, assignee, or other trustee of an estate, or the property and effects of an insolvent estate, corporation, association, partnership or individual, may for the benefit of creditors or others interested in the estate or property so held in trust, disafBrm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor, including themselves and others, interested in any estate or property held by or of right belonging to any such trustee or estate. And any creditor of a deceased insolvent debtor, having a claim or demand against the estate of such deceased debtor exceeding in amount the sum of one hun- dred dollars, may, in like manner, for the benefit of himself and other creditors interested in the estate or property of such de- ceased debtor, disafBrm, treat as void, and resist all acts done, and conveyances, transfers and agreements made, in fraud of the right of any creditor or creditors, by such deceased debtor, and for that purpose may maintain any necessary action to set aside such acts, conveyances, transfers or agreements; and for the pur- pose of maintaining such action, it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may be proved and estab- lished upon the trial of such action."^ This statute has materially extended the remedy of a general creditor of a deceased insolvent debtor, and has in part overruled many prior decisions.^ § 52. Complaint in action against a stockholder. — The statutes of this State in some cases impose upon the stockholders in a corporation, an immediate and direct liability for debts of the corporation, which may be enforced by the creditor directly against the stockholder, without his having first proceeded against 1 Laws of 1858, ch. 314, as amended by cli. 487, Laws of 1889. « See Burnett v. Gould, 27 Hun, 366; Estes v. Wilcox, 67 N. Y. 364; AUyn V. Thurston, 53 N. Y. 632; Adsit v. Butler, 87 N. Y. 885. The Complaint. 187 Complaint in action against a stockholder. the corporation, and in other cases they require the creditor to resort to the corporate assets for the satisfaction of his claim be- fore proceeding against the individual property of the stock- holder. In each case the question whether the liability of the stockholder for the corporate debt is absolute or conditional, im- mediate or secondary, is purely one of statutory construction.' Under the "General Manufacturing Act'"^ the recovery of a judgment against the company, and the issuing and return of an execution tliereon unsatisfied, are conditions precedent to the commencement and maintenance of an action against a stock- holder upon his statutory liability.' Under the "Business (Jor- porations Act"'' tlie recovery of a judgment against the company is not a condition precedent to an action against a stockholder for a debt of the company.'' The complaint in an action brought by a creditor of a corpora- tion organized under the General Manufacturing Act against a stockholder to enforce the liabihty to creditors imposed by section 10 of that act must allege the incorporation of the company under the act, and must state facts showing an original liability or debt owing by the corporation to the plaintiff ;'' that such debt was payable within a year from the time it was contracted ;' that suit was brought against the corporation in a court of this State* within a year after the debt became due;' that judgment was recovered in that action by the plaintiff, and that an execution was issued thereon and was returned unsatisfied in whole or in part ; ^^ that at ' Walton V. Coe, 47 Hun, 160; 110 N. Y. 109. ' Chapter 40, Laws of 1848. 3 Handy v. Draper, 89 N. Y. 334; Walton v. Coe, 110 N. Y. 109. * Chapter 611, Laws of 1875. ' Walton V. Coe, 47 Hun, 160; 110 N. Y. 109. ' It may not be necessary to allege the consideration and circumstances of the original indebtedness as stated in Peckham v. Smith, 9 How. 436; but it is certainly safer to do so since the case of Miller v. White, 50 N. Y. 137, revers- ing s. c, 57 Barb. 504; 10 Abb. (N. S.) 385. See also Stephens v. Fox, 83 X. Y. 313, 317. ' Handy v. Draper, 89 N". Y. 384; Dean v. Mace, 19 Hun, 391. - Dean v. Mace, 19 Hun, 391 ; Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338. 9 Handy v. Draper, 89 N. Y. 334. "> Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338; Lindsley v. Simonds, 3 Abb. (N. S.) 69; Richards v. Coe, 19 Abb. N. C. 79; Richards v. Beach, 19 Abb. N. C. 84. 188 The Complaint, Complaint in action against a stookliolder. the time said debt was contracted ' the defendant was a stock- holder in such corporation and held an amount of stock equal to the amount of the debtsodae the plaintifE,^ or that the defendant was such stockholder and that two years have not elapsed since he ceased to be a stockholder therein ; ' that the whole amount of the capital stock fixed and limited by such company has not been paid in and a certificate thereof has not been made and recorded as required by law.'* The complaint in an action by a creditor of a company organ- ized under the "Business Corporations Act"' to recover the amount of his debt from a stockholder, under section 37 of that act, on the ground that the capital stock had not been paid in, should allege the commencement of an action against the corpo- ration but need not allege the recovery of a judgment therein, or the issuing or return of an execution.' Even where the recovery of a judgment against the corporation is alleged, the original de- mand should be pleaded, as the judgment against the corporation is not binding on the stockholders, or even admissible as evidence of a debt.' The rule is otherwise where an action is brought against a stockholder of a railroad corporation by a creditor thereof under the " General Railroad Act,"* to recover an amount alleged to be unpaid upon his stock. ^ Where the property of a corporation has been divided among its stockholders, a judgment-creditor, after return of an execution against the corporation unsatisfied, may maintain an action in the nature of a creditor's bill against a stockholder to reach whatever was so received by him.^" The complaint in such action will be the same in substance as in an ordinary creditor's action." ' See Phillips v. Therasson, 11 Hun, 141. » See Chambers v. Lewis, 28 N. Y. 454, 458. 2 Handy v. Draper, 89 N. Y. 334. " Laws of 1848, ch. 40, § 10. ' Chapter 611, Laws of 1875. « Walton V. Coe, 47 Hun, 160; 110 N. Y. 109. • Lawyer v. Rosebrook, 48 Hun, 453; Miller v. White, 50 N. Y. 137; Kin- caid V. Dwinelle, 59 N. Y. 548, 551. " Laws of 1850, chapter 140, § 10, as amended by chapter 282, Laws of 1854. « Stephens v. Fox, 83 N. Y. 313. See Hastings v. Drew, 76 N. Y. 9. "> Hastings v. Drew, 76 N. Y. 9. " See ante, p. 183. The Complaint. 189 Complaint in action by creditor against trustees of corporations. § 53. Complaint in action Iby ci'editor against trustees of corporations. — The General Manufacturing Act requires that every company organized under it shall make, publish and file an annual report stating the amount of capital, and the proportion actually paid in, and the amount of its existing debts ; and pro- vides that if the company shall fail to do so, all of the trustees of the company shall be jointly and severally liable for all of the debts then existing and for all that shall be contracted before such report shall be made.'- This statute being highly penal in its nature wiU not be enlai'ged by construction or implication, and the courts will not impose the penalty except in cases where the plain language of the act requires it.^ A complaint in an action by a creditor of the corporation to recover the amount of his debt from the trustees of the corporation, on the ground that no report has been filed as required by the statute, should allege every fact necessary to bring the case within the statute. It should, there- fore, appear from the complaint that the defendants are trustees of a corporation organized under the General Manufacturing Act ; that there has been a failure on the part of the company to make, publish and file its annual report ; and that the plaintiff is a creditor of the corporation. It should also appear that the debt for which the plaintifl: seeks to recover was contracted while the defendants were trustees.^ It should also appear that the debt was existing at the time the default was made, or that it was con- tracted afterward, and before the report was published.* Al- though the plaintiff's demand has been merged in a judgment against the corporation, he must still set forth the original cause 1 Laws of 1848, ch. 40, § 13, as amended by ch. 510, Laws of 1875. ' Whitaker v. llasterton, 106 N. Y. 277; Whitney Arms Co. v. Barlow, 63 N. Y. 63; Bounell v. Griswold, 80 N. Y. 138, 135; Bruce v. Piatt, 80 N. Y. 379; Garrison v. Howe, 17 N. Y. 458. 466; Miller v. White, 50 N, Y. 137; Wallace V. Walsh, 53 Hun, 338; Chase v. Curtis, 113 U. S. 453. 3 See Shaler & Hall Quarry Co. v. Bliss, 37 N. Y. 397; Boughton v. Otis, 31 N. Y. 361; McHarg v. Eastman, 35 How. 305; 7 Rob. 137. * Chambers v. Lewis, 28 N. Y. 454; Chandler v. Hoag, 3 Hun, 613; Mc- Harg V. Eastman, 7 Rob. 137; Nimmons v. Tappan, 3 Sweeny, 653; Whitney Arms Co. v. Barlow, 68 X. Y. 84; Duckworth v. Roach, 81 N. Y. 49. There is a distinction between debts and Uahilities. Oviatt v. Hughes, 41 Barb. 541 ; Nimmons v. Hannion, 2 Sweeny, 663. 190 The Complaint. Complaint in action of interpleader. of action against the conipany in his complaint against the trus- tee.' A judgment against the corporation, unless it be for costs of an action brought by the corporation,^ is, as against the trustees, not even j)rima facie evidence of the existence of a debt due from the corporation, for the payment of which they can be charged.^ If the plaintiff's claim is for services, a failure to allege that they were rendered at the request of the corporation will be fatal.* In short, the complaint should set forth a good cause of action against the corporation on contract, and the additional facts in relation to the trusteeship, and the default in making the report above mentioned. If the complaint sets forth a copy of the re- port as filed and published, and alleges that it does not comply with the statute, it need not set forth the particular defects claimed.' § 54. Complaint in action of interpleader. — To maintain an action of interpleader, it must appear, from the facts stated in the complaint : 1. That two or more persons have preferred a claim against the plaintiff. 2. That they claim the same thing, whether it be a debt or duty. 3. That the plaintiff has no bene- ficial interest in the thing claimed. 4. That the plaintiff cannot de- termine, without hazard to himself, to which of the defendants the thing, of right, belongs. There must also be an offer to bring the money or thing in dispute into court.'' The action can be main- tained only where the plaintiff admits liability for the full amount claimed, to one or the other of the claimants. There can be no controversy as to the amount due from the plaintiff.^ The demand for judgment should be that the defendants inter- plead, so that the court may adjudge to whom the money or prop- 1 Miller V. White, 50 N. Y. 137; McHarg v. Eastman, 7 Rob. 137. ' Allen V. Clark, 108 N. Y. 269; Andrews v. Murray, 9 Abb. 8. 3 Miller v. White, 50 N. Y. 137; Chase v. Curtis, 113 U. S. 452; Esmond v. BuUard, 16 Hun, 65; 79 N. Y. 404 ; Kraft v. Coykendall, 34 N. Y. 285. " Torey v. Culver, 22 Jones & Sp. 404. ' Glens Falls Paper Co. v. White, 18 Hun, 314. « Dorn V. Fox, 61 N. Y. 264; Baltimore & Ohio R; R. Co. v. Arthur, 90 N. Y. 234; Nassau Bank v. Yandes, 44 Hun, 55; Atkinson v. Manks, 1 Cow. 691; New York & N. H. R. R. Co. v. Schuyler, 1 Abb. 417; Killiam v. Ebbinghaus, 110 U. S. 568. ■> Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234. The Complaint. 191 Complaint by judgment-creditor, etc. — Complaint for services, etc. erty belongs,* that the plaintifE may pay the money into court to be disposed of as the court may direct ; that the defendants and each of them be restrained from pi-oceeding against the plaintiff, upon or by reason of their demands ; and that the plaintiff liave his costs out of the fund in dispute. § 56. Complaint by judgment-creditor against defendants not summoned. — Where a judgment has been rendered against all the defendants for a sum of money only, in an action founded upon an alleged joint indebtedness on contract, and a part only of the defendants were served with the summons in the action,^ the judgment-creditor may maintain an action against one or more of the defendants who were not summoned in the original action, to charge his or their property with the sum remaining unpaid upon the original judgment.^ Such an action is not an action to enforce the plaintiff's rights under the original judgment, or to obtain the fruits of it. Its sole object is to establish the liability of the defendants not served upon the original contract, which was not determined by the original judgment. In such ac- tion the plaintiff cannot rest on the judgment, but must establish the liability of the defendant by evidence aliunde.^ The com- plaint in such action must be verified.'' It should allege the original indebtedness; the commencement of an action thereon, and the fact as to the service of the summons upon some of the parties, and the failure to serve it upon the others ; the recovery of a judgment against all the defendants j'^ that the judgment has not been paid ; and that, at the time of verification, there remains unpaid thereon a specified sum.^ § 56. Complaint in action for services, etc. — A party who has fuUy performed a special contract for work and materials may set forth tlie contract and its performance or may declare gen- 1 Dorn V. Fox, 61 N. Y. 264. 5 Code of Civil Pro., | 1932. s Code of Civil Pro., §1937. " Morey v. Tracey, 92 N. T. 581. ' Code of Civil Pro., § 1938. « See Lane v. Salter, 51 N. Y. 1. 'Code of Civil Pro., § 1938. 192 The Complaint. Complaint in action npon a policy of insurance. erally for the value of the work, and on the trial may refer to the contract to determine the value.'' But where work has been done under a special contract, not completed or executed as to its terms, the plaintiff must state the contract or refer to it in his complaint.^ If the plaintiff seeks to recover on a written contract containing special provisions, the performance of which he is bound to prove as conditions precedent, he should state the contract or its sub- stance in the complaint and allege compliance with its conditions,^ or excuse for non-compliance.* The complaint should be sufSciently definite and certain to enable the defendant to ascertain from it the nature and character of the claim and the period within which it is alleged to have § 57. Complaint in action upon a policy of insurance.— A complaint in an action on a policy of lire insurance should either set out the insurer's contract or state its substance, and should allege that the property insured was injured or destroyed by fire,^ and that the plaintiff has complied with each condition of the policy which is a condition precedent to his right to maintain the action. But this does not require the plaintiff to allege the non- performance on his part of acts which the policy declares shall render it void.^ The general rule of pleading that performance of conditions precedent must be alleged,^ but that it is not neces- sary to anticipate and negative a defense in pleading,' applies to 1 Farron v. Slaerwood, 17 N. Y. 237; Fells v. Vestvali, 3 Keves, 152; Higgins T. Newtown & Flushing E. R. Co., 66 N. Y. 604; Hosley v. Black, 28 X. Y. 438; Hurst v. Litchfield, 39 N. Y. 377; Ludlow v. Dole, 63 X. Y. 617; Lewis V. Albemarle, etc., R. R. Co., 95 N. C. 179. ' Atkinson v. Collins, 30 Barb. 430; 9 Abb. 353; 18 How. 235. 2 Adams v. Mayor, 4 Duer, 295. As to the necessity of alleging performance of conditions precedent, see ante, p. 136. As to the mode of alleging perform- ance, see ante, p. 138. See Smith v. Brown, 17 Barb. 431. ^ Schencke v. Rowell, 7 Daly, 286; 3 Abb. N. C. 43. - Farcy v. Lee, 10 Abb. 143; Chesbrough v. New York & Erie R. E. Co., 13 How. 557; 26 Barb. 9. ' Rodi V. Rutgers Ins. Co., 6 Bosw. 23. ■■ Williams v. Merchants & Traders' Fire Ins. Co., 54 N. Y. 577. » A)Ltc, p. 136. ' Ante, p. 28. The Complaint. 193 Complaint in action upon a policy of insurance. complaints in this class of actions. Unless the action is brought by a party to whom the rights of the insured have been assigned after loss, the complaint should allege that the plaintiff had an insurable interest in the property at the time of the insurance and at the time of loss/ though it seems that an allegation of an insur- able interest at the time of the contract raises a presumption of the continuance of that interest at the time of the loss.^ If the action is brought by an assignee of the policy the assignment should be alleged, and if it was executed before the loss occurred, the in- terest of the assignee must be stated as well as the fire and other facts necessary to make out a cause of action.' It is perhaps true that in an action on a policy of marine insur- ance an averment of an insurable interest is not essential,'' but it is safer to allege the fact than to omit it, as the existence of such an interest in the plaintiff seems to have been considered a matter worthy of investigation in a comparatively recent case.^ In an action on a policy of life insurance the complaint should state the contract, the death of the assured, and the failure to pay as provided. It need not allege that the death of the insured was not caused by the breaking of any of the conditions of the policy.^ 1 Freeman v. Fulton Fire Ins. Co., 38 Barb. 347; 14 Abb. 389; Fowler v. New York Indemnity Ins. Co., 26 N. T. 422; Peabody v. Washington County Mut. Ins. Co., 20 Barb. 340. But see Frink v. Hampden Ins. Co., 81 How. 80; 45 Barb. 384; 1 Abb. (N. S.) 343. ' Roussel V. St. Nicholas Ins. Co., 9 Jones & Sp. 279. As to what constitutes an insurable interest, see Sturm v. Atlantic Mut. Ins. Co., 63 N. T. 77; Lucena T. Ciaufurd, 2 Bos. & Pul. N. E. 269; De Forest v. Fulton Fire Ins. Co., 1 Hall, 84; Waring v. Indemnity Fire Ins. Co., 45 N. Y. 600; Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47; Harvey v. Cherry, 76 N. Y. 436; Redfield v. Hol- land Purchase Ins. Co., 56 N. Y. 354; Cone v. Niagara Fire Ins, Co., 60 N. Y. 619; Foster v. Van Reed, 70 N. Y. 19; Bickwell v. Lancaster, etc.. Fire Ins. Co., 58 N. Y. 677; Wood v. North Western Ins. Co., 46 N. Y. 421; 4 Wait's Act. & Def. 22; 8 Wait's Act. & Def. 327. 3 Granger v. Howard Ins. Co., 5 Wend. 202; Fowler v. New York Indem- nity Ins. Co., 36 N. Y. 423. * Granger v. Howard Ins. Co., 5 Wend. 302; Fowler v. New York Indemnity Ins. Co., 36 N. Y. 432; Freeman v. Fulton Fire Ins. Co., 88 Barb. 347; 14 Abb. 889. = Sturm V. Atlantic Mut. Ins. Co., 63 N. Y. 77. 8 Murray v. New York Life Ins. Co., 85 N. Y. 386; 9 Abb. N. C. 309. See Van Valkenburgh v. American Popular Life Ins. Co., 70 N. Y. 605. 25 19i The Complaint. Complaint against tlie maker of a note. § 58. Complaint against the maker of a note. — In an action against the maker of a promissory note, tlie plaintiff may set forth in his complaint a copy of the note and state that there is due to him thereon from the defendant a specified sum which lie claims, and this will be equivalent to setting forth the note according to its legal effect.' Where this form of pleading is adopted, it is not necessary to allege the execution and delivery of the note,^ or that the note remains unpaid,^ though it is customary to insert both of these allegations in the complaint. It is not even necessary to follow with technical precision the exact language of the statute, if equivalent words are used which could not mislead the defendant.* A plaintiff suing on a promissory note is not compelled to avail himself of the form of plea4ing authorized by section 534 of the Code, but may, if he prefers, set forth the note according to its legal effect.^ It is never necessary for a party who sues upon a negotiable promissory note to allege the consideration, or that it was given for value,*^ as a negotiable note always imports a consideration.' If the action is brought by a person not a party to the note, the complaint must allege that the plaintiff has acquired title to the note or other facts from which his ownership can be legally in- ferred ' and as the claim of title is an issuable fact, it must be set forth in such form that it can be met with a denial.* It is not necessary that the plaintiff should allege the facts establishmg his title if he alleges that he is the holder and owner as that allega- tion implies ownership by some legal manner of acquiring title.' 1 Code of Civil Pro. , § 534. ' Marsliall v Rockwood, 12 How. 452. 3 Keteltas v. Myers, 19 N. Y. 231. Contra, Friddle v. Crane, 68 Ind. 583; Stafiordv. Davidson, 47 Ind. 819. * Smith V. Fellows, 26 Hun, 384; Keteltas v. Myers, 19 N, T. 231, 283. ^ Mayor, etc., of N. T. v. Doody, 4 Abb. 127. « Underbill v. PWllips, 10 Hun, 591; Smitb v. Pfister, 39 Hun, 147, 149; Pinney v. King, 21 Minn. 514. ■> Sawyer v. McLoutb, 46 Barb. 350; Powers v. French, 1 Hun, 582. 8 Gurnee v. Beach, 40 Hun, 108; Huntington Bank v. Hysell, 23 W. Va. 142. 8 Prindle v. Caruthers, 15 N. Y. 425; Mechanics' Bank v. Straiten, 3 Keyes, 365; 36 How. 190; 5 Abb. (N. S.) 11; New York, etc., Iron Works v. Smith, 4 Duer, 362. The Complaint. 195 Complaint against indorser of a promissory note. An allegation that a note was made to the plaintiff is a snfficient averment of ownership without averring a delivery ,i and in an action by an indorsee an allegation of indorsement, assignment and delivery to the plaintiff is sufficient without a jjositive allega- tion of ownership.^ So an allegation that the note was sold and assigned to the plaintiff is sufficient in an action against the maker.' It is not necessary for the indorsee to set out a copy of the in- dorsement,* nor to allege that it was for value.'' It is held in Ohio that where a petition is in the form prescribed in section 122 of the Ohio Code, extrinsic facts showing the plain- tiff's right or title to the note need not be alleged, as such right is implied in his allegation that there is due to him a specific amount on the note which he claims.* The same doctrine should apply to complaint under section 534 of the Code of Civil Procedure of this State. Although a promissory note may be payable at a particular place, it is not necessary that the complaint in an action against the maker should allege that it was presented for payment at the time or place specified. ' A complaint on a promissory note which fails to allege any payee, is bad on demurrer.^ § 59. Complaint against indorser of a promissory note. — Where an action is brought against the indorser of a negotiable promissory note, the essential facts to be alleged in the complaint are the making of the note, the indorsement of the note by the 1 Eeteltas v. Myers, 19 N. Y. 231 ; Chappell v. Bissell, 10 How. 274; Wochoska V. Wochoska, 45 Wis. 433. Where execution is averred no special allegation of delivery is necessary. Keesling v. Watson, 91 Ind. 578. ' Pryce v. Jordan, 69 Cal. 569. 3 Thomson v. Madison Building & Aid Association, 103 Ind. 379. ^Fordycev. Nelson, 91Ind. 447; Eichelberger v. Old Nat. Bank, 108 Ind. 401. ' Clayton v. Jones, 68 N. C. 497. « Sargent v. Steubenville, etc., R. R. Co. , 82 Ohio St. 449. ' Merchants', etc., Bank v. Evans, 9 W. Va. 398; Hall v. Allen, 37 Ind. 541; Wolcott V. Van Santvord, 17 Johns. 248; Fairchild v. Ogdensburgh, etc., R. R. Co., 15 N. Y. 837, 339; Salt Springs Nat. Bank v. Burton, 58 N. Y. 480; Locklin v. Moore, 57 N. Y. 360; Hills v. Place, 48 N. Y. 520. 8 Timmons v. Wiggins, 78 Ind. 297. 196 The Complaint. Complaint against indorser of a promissory note. defendant, the due presentation of the note at the time and place of payment, a demand of payment and refusal, protest for non- payment, service of notice of presentment or demand, non-pay- ment and protest on the defendant,^ or facts excusing the omis- sion of presentment, demand, protest or notice, and if the plaintiff is not the payee of the note, title or ownership in him, or facts from which such title or ownership will be inferred.' Facts ex- cusing want of notice of protest cannot be shown under an alle- gation of notice.^ A party suing an indorser alone gains nothing by setting out a copy of the note as provided in section 534 of the Code of Civil Procedure unless he also sets out a copy of the indorsement ; and where this is done, if the plaintiff is the payee of the note he must also allege special circumstances to charge the defendant as first indorser to rebut the presumption that his relation to the paper was that of second indorser.^ This may be shown by an allegation that the defendant at the 1 Cook v. Warren, 88 N. T. 37; Conkling v. Gandall, 1 Keyes, 228; Pah- quioque Bank v. Martin, 11 Abb. 281; Alder v. Bloomingdale, 1 Duer, 601; Spellman v. Weider, 5 How. 5; Price v. McClave, 6 Duer, 544; Spencer v. Rogers' Locomotive Works, 17 Abb. 110. It has been keld that an allegation that a note was "duly" presented for payment to the makers thereof, is a suiHcient allegation of presentment to charge the indorser, although the note is made payable at a particular place (Ferner v. Williams, 37 Barb. 9; 14 Abb. 215); and that an allegation that a note was " duly presented for payment and payment demanded and refused " is sufficient to charge an indorser, although it does not iu terms allege that the presentment was to the maker nor at the place where it was made payable. Chemical Nat. Bank v. Carpentier, 9 Abb. N. C. 801. And see Gay v. Paine, 5 How. 107; Adams v. Sherrill, 14 How. 297; Code of Civil Pro., § 533. This doctrine has been disputed in other cases. Graham v. Machado, 6 Duer, 514; Pahquioque Bank v. Martin, 11 Abb. 291. An allegation that a note was ' ' duly protested for non-payment " is not a suf- ficient allegation of notice to an indorser. Cook v. Warren, 88 N. T. 37. A statement of the facts necessary to charge an indorser is always safer than a reliance upon any statutory substitute. = Gurnee v. Beach, 40 Hun, 108." 3 Clift V. Rodger, 25 Hun, 39. Where a waiver of presentment and notice is expressed in the note itself, it need not be alleged or proved. Burroughs v. Wilson, 59 Ind. 536; Henderson v. Acklemire, 59 Ind. 540. " Woodruff V. Leonard, 1 Hun, 632. See Bacon v. Burnham, 37 N. T. 614; Phelps V. Vischer, 50 N. T. 69; Clothier v. Adriance, 51 N. Y. 323. The Complaint. 197 Complaint on a bill of exchange or check. time of the execution of the note indorsed the same for the pur- pose of giving the maker credit with the payee.' A complaint against an indorser need not allege indorsements subsequent to that of the defendant where the plaintiff does not sue upon any title derived through such subsequent indorsements.^ It is not necessary that the complaint should allege that the successive indorsements were to the plaintiff, but it is sufficient if it contains an allegation that the plaintiff is now the holder and owner of the note.' Where the payee of a non-negotiable note seeks to charge one who indorsed it before delivery to him, he must aver that the de- fendant indorsed tJie note with intent to become liable thereon either as maker or guarantor,' as the writing of the name of the defendant across the back of such a note is not legally an indorsement.^ § 60. Complaint on a Mil of exchange or check. — For the purpose of an action against an acceptor, a bill of exchange is an instrument for the payment of money only and may be pleaded as such.' In an action against an acceptor of a biH it is not nec- essary to allege that the acceptance was in writing, as there can be no valid acceptance unless it is in writing, and a general alle- gation that the defendant accepted the bill is sufficient.* Although a bill of exchange or a promissory note is made paya- ble at a particular time and place, it is not necessary for the plaintiff in an action against the maker of the note or the acceptor of the bill to allege or prove a demand of payment at the time or place appointed,' though such allegation and proof is necessary to 1 Lynch v. Levy, 11 Hun, 145. See Meyer v. Hibsher, 47 X. Y. 265. ' Bank of America v. Senior, 11 R. I. 376. 3 Reeve v. Fraker, 33 Wis. 248. • Conoley v. Costello, 15 Hua, 303. See Richards v. Warring, 1 Keyes, 576; Cromwell v. Hewitt, 43 N. T. 491; McMullen v. EafEerty, 89 N. Y. 456. ' Andrews v. Astor Bank, 2 Duer, 629. • Bank of Lowville v. Edwards, 11 How. 316. • Fairchild v. Ogdensburgh, etc., R. R. Co., 15 N. T. 337; Wolcott v. Van Santvoord, 17 Johns. 348; Foden v. Sharp, 4 Johns. 183; Cox v. Nat. Bank, 100 U. S. 704; Wallace v. McConnell, 13 Peters, 136, 150; Hill v. Place, 7 Rob. 389; 5 Abb. (N. S.) 18; 36 How. 36, 39; 48 N. T. 530; Locklin v. Moore, 57 N. T. 360; Read v. City of Buffalo, 67 Barb. 526. 198 The Complaint. Complaint on a bill of exchange or clieck. charge an indorser of the note or the drawer or indorser of the bill.' A plaintiff in an action against the acceptor of a bill of ex- change may allege instead of actual acceptance an unconditional promise in writing to accept the bill before it was drawn, and his refusal to perform it, and under the provision of the Eevised Statutes that such a promise shall be deemed an actual acceptance in favor of a party purchasing on the faith of such au engage- ment^ may recover as on an actual acceptance.' In an action against the drawer and acceptor of a draft, a complaint alleging the receiving and acceptance of the draft, a demand of payment at maturity, and non-payment, that the draft was "duly protested at maturity," that the plaintiff is the holder and owner thereof, and that the defendants are justly indebted to him thereon, has been held, on demurrer, sufficient to admit evi- dence of demand, neglect or refusal to pay, and notice of non- payment,* though such a complaint cannot be I'egarded as a good precedent, and under other decisions would fail to charge the drawer of the bill.^ In a complaint against the drawer of a bank check there mnst be either an averment of demand of payment and notice to the drawer of non-payment, or of such facts as excuse a want of de- mand and notice, such as want of funds at the bank. If the plaintiff intends to rely upon want of funds as excusing a want of demand or notice he should expressly allege the want of funds in his complaint, as an averment of notice cannot be supported by evidence of facts excusing notice.* An allegation in a complaint that a draft was accepted by a '■ Ferner v. Williams. 37 Barb. 9; 14 Abb. 315; Cos v. Nat. Bank, 100 XT. S. 704. See ante, p. 196, as to tlie mode of alleging tbe fact. 2 1 R. S. 768, § 10. - Barney v. Worthington, 37 N. Y. 113 ; Merchants' Bank v. Griswold, 73 N. Y. 473. * Woodbury v. Sackrider, 2 Abb. 403. This decision has been overruled on this point by the Court of Appeals. Cook v. Warren, 88 N. Y. 37, 40. ' See Price v. McClave, 3 .Vbb. 353; 5 Duer, 670; 6 Duer, 544; Pahquioque Bank v. Martin, 11 Abb. 391. 8 Shultz V. Depuy, 3 Abb. 353; Garvey v. Fowler, 4 Sandf. 668 ; Judd v. Smith, 3 Hun, 190. The Complaint. 199 Complaint against a guarantor - - The demand of judgment. corporation by its treasurer, sufficiently avers authority to the treasurer to accept the draft, as the company could not accept by him unless he had such authority.* To such an allegation the general rule applies that what is necessarily understood or implied in a pleading, forms part of it as if it was expressed.^ § 61. Complaint against a guarantor. — A complaint against a guarantor should allege the execution of a contract of guaranty, its terms, and a breach of the contract by the defendant^. Where an action is brought upon an absolute guaranty of pay- ment it is not necessary to allege notice to the defendant of non- payment, or that any legal proceedings have been commenced against the principal debtor, as none of these acts are conditions precedent to a right of action against the guarantor.' But where the action is brought upon a guaranty of collection the complaint must allege facts showing that the plaintiff has exhausted his legal remedies against the principal debtor as due diligence in this respect is a condition precedent to the liability of the guar- antor.^ In the latter class of cases the plaintiff should allege the recovery of a judgment against the principal debtor, the issuing of an execution against his property and the return of the execu- tion unsatisfied. The costs incurred in the action against the principal may be included in the judgment demanded in the action against the guarantor.' § 62. The demand of judgment. — The complaint must con- tain a demand of the judgment to which the plaintiff supposes himself entitled ; ^ but a mistake in the form or extent of the re- lief demanded is not ordinarily fatal to the jilaintiff's case. The judgment demanded should be consistent with the allegations of the complaint, and should be such as the facts alleged, assuming ' Partridge v. Badger, 25 Barb. 146. « Partridge v. Badger, 35 Barb. 146. See ante, p. 30. 3 Brown V. Cuitiss, 2 N. Y. 225; Barhydt v. Ellis, 45 N. Y. 107, 110; New- comb V. Hale, 90 N. Y. 326. * Northern Ins. Co. v. Wright, 76 N. Y. 445; Craig v. Parkis, 40 N. Y. 181; Toles V. Adee, 91 N. Y. 563. ' Mosher v. Hotchkiss, 2 Keyes, 587. • Code of Civil Pro., § 481. 200 The Complaint. Tlie demand of judgment. theui to be true, would authorize the court to render. A demand of a judgment which is inconsistent with the case made by the complaint and which is wholly unsupported by the allegations in it is merely nugatory.^ If no answer is interposed, the plaintiff cannot have a judgment more favorable to him than that which he has demanded in his complaint ;^ and he is practically limited on default or demurj'er to the relief demanded, although the facts stated may be such as would have entitled him to other and dif- ferent relief had he demanded it ; and if the facts alleged do not entitle him to any part of the relief which he has demanded, he cannot recover although they show a right to relief.' But where there is an answer, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue.^ In such case the formal relief asked in the complaint is not of much importance.^ The plaintiff will not be turned out of court because he has prayed for too much, or for too little, or for wrong relief.^ But as it is never possible to anticipate, when drawing the complaint, the course of proced- ure the defendant may adopt, it is always advisable to make the demand of judgment broad enough to cover any relief which the plaintiff desires and to which he supposes himself entitled under any view of the facts alleged. That he may ask for more than he is entitled to is of little consequence. Where a complaint in an action for personal injuries contains several counts, all of which allege the same cause of action in different forms, and refer to the same accident and injury, and close with a statement of the amount of damages sustained, a recovery for more than the amount of damages so alleged may be sustained on appeal if the complaint contains a general prayer for judgment sufficiently large to cover the verdict.^ 1 Short V. Barry, 58 Barb. 177; 40 How. 210. ■> Code of Civil Pro., § 1207. 3 See Swart v. Boughton, 35 Hun, 281; Alexander v. Katte, 63 How. 262; Simonson v. Blake, 12 Abb. 331; 20 How. 484; Edson v. Girvan, 29 Hun, 422; Fisher v. Charter Oak Life Ins. Co., 67 How. 191. * Code of Civil Pro., § 1207. •- Bell V. Merrifield, 109 N. T. 202. « Murtha v. Curley, 90 N. Y. 372; 12 Abb. (N. S.) 12; Muldowney v. Morris & Esses R. R. Co., 42 Hun, 444; ante, p. 7. ' Schultz V. Third Ave. R. R. Co., 89 N. Y. 242. The Complaint. 201 The demand of jndgnient. A complaint may be framed in a double aspect so as to present grounds for both legal and equitable relief,^ and in such case both forms of relief should be included in the demand of judgment. The complaint may demand judgment by way of damages for a breach of a written contract, and also for a reformation of the contract if necessary.^ It may ask for a reformation of a deed and for its enforcement as reformed.' It may ask that a fraudu- lent deed be set aside and that the plaintiff be awarded possession of the lands held under it.* It may ask for an injunction restrain- ing the violation of a trade-mark and for damages for past viola- tion thereof.* It may ask for damages caused by the obstruction of navigable water, and that the defendants be enjoined from obstructing it in the future.^ But although a plaintifE may be entitled to maintain separate actions for either legal or equit- able relief, he cannot seek both remedies in the same action if the principles upon which the claim to equitable relief is based are inconsistent with those upon which the equitable remedy depends, or vice versa? Thus, the plaintiff cannot demand judgment for an injunction restraining the defendants from using demised premises in a manner proliibited by the covenants of a lease, and also that the lease be adjudged forfeited, that the defendants be dispossessed, and that the plaintiffs be put in posses- sion of the premises.® So a plaintiff cannot properly seek to re- strain the defendant from erecting a frame building in violation of a city ordinance, and at the same time demand judgment for a I Phillips V. Gorham, 17 N. X. 270; New York Ice Co. v. Nortli Western Ins. Co., 23 N. Y. 357; 21 How. 296; 12 Abb. 414; Laub v. Buckmiller, 17 N. Y. 620, 626; Getty v. Hudson Eiver R. R. Co., 6 How. 269; Wandle v. Turney, 5Duer, 661. ' New York Ice Co. v. North Western Ins. Co., 28 N. Y. 357; 21 How. 296; 12 Abb. 414; Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 238; Malier v. Hibernia Ins. Co., 67 N. Y. 283; Wells v. Yates, 44 N. Y. 525. 3 Laub V. Buckmiller, 17 N. Y. 620. ■> Lattin v. McCarty, 41 N. Y. 107. See Phillips v. Gorham, 17 N. Y. 270. ' Porous Plaster Co. v. Seabury, 48 Hun, 611. 6 Getty V. Hudson River R. R. Co., 6 How. 269. ' Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Young v. Edwards, 11 How. 201. « Linden v. Hepburn, 3 Sandf. 668; 5 How. 188. 26 202 The Complaint. The demand of judgment. penalty for a violation of the ordinance.' Upon the same princi- ple, a plaintiff cannot demand judgment for the conversion of personal property, and also for the recovery of the possession of the property.^ Neither can a party seek the rescission of a con- tract on the ground of fraud, and also claim an account under it.' It seems, that in some cases, relief in the alternative may be de- manded, and relief be granted in the one form or the other ;* but this doctrine is not unquestioned.' The fact that the relief demanded in the complaint is not war- ranted by the facts alleged, is not a ground for a demurrer,^ and where the facts stated in the complaint show that the cause of ac- tion is of an equitable nature, the fact that the plaintiff has im- properly demanded a money judgment only will not necessarily affect the mode of trial, and send the case to a jui-y.' Tlie fact that the plaintiff has demanded a sum of money by way of dam- ages does not preclude the recovery of th.e same amount by way of equitable relief, if the facts entitle him to such relief.* A demand for general relief, so common under the old practice, is of no avail under the Code. In case no answer is interposed, the judgment will be limited to the relief specifically demanded, and in case an answer is interposed, the plaintiff may have any judg- ment consistent with the case made by the complaint, and em- braced within the issues.' If a plaintiff in an action for the foreclosure of a mortgage desires a judgment for a deficiency, if any shall exist after the sale, against a purchaser of the land, or an assignor or guarantor of the mortgage liable for the debt, he should demand such judgment in his complaint, as he cannot have such judgment under a prayer 1 Lamport v. Abbott, 13 How. 340. ' Maxwell v. Farnam, 7 How. 336. 3 Van Liew v, Johnson, 6 T. & C. 648: 4 Hun, 415. ■• Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Young v. Edwards, 11 How. 201; Margraf v. Muir, 57 N. Y. 155. ' Durant v. Gardner, 19 How. 94; 10 Abb. 445. « Standart f. Burtls, 46 Hun, 83; 15 St. Rep'r, 145; 37 Week. Dig. 344. • Bell V. Merrifield, 109 N. Y. 303. 8 Hale V. Omaha Nat. Banli;, 49 N. Y. 636; Thatcher v. Hope Cemetery As- sociation, 46 Hun, 594. 9 Ante, p. 300. Demurrer to the Complaint. 203 Whefi a demurrer to the complaint may be interposed. for general relief, if no answer is interposed,^ and his failure to ask for such relief may prejudice an application for leave to com- mence a separate action at law to recover such deficiency." The demand of judgment in an action to compel the determina- tion of a claim to real property must be to the effect that the de- fendant and every person claiming under him be forever barred from all claim to any estate of inheritance, or freehold, or for a term of years not less than ten, in possession, reversion or remain- der, in the property described in the complaint.' A plaintiff in an action of replevin, who seeks to recover dam- ages for an injury to the property, or for a depreciation in its value while it was in the possession or under the control of the de- fendant, must demand such damages in his complaint.^ In an action triable by tlie court withoiit a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a final judgment distinguishing them clearly.'' In an action for cutting or injuring trees, etc., under section 1667 of the Code of Civil Procedure, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum so stated.*^ CHAPTER X. Demurrer to the CoMPLAmr. Section 1. When a denuirrer to the complaint may be interposed. — As the only pleading on the part of the defendant is either a demurrer or an answer,^ one of the first questions for the defendant to determine is which form of pleading he should adopt. He cannot both answer and demur to the same cause of ' Simonson v. Blake, 20 How. 484; 12 Abb. 331. ' Equitable Life Ins. Soo. v. Stevens, 63 N". Y. 341. ' Code of Civil Pro. , § 1639. *Code of Civil Pro., § 1732. 5 Code of Civil Pro., § 482. « Code of Civil Pro., § 1668. ■> Code of Civil Pro., g 487. 204 Demueeee to the Complaint. When a demurrer to the complaint may be interposed. action ;' but this does not prohibit a defendant from demurring to one count in the complaint and answering another, nor does it compel all of several defendants to adopt the same form of plead- ing to the same matter. The defendant may demur to the whole complaint or to one or more separate causes of action stated therein, and in the latter case may answer the causes of action not demurred to ;^ and if there are several defendants, some may answer while others may demur.^ The defendant may demur to the complaint where one or more of the following objections thereto appear upon its face : 1. That the court has not jurisdiction of the person of the de- fendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same par- ties for the same cause. 6. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to consti- tute a cause of action.* These grounds of demurrer to the complaint are exclusive. Special demurrers, as known to the former practice, have no place in our present system of pleading. The Code authorizes a demurrer for specific causes, and no pleading is demurrable unless ' Morey v. Ford, 32 Hun, 446; Barnard v. Morrison, 39 Hun, 410. Under the former Code, the proper practice on part of the plaintiff in case the de- fendant both demurred and answered to the same count was to move for an order striking out the demurrer or the answer, or an order compelling the de^ fendant to elect by which of the pleadings he would abide. Slocum v, Wheeler, 4 How. 378; Spellman v. Weider, 5 How. 5; Howard v. Mich. South, E. R. Co., 5 How. 206; Struver v. Ocean Ins. Co., 16 How. 432; Slack v. Heath, 4 B. D. Smith, 95. But this practice seems questioned in Barnard v. Morri son, 29 Hun, 410. In Arkansas a demurrer may be embodied in an answer that goes to the entire complaint. Greenfield v. Carlton, 30 Ark. 547. « Code of Civil Pro., § 493. ' Webb V. Tanderbilt, 7 Jones & Sp. 4. " Code of Civil Pro., § 488. Demueeee to the Complaint. 205 When a demurrer to the complaint may be interposed. it is subject to one or more of the objections specified in the sec- tion defining the grounds of demurrer.^ The Code authorizes a demurrer only where the ground of objection appears on the face of the complaint, and therefore if the objection does not so appear it is no ground of demurrer^ and may be taken by answer.^ On the other hand, if the objection appears on the face of the com- plaint it can be taken by demurrer only, unless it be the objec- tion to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.* An objection which can be taken by demurrer cannot be taken by answer.^ The authority to object by way of answer is in terms limited to cases where the objection does not appear on the face of the complaint." It is not always easy to determine whether an objection appears on the face of the complaint within the meaning of the statute. In some cases the ground of objection may appear affirmatively from the facts alleged, and in others may appear from the absence of some essential allegation. Thus where the jurisdiction of the court, not only of the person of the defendant but of the action itself, depends upon the fact that the defendant is a resident of a certain city or county, and the complaint contains no allegation as to his residence, it is demurrable for want of jurisdiction of the court appearing on its face.' So where it appears from the com- ' Marie v. Garrison, 83 N. T. 14; De Witt v. Swift, 3 How. 280; Beale v. Hayes, 5 Sandf. 640; Harper v. Chamberlain. 11 Abb. 234. So far as relates to the mode of stating the particular objection, all demurrers under the Code are special. See Sanders v. Village of Yonkers, 63 N. T. 489, 403. ' Wilson V. Mayor, etc., of New York, 1.5 How. 500; Getty v. Hudson River R. R. Co., 8 How. 177; Swamp, etc.. Land District v. Feck, 60 Cal. 403; Min- neapolis Harvester Works v. Libby, 24 Minn. 327; Moore v. Hobbs, 77 X. C. 65. 3 Code of Civil Pro., § 498. ^ Code of Civil Pro., g§ 498, 499; Potter v. Ellice, 48 N. Y. 321; Fisher v. Hall, 41 N. Y. 416; Lunn v. Shermer, 93 N. C. 164; Field v. Hurst, 9 S. C. 277; Tennant v. Pfister, 45 Cal. 370. s Zabriskie v. Smith, 13 N. Y. 322; Bartholomew v. Lyon, 67 Barb. 86; War- ner v. Ross, 9 Abb. N. C. 385; Patchin v. Peck, 38 N. Y. 39; Petree v. Lan- sing, 66 Barb. 357; De Puy v. Strong, 37 N. Y. 372; Dennison v. Dennison, 9 How. 246; Osgood v. Whittlesey, 10 Abb. 134; Ingraham v. Baldwin, 13 Barb. 18; Baggott v. Boulger, 2 Duer, 169; Fourth Xat. Bank v. Scott, 31 Hun, 301. » Code of Civil Pro., § 498; Zabriskie v. Smith, 18 N. Y. 332. ' Gilbert v. Y'ork, 41 Hun, 594; 111 N. Y. 544; Judge v. Hall, 5 Lans. 69. -306 Dbmuebee to the Complaint. Want of jurisdiction of person of defendant or of subject of the action. plaint that there are persons not made parties who, if living, would be necessary parties, and it does not appear whether such persons are living or dead, the complaint is demurrable for a de- fect of parties appearing on its face. ' The want of legal capacity to sue must appear aflirmatively on the face of the complaint to render it demurrable on that ground. If the pleading merely fails to show facts which confer capacity to sue, the objection must be taken by answer.^ § 2. Want of jurisdiction of tlie person of the defendant or of the subject of the action.— The Code authorizes a defendant to demur to the complaint when it appears upon the face thereof that the court has not jurisdiction of the person of the defendant or of the subject of the action.^ The meaning of the clause " that the court has not jurisdiction of the person of the defendant " is that the defendant is not sub- ject to the jurisdiction of the court and not that the suit has not been regularly commenced.'' If a cause of action, of which the court has jurisdiction, is joined with one of which it has no juris- tion, and the causes of action are such as may be joined, a demurrer on the sole ground that causes of action are improperly joined will be unavailing.'' The jurisdiction of a superior city court in an action or special proceeding brought therein must always be presumed. It is not necessary to set forth in the complaint in such action any of the jurisdictional facts specified in the section of the Code defining the - Eaton V. Balcom, 83 How. 80; Sanders v. Village of Tonkers, 63 ISf. T. 489; Green y. Lippincott, 53 How. 33; De Puy v. Strong, 37 N. Y. 372; Maxwell v. Pratt, 24 Hun, 448. There are cases holding that an objection to the complaint for non-joinder of a party cannot be taken by demurrer unless the complaint shows affirmatively that the party omitted was living when the suit was com- menced. Brainard v. Jones, 11 How. 569; Scofield v. Van Syckle, 33 How. 97; Gilbert v. Allen, 57 Ind. 524; Davis v, 'Willis, 47 Texas, 154. * Barclay v. Quicksilver, etc., Co., 6 Laus. 25; Pha3nix Bank v. Donnell, 40 N. Y. 410. 3 Code of Civil Pro., § 488, subd. 1 and 3. * Nones v. Hope Mutual Life Ins. Co., 5 How. 96; 8 Barb. 541. See Ogdens- burgh, etc., R. R. Co. v. Vermont, etc., R. R. Co., 16 Abb. (N. S.) 249. But see Atlantic & Pacific Tel. Co. v. Baltimore & Ohio R. R. Co., 87 N. Y. 355. 6 Cook V. Chase, Duer, 643; Dodge v. Colby, 108 N. Y. 445. Demdeeer to the Complaint. 207 Anotlier action pending between tlie same parties. jurisdiction of such courts, and wliere the defendant in the action appears, the want of jurisdiction, by reason of the non-existence of any of those facts, is a matter of defense, and is waived by the appearance unless it is pleaded in defense.-"- There is no such pre- sumption of jurisdiction in favor of county courts ; and if the complaint does not contain an allegation that the defendant is a resident of the county, it is demurrable on the ground of want of jurisdiction.^ § 3. Want of legal capacity to sue. — The defendant may demur to the comp)laint when it appears upon its face that the plaintiff has not legal capacity to sue.' This is the proper remedy where the complaint shows affirmatively a want of capacity, b^ut not where it merely fails to show facts conferring capacity.* The objection cannot be considered under a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.^ The want of capacity to sue must be assigned as the ground of demurrer. A demurrer on this ground is proper where an infant brings an action of ejectment and the fact of infancy appears on the face of the complaint,'' or where a foreign executor or administrator sues, and the fact that the plaintiff is such foreign executor or adminis- trator appears on the face of the complaint.' § i. Anotlier action pending between the same parties. — The defendant may demur to the complaint when it appears upon its face that there is another action pending between the same parties for the same cause.' ■ Code cf Civil Pro., § 266; Popfinger v. Yutte, 102 N. T. 39. 2 Gilbert v. York, 41 Hun, 594; 111 N. Y. 544. 3 Code of Civil Pro., § 488, subd. 3. ^ Ante, p. 206. ' Secor V. Pendleton, 47 Hun, 281; Fulton Fire Ins. Co. v. Baldwin, 87 N. Y. 648; People v. Crooks, 53 N. Y. 648; Bank of Lowville v. Edwards, 11 How. 316; Irving Nat. Bank v. Corbett, 10 Abb. N. C. 85; Sanborn v. Hale, 12 Neb. 594; Morn v. Leroy, 58 Cal. 8; Langsdale v. Girton, 51 Ind. 99; Rogers v. Lafayette Agricultural Works, 52 Ind. 396; Debolt v. Carter, 31 Ind. 355. * Bartholomew v. Lyon, 67 Barb. 86. ■ Bobbins v. Wells, 36 How. 15; 18 Abb. 191. 8 Code of Civil Pro., § 488, subd, 4, 208 Demueeek to the Complaint. Anotiier action pending between the same parties. Under a similar provision of the old Code the word " action " was held to include any legal proceeding in which the rights of the plaintiff in the last suit would be fully protected, whether the pro- ceeding was strictly an action, an attachment, or citation before a surrogate, or a proceeding in court founded on a petition.' The courts have added a limitation to the general words of the statute, and hold that to give the right to demur, the other action must be pending in a court of this State.^ The action must be pending between the same parties, but it is not necessary that the plaintiff in one suit should be plaintiff in the other. The suit is between the same parties, although the plaintiff in one is the defendant in the other,^ or although there were two or more defendants in the first suit and but one in the action in which the demurrer is interposed.^ But if the action in which the demurrer is interposed is between the parties to a prior action and additional parties, the demurrer will not lie." To authorize a demurrer on this ground the cause of ac- tion in each suit must be the same. This requirement is strictly enforced. If the action is ejectment, it is not enough that the property in controversy in both actions is the same if the same title is not sought to be litigated in both actions.' So the pend- ency of a prior action for rent alleged to be payable quarterly is no ground for demurrer in an action for the same rent under a claim that it was payable at the end of the year.'' So the pend- ency of a prior action for the recovery of money for a breach of covenant is no ground for demurrer in an action for the reforma- tion of the same covenant by excepting from its application the particular matter constituting the breach.* If, however, two ac- tions are brought between partners for an accounting and settle- ment of the partnership affairs, the fact that the averments in the ' Groslion v. Lyon, 16 Barb. 461. = Burrows v. Miller, 5 How. 51; Sloan v. McDowell, 75 N. C. 29. And see Williams v. Ayrault, 31 Barb. 364; Osgood v. Maguire, 61 Barb. 54. 5 Groshon v. Lyon, 16 Barb. 461; Hornfager v. Hornfager, 6 How. 279. - Dawley V. Brown, 65 Barb. 107. 5 Auburn City Bank v. Leonard, 20 How. 193; Gerry v. Webster, 11 Hun , 428. - Dawley v. Brown, 79 N. Y. 390. ' Kelsey v. Ward, 16 Abb. 98, 103; 38 N. Y. 83. 8 Haire v. Baker, 5 N. Y. 357. Demurrer to the Complaint. 209 Misjoinder of parties — Defect of parties. prior action were fewer and the demand for relief simpler and less special than in the second action will not render the latter main- tainable.' § 5. Misjoinder of parties.— Under the Code of Procedure a misjoinder of parties plaintiff was not a ground of demurrer ;^ but under the present Code a demurrer lies for misjoinder of par- ties plaintiff, where the objection appears upon the face of the complaint.^ To take advantage of the misjoinder the defendant must not only assign as a ground of demurrer that there is a mis- joindei' of the parties plaintiff, but he must " point out specifically the particular defect relied upon ' ' by naming the party improperly joined and stating wherein the joinder is improper.* A misjoinder of parties defendant was not under the old Code and is not under the new Code a ground of demurrer. A mis- joinder is not a defect of parties.* § 6. Defect of parties. — The Code autborizes the defendant to demur to the complaint when it appears upon its face that there is a defect of parties plaintiff or defendant.*^ By defect of parties is meant a non-joinder, and not a mis- joinder.' It is not often that a demurrer will he for the non- joinder of a defendant.' In order to sustain a demurrer for ' Ward V. Gore, 37 How. 119. 2 See Code of Procedure, § 144; People v. Crooks, 53 N. T. 648; Allen v. City of Buffalo, 88 N. Y. 380; Peabody v. Washington County Mut. Ins. Co. , 80 Barb. 339; People v. Mayor, etc, of X. Y., 38 Barb. 340; Palmer v. Davis, 28 N. Y. 343. Misjoinder of parties is no ground of demurrer under tlie Codes of some of the States. See Mornau v. Carroll, 85 Iowa, 22; Dubuque Co. v. Reynolds, 41 Iowa, 454; Hargrove v. Hunt, 78 N. C. 34; Potts v. State, 65 Ind. 273. " Code of Civil Pro., § 488, subd. 5. ''Berney v. Drexel, 33 Hun, 419. ' Code of Procedure, § 144; Code of Civil Pro., § 488; Richtmyer v. Richt- myer, ,50 Barb. 55; Fish v. Hose, 59 How. 388; New York, etc., R. R. Co. v. Schuyler, 17 N. Y. 593. And see Truesdell v. Rhodes, 36 Wis. 315; Willard v. Reas, 26 Wis. 530. « Code of Civil Pro., § 488, subd. 6. ' Palmer v. Davis, 28'n. Y. 342; Potter v. Ellice, 48 N. Y. 331. 8 HiUman v. Hillman, 14 How. 456. 27 210 Demtteeer to the Complaint. Misjoinder of causes of action. defect of parties it must appear that the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder.' It must also appear that the persons omitted were not merely proper but necessary parties.^ But it need not appear by affirmative allegation that the omitted parties are living.' If the objection appears upon the face of the complaint it must be taken by demurrer or it will be waived;* and the demurrer must specify the non-joinder as the ground of ol>je.ction, and point out specifically the particular defect relied upon.' § 7. Misjoinder of causes of action. — The defendant may demur to the complaint where it appears upon its face that causes of action have been improperly united.* If the objection appears upon the face of the complaint and is not taken by demurrer, it is waived.' A demurrer will not lie to a complaint containing different causes of action wliich may be united merely because they are not separately stated and numbered f but where a complaint states several causes of action which cannot properly be united, the defendant's remedy by demurrer is not affected by the fact that the several causes of action are not separately stated and numbered.' If the complaint in fact contains but a single cause ' Anderton v. Wolfe, 41 Hun, 571; Wooster v. Chamberlin, 28 Barb. 603; Hillman v. Hillman, 14 How. 456i Hand v. Atlantic Nat. Bank, 55 How. 331; Newbould v Warrin, 14 Abb. 80; Perkins v. Churcb, 31 Barb. 84. = Wing V. Bull, 38 Hun, 291; Perkins v. Church, 31 Barb. 84. " Ante, p. 206. " Zabriskie v. Smith, 13 N. Y. 333; DePuy v. Strong, 28 X. Y. 372; Crippen V. Morss, 49 N. Y. 63, 69; Potter v. Ellioe, 48 N. Y. 321 ; Maxwell v. Pratt, 24 Hun, 448. ' Code of Civil Pro., § 490. See Sanders v. Village of Yonkers, 63 X. Y. 489, 493. A demurrer for defect of parties must specify those omitted. Gardner v. Fisher, 87 lud. 369. But see Coe v. Beckwith, 31 Barb. 339. « Code of Civil Pro., § 488, subd. 7. ' Blossom V. Barrett, 37 N. Y. 434; Anderson v. Hill, 53 Barb. 238. « Bass V. Comstock, 38' N. Y. 21; Freer v. Denton, 61 N. Y. 493; Anderson V. Hill, 53 Barb. 338. 9 Goldberg v. Utley, 60 N. Y. 427; Wills v. Suydam, 64 N, Y. 173; Harris V. Eldridge, 5 Abb. N. C. 378; Zorn v. Zorn, 38 Hun, 67. Demurrer to the Complaint. 211 No cause of action stated. of action, although stated in different counts, the defendant can- not successfully demur on the ground that causes of action have been improperly united.' If the complaint in an action against two defendants states facts showing a good cause of action against each defendant separately, but not a good cause of action against them jointl}', the defendants may demur jointly" or separately^ on the ground of the misjoinder of causes of action. Where two causes of action on contract, which do not affect all the defendants, are joined in the same action, a defendant who is affected by both causes may demur on the ground that all are not affected by both causes.* In order that the defendant may avail himself of the objection that causes of action have been improperly united, he must base his demurrer on that ground,^ and must point out specifically the particular defect relied upon.^ § 8. No cause of action stated. — The defendant may demur to the complaint if it does not state facts sufficient to constitute a cause of action.'' The objection which may be taken under this provision of the Code goes to the matter stated, rather than to the manner of stat- ing it. It is not sufficient to sustain the demurrer that the facts are imperfectly or informally averred, or that the complaint lacks definiteness and precision, or that material facts are only argu- mentatively averred. The complaint on demurrer will be deemed to aUege what can be implied by reasonable and fair intendment from the allegations therein.' A demurrer does not lie for mere ' Hillmau v. Hillman, 14 How. 456; Ward v. Ward, 5 Abb. (N. S.) 145. 5 Hess V. Buflalo & Niagara Falls R. R. Co., 29 Barb. 391. 3 Harris v. Eldridge, 5 Abb. N. C. 378; Bonnell v. Wheeler, 1 Hun. 333; ■Jackson v. Brunkins, 5 Han, 580; Barton v. Speis, 5 Hun, 60; Edson v. Gir- van, 29 Hun, 433. ■• Nicholls V. Drew, 94 N. T. 22. ' Dodge V. Colby, 108 N. Y. 446. « Code of Civil Pro., §490. ■> Code of Civil Pro., § 488, subd. 8. « Marie v. Garrison, 83 N. Y. 14; Lorillard v. Clyde, 86 N. Y. 884; Olcott v. Carroll, 39 N. Y. 436; Bloffatt v. McLaughlin, 13 Hun, 449; Wall v. Bulger, 46 Hun, 340; Zabriskie v. Smith, 13 N. Y. 330; Millikeu v. Western Union Tel. Co., HON. Y. 403. 212 Demurrer to the Complaint. No cause of action stated. indefiniteness and uncertainty/ or for argumentativeness/ re- dundancy/ surplusage/ defects in form^ or mere clerical error.* To render it demurrable, the complaint must present defects so substantial in their nature and so fatal in their character as to au- thorize the court to say, assuming all the facts to be true, that no cause of action whatever is stated.' If the action is for libel, and the words used in the alleged libelous article are ambiguous, or the sense in which they are used is doubtful and uncertain, a de- murrer to the complaint will be overruled if tJie words are capable of a construction which would make them actionable, even though an innocent meaning could bo placed upon them.^ Where the complaint may reasonably import a good cause of action, it will not be held bad because its language is susceptible of a construc- tion excluding any such cause.' The Code permits the defendant to demur to the whole com- plaint or to one or more separate causes of action therein stated,'" but the demurrer will be sustained or fail to tiie whole extent to which it is applied.'^ If a general demurrer is interposed to a complaint containing two counts, and a sufScient cause of action is alleged in either count, the demurrer will be overruled.'^ So, if there are ' Canales v. Perez, 65 Texas, 291; Pittsburgh, Cincinnati, etc., R. R. Co. v. HixoD, 110 Ind. 235; Williamson v. Tingling, 93Ind. 43; Wriglit v. Williams, 83 Ind. 431: Conuersville v. Connersville Hydraulic Co., 86 Ind. 235; Spice v. Steinruck, 14 Ohio (N. S.), 213. 2 Leary v. Moran, 106 Ind. 560; Ford v. Griffin, 100 Ind. 85; Clauser v. Jones, 100 Ind. 123; Judah v. Vincenues University, 23 Ind. 'J73. ' People V. Mayor, etc., of K. Y., 8 Abb. ?; 28 Barb. 240; 17How. 56; School District V. Piatt, 17 Iowa, 16. ■* Judah V. Vincennes University, 33 Ind. 273. - Renton v. St. Louis, 1 Wash. 215. « Fay V. McKeever, 59 Cal. 307; McCarron v. Cahill, 15 Abb. N. C. 283. ' Marie v. Garrison, 83 N. Y. 14; Graham v, Camman, 13 How. 360; 5 Duer, 697; Richards v. Edick, 17 Barb. 260; Priudle v. Caruthers, 15 N. Y. 425; Peo- ple V. Mayor of N. Y., 8 Abb. 7; 28 Barb. 240; 17 How. 56; Pierson v. Mc- Curdy, 61 How. 134. = Patch V. Tribune Association, 38 Hun, 368. ' Olcott V. Carroll, 39 N. Y. 436. i» Code of Civil Pro., § 493. " Peabody v. Washington County Mut. Ins. Co., 20 Barb. 339. '2 Hale V. Omaha Nat. Bank, 49 N. Y. 626; Martin v. JIattison, 8 Abb. 3; Seaver v. Hodgkin, 63 How. 128; Bronsou v. Markey, 53 Wis. 98; Reece v. Demueeee to the Complaint. 213 No cause of action stated. several defendants who jointly demur, and the complaint states a good cause of action as against one of thera, the demurrer will be overruled.' If the complaint states a good cause of action against one defendant, he cannot demur on the ground that it states no cause of action against another defendant.^ It is frequently stated as a rule of pleading that the defendant cannot demur to the demand of judgment or prayer for relief.^ It is nndoubtedly true that a demurrer must reach the whole cause of action, and will not lie to a portion or paragraph only of the cause of action stated in the complaint,^ or to a statement embodied in the prayer for relief.^ It is no ground for demurrer that tlie plaintiff has asked for greater relief than he is entitled to on the facts stated,^ or has not prayed for all the relief to which the facts stated would entitle him,'' or has failed to pray for the precise re- lief to which he is entitled,* or has misconceived the nature of the judgment which the court should pronounce upon the facts set forth in the complaint,^ if the relief to which he is entitled is con- sistent with that demanded in the complaint.'" The demand for relief does not necessarily characterize the action or limit the plaintiff in respect to the remedy which he may have. If the Smitli, 94 111. 363; Rout v. 'Woods, 67 Ind. 319; Carson v. Cock, 50 Texas, 325; Griffiths V. Henderson, 49 Cal. 567; Bonney v. Bonney, 29 Iowa, 448; Beilly v. Cavanaugh, 32 Ind. 214; Singer v. Cavers, 26 Iowa, ITS; Ketchum v. State, 2 Oregon, 103; Rodgers t. Brazeale, 34 Ala. 513; McKay v. Fiebelle, 8 Fla. 21; Bristow V. Lane, 31 111. 194; Anderson v. Richards, 23111. 217; Ward v. Xeal, 35 Ala. 602; Tomlin v. Tonica, etc., R. R. Co., 23 111. 439. - Phillips V. Hagadon, 13 How. 17; Eldridge t. Bell, 13 How. 547; Fish v. Hose, 59 How. 238; Walker v. Popper, 2 Utah, 96; Sanders v. Farrell, 83 Ind. 28; Wilkerson v. Rust, 57 Ind. 173; Webster v. Tibbits, 19 Wis. 438; Bennett V. Preston, 17 Ind. 291; Dunn v. Gibson, 9 Xeb. 513. ' Littell V. Sayre, 7 Hun, 485; Holzman v. Hibben, 100 Ind. 338. ^ Johnson v. Kelly, 2 Hun, 139; Mackey v. Auer, 8 Hun, 180; Garner v. Thorn, 56 How. 453; 6 Abb. N. C. 212; Kingsland v. Stokes, 25 Hun, 107. * Lord V. Vreeland, 24 How. 316; 15 Abb. 122. « Kingsland v. Stokes, 25 Hun, 107. « Tisdale v. Moore, 8 Hun, 19; Meyer v. Van CoUem, 28 Barb. 330; People T. Mayor, etc., of N. Y., 17 How. 56. ■ Buess V. Koch, 10 Hun, 299. « Swart V. Boughton, 35 Hun, 281. 9 Pierson v. McCurdy, 61 How. 134. 10 Hale V. Omaha Nat. Bank, 49 N. Y. 626. 214 Demtjekee to the Complaint. No cause of action stated. facts alleged as a cause of action are sufficient to sustain an action either at iaw or for equitable relief, the fact that after the allega- tion of the facts the plaintiff has demanded judgment for a sum of money by way of damages does not preclude the recovery of the same amount by way of equitable relief.' If the plaintiff has alleged facts entitling him to judgment for the specific perform- ance of a contract, and has demanded a judgment for money, the complaint is not demurrable because all the relief which may be essential to an action for specific performance has not been claimed, if the facts show him equitably entitled to recover in such action the money which he has demanded.^ It has been held that if the complaint prays for relief not war- ranted by the alleged facts, a demurrer for that reason will not lie,^ and that whenever a complaint contains allegations of fact which, if proved upon a trial after issue of fact joined, would enti- tle the plaintiff to some relief, either legal or equitable, although not that asked for by the complaint, a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action will not be upheld.^ But the Code provides that where there is no answer the judgment shall not be more favora- ble to the plaintiff than that demanded in the complaint,' and a demuri-er is not an answer within the meaning of this provision.* Therefore when all the allegations of the complaint are made for the purpose of procuring equitable relief, and when equitable re- lief alone is asked for, the complaint cannot, on demurrer, be sus- tained for legal redress.^ So where the relief demanded in the complaint in an action on a promissory note is a judgment for the amount due thereon against the defendants and each of them, and the facts alleged show that the plaintiff is not entitled to such - Hale V. Omalia Nat. Bank, 49 N. Y. 636; Bell v. Merrifield, 109 N. T. 202. - Buess V. Koch, 10 Ilun, 299. ^ Standart v. Burtis, 46 Hun, 83. If a complaint allegres facts showing the plaintiff entitled to legal relief only and demands both legal and equitable re- lief, it is not demurrable though framed for the purpose of obtaining equitable relief. Porous Plaster Co. v. Seabury, 43 Hun, 611. * Mackey t. Auer, 8 Hun, 180. ' Code of Civil Pro., § 1207. « Kelly V. Downing, 43 N. Y. 71. ' Swart V. Boughton, 35 I-Iun, 281; Alexander v. Katte, 63 How. 263. Demueeee to the Complaint. 215 Form of tlie demurrer. judgment, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action will be sustained, although the facts stated show that he is entitled to a judgment for an accounting.' And generally where the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action will be sustained even though the facts alleged would have entitled the plaintiff to some other or different relief had he de- manded it.^ § 9. Form of the demurrer. — Under the old system of plead- ings demurrers were of two kinds, general or special. A general demurrer applied to matters of substance, and a special demurrer to matters of form. If a special demurrer was interposed, the objections were required to be specified, while a general demurrer might be taken without specifying the defects relied on. This distinction was at an early day abolished by a rule of court re- quiring the party demurring to specify the objections upon which he intended to rely, whether in matters of substance or matters of form. This practically rendered all demurrers special. Under the Code, the old special demurrer to mere formal defects in pleading has no existence,^ but all demurrers are special in respect to the mode of presenting the objection relied upon.'' The Code provides that the demurrer must distinctly specify the objections to the complaint, otherwise it may be disregarded. An objection that the court has not jurisdiction of the person of the defendant, or that the court has not jurisdiction of the subject of the action, or that there is another action pending between the same parties for the same cause, or that the complaint does not state facts sufficient to constitute a cause of action, may be stated in those words ; but an objection that the plaintiff has not legal capacity to sue, or that there is a misjoinder of parties plaintiff, or that I Edson V. Girvan, 29 Hun, 422. « Edson V. Girvan, 29 Hun, 422; Fisher v. Charter Oali Life Ins. Co., 67 How. 191; Kelly v. Downing, 42 N. Y. 71, 3 Marie v. Garrison, 83 N. Y. 14, 23. •" Sanders v. Village of Yonkers, 63 N. Y. 489, 493. 216 Demurrer to the Complaint. Form of the demurrer. there is a defect of parties, plaintiff or defendant, or that causes of action have been improperly united, must point out specifi- cally the particular defect relied upon.' A demurrer which does not distinctly specify the objections to the complaint may safely be disregarded.^ It is of the utmost importance that the party demurrino- should not only base his demurrer upon the proper ground, but also, where more than the language of the statute is required, should point out the precise defects which show the complaint demurrable on the particular ground assigned. If a specific ground of demur- rer is stated which is untenable, the demurrer cannot be sustained, although other grounds exist which, if they had been stated, would have been sufficient.^ If the defendant demurs on one ground only, and, in attempting to point out the particular defects relied upon to support the demurrer, specifies some objections which are valid and some which are untenable, the demurrer, as a whole, must fail. The court cannot sustain such demurrer in part and overrule it in part.* Although the Code may authorize the party demurring to state the grounds of his demurrer in the language of the statute, if he goes farther and attempts to point out specifically the particular defects relied upon he will thereby limit his demurrer to the particular defects specified.^ The chapter of the Code relating to pleadings does not pre- scribe any particular form of demurrer, and as that chapter is declared to prescribe the form of pleadings in an action and the rules by which the sufficiency thereof is determined except where special provision is otherwise made by law," a paper stating any or all of the objections specified in section 488 of the Code, in the manner prescribed by section 490, which is subscribed by the at- ' Code of Civil Pro., §490. » Dodge V. Colby, 108 N. Y. 445; People v. Crooks, 53 N. Y. 648. 3 Carter v. De Camp, 40 Hun, 258; Beruey v. Drexel, 33 Hun, 419; Drake v. Drake, 41 Hun, 366; Dodge v. Colby, 108 N. Y. 445; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People v. Crooks, 53 N. Y. 648; Hobartv. Frost, 5Duer, 673. ■> Anderton v. Wolf, 41 Hun, 571. 'Nellis V. De Forest, 16 Barb. 61. « Code of Civil Pro. , § 518. Demueeer to the Complaint. 217 Effect of an omission to demur — Decision of the demurrer, etc. tornej for tlie defendants as required by section 520, should be deemed a deuiurrer and sufficient in matters of form.^ § 10. Effect of an omission to demur.— An objection which may be taken by demurrer, and is not so taken, is waived and cannot be taken in any other manner except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.^ These latter objections are not waived by an omission to demur even where they appear upon the face of the complaint.^ By an omission to demur to the complaint the defendant waives the objection appearing on the face of the pleading that the plain- tiff has not legal capacity to sue ■* that there is another action pend- ing between the same parties for the same cause f that there is a misjoinder of parties plaintiff f that there is a defect of parties plaintiff or defendant ;' or that causes of action have been im- properly united.* § 11. Decision of the demurrer and proceedings there- upon. — A demurrer imports that the objecting party will not proceed with the pleading because no sufficient statement has been made on the other side, but will wait the judgment of the court as to whether he is bound to answer.^ The demurrer raises ' For forms of demurrers see Appendix. A demurrer is meaningless which states that " the complaint does not state facts sufficient to constitute a com- plaint." Pine V. Haber Manuf. Co., 83 Ind. 121. The correct form of demur- rer in such case is " that the complaint does not state facts sufficient to consti- tute a cause of action. " Greensburgh, etc., Turnpike Co. v. Sidener, 40 Ind. 424. A demurrer to a complaint on the ground " that the same is not sufficient in law to entitle the plaintifE to the relief demanded " raises no question. Kemp V. Mitchell, 29 Ind. 163; Piper v. Newcomer, 25 Iowa, 221. 'Code of Civil Pro., §§ 498, 499; Zabriskie v. Smith, 13 N. Y. 322; De Puy V. Strong, 37 N. T. 372, ante p. 205. 3 Coffin V. Reynolds, 37 N. Y. 640; Tooker v. Arnoux, 76 N. Y. 397. ^Bartholomew v. Lyon, 67 Barb. 86; Secor v. Pendleton, 47 Hun, 281. ' Garvey v. N. Y. Life Ins. & T. Co., 14 Civil Pro. R. 106; 14 St. Rep. 909. 5 Fisher v. Hall, 41 N. Y. 416. 'Fourth Nat. Bank v. Scott, 31 Hun, 301; Potter v. Ellice, 48 N. Y. 321. « Bebinger v. Sweet, 1 Abb. N. C. 263; Blossom v. Barrett, 37 N. Y. 434. « Steph. PI. 46; Co. Litt. 71, b. 28 218 Demueeee to the Complaint. Decision of the demurrer and proceedings thereupon. an issue of law^ triable by the court or by a referee if the issue is referred.^ If on the trial of the issue so raised, the court or referee finds the demurrer well taken or otherwise, a decision or report must be made directing the final or interlocutory judg- ment to be entered thereupon.' Upon the decision of the de- murrer the court may, in its discretion, allow the party in fault to plead anew or amend, upon such terms as are just.* If the demurrer is overruled, it is within the discretion of the court whether the defendant shall be allowed to answer," and if it is sustained, it is within the discretion of the court whether leave to amend sball be given to the plaintiff.^ If the complaint can- not be so amended as to enable the plaintiff to recover, leave to amend will be refused, and judgment absolute ordered for the defendant.^ So leave to amend will not be granted, merely to allow the plaintiff to look about and see if he cannot discover some means of reinforcing his case.* If a demurrer to the com- plaint is allowed because two or more causes of action are im- properly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated.' The decision or report upon the trial of the demurrer must direct the final or interlocutory judgment ' Code of Civil Pro., § 964. 2 Code of Civil Pro., § 969. 3 Code of Civil Pro., § 1021. " Code of Civil Pro., § 497. 5 Simson v. Satterlee, 64 N. Y. 657. The old Code provided that afUr th& decision of a demurrer the court might, in its discretion, if it appeared that the demurrer was interposed in good faith, allow the party to plead over. Codeof Proc.,§173. See Osgood v. Whittlesey, 10 Abb. 134; 30 How. 73. The present Code authorizes the exercise of this discretion upon the decision of the demurrer, and does not, in terms, limit it to cases where the good faith of the party demurring is apparent. It is not probable that the change in phraseology and the omission of the words of limitation have changed the practice. « Lowry v. Inman, 37 How. 386; 6 Abb. (N. S.) 394. ' Snow V. Fourth Nat. Bank, 7 Rob. 479. 8 Lowry v. Inman, 37 How. 286; 6 Abb. (N. S.) 394. 'Codeof Civil Pro,, S 497. Demuebee to the Complaint. 210 Decision of the demurrer and proceedings thereupon. to be entered thereupon/ and must fix its terms with definite- ness.^ Where it directs an interlocutory judgment with leave to the party to plead anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to cora^Dly with any of the di- rections given or terms imposed.' The prevailing party should enter judgment upon the decision or report in accordance with its terms, and not in excess of the directions therein contained.* If the demurrer is sustained and the plaintiff is granted leave to amend his complaint within a limited number of days on pay- ment of costs or other terms, the time limited for amendment will not commence to run until the entry of the interlocutory judgment.^ If the plaintiff does not avail himself of the leave granted, and the interlocutory judgment directs the final judgment to be entered in such case, judgment will be entered in accord- ance with the direction. If the interlocutory judgment does not direct the final judgment to be entered on failure to comply with any of the directions given or terms imposed, the final judgment must be entered on application to the court, or by the clerk, as the nature of the action requii-es.^ If the demirrrer is overruled and the defendant does not avail himself of leave to plead over, and the decision does not direct the final judgment to be entered, the plaintiff should apply to the court for leave to enter final judgment.' The cases are rare in which the court, in the exercise of its discretion, will grant leave to the defendant to withdraw the demurrer, and to plead after judgment has been entered on an order overruling the demurrer withotit leave to plead to the merits, or with leave not availed of.' ' Code of Civil Pro., § 1021; Smith v. Rathbun, 88 N. Y. 660. « United States Life Ins. Co. v. Jordan, 46 Hun, 201. 3 Code of Civil Pro., § 1021. ■" United States Life Ins. Co. v. Jordan, 46 Hun, 201. ' Liegeois v. McCracken, 23 Hun, 69; 83 N. Y. 634. « Code of Civil Pro., § 1322; Smith v. Rathbun, 88 N. Y. 660. ' United States Life Ins. Co. v. Jordan, 46 Hun, 201. ' Fisher v. Gould, 81 N. Y. 228; Whiting v. Mayor, etc., of New York, 37 N. Y. 600. 220 Demueeeb to the Complaint. Effect of a demurrer as an admission of facts. § 12. Effect of a demurrer as an admission of facts. — A demurrer admits the facts pleaded and merely refers the question of their legal sufficiency to the decision of the court.' It admits the facts stated in the pleading demurred to, not merely upon the argument of the demurrer, but on the trial. Although the de- murrer is overruled by the court, so long as it remains on the record, the facts admitted by it cannot be controverted.^ But a demurrer admits only facts legally pleaded, and not the legal con- clusions in the pleading demuiTed to.^ Averments as to the meaning or legal effect of a contract set forth in a complaint are not admitted by a demurrer.'' The admission relates only to the facts stated in the pleading demurred to, and does not extend to other issues involving the same facts.^ Although a defendant has demurred to the complaint on the ground that the court had no jurisdiction, if the demurrer is overruled and the defendant avails himself of leave gi ven to withdraw his demurrer and to answer, he will not be precluded from alleging want of jurisdiction.' "Where a party has availed himself of leave to withdraw his de-- murrer, it is then out of the case, forms no part of the record, and is not available to either party for any purpose.^ 1 1 Chit. PI, 700. ' Cutler V. Wright, 22 N. Y. 472, 483. 2 Supervisors of Saratoga v. Seabury, 11 Abb. N. C, 461; Groesbeck v. Duns- comb, 41 How. 302; Winstandley v. Rariden, 110 Ind. 140; Kinnier v. Kinnier, 45 N. T. .535; Griggs v. St. Paul, 9 Minn. 246; Branham v. San Jose, 24 Cal. 585; Smith. V. Henry, 15 Iowa, 385; Roberts v. Waters, 9 Iowa, 434; Hartford Bank v. Green, 11 Iowa, 476. ■> Bonnell v. Griswold, 68 N. T. 294; Buffalo Catholic Institute v. Bitter, 87 N. Y. 350; Bogardus v. New York Life Ins. Co., 101 X. Y. 328. 338; United States V. Ames, 99 U. S. 35. •• Cutler V. Wright, 33 N. Y. 473. « Wheelock v. Lee, 74 N. Y. 495. ' Wheelock v. Lee, 74 N. Y. 495; Brown v. Saratoga R. R. Co., 18 N. Y. 495. The Answer. 221 Contents of the answer. CHAPTER XI. The Answer. Section 1. Contents of the answer. — Where the defendant has carefully inspected the complaint served upon him, and has reached the conclusion that there are no defects therein which should be corrected by motion, and that a demurrer thereto will not present the issues which he desires to have determined, his next step is to prepare and serve an answer. This must contain either a general or specific denial of each material allegation of the complaint controverted by him, or of any knowledge or infor- mation thereof sufficient to form a belief, or a statement of new matter constituting a defense or counterclaim in ordinary and concise language, without repetition.'^ It may contain both de- nials, defenses, and counterclaims.- The Code permits the de- fendant to set forth in his answer as many defenses, or counter- claims, or both, as he has, whether they are such as were formerly denominated legal or equitable,^ and whether they are consistent or inconsistent with each other.* But each defense or counter- claim must be separately stated and numbered, and, unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.'^ A partial defense may be set forth in the same manner, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein. Matter tend- ing only to mitigate or reduce damages in an action to recover damages for a breach of promise to marry, or for a personal injury, or an injury to property, may be thus set forth as a partial de- fense." In such actions the defendant may prove at the trial facts not amounting to a total defense, tending to mitigate or otherwise iCode of Civil Pro., §500. ^ Burley v. German-American Bank, 111 U. S. 316. 3 Code of Civil Pro., § 507. * Bruce v. Burr, 67 N , Y. 237; ante, pp. 35, 36. ^ Code of Civil Pro., § 507; ante, p. 47; Kneedler v. Sternberg, 10 How. 68. « Code of Civil Pro., § 508. 222 The Answbe. Contents of the answer. reduce the plaintiff's damages, if they are set forth in the answer either with or without one or more defenses to the entire cause of action ; and a defendant in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plain- tiff's damages, prove facts of that description.' In an action for hbel or slander the defendant may prove mitigating circumstances, . notwithstanding he has pleaded or attempted to prove a justifica- tion.^ It is a defense by a surety, against whom an action is brought upon a sheriff's official bond, that he or any other surety or sureties have been or will be compelled, for want of sufficient property of the sheriff, to pay, upon one or more judgments re- covered against him or them, upon the same bond, an aggregate amount, exclusive of costs, officers' fees, and expenses, equal to the sum for which the defendant is liable, by reason of the bond. It is a partial defense that the difference between the aggregate amount so paid, or to be paid, and the sum for which the defend- ant is thus liable, is less than the amount of the plaintiff's de- mand.^ It is not essential to the validity of the defendant's plead- ing that it should answer the whole of the complaint, or of any single count. It is sufficient if it is an answer to so much as it professes to answer.* But if it professes to answer the entire complaint it will be insufficient if it answers only a part ; "" and if it is intended to answer a part of the complaint only, the part which it is intended to answer should be so clearly defined that the court can, on looking at the complaint, determine what parts are covered by the answer and what are not.^ Each answer must also be complete in itself, and cannot be aided by other defenses in the same pleading unless it refers to and adopts them.' If new 1 Code of Civil Pro., § 536. 'Code of Civil Pro., §535. 3 Code of Civil Pro., ij 1884. McKyring v. Bull, 16 N. Y. 297. ' Foster v. Hazen, 12 Barb. 547; Beacli v. Barons. 13 Barb. 305; Thumb v. Walrath, 6 How. 196; Willis v. Taggard, 6 How. 433; Nichols v. Dusenburv, 2 N. Y. 283; Kneedler v. Sternberg, 10 How. 07; Franklin Life Ins. Co. v. Dehority, 89 Ind. 347. - Davison v. Schermerhorn, 1 Barb. 480; Mattison v. Smith, 1 Rob. 706; 19 Abb. 288. ' Hamniond v. Earle, 58 How. 436; Loosey v. Orser, 4 Bosw. 391. The Answer. 223 Necessity of demand for judgment — \Vlien tlie answer sliould contain denial. matter is pleaded as a partial defense, the answer must so state, aud if it does not, it -will be assumed to be pleaded as a complete defense, and will oe tested as such on demurrer.'^ § 2. Necessity of a demand for judgnient. — Where the answer contains mere denials, or new matter admitting and avoid- ing the cause of action set up in the complaint and constituting a defense thereto, it need not contain a demand of ]'ud2:ment,^ though it is the common practice in such cases to demand judg- ment for a dismissal of the complaint and for the defendant's costs and disbursements in the action. But where the defendant deems himself entitled to an affirmative judgment against the plaintiff by reason of a counterclaim interposed by him, he must demand the judgment in his answer.^ There can be no recovery by way of counterclaim where there is no claim for affirmative relief in the answer.* So if a defendant seeks a determination of ultimate rights as between himself and a co-defendant he must demand such determination in his answer." This is often neces- sary in partition where a defendant by his answer controverts the title or interest of a co-defendant.^ In an action of replevin a demand of judgment for a return to the defendant of the chattel replevied, or for its value, either with or without damages for its detention, may be made hj way of a notice and independent of the answer.' § 3. Wlien the answer should contain a general or specific denial. — The answer of the defendant must contain a general or specific denial of each material allegation of the complaint which the defendant desires to controvert upon the trial, or of any knowledge or information thereof sirfficient to form a belief,^ as ' Code of Civil Pro., § 508; JXattliews v. Beach, 5 Sandf. 256; 8 N. Y. 173; Thompson v. Halbert, 109 N. T. .329. '> Bendit v. Anuesley, 43 Barb. 192; 27 How. 184; Dawley v. Brown, 9 Hun, 461. 3 Code of Civil Pro., § 509. * Shute V. Hamilton, 3 Daly, 463. 'Code of Civil Pro., §531. « See Code of Civil Pro., § 1543. ■■ Code of Civil Pro., § 1725. e Code of Civil Pro., s< 500. 224 The Answer. When the answer should contain a general or specific denial. eacli material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true.^ A denial in the answer of a material allegation of the complaint, or an allegation in the answer that the defendant has not sufficient knowledge or information to form a belief with respect to a material allegation of the complaint, raises an issue of fact for trial.^ A statement in an answer of a state of facts in some re- spects inconsistent with the allegations of the complaint, will not amount to a denial nor have the effect of preventing the allega- tions of the complaint from being taken as true." A fact admit- ted by a failure to deny it, cannot be contradicted or varied by evidence on the trial.'' This rule applies as well to a failure to deny material facts impliedly pleaded as to a failure to deny such as are directly alleged.'' But a failure to deny operates as an ad- mission only in respect to matters well pleaded.*^ The allegations in a pleading which are to be taken as true if not controverted are such only as are material. An omission to deny an imma- terial allegation does not operate as an admission of its truth.' It may be that the plaintiff has alleged more than was necessary to enable him to maintain his action, yet if the matters so alleged are material and have not been stricken out on motion, they will stand admitted.' Thus although a complaint in an action of quo warranto need not allege the defendant's election and his inability to hold office, but may simply allege that the defendant has ' Code of Civil Pro., § 533. 'Code of Civil Pro., §964. 2 West V. American Exchange Bank, 44 Barb. 175; Swinburne v. Stockwell, 58 How. 312; Wood v. Whiting, 31 Barb. 190; Marston v. Swett, 66 N. Y. 206, 210; Powers v. Rome, Watertown & Ogdensburgh R. E. Co., 3 Hun, 285. See Averell v. Day, 26 Hun, 319. *■ West V. American Exchange Bank, 44 Barb. 175; Tell v. Beyer, 38 N. Y. 161; Fleischmann v. Stern, 90 X. Y. 110; Lawrence v. Bank of Republic, 3 Rob. 142; Spear v. Hart, 3 Rob. 420; Towushend v-. Townshend, 1 Abb. N. C. 81. 5 Anable v. Steam Engine Co., 16 Abb. 286; 35 N. Y. 470. ^ Harlow v. Hamilton, 6 How. 475. ' Fry V. Bennett, 5 Sandf. 54; Newman v. Otto, 4 Sandf. 668; Harlow v. Hamilton, 6 How. 475; Gilbert v. Rounds, 14 How. 46; Sands v. St. John, 36 Barb. 628; 23 How. 140; Oechs v. Cook, 3 Duer, 161. 8 People, ex rel. Cornell, v. Knox, 38 Hun, 236. The Answee. 225 When the answer should contain a general or specific denial. intruded iuto the office unlawfully, and call upon him to show by what authority ha claims to hold it, yet if the allegations as to his election and incapacity are in fact made, and are not denied, they will stand admitted and the incapacity of the defendant will be thereby established.^ An answer containing no general denial, but merely specific denials of parts of the complaint and an allegation that the con- tract therein set up is incorrectly stated, admits so much of the contract as is not specifically denied.- So an answer in partition which merely states, in effect, that the complaint does not state the shares and interests of the parties correctly, without adding a general or specific denial or an allegation of new matter by way of afiirmative defense, raises no issue and is a nullity. ' And gen- erally, an answer which in effect admits the plaintiff's cause of action, sets up no defense, puts in issue no material allegation in the complaint and fails to put the plaintiif, to his proof, bears upon its face the evidence of bad faith and may be adjudged frivolous on motion.* It does not always follow that because the defendant does not interpose a denial to the allegations of the complaint, there is such an admission of the cause of action therein stated as would render a judgment contrary to such admission erroneous. The answer may contain a good legal defense, which may be pleaded without denying any allegation of the complaint, such as the de- fense of usury to an ordinary complaint upon a promissory note.^ In such case it may be advisable to omit the denial, although the complaint is unverified, and by thus assuming the affirmative secure the right to open, and close at the trial. But this is not always practicable, and each case must depend upon its own pecu- liar circumstances. If the complaint in an action against the indorser of a promissory note, in addition to the usual averments of non-payment, protest and notice, alleges that the note was made by a third person payable to the order of the defendant and 1 People, ex rel. Cornell, v. Knox, 38 Hun, 336. s Levy V. Bend, 1 E. D. Smith, 169. 3 Nolan V. Skelly, 63 How. 103. * CoUis V. Alburtis, 18 Daly, 425. » See Newell v. Doty, 33 N. Y. 83. 29 226 The Answer. Form and sufficiency of general or specific denials. was by liim indorsed before maturity to the plaintiffs in payment of an indebtedness to them for goods purchased by the defendant, an answer setting up the defense of usury, without denying any allegation of the complaint, would be of no avail, as the matters admitted by the omission to deny, would conclude the parties and the court, and prohibit the defendant from proving any fact inconsistent with such admission.^ § 4. Form and siifflcieacy of general or specific denials. — The Code authorizes general or specific denials of each material allegation of the complaint controverted by the defendant,^ but does not authorize both general and specific denials of the same allegations.^ The answer may contain a specific denial of one part of the complaint, and a general denial of the residue. Such denials are not in conflict, and are not inconsistent with the theory of the Code.^ The Code does not require that general or specific denials shall be in any particular form or couched in any special phraseology ; but they must be expressed in language that conveys to the mind of the reader a clear understanding of the facts they are intended to put in issue ; and if the language used leaves this a matter of doubt and uncertainty, that construction will be adopted which is most unfavorable to the pleader.'' The common form of a general denial is that " the defendant denies each and every allegation of the complaint ; " and a denial in this form will put in issue every fact alleged in the complaint.^ Every departure from this form of general denial impairs its use- fulness as a pleading, by limiting or qualifying its general appli- cation, and introducing an element of uncertainty where certainty is required. There are, however, certain modifications of this form of denial, adopted for convenience and brevity in pleading, which, though not commended, are tolerated by the courts. Thus, ■ Pleisclimann v. Stern, 34 Hun, 365; 90 N. T. 110. 2 Code of Civil Pro., § 500. = Denuison v. Deunison, 9 How. 346; Blake v. Eldred, 18 How. 340. "■ Blake v. Eldred, 18 How. 340. ' Clark V. Dillon, 97 N. Y. 370. « Kellogg V. Churcli, 4 How. 339; Mattison v. Smiiili, 1 Rob. 706; 19 Abb. 288; Kadde v. Ruckgaber, 3 Duer, 684. The Answer. 22T Form and sufficiency of general or specific denials. aa answer containing admissions of certain facts alleged in the complaint, may conclude with a general denial " of each and every allegation of the complaint net hereinbefore specifically admitted, ""^ if the facts admitted are so clearly specified that there can be no mistake in ascertaining what is put in issue and what is not.^ It has been held in the Supreme Court of the United States, that an answer which makes certain statements and then denies every al- legation of the complaint, "except as hereinbefore stated or ad- mitted," amounted to a sufiicient general denial, under section 500 of the Code of Civil Procedure, to authorize the defendant to give evidence disproving any allegation of the complaint which was not admitted.' On tlie other hand, it has been said by our courts that a denial in this form is neither a general nor a specific denial, and is in no way provided for or sanctioned by the present sys- tem of pleading.* Probably such an answer is sufficient unless directly assailed by a motion to make it more definite and cer- tain.^ It has been held that where a defendant has admitted cer- tain allegations and specifically denied others, it is not good plead- ing to deny all other allegations not before admitted or denied.'^ iParsliall V. Tillou, 13 How. 7; Smith v. Wells, 20 How. 158; Genesee Mut. Ins. Co. V. Moynihen, 5 How. 331; Haines v. Herrick, 9 Abb. N. C. 879; Burley v. German-American Bank, 111 XJ. S. 216; Smith v. Gratz, 59 How. 274. « Haines v. Herrick, 9 Abb. X. C. 379. 3 Burley v. German-American Bank, 111 U. S. 216, citing Youngs v. Kent, 46 X. r. 673; Allis v. Leonard, 32 Alb. Law Jour. 28; 46 N. T. 688; Wheeler V. Billings, 38 X. Y. 263; Hier v. Grant, 47 X. Y. 378; Greenfield v. Massa- chusetts Mut. Life Ins. Co., 47 N. Y. 430; 'Weaver v. Bardeu, 49 X. Y. 386. ^ People V. Snyder, 41 N. T. 397, 400. See People t. Northern K. R. Co., 42N. T. 317. 'Greenfield v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430, 437. It would seem that the answer would be sufficient, even on such motion . Mingst V. Bleck, 9 Civ. Pro. R. 314; 38 Hun, 358. But the adverse party is not hound to resort to this motion for his own protection, and in case of doubt as to what is denied or admitted, the question will be decided against the pleader. Clark v. Dillon, 97 N. Y. 370. « Thierry v. Crawford, 33 Hun, 366; McEncroe v. Decker, 58 How. 250; Leary v. Boggs, 3 Civ. Pro. R. 327; Scott v. Royal Exch. Shipping Co., 5 Law Bull. 64; Potter v. Frail, 67 How. 445; Luce v. Alexander, 17 Week. Dig. 538; Miller v. McClosky, 1 Civ. Pro. R. 253; 9 Abb. N. C. 303. 228 Thk Answer. Form and sufficiency of general or specific denials. But it is now authoritatively settled, that a denial of " each and every allegation of the complaint not hereinabove admitted or controverted," is a good general denial, when that which is before admitted or controverted is clearly specified, and there is no doubt or confusion as to the application of the denial' A denial of each and every allegation of the complaint "not hereinbefore admitted or explained," or "not before admitted, qualified or explained," has been held sufficient to put in issue all the allegations of the complaint not embraced in the exception.^ But an answer denying " each and every material allegation of the complaint,"' or denying " each and every material allegation of the complaint, contrary to or inconsistent with any of the alle- gations in the foregoing answers, not heretofore admitted, ignored or denied,"* is too indefinite, and may be made more definite and certain on motion. A denial of all the allegations of the complaint contained within- certain specified folios, may be sufficient as a general denial to raise an issue for trial,^ but this method of denial, however con- venient and easy in the first instance, serves no useful purpose on appeal, where the folios of the pleadings are not reproduced in the case, and is not in conformity with the spirit of the Code, which requires pleadings to be made out "in words at length, and not abbreviated."" Where a defendant has no personal knowledge as to the truth of the facts alleged in the complaint, but has information suffi- cient to induce him to believe that the allegations are not true, he 1 Griffin v. Long Island E. R. Co., 101 N. Y. 348. ' Crane v. Crane, 43 Hun, 309; Calhoun v. Hallen, 25 Hun, 155. See Clark V. Dillon, 97 N. Y. 870. 3 Mattison v. Smith, 1 Rob. 706; 19 Abb. 288. " Hammond v. Earle, 5 Abb. N. C. 105. ' Gassett v. Crocker, 9 Abb. 39. * Caulkins v. Bolton, 98 N. Y. 511. A denial of every thing between cer- tain specified words and folios of the complaint, is not in compliance with a statute requiring a general or specific denial of each material allegation of the complaint. Collins v. Singer Manuf. Co., 53 Wis. 305; Baylis v. Stimson, HON. Y. 626. The Answee. 229 Form and sufficiency of general or specific denials. may deny such facts upon information and belief,^ at least where his answer is verilied.^ It has been held in a number of cases that a statement in the answer that the defendant "says that he denies each and every allegation of the complaint " is not a denial or equivalent to a denial of the facts stated in the complaint.^ But while this form of denial is not to be commended, it seems that it is permissible.* A denial amounting to a negative pregnant is an admission of the allegation in refei'ence to which it is made.'' Thus, under a denial "that the plaintiff sawed and converted logs into boards for the defendant on the days, and at the times, or in the manner mentioned in the complaint " the plaintiff would be entitled to judgment.* So an answer in an action for slander is bad which alleges that the defendant did not utter the words at the time or in the particular place and manner stated in the complaint.'^ So a denial that the defendant made his promissory note as it is set out in the complaint, is a bad pleading under all systems of plead- .ing, as it merely denies the making of the note under all the circumstances of time, place and form, stated in the complaint, and leaves it uncertain whether a material or immaterial issue 1 Wood V. Eaydure, 39 Hun, 144; Macauley v. Bromell, 14 Abb. N. C. 316; 67 How. 253; Ledgerwood Manuf. Co. v. Baird, 14 Abb. N. C. 318; Stent v. Continental Nat. Bank, 5 Abb. N. C. 88; Metraz v. Pearsall, 5 Abb. N. C. 90; Brotherton v. Downey, 31 Hun, 436; 59 How. 306; Musgrove v. The Mayor, etc., 19 Jones & Sp. 538; Henderson v. Manning, 5 Civ. Pro. R. 331; Maclay v. Sands, 94 U. S. 586; People v. Curtis, 1 Idaho (N. S.), 753; Jones v. City of Petaluma, 36 Cal. 230. Contra, Pratt Manuf. Co. v. Jordan Iron & Chemical Co., 33 Hun, 143, 544; Swinburne v. Stockwell, 58 How. 313; Powers v. Rome, etc., R. R. Co., 3 Hun, 385. Such a denial is good except in those cases in which the defendant is conclusively presumed to bave positive I^nowledge. Stacy V. Bennett, 59 Wis. 334. - Bennett v. Leeds Manuf. Co., 110 N. Y. 150; Wilson v. Doran, 110 N. T. 101, 105. 3 Arthur v. Brooks, 14 Barb. 533; Powers v. Rome, Watertown & Ogdens- burgh R. R. Co., 3 Hun, 385; Blake v. Eldred, 18 How. 240; People v. Chris- topher, 4 Hun, 805. " Chapman v. Chapman, 34 How. 381; Jones v. Ludlum, 74 N. Y. 61. ' Lawrence v. Cabot, 9 Jones & Sp. 133. '• Davison v. Powell, 16 How. 467. ' Salinger v. Lusk, 7 How. 430. 230 The Answeb. Denials of knowledge or information sufficient to form a belief. was intended to be presented.' The denial should be in the dis- junctive form,^ should be direct and unambiguous, and answer the substance of each direct charge intended to be controverted.^ An evasive denial makes a bad answer.* A denial which is not a general denial must be specific and point out the issue.^ But the mere form of denials is not ma- terial if they meet and traverse the allegations of the complaint.* § 5. Denials of knowledge or information sufficient to form a belief. — Where a defendant has positive personal knowledge of the falsity of a material allegation of the complaint, he may put the same in issue by a positive unqualified denial ; where he has no positive knowledge, but has knowledge or information upon which he has founded a belief, he may put the plaintiff to his proofs by a denial upon information and belief ; but if he has no knowledge or information upon which he can afiirm or deny the facts alleged, or if he has some information but not such as to create a belief as to the existence or non-existence of the facts alleged, or whether the assertions made are true or untrue, he may put the plaiutiif to his proof by denying any information sufficient to form a belief as to the existence of the alleged facts.^ A denial of any knowledge or information sufiicient to form a belief as to a material allegation or as to all the allegations of a complaint forms a complete issue.^ ' Shearman v. New York Central Mills, 1 Abb. 187. ' Shearman v. New York Central Mills, 1 Abb. 187; Hopkins v. Everett, 6 How. 159; Young v. Catlett, 6 Duer, 437; Livingston v. Hammer, 7 Bosw. 670; Pulleu V. Wright, 34 Minn. 314. 3 Hanson v. Lehman, 18 Neb. 564. « James v. McPhee, 9 Col. 486; Hale v. Swinburne, 66 How. 387; Norris v, Glenn, 1 Idaho (N. S.), 590. 6 Miller v. McCloskey, 9 Abb. N. C. 303. « Morrison v. O'Reilly, 3 Utah, 165. ' See Bennett v. Leeds Manuf. Co., 110 N. Y. 150; Brotherton v. Downey, 31 Hun, 436; Code of Civil Pro., §§ 500, 964. ' Ritcher v. McMurray, 15 Abb. 346; Livingston v. Hammer, 7 Bosw. 670; Snyder v. White, 6 How. 331; Genesee Mut. Ins. Co. v. Moynihen, 5 How. 331; Robert Gere Bank v. lumau, 51 Hun, 97; Grocers' Bank v. O'Rorke, 6 Hun, 18; Roby v. Hallock, 55 How. 413; 5 Abb. N. C. 86; Sherman v. Bush- nell, 7 How. 171. The Answee. 231 What may be shown under a general denial. This denial usually takes the form of an allegation that the de- fendant has not sufficient knowledge or information to form a belief with respect to the allegation or allegations controverted, and it is not necessary to add a denial of the truth of the matter so put in issue.' The addition of matter, which in no way detracts from the force of the denial, will not render the pleading in- efEectual;^ but the omission of any material part of, the statu- tory formula will have that effect. It is not enough to allege a want of sufficient information to form a belief without also alleg- ing a want of knowledge f and it is not enough to allege a want of knowledge without also alleging a want of information.* An answer which admits certain allegations of the complaint, and then states that the defendant denies all the other allegations of the complaint, " either upon his own knowledge, or as not having any knowledge or information thereof sufficient to form a belief in respect to the same," is insufficient as not distinguishing the allega- tions denied upon knowledge from those denied from want of knowledge or information .° § 6. What may be shown under a general denial. — It is always competent to prove under a general denial any fact tend- ing to controvert the material affirmative allegations of the com- plaint.^ Thus, while it is generally true that a defense of pa}'- ment is inadmissible under a general denial, this is not so when the fact of non-payment is alleged in the complaint as a necessary and material fact to constitute a cause of action.' And it may be 'Flood T. Reynolds, 13 How. 113. 'See Meehan v. Harlem Savings Bank, 5 Hun, 439. 3 Lloyd V. Burns, 6 Jones & Sp. 433; 63 N. Y. 651; Elton v. Markham, 20 Barb. 843. < Edwards v. Lent, 8 How. 28; Heye v. Belles, 33 How. 266; 3 Daly, 231; People v. McCumber, 15 How. 186, 189; Claflin v. Reese, 54 Iowa, 544. ' Sheldon v. Sabin, 12 Daly, 84. 6 Knapp v. Roche, 94 N. Y. 829; Quin v. Lloyd, 41 N. Y. 349; Robinson v. Frost, 14 Barb. 536; McKyriug v. Bull, 16 N. Y. 29V, Wheeler v. Billings, 38 N. Y. 263; Weaver v. Barden, 49 N. Y. 286; Griffin v. Long Island R. R. Co., 101 N". Y. 348. ' Quin V. Lloyd, 41 N. Y. 349; Knapp v. Roche, 94 N. Y. 339; State v. Roche, 94 Ind. 873; McElwee v. Hutchinson, 10 S. C. 486. 232 The Answee. What may be shown under a general denial. stated generally that under a general denial the defendant is en- . titled to disprove any fact which the plaintiff must prove to main- tain his action.' A general denial, like the general issue under the former practice, puts in issue the existence at any time of the cause of action alleged in the complaint, and admits of evidence tending to establish such defense.^ If a cause of action has once accrued or existed, and has been satisfied or defeated by some- thing which has accrued subsequently, that is new matter which must be pleaded in order to render it competent as evidence.^ Under a general denial the defendant may show want of con- sideration ;* that the action was prematurely brought ;'' that the contract in suit has been altered since its execution f that no valid contract has ever been entered into between the parties, and that the contract sued on was void as against public policy.^ In an action for goods sold and delivered, which are claimed to have been purchased by the defendant's agent, the defendant may show, under a general denial, a revocation of the agent' s authority and notice thereof to the plaintiff, prior to the sale f or that the defendant had contracted to deliver a certain amount of merchan- dise and had delivered only a part f or that the defendant dealt with the plaintiff as agent for a disclosed pi-incipal to whom the credit was given.'" Under a general denial in an action upon an account stated the defendant may give evidence which would show that there was 1 Greenfield v. Massachusetts Mat. Life Ins. Co., 47 N. T. 430; Wheeler v. Billings, 38 N. T. 268; O'Brien v. McCann, 5S N. Y. 373; Weaver v. Barden, 49 N. Y. 386; Lyles v. BoUes, 8 S. C. 258; Schaus v. Manhattan Gas Co., 4 Jones & Sp. 262; Ontario Bank v. New Jersey Steamboat Co., 59 N". Y. 510; Andrews v. Bond, 16 Barb. 633; ClifEord v. Dam, 81 N. Y. 53, 57; Griffin v. Long Island R. R. Co., 101 N. Y. 348, 354; Robinson t. Frost, 14 Barb. 536. 2 Evans v. Williams, 60 Barb. 346; Hofiman v. Parry, 23 Mo. App. 20. - Evans v. Williams, 60 Barb. 346; Weaver v. Barden, 49 N. Y. 286. ^ Evans v. Williams, 60 Barb. 346. ' Mack V. Burt, 5 Hun, 28. •Schwarz v. Oppold, 74 N. Y. 307; Boomer v. Koon, 6 Hun, 645. i Cary v. Western Union Tel. Co., 47 Hun, 610; Oscauyau v. Winchester Repeating Arms Co., 103 U. S. 361. 8Hier v. Grant, 47 N. Y. 278. 'Manning v. Winter, 7 Hun, 482. "Merritt v. Briggs, 57 N. Y. 651. The Answee. 233 What may be shown under a general denial. actually no account between him and the plaintiff, that he had no dealings with him, and that no account had been stated.'^ A general denial in an action of ejectment is substantially a denial that the defendant is guilty of unlawfully withholding the premises as alleged in the complaint, and under it the defendant may prove any matter which would defeat the action.^ Under this answer the defendant may show title out of the plaintiff at the time of the commencement of the action.' So in an action of replevin based solely upon a wrongful detention, a general denial puts in issue both the wi-ongf ul detention and the plaintiff's prop- erty in the chattel, and under such plea the defendant may show title in a stranger although he does not connect himself with such title.* But this rule will not enable one who has taken property from the actual possession of another to justify the taking by the allegation and proof of title in a third person with which he does not connect himself.^ In an action for conversion a general denial puts in issue not only the conversion but the plaintiff's title, and under it the de- fendant may show that the plaintiff had no title '^ witliout any affirmative allegation of title in himself.'' But putting the plain- tiff's title in issue may not place the defendant in position to meet the case made by the plaintiff on the trial ; for although the plain- tiff may allege both title and possession of the property which he alleges that the defendant has wrongfully taken, he may recover on proof of possession alone as against any person but the true owner or one connecting himself with the title of the true owner ; and, therefore, unless the defendant can show title in himself, he should allege both title in a third person and the facts necessary to connect himself with that title.* Where for the purpose of > Field V. Knapp, 108 N. Y. 87. 2 Gillman v. Gillman, 111 N. Y. 265. ^ Raynor v. Timerson, 46 Barb. 518. ■• Griffin V. Long Island R. R. Co. , 101 N. Y. 348. See Code of Civil Pro. , § 1723. 5 Griffin v. Long Island R. R, Co., 101 N. Y. 348; Gerber v. Monie, 56 Barb. 652; Stowell v. Otis, 71 N. Y. 36. But see Code of Civil Pro., § 1723. « Robinson v. Frost, 14 Barb. 536. ' Brevoort v. Brevoort, 8 Jones & Sp. 211. *Klinger v. Bondy, 36 Hun, 601; Stowell v. Otis, 71 N. Y. 36; Gerber v. Monie, 56 Barb. 653. 30 234 The Answer. What may be shown under a general denial. establishing a conversion the plaintiff has proved a demand of the property of the defendant and a failure to deliver it, the defendant under his general denial may show an excuse for his failure to deliver the property on demand and thus repel any inference of a conversion deducible from the demand and refusal.^ A general denial in an action for conversion also puts in issue the amount of the plaintiff's damages, and under it the defendant may prove any fact affecting the value of the property converted;^ This principle applies to all actions of tort in which an allega- tion of damage is necessary to a statement of a cause of action, and in such actions, a defendant under a general denial may prove any fact tending to show that the plaintiff has not been damaged to the extent claimed by him.^ In an action for slander the defendant may prove the bad character of the plaintiff under a general denial ; ■* and in an action for seduction the defendant may prove any fact tending to diminish or reduce the actual damages claimed, and may show under his general denial that he was not the first to have connection with the seduced.* In an action for an unlawful seizure of goods the defendant may show under a general denial that the goods seized did not belong to the plaintiff, but cannot show that the plaintiff's title was void because of fraud in the purchase,^ or because the judgments were fraudulent under which the plaintiff claims title.'^ And in an action of trespass for the unlawful taking and conversion of chat- tels, if it appears that the plaintiff was in actual possession of the property at the time of the taking, it is no defense that the title was in a third person unless the defendant connects himself with that title, and the defendant cannot show these facts under a general denial.' ' Ontario Bank v. New Jersey Steamboat Co., 59 N. Y. 510. 2 Tliompson v. Halbert, 109 N. Y. 829; Booth v. Powers, 56 N. Y. 33. 3 Knapp V. Roche, 94 N. Y. 339; Hun v. Van Dyck, 26 Hun, 567; 92 N. T. 660; Osburn v. Lovell, 36 Mich. 346. ■■ Anonymous, 8 How. 484. Contra, Anonymous, 6 How. 160. 5 Wandell t. Edwards, 25 Hun, 498. » Willis V. Hudson, 63 Texas, 678. ■> Klinger v. Bondy, 86 Hun, 601. 8 Wheeler v. Lawson, 103 N. Y. 40. The Answee. 235 Defenses whicla must be pleaded to be available. There are statutes which have enlarged the scope of a general denial and permit a defendant in the cases therein specified to prove facts thereunder, that but for the statute could not be intro- duced in evidence unless formally pleaded. These exceptions to the general rules of pleading are generally to be found in statutes incorporating cities and villages and need not here be specially noticed. § Y. Defenses which must he pleaded to be available. — A defense which confesses and avoids the cause of action cannot be given in evidence under an answer containing simply a gen- eral denial of the allegations of the complaint. Such defenses must be pleaded to authorize evidence thereof to be given on the trial.^ This rale applies equally to answers by infants and adults.^ The cases are uniform that under a general denial the defendant cannot prove a defense founded upon new matter.^ A defendant who relies upon payment as a defense must plead it,* even though the complaint alleges non-payment,^ unless such allegation is necessary and material to the statement of a cause of action.'^ If the action is for the conversion of a promissory note the defendant may show, under a general denial, in reduc- tion of damages, the payment of the note in whole or in part.' The defense of a former suit pending, to be available, must be pleaded." The defendant must also plead the defense of the statute of limi- tations,' unless in a case where the commencement of an action within the time limited is a necessary and material allegation to sup- ' McKyring v. Bull, 16 N. Y. 397. » Roe V. Angevine, 7 Hun, 679. 'Weaver V. Barden, 49 N. Y. 286; Seymour v. McKinstry, 106 X. Y. 230, 242; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429; Eapalee v. Stewart, 27 N. Y. 310; Beaty v. Swarthout, 32 Barb. 293. * MoKyring v. Bull, 16 N. Y. 297; Texier v. Gonin, 5 Duer, 389, 392. ' Bassett v. Lederer, 1 Hun, 274. « Knapp v. Rocbe, 94 N. Y. 329; Quin v. Lloyd, 41 N. Y. 849. ' See Booth v. Powers, 56 N. Y. 22; Thompson v. Halbert, 109 N. Y. 329. « Hollister v. Stewart, 111 N. Y. 645. 9 Code of Civil Pro., § 413; Williams v. Willis, 15 Abb. (N. S.) 11; Clinton V. Eddy, 54 Barb. 54; 37 How. 23; Dezengremel v. Dezengremel, 24 Hun, 457; Sands v. St. John, 36 Barb. 628; 23 How. 140; Bihin v. Bihin, 17 Abb. 19. 2.36 The Answer. Defenses which must be pleaded to be available. port the plaintiff's cause of action.^ In an action of ejectment the defense of adverse possession must be pleaded, and cannot be shown under a general denial.^ In an action brought by or against a corporation the plaintiff need not prove upon the trial the existence of the corporation, unless the answer is verified, and contains an allegation that the plaintiff or the defendant, as the case may be, is not a corporation.^ A mistake in the statement of the corporate name is waived by not pleading it.* That the plaintiff is a married woman and has not capacity to sue, must be pleaded,^ and also the defense that there is a defect of parties plaintiff.^ In an action brought by or against school, town, or county officers up.der section 1926 or section 1927 of the Code of Civil Procedure, an objection growing out of an omission to join any officer who ought to be joined with the others must be taken by answer or it will be waived.' So the want of jurisdiction of a superior city court by reason of the non-existence of any of the facts specified in section 263 of the Code of Civil Procedure must be pleaded to be available as a defense.® A defendant cannot avail himself of the statute of frauds as a defense to an agreement set out in the complaint unless he has pleaded it,' except where the complaint on its face discloses a case within the statute.-"' Where an action is brought upon a sealed instrument, a defense ' Selover v. Coe, 63 N. Y. 438. 'Hansee v. Mead, 27 Hun, 162; Raynor v. Timerson, 46 Barb. 518; Crowley V. Eoyal Excb. Ship. Co., 2 Civ. Pro. R. 174. Contra, Hill v. Bailey, 8 Mo. App. 85. 3 Code of Civil Pro., § 1776; Beugtson v. Thingvalla Steamship Co., 8 Civ. Pro. R. 263; Bank of Genesee v. Patchin Bank, 13 N. Y. 809. See Deitrichs v. Lincoln & North Western R. R.Co.,18 Neb. 43; Beatty v. Bartholomew County Agricultural Society, 76 Ind. 91; Wiles v. Phillippi Church Trustees, 63 lud. 206; Nat. Life Ins. Co. v. Robinson, 8 Neb. 452. But see Howe Machine Co. V. Robinson, 7 Daly, 899. <■ Code of Civil Pro., § 1777. ' Dillaye v. Parke, 31 Barb. 132; Castree v. Gavelle, 4 E. D. Smith, 425. « Abbe v. Clark, 31 Barb. 238. ' Code of Civil Pro., § 1929. 8 Code of Civil Pro., § 266; Popfinger v. Yutte, 102 N. Y. 38. ' Myers v. Dorman, 34 Hun, 115. " Porter V. Wormser, 94 N. Y. 431, 450. The Answee. 237 Defenses -whicli must be pleaded to be available. of failure of consideration must be pleaded and cannot be proven under a general denial.^ The same rule applies to an action upon a promissory note.^ In an action brought by a broker to recover his commissions from one of his principals the defense that the plaintiff acted in a double capacity of agent for the seller and agent for the pur- chaser without the knowledge of the defendant cannot be proven on the trial unless it is pleaded.^ To entitle a defendant to insist upon an award upon the cause of action as a bar, he must allege it as such in his answer, even though the fact of the award appears from the plaintiff's evi- dence.* Upon the same principle, a judgment in favor of the defendant in an action involving the same issues cannot be put in evidence as a bar to the action or as an estoppel unless it is pleaded as a defense, but may be received as evidence of a fact in issue though not pleaded.' In an action by a vendor to enforce his lien as against a mort- gage executed by the vendee, the plaintiff need not allege that he has not waived his lien or that the defendant took with notice, but the waiver or want of notice must be set up in the answer and proved as a defense.^ The defense of usury must be pleaded if relied on to defeat the plaintiff's recovery.^ In an action on a policy of insurance, the defense that it was a wager policy,' or that there was a breach of warranty^ should be ■ Dubois V. Hermanoe, 56 N. Y. 673. The defendant should show whether his defense is a total or partial failure of consideration. Clough v. Murray, 19 Abb. 97. - Eldridge v. Mather, 2 N. T. 157. ' See Duryee v. Lester, 75 N. Y. 442; New York Cent. Ins. Co. v. Nat. Pro- tection Ins. Co., 20 Barb. 468. * Brazill v. Isham, 12 N. Y. 9. - Krekeler v. Ritter, 62 N. Y. 374. * Seymour v. McKinstry, 106 N. Y. 280. ' Mechanics' Bank of Williamsburgh v. Foster, 44 Barb. 87; 29 How. 408; 19 Abb. 47; Haywood v. Jones, 10 Hun, 500; Fay v. Grimsteed, 10 Barb. 331; Gould V. Horner, 13 Barb. 601; Watson v. Bailey, 3 Duer, 509; Scott v. John- son, 5 Bosw. 313, 224. « Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y. 480; Valton v. Nat. Fund Life Ass. Co., 20 N. Y. 82. ' Boos V. World Mut. Life Ins. Co., 4 Hun, 133; 64 N. Y. 336. 238 The A:sswek. Equitable defenses. pleaded ; and if the defense of false statements in the application is relied on, the defendant should state particularly the violation which is set up as a defense.' To entitle a defendant to claim the act of God as an excuse for the non-performance of a contract, he must plead it as an affirmar tive defense.^ A license from the plaintiff, relied on as a justifi- cation for the taking of the plaintiff's property, must be alleged to authorize evidence of it on the trial.^ The same rule applies to a license to enter the house of another in an action for trespass on lands.^ So in an action for slander circumstances in mitigation must be pleaded to be admissible in evidence.' It seems to be settled by a very general concurrence of author- ity, that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists unless he pleads that defense in his answer,^ except where the defense arises upon the facts stated in the complaint. In such case it may be doubted whether it is necessary to allege the existence of the legal remedy.^ The defense of a failure to perform a condition precedent is not available unless set up in the answer.' Estoppels hi pais need not be pleaded.' § 8. Equitable defenses. — A defendant may set forth in his answer as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or 1 Studwell V. Charter Oak Life Ins. Co., 17 Hun, 603. - New Haven & Northampton Co. v. Quintard, 1 Sweeny, 89; 37 How. 29; 6 Abb. (N. S.) 138. 3 Beaty v. Swarthout, 33 Barb. 393. - Haight V. Badgeley, 15 Barb. 499. » WiUover v. Hill, 73 N. Y. 36. <■ Town of Mentz v. Cook, 108 N. Y. 504; Grandin v. Le Roy, 3 Paige, 509; Le Roy v. Piatt, 4 Paige, 77; Truscott v. King, 6 N. Y. 147: Cox v. James, 45 N. Y. 557; Green v. Milbauk, 3 Abb. N. C. 138; Pano v. Vilmar, 54 How. 335; Bell V. Spotts, 8 Jones & Sp. 553. ■■ Wheelock v. Noonan, 108 N. Y. 179; DeBussierre v. Holladay, 4 Abb. N. C. Ill; 55 How. 210. 8 Kirtz V. Peck, 113 N. Y. 333. 9 Rogers v. King, 66 Barb. 495. The Answeb. 239 Equitable defenses. equitable;' and under the present system of pleading and pro- cedure, a defendant in an action to enforce a strictly legal right may interpose a defense purely equitable.^ Under the head of equitable defenses are included all matters which would have authorized an application to the late Court of Chancery for relief against a legal liability, but which at law could not be pleaded in bar.' Thus, a defendant in an action upon a judgment may allege and prove as a defense that the judgment was obtained by fraud,"" and for that purpose may allege any fact which clearly shows it to be against conscience to exe- cute the judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident un- mixed with any fault or negligence in himself or his agents. The defendant in an action upon a judgment may set up by way of defense that the summons in the action in which the judgment was recovered was never served upon him and that he did not appear therein.^ In an action of ejectment founded upon the legal title held by the plaintiff, the defendant may allege and prove that he is equitably the owner of the premises and entitled to a conveyance thereof;^ or he may set up that the land in ques- tion was intended to be conveyed to him by a deed from the plaintiff, but by a mistake in the description was not included/ So a vendee in possession of lands under a contract of sale may assert the same equitable rights in an action of ejectment brought by the vendor as he could if he were a party to an action for the specific performance of the contract; and if the plaintiff is ' Code of Civil Pro., §507. ^ Dederick v. Hoysradt, 4 How. 350; Foot v. Sprague 12 How. 355; Hunt v. Farmers' Loan & Trust Co., 8 How. 416; Hiuman v. Judson, 13 Barb. 639; Sheeban v. Hamilton, 8 Keyes, 804; Webster v. Bond, 9 Hun, 437; Auburn City Bank v. Leonard, 20 How. 193. 3 Dobson V. Pearce, 12 N. Y. 156; Maudeville v. Reynolds, 68 N. Y. 528, 545; Sbeeban v. Hamilton, 2 Keyes, 304. * Dobson V. Pearce, 13 N. Y. 156. ' Ferguson v. Crawford, 70 N. Y. 258. « Crary v. Gorbam, 12 N. Y. 266; Lamont v. Chesliire, 65 N. Y. 30, 42; Tburmau v. Anderson, 30 Barb. 621; Dodge v. Wellman, 1 Abb. Ct. App. Dec. 512; 43 How. 427; Carpenter v. Ottley, 3 Lans. 451. ' Hoppougb V. Struble, 60 N. Y. 480. 240 The Answer. Equitable defenses. indebted to him upon an independent liquidated claim, to an amount sufficient to balance the unpaid purchase-money, he can set up such indebtedness and ask to have it applied in payment, and for a specific performance on the part of the vendor.* So in an action to recover damages for a breach of covenant against incumbrances, the defendant may show by way of defense that the incumbrance referred to was by mistake omitted to be ex- cepted from its operation.^ In an action to recover damages for a breach of contract the defendant may interpose the equitable defense or counterclaim that by mutual mistake the contract failed to embody an agreement that the plaintiff should assume the risk of a certain contingency, the happening of which pre- vented the performance of the contract, and may ask for a re- formation of the contract accordingly.^ The defense that a deed, absolute upon its face, was in fact intended as a mortgage, is available in any action.' In an action of ejectment the defendant may set up an equitable defense to the effect that the plaintiff's grantor in the deed upon which he relies to show title, held such title as a mere security for a debt which has long been paid.^ The defendant may also allege an equitable right in a third person, under whom he claims, to the possession of the property, and this, if established, will constitute a complete equitable defense to the action.* An equitable defense is equally as effectual as a legal one.^ And not only may a defendant avail himself of it in all classes of actions, but ordinarily must resort to it for the protection of his rights. A separate action can no longer be maintained to restrain, by injunction, the proceedings in another suit, in the same or an- other court, between the same parties, where the relief sought in ' Cavalli v. Allen, f)7 N. T. 508. And see Cytlie v. La Fountain, 51 Barb. 186; Traphagen v. Traphagen, 40 Barb. 537. ' Haire v. Baker, 5 N. Y. 357. 3 Pitcher v. Hennessey, 48 N. T. 415. * Despard v. Walbridge, 15 N". Y. 374. ' Webster v. Bond, 9 Hun, 437. « Saiford v. Hynds, 39 Barb. 635. ' Webster v. Bond, 9 Hun, 437; Auburn City Bank v. Leonard, 20 How. 193. The Answer. 2il Pleas in abatement and pleas in bar. the latter suit may be obtained by a proper defense to the former one.' By putting in an equitable defense, the defendant does not eon- vert a legal action into an equitable one, or change the plaintiff's right to have his legal rights determined in a legal forum. The Code simply allows an equitable defense to be set up in a legal ac- tion, to the same effect as if it were a strict legal defense.^ § 9. Pleas in abatement and pleas in bar. — - What was knowa under the old practice as a plea in abatement went to some defect or error which merely defeated the present proceeding, but did not show that the plaintiff was forever concluded from maintain- ing the action. Pleas in abatement were called dilatory pleas, be- cause they delayed the plaintiff, and prostrated or demolished the particular writ or bill, but did not show that the plaintiff had no cause of action. A plea in bar went to the merits of the case, and denied that the plaintiff had any cause of action, present or future, or, admitting that he once had a cause of action, insisted that it had been determined by some subsequent matter.^ Under the old practice, a plea in abatement could not be joined in the same answer with a plea in bar, and if the defendant pleaded in bar to the action, he could not afterward plead in abate- ment, xmless for new matter arising after the commencement of the suit, and if he pleaded in abatement and failed in sustaining the plea, final judgment was given against him.* AU this has been changed by the Code. That act contemplates but one answer, which shall embrace matter in abatement as well as matter in bar,-'' and the defendant may now unite matter in 1 Sheelian v. Hamilton, 2 Keyes, 304; Auburn City Bank v. Leonard, 20 How. 193; Winfield v. Bacon, 24 Barb. 1.54; Savage v. Allen, 54 N. Y. 458; Mandeville v. Reynolds, 68 N. T. 528, 546. ' Webster v. Bond, 9 Hun, 437. 3 1 Chitt. PL 445, 446, 469; Maybew v. Robinson, 10 How. 162, 165. ^ Haigbt V. Holley, 3 Wend. 258; McCartee v. Chambers, 6 Wend. 649. Tbe distinction between pleas in abatement and in bar is no longer observed in many States. See Grider v. Apperson, 32 Ark. 332. ' Mayhew v. Robinson, 10 How. 164; Colin v. Leliman, 93 Mo. 574. 31 242 The Answer. Pleas in abatement and pleas in bar. abatement and matter in bar, and have both tried and determined at the same time.' When a plea in abatement was interposed as a sole defense, it concluded with a prayer that the writ be quashed, or that the ac- tion or suit abate. This is no longer necessary, as the Code does not require that the answer shall contain any prayer for any par- ticular relief demanded by the defendant, unless a counterclaim is set up, and if such prayer is added, it is simply surplusage.^ The only inconvenience arising from the joinder of a plea in abatement with a plea in bar is the uncertainty as to what was actually determined where the wliole case has been submitted to a jury, and a general verdict rendered. This is obviated by a di- rection to the jury to find separately upon the several defenses.^ In one respect the Code discriminates between pleas in abate- ment and pleas in bar. An answer involving the merits need not be verified unless the complaint is verified ; but the Code pro- hibits a defendant from pleading a defense which does not involve the merits unless it is verified as prescribed by that act.^ Such a defense when unverified may be treated as a nullity by the plain- tiil, provided he gives notice to the defendant's attorney with due diligence that he elects so to do.^ Dilatory pleas are not favored by the courts and must be strictly pleaded,* although the courts will not enforce a mere technical rule in all its strictness where there has been a substantial com- pliance with the rule and the adverse party could not have been misled. Thus, although the strict rule of pleading may require a direct allegation that a person is living, or was living at the time the action was commenced, yet, if facts are alleged which imply the existence of such person, and which are not consistent with his death, it will be held sufiicient.'' Under the old practice a de- ' Sweet V. Tuttle, 14 N. T. 465; Dawley v. Brown, 9 Hun, 461; Traver v. Eighth Ave. R. R. Co., 3 Keyes, 497; Hamburger v. Baker, 35 Hun, 455; Gardner v. Clark, 31 N. Y. 399; Mayhew v. Robinson, 10 How. 163; Little v. Harrington, 71 Mo. 390. ' Dawley v. Brown, 9 Hun, 461. s Gardner v. Clark, 21 N. Y. 399. ■• Code of Civil Pro. , § 513. ' Code of Civil Pro. , § 538. « Wright V. Wright, 54 N. Y. 437. ' See Prosser v. Matthiessen, 36 Hun, 527; 63 How. 157; Taylor v. Richards, 9 Bosw. 676. The Answer. 243 Defense on non- joinder of parties. fend ant interposing a plea in abatement was required not only to point out specifically the error or defect of which, he complained, but also to show the plaintiff how the defect might be corrected, or in technical language, to give the plaintiff a better writ.' The same strictness is still required,^ and a plea in " abatement which does not give the plaintiff a better writ, is bad.' Among the defenses which under the old system of pleading could be made available only by plea in abatement, and which under the present system must be pleaded as a defense, is the de- fense of the non-joinder of a party plaintiff or defendant ;* mis- nomer f the pendency of another action f and the like. A defense which does not suggest any infirmity in the plaintiff's right, but rather of remedy or a disability to bring the suit in the form adopted, is regarded as dilatory merely, and must be strictly pleaded.' But an allegation that as to some of the plaintiffs the action ought to abate for the reason that they have no interest, is not a statement of matter -which is the subject of a plea in abate- ment, but which goes to the merits.^ § 10. Defense of non -joinder of parties. — The objection that there is a defect of parties, plaintiff or defendant, must be taken by demurrer, if the defect appears on the face of the complaint, or by answer if it does not so appear. If the objection is neither taken by demurrer nor by answer, it is waived.^ The non-joinder of a person jointly liable with the defendant may be set up by answer, and if pleaded and proved, will be a perfect defense.'" So where there is a non-joinder of parties plain- 'ICWtt. PI. 463. ' White V. Miller, 7 Hun, 427; Wigand v. Sichel, 3 Keyes, 120; 33 How. 174. 3 East V. Cain, 49 Mich. 473. ^ Sweet V. Tuttle, 14 N. Y. 468. '^Traver v. Eighth Ave. R. R. Co., 3 Keyes, 497. When pleaded in abate- ment it should give the plaintiff a better writ by an allegation of the correct name. White v. Miller, 7 Hun, 437. ^Sullings V. Goodyear, etc., Co., 36 Mich. 313; Gardner v. Clark, 21 N. Y. 399; Porter v. Kingsbury, 77 N. Y. 164; Owens v. Loomis, 19 Hun, 606. ' Wright V. Wright, 54 N. Y. 437. 'Momingstar v. Cunningham, 110 Ind. 328. ^Ante, p. 121. 10 Mason V. Wells, 2 Hun, 518; Wooster v. Chamberlain, 28 Barb. 602; Sweet v. Tuttle, 14 N. Y. 468. 24:4 The Answer. Defense of uou-joinder of parties. tiff, and the defect is not disclosed by the complaint, the objection may be taken by answer and must be so taken to be available.* But where the action is brought by one of several tenants in com- mon, and the defendant neglects to avail himself of the non-join- der by a plea in abatement, he may still give evidence of the non- joinder on the trial in reduction of damages.^ The defense of the non-joinder of a dormant partner as co-de- fendant cannot be pleaded in abatement,^ where the plaintiff had no notice of the partnership relation at the time of the transac- tion.* Under the old practice, a defect of parties defendant was a matter which could be pleaded in abatement only and which could not be joined with a plea in bar. Under the present prac- tice this distinction is abolished, and the defect of parties may be set up in the answer alone, or joined with other defenses. But the answer, now as formerly, should state precisely the persons who should be made parties, giving their names if known; and to sustain the defense it must appear that there is neither greater nor a less number of parties than is set up in the answer.' To be in strict conformity to the technical rule of pleading a non- joinder of parties, the answer should allege that the person not joined is still living" and within the reach of the ordinary process of thecourt.^ But a direct allegation to that effect does not seem to be essential under the decisions of this State,^ though it has been required in some cases.^ The object of a plea of abatement when founded upon a defect of parties plaintiff is to give a better writ and so protect the de- fendant by a correct judgment. But if before the judgment is 1 Dickenson v. Vanderpoel, 2 Han, 626. 'Zabrisliie v. Smitli, 13 N. Y. 322, 337; Abbe v. Clark, 31 Barb. 238. sPinschower v. Hanlcs, 18 Nev. 99. ■■ Cookingham v. Lasher, 2 Keyes, 454; Qoggin v. O'Donnell, 62 111. 66. 5 Fowler v. Kennedy, 2 Abb. 851; Maxwell v. Pratt, 24 Hun, 448; Wigand V. Sichel, 3 Keyes, 120; 83 How. 174; NicoU v. Fash, 59 Barb. 375, 287. « Belden v. Curtis, 48 Conn. 32; Reynolds v. Hurst, 18 W. Va. 648; Furbish V. Robertson, 67 Me. 35; Levi v. Haverstick, 51 Ind. 236. ■ LefEerts v. Silsby, 54 How. 193. 8 Prosser v. Matthiessen, 26 Hun, 537; 63 How. 157; Woosterv. Chamberlin, 28 Barb. 602; Taylor v. Richards, 9 Bosw. 676. 9 Strong V. Sproul, 4 Daly, 326; LefEerts v. Silsby, 54 How. 193. The Answer. 245 Plea of a former action pending — Plea of former judgment. rendered, the one who ought to have been joined is dead, and the named plaintifPs fully own and represent the cause of action, there can be no better writ, and ah force and eifect is gone from the plea. The fact which has happened gives to the defendant the full benefit of his plea, and ou proof of that fact, the plea is defeated.^ §11. Plea of a former action pending. — To sustain a plea of a former action pending it mnst appear to the court that the first action is for the same cause as the second. It is not enough that the property in controversy in both actions is the same.^ It must also appear as a matter of fact that the former suit was pending when the second action was commenced,^ and that it was pending in a court of this State.'' Where these facts appear, and that the two actions are between the same parties, they furnish a complete defense to the suit in which they are pleaded.^ But the defense must be pleaded to be available.^ § 12. Plea of former jvidgment. — To sustain the plea of a former judgment in bar of a second action it must appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second action was in issue and determined in the first action adversely to the plaintiff.' A judg- ment in a former suit between the same parties is a bar to a sub- sequent action only when the point or question in issue is the same in both, and it has no effect upon questions not involved in 1 Groot V. Agens, 107 X. Y. 633. = Dawley v. Brown, 79 X. Y. 390; Douglass v. Ireland, 73 N. Y. 100; Keeler v. Brooklyn Elevated H. R. Co., 9 Abb. X. C. 166; Cordier v. Cordier, 36 How. 187; Kelsey v. Ward, 10 Abb. 98. 3 Porter v. Kingsbury, 77 X. Y. 164; Owens v. Loomis, 19 Hun, 606. ^Hadden v. St. Louis, etc., R. R. Co., 57 How. 390; Bowne v. Joy, 9 Johns. 2v!l; Lorillard Fire Ins. Co. v. Meshural, 7 Rob. 308; Cook v. Litchfield, 5 Sandf. 330; Williams v. Ayrault, 31 Barb. 364; Osgood v. Maguire, 61 Barb. 54; Walsh v. Durkin, 13 Johns. 99; Trubee v. Alden, 6 Hun, 75; Burrows v. Miller, 5 How. 51; Mitchell v. Bunch, 3 Paige, 606; Hecker v. Mitchell, 5 Abb. 458; Oneida County Bank v. Bonney, 101 X. Y. 178. 5 Lewis V. Maloney, 13 Hun, 307; Ratzer v. Ratzer, 3 Abb. X. C. 461; Gro- shon V. Lyon, 16 Barb. 461. = Hollister v. Stewart, 111 N. Y. 644. ■ Perry v. Dickerson, 85 N. Y. 845. 246 The Answbe. Plea of former judgment. the first suit and which were not then open to inquiry or the sub- ject of litigation.' In order to bar the second action the circum- stances must be such that the plaintiff might hav^e recovered in the first action for the same cause alleged in the second.^ The estoppel of an adjudication made on grounds purely technical, and where the merits could not come in question, is limited to the point actually decided, and will not preclude a subsequent action brought in a way to avoid the objection which proved fatal in the first.^ So to render the judgment in one action effectual as a bar to a subsequent action, the cause of action must be substan- tially the same in both ; that is, it must be sustained by the same evidence, although the form of the suit may be different.^ The judgment of a court of competent jurisdiction upon a question directly involved in the suit is conclusive in a second action, be- tween the same parties or privies, depending on the same ques- tion, although the subject-matter of the second action be differ- ent.' There is no difference in the application of this rule whether the first adjudication be in a formal action or in a proceeding summary in its character, or in a special proceeding, or whether the judgment was rendered after a litigation of the matter in controversy, or upon default or confession.^ By privies are meant persons who are represented by the parties, and who claim under them or in privity with them, wlio have mutual or suc- cessive relationship to the same right or thing.^ In order to establish an identity between the causes of action in the two suits, 1 Norton v. Huxley, 13 Gray, 385; Marsh v. Masterton, 101 N. T. 401. 5 Stowell V. Chamberlain, 60 N. Y. 273; Marsh v. Masterton, 101 N. T. 401. The plea of res adjudicata is not available to parties in an action unless the judgment set up was rendered upon issues between them. There must have been a controversy between the parties, the questions in which were or might within the issues framed, bave been competently adjudged. Beveridge v. New York Elevated R. R. Co., 113 N. Y. 1. 3 Marsh v. Masterton, 101 N. Y. 401. ■• Stowell v. Chamberlain, 60 N. Y. 372; Marsh v. Masterton, 101 N. Y. 401. ^ Doty V. Brown, 4 N. Y. 71; Castle v. Noyes, 14 N. Y. 339; Smith v. Smith, 79 N. Y. 634; White v. Coatsworth, 6 N. Y. 137. « Demarest v. Darg, 32 N. Y. 381; Brown v. Mayor, 66 N. Y. 385; White v. Coatsworth, 6 N. Y. 137; Gates v. Preston, 41 N. Y. 113; Newton v. Hook, 48 N. Y. 676; Blair v. Bartlett, 75 N. Y. 150. ' Goddard v. Benson, 15 Abb. 191. The Answer. 247 Plea of former judgment. it is not necessary that the claim made in the first action em- braced the same items sought to be recovered in the second. It is sufficient to bring the second action within the estoppel of the former judgment that the cause of action in the former suit was the same, and that the damages or right claimed in the second suit were items or parts of the same single cause of action upon which the first action was founded.^ But the bare fact that the two causes of action spring out of the same contract does not ipso facto render a judgment on one a bar to a suit on the other .^ The question is, whether the same evidence will maintain both actions. If the evidence which will sustain the second would have authorized a recovery in the first under the allegations in the complaint, the first judgment is an absolute bar to the second.^ The rule as to the conclusive character of a judgment is the same whether the judgment is rehed on as evidence of a fact in issue in the second suit or as a bar to the second action.'' But while a judgment record in a former action between the parties, although not pleaded in bar, is competent to prove a material fact in issue,'' the former judgment cannot be relied upon as a bar to the second action unless it is pleaded.^ An answer setting up a former judgment in bar, should al- lege the entry of the judgment,^ the term or date of the judg- ment,' that the court which tried the first suit had jurisdiction,^ and should in some form aver the identity of the cause of action in the different suits,'" and that the actions are between the same parties or their privies." ' Perry v. Dickerson, 85 N. T. 345. '' Perry v. Dickerson, 85 N. Y. 345. 3 Stowell V. Chamberlain, 60 N, Y. 373; Miller v. Manice, 6 Hill, 114. < White V. Coatsworth, 6 N. Y. 138. ' Marston v. Sweet, 66 N. Y. 206; Miller v. White, 50 N. Y. 137, 144; Kreke- ler V. Ritter, 62 N. Y. 373. « Derby v. Yale, 13 Hun, 273; Lobdell v. Stowell, 37 How. 88; Brazill v, Isham, 12 N. Y. 9. ■ Derby v. Yale, 13 Hun, 273. 8 Mount V. Scholes, 120 111. 394. » Moberly v. Peek, 67 Ala. 345; Turner v. Roty, 3 N. Y. 193. '» Moberly v. Peek, 67 Ala. 345; Phillips v. Beriok, 16 Johns. 136; Secor v." Sturgis, 16 N. T. 548. See Geisler v. Acosta, 9 N. Y. 227. 11 Goddard v. Benson, 15 Abb. 191. 248 The Answer. Plea of tender. § 13. Plea of tender. — Where by the terms of a contract a payment is to be made in specific articles, a valid tender of those articles in compliance with the contract, whether accepted or not, discharges the debt, and thereafter the person to whom the tender is made can have no remedy on the contract.^ Where a person owes a debt payable in money, he may tender the money to the creditor, and if the latter refuses to receive it and sues upon his demand, the debtor may pay the money into court, allege tender and payment, and thus bar the recovery of interest and costs, but not the cause of action.^ The plea of tender in such case should show or allege a valid tender and its amount,^ the refusal to ac- cept, that he is and always has been ready to pay the amount so tendered, and has paid the same into court.'' A tender may also be made for the purpose of extinguishing the lien of a mortgage. An offer to pay the amount due on a mort- gage either at the law day or at any time thereafter before fore- closure, will extinguish the security, although the tender is not kept good and the money is not brought into court.* A tender before suit of the amount due on a mortgage extinguishes the equitable cause of action of the mortgagee and leaves him only a remedy at law upon the bond.^ The same principle applies to a tender to a sheriff of the full amount collectible on execution.' In this, and in all similar cases, where the effect of the tender is to destroy the lien, it is not necessary to keep the tender good or to pay the money into court.' But where the defendant seeks any • Des Arts v. Leggett, 16 N. Y. 582; Billings, v. Vanderbeck, 23 Barb. 546. '- Hills V. Place, 48 N. T. 530; Kelly v. West, 4 Jones & Sp. 304; Knight v. Beaeb, 7 Abb. (N. S.) 241. See Locklin v. Moore, 57 N. Y. 360. 3 Bothwell V. Millikan, 104 Ind. 162. * Roosevelt v. Bull's Head Bank, 45 Barb. 579; Brooklyn Bank v. DeGrauw, 23 Wend. 342, 345; Simpson v. Frencli, 25 How. 464; Gray v. Green, 9 Hun, 334; Becker v. Boon, 61 N. Y. 317; Wilder v. Seelye, 8 Barb. 408; Platner v. Lehman, 26 Hun, 374; Brown v. Ferguson, 2 Denio, 196; Aulger v. Clay, 109 111. 487; Park v. Wiley, 67 Ala. 810; Gray v. Angier, 63 Ga. 596; Dodge v. Fearey, 19 Hun, 277; Wilson v. Doran, 110 N. Y. 101. ' Kortright v. Cady, 21 N. Y. 343; Frost v. Yonkers Savings Bank, 70 N. Y. 553, 558. But such tender is (?f no avail unless pleaded. Sidenberg v, Ely, 90 N. Y. 257; 11 Abb. N. C. 354. « See Kortright v. Cady, 21 N. Y. 343; Breunich v. Weselman, 100 N. Y. 609. ' Tiffany v. St. John, 65 N. Y. 314. 8 Tiffany v. St. John, 65 N. Y. 314; Cass v. Higenbotham, 100 N. Y. 248. The Answek. 249 Plea of tender. affirmative relief by reason of his tender, such as the cancellation of a mortgage or the like, he must keep the tender good from the time it is made.' Where a person is bound to pay only on receiving a conveyance, and this is refused, he need not pay into court to keep his tender good and stop the running of interest.^ In certain cases the statute permits the defendant, after suit brought, and at any time before trial, to tender to the plaintiff or his attorney such sum of money as he conceives to be sufficient to make amends for the injury sustained, or to pay the plaintiff's demand, with the costs of the action to that time.^ Such a tender does not avail tlie defendant unless the money is accepted or is paid into court, and notice thereof in writing served upon the plaintiff's attorney before the trial and within ten daj's after the tender.* Where the defendant has made a tender before suit, and has failed to give notice in Ms answer or otherwise of the payment of the money into court, the plaintiff may treat the answer as a nullity and return it.^ But if the plaintiff takes issue upon an answer which does not allege the payment of the money into court, he thereby waives tbe irregularity. '^ But the failure of the plaintiff to return an answer containing several defenses, and among them the defense of tender before suit brought, or to other- wise raise the question before trial, is not a waiver of the plain- tiff's right to insist that money paid into court was not a good tender after suit brought by reason of the fact that the statutory notice of payment into court was not given.' An answer alleging the tender of the amount due on a mortgage after the commence- ment of an action for foreclosure and which does not allege the ' Tuthill V. Morris, 81 N. T. 94; Breunicli v. Weiselmau, 100 N. Y. 609; Werner v. Tuch, 53 Hun, 269. ' Wood V. Rabe, 20 Jones & Sp. 479. 3 Code of Civil Pro., § 731. < Code of Civil Pro., § 733; Wilson v. Doran, 110 N. Y. 101. « Platner v. Lehman, 26 Hun, 374; Sheridan v. Smith, 2 Hill, 538; Simpson V. French, 25 How. 464. = Platner v. Lehman, 26 Hun, 374; Wood v. Rabe, 20 Jones & Sp. 479. ' Wilson v. Doran, 110 N. Y. 101. 250 The Anbwee. Usury as a defense. tender of the costs then accrued, sets up no defense, and admits the cause of action stated in the complaint to the amount tendered, and entitles the plaintiff to judgment on the pleadings.^ § 14. Usury as a defense, — The defense of usury must be distinctly set out in the defendant's answer if he intends to rely upon it at the trial. ^ Under the old rules of pleading, the de- fendant was required to aver what the usurious agreement was ; between whom it was made ; the amount of usurious interest that was agreed upon and received ; and that the agreement was in- tentionally usurious and corrupt.^ Under the present system of pleading, the terms of the usurious contract, and the quantity of interest or premium taken or agreed to be given must be stated.* The defendant is bound, not only to set up the usurious contract in his answer, specifying its terms and particular facts relied upon to bring it within the prohibition of the statute, but to prove them substantially as alleged.^ The defense must be pleaded with such precision and certainty as to make out on the face of the pleading that a corrupt and usurious contract has been entered into f but the usual rule for the construction of pleadings applies as well to an answer of usury, as one setting up any other defense,^ and no stricter rule of pleading will be applied to this class of de- fenses than to others.' And although there may be some lack of precision and certainty in the answer, yet if it alleges the essen- ' Baton V. Wells, 33 Hun, 133; 83 N. Y. 576. - Fay V. Grimsteed, 10 Barb. 331; Gould v. Horner, 12 Barb. 601; ante, p. 387. - Manning v. Tyler, 31 N. Y. 567; Vroom v. Ditmas, 4 Paige, 536; New Or- leans Gas Co. V. Dadley, 8 Paige, 453; Curtis v. Hasten, 11 Paige, 15; Fay v. Grimsteed, 10 Barb. 331; Gould v. Horner, 12 Barb. 601. * Manning v. Tyler, 31 N. Y. 567; Nat. Bank of Metropolis v. Orcutt, 48 Barb. 256. ' Western Transp., etc., Co. v. Kilderhouse, 87 N. Y. 480, 486; Long Island Bank v. Boynton, 105 N. Y. 656. * National Bank v. Lewis, 75 N. Y. 516. The answer should be so pleaded that it may appear what rate or amount of interest was taken or secured, and on what sum, and for what time, and should show a corrupt intent. When these,facts appear from the answer, nothing further is necessary to make it sufficiently definite. National Bank of Metropolis v. Orcutt, 48 Barb. 256. ' Lewis V. Barton, 106 N. Y. 70; National Bank v. Lewis, 75 N. Y. 516. 8 Maule V. Crawford, 14 Hun. 193. The Answer. 251 Usury as a defense. &' tial facts in snch a manner that the plaintiff could not have been misled in respect to the defense intended, or as to the circumstan- ces relied upon to support it, it will be held sutficieut.^ It is not necessary that a formal agreement, either oral or written, should be set forth in so many woi'ds. It is enough to allege the facts as they occurred, and if such facts justify the inference of a usu- rious contract, the answer will be held sufficient.^ It is not essen- tial that the amount of interest received should be stated with ab- solute certainty f and a variance between the proof and the alle- gation of the amount of usurious interest reserved, will not invalidate the defense, where there is no claim that the plain- tiff has been misled.* Although the answer does not, in express terms, state that the agreement was intentionally corrupt and usurious, if facts are stated from which tliis must necessarily be inferred, it is sufficient.^ Where the defense of usury is predicated upon the transfer to the plaintiff of the promissory note upon which the action is brought, the answer must show that the note sued on never had any valid existence as a contract, or promise to pay, at the time it was discounted by the plaintiff."^ If the usury charged consists in the reservation of usurious interest in a contract made and to be executed in another State, the answer should allege that the rate of interest reserved was forbidden by the laws of that State.' If it alleges that the contract sued on is usurious according to the laws of a foreign State, it must show that the contract was gov- erned by the laws of such State.^ The defense of usury should not be joined with a plea of tender, as the two defenses are ut- terly inconsistent, and although the latter defense be stricken out 1 Lewis V. Barton, 106 S. T. 70. - Maale v. Crawford, 14 Han, 193; Mercli. Exoli. Nat. Bank v. Commercial Warehousing Co., 49 N. Y. 638. 3 National Bank v. Lewis, 75 N. Y. 516; Dagal v. Simmons, 23 N. Y. 491. ■• Katz V. Kuhn, 9 Daly, 166. -■ Nat. Bank of Metropolis v. Orcutt, 48 Barb. 256. ■ Burrall v. Bo wen, 21 How. 378. ' Cutler V. Wright, 23 N. Y. 472; Curtis v. Masten, 11 Paige, 15. 8 Mayer v. Louis, 12 Abb. (N. S.) 5. 252 The Answer. Discharge in bankruptcy — Answerin action for determination of claims to land. by aineiidnient, it may still be used as an admission tending to negative the defense of usurv.^ § 1 5. Discharge in bankruptcy. — A discharge in bankruptcy may be pleaded by a simple averment that on the day of its date it was granted to the bankrupt, and by setting forth a copy. When a copy of the discharge is set forth, it is not necessary for the de- fendant to allege the facts which show that the court had juris- diction of the party or subject-matter.^ But all other proceedings which are relied upon to release the bankrupt from his debts must, when pleaded, be accompanied by averments which show that the court in which they were taken had jurisdiction of the parties and of the subject-matter.^ The answer must also allege that the claim or indebtedness sued on was one provable in bank- ruptcy, and would be extinguished by a discharge, and was not one which was exempt from the operation of the bankruptcy statutes.* The discharge must be pleaded to be available as a de- fense.^ § 16. Statute of limitations. — An objection that an action was not commenced within the time limited by the statute can be taken only by answer.^ An answer alleging that the plaintiif ought not to have or maintain his action against the defendant because the cause of action mentioned in the complaint did not accrue to the plaintiff at any time within six years next before the commencement of the action, sufficiently alleges the six years' statute as a bar to the action.' Any other period of limitation may be alleged in a simi- lar form. § lY. Answer in action for determination of claims to land. — A defendant in an action brought to compel the determination ■ Breunich V. Weselman, 100 N. Y. 609. ' Cromwell v. Burr, 59 How. 93; Laidley v. Cummings, 83 Ky. 606. 3 Cromwell v. Burr, 59 How. 93. ■• Hennequin v. Clews, 14 Jones & Sp. 330; 84 N. Y. 676. ^ Revere Copper Co. v. Dimock, 90 N. Y. 33. « Code of Civil Pro., § 413; ante, p. 235. ' Bell V. Yates, 33 Barb. 627. The Answek. 253 Answer in replevin, trover or trespass. of a claim to real property may deny that the property at the commencement of the action was, and for the three years next preceding had been in the actual possession of the plaintiff, or in the actual possession of the plaintiff and those from whom he de- rives his title; and he may also, either with or without such de- nial, set forth facts showing that he has an estate in the property, or a part thereof, adverse to the plaintiff, in fee, or for life, or for a term of years not less than ten, in possession, reversion or re- mainder, as in a complaint for the same cause of action, and thereupon he may be entitled to demand any judgment to which he would be entitled in an action brought by him to recover that estate therein.' § 18. Answer in replevin, trover or trespass. — An answer, in replevin may contain all the defenses which the defendant has, whether they are consistent or inconsistent. The defendant may by answer defend on the ground that a third person was entitled to the chattel without connecting himself with that title.' An allegation in the answer to the effect that the defendant or a third person was, at the time when the action was commenced or the chattel was replevied, the owner of the chattel or that it was then his property, is a sufficient statement of title, imless the de- fense rests upon a right of possession by virtue of a special prop- erty, in which case, the answer must set forth the facts upon which the special property depends, so as to show, that at the time when the action was commenced or the chattel was replevied, the defendant, or the third person, was entitled to the possession of the chattel.^ Where the defense is that the chattel sought to be recovered in the action was distrained doing damage, an alle- gation that the defendant, or the person by whose command he^ acted, was then lawfully possessed of the real property, and that the chattel was distrained while it was doing damage thereupon, is sufficient without setting forth the title to the real property.* 1 Code of Civil Pro., g 1641. « Code of Civil Pro., § 1723. See ante, p. 233; Griffin v. Long Island R. R. Co., 101 N. T. 348; Stowell v. Otis, 71 N. Y. 36. 3 Code of Civil Pro., §1720. " Code of Civil Pro., § 1734. 254 The Answer. Answer in action for divorce or separation. As lias been stated in a preceding section of this chapter, a de- fendant, wiiether in an action of replevin, trespass or trover, may always disprove, under a general denial, an allegation of title in the plaintiff.' Whenever a plaiutifi must prove title in order to maintain his action a general denial will be all that is necessary to enable the defendant to controvert this branch of the case or to put in issue the wrongful taking or detention of the property. Bat in an action of trespass or trover, although the plaintiff may allege both ownership aud possession of the property alleged to have been wrongfully taken, he may recover on proof of posses- sion only as against any person but the true owner, or a person connecting himself with the title of the true owner ; ^ and, there- fore, unless the defendant can prove that the property was not taken from the plaintiff's possession, he should not rely upon a general denial, but should allege facts showing a right to take the propertj' as he did either by virtue of his own title or by virtue of the title of a third person to whose right the plaintiff has in some way succeeded. § 19. Answer in action for divorce or separation. — The answer in an action for divorce on the ground of adultery need not be verified, even though the complaint is verified.' It may deny generally or specifically the allegations of the complaint, and may allege as a defense the consent of the plaintiff to the adultery charged, or a subsequent condonation, or that the action was not commenced within five years after the discovery by the plaintiff of the offense charged, or that the plaintiff has also been guilty of adultery under such circumstances as would entitle the defend- ant to a divorce.* So, if the action is for a separation, the de- dfendant may set up in justification the misconduct of the plaintifl', and if that defense is established to the satisfaction of the court the defendant is entitled to judgment.* The rules of court per- ' See § 6, p. 233. ' See Duncan v. Spear, 11 Wend. 54; Stowell v. Otis, 71 N. T. 36; Wheeler V. Lawson, 103 N. Y. 40; Klinger v. Bondy, 36 Hun, 601. 2 Code of Civil Pro., § 1757. " See Code of Civil Pro., § 1758; Smith v. Smith, 4 Paige, 432. « Code of Civil Pro., § 1765; Palmer v. Palmer, 1 Sheld. 89; Doe v. Roe, 23 Hun, 19. The Answer. 355 Answer in action for divorce or separation . mit the defendant in an action for divorce, separation, or to de- clare a marriage contract void, to set up in Lis answer the adultery of the plaintiff or any other matter which would be a bar to a divorce, separation or the annulling of a marriage contract ; ^ and the Code provides that where an action is brought by either hus- band or wife as prescribed in the articles of that act relating to actions for divorce or for a separation, a cause of action against the plaintiff and in favor of the defendant arising under either of said articles, may be interposed in connection with a denial of the material allegations of the complaint, as a counterclaim.^ Thus in an action for an absolute divorce the defendant may set up the adultery of the plaintiff as a defense and as a ground for affirma- tive relief in the same action.^ And he may deny the adultery charged, and set up both cruelty and adultery on the part of the plaintiff.'' The defense that the plaintiff has condoned the offense charged in the complaint, or a justification based on the plaintiff's misconduct, must be pleaded to be available on the trial.^ In an action for a limited divorce the defendant may set up as a separate defense that at the time of the alleged marriage with him the plaintiff was a married woman, the lawful wife of a per- son then living, and from whom she had never been divorced, which facts were unknown to the defendant.' "Where the answer sets up the misconduct of the plaintiff as a defense or counterclaim, the essential facts should be alleged in the same manner as in a complaint for a divorce or separation,^ and if the defendant seeks affirmative relief he should demand it in his answer." If the facts are not discovered until after the answer has been served they may be set up by supplemental an- swer on obtaining leave of court. ^ 1 Rule 75. Sup. Ct. 2 Code of Civil Pro., § 1770; Waltermire v. Waltermire, 110 N. Y. 183. ' Anonymous, 17 Abb. 48. * Spain V. Spahn, 12 Abb. N. C. 169. ' Roe V. Roe, 14 Hun, 612. « Clark V. Clark, 5 Hun, 340. ■■ For tbe mode of stating the facts in tlie complaint, see ante. p. 179, 181. 8 Code of Civil Pro., §509. » Strong v. Strong, 38 How. 433; 3 Rob. 669, 719 256 The Answer. Answer of joint-debtor, etc. — Alleging fraud as a defense, etc. § 20. Answer of joint-debtor not served with summons. — Where an action is brought by a judgment-creditor to procure a judgment against a joint debtor not served with the summons in the original action charging his property with the amount unpaid upon such judgment, the defendant's answer is restricted to the defenses or counterclaims which he might have made in the original action if the summons therein had been served upon him when it was first served upon a defendant jointly indebted with him ; objections to the judgment ; and defenses or counterclaims which have arisen since it was rendered.^ The judgment is not conclusive as to the amount.^ Under the old Code' the defend- ant could not plead the statute of limitations, unless such defense existed when the original action was commenced.'' § 21. Alleging fraud as a defense to an action on contract. — A person defending an action on contract on the ground that he was induced to contract by reason of false and fraudulent rep- sentations made to him by the plaintiff must allege in his answer all the false representations which he intends to prove f that he was misled by the representations, or that his belief in the truth of the representations induced him to enter into the contract f that such representations were made witli intent to defraud ;' and that the defendant sustained damage thereby.* Fraud, as a defense to an action on contract, cannot be pleaded in general terms. The specific acts constituting it must be set forth.' A person who has been defrauded in the making of a contract and who wishes by an action at law to avoid the contract for ■Code of Civil Pro., § 1939. ' Richardson v. Case, 3 Civ. Pro. R. 295. 2 Code of Procedure, g 379. * Maples V. Mackey, 89 N. Y. 146; Gibson v. Van Derzee, 14 Abb. (N. S.) Ill; 47 How. 231; Broadway Bank v. Luff, 51 How. 479. See Berlin v. Hall, 48 Barb. 442. 6 Reed v. Clark Cove Guano Co., 47 Hun, 410. 8 Van De Sande v. Hall, 13 How. 458; Saxton v. Dodge, 57 Barb. 84. ' Dubois V. Hermance, 56 N. Y. 673; Lefler v. Field, 52 N. Y. 621. 8 Arnold v. Nichols, 64 N. Y. 117. 'Mills V. Collins, 67 Iowa, 164; McMurray v. Gifford, 5 How. 14. The Answer. 257 Answer in action of slander or libel. fraud and reinstate himself in the possession of the property- parted with, or to recover its vahie before the maturity of the contract, must return or offer to return to the other party before commencing his action whatever he has received under the con- tract unless it is of such a cliaracter that its return on the trial or in the progress of the suit will leave such party in as good con- dition as the return or offer before suit would have done. Where, however, the party who has been guilty of the fraud brings an ac- tion to enforce the contract, the defrauded party need not return what he has received thereunder, but may set up such fraud as a complete or partial defense to the action.' Ordinarily a defendant will not be heard to allege his own fraudulent act as a defense to an action brought against him. But there is at least one exception to this rule. In an action to fore- close a mortgage the defendant may allege and prove that the mortgage was executed without consideration for the sole purpose of hindering, delaying and defrauding creditors, and this defense, if established, will defeat the action, but will not entitle the de- fendant to afBrmative relief such as the cancellation of the mort- gage.^ But the grantor of land cannot set up that the convey- ance was made in fraud of creditors as a defense to an action of ejectment.' § 22. Answer in action of slander or lilbel. — A defendant in an action for slander or libel may plead the truth of the words in justification, and if this is established it will be a complete bar to the action without regard to the motive of the defendant in utter- ing or publishing the alleged defamatory matter.'' But he cannot show the truth of the defamatory words without a plea in justifi- cation.* ' Harris V. Equitable Life Ass. Soc, 3 Hun, 724; 64 N. Y. 196; Green v. Smith, 29 Hun, 166. 'Chamberlain v. Barnes, 26 Barb. 160; Nellis v. Clark, 4 Hill, 424. sMoseley v. Moseley, 15 N. Y. 334. ■■ George v. Jennings, 4 Hun, 66; Root v. King, 7 Cow. 619; 4 Wend. 113; Baum V. Clause, .5 Hill, 196; Mundy v. Wight, 26 Kans. 173 ; Castle v. Hous- ton, 19 Kans. 417. ' Padgett V. Sweeting, 65 Md. 404. 33 258 The Answer. Answer in action of slander or libel. To constitute a good answer in justification of a general charge, it is not enough to allege that the words spoken or published were true. The answer must go further and state such facts as will show the plaintiff guilty of the offense imputed to him.^ The answer should state time, place and circumstances with a degree of particularity which would show upon its face that an offense against the law has been committed, substantially as an indict- ment would charge facts constituting a crime." But this rule re- quires only a statement of the necessary facts as distinguished from the evidence of those facts,^ and has no application where the alleged libelous or slanderous charge is specific and not gen- eral.'' A plea of justification must be as broad as the charge,^ unless the defamatory matter consists of several distinct charges, in which case the defendant may justify as to part.* The defendant may prove mitigating circumstances notwithstanding that he has pleaded or attempted to prove a justification.'' Where tlie answer clearly shows from the language used that it was intended as a justification of the charge, it need not state the purpose for which it is pleaded. Whether a defense contains a justification must be determined by the language used in it, and it is unneces- sary to name or characterize that defense.^ Matter pleaded in justification may also be. pleaded in mitigation, but the two de- ' Tilson V. Clark, 45 Barb. 178; Fry v. Bennett, 5 Sandf. 54; Hathorn v. Congress Spring Co., 44 Hun, 608; Robinson v. Hatcb, 55 How. 55; Knox v. Commercial Agency, 40 Hun, 508; Sayles v. Wooden, 6 How. 84; Wacliter v. Quenzer, 29 N. Y, 547; Ball v. Evening Post Pub. Co., 38 Hun, 11; Maretzeek V. Cauldwell, 2 Rob. 715; 19 Abb. 35; Anibal v. Hunter, 6 How. 255. ' McKane v. Brooklyn Citizen, 53 Hun, 132; Andrews v. Van Duser, 11 Johns. 38. ~ Ball V. Evening Po.st Pub. Co., 38 Huu, 11. ■• Van Wyck v. Guthrie, 4 Duer, 368; 17 N. Y. 190. ' Jones V. Townsend, 21 Fla. 431; Hathorn v. Congress Spring Co., 44 Hun, 608; Skinner v. Powers, 1 Wend. 451; Herr v. Bamberg, 10 How. 128; Love- land V. Hoamer, 8 How. 215; Jaycocks v. Ayres, 7 How. 215; Whittemore v. Weiss, 33 Mich. 348; Palmer v. Smith, 21 Minn. 419. « Torrey v. Field, 10 Vt. 858. ' Code of Civil Pro., g 535; Spooner v. Keeler, 51 N. Y. 527; Bisbey v. Shaw, 13 N. Y. 67; Klinck v. Colby, 46 N. Y. 437; Bush v. Prosser, 11 N. Y. 347. « Kelly V. Waterbury, 87 N. Y. 179. The Answer. 259 Distinction between a defense and a counterclaim. fenses should be separately stated,^ and the answer must expressly state that the matter in mitigation is pleaded as a partial defense.^ Evidence of circmnstances in mitigation of damages is inadmissi- ble unless pleaded,^ and pleaded in mitigation.'' Under the system of pleading prevailing prior to the Code, the defense of an action of libel or slander was a very perilous under- taking. If the defendant attempted to justify by proving the truth of the words spoken it was regarded as a reiteration of the charge and conclusive evidence of malice, and no evidence in mitigation could be received. If he failed to establish the truth of the charge the damages were aggravated. He might give evi- dence in mitigation, but in that case he must admit the truth of the charge and could give no evidence tending to prove to the contrary. He could only give evidence to show that he had reason to believe the charge was true when made. All this has been changed by the Code.' Where the defendant in an action of slander sets up by way of defense that the communication complained of was privileged he need not alleffe that such communication was made without mahce.^ A plea of privileged communication is a plea of justifi- cation, and a statement in the answer that the facts therein stated will be given in evidence in mitigation of damages, and as a justification and full defense to the action does not preclude him from also alleging and proving that the statement complained of was a privileged communication.'' § 23. Bistinction between a defense and a counterclaim. — The answer of the defendant may contain a statement of any 1 Fink V. Justli, 14 Abb. (N. S.) 107; Kelly v. Taintor, 48 How. 270. ' Code of Civil Pro., § 508; Hathorn v. Congress Spring Co., 44 Hun, 608. ' Code of Civil Pro., § 536; Spooner v. Keeler, 51 X. Y. 527; McKaue v. Brooklyn Citizen, 53 Hun, 133. •"Willover v. Hill, 73 X. Y. 36; Hatborn v. Congress Spring Co., 44 Hun, 608. ' Spooner v. Keeler, 51 N. Y. 527; Busli v. Prosser, 11 X. Y. 347; Bisbey v. Shaw. 12 N. Y. 67; Wacbter v. Quenzer, 29 X. Y. 547, 551 ; Aird v. Fireman's Journal Co., 10 Daly, 254; Klinck v. Colby, 46 N. Y. 427. ' Robinson v. Hatch, 55 How. 55. ' Halstead v. Nelson, 24 Hun, 395. 260 The Answer. Distinction between a defense and a counterclaim. new matter constituting a defense or counterclaim in ordinary and concise language without repetition.^ There is a distinction between a defense and a counterclaim. A counterclaim is an affirmation of a cause of action against the plaintiff in the nature of a cross-action, and upon which the defendant may have an affirmative judgment against the plain- tiff.^ A defense on the other hand is an assertion of matter which will not support an action, but which must be used, if used at all, to defeat an action. Matter which shows that the plaintiff never had a cause of action against the defendant which the law would aid him in enforcing is no counterclaim.' "New matter constituting a defense " to an action on contract would be matter which admitted the contract but avoided its effect, such as a re- lease, the statute of limitations, a discharge in bankruptcy, and the like.* A plea of usury, standing alone, is a statement of new matter constituting a defense, and is not a counterclaim.^ But where the defendant sets up usury in his answer, with other matters, as the foundation of his claim and right to equitable relief, and thereon demands such relief as formerly constituted the subject of a cross-bill, the answer is a counterclaim as well as a defense.^ A counterclaim is a kind of equitable defense which is permitted under the provisions of the Code to be set up when it arises out of a contract set forth in the complaint.^ It embraces both set-off and recoupment, and is broader and more compre- hensive than either,' and is intended to secure to the defendant 1 Code of Civil Pro., § 500. ' Fettretcti v. McKay, 47 N. T. 436; 11 Abb. (N. S.) 453; Williams v. Willis, 15 Abb. (N. S.) 11; Cliamboret v. Cagney, 2 Sweeny, 378; 10 Abb. (N. S.) 31; Tyler v. Willis, 33 Barb. 327. ' Prouty V. Eaton, 41 Barb. 409. * Gilbert v. Cram, 13 How. 4.'j,j; Brazill v. Isbam, 13 N. Y. 9, 17; Bellinger V. Craigue, 31 Barb. 534; Riidde v. Ruckgaber, 3 Duer, 684. = Prouty V. Eaton, 41 Barb. 409. ' Geenia v. Keab, 66 Barb. 245. ' Leavenworth v. Packer, 52 Barb. 133. « Vassear v. Livingston, 13 X, Y. 248, 257; Bathgate v. Haskin, 59 N. Y. 533, 539; Chamboret v. Cagney, 2 Sweeny, 378; 10 Abb. (N. S.) 31; 41 How. 125 ; Boston Silk & Woolen Mills v. Eull, 37 How. 399; 6 Abb. (N. S.) 319; Pattison v. Richards, 22 Barb. 143; Wilder v. Boynton, 63 Barb. 547; Clinton V. Eddy, 1 Lans. 61. The Answer. 261 Requisites of counterclaim. all the relief which either an action at law or a bill in equity or a cross-bill would have secured on tlie same state of facts. ^ A defendant, by characterizing the matter which he has pleaded as a "defense" naay preclude himself from claiming that it con- stitutes a counterclaim,'' especially where the defendant claims the benefit of the failure of the plaintiff to reply f but where a defendant in an action on contract sets up in his answer facts which fail as a defense, but which establish an equitable right of set-off, and such facts are proved without objection on the trial, and are found by the court, the defendant is entitled to the benefit thereof, although the averments in his answer are not characterized as a counterclaim.* The same rule applies to an answer alleging the breach of the plaintiff's agreement, though the matter is not in terms set up as a counterclaim.^ So where a defendant has pleaded the particular matters con- stituting a defense, and has added thereto a statement that the defendant will set off the same against any demand which the plaintiff may establish, the claim of set-off will not preclude the defendant from using the matter so pleaded as a defense where the plaintiff has not been prejudiced by the error.* § 24. Requisites of a counterclaim. — The counterclaim which the Code authorizes the defendant to set up in his answer, must tend in some way to diminish or defeat the plaintiff's recovery,^ and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he repre- sents, and in favor of the defendant, or one or more defendants ' Gleason v. Moen, 2 Duer, 6i3; Boston Silk & Woolen Mills v. Eull, 37 How. 299; 6 Abb. (N. S.) 319; Ourrie v. Cowles, 6 Bosw. 453; Leavenworth V. Packer, 52 Barb. 183. ' Bates T. Eosekrans, 37 N. Y. 409; 4 Abb. (N. S.) 276; Simmons v. Kayser, 11 Jones & Sp. 131. * Equitable Life Ass. Soc. v. Cuyler, 75 N. Y. 511; Cookerill v. Loonam, 36 Hun, 353. ■» Acer V. Hotcbkiss, 97 N. Y. 395. See Wilder v. Boynton, 63 Barb. 547. ' Van Brunt v. Day, 81 N. Y. 251; 8 Abb. N. C. 336. « Chatfield v. Simonson, 92 N. Y. 209. ■"Code of Civil Pro., § 501; Mattoon v. Baker, 24 How. 329; Grange v. Gil- bert, 44 Hun, 9. 262 The Akswek. CouDterclaim must be a cause of action in favor of defendant. between whom and the plaintiff a separate judgment may be had in the action : 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on con- tract existing at the commencement of the action.' There are, therefore, two classes of counterclaims authorized bj' the Code : one which can be pleaded in actions on contract only, and one which may be pleaded in any action. A coxmterclaim must be a complete cause of action existing in favor of the defendant asserting it, which the court in which the action is pending has jurisdiction to try and determine,^ and one which is not barred by the statute of limitations at the time when the action is commenced.^ The Code provides, in substance, that a cause of action upon which an action cannot be maintained by reason of the statute of limitations cannot be effectually interposed as a defense or counterclaim.' Ordinarily, a defendant recover- ing a judgment on a counterclaim in excess of the plaintiff's de- mand is entitled to an aifirmative judgment for the excess. But the rule is otherwise where the State is the party plaintiff. The courts have no jurisdiction to render an affirmative judgment upon a set-off or counterclaim against the State.* § 25. Counterclaim must be a cause of action in favor of defendant. — The counterclaim authorized by the Code must b& a cause of action in favor of the defendant, or of one or more de- ' Code of Civil Pro., §501. ' Cragin v. Lovell, 88 N. Y. 358. See Heigle v. 'Willis, 50 Hun, 588. ' De Lavallette v. Wendt, 75 N. Y. 579. It has been held in an action upon a promissory note given on an exchange of horses, that the defendant may set up as a counterclaim a breach of the contract of warranty of the horse re- ceived by him in exchange, although more than six years have elapsed after the making of the contract, and before the commencement of the action. Maders v. Lawrence, 49 Hun, 360. See Herbert v. Day, 33 Hun, 461. " Code of Civil Pro., §397. '■ People V. Dennison. 8 Abb. N. C. 128; 84 N. Y. 372. See Taylor v. Mayor, etc., of N. Y., 82 N. Y. 10. The Answer. 263 Counterclaim must be a cause of action in favor of defendant. fendants between whom and the plaintiff a separate judgment may be had in the action.' In an action against sureties, to which their principal is not made a part)', the defendants cannot set up as a counterclaim a cause of action in favor of their principal against the plaintiff f and in an action between sureties for contribution, the defendant cannot set up, by way of recoupment, set-off or counterclaim, an indebtedness of the plaintiff to the principal.^ So, in an action against the accommodation indorser of a note given for goods sold to the maker, the indorser cannot set up a breach of a contract of warranty as to the quality of the goods, by way of defense, re- coupment or counterclaim.' In an action against the guarantor of bonds, where the principal is not joined as a defendant, the guarantor cannot set up as a counterclaim a demand in favor of the principal only.^ But where an action is brought against both principal and surety, and both the plaintiff and the principal are insolvent, the sureties may set off an indebtedness of the plaintiff to their principal.'' And when a principal and surety are sued together, a successful recoupment by the former will inure to the benefit of the latter although the surety could not, if sued alone, avail himself of the defense.'' A defendant sued upon an individual liability cannot set up as a counterclaim a demand which he holds jointly with another against the plaintiff.* Thus, where three persons jointly purchase a quantity of merchandise, each giving his own note with an in- dorser for his share of the purchase-money, neither of such pur- chasers when sued upon his note can set up as a counterclaim a ' Code of Civil Pro., § 501. - Lasher v. Williamson, 55 N. Y. 619; Emery v. Baltz, 22 Hun, 434; Henry V. Daley, 17 Hun, 210; La Farge v. Halsey, 4 Abb. 397; 1 Bosw. 171; East Biver Bank v. Rogers, 7 Bosw. 493; Beers v. Waterbury, 8 Bosw. 396; Delano V. Rawson, 10 Bosw. 286. 8 Davis V. Toulmin, 77 N. Y. 280; O'Blemis v. Karing, 57 N. Y. 649. * Gillespie v. Torrance, 25 N. Y. 306. - Burroughs v. Garrison, 15 Abb. (N. S.) 144, 146. = Coffin V. McLean, 80 N. Y. 560. '' Springer v. Dwyer, 50 N. Y. 19; Newell v. Salmons, 23 Barb. 647. * Baldwin v. Briggs, 53 How. 80; Baldwin v. Berrian, 58 How. 81; Kiersted V. West, 13 Week. Dig. 106; Campbell v. Genet, 2 Hilt. 290. 264 The Answee. Counterclaims by persons sued in a representative capacity. breach of warranty or fraud in the sale.* Joint claims in favor of two of several defendants cannot be counterclaimed, set off or recouped where the action is such that a joint judgment cannot be rendered against such two separately from the others.^ But in an action against several defendants who are jointly and severelly liable, either may set up as a counterclaim a cause of action which he has individually against the plaintiff.^ In an action against two partners a several claim in favor of one defendant cannot be set up as a counterclaim.* § 26. Counterclaims by persons sued in a representative capacity. — In an action against an executor or an administrator or other person sued in a representative capacity, the defendant may set forth as a counterclaim, a demand belonging to the de- cedent or other person whom he represents, where the person so represented would have been entitled to set forth the same in an action against him." A defendant sued in an individual and not in a representative capacity cannot set up as a counterclaim a cause of action in his favor as executor.^ Where an agent sues the administrator of his deceased principal to recover for services rendered by him for the decedent in his life-time, it seems that the administrator may set up in his answer as a counterclaim, that the plaintiff became possessed of certain personal property of the intestate after his death and transferred the same with intent to defraud the estate, thereby causing great dam- age to the estate. '^ The question is not, however, free from doubt. § 27. Must be a cause of action against the plaintiff. — In order to sustain a counterclaim it must be a cause of action which ' Hopkins v. Lane, 87 N. Y. 501. ^ Bockover v. Harris, 11 Jones & Sp. 548; Nat. State Bank v. Bovlan, 3 Abb. N. C. 216. 3 Briggs V. Briggs, 20 Barb. 477; 15 N. T. 471; Newell v. Salmons, 23 Barb. 647; Parsons v. Nash, 8 How. 454. ' Hurlbut V. Post, 1 Bosw. 28; Peabody v. Bloomer, 8 Abb. 253; 5 Duer, 678; 6 Duer, 53; Pinckney v. Keyler, 4 E. D. Smith, 469. 'Code of Civil Pro., § 505. « Blood V. Kane, 52 Hun, 225. ' Lerche v. Brasher, 37 Hun, 385. The Answer. 265 Must be a cause of action against the plaintiff. the defendant has the right to enforce against the plaintiff/ or, in a proper case, agajnst the person whom he represents.^ The defendants in an action brought by several plaintiffs can- not set up as a counterclaim a cause of action which they have against one or two of sucli plaintiffs but not against all. The counterclaim must be a cause of action against all the plaintiffs.^ But where an action is brougiit l)y two plaintiffs and the cause of action is in fact owned by one, the defendant maj^ plead that fact and set up a counterclaim against the real party in interest as if the action had been brought by him alone."* In case the action is brought by a sole plaintiff the defendant cannot set up as a counter- claim a cause of action which he has against the plaintiff and some other person who is not a party to the action.'' In an action brought by a member of a firm for a demand due him individually, the defendant cannot set up as a counterclaim a demand against the firm.^ So in an action by a firm a counter- claim against one of the partners is not good.' If goods have been sold by a factor or agent in liis own name without disclosing liis principal, the purchaser, when sued by the principal for the price of the goods, may set off a debt due him from the agent, unless he knew, or had reason to believe that the vendor was selling as agent, or unless there were circumstances such as to put him on inquiry in this respect.* But the right of set-off is lost if the principal is disclosed before the goods are de- livered or the payment made.^ § 28. Counterclaims in actions upon assigned demands. — The general rule that the counterclaim set up in the answer must ' Cragin v. Level], 88 N". Y. 258, 363; McCulloch v. Vibbard, 51 Hun, 327. » Code of Civil Pro., S 501. » McCuUocli V. Vibbard, 51 Han, 337. " Covvles V. Cowles, 9 How. 361. « McCulloch V. Vibbard, 51 Hun, 337. « Ives V. Miller, 19 Barb. 196; Mynderse v. Snook, 1 Lans. 488. ' Goodwin v. Conklin, 6 Vfeek. Dig. 131. » Judson V. Stillwell, 36 How. 513; Pratt v. Collins, 20 Hun, 126; Bliss v. Bliss, 7 Bosw. 339. ' McLachlin v. Brett, 105 N. Y. 391. 34 266 The Answee. Counterclaims in actions upon assigned demands. be a cause of action against the plaintiff is subject to certain ex- ceptions. The Code provides that if the action is founded upon a eon- tract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand exist- ing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defend- ant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him.^ If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, a demand existing against a person who assigned or trans- ferred it after it became due, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him.^ It was formerly the rule that until a demand became matare, a set-off might be defeated by the assignment of the claim of the opposite party, though the latter was insolvent and his demand had not become payable when assigned.^ It was held under the old statute that in an action by an assignee of a demand for goods sold, the defendant could not offset a note made by the assignor which fell due after the assignment of the subject of the action." This was a mere application of the principle that the assignee took the contract assigned to him subject to the right of set-oft' which the debtor had against it at the time of the assignment, and that a set-off must be founded on an existing demand inpre- senti and not one that might be claimed infuturo!' And the principle was well established that to give a right to compel a set-off where there had been an assignment of a demand, both the debts must have been due and payable at the same time and be- ' Code of Civil Pro., § 502, subd. 1. 2 Code of Civil Pro., g 502, subd. 3. = Myers v. Davis, 22 N. Y. 489; Murray v. Deyo, 10 Hun, 3. ■> Martiu v. Kunzmuller, 37 N. Y. 396. ' Martin v. Kunzmuller, 37 N. Y. 896. The Answee. 267 Counterclaim in action by trustee or plaintifE without interest. fore a change in the ownership of either.' The same doctrine seems to have been recognized and applied in all the eases decided under the present Code. The Code provides that "where a claim or demand can be transferred, the transfer thereof passes an interest which the trans- feree may enforce by an action or special proceeding, or interpose as a defense or counterclaim, in his own name, as the transferror might have done, subject to any defense or counterclaim exist- ing against the transferror before notice of the transfer, or against the transferee ; " but it also provides that " this section does not apply where the rights or liabilities of a party to a claim or de- mand which is transferred are regulated by special provision of law, nor does it vary the rights or liabilities of a party to a nego- tiable instrument which is transferred."^ The Code also specifies the non-assignable claim or demands,^ and provides for tire assign- ment of a cause of action to cancel or otlierwise affect an in- strument executed or an act done as security for a usurious loan or forbearance,'' and for the assignment of a judgment, and the effect thereof.^ The right of defense, founded in a set-off or counterclaim as it is now defined as against an assignee, is wliolly statutory, and the allegations in support of it must in express terms bring such defense within the statute.'' . § 29. Counterclaim in action by trustee or plaintlflf without interest. — There is still another exception to the general rule 1 Taylor v. Mayor, etc., of N. Y., 83 N. Y. 10; Patterson v. Patterson, 59 N. Y. 574; Jordan v. Nat. Shoe & Leather Bank, 74 N. Y. 467; Coffin v. McLean, 80 N. Y. 560; Munger v. Albany City Nat. Bank, 85 N. Y. 580, 586; Newcomb V. Alney, 96 N. Y. 308. 'Code of Civil Pro., §1909. 3" Any claim or demand can be transferred except in one of the following cases; 1. Where it is to recover damages for a personal injury, or for a breach of promise to marry. 2. Where it is founded upon a grant which is made void by a statute of the State; or upon a claim to or interest in real property, a grant of which,'by the transferror, would be void by such a statute. 3. Where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy." Code of Civil Pro., § 1910. ^Code of Civil Pro., § 1911. 'Code of Civil Pro., § 1913. « Willover v. First Nat. Bank of Clean, 40 Hun, 184. 268 The Answer. Counterclaim in actions by an executor or administrator. that a counterclaim set up by a defendant must be a cause of ac- tion against the plaintiff. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff cannot be allowed as a counterclaim, but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintifPs demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested.' § 30. Counterclaim in actions by an executor or adminis- trator. — In an action brought by an executor or administrator in his representative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life-time ; and if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff in his representative capacity. Execu- tion can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the execu- tor or administrator.^ Where an executor or administrator has sold, on credit, personal property, belonging to the estate which he represents, and brings an action against the purchaser to recover the purchase-price, such action is properly brought by the plaintiff in an individual and not in a representative capacity ; and the defendant in such action cannot set up as a counterclaim a promissory note executed by the decedent to him.' Prior to the present Code, it was held that in an action by an executor for a cause of action arising after the testator's death, the defendant could not set off a demand against the testator, al- though it existed at the time of such death.'' It was held, in au- ' Code of Civil Pro., g 503, subd. 3. See Pendergast v. Greenfield, 40 Hun, 494; Willover v. First Nat. Bank of Olean, 40 Hun, 184. 5 Code of Civil Pro., § 506. 3 Thompson v. Whitmarsh, 100 N. T. 35. ■> Patterson v. Patterson, 59 N. Y. 674. The Answer. 269 Relation between the counterclaim and plaintiff's cause of action. other case, that in an action brought against a bank by the per- sonal representative of a deceased depositor to recover a deposit which was due and payable to the decedent in his life-time, the de- fendant could not, as a matter of law, and in the absence of facts giving a right to equitable relief, set off a claim against the de- ceased, whicJi did not become due until after his death. ^ These decisions, though made under the Revised Statutes, are applicable in similar cases under the Code." In an action by an executor to recover moneys due from the defendant to the testator at the time of his death, the defendant cannot set up as a counterclaitn a conversion by the plaintiff of securities which the defendant had deposited with the plaintifE's testator.' § 31. Relation between the counterclaim and plaintiff's canse of action. — The defendant may set up a cause of action on contract as a counterclaim in an action on contract, if it existed at the commencement of the action, and otherwise conforms to the requii-ements of the Code, although his cause of action did not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or is not connected with the subject of the action.* But in every other case, the cause of action set up as a coaiiterclaim, besides conforming to the other re- quirements of the Code, must either arise out of the contract or transaction set forth in the complaint as the foundation of the plain- tifE's claim, or must be connected with the subject of the action.* A defendant in an action on contract may set up as a counter- claim, a cause of action for tort, if it arose out of the contract or transaction set forth in the complaint as the foundation of the plaintifE's claim, or is connected with the subject of the action.® Thus, in an action on a promissory note damages for the conver- 1 Jordan v. Nat. Shoe & Leather Bank, 74 N. Y. 467. ' Wakeman v. Everett, 41 Hun, 278. 3 Wakeman v. Everett, 41 Hun, 278. * Code of Civil Pro. , § 501, subd. 3; Parsons v. Sutton, 66 N, Y. 93. > Code of Civil Pro., § 501; Hinkley v. Troy & Albia R. R. Co., 43 Hun, 381; Boreel v. Lawton, 90 N. Y. 293, 297; Edgerton v. Page, 20 X. Y. 281. ^Lerchev. Brasher, 37 Hun, 885; Cass v. Higenbotam, 100 N. Y. 248; Xenia Branch Bank v. Lee, 3 Bosw. 694; 7 Abb. 372. 270 The Answer. Relation between the counterclaim and plaintiff's cause of action. sion by the holder of property pledged to him as security for the payment of the note may properly be pleaded as a counter- claim.^ It was formerly the rule, that in an action for a tort a counter- claim, whether arising on contract or based upon another tort, could not be allowed. But this rule has been so far modified as to allow the defendant in an action for tort to interpose a counter- claim, whether arising on contract or based on tort, whenever such counterclaim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or whenever it is connected with the, subject of the action.^ But no counterclaim can be pleaded in an action for tort which does not either arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or is con- nected with the subject of the action." Thus, in an action founded on fraud, a counterclaim founded on contract cannot be allowed.'' So, in an action for an assault and battery, the defendant cannot set up by way of counterclaim an assault and battery committed on him by the plaintiff prior to the one described in the com- plaint.^ So in an action for tort the defendant cannot set up as a counterclaim the breach of a contract made long before the commission of the tort and having no connection with the subject of the action." So in an action for a conversion the defendant cannot set up as a counterclaim an independent demand on con- tract.'' A defendant in an action for a tort cannot set up as a counterclaim a cause of action arising out of an independent tort 1 Cass V. Higgenbotam, 100 N. T. 248. = Chamboret v. Caguey, 3 Sweeuy, 378; lO Abb. (N. S.) 31; 41 How. 135; Xenia Branch Bank v. Lee, 2 Bosw. 694; 7 Abb. 373; Brown v. Buckingham, 31 How. 190; 11 Abb. 387; Carpenter v. Manhattan Life Ins. Co., 33 Hun, 49; 93 N. Y. 553; Glen & Hall Manuf. Co. v. Hall, 61 N. X. 236. 3 Chamboret v. Cagney, 2 Sweeny, 878; 10 Abb. (N. S.) 31; 41 How. 135; Smith V. Hall, 67 N. Y. 48; Pattison v. Richards, 33 Barb. 143; Donahue v. Henry, 4 E. D. Smith, 163; People \. Dennison, 84 N. Y. 273; Hinkley v. Troy & Albia R. R. Co., 42 Hun, 381; Lehmair v. Griswold, 8 Jones & Sp. 100; As- kins V. Hearns, 3 Abb. 184; Schnaderbeek v. Worth, 8 Abb. 37. ■ People V. Dennison, 84 N. Y. 273. - Barhyte v. Hughes, 33 Barb. 330. = Pattison v. Richards, 22 Barb. 143. ' Chambers v. Lewis, 11 Abb. 210. The Answer. 271 Relation between the counterclaim and plaintiff's cause of action. of the plaintifi not connected with the subject of the action.^ But the mere fact that the plaintiff sues for a tort does not of itself preclude the defendant from setting up a tort as a counter- claim. The right to interpose a counterclaim is not determined by the form which the plaintiff has given to his action. Thus, in an action to recover damages for the conversion of a quantity of cord wood, the defendant may allege as a counter- claim that he held a mortgage on the lands from which the trees were cut which produced the wood in controversy ; that the plaintiff was a junior mortgagee in possession ; and, knowing that the land was insufScieut security for the payment of defendant's mortgage, and that the mortgagor was insolvent, wrongfully, fraudulently, and with intent to cheat the defendant and to im- pair the security of his mortgage, committed waste on the mort- gaged premises by cutting said wood therefrom, to the defend- ant's damage.^ So in an action to restrain the violation of a trade- mark, the defendant may allege as a counterclaim that he is the owner of the trade-mark, that the plahitiff has wrongfully used it, and ask that the defendant be restrained from such use and be required to pay damages for the infringement.^ So in an action to restrain the defendants from diverting the water from the plaintiff's mill, the defendants may allege as a counterclaim a right to the water superior to that of the plaintiff, a diversion of water to which they were entitled, and an encroachment on their rights therein by the plaintiff to their damage, and ask judgment that the plaintiif be enjoined and for damages.* In an action to obtain the construction of a will and to have certain trusts therein declared void, and the title and right to the possession of certain lands therein devised adjudged to be in the plaintiff, the defendant may set up his character as trustee under the will, that the acts done by him were done as such trustee, and may allege in substance as a counterclaim that the plaintiff in violation of defendant's rights as such trustee had unlawfully col- 1 Chamboret v. Cagney, 2 Sweeny, 378; Askins v. Hearns, 3 Abb. 184; Bar- iyte V. Hughes, 33 Barb. 320. 5 Carpenter v. Manhattan Life Ins. Co., 33 Hun, 49; 93 N. Y. 553. 3 Glen & Hall Manuf . Co. v. Hall, 61 N. Y. 336. - * Grange v. Gilbert, 44 Hun, 9. 272 The Answek. Relation between the counterclaim and plaintiff's cause of action. lected divers rents arising out of the trust property aud converted the same to his own use and refused to account therefor, and may pray as affirmative relief for a judgment in liis favor against the plaintiff for the rent so collected, and in effect that the trusts of the will and the rights thereunder be adjudicated in his favor. Such a counterclaim is connected with the subject of the action within the meaning of the Code.^ In an action by the grantee of lands to set aside, as a cloud upon title, a subsecjuent deed to the defendant, which was iirst recorded, the defendant may allege and prove as a counterclaim that the plaintiff's deed was fraudu- lently obtained and ask to have the same set aside.- It has been held that in an action by an attorney for the value of his services in specified suits, the defendant may interpose a counterclaim for loss arising from the advice of such attorney in other suits. ^ Eut it must be admitted that the connection between the counter- claim and subject of the action in this case is exceedingly attenuated. It is not always easy to determine whether a cause of action arises out of a contract or transaction set forth in the complaint, or whether it is connected with the subject of the action within the meaning of the Code. The subject of an action may be either property or a violated right.* In an action for conver- sion the subject of the action is the property converted.^ In an action for rent, the subject of the action is the rent agreed to be paid for the use of the premises.'' In some cases the sub- ject of the action has been construed to mean the facts constitut- ing the cause of action.' The requisite of connection of the defendant's cause of action with the subject of the plaintiff's action is not defined or restricted by tlie provisions of the Code. That act only requires some connec- 1 O'Brien v. Garniss, 25 Hun, 446. 2 Moody V. Moody, 16 Hun, 189. 3 Harlock V. Le Baron, 1 Civ. Pro. E. 168. ■* Glen & Hall Mauuf . Co. v. Hall, 61 N. Y. 236. ^ Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 553. « Edgerton r. Page, 30 N. Y. 281; Drake v. Cockcroft, 10 How. 377. ■< Chamboret v. Cagney, 41 How. 125; 3 Sweeny, 378; 10 Abb. (N. S.) 31; Lehmair v. Griswold, 8 Jones & Sp. 100. The Answer. 2T3 Counterclaim in actions on contract. tion.' The counection may be slight or intimate, remote or near, and it may be difficult to determine where the line is to be drawn. But the counterclaim must have such a relation to and connection with the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one action by one litigation, and that the claim of the defendant should be offset against or applied upon that of the plaintiff." If the defendant's claim arises out of a contract or transaction set forth in the complaint as an essential part of the statement of the cause of action and without which the plaintiff would have no standing as a litigant, the case comes within the class of counter- claims allowed by the Code. If the action is brought by a pur- chaser of real estate to recover back the portion of the purchase- price paid on the execution of the contract of sale upon the ground that the title might be defeated by the discovery of a will or that the land might be subject to the debts of a deceased former owner, an answer alleging the non-existence of such debts, the readiness and ability of the defendant to carry out the agreement, and de- manding judgment for a specific performance of the contract by the plaintiff, presents a proj)er subject of counterclaim.^ Where the counterclaim set up does not consist of a cause of action on contract, the fact that it grew out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff's claim should be properly pleaded.^ § 32. Counterclaim in actions on contract. — In an action on contract, any other cause of action on contract may be pleaded as a counterclaim if it existed at the commencement of the action, and in other respects conforms to the requirements of the Code.'^ ' Metropolitan TrustaCo. v. Tonawanda R. R. Co., 43 Hun, 521. ' Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 553. 3 Moser v. Coclirane, 107 N. Y. 35. " Hinkley v. Troy & Albia R. R. Co., 43 Hun, 381. Facts should be pleaded showing that the counterclaim grew out of or was connected with the con- tract or transaction set up as the foundation of the plaintiff's claim. Brown v. Buckingham, 21 How. 190; 11 Abb. 387. » Code of Civil Pro.. § 501, subd. 3. 35 274 The Answer. Counterclaim in actions on contract. It is essential to a counterclaim that it exists in tlie hands of the defendants who set it up at the time of the commencement of the action. The rights of the parties become fixed according to the facts existing at the time when the action is commenced. It is never proper for a party defendant to buy a defense or coun- terclaim after he is sued, and if it does not appear from the an- swer that the counterclaim was in the hands of the defendant at the time the action was commenced, the answer is demurrable.' But it seems that if after the commencement of the action, the defendant brings a cross-action on contract against the plaintifE and recovers a judgment therein before tlie trial of the first suit, he may set up such judgment as a counterclaim in the first suit by way of amended answer.^ The counterclaim interposed by the defendant may be for liquidated or unliquidated damages, if such damages arise upon contract,^ whether it is the contract in suit or an independent contract.'' It may consist of an eqxiitable defense although the action is upon a purely common-law demand," or it may consist of a cause of action for a tort if it arose out of the contract set forth in the complaint as the foundation of the plaintifE's claim, or is connected with the subject of the action,^ and is so pleaded as to show that fact.' In an action to recover the amount of rent fixed by a lease, wrongful acts of the plaintiff, not done under a claim of right, but amounting to mere trespass or negligence, do not form the subject of a counterclaim, as they do not arise out of the contract in suit, are not connected with the subject of the ' Mayo V. Davidge, 44 Hun, 343; Rice v. O'Connor, 10 Abb. 363; Heiden- lieimer v. Wilson, 31 Barb. 636; Van Valen t. Lapham, 5 Duer, 689; Cbam- bers V. Lewis, 11 Abb. 310. - Badlam v. Springsteen, 41 Hun, 160. But see post, Ch. XX, § 1. ^ Schubart v. Harteau, 34 Barb. 447. " Lignot v. Eedding, 4 E. D. Smitli, 385. .■., = Hicksville, etc.. P.. R. Co. v. Long Island R. R. Co., 48 Barb. 355; Currie V. Cowles, 6 Bosw. 453. « Cass V. Higenbotam, 100 N. Y. 348; Xenia Brancli Bank v. Lee, 3 Bosw. 694; 7 Abb. 873; Lerche v. Brasber, 87 Hun, 385. '■ Hinkley v. Troy & Albia R. R. Co., 43 Hun, 381; Brown v. Buckingliam, 21 How. 190; 11 Abb. 387. The Answee. 275 Counterclaim in actions on contract. action, and do not constitut a demand on contract.' To be the subject of a counterclaim the acts of the landlord must amount to a breach of the contract of letting.^ But in such action the defendant may recoup damages sustained by breach of an implied covenant for quiet enjoyment,^ or may counterclaim the damages which he has sustained by reason of the breach of the landlord's agreement that repairs on the demised premises should be made with diligence, care, and caution;'* or damages arising from a breach of the landlord's agreement to keep the demised premises in repair ; ^ or the expenses incurred by the defendant in making such repairs, and damages for the loss of part of the premises through want of repair ;^ or damages sustained by reason of being deprived, through the act of the plaintiff, of a valuable appurte- nance which defendant was entitled to enjoy under the terms of the lease ; '' or damages by reason of the plaintiff's fraud.^ So in an action to recover possession of land for non-payment of rent the defendant may set up as a counterclaim a partial eviction from an easement granted by the lease in lands other than those men- tioned in the complaint.^ In an action by the purchaser for the breach of a contract for the sale and delivery of goods, the defendant may set up a rescission of the contract on the ground of fraud or mistake, and also a breach of warranty on the part of the plaintiff.'" Where goods have been sold in good faith with a warranty of quality the ven- dee is not bound to rescind the contract on the discovery of a lEdgertonv. Page, 20 N. T. 281; Boreel v. Lawton, 90 N. Y. 293; Mayor, etc., of N. T. V. Mabie, 13 N. Y. 151; Drake v. Cockroft, 4 E. D. Smith, 34; 10 How. 377; 1 Abb. 303. » Walker v. Shoemaker, 4 Hun, 579. 3 Mayor, etc., of N. Y. v. Mabie, 13 N. Y. 151. But the defendant must show an actual eviction, or a constructive eviction and abandonment of posses- sion. Boreel v. Lawton, 90 N. Y. 393. ^ Walker v. Shoemaker, 4 Hun, 579. ^ Cook V. Soule, 56 N. Y. 420. « Myers v. Burns, 35 N. Y. 269. ' Morgan v. Smith, 5 Hun, 230, » Staples V. Anderson, 3 Rob. 337 9 Blair v. Claxton, 18 N. Y. 529. 10 Bruce v. Burr, 67 N. Y. 387. 276 The Answer. Counterclaim in action of foreclosure. breach of the warranty, but may, if he so elects, nse the articles and rely upon the warranty and enforce it by a direct action for damages, or by way of eonnterclaim, or by way of recoupment when sued for the price. Tiie rule is the same whether the goods are in existence at the time of the contract of sale, or are to be manufactured.' In an action by an assignee against a municipal corporation to recover the salary of a municipal officer, the defendant may set off a claim for moueys of the corporation unlawfully paid to and received by such officer.^ In an action for the price agreed to be paid for the manufacture of the material furnished by the defend- ant into an article of merchandise, the defendant may set up as a counterclaim a conversion of a part of the material by the plain- tiff.^ So in an action to recover a balance alleged to be due for work done under a written contract, the defendant may set up as a counterclaim the cost of work done by him in completing the contract under a clause thereof authorizing him to complete the work and charge the expense to the plaintiff in case of the failure of the latter to fully perform the work required by the agree- ment.'' § 33. Counterclaim in action of foreclosure. — A party to an action to foreclose a mortgage, against whom either a personal judgment or one which may operate to transfer his estate in the land is sought, has a right to set up a counterclaim as a defense to the action.^ In an action to foreclose a mortgage given as security for a joint bond executed by the mortgagor and another as surety, in which a personal judgment is demanded against both the mortgagor and ' Dounce v. Dow, 57 N. Y. 16; Brigg v. Hilton, 99 N. Y. 517; Muller v. Eno, 14 N, Y. 597; Kent v. Friedman, 101 N. Y. 616; Day v. Pool, 53 X. Y. 416; Parks V. Morris As & Tool Co., 54 N. Y. 586; Gurney v. Atlantic, etc., Ry. Co., 58 N. Y. 358. See also Lemon v. Trail, 13 How. 248; Warren v. Van Pelt, 4 E. D. Smith, 203; Hopkins v. Lane, 2 Hun, 38; 64 N. Y. 204; Walling T. Schwarzkopf, 7 Week. Dig. 439; Samson v. Freedman, 103 N. Y. 699. ' Wood V. Mayor, 74 N. Y. 556. And see Donohue v. Mayor, 10 Hun, 37. 3 Wadley v. Davis, 63 Barb. 500. ■* Taylor v. Mayor, 83 N. Y. 635. ' Seligman v. Dudley, 14 Hun, 186; Lathrop v. Godfrey, 3 Hun, 739. The Answee. ■* 277 Counterclaims agaiust co-defendants. surety for any deficiency, the defendants may set up as a counter- claim a debt due from the phxintifi to the mortgagor.^ An obKgor in the bond secured by the mortgage, against whom a judgment for a deficiency is asked, may set up as a counterclaim any other cause of action on contract which he has against the plaintifl: at the time of the commencement of the action.^ And where at the time of the execution of a purchase-money mortgage, and as a part of the same transaction, a written agreement is entered into between the parties containing covenants on the part of the mortgagee, the damages sustained by the mortgagor from a breach of such cove- nants may be set up as a counterclaim in an action to foreclose the mortgage.^ § 34. Counterclaims against co-defendants. — The Code pro- vides that the court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others or by saving their rights.* It also provides that where the judgment may determine tJie ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determi- nation, and personally, or as the court or judge may direct, upon defendants so to be affected, who have not duly appeared therein by attorney ; but it further provides that the' controversy between the defendants shall not delay a judgment to which the plaintiff is entitled, unless the court otherwise directs.^ It also provides that judgment may be given for or against one or more plaintiffs and for or against one or more defendants ; may determine the ultimate rights of the pai'ties on the same side, as between them- selves ; and may grant to a defendant any affirmative relief to which he is entitled." 1 Bathgate v. Haskin, 59 N. Y. 533. 2 Hunt V. Chapman, 51 N. Y. 555. = Sandford v. Travers, 40 N. Y. 140. ■I Code of Civil Pro., §453. = Code of Civil Pro., § 531. « Code of Civil Pro., 8 1304. 278 ' The Answer. Counterclaims against co-defendants. JSTeitlier of these sections of the Code, nor any others, have been so far extended as to permit the defendants by their answers to add to the case a further cause of action disconnected from and inde- pendent of that stated and set forth in the complaint.^ They were intended to follow and preserve the powers exercised by courts of equity in actions brought for their determination, as that was permitted and sanctioned by the law and practice previously existing ; and by that practice as well as by the language of these sections, the rights of the defendants to be determined between themselves must necessarily be those arising out of or connected with or resulting from the cause of action set forth and maintained by and in favor of the plaintiff.^ Section 521 of the Code of Civil Procedure confers no new powers upon the courts acting in equity, but is simply a regulation of practice.^ Under the provision of section 274 of the Code of Procednre for the determination of the ultimate rights of the "(Jlrties on each side as between them- selves, the relief which the defendants might have as against each other was such only as was based upon the facts involved in the litigation of the plaintiff's claim, and as a part of the adjustment of that claim, and not such as was based upon claims with which the plaintiff had nothing to do, and which were properly the sub- ject of an independent litigation between such defendants.* Where the complaint in an action to foreclose a mortgagealleges that two of the defendants hold prior mortgages upon the prem- ises, the amount due upon which is unknown to the plaintiff, and prays for the usual decree of foreclosure and sale and that the mortgages of the plaintiff and of the defendants respectively be paid and satisfied out of the avails of the sale according to their respective priorities, the mortgagor cannot serve an answer raising an issue between himself and one of his co-defendants as to the validity and amount due upon the prior mortgage alleged to be held by such co defendant.'' But where the plaintiff, in an action to 1 Smith V. Hilton, 50 Hun, 336; Rafferty v. Williams, 34 Hun, 544; Lansing- V. Hadsall, 40 Hun, 619. See Derliam v. Lee, 87 N. Y. 599, 604. ' Smith V. Hilton, 50 Huu, 285. See Jones v. Grant, 10 Paige, 348. 3 Albany City Savings lust. v. Burdiok, 87 N, Y. 40. Kay V. Whittaker, 44 N. Y. 565. ' Lansing v. Hadsall, 26 Hun, 619. The Answee. 2Y9 Counterclaims and set-offs in equity. foreclose a mortgage, makes senior mortgagees parties, and in his complaint asks to have the amonnt of such senior mortgages ascertained, and that they be paid out of the proceeds of the sale and their lien discharged, or that the sale be made subject to the amonnt of their liens, either of such senior mortgagees may by answer allege the facts essential to the maintenance of an action to foreclose his mortgage, demand the usual judgment of fore- closure and sale, serve his answer on the attorneys for the plain- tiff and other defendants, and obtain a judgment of foreclosure and sale as if he had brought a cross-action for that purpose/ § 35. Counterclaims aud set-oifs in equity. — While as a gen- eral rule courts of equity follow the rules of law in enforcing set-offs, they exercise an original jurisdiction over the subject, and in cases of pecuhar equity and under special circumstances will enforce a set-off in cases not within the letter of the statute.^ This power is always exercised with caution and only in a case where the equity invoked is entirely clear and certain. It is never justi- fied save where other remedies are impossible and where the de- mand allowed is put beyond reasonable doubt.' Insolvency of a party against whom a set-ofE is demanded some- times moves a court of equity to grant a set-ofE which would not be allowed at law.* The general rule is that equity requires that cross-demands be set off against each other if from the nature of the claim or the situation of the parties justice cannot other- wise be done.^ But a set-off will not be decreed when the equi- ties of other parties are superior to those of the creditor claiming it.° An equitable offset is now embraced in the definition of a counterclaim.'' 1 Metropolitan Trust Co. v. Tonawanda, etc., R. R. Co., 43 Hun, 521; 18 Abb. N. C. 368; 106 N". Y. 673. * Bathgate V. Haskin, 59 N. Y. 533; Lindsay v. Jackson, 3 Paige, 580; Jor- dan V. Nat. Shoe & Leather Bank, 74 N. Y. 467. ' Armstrong v. McKelvey, 89 Han, 313; 104 N. Y. 179. ■•Jordan v. Nat. Shoe & Leather Bank, 74 N. Y. 467, 473; Smith v. Felton, 43 N. Y. 419; Coffin v. McLean, 80 N. Y. 560, 564; Davidson v.,Alfaro, 80 N. Y. 860; Acer v. Hotchkiss, 97 N. Y. 395, 409. ' Id.; Gay v. Gay, 10 Paige, 369; Knapp v. Burnham, 11 Paige, 333. « Coffin V. McLean 80 N. Y. 560. ' Acer V. Hotchkiss, 97 N. Y. 395, 410. 280 ■ The Answer. Mode of pleading a counterclaim. §36. Mode of pleading a counterclaim. — A counterclaim should be pleaded in the same manner that the defendant would plead the same facts if stated in a complaint in an action brought by him against the plaintiff. It is in effect a complaint in a cross- action ; and the general rules governing the statement of a cause of action in a complaint apply to the statement of the facts con- stituting a counterclaim. JSTo particular form of words is necessary to make a pleading a counterclaim, but it should in some manner apprise the plaintiff that the defendant intends to make a personal claim against him. The ordinary and most satisfactory form of giving that intima- tion is by a statement that the pleading is a counterclaim or by a prayer for relief.' The pleader should never characterize a counter- claim as a " defense" as he may thereby preclude himself from claiming the benefit of it as a counterclaim,^ especially where the defendant claims any benefit from a failure to reply.^ Where the defendant deems himself entitled to an affirmative judgment against the plaintiff by reason of a counterclaim inter- posed by him he must demand the judgment in his answer.*, If he seeks to recover damages he should claim all he is entitled to recover, as a defendant is as much concluded by the amount of damages he claims in his counterclaim as a plaintiff would be by the damages claimed in his complaint.'^ If the action is on con- tract, and the counterclaim set up is another cause of action on contract, the answer should allege facts showing that the cause of action set up existed at the time the action was commenced.*^ If the plaintiff's action and the defendant's counterclaim are not both causes of action on contract, the defendant should allege 1 Bates v. Rosekrans, 37 N. Y. 409; 4 Abb. (N". S.) 376. 2 Bates V. Rosekrans, 37 N. Y. 409; 4 Abb. (N. S.) 276; Simmons v. Kayser, 11 Jones & Sp. 131. See Acer v. Hotchkiss, 97 N. Y. 395; Van Brnnt v. Day, 81 N. Y. 2.j1; 8 Abb. N. C. 336; Wilder v. Boughtoa, 63 Barb. 547. 2 Equitable Life Tns. Co. v. Cuyler, 75 N. Y. 511; Cockerill v. Loonan, 36 Hun, 353. ■" Code of Civil Pro., § 509; Sbute v. Hamilton, 3 Daly, 463. ^ Annis v. Upton, 66 Barb. 370. ^ See Mayo v. Davidge, 44 Hun, 343; Rice v. O'Connor, 10 Abb. 363; Heiden- heimer v. Wilson, 31 Barb. 636; Van Valen v. Lapliam, 5 Duer, 689; Chambers V. Lewis, 11 Abb. 210. The Answer. 2S1 Mode of trial, and judgment on counterclaims. facts showing either that his counterclaim is a cause of action arising out of the contract or transaction set forth in the com- plaint as the foundation of the plaintiff's claim, or that it is con- nected with the sttbject of the action.^ Where the complaint is not verified and the answer sets up a s counterclaim and also a defense by way of denial or avoidance, the defendant vaaj verify the counterclaim only" and thus compel the plaintiff to either verif)' his replj^,^ or permit the defendant to apply to the court for judgment for want of a reply.* § 37. Mode of trial, and judgment on counterclaims. — Where the defendant interposes a counterclaim and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment.' Where a counterclaim is established which equals the plaintiff's demand the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand the plaintiff must have judg. ment for the residue only. Where it exceeds the plaintiff's de- mand the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. Where part of the ex- cess is not due from the plaintiff, the judgment does not preju- dice the defendant's right to i-ecover from another person so much thereof as the judgment does not cancel.- In a case not above specified, where a counterclaim is established which entitles the defendant to an affirmative judgment demanded in the answer judgment must be rendered for the defendant accordingly.' Where the action is brought by an executor or administrator in ' Hinkley v. Troy & Albia E. R. Co., 43 Hun, 281; Brown v. Buckingham, 21 How. 190; 11 Abb. 387. 'Code of Civil Pro., S 527. 5 Code of Civil Pro., § 523. * Code of Civil Pro., § 515. = Code of Civil Pro. , § 974. « Code of Civil Pro., § 503. ' Code of Civil Pro., § 504. 36 282 Demueree to the Answer. When a demurrer to the answer is authorized. his representative capacity and a demand against the decedent has been set up as a counterclaim and a balance found due the defendant, judgment therefor must be rendered against the plain- tiff in his representative capacity.' If one or more of the de- fendants has interposed an answer demanding the determination of the ultimate rights between himself and a co-defendant, and has served a copy of his answer upon the attorney for the co-de- fendant twenty days before the trial, the judgment may determine such rights and may grant to the defendant any affirmative relief tO' which he is entitled.^ In an action upon contract, where the complaint demands judg- ment for a sum of money only, if the defendant by his answer does not deny the plaintiff's claim, but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff upon fil- ing with the clerk an admission of the counterclaim may take judgment for the excess as upon a default for want of an answer.^ CHAPTER XII. Demcteeee to the Answee. Section 1. When a demurrer to the answer is authorized. — The plaintiff may demur to a 'counterclaim or a defense con- sisting of new matter contained in the answer, on the ground that it is insufficient in law, upon the face thereof.* The plaintiff may also demur to a counterclaim upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto appear on the face of the counterclaim. 1. That the court has no jurisdiction of the subject thereof. 2. Tliat the defendant has not the legal capacity to recover upon the same. ' Code of Civil Pro., § 506. ^ Code of Civil Pro., § 1204. 3 Code of Civil Pro., § 513. * Code of Civil Pro., § 494. Demtjkeee to the Answer. 283 Wlien a demurrer to the answer is authorized. 3. That there is another action pending between the same par- ties for the same cause. 4. That the counterclaim is notof the character specified in sec- tion 501 of the Code. 5. That the counterclaim does not state facts sufiicient to con- stitute a cause of action.- It is only where the answer contains new matter that a demur- rer will lie. There can be no demurrer to a denial of the allega- tions of the complaint, however defective it may be.^ The provision of the Code of Civil Procedure,^ that the plain- tiff may demur to a counterclaim or a defense consisting of new matter, on the ground that it is insufficient in law, upon the face thereof, is a substitute for the provision of the former Code, that " the plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constituue a counterclaim or defense." * The Code does not define insufficiency in pleading, further than to declare that chapter 6 of that act prescribes the rules by which the sufficiency of a pleading is to be determined,^ and it may be that any pleading that fails to conform to the require- ments of that act may be said to be insufficient. It has been sug- gested, though not determined, that a count in an answer which assumes to set up new matter in avoidance of the charge in the com- plaint, without confessing the charge, or, in other words, which sets up a defense in a hypothetical form, is insufficient in law upon its face, and therefore subject to demurrer.'' An answer which merely affects the amount of damages to be recovered, which confesses but does not avoid the cause of action stated in the complaint, and which does not state that the, facts relied upon are intended as a par- tial defense, as required by section 508 of the Code, will be assumed, 1 Code of Civil Pro., § 495. » Lund V. Seaman's Savings Bank, 23 How. 258; 37Barb. 129; Rice v. O'Con- nor, 10 Abb. 362; Smith v. Greenin, 3 Sandf. 702; Maretzeek v. Cauldwell, 2 Rob. 715; 19 Abb. 35; Ketcham v. Zerega, 1 E. D. Smith, 553. "Code of Civil Pro., S 494. ••Code of Procedure, § 153. 5 Code of Civil Pro., § 518. ' Goodman v. Robb, 41 Hun, 605, citing Lewis v. Kendall, 6 How. 59; Bud- dington v. Davis, 6 How. 401. To the contrary, see Taylor v. Richards, 9 Bosw. 679. 284: Demueebe to the Answee. When a demurrer to tlie answer is authorized. on demurrer, to have been pleaded as a complete defense, and will be beld insufficient.' An answer which attempts to set up new matter as a defense, but which states no fact, but merely a conclu- sion of law, such as an allegation that the plaintiff is not the real party in interest, is insufficient in law upon its face, and demur- rable.^ And generally, an answer which professes to set up new matter as a defense, but which does not state facts which consti- tute a defense, may be demurred to for insufficiency.' In fact, a demurrer is the appropriate and only remedy by which to present to the court, for determination, the question of the sufficiency of a pleading in stating a defense.* So, where an answer sets up the semblance of a cause of action against the plaintiff, the question whether it presents a valid counterclaim within the Code should be determined either by demurrer or by motion on the trial.' A demurrer to a counterclaim, on the ground that the court has no jurisdiction of the subject thereof, is well taken if the court where the counterclaim is asserted would have no jurisdic- tion to hear and determine the cause of action so set up by the de- fendant if it had been made the subject of an independent action.' A demurrer under the fourth subdivision of section 495 of the Code that the counterclaim is not of the character specified in section 501 of that act, is well taken where the action is on con- tract, and the counterclaim is for a tort, and there are no allega- tions in the answer showing that the defendant's cause of action arose out of the contraact set forth in the complaint as the founda- tion of the plaintiff's claim, or that it is connected with the sub- ject of the action.^ So a demurrer under this subdivision is well > Thompson v. Halbert, 109 N. Y. 339; Matthews v. Beach, 5 Sandf. 256; 8 N. Y. 173. « White V. Dralie, 8 Abb. N. C. 133; Hammond v. Earle, 58 How. 426. 3 Knox V. Commercial Agency, 40 Hun, 508; Merritt v. Millard, 5 Bosw. 645; Fabricotti v. Launitz, 3 Sandf. 743. * Walter v. Fowler, 85 N. Y. 631; Hagerty v. Andrews, 94 N. Y. 195; Hub- bard V. Ororham, 38 Hun, 163. 'Walter v. Fowler, 85 N. Y. 631; Fettretch v. McKay, 47 N. Y. 426; 11 Abb. (N. S.) 453; Collins v. Suau, 7 Bob. 94; Westervelt v. Ackley, 62 N. Y. 505. « Cragin v. Lovell, 88 N. Y. 358. ' Bell V. Lesbini, 66 How. 385. See Brown v. Buckingham, 21 How. 190; 11 Abb. 387. Demueeer to the Answee. 285 Mode of taking the demurrer. taken where the action is on contract and the counterclaim is also on contract, and there is no allegation showing that' the de- fendant's cause of action existed at the commencement of the action.' So a demurrer to a counterclaim under this subdivision is well taken if, assuming that both the plaintiff and the defend- ant have set forth valid claims against each other, the right to recover by the defendant could not properly defeat or diminish the recovery by the plaintiff.^ § 2. Mode of taking the demurrer. — A demurrer to a de- fense or counterclaim under section 491 of the Code is suf- ficiently specific if it assigns as the ground of demurrer that the defense or counterclaim is insufficient in law upon the face thereof. But where the demurrer is taken to a counter- claim, upon which the defendant demands an affirmative judg- ment, upon the ground that it appears on the face of the counter- claim either that the court has not jurisdiction of the subject thereof, or that the defendant has not legal capacity to recover upon the same, or that there is another action pending between the same parties for the same cause, or that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure, or that the counterclaim does not state facts sufficient to constitute a cause of action, it must distinctly specify the ob- jections to the counterclaim, as otherwise it may be disregarded. The mode of specifying the objections is the same as where a demurrer is taken to a complaint.^ The mode of specifying objections on demurrer to a complaint has been considered in a preceding chapter.* Strictly speaking, a plaintiff demurring to several defenses con- tained in the same answer should interpose a separate demurrer to each defense, as he cannot be said to have succeeded on his de- murrer if it should chance to be sustained as to one defense and overruled as to the other. But even in that case judgment may be ordered in his favor as to the demurrer to the count held de- - Mayo V. Davidge, 44 Hun, 342. ' Grange v. Gilbert, 44 Hun, 9. 3 Code of Civil Pro., §496. ^ See ante, p. 203. 286 Demueeee to the Answee. Principles governing the decision on demurrer. fective, and in the defendant's favor as to the demurrer to the count in the answer held good, without costs to either party as against the other/ or the demurrer may be overruled.^ § 3. Principles governing the decision on demurrer. — In determining the issues raised by demurrer each count of the an- swer demurred to will be considered separately, as if it stood alone, and must stand or fall according to the matter it con- tains.' Unless the answer states that it is a partial defense to the entire complaint, or to one or more separate causes of action therein set forth, it will be assumed to have been intended as a complete defense, and will be tested as such on demurrer.* If the answer states that it is a partial defense, the question on de- murrer is, whether it is sufficient for that purpose.' Upon the argument of a demurrer to an answer setting up new matter as a defense, the defendant may attack the complaint upon the ground that the court has no jurisdiction, or upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and if the objections to the complaint are found to be well taken, the defendant will be entitled to judgment not- withstanding' the defects in the answer.^ Any defense, however ' Hollingsliead v. Woodward, 35 Hun, 410; Grange v. Gilbert, 44 Hun, 9. 2 Ross V. DuflEy, 12 St. Rep'r, 584. ' Hammond v. Earle, 58 How. 436; Baldwin v. United States Tel. Co., 54 Barb. 505; 6 Abb. (N. S.) 405; 1 Lans. 135; Ayres v. Covill, 18 Barb. 260; Spencer v. Babcock, 22 Barb. 326; Ayrault v. Cliamberlain, 33 Barb. 229; ante, p. 70. i ■■ Thompson v. Halbert, 109 N. Y. 329. 5 Code of Civil Pro., §508. * Fry V. Bennett, 5 Sandf. 54; Schwab v. Furniss, 4 Sandf. 704; Noxon v. Bentley, 7 How. 316; Newman v. Board of Supervisors, 1 Lans. 476; People V. Booth, 33 N. Y. 397; People v. Banker, 8 How. 358; Allen v. Malcolm, 12 Abb. (N. S.) 335; Harvey v. Brisbin, 16 St. Rep'r, 43; 50 Hun, 376; Clay County V. Simonsen, 1 Dak. Ter. 403. In some of the States it is held that a de- murrer to an answer reaches to the complaint, and that if the complaint is insufficient the demurrer to the answer should be overruled, whether the answer is good or bad. Scott v. State, 89 Ind. 368; Dorrell v. Hannah, 80 Ind. 497; Menifee v. Clark, 35 Ind. 304; Westv. Bowen, 45 Miss. 347; Com- monwealth v. Pittsburgh, etc., R. R. Co., 58 Penn. St. 26; Lockwood v. Bige- low, 11 Minn. 113; Wile v. Sweeney, 2 Duval, 161; Leslie v. Harlow, 18 N. H. 518; Ward v. Stout, 33 111. 399; Balcombe v. Northup, S Minn. 173. On the The Eeplt. 287 When a reply is required to form an issue. defective, is a sufficient answer to a complaint so radically insuffi- cient as to call for no answer.^ But it is extremely doubtful whether in this State a defect in the complaint can be attacked on a demurrer to a counterclaim.^ Under the Wisconsin statute a counterclaim in the answer is a pleading to the complaint, and where the latter discloses want of jurisdiction or fails to state a cause of action, a demurrer to the counterclaim goes back to the complaint.' The general rule that upon demurrer the court will consider the whole record and give judgment against the party who com- mitted the first error in pleading is subject to the limitation that when a defendant, to whose pleading a demurrer has been inter- posed, has pleaded a plea such as the general issue going to the whole declaration, or to a part of it, he cannot be allowed to go back to the declaration upon a demurrer to another plea or plead- ing upon the principle that he cannot demur and plead to the same count.* CHAPTER XIII. The Ebply. Sectioit 1. When a reply is required to form an issue. — Where the answer contains a counterclaim, the plaintifE, if he does not demur, may reply to the counterclaim.' So where an same principle it has been held that a bad reply to a bad answer will be held good on demurrer. Ashley v. Foreman, 85 Ind. 55; Ellis v. Kenyon, 35 lud. 134. But in other States it has been held that the common-law rule that the demurrer goes back to the first faulty pleading on either side is abrogated by a proviision of the Code requiring the demurrer to state the objection relied upon. Hobs V. Memphis, etc., R. R. Co., 13 Heisk. 536. And see Russ v. Mitchell, 11 Fla. 80. 1 Allen V. Malcolm, 13 Abb. (N. S.) 335. ' Graham v. Dunnigan, 6 Duer, 629; 4 Abb. 436; Peck v. Brown, 2 Rob. 119; 26 How. 350. 3 Lawe V. Hyde, 39 Wis. 345. ^ Wheeler v. Curtis, 11 Wend. 654; Morey v. Ford, 33 Hun, 446. ' Code of Civil Pro., § 514. 288 The Eeply. When a reply is required to form an issue. answer contains new matter constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's ap- plication, direct the plaintiff to reply to the new matter. In that case the reply, and the proceedings upon failure to reply, are sub- ject to the same rules as in case of a counterclaim.^ Except when ordered by the court no reply is required or authorized unless the answer sets up a counterclaim.^ A defense by way of new mat- ter not constituting a counterclaim is deemed controverted,^ and the plaintiff without pleading may traverse or avoid it and is en- titled to the benefit of every possible answer to it the same as if pleaded. For that purpose evidence admissible under the prin- ciples of either law or equity takes the place of pleading.* No reply is necessary to an answer setting up new matter which is therein stated to be pleaded as a "defense," at least if there is, any doubt whether a counterclaim was intended f or where the new matter is not set up as a counterclaim and the defendant avers his intention to recoup his damages against any liability that might be proved against him f or where the defense of set- off is pleaded ;^ or where the answer sets up payments as a coun- terclaim and demands judgment for costs.* In an action to recover the possession of a chattel where the answer contains no denial of the plaintiff's ownership, but sets up a lien upon it for services rendered, and prays judgment in his favor and damages for the wrongful taking of the chattel from him by the plaintiff, no reply is necessary.' So in an action for the conversion of prop- erty an allegation in the answer that the plaintiff saw the prop- ' Code of Civil Pro., §516. ^ Equitable Life Assurance Society v. Cuyler, 75 N. T. 511; Devlin v. Bevins, 22 How. 290; Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Cannon v. Davies, 33 Ark. 56; Watson v. Johnson, 33 Ark. 737. 3 Code of Civil Pro., § 532. " Arthur v. Homestead Fire Ins. Co., 78 N. T. 462. ' Bates V. Rosekrans, 37 N". Y. 409; 4 Abb. (N. S.) 376; Equitable Life Assur- ance Society v. Cuyler, 75 N. Y. 511; Simmons v. Kayser, 11 Jones & Sp. 131. 6 Cockerill v. Loonam, 36 Hun, 353. ' American Dock & Imp. Co. v. Staley, 8 Jones & Sp. 539. - Burke v. Thorn, 44 Barb. 363. See Kirk v. Woodbury County, 55 Iowa, 190; Scott V. Stock well, 65 How. 249. 9 De Leyer v. Michaels, 5 Abb. 208. The Reply. 289 Requisites of the reply. erty in the possession of the defendants, and knowing that they were making and contemplated continuing repairs thereon, omit- ted to disclose his title thereto, and claiming that the plaintiff is thereby estopped from claiming the property except subject to the hen for repairs, needs no reply.^ No reply is necessary to an answer alleging that the plaintiff is not the real party in interest," or setting up a release,^ or a dis- charge in bankruptcy.* It has been decided, however, that where the defendant has pleaded a discharge in bankruptcy in an action on a promissory note, the plaintiff may reply, alleging the de- fendant's fraudulent representations as to his solvency when the goods were purchased for which the note was given. ^ Where the answer in an action for divorce on the ground of adultery sets up counter-charges of adultery on the part of the plaintiff and asks for a judgment of divorce in favor of the de- fendant, a reply is necessary to put such charges in issue." If the answer sets up an affirmative cause of action against the plaintiff which is barred by the statute of limitations, the statute should be pleaded in reply.'' §2. Eequisites of the reply. — The reply must contain a general or specific denial of each material allegation of the coun- terclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter, not inconsistent with the complaint, constituting a defense to the counterclaim.^ The Code authorizes the plaintiff to deny or to set forth new 1 Rogers v. King, 66 Barb. 495 . That the plaintiff may state facts showing that the defendant is estopped from insisting on a defense set up in his answer, see Paxtou Cattle Co. v. Arapahoe Bank, 21 Neb. 621. ' Johnson v. White, 6 Hun, 587. 3 Dambmanu v. Schulting, 4 Hun, 50 . « Argall V. Jacobs, 21 Hun, 114; 87 N. Y. 110. ■ Freund v. Paten, 10 Abb. jS". C. 311. « Leslie v. Leslie, 11 Abb. (N. S.) 311. ' Williams V. Willis, 15 Abb. (X. S.) 11; Clinton v. Eddy, 54 Barb. 54; 1 Lans. 61; Vou Sachs v. Kretz, 10 Hun, 95; 73 N. T. 548. 'Code of Civil Pro., § 514. 37 290 The Reply. Eeply required by the court — Effect of a failure to reply. matter constituting a defense. It does not authorize the plaintifE to introduce a new cause of action against the defendant by way of reply to the counterclaim.' The reply may contain two or more distinct avoidances of the same defense or counterclaim, but they must be separately stated and numbered.^ The reply is in effect an answer to the cause of action set up by way of counterclaim in the defendant's answer, and should be pleaded in substantially the same manner as an answer to a cause of action set up in a complaint. § 3. Eeply required by the court. — Where an answer con- tains new matter constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In that case the reply, and the proceedings on failure to reply, are subject to the same rules as in case of a counterclaim.' This does not authorize the court to order a reply on the plaintiff^s application^ or to order a reply to a counterclaim on the defendant's application.^ The power is confined to the cases specified in the statute. The granting of an order requiring a reply rests in the discre- tion of the court. The power has been exercised in an action for dower where the defendant alleged in his answer that the deceased had been divorced, and moved that the plaintiff be compelled to reply to that defense.^ A reply has been ordered to an answer ■ setting up a discharge in bankruptcy,'' and the statute of limita- tions.*' § i. Effect of a failure to reply. — If the plaintiff fails to re- ply or demur to a counterclaim contained in the answer, the de- ' Colin V. Husson, 66 How. 150; Savage v. Aiken, 21 Neb. 605; Lillienthal v. Hotaling Co., 15 Oregon, 371. The contrary doctrine was declared to be tlie law in Miller v . Losee, 9 How. 356. •■'Code of Civil Pro., g 517. 3Codeof Civil Pro., §516. * McDonald v. Davis, 1 Law Bull. 30. ' Adams v. Roberts, 63 How. 253. ' Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. 207. ■"Poillon V. Lawrence, 11 Jones & Sp. 885. 8 Hubbell V. Fowler, 1 Abb. (N. S.) 1. Demueeee to the Reply. 291 When a demurrer to a reply is authorized. fendant may apply on notice for judgment thereupon; and if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as presci'ibed in chapter eleventh of the Code where the plaintifE applies for judgment.' Each material allega- tion of new matter in the answer not controverted by the reply, where a reply is required, must for the purposes of the action be taken as true.^ If, however, matter has been set up as a counter- claim which does not fall within the Code definition of a counter- claim, a failure to reply thereto will not be deemed an admission of the justness of the claim, or of the truth of the facts alleged.' The defendant will not be precluded from taking advantage on the trial of the failure to reply by an omission to avail himself of the provisions of section 515 of the Code, above quoted.* But the defendant cannot lay by until after the trial and then, on ap- peal, for the first time claim that his answer contains a counter- claim which is admitted by not being replied to.^ CHAPTER XIV. Demuekee to the Reply. Section 1. When a demurrer to a reply is authorized.— The defendant may demur to the reply or to a separate traverse to or avoidance of a defense or counterclaim contained in the re- ply on the ground that it is insufiicient in law upon the face thereof.* The general rules relating to a demurrer to an answer apply to a demurrer to a reply. Irrelevant m atter in a reply cannot be 1 Code of Civil Pro., § 515. ' Code of Civil Pro., §533; Clinton v. Eddy, 1 Lans. 61; 54 Barb. 54; Ran- dolph V. Mayor, 53 How. 68. • McKensie v. Farrell, 4 Bosw. 193. « Bridge v. Payson, 5 Sandf. 310. 'Muldoon V. Blackwell, 84 N. Y. 646. •Code of Civil Pro., §493. 292 Skkvice and Filing of Pleadings. Time of service of the complaint. reached by demurrer. The remedy is by motion.' The word " insufficient," as used in the section of the Code above quoted, has reference to the matter stated in the reply, and whether it constitutes a good answer to the facts stated in the defendant's pleading. If the reply alleges new matter inconsistent with the complaint, the defendant's remedy is not by demurrer but by motion to strike out the pleading as unauthorized.^ If the an- swer is radically defective it may be assailed on the argument of the demurrer to the reply and judgment ordered for the plaintiff notwithstanding the defects demurred to.^ And if, on an appeal from an interlocutory judgment, entered upon an order overrul- ing a demurrer to a reply, the judgment is reversed, the fact that the answer is not free from defect may be considered in the al- lowance of the costs of the appeal.^ CHAPTER XV. Service and Filing of Pleadings. Section 1. Time of service of tlie complaint. — A copy of the complaint may be served with the summons,^ if the summons is served personally upon the defendant within the State. It may also be served with the summons upon the defendant personally without the State, if an order for such service has been first duly obtained.^ If a copy of the complaint is not delivered to a de- fendant at the time of the delivery of a copy of the summons to 1 Ludington v. Slauson, 6 Jones & Sp. 81. ' White V. Joy, 13 N. Y. 83, 90. ' Halliday v. Noble, 1 Barb. 138. By replying to a counterclaim the plain- tiff does not waive the objection that the matter set up in the answer is not a proper subject of counterclaim in that action. Smith v. Hall, 67 N. Y. 48. See Ayres v. O'Farrell, 10 Bosw. 143; Smith v. Countryman, 30 N. Y. 655; Livingston v. Muller, 8 N. Y. 283. ^ Croome v. Craig, 53 Hun, 350. 6 Code of Civil Pro., §419. « Code of Civil Pro., § 440. Seevioe and Filing of Pleadings. 293 Time of service of the answer or demurrer. him, either within or without the State, his attorney, at any time within twenty days after tlie service of the summons is complete, may serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days there- after,^ if the demand is served personally, or within forty days thereafter, if the demand is served by mail.^ If, after such de- mand, the plaintiff's attorney fails to serve the complaint in the time above specified, the defendant may apply to the court for a dismissal of the complaint.^ Eule 17 of the Supreme Court provides that where a discovery or inspection of books or papers has been ordered, with a stay of proceedings, the party obtaining the order has the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. § 2. Time of service of tlie answer or demurrer. — A. de- fendant, upon whom the plaintiff has served, with the summons, a copy of the complaint, must serve a copy of his demurrer or an- swer upon the plaintiff's attorney, before the expiration of the time within which the summons requires him to answer,^ namely, within twenty days after the service of the summons, exclusive of the day of service.' A defendant, who has been arrested be- fore answer, except in a case where an order of arrest can be granted only by the court,^ has twenty days after the arrest in which to answer the complaint, and judgment must be stayed ac- cordingly.' The defendant cannot answer a complaint with which he has not been served.* If the complaint was not served with the summons, the defendant should serve upon the plaintiff's attor- ney, within twenty days after the service of the summons, ex- 1 Code of Civil Pro., §479. 'Code of Civil Pro., §798. 'Code of Civil Pro., §480. * Code of Civil Pro., § 423. ' Code of Civil Pro., § 418. « Code of Civil Pro., §551. ' Code of Civil Pro., § 566 8 Phillips V. Prescott, 9 How. 430. 294 Seevioe and Filing of Pleadings. Time of service of the answer or demurrer. elusive of the day of service, a notice of appearance/ and a writ- ten demand of a copy of the complaint. The demand of a copy of the complaint may be incorporated into the notice of appear- ance.^ The complaint must be served upon the defendant's at- torney vpithin twenty days after the service of the demand,^ or within forty days, if the demand was served by mail.* Having thus served a copy of the complaint, the defendant, if he deems it advisable to answer or demur, should prepare and serve a copy of his answer or demurrer upon the plaintiff's attorney within twenty days after the service of the complaint,^ or within forty days, if the service of the complaint was by mail.^ A demand of a copy of the complaint, where a copy was not delivered to the defendant at the time of the delivery of a copy of the summons to him, either within or without the State, must be made within twenty days after the service of the summons is complete.'' For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete upon the day of the last publication, pursuant to the or- der ; and service made without the State is complete upon the ex- piration thereafter of a time equal to that prescribed for publica- tion.* The period of publication must be computed so as to exclude the first day of publication and include the day which completes the full period of publication.^ If the summons is served without the State pursuant to an order authorizing it, a copy of the complaint and order will be served with the summons.^* But the twenty days within which the defendant must serve his answer does not commence to run until the expiration thereafter of a time equal to that prescribed for publication, which time, in 1 Code of Civil Pro., § 431. 'Code of Civil Pro., §479. 8 Code of Civil Pro., § 479. ■■Code of Civil Pro,, §798. 5 Code of Civil Pro., §530. » Code of Civil Pro., § 798. ' Code of Civil Pro., §479. 8 Code of Civil Pro., §441. 9 Code of Civil Pro., §787. '"Code of Civil Pro., 8 440. Sekvioe and Filing of Pleadings. 295 Time of sfirvice of a reply or demurrer to answer — Extension of time to plead. case the order requires six weeks' publication, would expire on the forty-second day after the day of service of the summons.' "Where the same attorney appears for two or more defendants only one copy of the complaint need be served upon him ; and, if after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action.^ A defendant who has demanded in his answer that the judg- ment in the action shall determine the ultimate rights of two or more defendants as between themselves, must, at least twenty days before the trial, serve a copy of his answer upon the attorney of each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defend- ants so to be affected who have not duly appeared therein by attorney.' « § 3. Time of sevrice of a reply or demurrer to the answer. — A reply to a counterclaim set up in the defendant's answer or a demurrer to the answer must be served within twenty days after service of the answer,* or witliin forty days, if the answer was served by mail.* As the Code does not prescribe the time within which the plaintiff must serve a reply to new matter constituting a defense by way of avoidance set up in an answer, when such reply is directed by the court,^the order should prescribe the time and the reply should be served within the time so fixed. § 4. Extension of time to plead. — The time within which a party is required by statute to serve a pleading may always be extended by the attorney upon whom the pleading is to be served, 1 Marliet Nat. Bank v. Pacific Nat. Banli, 89 N. Y. 397; 11 Abb. N. C. 104. See Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84; Brod v. Heymann, 3 Abb. (N. S.) 396; Richardson v. Bates, 23 How. 516; Tomlinson v. Van Vechten, 6 How. 199; Kerner v. Leonard, 15 Abb. (N. S.) 96; Abrama v. Mitchell, 8 Abb. 133. ' Code of Civil Pro., § 479. ' Code of Civil Pro., § 531. * Code of Civil Pro., g 530. 5 Code of Civil Pro., § 798. " « Code of Civil Pro., § 516. 296 Service and Filing of Pleadings. Extension of time to plead. or by the party for whom he is acting.' Consent to an extension of time to plead is frequently granted in practice, as a refusal of a request for further time merely compels the adverse party to apply for an order granting such relief, which is seldom refused. It is customary to put a consent to an extension of time to plead in the form of a stipulation, for the reason that the rules of court provide that no private agreement or consent between parties or their attorney's in respect to the proceedings in a cause shall be binding unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.^ In case it is not deemed advisable to apply to the adverse party for a stipulation extending the time to plead, or in case such ap- plication has been made and denied, the party may obtain the extension by application to the court or to a judge authorized to make an order in the action. The Code provides that where the time within which a proceeding in an action, after its commence- ment, must be taken, has begun to run, and has not expired, it may be enlarged upon an affidavit showing grounds therefor, by the court or by a judge authorized to make an order in the ac- tion.^ As no notice of the application need be given to the ad- verse party,* the application may be made to any judge of the court in any part of the State, or to a justice of the Supreme Court, or to a judge of a superior city court within the city wlierein his court is located, or to the county judge of the county where the action is triable or in which the attorney for the applicant resides.* A judge of the Court of Common Pleas has power to grant an ex parte application for an extension of time to answer in an action pending in the Supreme Court, and a justice of the Supreme Court has power to make a like order in an action pending in the Court 1 Braisted v. Johnson, 5 Sandf. 671. 'Rule 11, Sup.Ct. ^ Code of Civil Pro., g 781. ^ Whitlock V. Curtis, 1 Code R. 96. See the exception to this rule where the action is against a corporation on a note, etc., Code of Civil Pro., § 1778. s Code of Civil Pro,,§ 773. Sekvice and Filing of Pleadings. 297 Extension of time to plead. of Common Pleas/ or in a County Conrt.^ So a judge of the Superior Court may make an ex parte order extending the time to answer in an action pending in the Court of Common Pleas,^ and where the action is pending in a superior city court, the order may be made by the county judge of the county where the court is situated or of the county where the attorney for the applicant resides.^ A judge of the Superior Court of Buffalo may within that city make such an order in an action pending in the Supreme Court/ and a judge of a superior city court, within his city, and a county judge within his county possesses like power.*^ No order extending the defendant's time to answer or demur will be granted unless the party applying for such order shall present to the justice or judge to whom the application shall be made, an affidavit of merits, or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action, that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defense, upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And the affidavit must state whether any previous application has been made for such order, and, if made, to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown, and wiiether any and what extension or extensions of time to answer or denrar have been granted by stipulation or order ; and where any extension has been had, the date of the issue will be twenty days after the service of the complaint.'' If the moving papers are in compliance with the rules of the court and show reasonable grounds for extending the time to plead, the order is granted as of course ; though the a^jplication '- Hazard v. Wilson, 3 Abb. N. C. 50. « Code of Civil Pro., § 354. 3 Gunning v. Appleton, 1 Law Bull. 95. "Code of Civil Pro., § 277. « Code of Civil Pro., § 340. * Code of Civil Pro., § 241; Sisson v. Lawrence, 25 How. 435. ' Rules 34 and 35, Sup. Ct. 38 298 Seevioe and Filing of Pleadings. Extension of time to plead. may be denied where the moving party has been guilty of gross laches.^ The moving party should be prepared with an order for the judge to sign, containing such extension of time as the circum- stances of the case require, and should make all necessary copies of the order and affidavit. The affidavit upon which the order was granted, or a copy thereof, must then be served with a copy of the order upon the attorney for the adverse party, otherwise the order may be disregarded.^ But an omission to serve a copy of the order or of the affidavit is a mistake which the court may relieve against on terms. ^ If the order extending the time to answer is granted without any affidavit of merits, or its equiva- lent, it may be disregarded as if the order had been granted with- out an affidavit of any Icind,* though it has also been held that Buch an order is not a nullity, but is merely irregular, and that the irregularity may be cured by allowing the affidavit to be filed.' Where service may be made by mail, an order extending the time to answer, obtained and mailed on the last day of the time to answer, is sufficient to prevent the plaintiff from regularly en- tering judgment as upon failure to answer.^ A stipulation or order extending the time to answer twenty days gives the defendant twenty days in addition to the time al- ready existing, and not twenty days from the date of the stipula- tion or order.'' By obtaining an extension of time to answer the defendant extends the time of the plaintiff to serve an amended complaint,* and also waives irregularities in the complaint,' admits that it is 1 Hays V. Berryman, 6 Bosw. 679. 'Code of Civil Pro., § 782. 2 Quinn v. Case, 3 Hilt. 467. < Ellis V. Van Ness, 14 How. 313; Graham v. Pinckney, 7 Rob. 147. Contra, Davenport v. Sniffen, 1 Barb. 323. ' Campbell v. American Zylonite Co., 31 Jones & Sp. 131 « Schuhardt v. Roth, 10 Abb. 203. -^ Pattison v. O'Connor, 23 Hun 307; 60 How. 141. 8 Albert Palmer Co. v. Shaw, 64 How. 80. 9 Garrison v. Carr, 34 How. 187; 3 Abb. (N. S.) 206 ; Hollister v. Livingston, 9 How. 140. Service and Filing of Pleadings. 299 Extension of time to plead — Mode of service. sufficient to require an answer or demurrer,^ and supersedes a prior noticed motion to strike out portions of the complaint,^ un- less lie saves his right by a proper reservation or provision in the stipulation or order. ^ Under a stipulation or order extending the time to "answer," the defendant may serve a demurrer instead of an answer at any time within tlie extended period,* though to avoid all question as to the intent and meaning of the consent or order it is safer to expressly provide in it for an extension of time to demur. There is an exception to the general rule that an extension of time to answer may be obtained of a judge on an ex parte appli- cation. The Code provides that in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note, or other evidence of debt for the absolute pay- ment of money upon demand or at a particular time, an order extending the time to answer or demur shall not be granted except by the court, upon notice to the plaintiff's attorney.^ This provision of the Code is confined strictly to actions upon instruments which admit on their face an existing debt payable absolutely, and not to a contract of life or fire insurance payable only upon certain specified conditions ; ' nor to an action upon distinct demands, some of which are within and some of which are without the statute, as a note and an account.^ The statute applies to all corporations, including municipal cor- porations.* § 5. Mode of service. — All pleadings are served by copy,' and all copies served must be fairly and legibly written, and numbered 1 Smitli V. Pfister, 39 Hun, 147; Brooks v. Hanchett, 21 Week. Dig. 267; 36 Hun, 70. ' Marry v. Jones, 84 How. 288; Bowman v. Slieldon, 5 Sandf. 657. 3 Lackey v. Vanderbilt, 10 How. 1.55. * Brodhead v. Brodhead, 4 How. 308. » Code of Civil Pro., ^5 1778. « New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424; McKee v. Metropolitan Life Ins. Co., 25 Hun, 583; Tyler v. ^tna Fire Ins. Co., 2 Wend. 280. ' Bradley v. Albemarle F. Co., 2 Civ. Pro. R. 50. 8 Moran v. Long Island City, 101 N. Y. 439. s See Code of Civil Pro., §§ 419, 479, 480, 520. 300 Service and Filing of Pleadings. Mode of service. and marked in the margin so as to conform to the original and to each other, and must be indorsed with the title of the cause.' It is of great importance that the copy pleading served should be in all respects a/r/c simile of the original. A party has the right to consider the copy pleading served upon him or his attorney as the only pleading in the cause ; ^ and to treat it as a correct copy of the original. Defects in the copy served are not ci;red by showing that the original was correct; and if the copy served is unverified, the party served has the right to treat the original as unverified.' Where the complaint is served with the summons it will be served upon the defendant; but where it is not served with the summons it will be served upon the attorney for the defendant who has appeared and demanded a copy of the complaint ; * and a copy of each pleading subsequent to the complaint must be served upon the attorney for the adverse party. * Personal service of a pleading consists in the delivery of a copy of the pleading to the person to be served personally.^ Where the service is not personal it may be made as follows : 1. Upon a party or an attorney, through the post-office, by de- positing the paper, properly inclosed in a post-paid wrapper, in the post-office of the party or the attorney serving it, directed to the person to be served at the address within the State designated by him for that purpose upon the preceding papers in the action ; or, where he has not made such a designation, at his place of resi- dence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same. 2. Upon an attorney during his absence from his oifice by leaving the paper with his partner or clerk therein, or with a per- son having charge thereof. 3. Upon an attorney, if there is no person in charge of his 1 Rule 19, Sup. Ct. ' Trowbridge v. Didier, 4 Duer, 448. 3 Graham v. McCoun, 5 How. 853; Hughes v. Wood, 5 Duer, 603. « Code of Civil Pro., § 479. ' See Code of Civil Pro., §§ .120, 799. 6 See Code of Civil Pro., § 796. Service and Filing of Pleadings. 301 Mode of service. office, and the service is made between six o'clock in the morn- ing and nine o'clock in the evening, either by leaving it in a conspicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter-box ; or, if the office is not open so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence within the State with a person of suitable age and discretion. 4. Upon a party, by leaving the paper at his residence within the State, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion.^ Where a party to an action who has appeared in person resides without the State, or his residence cannot with reasonable dili- gence be ascertained, and he has not designated an address within the State upon the preceding papers, service of a paper on him may be made by serving it on the clerk.^ In the city of ISTew York, where a paper is served through the post-office, the deposit of the package in a branch post-office has the same effect as a deposit in the general or principal post-office of that city.^ Service by mail, when made in the manner prescribed by the Code, is complete when the pleading is deposited in tlie post- office, whether it reaches its destination or not."* The fact that the envelope was indorsed with a request to return if not called for in five days does not vitiate the service unless by reason of the indorsement the party to whom it was addressed failed to re- ceive it.^ The service by mail is good though the pleading be deposited in the post-office on the last day allowed by law for service, and after the closing of the mail for that day,* though it has been held at General Term that a defendant mailing a de- murrer on the last day allowed for service is bound to deposit it in the post-office at such an hour of that day that it can go by mail ' Code of Civil Pro., § 797. ' Code of Civil Pro., § 800. 3 Code of Civil Pro., g 801. * Miller V. Shall, 67 Barb. 446. ' GafEuey v. Bigelow, 3 Abb. N. C. 311, reversing 48 How. 475. « Elliott V. Kennedy, 36 How. 433; Noble v. Trotter, 4 How. 332. 302 Sbkviob and Filing of Pleadings. Papers to accompany the pleading served. on the same day or by the first mail on the next.' But this hold- ing imposes a limitation upon service by mail not contained in the statute, and asserts a rule which would be difficult to apply to a service made at a place having only a weekly or semi-weekly mail service. Service by mail is not sufficient if the postage is unpaid,^ nor if the pleading is deposited in a post-office at a place other than that at which the party or attorney serving it resides.^ § 6. Papers to accompany the pleading served. — Where the summons is served without the State pursuant to an order authorizing service in that manner, the summons, complaint and the order authorizing the service, will be served together.^ In an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note, or other evidence of debt for the absolute payment of money, upon demand, or at a particular time, the defendant must serve with a copy of his answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleading be tried, and unless the order is so served, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days after service of a copy of the complaint, either personally with the summons, or upon the defendant's attorney pursuant to his demand therefor, or, if the service of the summons was otherwise than personal, at the expiration of twenty days after the service is complete.' No application to the court for judgment is neces- sary.'^ This provision applies to municipal corporations as well as ' Green v. Howard, 14 Hun, 434. This decision was made upon a motion to set aside a judgment by default entered after a demurrer had been mailed, but before it had been received, and where it appeared upon the motion that the defendant was insolvent, that the demurrer was served in bad faith to give other judgments priority, and at the time of the motion had been adjudged to be frivolous. ' Van Benthuysen v. Lyle, 8 How. 312. 3 Schenck v. McKie, 4 How. 246. " Code of Civil Pro., §440. 'Code of Civil Pro., §1778. ^ Hutson V. Morrisania Steamship Co., 12 Abb. N. C. 278. Service and Filing of Pleadings. 303 Filing pleadings. to business or moneyed corporations ;' but it does not apply to actions on demands, which do not come within the intent of the statute, such as demands upon a pohcy of life or fire insurance,^ nor to demands partly within and partly without the statute, such as a demand upon a promissory note joined with a demand for goods sold and delivered.^ If the county designated in the complaint as the place of trial is not the proper county, and defendant desires to change the place of trial to the proper county, his attorney must serve upon the plaintiff's attorney, with the answer, or before service of the answer, a written demand accordingly, specifying the county where the defendant requires the action to be tried.* § 7. Filing pleadings. — The Code provides that the summons and each pleading in an action must be filed with the clerk by the party in whose behalf it is served, within ten days after the service thereof; and that, if the party fails to file it, the adverse party, on proof of the failure, is entitled, without notice, to an order from a judge, that it be filed within a time specified in the order, or be deemed abandoned.* This provision is almost uni- versally disregarded, and in practice, pleadings are seldom filed until incorporated in a judgment-roll, or used upon some appli- cation to the court or judge. It is the original which is to be filed, and not a copy, but an error in this respect may be cor- rected.' If the action is pending in the Supreme Court, the pleadings should be filed in the office of the clerk of the county in which the action is triable. If the action is pending in any other coui-t, the papers should be filed with the clerk of that court.^ An application to compel the filing of a pleading should be based upon an afiidavit showing that the paper has not been filed, 1 Moran v. Long Island City, 101 N. T. 439. - New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424; McKee v. Metropolitan Life Ins. Co., 25 Hun, 583; Ogle v. Knickerbocker Life Ins. Co., 4 Law Bull. 22; Tyler v. ^tna Fire Ins. Co., 3 Wend. 280. 3 Bradley v. Albemarle F. Co., 2 Civ. Pro. R. 50. ^ Code of Civil Pro., § 986. » Code of Civil Pro., § 824. « Short V. May, 2 Sandf. 639. ' Code of Civil Pro., § 3343, subd. 4; Rule 2, Sup. Ct. 304 Amendment of Pleadings of Course. Right to amend without leave of court. or upon a certificate of the clerk, under his hand and ofiicial seal, that he has made diligent examination in his ofiice for the paper, and that it cannot be found.^ As the order may be made by a judge without notice to the adverse party, the apphcation may be made to any judge of the court in any part of the State, or to any justice of the Supreme Court, or to a judge of a superior city court in the city wherein his court is located, or to the county judge of the county in which the action is triable, or in which the attorney for the applicant resides.^ The order will direct that the pleading be filed within a time specified, or be deemed abandoned. Where a summons is served by publication, the summons, com- plaint and order, and the papers upon which the order was made must be filed with the clerk on or before the day of the first pub- lication.' CHAPTER XVI. Amendment of Pleadings of Course. Section 1. Right to amend without leave of court. — Within twenty days after a pleading, or the answer or demurrer thereto is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the ad- verse party will thereby lose the benefit of a term for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.'' Subject to the power of the court to strike out where the amendment is for the purpose of delay, the right of a party to ' See Code of Civil Pro., § 921. « See Code of Civil Pro., § 772. 3 Code of Civil Pro., §443. < Code of Civil Pro., §543. Amendment of Pleadings of Course. 305 Right to amend without leave of court. amend once of course is absolute. ' If a party notices his cause for trial before the time allowed to his adversary to amend has ex- pired, he does so at the peril of having his notice of trial go for nothing in case of an amendment of the pleading by his adversary in good faith.^ The clause of the Code which gives a right to amend a pleading " without prejudice to proceedings already had," is to be considered and construed with reference to the absolute right of a party once to amend. If the plaintiff notices the cause for trial after issue joined by the service of an answer, and that issue still remains when the time for trial arrives, he may try the cause, and if successful, perfect judgment. None of these pro- ceedings will be prejudiced by a subsequent amendment of the answer even though made in the time prescribed by the statute. But if the amended answer is served before the trial, the issue which the plaintiff intended to try is destroyed, the issue made by the amended pleading is substituted, and the notice of trial of the old issue goes for nothing.^ A plaintiff may amend his complaint as of course within the time allowed, although the defendant has noticed a motion to strike out a portion of it * or to make it more definite and cer- tain,* and if the amendment cures the defect complained of, the ' Cooper V. Jones, 4 Sandf. 699; Frank v. Bush, 63 How. 283; 2 Civ. Pro. R. 250; Clifton V. Brown, 27 Hun, 231; Griffin v. Cohen, 8 How. 451; Ross. v. Dinsmoie, 20 How. 328; 12 Abb. 4. 'Ostrander v. Conkey, 20 Hun, 431; Washburn v. Herrick, 4 How. 15; Clif- ton V. Brown, 2 Civ. Pro. R. 44; 37 Han, 231. spiumb v. Whipples, 7 How. 411; Ostrander v. Conkey, 20 Hun, 421. The words " without prejudice to proceedings already had" were not designed to compel a party who had committed an error in his pleadings to pay costs of one amendment and thereby nullify the right which had been secured to him by the statute. The words have no reference to costs. The design of the statute was to allow the party to amend his pleading in any case once without costs, and at the same time, if any proceedings had already been had by the other party, such proceedings were to be upheld so far only that no prejudice to him should arise. Welch v. Preston, 58 How. 52. * Welch V. Preston, 58 How. 52. The service of an amended answer prop- erly verified defeats a motion to strike out the answer as to the defendants who did not join in the verification. Rider v. Bates, 66 How. 129. 'Spuyten Duyvill Rolling Mill Co. v. Williams, 13 Week. Dig. 280; 1 Civil Pro. R. 280. 39 306 Amendment of Pleadings of Couese. Eiglit to amend without leave of court. motion will be defeated. A notice of motion for judgment for the frivolousness of an answer will not deprive the defendant of his right to amend his answer within the time allowed, and such amendment will defeat the motion.^ So an order directing that a pleading be amended in particulars specified will not de- prive the party of the right to amend once of course if the time for amendment has not expired f nor will an order of the court striking out portions of a pleading as irrelevant and redundant have that effect.' And although a plaintiff has declined to avail himself of leave to amend his complaint before answer, he may still within twenty days after service of the answer amend once of course.'' After a demurrer to an answer the defendant may serve an amended answer within twenty days, if he has not pre- viously amended of course,' but not if he has so amended. The Code permits a party to amend his pleading but once without leave.* The same rights to amendment of pleadings exist in actions brought to compel the determination of claims to real property, as in other actions authorized by the Code.^ In any case it is irregu- lar for the plaintiff to amend his complaint as to one defendant without notice to the other.* The right of a party to amend once as of course may be waived, but noticing the cause for trial or argument will not amount to a waiver,' nor will merely examining a party as a witness after joinder of issue and before trial.'" But if a defendant in pursu- iBurrall v. Moore, 5 Duer, 654; Frank v. Bush, 63 How. 382; 3 Qvil Pro. R. 250. ' Jeroliman v. Cohen, 1 Duer, 629. 'Boss V. Dinsmore, 20 How. 328; 13 Abb. 4. ■■Ross V. Dinsmore, 20 How. 338; 12 Abb. 4. See also Cooper v. Jones, 4 Sandf. 699. ' White V. Mayor, etc., of N. Y. , 14 How. 495; 6 Duer, 683; 5 Abb. 333. « White V. Mayor, etc., of N.Y., 14How. 495; 6 Duer, 685; 5 Abb. 333; Sands V. Calkins, 30 How. 1. 'Brown v. Leigh, 49 N. Y. 78; 13 Abb. (N. S.) 193. 8 Fassett v. Tallmadge, 15 Abb. 305. 'Clifton V. Brown, 27 Han, 231, overruling Phillips v: Suydam, 6 Abb. (N. S.) 289. i« Stilwell V. Kelly, 5 Jones & Sp. 417. But see Snyder v. White, 6 How. 331. Amendment of Pleadings of Course. 307 Time in wliicli a party may amend as of course. ance of the conditions of an order granting him time to answer, waives notice of trial, consents to the placing of the cause on the calendar, and afterward to a reference of the issues, he waives his right to serve as of course an amended answer raising § 2. Time in which a party may amend as of course. — A pleading may be amended once, of course, without costs, within twenty days after the pleading, or the answer or demurrer thereto is served, or at any time before the period for answering it ex- pires.^ An amended complaint cannot be served more than twenty days after the original, where the defendant has not answered or demurred f and if the original complaint is served on several de- fendants at different times, and the defendant first served has demurred, the plaintiff cannot serve an amended complaint on him after the expiration of more than twenty days after service of the -demurrer, although within twenty days of the service of the original complaint on another defendant.* If a defendant serves an answer or demurrer, or an amended answer, the plain- tiff has twenty days thereafter in which to serve him with an amended complaint.* If the answer or demurrer was served by mail the plaintiff has forty days in which to amend,^ and where an answer is served by mail in a case where such service is per- missible, the defendant has double time, or forty days in which to serve an amended answer,^ subject, however, to this qualification, that if the answer which was served by mail did not admit of a reply, and is not in fact replied or demurred to, the defendant's time to amend it of course is limited to twenty days.' 1 Schwab V. Wehrle, 14 Week. Dig. 529. ' Code of Civil Pro. , § 543. 3 Clark v. Humphrey, 3 Law Bull. 31. * George v. Grant, 56 How. 344. ' Seneca County Bank v. Garlinghouse, 4 How. 174. « See Code of Civil Pro., g 798. ■" Washburn v. Herrick, 4 How. 15 ; Evans v. Lichtenstein, 9 Abb. (N. S. 141. ' Toomey v. Andrews, 48 How. 332. 308 Amendment of Pleadings of Codese. Nature and extent of amendments as of course. § 3. Nature and extent of amendments as of course. — It was held in some of the earher cases that the section of the Code of Procedure' for which section 542 of the present Code is a substi- tute, gave only a right to amend and perfect what was previously set up in an imperfect manner, and that setting up a new cause of action or a new defense was in no proper sense an amendment, but rather the substitution of a new pleading.^ In other cases it was held that a new cause of action or defense might be set up.' It was finally determined by the Court of Appeals that the construction given to the section by the earlier cases was too strict, and was subversive of the true meaning of the section, as that section gave the party power to amend any pleading once without imposing any restriction upon it ; and the rule was then laid down, and has ever since been adhered to, that the power to amend a pleading once of course is not confined to the amend- ment of such matter as has been defectively stated in the original pleading, but includes the right to add new causes of action to a complaint or new defenses or counterclaims to an answer, and to omit any of those originally pleaded.'' But a plaintiff cannot, in an amended complaint, add a cause of action belonging to a different class from those stated in the original, retaining the latter, as the amended complaint would then be demurrable for misjoinder of causes of action. He may, however, obviate the difficulty by omitting such of the original causes of action as are of class different from those set up by the amendment.^ There is no restriction as to the nature of the defense which may be set up by an amended answer. The idea that the defense of usury or of the statute of limitations was to be treated in this respect different from other defenses has long been exploded, and ' Code of Procedure, § 173. ' HoUister v. Livingston, 9 How. 140; Field v. Morse, 8 How. 47; Dows v. Green, 3 How. 377. 3 Mason v. Whitely, 4 Duer, 611; 1 Abb. 85; Prindle v. Aldrich, 13 How. 466; Troy & Boston E. R. Co. v. Tibbits, 11 How. 168; Spencer v. Tooker, 12 Abb. 353; Wyman v. Remond, 18 How. 272; Watson v. Rushmore, 15 Abb. 51. ■■ Brown v. Leigh, 49 N. Y. 78; 12 Abb. (N. S.) 193; Divine v. Duncan, 52 How. 446; 2 Abb. N. C. 338; McQueen v. Babcock, 3 Keyes, 428; Robertson V. Bennett, 1 Abb. N. C. 476. ' Brown v. Leigh, 49 N. Y. 78; 12 Abb. (N. S.) 193. Amendment of Pleadings op Couese. 309 Nature and extent of amendments as of course. the defense of the statute of limitations may now be added by amendment,^ or may be substituted for a counterclaim.^ After the defendant has answered, the plaintiff may amend his complaint, of course, without costs, by stating tlie place of trial to be in a different county from that specified iu the complaint originally served.^ Tlie plaintiff may also amend his complaint by changing his prayer for relief, as, for example, adding a prayer for an injunction to a demand of damages.* There was formerly an objection to an amendment of this nature as it created a vari- ance between the summons and complaint;" but since the adop- tion of the present Code that objection is obviated as there is now but one form of summons whicli is equally adapted to actions for legal or equitable relief.^ But the fact that the summons can be amended only by order of the court prevents a plaintiff from amending his complaint of course by adding a party ^ or striking out a party." A plaintiff should apply to the court for leave to amend the summons before serving an amended complaint bring- ing in new parties.^ Matters which have occurred since the original pleading was served sbould be brought before the court by a supplemental pleading, and not by amendment. Amend- ments to a pleading can only relate properly to the time when the original pleading was made and can only state facts in existence at that time.^" ' McQueen v. Babcock, 13 Abb. 268 ; 32 How. 339; 41 Barb. 337; 3 Keyes, 428; 3 Abb. Ct. App. Dec. 129. ' Wyman v. Eemond, 18 How. 272. ' Stryker v. New York Bxch. Bank, 42 Barb. 511; 28 How. 20; Toll v. Mo- hawk Valley, etc., Ins. Co., 12 How. 79. In Rector v. Ridge wood Ice Co., 38 Hun, 298, it was decided that wbere the summons and complaint name as the place of trial a county in which neither party resides, an amendment of the complaint, after demand, to the plaintiil's county will not defeat a motion, previously noticed, to change the place of trial to defendant's county. And see Moulton v. Beecher. 1 Abb. N. C. 183; 52 How. 182. * Getty V. Hudson River R. R. Co., 6 How. 269. ' Gray v. Brown, 15 How. 555. « Code of Civil Pro., § 418. ' Walkenshaw v. Perzel, 32 How. 310; 7 Rob. 606; 5 Rob. 648; Follower v. Laughlin, 13 Abb. 105. ' Russell V. Spear, 5 How. 142. ' Follower v. Laughlin, 12 Abb. 105. 10 Horufager v. Hornfager, 6 How. 18. Payments made after the commence- 310 Amendment of Pleadings of Couese. Nature and extent of amendments as of course. It has been decided in a number of cases that at any time within twenty days after service of a demurrer to the complaint, the de- fendant may amend his pleading by withdrawing the demurrer and interposing an answer.^ In other cases it has been held that the serving of an answer on the withdrawing of a demurrer is not an amendment of a pleading within the meaning of the Code.^ The question whether a demurrer may be amended by an answer must be considered as unsettled until decided by the court of last resort. A plaintiff in an action upon a promissory note who has un- necessarily stated in his complaint a sale of goods, wares and merchandise as the consideration of the note may amend his com- plaint by omitting the statement of the consideration, although the sole object of the amendment is to evade a demand by the defendant of a bill of particulars of the goods, wares and merchan- dise mentioned in the complaint.^ An amended answer which is the same in legal effect as the original answer, and which differs only in form and phraseology, may be stricken out on motion.* The verification is no part of a complaint, and the service of a verified complaint in place of an unverified complaint, the pleadings being identical in other re- spects, is not an amendment of the complaint, and the defendant may refuse to receive it.'' So where the defendant has improperly joined an answer and demurrer to the same cause of action, the service of an answer omitting the demurrer, but in all other respects like the answer first served, is not an amendment of the answer calling for a new reply.* ment of the action and before answer may be set up by answer or by an amended answer. See Keeler v. Van Wie, 49 How. 97; Rice v. Cbilds, 28 Hun, 303; Bendit v. Annesly, 37 How. 185; 43 Barb. 192. ' Carpenter v. Adams, 34 Hun, 429; Adams & Lang v. West Shore, etc., R. R. Co., 65 How. 339; Robertson v. Bennett, 1 Abb. N. C. 476; People v. Whit- well, 63 How. 383; Frank v. Bush, 63 How. 282; Betts v. Kridell, 20 Abb. N. C. 1; Hoyt v. Shelp, 20 Abb. N. C. 10; Barnes v. Gibbons, 30 Abb. N. C. 10. 2 Smith V. Laird, 44 Hun, 530; Wise v. Gessner, 47 Hun, 806. = Smith V. Pfister, 39 Hun, 147. * Snyder v. White. 6 How. 331. ' George v. McAvoy. 6 How. 300. « Howard v. Michigan South. R. R. Co., 5 How. 206. Amendment of Pleadings of Coukse. 311 EfEect of an amendment. § 4. Effect of an ameudment. — An amended pleading super- sedes the original, takes its place, and is a substitute for the original, which is no longer treated as a pleading in the action.^ It destroys any issue which may have been joined by the original pleading and renders of no avail a notice of trial previously served.^ It is also an answer to a motion to strike out a part of the original pleading,^ or to make it more delinite and certain,* or for judg- ment upon it as frivolous,'' but it will not in all cases defeat a notice of motion to change the place of trial to the proper county although the amendment consists solely in a change of the county named as the place of trial.^ It has also been held that the amend- ment of the complaint does not supersede a motion previously noticed to compel the plaintiff to elect on which of several causes of action stated in the complaint he would proceed and to strike out the residue,' or a motion, previously noticed, founded upon any irregularity in the original pleading.^ It cannot be claimed that the cases are liarmonious as to the effect of an amendment of a pleading on a pending motion, as in some cases a notice of mo- tion is treated as a " proceeding already had," which cannot be prejudiced by the amendment, and in others the words quoted are treated as having no reference to a pending motion and as not designed to secure to the moving party costs of motion noticed but not argued.' It would seem that the latter class of cases announce the trne doctrine. There is a distinction between a proceeding commenced and a proceeding had. A proceeding to compel the coiTcction of a defect in a pleading is not in any 1 Hinkley v. Troy & Albia R. R. Co., 43 Hun, 381, 284; Seneca County Bank V. Garlinghouse, 4 How. 174; Dann v. Baker, 12 How. 521; Sands v. Calkins, 30 How. 1; Burrall V. Moore, 5 Diier, 654; Kapp v. Barthan, 1 E. D. Smitli, 623. ' Ostrauder v. Conkey, 20 Hun, 431. See ante, p. 305. ' Rider v. Bates, 66 How. 129; Welch v. Preston, 58 How. 53. < Spuyten Duyvill Rolling Mill Co. v. Williams, 13 Week. Dig. 280; 1 Civil Pro. R. 280. ' Burrall v. Moore, 5 Duer, 654; Frank v. Bush, 63 How. 382. ' Rector v. Ridgewood Ice Co., 38 Hun, 293; Moulton v. Beecher, 1 Abb. N. C. 193; 52 How. 183. ' Pruden v. City of Lockport, 40 How. 46. « Williams v. Wilkinson, 5 How. 357. 'See Welch v. Preston, 58 How. 53; Ostrauder v. Conkey, 30 Him, 421; Plumb V. Whipples, 7 How. 411. 312 Amendment of Pleadings of Coukse. Effect of au amendment — Remedy for improper amendments. proper and legal sense prejudiced by an amendment which cures the defect. A proceeding is prejudiced by something which de- prives the party, in whole or in part, of the relief which is the direct object of the proceeding, and not by that which gives the relief sought. No costs are allowed by the Code for merely giv- ing notice of motion ; ' and if the notice is of itself a proceeding had in the meaning of the Code, the amendment deprives the moving party of no right flowing from it. An appellate court will not review and decide a mere abstract question when no prac- tical result can follow its determination. If from any cause the question presented by the appeal has ceased to have any living interest to the parties other than to determine which was right, and no actual or practical relief can be granted to either party by any judgment which the court might render thereon, the appeal will be dismissed.^ It is not the province of the courts to decide abstract questions of law disconnected from the granting of actual relief.^ This principle should deter a court of original jurisdic- tion from entertaining a motion for relief already obtained by an amendment authorized by statute where the only result of the motion would be a determination in respect to a paper no longer a pleading in the action, and the only benefit to either party from the determination would be the exercise of the discretion of the court in the matter of granting costs of motion. Although an original verified answer is superseded as a plead- ing by the service of any amended answer, has lost its conclusive- ness as an answer and no longer binds the party as a pleading, it nevertheless retains its character as an admission of the defend- ant, and can be used as evidence against him, subject to being explained or contradicted by other evidence.^ § 5. Remedy for improper amendments. — Where it is made to appear to the court that a pleading has been amended for the 1 Stiles V. Fisher, 3 How. 51. - People V. Common Coancil of Troy, 82 N. Y. 575. See also People v. Phillips, 67 N. Y. 583; People v. Walter, 68 N. Y. 403. 3 Grow V. Garlock, 29 Hun, 598. •• New York, etc.. Trans. Co. v. Hurd, 44 Hun, 17; Fogg v. Edwards, 30 Hun, 90; Bearss v. Coply, 10 N. Y. 93. Amendment of Pleadings of Couese. 313 Remedy for improper amendments. purpose of delay, and that the adverse party will thereby lose the beneiit of a term for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.^ A motion to strike out is the proper remedy where the amended pleading is served merely for delay.^ If the amendment is made in good faith and not for the purpose of de- lay, it cannot be stricken out although the effect may be to de- prive the other party of a circuit or term. The court must pass upon the intent as well as the effect and be satisfied that it is made for the purpose of delay and then that such will be the effect of it, before it can be stricken out. The statute does not authorize the party to decide in the first instance and disregard it at his peril, leaving the rights of the parties to be subsequently settled upon motion, but provides for a decision upon the good faith and propriety of the amended pleading before any other proceedings are had in the action which may affect the rights of the parties.^ There may be cases where an amended' pleading is so palpably frivolous and is so obviously a fraud upon the law authorizing amendments of course, that it may be treated as a nullity and disregarded by the party upon whom it is served. In such case the pleading must be returned to the attorney serving it or notice must be given him that it will be disregarded and treated as a nullity. But it is only in extreme and exceptional cases that this practice will be tolerated.'' The applicatiou should be made to the Special Term of the court in which the action is pending upon the usual eight days' notice to the adverse party, if the circumstances of the case will permit notice of that length. If the amended pleading is served immediately before or during a Circuit, the court can grant an order to show cause, returnable at a short day, why the amended pleading should not be stricken out. Or if for any reason this cannot be done, upon the adjournment of the Circuit ' Code of Civil Pro., g 543. » Ostrander v. Conkey, 20 Hun, 421; Frank v. Bush, 63 How. 282. 3 Griffin v. Cohen, 8 How. 451; Spencer v. Tooker, 21 How. 333. * Rogers v. Rathbun, 8 How. 466. See Farrand v. Harbeson, 3 Duer, 655; Vanderbilt v. Sleeker, 4 Abb. 289 ; Alleu v. Compton, 8 How. 251. 40 314 Amendment of Pleadings of Course. Pleadings amended of course must be served and answered. application may be made at a Special Term, and if tlie case is brought within the provision of the statute, the pleading can be stricken out, and such terms imposed upon the party interposing the fraudulent pleading as will prevent injury to the adverse party.i The motion should be made upon the pleadings, including the original and amended pleading and an affidavit showing the his- tory of the case, the time when the next Circuit or Trial Term will be held, and setting forth any fact tending to show that the amended pleading was served for the purpose of delay, and that the moving party will thereby lose the benefit of a term for which the cause is or may be noticed. If it is necessary to obtain an order to show cause, an affidavit should be prepared showing grounds therefor.^ Copies of all the motion papers should be served except copies of pleadings previously served. The moving party should then prepare such an order as he deems the court wiU grant and argue the motion on the day appointed. § 6. Pleadings amended of course must toe served and answered. — Where a pleading is amended of course in pursuance of section 542 of the Code of Civil Procedure, a copy thereof must be served upon the attorney for the adverse party. A fail- ure to demur to or answer the amended pleading within twenty days thereafter has the same effect as a like failure to demur to or answer the original pleading.^ The mode of serving pleadings has been pointed out.* The effect of a default in pleading will be considered hereafter. 1 Griffin v. Cohen, 8 How. 451. 2 Code of Civil Pro., § 780. See Rule 37, Sup. Ct. 3 Code of Civil Pro., §543. * Ante, p. 299. Amendments on Motion Before Trial. 315 Nature and extent of amendments allowed on motion. CHAPTER XVII. Amendments on Motion Before Teial. Section 1. Nature and extent of amendments allowed on motion. — The Code provides that the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case, or where the amend- ment does not change substantially the claim or defense, by con- forming the pleadings or other proceeding to the facts proved; and that in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party .^ The only statutory limitation upon the power of the court at Special Term to grant an application for leave to amend is that the amendment shall be in the furtherance of justice and on such terms as the court deems just. It is almost a matter of course to permit parties to amend their pleadings before trial, where the amendment will cause no delay of the trial, and ^vill work no es- pecial hardship to the adverse party. The terms imposed are usually the payment of the costs of the motion, and such other costs and expenses, if any, as the adverse party will lose by reason of the desired amendment. Subject to these restrictions, it is al- ways deemed in furtherance of justice to allow amendments of pleadings in order to place the parties face to face before the court on the facts and law of the case.^ The power of the court at Special Term to allow amendments is not limited by statute, as in case of an application to conform 1 Code of Civil Pro., § 723. ' Gilchrist v. Gilchrist's Executors, 44 How. 317. For the terms imposed on granting an amendment, see § 3, post. 316 Amendments on Motion Befoee Teial. Nature and extent of amendments allowed on motion. the pleadings to the proofs already given,' and an amendment of a pleading may be allowed, although its effect may be to change entirely the whole cause of action or the grounds of defense.^ The court may allow an amendment of the complaint changing the cause of action from contract to tort, or from tort to contract,' and the fact that the plaintiff's cause of action is barred by the statute of limitations at the time the motion is made is unimport- ant, if the statute had not run against the claim at the time the action was commenced.'' There are cases holding that a cause of action barred by the statute of limitations cannot be allowed to be inserted in a complaint by way of amendment;' but there is no doubt that the court may, at Special Term, atlow an amend- ment of a complaint by introducing therein even a cause of action barred by the statute of limitations. In such case, the defendant must not be deprived of his defense of the statute." It was formerly held that a defendant would not be permitted to amend his answer on application to the court, so as to add the defense of usury, the statute of limitations, or any other defense denominated unconscionable.^ But other cases hold that this die- crimination between defenses is unauthorized and improper, and that the defense of usury or the statute of limitations should be recognized by the courts as standing on the same footing as accord and satisfaction, payment, set-off, or any other legal or equitable 1 Eighmie v. Taylor, 39 Hun, 866; Daguere v. Orser, 3 Abb. 86; Ford v. Ford, 35 How. 321; 53 Barb. 535. See Byrnes v. Dunn, 6 Week. Dig. 140. ' Troy, etc., E. R. Co. v. Tibbits, 11 How. 168; Beardsley v. Stover, 7 How. 394. 3 Eighmie v. Taylor, 39 Hun, 366; Bigelow v. Dunn, 53 Barb. 570; 36 How. 120. " Eighmie v. Taylor, 39 Hun, 366; Hatch v. Central Nat. Bank, 78 N. Y. 487. 5 Quimby v. Claflin, 37 Hun, 611; Weston v. Worden, 19 Wend. 648; Wil- link V. Ren wick, 23 Wend. 608; Williams v. Cooper, 1 Hill, 687. = Davis V. New York, Lake Erie & Western R. R. Co., 110 N. Y. 646. ' Utica Ins. Co. v. Scott, 6 Cow. 606; Jackson v. Murray, 1 Cow. 156; Hal- ligan V. Golden, 1 Wend. 303; Jackson v. Varick, 3 Wend. 294; Beach v. Ful- ton Bank, 3 Weud. 573; Lovett v. Cowman, 6 Hill, 333; Wolcott v. McFarlan, 6 Hill, 237; Sagory v. New York & N. H. R. R. Co., 31 How. 455; McQueen v. Babcock, 31 How. 339; 13 Abb. 368; 3 Keyes, 428; Bates v. Voorhies, 7 How. 234; Osgood v. Whittelsey, 20 How. 73; Clinton v. Eddy, 37 How. 33. Amendments on Motion Before Trial. 317 Nature aud extent of amendments allowed on motion. defense.' The latter class of cases undoubtedly states the rule now followed. The court may, at any time before trial, allow new defenses to be set up f and it makes no difference as to the ]3ower to amend, or as to the character of the amendment allowed, that the cause has been once tried, has by successive appeals been taken to the Court of Appeals and sent back to the Circuit for a new trial.' Independent of the Code, the court has power, at Special Term, on motion, to allow amendments to the pleadings by permitting the insertion of a new cause of action or a new defense.^ In an action to foreclose a mortgage, the court has power to permit the plaintiff to amend his complaint by inserting therein appropriate allegations to charge a defendant with the payment of a defi- ciency.* And the court may allow a defendant to amend his an- swer by setting up a counterclaim.'' The Code authorizes the court to amend a pleading by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party f and it is held that under this authority the conrt may allow the plaintiff to amend his summons and complaint so as to change the cause of action from one against the defendant in a representative capacity, to one against the de- fendant individually,* or to change an action brought in an indi- vidual capacity to one in a representative capacity.^ The courts have permitted an amendment, substituting as defendant a new corporation, which had succeeded to the liability of a receiver, in iBarnett V. Meyer, 10 Hun, 109; Union Nat. Bank of Troy v. Bassett, 3 Abb. (N. S.) 358; Sheldon v. Adams, 41 Barb. 54; Bank of Kinderbook v. Gif- ford, 40 How. 659; Gilchrist v. Gilchrist's Executors, 44 How. 317; Brown v. Mitchell, 13 How. 408. ^ Diamond v. Williamsbnrgh Ins. Co., 4 Daly, 494. 3 Eighmie v. Taylor, 39 Hun, 366; Troy, etc., R. R. Co. v. Tibbits, 11 How. 168. * Ford V. Ford, 85 How. 321; 53 Barb. 525; Eighmie v. Taylor, 39 Hun, 366, Travis v. Peabody Ins. Co., 38 W. Va. 583. - Bailey v. Lee, 14 Hun, 524. 6 Mitchell V. Bunn, 2 Thomp. & C. 486. iCode of Civil Pro., § 723. 8 Tighe V. Pope, 16 Hun, 180. 9 Haddow v. Haddow, 3 Thomp. & C. 777. 318 Amendments o» Motion Befoee Teial. The motion for leave to amend. place of the receiver/ and an amendment substituting the receiver of a corporation as defendant in place of the corporation.^ But it must be deemed the settled rule that the court has no power under section 723 of the Code of Civil Procedure to change the name of a sole party defendant by the substitution of that of another and entirely different defendant.^ Where an action, authorized by a law of the State, is brought against one or more persons, as stockholders of a corporation or joint-stock a,ssociation, an objection to any of the proceedings can- not be taken, by a person properly made a defendant in the ac- tion, on the ground that the plaintiff has joined with him as a defendant in the action, a person whose name appears on the stock-books of the corporation or association, as a stockholder thereof, by the name so appearing ; but who is misnamed, or dead, or is not liable for any cause. In such a case, the court may, at any time before final judgment, iipon motion of either party, amend the pleadings and other papers, without prejudice to .the previous proceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his representative or successor.'' This provision applies also to actions against the members of an unincorporated association.* When a person who has sustained damages from a personal in- jury caused by the negligence of a municipal corporation has pre- sented his claim to the corporation, stating the amount of his dam- ages, and has brought an action against the corporation to re- cover that amount, the complaint may be amended at Special Term so as to demand judgment for a larger amount.* § 2. The motion for leave to amend. — The motion for leave to amend a pleading should be made at Special Term, and on the ' Abbott V. Jewett, 35 Hun, 603. 'Fuller v. Webster Fire Ins. Co., 13 How. 298. 3 New York Monitor Milk Pan Co. v. Remington Works, 89 N. T. 33. And see Sbaw v. Cock, 78 N. Y. 194; Bassett v. Fisli, 75 N. Y. 303. ■" Code of Civil Pro., § 1813. 5 Code of Civil Pro., § 1934. « Reed v. Mayor, etc., of N. Y., 97 N. Y. 630. Amendments on Motion Before Teial. 319 Tlie motion for leave to amend. usual eight days' notice to the adverse partj, unless the circum- stances of the case forbid the giving of the usual notice and make it necessary to resort to an order to show cause. The motion should be founded upon an affidavit stating the history of the ac- tion and some reasonable excuse for the defect in the pleading sought to be corrected,' and upon the original pleadings, and the proposed amended pleading.- The moving party will be bound by the proposed amendment and cannot regularly enter an order allowing him to amend his pleading " as he shall be advised.'" If the amendment in any manner changes the parties to the action the notice of motion should be broad enough to include an amend- ment of the summons. The motion should be noticed with rea- sonable diligence, as gross laches is a ground for denying the mo- tion,'' though the rule requiring promptness in asking for leave to amend will not be applied as strictly where the moving party is a municipal corporation representing the public interest as is cus- tomary where the moving party is a private individual.^ The more stringent rules of practice are not applied to motions to amend when made by municipal corporations.'^ A motion to amend a pleading may always be opposed, and should be opposed where the proposed amendment will injuriously affect the adverse party. In all cases the party served should at- tend on the hearing of the motion and see that the terms imposed on granting the motion, if it cannot be successfully opposed, are such as will re-imburse him for all additional labor in the cause resultinc' from the amendment. Ordinarily the court will grant the motion where the amend- ment will produce no delay and will not work any special hard- ship to the adverse party.' While the granting of the motion is 'Harrington v. Slade, 32 Barb. 161. See Bewley t. Equitable Life Ins. Co.. 10 Week. Dig. 191. 'Nightengale v. Continental Life Ins. Co., 2 Law Bull. 15; Stern v. Knapp, 30 Jones & Sp. 14. 'New V. Aland, 63 How. 185. *Gowdy V. Poullain, 3 Hun, 218; Davis v. Garr, 7 How. 311. ' Brooks V. New York, 13 Abb. N. C. 350; Lanney v. Mayor, 14 Week. Dig. 140. ' Seaver v. Mayor, 7 Hun, 331. ' Qilclirist v. Gilchrist's Executors, 44 How. 317. 320 Amkndments on Motion Befoke Trial. Terms imposed on granting a motion to amend. not a matter of strict right, it is not wholly a matter of discretion, and the power to allow amendments having been granted for the sake of justice, its exercise may be compelled in a proper case.' The court will not refuse leave to amend merely because the affi- davits read in opposition of the motion state that the allegations of the proposed amended answer are false, even though the affi- davits preponderate strongly against the truth of the pleading^ But if the falsity of the proposed amended pleading is obvious, leave to amend will not be granted.^ If the court grants leave to amend, a formal order should be made and entered specifying in clear and unambiguous language the terms upon which it is granted, the amount of costs to be paid, the party by whom and to whom such costs are to be paid, and the time within which the amended pleading must be served. § 3. Terms imposed on granting a motion to amend.— The question as to what terms are to be imposed upon granting leave to amend a pleading depends for its solution upon the circum- stances of the particular case at bar and is a matter resting in the discretion of the court.* The authorities are nearly all to the effect that where the amendment to a complaint substantially changes the nature or subject of the cause of action, such terms should be imposed as will indemnify the defendant for all his taxable costs incurred in the action, provided he has raised the objection to the defect in the pleading at the first opportunity ;^ but when tlie litigation has proceeded without reference to the character of the pleadings, that fact is considered in the imposi- tion of terms, and then such rule is not deemed the governing nor necessarily the guiding one for the discretion of the court.^ ' Tighe V. Pope, 16 Hun, 180. - Hughes V. Heath, 9 Abb. (N. S.) 375. ' Morel V. Garelly, 16 Abb. 269. * Marsh v. McNair, 40 Hun, 216; Alston v. Mechanics' Mut. Ins. Co., 1 How. 82. 5 Marsh v. McNair, 40 Hun, 216; Carrier v. Dellay, 3 How. 173. See Brown V. Babcock, 3 How. 305; Troy, etc., R. R. Co. v. Tibbits, 11 How. 168; Prindle V. Aldrich, 13 How. 466; McGraue v. Mayor, etc., of N. Y., 19 How. 144; Eighmie v. Taylor, 39 Hun, 366. « .Marsh v. McNair, 40 Hun, 216; Flowers' Executors v. Qarr, 20 Wend. 668; Proctor's Adm'r v. Andrew, 1 Sandf. 70; Tooker v. Arnoux, 1 Law Bull. 54. Amendment of Pleadings at the Tkial. 321 Conforming the pleadings to the proofs. Costs of opposing the motion are almost invariably allowed in addition to the other terms which may be imposed. § 4. Service of the order and amended pleading. — Where one obtains leave to amend a pleading, he should enter the order in the proper office, obtain a certified copy, and serve such copy upon the attorney for the adverse party. He should also, within the time prescribed by the order, serve a copy of the amended pleading upon the attorney for the adverse party. And where a complaint is amended in material respects affecting the rights of defendants who have not appeared and answered, a copy of the amended pleading must be served upon them, notwithstanding their default.^ But it is otherwise where the amendment makes no substantial change in the allegations of the complaint, presents no different cause of action against defendants in default, and de- mands, as against them, no other relief than that demanded in the complaint which they did not deem necessary to the protection of their interests to answer. In such case it is not necessary to serve the defendants in default with either a copy of the amended com- plaint or with a copy of the order allowing the amendment.^ CHAPTER XVIII. Amendment of Pleadings at the Trial. Section 1. Conforming tlie pleadings to the proofs. — The Code provides that the court may, upon the trial of the action, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other re- spect, or by inserting an allegation material to the case, or, ' McMurray v. MoMurray, 60 Barb. 117. See People v. Woods, 3 Sandf. 653. ' Weil V. Martin, 24 Hun, 645. 41 322 Amendment of Pleadings at the Teial. Conforming tlie pleadings to the proofs. where the amendment does not change substantially the claim or defense, by conforming tlie pleading or other proceeding to the facts proved; and that in every stage of the action the court must disregard an error or defect in the pleadings or other proceed- ings which does not affect the substantial rights of the adverse party.' It will be seen from the language of the statute that the only limitation upon the power of the court to allow an amendment of the pleading by conforming it to the facts proved is that the amendment shall be in the furtherance of justice, and shall not change substantially the claim or defense. The power to con- form the pleadings to the proofs, when properly exercised, is of the utmost importance to the due administration of justice, and when improperly exercised, may result in a denial of justice by giving judgment for a claim not mentioned in the pleadings, and against which the adverse party had no opportunity to defend. A pleading cannot lawfully be amended in a material respect ex. cept at a time which would give the party against whom the amendment is allowed a right and opportunity to meet by proof the allegations made against him.^ The court has no power to order or allow an amendment at the trial which changes the nature of the action or amounts to setting up a new cause of action or a new defense.' Thus, in an action against a railroad company, the plaintiff will not be allowed to so amend his com- plaint as to change an action of ejectment into an action to com- pel the defendant to purchase land at a price to be fixed by the court, or remove its road from the land, nor will the court per- mit the plaintiff to so change the cause of action by granting the relief asked for, upon the evidence, without amending the com- plaint.'' An amendment cannot be granted at the close of the testimony on the trial which will chr.nge the form and nature of ' Code of Civil Pro., § 733. ' Romeyn v. Sickles, 108 N. Y. 650. 3 Gas-Light Co. v. Rome, W. & 0. R. R. Co., 51 Hun, 119; Ford v. Ford, 35 How. 321; 53 Barb. 535; Joslyn v. Joslyn, 9 Hun, 388; Dezengremel t. De- zengremel, 34 Hun, 457; Graves v. Cameron, 9 Daly, 153; Button v. Schuy- ler's Steam Tow-Boat Line, 40 Hun, 433. * Qas-Light Co. v. Rome, W. & 0. R. R. Co., 51 Hun, 119. Amendment of Pleadings at the Trial. 323 Conforming tlie pleadings to the proofs. the action from tort to assumpsit.^ So where the complaint for a conversion of personal property contains an allegation waiving the tort, the court cannot allow an amendment at the trial striking ont the waiver.^ A complaint for monej^ had and ■ received by the defendant for the plaintifE's use cannot be so amended on the trial as to allege an assignment of the claim to the plaintiff.^ So where the complaint seeks to charge the de- fendants as sureties, it cannot be so amended on the trial as to charge them as principals.'' So where a complaint in replevin bases the plaintifl's right of action upon the absolute ownership of the property in controversy, the plaintiff, on failing to prove such ownership, cannot fall back upon a lien.'*. So where the complaint is for fraud, the plaintiff, on failing to prove tlie fraud, cannot have judgment on a contract disclosed by the evi- dence.'' So where the plaintiii frames his complaint for the re- covery of real property wrongfully withheld he cannot, by an amendment of his complaint on the trial, transform his demand into an action to restrain an unlawful interference with a right incident to property in possession.'' These cases are mere illus- trations of the general rule that a plaintiff will not be permitted to so amend his complaint on the trial as to wholly change his cause of action. To determine whether an amendment of the complaint will set up a new cause of action within the prohibition of the rule above stated, it is a fair test to inquire whether a recovery on the original complaint would be a bar to any recovery under the amended pleading.^ If it would, the amendment may be allowed ; if it would not, the amendment should not be ordered, as the Code gives no authoritv to the court to allow- a plaintiff to introduce a ■ Rawsoa v. Wetmore, 39 Barb. 104; Baldwin v. Rood, 15 Civ. Pro. 56; 17 St. Eep'r, 517. ' Cusliman v. Jewell, 7 Hun, 535. ' Decker v. Saltsman, 1 Hun, 421. See Soutliwick v. First Xat. Bank, 84 N. T. 420. But see O'Xeill v. X. Y. C. & H. R. R. R. Co., 60 X. Y. 138. < Smitli V. Stagg, 15 Jones & Sp. 514. ' Hudson V. Swan, 83 X. Y. 553. ' People V. Dennison, 84 X. Y. 273. ' Vrooman v. Jackson, 6 Hun, 336. 'Davis V. New York, L. E. & W. R. R. Co., 110 N. Y. 646. 324 Amendment of Pleadings at the Teial. Conforming the pleadings to the proofs. new cause of action by amendment on the trial. If a party goes to trial under the allegations presented by his complaint, and fail- ing to prove the cause of action therein alleged, proves instead another cause of action against the defendant's objection, he can- not, after the proofs are all in, have his pleading amended or deemed amended to conform to the proof-. The amendment, if material, must be made at a time when the adverse party can have an opportunity to meet by proof the allegations made against him.^ There are cases which having proceeded in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proof s without objection, in which an amend- ment has been allowed after the close of the evidence to conform the pleadings to the proofs, and the judgment has been sustained upon appeal; and, where an appellate court can see that atrialhaS' been had upon the real issue without objection, it will not disturb a recovery upon the gromid that it was not embraced in the plead- ings.^ But where the objection has been properly taken or the question is presented by an exception, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings.^ It seems that the real limitation upon the power to allow an amendment on the trial of an action is that the amendment shall not introduce a new cause of action or a new defense. In an ac- tion for conversion, where the plaintiffs sue as tenants in common instead of as surviving partners, the complaint may be amended on the trial so as to truly aver the character or right in which the plaintiffs sue, where such an amendment would not change the cause of action, would require no different proof, and no addi- tional parties.* So although a demand may not be alleged in a com- plaint, where such an allegation may be necessary to a perfect pleading, but is proved without objection, the complaint may be 1 Romeyn v. Sickles, 108 N. T. 650. 2 Knapp V. Simon, 96 N. Y. 284; Fallon v. Lawler, 103 N. T. 238; Cowing V. Altman, 79 N. Y. 167. 3 Romeyn v. Sickles, 108 N. Y. 650; South wick v. First Nat. Bank, 84 N. T. 420; 61 How. 164; Gaspar v. Adams, 28 Barb. 441; Clark v. Post, US N. Y. 17. And see ante, p. 21. J Reeder v. Sayer, 70 N. Y. 180. Amendment of Pleadings at the Teial. 325 Conforming tlie pleadings to tlie proofs. amended to conform to the proof, and may be so amended where objection is made to proof of the demand.' So where a plaintiff has brought an action to recover for services rendered under a con- tract void under the statute of frauds, he may be allowed to amend his complaint on the trial so as to recover the actual value of the services rendered, as such an amendment does not substitute a new cause of action, but in legal effect conforms the pleading to the facts.^ Where a complaint sets up a cause of action for the specific performance of a contract, and some of the facts neces- sary to entitle the plaintiff to recover damages for a breach of the contract, and the proof does not show a right to the equitable relief, the court has power, upon such terms as it deems just, to allow an amendment of the pleadings so that a legal remedy might be had in the action ; and such an amendment will be in furtber- -anee of justice where a new action "for damages would be barred by the statute of limitations.' The courts have been very liberal in giving effect to the pro- visions of the Code permitting variances to be disregarded, and amendments to be made, conforming pleadings to proofs. It has been held by a divided court, with considerable hesitation, that where an action is brought to recover for the value of the use and occupation of premises, and the evidence brought out by the de- fendants discloses a lease to other parties, and that the defendants were in possession as assignees of the term, the court at the trial might allow an amendment of the complaint so as to conform it to the proof, and permit a recovery for the rent due on the lease.* On the trial of an action for slander, the plaintiff may be per- mitted to amend his complaint by adding words omitted in the statement of the language imputed to the defendant, where the amendment does not seek to set up a new cause of action, and does not refer to any other occasion or charge than that described in the complaint.^ The court may allow an amendment of the complaint at the trial by enlarging the claim for damages so as to ' Fullerton v. Dalton, 58 Barb. 236, 240; King v. Mackellar, 109 N. Y. 215. ' Turnow v. Hocbstadter, 7 Hun, 80. sBeck V. Allison, 56 N. T. 366. ^ Bedford v. Terhune, 30 N. Y. 453. ' Collyer v. Collyer, 50 Hun, 422. 326 Amendment of Pleadings at the Tkial. Conforming the pleadings to the proofs. conform to the proofs ;' or may allow the insertion of an allega- tion of special damages, where special damages have been proved f and it may, on a proper affidavit, and on such terms as may be just, allow an amendment of the complaint by striking out a credit given by mistake, and thereby increasing the balance claimed.* 50 the court may allow an amendment of a complaint upon a promissory note, by inserting a count for goods sold and delivered, which formed the consideration of the note, to conform the plead- ing to a state of facts which the evidence has already disclosed may possibly exist.'' So, an amendment may be allowed which changes the action in matter of form merely, from one for money had and received by the defendant as plaintiff's agent, to one for work, labor and services performed by the plaintiff for the defendant as principal.^ An amendment may be allowed on the trial, in all cases where the purpose and object of the amendment is not to in- troduce a new cause of action or defense, but to complete and fill out a cause of action or defense which the party intended and en- deavored to allege, and did defectively allege, but did not allege in full.'' It is not necessary that an application to amend the complaint should be postponed until the evidence is in, and the necessity of an amendment to conform the pleading to the proof has been demonstrated. The amendment may be allowed before any evi- dence is given, to make the complaint conform to the evidence which the plaintiff proposes to introduce.' Thus, in an action on a policy of insurance, the court allowed the plaintiff, at the open- ing of the case, to amend his complaint by increasing the amount of the demand of judgment to the amount fixed by the policy.' ' Johnson v. Brown, 57 Barb. 118; Knapp v. Roche, 5 Jones & Sp. 395; 63 N. Y. 614; Hamilton v. Third Ave. R. R. Co., 3 Jones & Sp. 118. ' Clemens v. Davis, 4 Huu, 360. 3 Price V. Brown, 113 N. T. 677; 21 St. Rep'r, 571!. * Vibbard v. Roderick, 51 Barb. 616. But see dissenting opinion. Smith, J., 51 Barb. 630. ' Oregon Steamship Co. v. Otis, 37 Hun, 453. ' Smith V. Rathbun, 13 Hun, 47. ' Smith V. Rathbun, 13 Hun, 47; Therasson v. Peterson, 33 How. 98. 8 Miaffhan v. Hartford Fire Ins. Co., 34 Hun, 58. Amendment of Pleadings at the Trial. 327 Proceedings in case of variance between the pleadings and proofs. A bill of particulars may be amended on the trial by striking out a credit given by mistake to the adverse party. ^ § 2. Proceedings in case of vai-iance between the pleadings and proofs. — Variances are either material or immaterial. A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his pre- judice in maintaining his action or defense upon the merits. If a party insists that he has been misled, that fact, and the particu- lars in which he has been misled must be proved to the satisfac- tion of the court." Variances are no longer to be determined upon the inconsistency between the pleadings and the evidence, but solely b}' proof, by affidavit or otherwise, that the party has been actually misled to his prejudice in maintaining his action or defense upon the merits by the incorrect version of the facts given in the pleading of his adversary. If such proof is not given, the variance is immaterial and will be treated accordingly.^ If such proof is given to the satisfaction of the court, the court may thereupon in its discretion order the pleading to be amended upon such terms as it deems just.^ If the variance is not material the court may direct the fact to be found according to the evidence or may order an immediate amendment without costs.'' Where the variance is immaterial, the court is not bound to order a written amendment, but may disregard the variance altogether, or may direct the fact to be found according to the evidence, and subsequently, the court may, if it will, go through the formal process of amending the record so as to cause a technical con- formity to the facts. Such an amendment supplies nothing new, but is simply in the interest of formality and regularity, and may take place at any time after verdict, before or after judgment.' > Casev. Pharis, 106 X. Y. 114. » Code of Civil Pro., g 539. ' Catlin V. Gunter, 11 N. Y. 368; Place v. Minster, 6.5 X. Y. 89, 104; Hauck V. Craighead, 4 Hun, 561; Smith v. Ratlibuu, 13 Hun, 47. ■> Code of Civil Pro., § 539. » Code of Civil Pro., g 540. 5 Craig V. Ward, 36 Barb. 377; Hauck v. Craighead, 4 Hun, 561. ' Place V. Minster, 65 N. Y. 89, 104; Lettman v. Ritz, 3 Sandf. 734; De Pey- stery. Wheeler, 1 Sandf. 719; Harmony v. Bingham, 1 Duer, 209. 328 Amendment of Pleadings at the Trial. Proceedings in case of variance between the pleadings and proofs. Sucli an amendment may be made after judgment at Special Term on the hearing of a motion for a new trial on the judge's minutes.^ Under ordinary circumstances, where there is a variance be- tween the pleadings and proofs in formal and unimportant par- ticulars, no necessity for an amendment exists, and if one is re- quired, it may be made at the trial. It is better that unimportant variances should be disregarded entirely, or amended at the trial, than that the parties should be subjected to the labor and delay of a special motion in order to render the pleadings literally accu- rate in the statement of the cause of action or defense. But where a party for the first time discovers at the trial that he has misunderstood his cause of action or defense, and for that reason has improperly alleged it in his pleading he may be allowed to withdraw a juror, if the trial is by jury, to afEord him an oppor- tunity to move at Special Term for leave to amend the pleading so as to cure the defect.^ If the trial is before a referee, the appli- cation for leave to amend may be made to the referee, or if the party chooses, and the referee adjourns the case, the motion to amend may be made at Special Term.^ Where an amendment of the complaint has been allowed at the close of the plaintiff's case to cure an immaterial variance between the complaint and the plaintiff's proofs, it does not foUow that the defendant is entitled to amend his answer where such amend- ment could serve no useful purpose.'' The court may, however, permit the defendant to meet the amendment of the complaint by an immediate amendment of the answer, not introducing a new defense, and thus protect all possible rights of the defendant while allowing the trial to proceed ; or if the variance is material and the defendant is taken by surprise, or misled to his prejudice in maintaining his defense on the merits, be can make the proper proof of that fact, and thereupon have a postponement of the trial and obtain, on application to the court, the privilege of answer- • Thomas v. Nelson, 69 N. Y. 118. ' Hauck V. Craighead, 4 Hun, 561. 2 Bullock V. Berais, 40 Hun, 623; Wiley v. Brigham, 16 Hun, 106; Mitchell V. Bunn, 2 Thomp. & C. 486, 487; Hochstetter v. Isaacs, 14 Abb. (N. S.) 235. - Dunnigan v. Crummey, 44 Barb. 528. See Harriott v. Wells, 9 Bosw. 631. Amendment of Pleadings at the Trial. 329 Proceedings in case of variance between the pleadings and proofs . ing or demurring.^ On aa application made at Special Term the defendant could obtain leave to set up such new defenses in his answer as were required by the changed state of the pleadings.^ In case the issues are changed in any material respect by an amendment ordered at the trial, as by changing or striking out averments already made, the defendant has an absolute right to have the amendment actually made before the case is closed on the proofs, so that he may know what he is to meet, and has also an absolute right to answer the amended pleading. Such an amendment is more than a mere formality ; more than merely making the pleading conform to the proof without any change of the pleading in its substance and general scope.' Where a pleading is amended on the trial, the amended plead- ing need not be Served unless such service is made a condition of the allowance. The amended pleading becomes a part of the record on being allowed.^ As the statute requires that the party insisting that he has been misled by a variance shall prove that fact, and the particulars in which he has been misled to the satisfaction of the court, and the question of the materiality of the variance is no longer to be de- termined upoQ any inconsistency between the pleadings and the proofs,* cases determining what variances are material or imma- terial are of but little value as precedents. Each case must be determined upon the proofs presented. There may be cases in which the pleadings themselves will supply the necessary proof of prejudice,' but ordinarily it is the better practice to make the fact appear by affidavit. The Code provides for an amendment of a pleading on terms where there is a material variance between the pleading and the proof, and for an amendment without costs where the variance is immaterial. It further provides that where the allegation to which the proof is directed is unproved, not in some particular ' Smith V. Rathbun, 13 Hun, 47." ' See ante, p. 317. 2 Ballou V. Parsons, 11 Hun, 602. * Lane v. Hayward, 28 Hun, 588. ' See ante, p. 327. * See Lyon v. Blossom, 4 Uuer, 318. 42 330 Amendment of Pleadings at the Teial. Inserting allegations material to the case — Amendment as to parties. or particulars only, but in its entire scope and meaning, it is not a case of variance within the provisions above referred to, but a failure of proof.^ The remedy by amendment given by the sec- tions of the Code relating to variance does not, therefore, apply to such a case. § 3. Inserting allegations material to the case. — The court may upon the trial of an action, in furtherance of justice, and on such terms as it deems just, amend any pleading by inserting an allegation material to the case.^ Thus, if the complaint in an ac- tion for malicious prosecution contains all the averments requisite to maintain the action except the averment that the prosecution is ended, the court may allow an amendment on the trial to sup- ply this omission.' A complaint may be amended on the trial by the insertion of an allegation of a demand where such an amend- ment is necessary to perfect the pleading.'' It may also be amended by adding an allegation of a wrongful taking where the action is to recover possession of personal property.^ And gen- erally, where a defendant lies by until trial before objecting to the sufBciency of the complaint, it is a proper exercise of discretion in the court or refei-ee to allow the necessary allegations to be sup- plied by amendment, where they do not amount to a new cause of action.^ § 34. Amendment as to parties, — The Code provides that the court may at the trial, in the furtherance of justice, and on such terms as it deems just, amend any process, pleading or pro- ceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party.'' While this provision confers full authority for adding or striking out the name of a person as a party, or correcting a mis- take in such name, it does not sanction an entire change of the 1 Code of Civil Pro., § 541. ' Code of Civil Pro., § 733. 3 Ames V. Rathbun, 55 Barb. 194; 37 How. 289. * King V. Mackellar, 109 N. Y. 215; Fullerton v. Dalton, 58 Barb. 236, 240. ' Simmons v. Lyons, 55 N. Y. 671. * Woolsey v. Trustees of Rondout, 2 Keyes, 603. ' Code of Civil Pro., S 723. Amendment of Pleadings at the Trial. 331 Amendment as to parties. name of the defendant by the substitution of another or entirely different defendants/ nor does it authorize the trial court to amend the summons and complaint by striking out the name of the plaintiff and substituting another in its place.^ The power given to the court at the trial does not extend to an entire change of parties on one side.^ "Where the original plaintiff in an action of replevin has died during its pendency, and the action has been revived by his widow as executrix, if it appears from the evidence on the trial that the original plaintiff never had title to the property in con- troversy, and that the property belongs to the widow in her own right, the summons and complaint cannot be amended on the trial by striking out the term " executrix " and thus allow the widow to recover by virtue of her own title.* The Revised Statutes require that every limited partnership shall put upon some conspicuous place on the outside and in front of the building in which it has its chief place of business, some sign on which shall be painted in legible English characters all the names in full of all the members of the partnership, and pro- vide that in default thereof no action shall be abated or dismissed by reason of the proof of the plaintiff of the partnership failing to meet the allegations of his pleading as to the names and num- ber of the partnership ; but the pleading may be amended on the trial to conform to the proof in that respect without costs.' Where an action, authorized by a law of the State, is brought against one or more persons, as stockholders of a corporation or joint-stock association, an objection to any of the proceedings can- not be taken, by a person properly made a defendant in the action, on the ground that the plaintiff has joined with him, as a defend ant in the action, a person whose name appears on the stock- books of the corporation or association, as a stockholder thereof, by the name so appearing ; but who is misnamed, or dead, or is ' Bassett v. Fish, 75 N. Y. 303; New Yorlc State Monitor Milk Pan Associa- tion V. Remington Agricultural Works, 89 N. Y. 33. ' Chittenango Cotton Co. v. Stewart, 67 Barb. 438. ^ Davis V. Mayor, etc., of New York, 14 N. Y. 506. * Phillips V. Melville, 10 Hun, 311. ' 3 R. S. (7th ed.) 3337, § 13. 332 Amendment op Pleadings at the Trial. Power of a referee to amend pleadings. not liable for any cause. In such a case, the court may, at any time before final judgment, upon motion of either party, amend the pleadings and other papers, without prejudice to the previous proceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his represen- tative or successor.^ The same rule applies to an action brought under section 1922 of the Code of Civil Procedure against the members of an association.^ § 5. Power of a referee to amend pleadings. — Upon the trial of an issue of fact a referee exercises the same power as the court to allow amendments to the summons or to the pleadings ; and upon the trial of an issue of law the referee exercises the same power as the court to permit a party in fault to plead anew or amend, or to direct the action to be divided into two or more actions. These powers are exercised in like manner and upon like terms as similar powers are exercised by the court upon a trial. ^ In fact a referee upon the trial of a cause has the same powers as to amendments as a judge at the Circuit, and is subject to the same limitation.*' This limitation is that the amendment shall not bring in a new cause of action or defense.^ A referee has no power to allow an amendment on the trial of an issue of fact which changes substantially the claim or defense.^ Although a referee has power to amend a pleading on the trial of an action pending before him, where such amendment will not change substantially the claim or defense, this power is not ex- clusive, and if the party choses, and the referee adjourns the case. ' Code of Civil Pro. , § 1813. •' Code of Civil Pro., , § 1934. " Code of Civil Pro. , § 1018. '' Knapp V. Fowler, 36 Hun, 300; Smith v. Rathbun 75 N. Y. 133; Bullock V. Bemis, 40 Him, 633; Oregon Steamship Co. v. Otis, 59 How. 354; 37 Hun, 453; Chapin v. Dobson, 78 N. Y. 74. s Price V. Brown, 98 N. Y. 888; Reeder v. Sayer, 70 N. Y. 180; Harris v. Tumbridge, 83 N. Y. 93. - Button V. Schuyler's Steam Tow-Boat Line, 40 Hun, 433; Bockes v. Lan- sing, 74 N. Y. 487;Quimby v. Claflin, 13 Week. Dig. 303; Riley v. Corwin, 17 Hun, 597; Joslyn v. Joslyn, 9 Hun, 388; Sinclair v. Neill, 1 Hun, 80. Amendment of Pleadings after Trial oe on Appeal. 333 Power to amend a pleading after trial. the motion to amend may be made at Special Term.^ But tlie court at Special Term has no power upon motion to review the action of the referee in granting an amendment to the pleadings, even though he may have directed the motion to be made and may have made the allowance of the amendment subject to the approval and ratification of the court.- The power of a referee in respect to the terms upon which an amendment shall be allowed is commensurate wilii that of the court. The pow.er to impose conditions on allowing an amend- ment of the pleadings upon the application of one of the parties, such as that the other party may amend his pleading, or withdraw it and interpose a demurrer in place of an answer, is frequently exercised by the courts, has been established by immemorial practice, and does not need a statute to confer it. The same power may be exercised by a referee.^ CHAPTER XIX. Amendment of Pleadings after Trial or on Appeal. Section 1. Power to amend a pleading after trial. — The power which the court possesses to amend a pleading on the trial* may also be exercised by it at any stage of the action, before or after judgment.* Upon the decision of a demurrer, either at a General or Special Term or in the Court of Appeals, the court may, in its discretion allow the party in fault to plead anew or amend, upon such terms as are just.^ In a court of record, where a verdict, report or decision has = Bullock V. Bemis, 40 Hun, 633; Wiley v. Brigham, 16 Hun, 106; Hoch- stetter v. Isaacs, 14 Abb. (X. S.) 235. 2 Knapp V. Fowler, 26 Hun, 200. ' Smith V. Bathbun, 75 N. T. 122. ^ See ante, pp. 315-318. 'Code of Civil Pro., §723. « Code of Civil Pro., § 497. 334 Amendment of Pleadings after Trial or on Appeal. Power to amend a pleading after trial. been rendered, the judgment cannot be stayed, nor can any judg- ment of a court of record be impaired or affected by reason of either of the following imperfections, omissions, defects, matters, or things in the process, pleadings or other proceedings : 1. For want of a summons or piher writ. 2. For any fault or defect in process, or for misconceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer or because an officer has not subscribed a return actually made by him. 4. For a variance between the summons and complaint. 5. For a mispleading, insufficient pleading or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance by attorney of an infant party, if the verdict, report, or decision, or the judgment is in liis favor. 8. For omitting to allege any matter without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person ; or in a sum of money ; or in the description of property ; or in reciting or stating a day, month, or year ; where the correct name, sum, description, or date has been once rightly stated in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgment-roll. 12. For an omission on the part of a referee to be sworn ; or for any other default or negligence of the clerk or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced.' Each of these omissions, imperfections, defects and variances, and any of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court.^ ' Code of Civil Pro., §721. ' Code of Civil Pro., § 733. Amendment of Pleadings after Trial oe on Appeal. 335 Power to amend a pleading after trial. In every stage of the action the court must disregard an error or defect in the pleadings or other proceedings, whicli does not affect the substantial rights of the advei'se party.* These provisions of the Code confer upon the court ample powers in respect to the amendment of pleadings, or what amounts practically to the saine thing, the disregard of an amend- able defect in a pleading. These powers are liberally exercised. Thus, where a complaint in an action upon a promissory note merely alleged that the plaintiffs were the owners and holders of the note and set out the note, without alleging that it was exe- cuted by the defendant or that any sum was due them thereon, it was held that even if the complaint would have been held defect- ive on demurrer, and although counsel for the defendant at the opening of the case upon the trial moved to dismiss the complaint upon the ground that it did not upon its face set forth facts sutfi- cient to constitute a cause of action, and duly excepted to a denial of the motion, yet as the answer admitted the execution of the note b}' the defendant, and did not allege that the note had been paid, the defect was cured by the answer, and on appeal to the Court of Appeals the complaint would be deemed amended.^ And generally where a complaint omits to aver a necessary fact and that fact appears by the answer, the defect will be supplied by amendment, even after appeal to the Court of Appeals, not- withstanding the fact that an objection has been taken at the trial on the account of the omission and overruled.^ Such amend- ments are only made in support of the judgment; and an amend- ment of a pleading will not be made on appeal for the purpose of reversing a judgment.^ A denial in an answer of the existence of a fact material to the plaintiff's cause of action and not alleged in his complaint does not cure the defect in the complaint so that it may be deemed amended on appeal.^ And where upon the ' Code of Civil Pro., § 723. 2 Cohu V. Husson, 113 N. Y. 662. " Bate V. Graham, 11 N. T. 237; Pratt v. Hudson R. E. Co., 21 N. Y. 305, 313; Haddon v. Lundy, 59 N. Y. 830, 328. ^ Volkening v. De Graaf, 81 N. Y. 268. ' Tooker v. Arnoux, 76 N. Y. 397; Scofield v. Whitelegge, 49 N. Y. 259; 12 Abb. (N. S.) 320. And see Goodwin v. Wertbeimer, 99 N. Y. 149. 336 Amendment of Pleadings aftee Trial ok on Appeal. Power to amend a pleading after trial. trial of an action, after the plaintiff has opened his case, the com- plaint is dismissed on the ground that it does not state facts suffi- cient to constitute a cause of action, and the plaintiff, without asking leave to amend, excepts to the decision and appeals, the complaint will be treated as if it had been demurred to, and the sole question considered on the appeal will be whether it suffi- ciently states a cause of action.' And where the defendant's coun- sel at the opening of the case has moved to dismiss the complaint on the ground that it does not allege certain facts necessary to the cause of action, and on denial of his motion has duly excepted, and there is no amendment or offer to amend made on the part of the plaintiff at any stage of the trial, the court on appeal will not relieve the plaintiff if he should prove to be in error as to the sufficiency of his pleading.^ On appeal from a judgment for the plaintiff in an action on contract the General Term has power to amend the complaint so as to make it correspond with the actual facts of the contract as developed by the evidence.^ So where a complaint does not allege a demand, where a de- mand is necessary to a perfect statement of a cause of action, but the demand has been proven upon the trial, an amendment of the complaint may be allowed inserting such allegation even on appeal to the General Term.'' So in an action of ejectment, where the fact that the plaintiffs are infants appears on the face of the complaint, and no objection is taken to their want of capacity to maintain the action until the cause is taken to the General Term on appeal, an amendment will then be allowed, if necessary to obviate and cure the defect.' A defect in the state- ment of tlie representative character of the plaintiff may be rem- edied by amendment at the General Term.^ So, where special damages are proven on the trial, but are not alleged in the com- ' Sheridan v. Jackson, 73 N. Y. 170. - Pope V. Terre Haute, etc., Co., 107 N. Y. 61; Tooker v. Arnoux, 76 N. Y. 397; Southwick v. First Nat. Bank, 84 N. Y. 420. 2 Harris v. Tumbridge, 83 N. Y. 93. ■■ Tripp V. Pulver, 3 Hun, 511. - Bartholomew v. Lyon, 67 Barb. 86. = Risley v. Wightman, 13 Hun, 163. Supplemental Pleadings. 337 Nature and object of a supplemental pleading. plaint, the General Term will consider the complaint as amended by the addition of the necessary allegations.^ And generally, al- though the complaint may not have covered the case proved, if the facts proved in the case establish a good cause of action, and the evidence was received without objection, the case on ap- peal may be disposed of as though the pleadings had been amended on the trial.^ So, an amendment may be allowed in a proper case, after the decision of an appeal, and an order for a new trial.^ So, on an appeal to the County Court, on the law, from a judgment of a, Justice's Court, a complaint for assault and battery, com- mitted by the defendant and his dog, may be amended so as to charge that the defendant's dog, being vicious, and known to be so by the defendant, bit the plaintiff, where such amendment will conform the pleading to the case proved, and the theory upon which it was tried."* CHAPTER XX. Supplemental Pleadings. Section 1. Nature and object of a supplemental pleading. — Amendments to pleadings can only relate properly to the time when the original pleading was made, and can only state facts in existence at that time. To introduce matters occurring at a sub- sequent date would render the record incongruous. But as it fre- quently happens that justice requires that facts occun-ing since the original pleading was served should be brought before the court, a means for reaching this result is furnished by way of supplemental pleading.^ Indeed, evidence of facts transpiring, or of a defense ' Clemons v. Davis, 4 Hun, 260. ' Tisdale v. Morgan, 7 Hun, 583; Tyng v. Commercial Warehouse Co., 58 N. Y. 308; Foote v. Roberts, 7 Rob. 17; Bowdoin v. Coleman, 3 Abb. 431; 6 Daer, 182; Harrower v. Heath, 19 Barb. 331; Cady v. Allen, 22 Barb. 388. 3 Prindle v. Aldricb, 13 How. 466; McGrane v. Mayor, 19 How. 144. ^ Argersinger v. Levor, 7 N. Y. Supp. 923. ^Hornfager v. Hornfager, 6 How. 13; Beck v. Stephani, 9 How. 193; Drought V. Curtiss, 8 How. 56; Hendricks v. Decker, 35 Barb. 298; Radley v. Houghtaling, 4 How. 251; De Lisle v. Hunt, 36 Hun, 620; Hoyt v. Sheldon, 6 Duer, 661; 4 Abb. 59; McCaslan v. Latimer, 17 S. C. 805. 43 338 Supplemental Pleadings. Supplemental complaint. in whole or in part occurring after the commencement of an action and the joinder of issue therein, can only be received upon and in support of a supplemental answer, which becomes in such case a necessity.' The same reason exists for bringing before the court matters in existence at the time the original pleading was served, but of which the pleader was ignorant at that time. The Code, therefore, provides that " upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made ; including the judg- ment or decree of a competent court, rendered after the commence- ment of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supple- mental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the ac- tion, is not affected by the supplemental pleading ; but the right of the adverse party to have it vacated or set aside depends upon the case presented by the original and supplemental pleadings."^ A supplemental pleading is also proper where new parties are brought in on application of the plaintiff.^ § 2. Supplemental complaint. — According to the practice of the Court of Chancery, a supplemental bill might be brought not only to insist upon the relief prayed for in the original bill, but upon a relief different from that prayed for in the original bill, where facts which had since occurred might require it. But the general rule was that the new matter must be such as did not change the rights or interests of the parties before the court ;* and that to entitle the plaintiff to file a supplemental bill and thereby obtain the benefit of former proceedings, where the title to prop- erty was involved, the new matter must be in respect to the same ' Hall V. Olney, 65 Barb. 37. 2 Code of Civil Pro., §544. 3 Code of Civil Pro., §760. " Story's Eq. PI., §336. Supplemental Pleadings. 339 Supplemental complaint. title in the same person as stated in the original bill.^ Where the plaintiff had no title when the bill was filed, he could not set up, by way of supplement, a title subsequently acquired by purchase from another.^ Under the present practice, a party has no right to establish, by a supplemental complaint, a cause of action not in existence at the time of the commencement of the suit.' The province of a sup- plemental complaint is to present such facts material to the case, oc- curring after the making of the former complaint, as aid the original statement of a cause of action, or tend to vary the relief to which the plaintiff is thereby entitled, or which tend to perfect an inchoate right so stated, which has since been made or become complete.* Where the performance of some act or the happening of some event is necessary to give the plaintiff a cause of action, such as the issuing or return of an execution prior to the commencement of a judg- ment-creditor's action, and such act is not performed or such event does not happen until after the action is commenced, the plaintiff cannot, by supplemental comjjlaint, incorporate such act or event into the case and recover upon a cause of action which had no exist- ence when the suit was brought.^ The original complaint can- not be helped out in substance by the statement in a supplemental pleading of facts occurring since the bringing of the action.* Upon no theory can a cause of action accruing after the commencement of the action be tacked by a supplemental complaint to causes of action which are independent and existed prior to the commence- ment of the action.' Thus, in an action to recover for goods sold and delivered, the plaintiff cannot, by way of supplemental com- plaint, set up and recover for goods sold upon a term of credit ex- piring after the action was commenced.* So in an action for rent, ' Story's Eq. PI., §839. ' Coop. Eq. 43. See Haddon v. Lundy, .59 N. Y. 320. ' Farmers' Loan & Trust Co. v. United Lines Tel. Co., 47 Hun, 815; Watson V. Thibou, 17 Abb. 184; Continental Construction, etc, Co, v. Vinal, 15 St. Rep'r, 969. ^ Bostwick V. Menck, 4 Daly, 68. 'McCullougli V. Colby, 4 Barb. 603. 'Bostwick V. Menck, 4 Daly, 68; McMabon v. Allen, 13 How. 39. 'Bull V. Eothscliild, 16 Civ. Pro. R. 356; 23 St. Rep'r, 536; Holly v. Graf, 29 Hun, 443; Muller v. Earle, 5 Jones & Sp. 388. 'Holly V. Graf, 29 Hun, 443. 340 Supplemental Pleadings. Supplemental complaint. installments falling due after the commencement of the action can- not be brought in by supplemental complaint.' The Code merely allows a supplemental pleading for the purpose of alleging facts occuiTing after the former pleading of the party, or of which he "was ignorant when it was made ; and these facts must relate to the cause of action upon which the suit was brought and be per- tinent to the rights and liabilities of the parties connected with that cause of action.^ The authorities all agree that a new and substantive cause of action cannot be set up by a supplemental complaint.' The matter of the supplemental complaint must be consistent with and in aid of the case made by the original complaint, and not make a new and difEerent case.'' Where an action has been brought for a lim- ited divorce a supplemental complaint setting up acts of adultery committed since the commencement of the action is not permis- sible.* The rule is the same where the action is for an absolilte- divorce.^ "Where an action has been brought against a foreign cor- poration by several plaintiffs, some of whom are residents and some of whom are non-residents, and the complaint has been dis- missed as to the non-residents and continued as to the others, the fact such non-residents have subsequently assigned all their stock to a resident of this State, to enable him to enforce for their bene- fit the rights incident thereto, does not entitle the plaintifEs to ,have such assignee made a party plaintiff and to serve a supple- mental complaint, as it is not possible for the assignors by an as- signment made after the dismissal of the complaint as to them, to revive the action and give to the assignment the retroactive effect of creating a right to enforce a cause of action wliich did not exist ' Bull V. Rothscliild, 16 Civ. Pro. R. 356; 33 St. Rep'r, 536. - Holly V. Graf, 39 Hun, 443. 3 Tiffany v. Bowerman, 3 Hun, 643; Wattson v. Thibou, 17 Hun, 184; Milner Y. Milner, 3 Edw. 114; West v. Burns, 2 Law Bull. 55. "Wattson V. Thibou, 17 Abb. 184; Tiffany v. Bowerman, 2 Hun, 643; Bu- chanan V. Comstock, 57 Barb. 583. 'Robertson v. Robertson, 9 Week. Dig. 348; Hoffman v. Hoffman, 35 How, S84. ^Morange v. Morange, 3 Law Bull. 30. Supplemental Pleadings. 341 Supplemental complaint. when the suit was commenced by them.' So where a plaintiff has commenced an action against a defendant individually to charge him with moneys received while acting as agent for a decedent, and during the pendency of such action letters testamentary are granted to the defendant upon the will of such decedent, the plain- tiff will not be allowed to file a supplemental complaint alleging the granting of the letters testamentary to give him a right to re- cover which he did not possess when the action was commenced.^ But where letters of administration have been granted to a plain- tiff after the commencement of the action and that fact is brought before the court by a supplemental answer put in by the defendant, the plaintiff may assert the subsequently -acquired title so set up, and make it the foundation of a relief different from what he was en- titled to at the outset, to the same extent as would be permissible if the new facts had been set up by way of supplement.al com- plaint.^ Where, after the commencement of an action, a third party becomes interested in tlie litigation by assuming the liabilities of the defendant in respect to the claim the plaintiff is seeking to enforce, a supplemental complaint may be allowed bringing in such third party as a defendant.^ In an action to recover a life estate in land which the plaintiff was induced by the defendant's fraud to convey to him, the plaintiff may be allowed to file a supplemental complaint demand- ing the damages for the detention which have accrued during the pendency of the action, although no damages were demanded in the original complaint ; and in case of the death of the plaintiff without demanding such damages, his administrator may be al- lowed to revive the action and file a supplemental complaint ask- ing for a recovery of those damages.'' In an action for libel, a publication of the libel after the com- mencement of the action was allowed to be set up in a supple- ' Ervin v. Oregon E. E. & Nav. Co., 38 Hun, 269. ' McMahon v. Allen, 12 How. 39. 'Haddon v. Lundy, 59 N. Y. 320. ■* Prouty V. Lake Shore, etc., E. E. Co., 85 N. Y. 273. * De Lisle v. Hunt, 36 Hun, 630. 342 Supplemental Pleadings. Supplemental complaint. mental complaint ;' and in an action on a contract, payable in in- stallments, the plaintiff was allowed to allege that an installment had matured after the action was commenced.^ Where the original complaint discloses a good cause of action, and facts subsequently occurring vary the relief to which the plaintiff is entitled under the original complaint, he may be al- lowed to file a supplemental complaint for the purpose of setting up those facts and obtaining the relief to which they entitle him.' In an action to foreclose a mechanic's lien under the act of 1863, the plaintiff, on discovering on the trial that the written contract upon which he based his claim had been altered in fraud of his rights, was allowed to file a supplemental complaint setting up the facts and asking for a recovery on a quantum meruit for the whole work done.^ In an action by tax payers to restrain the levy of a tax, the plaintiffs may be allowed to file a supplemental complaint alleging that since the commencement of the action the tax has been levied and a portion thereof has been paid to the de- fendants, and asking not only to restrain any further levy but also to have restitution made to the proper parties by the de- fendants who have received the money .^ Where the defendant in an action to enforce an alleged right of stoppage in transitu has set up in his answer that he had received the goods into his possession and had sold and assigned the bill of lading and re- ceived the price thereof, the plaintiff may be granted leave to file a supplemental complaint alleging that the defendant procured the goods by fraud, was insolvent, and had conspired to defraud the plaintiff by a fictitious sale of the goods made without a con- sideration.^ In an action of quo warranto, the relator, after ver- dict and judgment declaring him entitled to the ofiiee, may be ' Corbin v. Knapp, 5 Hun, 197. ' Fincke V. Rourke, 20 Hun, 264. This case is in direct conflict with. Bull v. Rothschild, 16 Civ. Pro. R. 356, but seems to be in line with Malcolm v. Allen, 49 N. Y. 448. - Hasbrouck v. Shuster, 4 Barb. 285; Candler v. Pettit, 1 Paige, 168; Sage T. Mosher, 17 How. 367, 370; Latham v. Richards, 15 Hun, 129, 131. ■> Gambling v. Haight, 5 Daly, 152; 14 Abb. (N. S.) 398, note. ' Latham v. Richards, 15 Hun, 129. ^ Rosenthal v. Dessau, 11 Hun, 49. Supplemental Pleadings. 343 Supplemental answer or reply. permitted to file a supplemental complaint alleging that he has sustained damages in an amount specified by reason of the de- fendant's having drawn the salary of the ofiice up to the time of the entry of judgment, and asking judgment for such damages.' After a decree in foreclosure, and after a sale thereunder, the property being of little or no value, if it is discovered that, by a mistake in the search, a person liable to pay the mortgage debt has been left out as defendant, the plaintiff may apply at Special Term, on notice to all persons who have appeared in the action, for leave to file a supplemental complaint, and bring in the omitted party as a defendant. Notice to the person to be brought in is not necessary.^ So where the plaintiff in an action to foreclose a mortgage has died after judgment and before sale, and his executor has assigned the judgment, the assignee may be allowed to file a supplemental complaint to carry the judgment into effect.^ So where one of the members of a firm, with the assent of his copartner, has assigned a portion of the partnership property for the payment of the partnership debts, and an action has then been brought for a partnership accounting, and the as- signee has died before appearance in such action, the proper mode of bringing in a trustee appointed by the court in place of the deceased assignee is by supplemental complaint.^ § 3. Supplemental answer or reply.— Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental com- plaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the action, detennining the matters in controversy, or a part thereof.^ Where a case is made coming within the terms of the statute above cited, it is the practice to grant an order allowing a supple- ' People, ex rel. Swinburne, v. Nolan, 30 Hun, 484. » Ebbets V. Martine, 19 Hun, 294. ' Robinson v. Brisbane, 7 Hun, 180; 67 N. Y. 606. * Jolinson V. Snyder, 7 How. 395. » Code of Civil Pro., § 544. 344 Supplemental Pleadings. Application for leave to serve a supplemental pleading. mental answer or reply to be served almost as a matter of course.^ A defendant may be allowed to set up by supplemental answer a discharge in bankruptcy obtained since the joinder of issue in the action ;^ or a release after issue joined ;' or the payment of a judg- ment by one of several joint defendants •* or the adultery of the plaintiff in an action for divorce if discovered after issue joined ;' the recovery of a judgment in an action pleaded as pending in the original answer, where such recovery was since the joinder of issue f or the insolvency of the maker in an action for the con- version of a promissory note ;^ or a re-assignment in an action to set aside an assignment of an interest in letters-patent ;' or in an action against sureties, that a judgment by default against their principal has been vacated.^ Where the answer contains a counterclaim, and the demand so set up has been paid since the service of the answer and a reply thereto, the court may permit a supplemental reply setting up such payment.^" The foregoing cases illustrate the class of defenses which may be allowed to be set up by supplemental answer or reply when a proper application has been made to the court and a case presented showing that the granting of an order to that effect is a proper exercise of judicial discretion under all the circumstances disclosed. § 4. Application for leave to serve a supplemental pleading. — A motion for leave to make and serve a supplemental pleading should be made to the court at Special Term, on notice to the ad- ■ Lyon V. Isett, 11 Abb. (N. S.) 353; 2 Jones & Sp. 41; 43 How. 155. ' Lyon V. Isett, 11 Abb. (N. S.) 353; 2 Jones & Sp. 41; 42 How. 155; Hadlev V. Boehm, 1 Hun, 304; Stewart v. Isidor, 5 Abb. (N. S.) 68; Eosenfield v. Shebel, 1 Law Bull. 4; Core v. Ford, 1 Law Bull. 12. See Dorance v. Hen- derson, 92 N. Y. 406. ' Matthews v. Cbicopee Mfg. Co., 3 Rob. 711; Mitchell v. Allen, 25 Hun, 543. ^ Brown v. Richardson, 7 Rob. 57. ' Strong V. Strong, 3 Rob. 669; 28 How. 433. « Hendricks v. Decker, 35 Barb. 298, 303. ' Cothran v. Hanover Bank, 8 Jones & Sp. 401. 8 Gas-Works Co. v. Standard Gas-Light Co., 47 Hun, 355. « Wittig V. Moltz, 13 Jones & Sp. 389. '» Orrasbee v. Brown, 50 Barb. 436. Supplemental Pleadings. 345 Application for leave to serve a supplemental pleading. verse party, and on motion papers showing at least a, prima facie case for the granting of the relief sought.' The motion should not be made at the trial, whether before the court or a referee, as it cannot be granted at that time ;- though if the necessity for the supplemental pleading or the facts sought to be set up are not discovered until the trial, it is proper to apply to the court or referee for a postponement of the trial until a motion can be made at Special Term for the required order. The motion should be based upon the original pleading; upon the proposed supplemental pleading f and upon an affidavit stat- ing the prior proceedings in the action, and facts showing that the facts sought to be set up in the supplemental pleading occurred since the moving party served his original pleading, or that he was ignorant of such facts when it was made,'' and showing also that the moving party has used due diligence in making the appli- cation or a sufficient excuse why the motion was not made at the earliest opportunity, and any other fact tending to show a right to the favorable exercise of the discretion of the court in respect to the relief sought or the terms imposed. If the object of the mo- tion is to bring in a new defendant and to file a supplemental summons and complaint, the affidavit should state facts showing a right or necessity for such relief. In such case the plaintiff should give notice of the application to all the parties who have appeared in the action, but not to the person to be brought in.^ The motion papers should show whether the moving party seeks to make the supplemental pleading in addition to or in place of the former pleading." The motion pajDcrs should be served on the adverse party ; but copies of pleadings which have already been served, though speci- ' See Holyoke v. Adams, 59 N. Y. 333; Garner v. Hannali, 6 Duer, 263; Fleiscli- mann v. Bennett, 79 N. Y. 579. - Lyon V. Isett, 3 Jones & Sp. 41; 43 How. 155; 11 Abb. (N. S.) 353; Garner V. Hannah, 6 Duer, 363. ' See Stern v. Knapp, 20 Jones & Sp. 14. * See Code of Civil Pro., § 544; McMahon v. Allen, 3 Abb. 89; Houghton v. ■Skinner, 5 How. 430. » Ebbets V. Martine, 19 Hun, 294. « See Code of Civil Pro., § 544. 44 346 Supplemental Pleadings. Decision of a motion for leave to file supplemental pleading. fied in the notice of motion as a part of the papers upon which the application will be based, need not be served again. The party making the service should either procure an admission of due service of the motion papers from the parties served, or should make an affidavit of service and attach it to the motion papers. § 5. Decision of a motion for leave to file supplemental pleading. — As a general rule, a party has a right to set up by a supplemental pleading such material facts as have occurred after his former pleading, or as have come to his knowledge since the former pleading was made ; but he must apply to the court by motion for leave so to do, so that the opposite party may be heard, and the court may determine whether there has been inexcusable laches, or whether any of the reasons appear which are recognized as giving authority for denying the exercise of the general right in the particular instance ; and the court must grant leave unless the motion papers show a case in which the court may exercise a discretion as to granting or withholding leave.^ Notwithstanding the mandatory language of section 544 of the Code, the allowance of leave to file a supplemental pleading is in the discretion of the court ; and on an application for leave it is the duty of the court to consider all the circumstances and grant or refuse it, as may be just and proper in the particular case.^ This discretion must be exercised reasonably and not capriciously or willfully ; ' and the exercise of that discretion at Special Term may be reviewed by the General Term, but will not be reviewed by the Court of Ap- peals.* Laches is a good ground for denying leave to serve a supple- mental pleading,^ though it may not be fatal to the application • Holyoke v. Adams, 59 N. Y. 333; Spears v. Mayor, etc., of N. Y., 73 N. Y. 443. ' Fleischmann v. Bennett, 79 N. Y. 579; Medb'ury v. Swan, 46 N. Y. 300. ' Spears v. Mayor, etc., of N. Y., 73 N. Y. 443. * Fleisclimann v. Bennett, 79 N. Y. 579. ' McDonald v. Davis, 13 Hun, 95; Medbury v. Swan, 46 X. Y. 300; Barstow V. Han.sen, 3 Hun, 333; Spears v. Mayor, etc., of N. Y., 73 N. Y. 443, 445; Morel V. Garelly, 16 Abb. 269. Supplemental Pleadings. 347 Decision of a motion for leave to file supplemental pleading. where the delay is excused,^ and may be wholly disregarded where the application is for leave to interpose an answer setting up an entire satisfaction of the plaintiff's demand.^ So the apphcation will be denied with costs where it appears that there is another suit pending between the same parties in which the moving party may obtain all the rehef to which he is entitled.' The motion will also be denied where it appears that the moving party had knowledge, at the time the original pleading was served, of the facts which he seeks to set up by the supplemental pleading.'' The motion will also be denied where the relief sought can be obtained by an amendment of the original pleading of the moving party. ^ Upon an application for leave to file a supplemental complaint the court should not be called upon to examine with care the ques- tion whether the new facts constitute a cause of action. As a general rule the plaintiff should be allowed to set up new facts which are really a part of the original matters.^ So, as a general rule, where the facts appearing on a motion for leave to serve a supplemental answer show that the party is entitled to serve his supplemental pleading, he should be permitted to do so, unless the pleading is clearly bad or frivolous, leaving the other party to demur to the pleading or take advantage of its insufficiency on the trial.' If the sufficiency of the proposed answer is a matter of doubt, the court should not prejudge the matter on the motion but permit the defense to be made upon such terms as are deemed just." But the truth of the proposed answer may be inquired into on the motion, and if the court is satisfied that it is false, may ' Hadley v. Boehm, 1 Hun, 304. See Becklioefer v. Huber, 1 City Ct. B. 234. ' Drought V. Curtiss, 8 How. 56. 3 Sage V. Mosher, 17 How. 367. *McMalionv. Allen, 3 Abb. 89; 1 Hilt. 103; Houghton v. Skinner, 5 How. 420. ' McMahon v. Allen, 3 Abb. 89. ' Latham v. Richards, 15 Hun, 129. ' Mitchell T. Allen, 25 Hun, 543. See Gas-Works Co. v. Standard Gas-Light Co., 47 Hun, 255. «Lyon V. Isett, 11 Abb. (N. S.) 353; 42 How. 155; 2 Jones & Sp. 41; Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661; Stewart v. Isidor, 5 Abb. (N. S.) 68. 348 Supplemental Pleadings. Proceedings when the motion is granted. deny leave to interpose it.' The court may, however, refuse to pass upon the sufficiency of matter proposed to be pleaded in a supplemental answer where it depends upon a question of fact to be proved.^ But where it is clear, as a matter of law, that a judg- ment rendered in another action between the same parties cannot be a bar to a pending action, the court may deny a motion to set up such judgment by way of supplemental answer.' Whether the allegations made in a proposed supplemental complaint are true or false, or whether tliey constitute an independent cause of action, ought not to be determined on affidavits and upon hearing the mo- tion to serve such complaint.* Where the facts surrounding the case leave the court any dis- cretion to exercise, the court may properly refuse to allow a de- fendant to serve a supplemental answer setting up a technical defense, which may operate as a forfeiture of a just claim.' Where a party is allowed to serve a supplemental complaint alleging new facts and bringing in new parties, the court should impose equitable terms as a condition of granting the favor. The amendment should never be allowed at the expense of the de- fendant.* § 6. Proceedings when the motion is granted. — Where a party has obtained leaveto serve a supplemental pleading, he should make the necessary copies and serve the same on the parties who Tvere entitled to service of the former pleading within the time allowed by the order. The mere leave to serve a supplemental pleading decides nothing as to the rights of the moving party upon the facts set up.^ If a new defendant is brought in by the supple- mental pleading, a supplemental summons must be issued to him, and he or any other party defendant may answer or demur to the 'Morel V. Garelly, 16 Abb. 369. ' Bate V. Fellowes, 4 Bosw. 639. 3 Ratzer v. Ratzer, 3 Abb. N. C. 461. And see Avery v. Starbuck, 16 Civ. Pro. R. 396; 83 St. Rep'r, 430. « Cornwall v. Cornwall, 30 Hun, 573. ' Hoyt V. Sheldon, 6 Duer, 661; 4 Abb. 59; Holyoke v. Adams, 59 N. Y. 333. « Sage V. Mosher, 17 Hun, 367. iRobbins v. Wells, 36 How. 15; 18 Abb. 191. Supplemental Pleadings. 34& Proceedings when the motion is granted. supplemental pleading.' So when the Code allows a supplemental answer it necessarily allows what is incident to such a pleading, the right to demur to it.^ The appHcation may be for leave to make a supplemental pleading either in addition to or in place of ^ the former pleading,' and if the application is granted, the order should designate the character of the pleading allowed. If the plaintiff is granted leave to serve a supplemental complaint in addi- tion to the former pleading, and the supplemental pleading does not attempt or profess to set out an independent or different cause of action from that contained in the original complaint, but merely alleges facts in addition to those which were alleged in the origi- nal complaint, for the purpose of supplementiug it, no demurrer will lie to the supplemental complaint as a separate pleading. The supplemental complaint in such case is to be read as a part and parcel of the original complaint, and if the two contain a cause of action which is not demurrable, the proper proceeding on the part of the defendant is to answer,* though it has been held that the answer should be restricted to the supplemental matter.^ A supplemental pleading may be amended once, as of course.'' Where a party has applied for leave to make a supplemental pleading, in addition to the former pleading, and the application is granted, a provisional remedy or other proceeding already taken in the action is not affected by the supplemental pleading, but the right of the adverse party to have it vacated or set aside depends upon the case presented by the original and supplemental plead- ings.^ If leave to serve a supplemental pleading lias been granted in an improper case the remedy is by appeal.' ' Ebbets V. Martina, 19 Hun, 294. «Goddard v. Benson, 15 Abb. 191; Mitchell v. Allen, 35 Hun, 543. 3 Code of Civil Pro., §544. * Hay ward v. Hood, 44 Hun, 128. ■ Dann v. Baiter, 12 How. 521. ' Divine v. Duncan, 53 How. 446 . 'Code of Civil Pro,, § 544. 8 Wetmore V. Truslow, 51 N. Y. 338; Harrington v. Slade, 33 Barb. 161; Fleischmann v. Bennett, 79 N. Y. 579. 350 Sham Answees oe Defenses. Power of the court to strike oat a sham answer. CHAPTER XXI. Sham Answers ob Defenses. Section 1. Power of the court to strike out a sham an- swer. — A sham answer or a sham, defense may be ttrickea out by the court upon motion, and upon such terms as the court deems just.' The courts possessed this power before the Code.^ There are now, as formerly, certain limitations upon the exercise of this power. The court has no power to strike out as sliam, an answer consisting of a general denial of the material allegations of the complaint, although shown by affidavits to be false,' and although made on information and belief,* or on an alleged want of knowledge or information snfBcient to form a behef.^ The same rule applies to an answer setting up a specific denial.' Where a complaint alleges that the defeadant has failed to do cer- tain specified things, and the answer denies that the defendant has failed to do the said things by specifically negativing each al- legation in the language of the complaint, the answer cannot be stricken out as sham on the ground that the denials are denials of conclusions of law.^ 1 Code of Civil Pro., §538. ' Manufacturers' Bank v. Hitchcock, 14 How. 406; Wayland v. Tysen, 45 N. T. 281. 3 Wayland v. Tysen, 45 N. Y. 381; Thompson v. Erie Ey. Co., 45 N. Y. 468; Fellows V. Miiller, 48 How. 82; 6 Jones & Sp. 137; Newman v. Supervisors of Livingston, 45 N. Y. 676, 691; Farmers' Nat. Bank v. Leland, 50 N. Y 673; Clafliu v. Jaroslauski, 64 Barb. 463; Law v. Maher, 9 Week. Dig. 38; Gross V. Bock, 11 St. Rep'r, 295. ^ Colt V. Davis, 50 Hun, 366; Martin v. Erie Preserving Co., 48 Hun, 81. In Webb V. Foster, 13 Jones & Sp. 311, the rule seems to be stated with a quali- fication when it clearly appears that there could not have been any informa- tion and belief. As to a case where the answer is shown to be false by record evidence, see Roblin v. Long, 60 How. 300. - Roby v. Hallock, 5 Abb. N. C. 86; 55 How. 413; Grocers' Bank v. O'Rorke, 6 Hun, 18 ; Robert Gere Bank v. Inman, 51 Hun, 97; Neuberger v. Webb, 24 Hun, 347. ' Robert Gere Bank v. Inman, 51 Hun, 97. '' Mayor, etc., v. James, 17 Hun, 588. But see Kay v. Churchill, 10 Abb. N. C. 83. Sham Answees oe Defenses. 351 Power of tlie court to strike out a sham answer. A verified answer of denial should not be stricken out as sham, even after the defendant, on examination before trial, has ad- mitted what the answer denies.^ Nor has the court any power to strike out a demurrer as sham. The plaintiff's remedy, if any, is under section 637 of the Code.^ A counterclaim is not a defense and caunot be stricken out as sham.^ Whatever may have been the rule laid down by the earlier cases under the Code,^ the rule is now well settled that a general or spe- cific denial, which raises a material issue, cannot be stricken out as sham if pleaded in a form permitted by the Code,'* and that an affirmative answer or defense which raises a material issue may be stricken out by the court on motion, and upon such terms as the court deems just, upon proof that the answer or defense is false in fact.* Thus, upon proper proof being presented, the court may ' Schultze V. Rodewald, 1 Abb. N. C. 365. 5 Kain v. Dickel, 46 How. 208. ' Collins V. Suan, 7 Rob. 94; Fettretch v. McKay, 47 N. Y. 426; 11 Abb. (N. S.) 453. '' It was for a long time supposed that the Court of Appeals had decided in People V. McCumber, 18 N. Y. 315, that an answer denying a material alle- gation in the complaint might be stricken out aa sham, although duly veri- fied. The supposed decision in this case was followed in a number of cases. See Commonwealth Bank v. Pryor, 11 Abb. (N. S.) 227; Butterfield v. Mc- Cumber, 23 How. 150; Agawam Bank v. Egerton, 10 Bosw. 669; Fairchild v. Rushmore, 8 Bosw. 698; Lawrence v. Derby, 24 How. 133. See also Manu- facturers' Bank v. Hitchcock, 14 How. 406; Beebe v. Marvin, 17 Abb. 194. But it was finally shown in Wayland v. Tysen, 45 N. Y. 281, 283, that an er- roneous construction had been put upon the case of People v. McCumber, and the rule that a verified answer setting up a general denial cannot be stricken out as sham, was then announced, and has since been followed. See cases cited in the preceding notes. This rule is not followed in Minnesota C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267; Stevens v. McMillin, 87 Minn. 509. In California, a verified answer setting up a sufficient defense cannot be stricken out as sham, whether it consists of denials or sets up an af- firmative defense. Greenbaum v. Turrill, 57 Cal. 285. And an answer con- taining a denial of material allegations of the complaint cannot be stricken out as sham. Lybecker v. Murray, 58 Cal. 186. This is the rule in South Caro- lina. Ransom v. Anderson, 9 S. C. 438. ' See Robert Gere Bank v. Inman, 51 Hun, 97, and cases cited; Winne v. Sickles, 9 How. 217. * Robert Gere Bank v. Inman, 51 Hun, 97; Commercial Bank v. Spencer, 76 N. T. 155; Bailey V. Lane; 21 How. 475; Kay v. Churchill, 10 Abb. N. C. 83; Barker v. Foster, 29 Minn. 166. 352 Sham Answers ok Defenses. What answers are sham — Motion to strike out a sham answer. strike out the defense of usury,' payment,^ and the like. A plea of a former action pending may be struck out as sham where such action has been discontinued since the answer was served.^ An entire answer or a separate defense may be stricken out. But part of an entire answer or of a separate defense cannot be stricken out. The whole must be stricken out or none.^ § 2. What answers are sham. — A sham answer is a false answer ; the terms are synonymous.'* A sham answer has been defined as one false in fact, and not pleaded in good faith, though good in form,' and as one setting up new matter known by the defendant to be false. ^ In other cases it is said that the test of a sham answer is that it is untrue in fact, and that the defendant's ignorance of its untruth is immaterial.' In other cases it is held that to authorize the court to strike out an answer as sham it must be false ia the sense of being a mere pretense, set up in bad faith and without color of fact.' The weight of authority seems to establish the proposition that the falsity of the answer and not the bad faith of the defendant is the true test. § 3. Motion to strike out a sham answer. — A motion to strike out an answer as sham should be made at Special Term, upon the usual notice to the adverse party, or where special cir- > Bailey v. Lane, 21 How. 475; Kay v. Churchill, 10 Abb. N. C. 83. - Kay V. Whittaker, 44 N. Y. 565. 3 Clark V. Clark, 7 Rob. 376. ■* Winslow V. Ferguson, 1 Lans. 436; Collins v. Coggill, 7 Rob. 81; Strong V. Sproul, 53 N. Y. 497, 498. ' People V. McCumber, 18 N. Y. 315, 331; Thompson v. Erie Ry. Co., 45 N. Y. 468, 471; Fettretch v. McKay, 47 N. Y. 426; Robert Gere Bank v. Inman, 51 Hun, 97; Leach v. Boynton, 3 Abb. 1; Nichols v. Jones, 6 How. 355; Os- trom V. Bixby, 9 How. 57; McCarty v. O'Donnell, 7 Rob. 431; Clark v. JefEer- sonville, etc., R. R. Co., 44 Ind. 348; Winslowv. Ferguson, 1 Lans. 436. = Brown v. Jenison, 3 Sandf. 7.83; Hull v. Smith, 8 How. 149; Foren v. Dealey, 4 Oregon, 92. See Lefferts v. Snediker, 1 Abb. 41. ' Benedict v. Tanner, 10 How. 455. = Roome v. Nicholson. 8 Abb. (N. S.) 343 ; 1 Sweeny, 525; Morey v. Safe Deposit Co., 7 Abb. (N. S.) 199. 9 Kiefer v. Thomass, 6 Abb. (N. S.) 42; Haddeu v. New York Silk Mfg. Co., 1 Daly, 388. Sham Answers oe Defenses. 353 Motion to strike out a sham answer. cumstances require haste, upon an order to show cause. The motion may be made at any time before trial,' though if the ob- jection to the answer is not taken at the first opportunity it may be deemed a waiver of the defect. Thus where the defendant has applied for leave to serve an amended answer, and has served a copy of the proposed answer on the motion, a failure to oppose the motion will preclude the plaintiff from afterward moving to strike out the amended answer as sham.^ The motion should be made upon the pleadings and upon af- fidavits clearly showing that the answer is false, and not that the plaintiff is entitled to recover, notwithstanding the answer. The moving affidavits should not take the place of a pleading setting uj) new matter.' It is not enough to show by the moving papers that the answer was interposed in bad faith. ^ The falsity of the answer must be made clearly to appear. To authorize the court to determine that an answer or defense is false, not only must the plaintiff have a clear prima facie case, but the proof of the falsity of the answer or defense must be clear and decisive, if not overwhelming.^ In addition to this, the plaintiff may state any fact tending to sho\v that the answer was put in in bad faith and with knowledge of its falsity, for the purpose of delay.' The defendant may oppose the motion by affidavits showing that the answer is true in fact, or might be true, that it was in- terposed in good faith, and not for the purpose of delay.'' The truth or falsity of the answer will not be determined by the court on the affidavits read on the motion, but the motion 1 Miln V. Vose, 4 Sandf. 660. ' Mussina v. Stillman, 13 Abb. 93. sSeeGarvey V. Fowler, 4 Sandf. 665; Wirgman v. Hicks, 6 Abb. 17. In the case last cited, the answer to a complaint upon a promissory note set up fraud in the inception of the note, which, if proved, would call upon the plaintiff to show himself a bona fide indorsee for value before maturity. The plaintiff moved to strike out the answer as sham, on affidavits showing that he was such lona fide indorsee, but not showing that there was no fraud in the inception of the note. The court denied the motion._ * Morey v. Safe Deposit Co., 7 Abb. (N. S.) 199. « Morey v. Safe Deposit Co., 7 Abb. (N. S.) 199; Lockwood v. Salhenger, 18 Abb. 136; Nichols v. Jones, 6 How. 355; Ostrom v. Bixby, 9 How. 57. ' See ante, p. 353. ' Commissioners of Excise v. McCullough, 39 How. 37. 45 354 Feivolods Pleadings. Remedy for frivolous pleading. will be denied and the parties left to try the question of fact in the usual way, unless the falsity of the answer is so apparent as to admit of no reasonable doubt.' But where the plaintifE swears positively to the falsity of the statements of the answer and the opposing affidavits do not legally tend to establish the defense,^ or where the falsity of the answer is shown by record evidence,' the court may properly strike out the answer as sham. § 4. Proceedings where answer is striclien out. — Where an answer is stricken out as sham the proper mode of obtaining judg- ment is to proceed as if no answer had been put in. If an appli- cation to the court is necessary in order to enter judgment as by default, such application should be made ; and if no application is necessary, judgment may be entered by the clerk ■* If one^or more defenses are stricken out they no longer consti- tute a part of the pleading, and the remainder of the answer, if any, presents the only issues left for trial, and alone remains to make a part of the record of the future.'' CHAPTER XXII. FErvoLOTTs Pleadings. Section 1. Remedy for frivolous pleading. — If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the ap- plication is denied an appeal cannot be taken from the determina- > Fosdick V. Grog, 22 How. 158; People v. McCumber, 18 N". Y. 315, 325; Munn V. Barnum, 12 How. 563; 1 Abb. 281; Wright v. Jewell, 33 Minn. 505; City Bank v. Doll, 33 Minn. 507. ' Kay V. Whittaker, 44 N. Y. 565, 571. See Miller v. Hughes, 21 How. 442. " Roblin V. Long, 60 How. 200. ■■ See De Forest v. Baker, 1 Abb. (N. S.) 34; 1 Rob. 700. ' Strong V. Sproul, 53 N. Y. 497, 498. Frivolous Pleadings. 355 What pleadings are frivolous. tion, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs as upon a mo- tion may be awarded upon such an application.^ The new Code has not changed the former practice in respect to the remedy in case a frivolous pleading is interposed,^ and the decisions under the old Code are, therefore, authority under the new. Under the practice prior to the Code a party might treat as a nullity a plea of his adversary which was clearly bad, and proceed to judgment as in case of default.^ This procedure was allowed only to a limited extent under the old practice and has wholly ceased to exist under the Code. The remedy provided by that act must be followed.* A frivolous pleading cannot be stricken out on motion. The remedy is by motion for judgment, and whether the motion is granted or denied, the pleading remains a part of the record and makes a part of the judgment-roll.^ The remedy prescribed by the Code for a frivolous pleading is a summary application to a judge in or out of court for judgment. It is given only where the entire pleading is frivolous ; and where the Code 'provides that judgment may be given upon a frivolous answer, it means the entire answer as a distinct pleading, and not one or more parts of an answer, or one or more of several defenses constituting the answer.^ § 2. What pleadings are frivolous. — A frivolous pleading is one so clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad faith in the pleader upon a bare ' Code of Civil Pro., § 537. ' Roblin V. Long, 60 How. 200. 3 1 Burrill's Pr. 180. * Decker v. Kitchen, 31 Hun, 333. ' Strong V. Sproul, 53 N. Y. 497; Colt v. Davis, 50 Hun, 366; 16 Civ. Pro. E. 180; 20 St. Rep'r, 309; Farmers, etc.. Bank v. Rogers, 19 St. Rep'r, 464. « Strong V. Sproul, 53 N. T. 497; Colt v. Davis, 50 Hun, 366; 16 Civ. Pro. R. 180; 20 St. Rep'r, 309; Farmers, etc., Bank v. Rogers, 19 St. Rep'r, 464; Thompson v. Erie Ry. Co., 45 N. Y. 468; Hunger v. Shannon, 61 N. Y. 351. 356 Fbivoloub Pleadings. What pleadings are frivolous. inspection. If any argument is required to show that the plead- ing is bad it is not frivolous.' A frivolous answer is one which, if true, does not contain any defense to any part of the plaintiff's cause of action.^ If any de- fense is shadowed forth, however vaguely, it is not frivolous.* If the answer raises an issue on any one material point in the case it is not frivolous, although it may contain a number of alle- gations which are immaterial.* But if the only issue raised by the answer is on an immaterial point it is frivolous.? An answer may be bad on demurrer and so held, aad yet not be frivolous so as to authorize a summary judgment. The fact that an answer is insufficient in form or substance does not necessarily determine that it is frivolous. That only may be regarded as frivolous which is made to appear so incoutrovertibly by a bare statement of it without argument.^ It is said that a pleading will be held frivolous where there is a decision in point adverse to its sufficiency.^ But this rule must be taken with considerable qualification in this age of conflicting decisions, and practically furnishes but an indifEerent test of the frivolousness of the pleading. It has been held in a number of cases that a denial upon information and belief is unauthorized ' Strong V. Sproul, 53 N. Y. 497; Cook v. Warren, 88 N. T. 37; Toiings v. Kent, 46 N. Y. 672; Joseph Dixon Cmcible Co. v. N. Y. City Steel Works, 57 Barb. 447; Carpenter v. Adams, 34 Hun, 429; Wise v. Gessner, 47 Hun, 306, 308; Deuel v. Sanford, 67 How. 354; Smith v. Mead, 14 Abb. 263; Shearman V. N. Y. Cent. Mills, 1 Abb. 187; Sixpenny Savings Bank v. Sloan, 2 Abb. 414; 12 How. 543; Leach v. Boynton, 3 Abb. 1; Nichols v. Jones, 6 How. 355; Vilas Nat. Bank v. Moore, 14 Week. Dig. 834; Bobbins v. Palmer, 5 Week. Dig. 537; Delano v. Dachart, 2 Law Bull. 29; Webb v. Van Zandt, 16 Abb. 190; Griffin v. Todd, 48 How. 15. 'Nichols V. Jones, 6 How. 355; Lefferts v. Snediker, 1 Abb. 41; Hull v. Smith, 8 How. 149; 1 Duer, 649. ' Kelly V. Barnett, 16 How. 135. '• Manger v. Shannon, 61 N. Y. 251; Robert Gere Bank v. Inman, 51 Hun, 97. 5 Fairchild v. Ogdensburgh, etc., R. R. Co., 15 N. Y. 337. « Youngs V. Kent, 46 N. Y. 672. ' Swinburne v. Stockwell, 58 How. 312; Collins v. Suau, 7 Rob. 623; People V. McCumber, 15 How. 186; 37 Barb. 632; Cramer v. Comstock, 11 How. 486; Phelps V. Ferguson, 19 How. 143; 9 Abb. 206; Bank of Wilmington v. Barnes, 4 Abb. 336. Feivolous Pleadings. 357 The motion for judgment on a frivolous pleading. aud insufficient ;^ and under the rule above stated, a court would be bound, on the authority of those cases, to adjudge an answer frivolous which consisted wholly of such a denial, although numer- ous other cases held the pleading to be good.^ It is held that where a demurrer is founded upon a decision made by one of the justices of the Supreme Court another justice of the same court should not hold such demurrer frivolous.^ § 3. The motion for judgment on a frivolous pleading. — The application for judgment on a frivolous pleading may be made to the court or to a judge of the court. It should be made upon a previous notice to the adverse party of not less than five days,* and should be based upon the pleadings only. Affidavits cannot be used upon the motion.'' The notice of motion should specify the relief sought. It seems that a party may unite in one notice a motion to strike out a de- fense as sham, a motion to strike out irrelevant, redundant or scandalous matter, and a motion for judgment on the remainder as frivolous.^ In such case the notice of motion should specify what part of the pleadings the moving party desires stricken out, and state that he asks judgment on the remainder as frivolous.^ Where several motions are thus combined it will be necessary to give eight days' notice of motion. There is no time limited within which a mo- tion for judgment on a frivolous pleading must be made,' but if the motion is in part to strike out irrelevant, redundant or scandalous matter, that part of the motion must be noticed before demurring or answering the pleading and within twenty days from the ser- - Pratt Hanuf. Co. v. Jordan Iron, etc., Co., 33 Hun, 143, 544; Swinburne v. Stockwell, 58 How., 312; Powers v. Eome, etc., R. B. Co., 3 Hun, 385. 2 See ante, p. 239. 5 Lattimer v. N. T. Metallic Spring Co., 9 Abb. 207, note. * Code of Civil Pro., § 537. ' Piatt & Washburn Refining Co. v. Hepwortb, 13 Civ. Pro. R. 133; Darrow V. Miller, 5 How. 247. « Kay V. Wbittaker, 44 N. Y. 565; People v. McCumber, 18 N. Y. 315; Bailey v. Lane, 13 Abb. 854. • Bailey v. Lane, 13 Abb. 354. ' Darrow v. Miller, 5 How. 347. 358 Frivolous Pleadings. The motion for judgment on a frivolous pleading. vice thereof.' Judgment may be given upon a frivolous answer although the time to amend has not expired.^ But the defendant may defeat the motion by serving an amended answer before the hearing.' Under the old system of practice no argument was ever allowed on an application of this character. The court on inspection of the pleading would decide whether it was frivolous, and if any doubt existed, would deny the motion. Under the present system it is not proper to allow counsel to argue in favor or against the motion ; though such argument is sometimes permitted.'' If it appears upon the motion that the case presented is a doubtful one, the motion should be denied and the case left to be disposed of in the ordinary way.' Whether the sufficiency of an answer shall be determined upon a non -enumerated motion, upon a notice of five days, or upon a formal demurrer, isamatter'of practice that addresses itself very much to the discretion of the court. It is for the court to adjudge, upon an inspection of the answer, whether its validity shall be determined at once upon the reading, or after a more formal and deliberate consideration and in the ordinary and usual course of procedure. An order denying the motion affects no substantial right, as no right is involved. No appeal can be taken from the order, and the denial does not prejudice any of the subsequent proceedings of either party .^ On the hearing of a motion for judgment on an answer as frivolous the defendant may attack the complaint, and if that pleading does not state a cause of action the motion will be denied irrespective of the sufficiency of the answer.^ It is doubtful if the plaintiff can avail himself of any averments in the answer he characterizes as frivolous to cure defects in his own pleading.' - Rule 23, Sup. Ct. - Rcss V. Ross, 25 Hun, 643. '^ Burrall v. Moore, 5 Duer, 654; Curtis v. Baldwin, 4 Sandf. 690. " Joseph Dixon Crucible Co. v. N. Y. City Steel Works, 57 Barb. 447; 9 Abb. (N. S.) 195. =• Kay V. Whittaker, 44 N. T. 5G5. " Wilkin V. Raplee, 53 N. Y. 248; Dabney v. Greeley, 13 Abb. (N. S.) 191; Code of Civil Pro., § 537; People v. Clyde, 69 N. Y. 603, 604. ' Van Alstyne v. Freday, 41 N. Y. 174; Hunger v. Shannon, 61 N. Y. 251; Wilkiu V. Raplee, 53 N. Y. 248. » Wilkin V. Raplee, 53 N. Y. 248. Fkivolods Pleadings. 359 The order, and proceedings thereunder. § 4. The order, and proceedings thereunder. — The judge to whom the motion is made may make either au absolute or a con- ditional order for judgment. If the plaintiff is the moving party, and the court or judge is satisfied that the defendant's an swer is clearly frivolous but that it was put in in good faith, and that the defendant really believes upon the advice of counsel that he has a good defense and swears to merits upon such advice, the order should be conditional and should allow the defendant to put in a new or amended answer upon terms. ^ No leave can be given to the defendant to amend when he has served no affidavit of merits.^ The order for judgment, if made at chambers, may be without prejudice to the right of the defendant to move at Special Term on affidavits for leave to amend his answer, or to interpose a new one. If the order takes this form the defendant should prepare the new or amended answer, and offer it to the plaintiff's attorneys, and if they decline to receive it, he should then make a motion at Special Term for leave to amend his answer, or for leave to answer, and he should embody in his moving papers the proposed answer or amended answer, so that the court may see what it is and whether it contains a good or meritorious defense to the action.' A defendant should not be allowed to set up another defense known to him when he filed his frivolous answer.* Where the order for judgment is conditional and the party has failed to avail himself of leave to amend or plead anew, or where the order is granted unconditionally, judgment should be entered thereon.' The order should direct the judgment to be entered, and if it fails to direct the amount the damages must be assessed as in other cases.' The defective pleading remains a part of the 1 Witherspoon v. Van Dolar, 15 How. 266; Fales v. Hicks, 13 How. 153. That an amendment may be allowed on terms, see Stedeker t. Bernard, 4 Law Bull. 31. That the judge has no power to allow an amendment of a pleading adjudged frivolous, see Shearman v. N. T. Cent. Mills, 1 Abb. 187, 190. 2 Bank of Lowville v. Edwards, 11 How. 216; Appleby v. Elkins, 3 Sandf. 673. * Marquisee v. Brigham, 13 How. 399. ^ Stedeker v. Bernard, 10 Daly, 466. * It would seem that the practice should be the same as on the decision of a demurrer. « See King v. Stafford, 5 How. 30; Witherhead v. Allen, 38 Barb. 661. 360 Striking out Ieeelevant, etc., Matter. What is irrelevant, redundant or scandalous. record and is included in the judgment-roll. An appeal may be taken from the judgment from the Special to the General Term and from thence to the Court of Appeals.* Costs as upon a motion may be awarded on an application for judgment on a pleading as frivolous.^ CHAPTER XXIII. Steiking out Ieeelevant, Redundant oe Scandalous Matter. Section 1. What is irrelevant, redundant or scandalous. — Irrelevant, redundant or scandalous matter contained in a plead- ing may be stricken out upon the motion of a person aggrieved thereby.' A pleading is irrelevant which has no substantial relation to the controversy between the parties to the suit.^ By irrelevant or redundant matter contained in a pleading is meant matter im- pertinently or unnecessarily stated in stating the cause of action in the complaint, or the defense, or a defense in the answer.'' Ir- relevant matter is matter which does not tend to constitute a cause of action or defense, and which, if true, cannot affect the decision of the court in the case.' Matter, which, if properly pleaded, would tend to set forth a cause of action or a defense, does not become irrelevant because of defects in form.^ The test ' Armstrong v. Weed, 62 N. T. 350; Commercial Bank v. Spencer, 76 N. T. 155; Briggs v. Bergen, 33 N. Y. 163; Jones v. Ludlum, 74 N. Y. 61. ' Code of Civil Pro., § 537. 3 Code of Civil Pro,, § 545. ^ Seward v. Miller, 6 How. 313; Struver v. Ocean Ins. Co., 9 Abb. 33; 3 Hilt. 475. "Irrelevant" is equivalent to "frivolous." Colt v. Davis, 50 Hun, 366. Because an answer is " frivolous " it does not follow that it must also be "irrelevant." Fasnaclit v. Stehn, 53 Barb. 650. ^ Fasnaclit v. Stehn, 53 Barb. 650; 5 Abb. (N. S.) 338. « Lee Bank v. Kitching, 11 Abb. 435; 7 Bosw. 664; Pabricotti v. Launitz, 3 Sandf. 743; Cahill v. Palmer, 17 Abb. 196; Jeffras v. McKillop & Sprague Co., 2 HuQ, 351; 48 How. 123. - Doran v. Dinsmore, 33 Barb. 86; 20 How. 503; Struver v. Ocean Ins. Co., 9 Abb. 33; 3 Hilt. 475. Striking out Iekblevant, etc., Matter. '361 The motion to strike out irrelevant and redundant matter. by which to determine whether the statements in a pleading are material or relevant is to inquire whether they tend to make or constitute a cause of action or defense. If they do so tend they cannot be considered irrelevant.- But allegations in complaint not essential to a statement of a cause of action but material on the question of damages^ or costs^ have been held not irrelevant. Redundant and irrelevant are not equivalent terms. Matter whicli is irrelevant is also redundant, but it is not always true that matter which is redundant is also irrelevant. A needless repetition of material averments is redundancy, though every averment may be relevant.* A statement of the legal conclusions of the pleader upon the facts alleged is redundant matter.^ Statements of mere matters of evidence may be stricken out as redundant,^ unless in a case where all the facts to be stated and the evidence of them are synonymous.'' § 2. The motion to strike out irrelcTant and redundant matter. — Motions to strike out of any pleading matter alleged to be irrelevant, redundant or scandalous, must be noticed before demurring or answering to the pleading, and within twenty days from the service thereof.* The service of an answer, after notice of the motion has been given, is a waiver of the motion.^ Notic- ing the cause for trial will have the same effect,'" as will also ob- taining an order, for an extension of time to plead." But a stipu- lation extending a defendant's time to answer and to make such 1 Doran v. Dinsmore, 38 Barb. 86; 20 How. 503; Clark v. Jeffersonville, etc., R. R. Co., 44Ind. 248. » Root V. Foster, 9 How. 37. See JMolony v. Dows, 15 How. 261. ' See Van Rensselaer v. Brice, 4 Paige, 174; Howard v. Tiffany, 3 Sandf . 695. « Bowman v. Sheldon, 5 Sandf. 657; Clough v. Murray, 19 Abb. 97. » Clark V. Harwood, 8 How. 470. ' Wooden v. Strew, 10 How. 48; Williams v. Hayes, 5 How. 470. ' Davenport Glucose Mfg. Co. v. Taussig, 31 Hun, 563. * Rule 22, Sup. Ct.; New York Ice Co. v. North Western Ins. Co., 21 How. 234; 12 Abb. 74; Roosa v. Saugerties, etc., Co., 8 How. 237; Barber v. Bennett, 4 Sandf. 705. 9 Goch V. Marsh, 8 How. 439. " Esmond v. Van Benschoten, 5 How. 44. " Marry v. James, 34 How. 238; Bowman v. Sheldon, 5 Sandf. 238; Miln v. Vose, 4 Sandf. 660. See Garrison v. Carr, 34 How. 187; 3 Abb. (N. S.) 266. 46 362 Striking out Ieeelevant, etc., Matter. Principles governing the decision of the motion. application as he should be advised, includes a motion to strike out a part of the complaint.' The motion should he based upon the pleadings alone, and no affidavit need be served by the moving party. ^ The moving party need not show that the motion is made within the prescribed time, as the failure to move within such time is a matter to be shown in opposition to the motion.' The notice of motion must specify the particular parts or por- tions of the pleading which he seeks to have expunged as irrele- vant or redundant.* The motion may be combined with a motion to strike out a defense as sham, and for judgment as frivolous on what remains after striking out the sham defense and the irrelevant and redundant matter.' In such case the notice should specify what parts are sought to be stricken out as sham, what parts are claimed td be irrelevant and redundant, and what parts are deemed frivolous." On a motion for judgment on an answer as frivolous, irrelevant matter has been struck out under a general prayer for other or further relief at the end of the notice.' The motion may be opposed upon the merits, or by showing by affidavit that the moving party has failed to notice the motion within the prescribed time, or has served a pleading, noticed the cause for trial, or otherwise waived his right to make the motion. § 3. Principles governing the decision of the motion. — The old Code permitted a plaintiff to move to strike out sham and irrelevant defenses,' and it was held in a number of cases that where an answer alleged matter, either as a total or partial de- fense, palpably foreign, inapplicable and impertinent to the cause ' Lackey v. Vauderbilt, 10 How. 155. ^ Ford V. Mattice, 14 How. 91. 3 Roosa V. Saugerties, etc., Co., 8 How. 337; Barber v. Bennett, 4 Sandf. 705. Contra, Rogers v. Rathbone, 6 How. 66. •■ Blake v. Eldred, 18 How. 240; Benedict \. Dake, 6 How. 353; Bowman v. Sheldon, 5 Sandf. 657; Bryant v. Bryant, 3 Rob. 613. ' Kay V. Whittaker, 44 N. Y. 565; People v. McCumber, 18 N. Y. 315; Bailey v. Lane, 13 Abb. 354. • Bailey v. Lane, 13 Abb. 354. ' Thompson v. Erie Ry. Co. , 45 N. Y. 468. * Code of Procedure, g 153. Striking out Ireelevant, etc., Matter. 363 Principles governing the decision of the motion. of action, or frivolous, it might be stricken out as irrelevant.'- This remedy applied only to defenses. A connterclaim could not be stricken out as irrelevant." The corresponding provision of the present Code allows a sham answer or defense to be stricken out on motion, but omits the word " irrelevant,'" and there is now no authority for striking out an answer as irrelevant.^ Motions to strike out irrelevant and redundant matter con- tained in a pleading are not regarded with especial favor by the courts. Whether the motion shall be granted or not, where the power exists, is a matter of discretion, and not of absolute right.* It has been said that there is little benefit in motions of this kind, and there may be much harm, and that the power to strike out should be exercised with reluctance and caution. "^ Where the matter embraced in the motion, though redundant, does not tend to seriously prejudice the moving party or incumber the record, the court will not be inclined to strike it out.' To authorize the court to grant the motion the matter sought to be stricken out must not only be irrelevant or redun- dant, but the moving party must be "aggrieved" or prejudiced thereby.* And though there are allegations in a pleading which '■ Littlejohn v. Greeley, 23 How. 345; 13 Abb. 311; Harlow v. Hamilton, 6 How. 475; Van Benschoteu v. Yaple, 18 How. 97; Lee Bank v. Kitching, 11 Abb. 485; 7 Bosw. 664; T-hompsou v. Erie Ry. Co., 45 N. Y. 468, 476; Drake v. Cockroft, 1 Abb. 203. - Fettretcb v. McKay, 47 N. T. 426; Collins v. Suan, 7 Rob. 94. 3 Code of Civil Pro., g 538. * Colt V. Davis, 50 Hun, 866, 369. ' Town of Essex v. X. Y., etc., R. R. Co., 8 Hun, 361. That the motion does not rest absolutely in the discretion of the court, but affects a material right of the moving party, see Xehresheimer v. Bowe, 3 Code R. 868. « Town of Essex v. N. Y., etc., R. R. Co., 8 Hun, 361 ; St. John v. Griffith, 1 Abb. 89. ' Clark V. Harwood, 8 How. 470; Denithorne v. Denithorne, 15 How. 232; White V. Kidd, 4 How. 68. 8 Hynds v. Griswold, 4 How. 69; Pacific Mail Steamship Co. v. Irwin, 67 Barb. 377; 4 Hun, 671; Younger v. Duffle, 26 Hun, 442. It has been suggested that the adverse party may always be considered aggrieved by scandalous, irrelevant, impertinent and redundant matter in a pleading (Carpenter v. West, 5 How. 58; Isaac v. Velloman, 8 Abb. 464; Johns v. Pattee, 55 Iowa, 665); and that any matter which cannot be made the subject of a material issue has no business in the pleading, and ought not to be left there to embar- 364 Stbiking out Iekelbvant, etc., Matter. Principles governing the decision of the motion. might properly be stricken out as irrelevant and redundant an order denying an application for such relief will not be reversed on appeal, where it does not appear that harm or injustice will be done to the adverse partj^ by the retention of the allegations.' The power given to a court to expunge matter from a pleading upon motion for irrelevancy refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading against the party moving to expunge, and does not enable a party to strike out allegations relating to himself because they are irrelevant to an alleged cause of action against some other party .^ The question as to whether a person has properly been made a party defendant cannot be raised upon a motion to strike out the allegations in the complaint referring to his interest in such action. Questions as to the sufficiency of a pleading in stating a cause of action or defense against a party, or as to his liability upon a given state of facts, can properly be raised only by a demurrer to such pleading. When a pleading contains a sem- blance of a cause of action or defense its sufficiency cannot be determined upon a motion to strike it out as irrelevant or redun- dant. The remedy applies where too much has been alleged, not where too little is alleged.^ Whether an answer sets forth a valid counterclaim must be determined either by demurrer or on the trial, and not by a summary motion to strike it out as irrelevant and redundant.'' Where there is any doubt as to the necessity of inserting the matter sought to be stricken out as irrelevant or redundant the rass the opposite party and the court; and that a party has a right to have the matter improperly inserted in the pleading removed so that the record, when complete, shall present nothing but the issuable facts in the case. Williams V. Hayes, 5 How. 470; Rensselaer, etc., Plank Road Go. v. Wetsel, 6 How. 68; Stewart v. Bouton, 6 How. 71. But the rule stated in the text is believed to be in accord with the spirit of the more recent decisions. '■ Lugar V. Byrnes, 15 Civ. Pro. R. 73. ' Hagerty v. Andrews, 94 N. Y. 195. 2 Walter v. Fowler, 85 N. Y. 631; Haggerty v. Andrews, 94 N. Y. 195; Hub- bard V, (Jorhanf, 38 Hun, 163; Eaton v. Burnett, 16 Jones & Sp. 548. ■• Whitehall Lumber Co. v. Bdmands, 23 St. Rep'r, 199; Fettretch v. McKay, 47 N. Y.427; Collins v. Suau, 7 Rob. 94; Walter v. Fowler, 85 N. Y. 631. Striking out Ieeelevant, etc., Matter. 365 Principles governing the decision of the motion. motion must be denied.' When the effect of granting the motion would be to strike out an entire pleading it should be denied.^ So the motion should be denied where it seeks to strike out of an an- swer irrelevant and redundant matter which is in response to irrelevant and redundant matter in the complaint.^ But where matter is clearly irrelevant or redundant, and to retain it in the pleading would prejudice the adverse party, it will be stricken out on motion if the moving party is not himself at fault.'' Courts of equity exercised the power of striking scandalous matter from pleadings before the enactment of the Code,^ and that act merely recognizes a power previously existing. Where scan- dalous matter is stricken out on motion, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them maybe punished as a con- tempt of the court.'' The responsibility for the insertion of such matter in a pleading rests upon the attorney and not upon the client, and he should pay the costs of the motion to strike it out.^ If the motion is granted, the order will specify what parts of the pleading are stricken out, and it will not be necessary for the defeated party to serve an expurgated pleading. Tiie right of the defeated party to amend once as of course is not affected by this order.^ iTounger v. Duffie, 26 Hun, 442; Bedell v. Sickles, 4 How. 432; White v. Kidd, 4 How. 63; Hynds v. Qriswold, 4 How. 69; Littlejohn v. Greeley, 23 How. 345; 13 Abb. 311. 2 Blake v. Eldred, 18 How. 340; Lane v. Gilbert, 9 How. 150; Colt v. Davis, 50 Hun, 366. ^Mclntyre v. Ogden, 17 Hun, 604. ^See Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 586; Smith v. Hilton, 50 Hun, 336. ' Carpenter v. West, 5 How. 53. « Code of Civil Pro., § 545. 'McVey v. Cantwell, 8 Hun, 523. 8 Ross V. Dinsmore, 30 How. 338; 13 Abb. 4. 366 Indefinite and Uncertain Pleadings. Remedy for indefiniteness and uncertainty. CHAPTER XXIV. Indefinite and Uncertain Pleadings. Section 1. Remedy for indeflniteness and uncertainty Where one or more denials or allegations contained in a pleading are so indefinite or uncertain that the precise meaning or applica- tion thereof is not apparent, the court may require the pleading to be made definite and certain by amendment.^ This, and not a demurrer, is the proper remedy for indeflniteness or uncertainty in a pleading.^ Where a denial in an answer of all the allegations of the com- plaint except as thereinafter stated renders the pleading indefinite, ancertain, or complicated, the remedy is by motion to make it more definite and certain and not by the exclusion of evidence on the trial.' So where an answer alleges a private way in too gen- eral terms, the remedy of the plaintiff is by motion to make the pleading more definite and certain, and if he fails to resort to that remedy, he will be precluded from objecting to evidence as to< the way on tfial.'' But a failure to resort to this remedy will not preclude a party from insisting on a construction of the pleading in question which is most favorable to himself if the pleading is susceptible of two meanings.^ The degree of definiteness and certainty required in a pleading has been considered in a previous chapter.* If tlie allegations of a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent,' or, as was said in the Code of Procedure,' " that the precise nature of tJie charge or defense • Code of Civil Pro., g 546. ' Wall V. Bulger, 46 Hun, 346; Marie v. Garrison, 83 X. Y. 14; Hale v. Omaha Nat. Bank, 49 N". Y. 636; Lorillard v. Clyde, 86 N. Y. 384; Martin t. Kanouse, 11 How. 567; 2 Abb. 337; People v. Ryder, 12 N. Y. 433. ^Ureenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430. < Kerr v. Hays, 35 N. Y. 331. » Clark V. Dillon, 97 N. Y. 370. ' See ante, p. 32. ' Code of Civil Pro., § 546. 8 Code of Procedure, g 160. INDEFINITE AND UnOEETAIN PlEADINGS. 367 Remedy for indefiniteness and uncertainty. is not apparent," the remedy of the other party is by apphcation to the court to require the pleading to be made definite and cer- tain.^ But where the nature of the cliargeor defense is disclosed by the pleading, but the times and places in which and at which the several acts mentioned therein are not stated, the remedy of the adverse party is not bj- motion to make definite and certain, but by application for a bill of particulars.^ If in looking at a pleading, the court can see, with ordinary certainty, the meaning of the different allegations and the cause of action or defense in- tended to beset up by them, the remedy is not by motion to make more definite and certain.^ Where the precise nature of the de- fense appears from the answer served, a motion to make it more definite and certain must be denied.* The indefiniteness and un- certainty which may be corrected on motion is such only as ap- pears on the face of the pleading.' The remedy by motion is proper where the allegations of a pleading leave it uncertain whether the pleader bases his cause of action on tort or contract f or on the afiirmance or rescission of a contract;' or whether the defendant is sued individually or as a receiver f or where allegations of special damage are not suificiently specific f or where the complaint alleges that the defendant, a corporation, by its oflicers and agents made false representations, without declaring specifically by what par- ticular officers or agents it is claimed that such representations were made,'" or where, in an action against a carrier for negligence, the only allegation of negligence in the complaint is that the de- fendant so negligently and carelessly misbehaved in transporting the goods, that the plaintiff, by reason thereof, sustained damage in the amount stated." > Olcott V. Carroll, 39 N. T. 436. » Tilton V. Beecher, 59 N. Y. 176. See ante, pp. 81-83. 3 Brownell v. Nat. Bank of Gloversville, 13 Week. Dig. 371. <■ Pacific Mail SteamsHp Co. v. Irwin, 67 Barb, 277; 4 Hun, 671. ' Brown v. Southern Mich. R. R. Co., 6 Abb. 287. • Ladd V. Arkell, 5 Jones & Sp. 35. ' Faulks V. Kamp, 8 Jones & Sp. 70. ' Jones V. Norwood, 5 Jones & Sp. 276. 9 Hewit V. Mason, 24 How. 366. 10 Schellens v. Equitable Life Ass. Society, 32 Hun, 235. n Ruben v. Ludgate Hill Steamship Co., 21 Abb. N. C. 464; 17 St. Rep'r, 17. 368 Indefinite and Uncketain Pleadings. Time and mode of making tlie motion. Whei'e a complaint alleges ii breach of covenant, without al- leging wherein the defendant failed to keep his covenant, it may be made more definite and certain on motion.'' A want of definiteness and certainty in a counterclaim may be remedied by motion to make definite and certain.^ Where a plaintifE seeks to maintain an action by virtue of a rep- resentative capacity conferred upon him by some foreign tribunal, and upon the theory that a cause of action passed to him by virtue of his appointment, and by operation of the laws of a foreign country, the plaintiff must allege traversable facts to substantiate his claim in each of the above particulars, and if he contents him- self with general averments, the defendant can compel him to make his complaint more definite and certain.^ Where a complaint states, in a single count, the facts necessary to sustain two distinct causes of action, and there is consequently a doubt as to which cause of action the plaintiff intends to rely upon, the defendant has a remedy by motion to make the com- ];)laint more definite and certain.'' § 2. Time and mode of making the motion. — A motion to correct a pleading on the ground of its being so indefinite or un- certain that the precise meaning or application is not apparent, must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.^ If the pleading sought to be corrected is the complaint, the motion must be made within twenty days from the date of the service of the complaint. And where an amended answer has been served, the plaintiff has twenty days thereafter in which to move to make it more definite and ' Avery v. New Tork Cent., etc., R. R. Co,, 17 St. Rep'r, 393. ' Fettretcli v. McKay, 47 N. Y. 426; 11 Abb. (N. S.) 453. = De Noble v. Lee, 15 Jones & 8p. 373; 61 How. 273. * Commercial Bank v. Pfeiffer, 33 Hun, 337; Bass v. Comstock, 36 How. 383; 38 N. Y. 31; Freer v. Denton, 61 N. Y. 493; Forsytli v. Edminston, 11 How. 408. See People v. Tweed, 63 N. Y. 194, 201; 50 How. 38. ' Rule 33, Sup. Ct. ' Brooks V. Hanchett, 36 Hun, 70. And see Colton v. Jones, 7 Rob. 164; Roosa V. Saugerties, etc.. Road Co., 8 How. 337; New York Ice Co. v. North Western Ins. Co., 31 How. 334; Barber v. Bennett, 4 Sandf. 705. Indefinite and Uncertain Pleadings. 369 Time and mode of making the motion. certain.^ A motion to make a pleading more definite and certain need not be made at the earliest possible moment. If the time "to plead or otherwise move" has been extended, the motion may be made at any time before the expiration of the time ex- tended.^ But where a defendant has procured extensions of time to answer or demur, both by stipulation of the plaintiff and the order of a judge, and in procuring the stipulation and order did not reserve the right to move to correct the complaint, the remedy is waived.' The application should be made to the court at a Special Term held at the place appointed for holding Special Terms* within the judicial district in which the action is triable, or in a county ad- joining that in which it is triable, except that where it is made triable in the first judicial district the motion must be in that district, and if triable in any other district the motion cannot be made in the first judicial district.' The motion should be based upon the pleadings,* and the usual notice of motion should be given, unless for special reasons an order to show cause is ob- tained.^ The notice of motion should point out the precise parts of the pleading which are too indefinite and uncertain.' The motion may be opposed upon the merits or for irregularity in procedure. The opposing party may also show that he has regu- larly and duly served an amended pleading curing the defects re- ferred to in the motion papers, and this will defeat the motion.' Upon the hearing of the motion it should be entirely clear that the pleading is insufficient before the court should interfere ; and unless such is plainly the case the relief demanded should be de- ' Walker v. Granite Bank, 1 Abb. (N. S.)406. ' Hammond v. Earle, 5 Abb. N. C. 105; Peart v. Peart, 15 St. Hep'r, 476; 48 Hun, 79. 3 Brooks V. Hanchett, 36 Hun, 70. 4 Matter of Wadley, 29 Hun, 12. 5 Code of Civil Pro., § 769. ' See Hopkins v. Hopkins, 28 Hun, 436. ' Code of Civil Pro., § 780. » Bryant v. Bryant, 2 Rob. 612; Benedict v. Dake, 6 How. 352; Ratlibun v. Markliam, 43 How. 271; Blake v. Eldred, 18 How. 240. 8 Spuyten Duyvill Rolling Mill Co. v. Williams, 13 Week. Dig. 280. 47 370 Indefinite and Uncertain Pleadings. Proceedings under the order. nied.' No reference is required to take proof of facts, but the motion is to be decided on examination of the pleading.^ § 3. Proceedings under the order. — If the application for an order requiring a pleading to be made more definite and certain by amendment is granted the order should fix the time within which the amended pleading must be served, and in that case the amendment must be made accordingly. If the pleading directed to be amended is an answer the order should not contain a pro- vision authorizing the plaintiff to apply for judgment if the de- fendant fails to amend. The most that can be done is to strike out the uncertain allegations for failure to comply with the order.^ If the application is for an order requiring the plaintiff to make his complaint more definite and certain by amendment, and is denied, the defendant may answer the complaint without prejudice to his right to review the order denying his motion,* or the defendant may appeal and obtain a stay of proceedings pending the appeal.^ An order denying the motion may be reviewed on appeal by the General Term,^ though the right is de- nied in a number of reported cases.'' '■ People V. Tweed, 63 N. Y. 194; 50 How. 38. ' Hopkins v. Hopkins, 28 Hun, 436. 3 Hughes V. Chicago, etc., R. W. Co., 13 Jones & Sp. 114. * Peart v. Peart, 48 Hun, 79. ' Brinkerhoil v. Perry, 59 How. 155. s Arrieta v. Morrissey, 1 Abb. (N. S.) 439; Peart v. Peart, 48 Hun, 79. See Livermore v. Bainbridge, 56 N. Y. 72; 47 How. 354; Sprague v. Dunton, 14 Hun, 490. 1 Geis V. Leow, 15 Abb. (N. S.) 94; Murphy v. Dickinson, 40 How. 66; Field V. Stewart, 8 Abb. (N, S,) 193; 41 How, 95. Default. 371 Failure to serve complaint oq demand. CHAPTER XXV. Default. Section 1. Failure to serve complaint on demand. — If a copy of the complaint is not delivered to a defendant at the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter ;^ and in case of failure of the plain- tiff's attorney to serve his complaint within that time, the defend-' ant may apply to the court for a dismissal of the complaint.^ The motion for a dismissal of the complaint should be made at Special Term^ on notice to the plaintiff's attorney, upon an affidavit showing the time and mode of the service of the demand and the failure of the plaintiff to serve the complaint within the time lim- ited by statute. If after the notice of motion is served the plain- tiff serves a copy of the complaint, the defendant is not bound to return it immediately, though it is the better practice to do so, and such service will not defeat the motion.'' On receipt of the notice of motion the plaintiff's attorney should determine whether he is in fact in default, or whether he can op- pose the motion upon the merits. If he is in default, he should proceed at once to relieve himself from the default either by stipu- lation with the defendant's attorney or by application to the court for leave to serve his complaint under section 783 of the Code of Civil Procedure.* The application may be in the form of an independent motion, or it may be made on the hearing of the motion to dismiss and in opposition to that motion, though in ■ Code of Civil Pro., § 479. See Code of Civil Pro., § 833. = Code of Civil Pro., § 480. 3 As to tlie county in which the motion must be made, see Code of Civil Pro., § 769; Johnston v. Bryan, 5 How. 355. " Baker v. Curtiss, 7 How. 478. ' See Baker v. Curtiss, 7 How. 478. 372 Default. Judgment on failure to answer. either case tlie plaintiff should give due notice of the motion or, if the case requires it, obtain an order to show cause. The opening of a default for non-service of a complaint rests in the sound discretion of the judge at Special Term.^ If the de- fault is not opened and the complaint is dismissed, this in effect terminates the action,^ though it will not be a bar to a subsequent action.^ § 2. Judgment on failure to answer. — The failure of the de- fendant to answer the complaint served upon him entitles the plain- tiff to judgment, and the only question then to consider is the pro- cedure upon the entry of judgment. In certain actions judgment upon default can only be entered upon application to the court, and in others judgment may be entered by the clerk without ap- plication to the court. Judgment may be taken without applica- tion to the court where the complaint sets forth one or more causes of action, each consisting of the breach of an express con- tract to pay absolutely or upon a contingency a sum or sums of money, fixed by the terms of the contract, or capable of being as- certained therefrom by computation only ; or an express or im- plied contract to pay money received or disbursed, or the valiie of property delivered, or of services rendered by, to or for the use of the defendant or a third person ; and thereupon demands judg- ment for a sum of money only. This includes a case where the breach of the contract set forth in the complaint is only partial, or where the complaint shows that the amount of the plaintiff's de- mand has been reduced by paj'ment, counterclaim, or other credit.* In such an action, if the summons was personally served upon the defendant and a copy of the complaint or a notice stating the sum of money for which judgment will be taken was served with the summons, or if the defendant has appeared, but has made de- fault in pleading, the plaintiff may take judgment by default as follows : 1. If the defendant has made default in appearing the plaintiff ' Martin v. Gould, 9 Jones & Sp. 544. = See Tillspaugli v. Dick, 8 How. 33. ' See Harrison v. Wood, 3 Daer, 50. 4 Code of Civil Pro,, § 420. Default. 373 Judgment on failure to answer. must file proof of the service of tlie summons, and of a copy of the complaint or the notice ; and also proof by affidavit that the defendant has not appeared, whereupon the clerk must enter final judgment in his favor. 2. If the defendant has seasonably appeared, but has made de- fault in pleading, the plaintifE must file proof of the service of the summons and of the appearance, or of the appearance only, and also proof by aflBdavit of the default, whereupon the clerk must enter final judgment in his favor. If the defendant has made default in appearing or pleading and the case is not one where the clerk can enter final judgment as prescribed in either of the foregoing subdivisions, the plaintiff must apply to the court for judgment.^ Proof of the personal service of the summons must be made by afiidavit, except as follows : 1. If the service was made by the sheriff, it may be proved by Ms certificate thereof. 2. If tlie defendant served is an adult, who has not been ju- dicially declared to be incompetent to manage his affairs, the ser- vice may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affi- davit of a person, other than the plaintiff, showing that the sig- nature is genuine. A certificate, admission or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying the same, imports, unless otherwise expressly stated therein, or other- wise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission.^ Where personal service of the summons, and of the complaint, or notice, if any accompany the same, is made by any person other than the sheriff, such person must state in his affidavit of service his age, or that he is more than twenty-one years of age ; when, and at what particular place, and in what manner he served ' Code of Civil Pro., § 1213. 'Code of Civil Pro., §434. 374 Default. Judgment on failure to answer. the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein ; and also to state in his affidavit, that he left with defendant such copy, as well as delivered it to him. No such service shall be made by any person who is less than eighteen years of age. Special averments are also required in matrimonial actions, as will be hereafter noticed.' Where final judgment may be entered by the clerk as above prescribed, the amount thereof must be determined as follows : 1. If the complaint is verified, the judgment must be entered for the sum for which the complaint demands judgment ; or at the plaintiff's option, for a smaller sum ; and if a computation of interest is necessary, it may be made by the clerk. 2. If the complaint is not verified, the clerk must assess the amount due to the plaintifi: by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action stated in the complaint ; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action stated in the complaint. If an instrument speci- fied in this subdivision has been lost so that it cannot be produced to the clerk, he must take proof of its loss and of its contents. Either party may require the clerk to reduce to writing and file the assessment and the oral proof, if any, taken thereupon.' If the defendant has appeared generally, but has made default in pleading, he is entitled to at least five days' notice of the time and place of an assessment by the clerk.' But if the complaint is verified, there is no assessment by the clerk, and the defendant is not entitled to notice.^ But it is otherwise if the verification is a nullity.^ The judgment entered by the clerk cannot be more favorable to the plaintiff than that demanded in the complaint,^ nor can it ' Rule 18, Sup. Ct. ■> Code of Civil Pro., § 1213. 3 Code of Civil Pro., t; 1319. * Dix V. Palmer, 5 How. 233; South worth v. Curtis, 6 How. 271. ' Van Horn v Montgomery, 5 How. 288. « Code of Civil Pro., 8 ]a07. Default. 375 Application to the court for judgment by default. be less favorable unless the plaintiff consents to take judgment for a smaller sum than he has demanded iu his complaint. The clerk has no discretion in the matter. The defendant by his de- fault admits that he is indebted in the full amount claimed, and concedes that judgment should be entered for that sum in the manner prescribed by the Code. Having made this admission and concession he cannot afterward withdraw it and move to modify the judgment by striking out interest claimed by the plaia- tiff in his complaint and computed by the clerk and included in the judgment. The only proper remedy of the defendant if ille- gally charged with interest is to excuse his default, obtain leave to come in and defend, and then, if so advised, offer judgment for the amount admitted to be just and defend as to the residue.' The provisions of the Code in respect to the entry of judgment with the clerk without application to the court do not apply in actions of tort. If, however, a judgment is so entered in such an action, it seems that while the judgment may be voidable for irregularity, it is not void, but is good until set aside, and can only he attacked by a direct motion founded upon the irregularity complained of.^ § 3. Application to the court for judgment by default. — Where the summons was personally served upon the defendant within tlie State, and he has made default in appearing, or where the defendant has appeared, bat has made default in pleading, and the case is not one where the clerk can enter final judgment as prescribed in sections 1212 and 1213 of the Code of Civil Proced- ure, the plaintiff must apply to the court for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons ; or, if the default was in pleading, proof of appearance, and, also, if a copy of the complaint was de- manded, proof of service thereof upon the defendant's attor- ney ; and, in either case, proof by affidavit of the default which entitles him to judgment.' ' BuUard v. Sherwood, 85 N. T. 253. » See Roeber v. Dawson, 15 Civ. Pro. R. 417; 21 St. Rep'r, 160; 22 Abb. N. C. 73. 3 Code of Civil Pro., § 1214. 376 Default. Application to the court for judgment by default. The court must thereupon render the judgment to which the plaintiii is entitled,* but with this limitation, that the judgment so rendered shall not be more favorable to the plaintiff than that demanded in the complaint.^ The court may without a jury, or with a jury, if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment or to carry it into effect ; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose ; except that where the action is brought to recover damages for a personal injury, or an injury to property the damages must be ascertained by means of a writ of inquiry. When a reference or a writ of inquiry is directed, the court may direct that the report or inquisition be returned to this court for its further action, or it may, in its discretion, except where special provision is otherwise made by law, omit that direction, in which case final judgment may be entered by the clerk in ac- cordance with the report of the referee, or for the damages ascer- tained by the inquisition without any further application.' Where the plaintiif in an action in the Supreme •Court is en- titled to judgment upon the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any Special Term in the district embracing the county in which the action is triable, or, except in the first district, in an adjoining county ; such application may also be made at a Circuit Court in the coimty in which the action is triable. But where a reference or writ of inquiry is ordered, it must be executed in the county in which the action is triable, unless the court otherwise orders.* In an action against several defendants, where judgment cannot be taken without application to the court, in ease one or more of the defendants come in and defend and the others make default, proof against those in default may be taken at the same time, and upon the trial of the issues, and judgment may then be ren- 1 Code of Civil Pro., § 1215. ' Code of Civil Pro., S^ 1207. 3 Code of Civil Pro., § 1315. ■• Rule 26, Sup. Ct.; Brush v. Mullany, 12 Abb. 344. Default. 377 Application to the court for judgment by default. dered upon the whole case. Whether such proof shall then be taken or at a separate time is a matter of practice to be regulated by the court in which the action is pending.^ A defendant who has appeared generally but who has made default in pleading is entitled to at least eight days' notice of the time and place of an application to the court for judgment.^ But in a case requiring shorter notice, the plaintiff may apply for and obtain an order to show cause, which will be as effectual as a no- tice of eight days.^ In a case where an application for judgment must be made 'to the court, the defendant may serve upon the plaintiii's attorney, at any time before the application for judgment, a written de- mand of notice of the execution of any reference or writ of in- quiry which may be granted upon the application. Such a de- mand is not an appearance in the action. It must be subscribed by the defendant in person, or by an attorney or agent, who must add to his signature his office address, specifying a place within the State where there is a post-office, and if in a city, adding the street and street number, if any, or other suitable designation of the particular locality. Thereupon, at least five days' notice of the time and place of the execution of the reference or writ of in- quiry must be given to the defendant by service thereof upon the person whose name is subscribed to the demand in the manner prescribed by the Code for the service of a paper upon an attor- ney in an action." The same proceedings may be had under the Code in assessing damages on failure to answer, that were allowed under the old practice on executing a writ of inquiry. The defendant may call witnesses and prove any matter which properly goes to mitigate damages, such as immediate provocation in an action of assault '- Lyon V. Yates, 61 N. Y. 661. See Catlin v. Billings, 13 How. 511; 4 Abb. 248. ' Code of Civil Pro., § 1219. See Saltus v. Kip, 8 Abb. 382; 5 Duer, 646; 12 How. 342; Flynn v. Hudson River R. R. Co., 6 How. 308; Kelsey v. Covert, 6 Abb. 336, note; 1.5 How. 92. 3 Citizens' Savings Bank v. Bauer,49 Hun, 238. "Code of Civil Pro., § 13l9. 48 378 Default. Application to the court for judgment by default. and battery, and the like.^ This is especially authorized by the Code.^ A defendant, by default hi answering, in a case where judgment can only be taken on application to the court, admits only the facts pleaded, and not the legal conclusions of liability, or its extent.' He merely admits that the plaintiff is entitled to such relief as the facts properly alleged authorize.'' Thus, a de- fendant in default for not answering in an action for assault and battery, admits only the material and traversable matters set out in the complaint, which must be established to entitle the plaintiff to "a judgment. The default in such case entitles the plaintiff to a judgment for only nominal damages. If he claims more dam- ages, he must prove the facts which will entitle him to recover them.' This, of course, the plaintiff may establish on the execu- tion of the writ of inquiry, by witnesses called for that purpose, and the defendant may call witnesses to prove facts in mitiga- tion of damages as before stated. But the defendant cannot prove a partial defense.^ If a material witness is absent from the State, a commission may be issued to take his testimony,^ and the testi- mony so taken may be used upon the inquiry with the same effect as if it were the oral testimony of the witness.* A judgment by default cannot be taken against an infant de- fendant, until twenty days have expired since the appointment of a guardian ad litem for him.' When an application is made to the court for judgment, it can- not be withdrawn without the express permission of the court; and the statute prohibits a subsequent application for judgment at a term held by another judge, except where the first applica- tion is so withdrawn, or where the directions given thereupon re- quire an act to be done before judgment can be rendered, or 1 Saltus V. Kipp, 13 How. 343; 3 Abb. 383; 5 Duer, 646; Lane v. Gilbert, 9 How. 150; Gilbert v. Rounds, 14 How. 46. 2 Code of Civil Pro., § 536. ' Ballard v. Sherwood, 85 N. Y. 353; Gilbert v. Rounds, 14 How. 46. " Argall V. Pitts, 78 N. Y. 339, 343. ' Gilbert v. Rounds, 14 How. 46. 8 Ford V. David, 1 Bosw. 569, 598. ' Code of Civil Pro., § 888. 'Code of Civil Pro.. § 911. 9 Code of Civil Pro., S 1318. Default. 379 Proceedings on default of a defendant not personally served in the State. where the fact of the former application is stated, and the pro- ceedings thereupon and subsequent thereto are fully set forth in the papers upon which the application is made.'' A person mak- ing an application so forbidden, with knowledge of the previous application, will be punished by the court for a contempt.^ § 4. Proceedings on default of a defendant not personally served in the State. — Where the summons was served upon the defendant without the State, or otherwise than personally, if the defendant does not demand a copy of the complaint, or plead, as the case requires, within twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the complaint. Upon such an application, he must file proof that the service is complete, and proof, by affidavit, of the defendant's default.^ The court must require proof of the cause of action set forth in the complaint to be made either before the court or be- fore a referee appointed for that purpose. If the defendant is a non-resident, or a foreign corporation, the court must require the plaintiff, or his agent or attorney, to be examined on oath, re- specting any payment to the plaintiff, or to any one for his use, on account of his demand, and must render the judgment to which the plaintiff is entitled. But before rendering judgment, the court may, in any case, in its discretion, require the plaintiff 1 Code of Civil Pro., §777. ^ Code of Civil Pro., § 778. 3 Code of Civil Pro., §1216. See Downer v. Mellen, 50 Barb. 232; Hallett V. Righters, 13 How. 4ij; Chapman v. Lemon, 11 How. 335. In case of sub.sti. tuted service of a summons, the summons is deemed served on filing an affida- vit showing service according to the terms of the order directing such service, and the same proceedings may be taken thereupon as if it had been served by publication, pursuant to an order for that purpose. Code of Civil Pro., §437. Service by publication Is complete upon the last day of publication pursuant to the order; and service made without the State is complete upon the expira- tion thereafter of a time equal to that prescribed for publication. Code of Civil Pro., § 441. See ante, p. 294. Proof of publication of the summons must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office, or of delivery of a paper required to be deposited or delivered as part of such service, must be made by the affidavit of the person who deposited or delivered it. Code of Civil Pro. , §444. 380 Default. Judgment on failure to answer in action to foreclose a mortgage. to file an undertaking to abide the order of the court touching the restitution of any estate or efliects which may be directed by the judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of the judgment, in case the defendant or his representative applies and is admitted to defend the action, and succeeds in his defense.' A judgment cannot be rendered for a sum of money only upon an application made pursuant to the section above set forth, ex- cept in an action brought to recover a sum of money only as damages for one or more of the following causes : 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. Any other injury to personal property in consequence of negligence, fraud or other wrongful act. When the defendant is a non-resident or a foreign corporation, and has not appeared, the plaintiff, upon the application for judg- ment in such action, must produce and file the following papers : 1. Proof by affidavit that a warrant of attachment granted in the action has been levied upon property of the defendant. 2. A description of the property as attached, verified by af- fidavit, with a statement of the value thereof according to the inventory. 3. The above-mentioned undertaking to abide the order of the court touching restitution, if such imdertaking has been required.^ § 5. Judgment on failure to answer in action to fore- close a mortgage. — If, in an action to foreclose a mortgage, the defendant fails to answer within the time allowed for that pur- pose, or the right of the plaintiff, as stated in the complaint, is admitted by the answer, the plaintiff may have an order referring it to some suitable person as referee, to compute the amount due to the plaintiff, and to such of the defendants as are prior in- cumbrancers of the mortgaged premises, and to examine and re- port whether the mortgaged premises can be sold in parcels, if 1 Code of Civil Pro., § 1216. 5 Code of Civil Pro., §1217. Default. 381 Default in matrimonial actions. the whole amount secured by the mortga,a;e has not become due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any pay- ments which have been made, and to compute the amount due on the mortgage, preparatory to the application for judgment of foreclosure and sale. Where no answer is put in by the defendant within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readiness for trial as to all the defendants, may appl^ for judgment at any Special Term upon due notice to such of the defendants as have appeared in the action, and without putting the cause on the calendar. The plaintiff in such case, when he moves for judgment, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees ; and if so, he must produce the report as to the proof of the facts and circumstances stated in the complaint, and of the examination of the plaintiff or his agent on oath as to any payments which have been made. And in all foreclosure cases, the plaintiff when he moves for judgment must show by affidavit or by the certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage, and the parties thereto, and the time and place of recording the same, has been filed at least twenty days before such application for judgment, and at or after the filing of the complaint as required by la\v.' §6. Default in matrimonial actions. — Final judgment an- nulling a marriage cannot be rendered by default for want of an appearance or pleading or upon the trial of an issue without proof 1 Rule 60, Sup. Ct. See Code of Civil Pro., § 1631. 382 Default. Default in matrimonial actions. of the facts upon which the allegation of nullity is founded, and the declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.^ And in an action to annul a marriage, or for a divorce, or for a separation, a final judgment cannot be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless the summons and a copy of the com- plaint were personally served upon the defendant, or the copy of the summons dehvered to the defendant, upon personal service of the summons, or delivered to him without the State, or published, pursuant to an order for that purpose, obtained as prescribed in chapter fifth of the Code, contains the following words, or words to the same effect, legibly written, or printed upon the face thereof, to- wit : " Action to annul a marriage ; " " Action for a divorce ; " or "Action for a separation ;" according to the article of the Code under which the action is brought. Where the summons is personally served, but a copy of the complaint not served therewith ; or where a copy of the summons and a copy of the complaint are delivered to the defendant without the State, the certificate or affidavit proving service must affirmatively state, in the body thereof, that such an inscription, setting forth a copy thereof, was so written or printed upon the face of the copy of the summons delivered to the defendant." The Code prescribes the manner in which proof of the service of a summons may be made in ordinary cases,' and the general rules of practice prescribe the matters to be stated in an affidavit of service of a summons and complaint in ordinary cases where service was made by a person other than the sherifE.* In actions for divorce, or to annul a marriage, or for separate maintenance, the affidavit, in addition to the ordinary requirements, must state wliat knowledge the affiant had of the person served being the defendant, and proper person to be served, and how he acqviired such knowledge. The court may require the affiant to appear in court, or before the referee, if a reference be ordered, and be ' Code of Civil Pro., § 1753; Rule 37, Sup. Ct.; Rule 77, Sup. Ct. ' Code of Civil Pro., § 1774. See Rule 77, Sup. Ct. 3 Code of Civil Pro., § 434. * Rule 18, Sup. Ct. See aiUe, p. 373. Default. 383 Failure to reply — Relief from default. examined in respect thereto, and when service has been made by the sheriff, may require the officer who made the same to be summoned and examined in hke manner.' Every such cause must be heard after the trial of the issue or upon the coming in of the proofs at a Special Term of the court, and no judgment in an action for divorce can be entered except upon the special direction of the court.^ § 7. Failure to reply. — The Code provides that if the plain- tiff fails to reply or demur to a counterclaim set up in the answer, the defendant may apply upon notice for judgment thereupon, and if the case requires it, a reference may be ordered, or a writ of inquiry may be issued as prescribed by the Code in a case where the plaintiff applies for judgment.^ A counterclaim is merely an independent cause of action against the plaintiff, and where the plaintiff has admitted its validity as a demand against him by a failure to reply thereto, the defendant proceeds to take judgment against the plaintiff on his counter- claim in substantially the same manner that he would take judg- ment on the same cause of action if set up in a complaint and ad- mitted by failure to answer. He must make due proof of the service of the answer containing the counterclaim and of the failure of the plaintiff to serve a reply within the time limited by > the statute. The application for judgment should be made to the court.* § 8. Relief from default. — A party who through mistake or inadvertence has suffered default in pleading may always obtain relief on an application to the court unless there are valid reasons why the party should not receive such favor other than the mere delay in pleading. The Code provides that after the expiration of the time within which a pleading must be made, or any other proceeding in an action after its commencement must be taken, the court, upon good cause shown, may, in its discretion, and upon ' Rule 18, Sup. Ct. - Rule 77, Sup. Ct. 3 Code of Civil Pro., § 515. ■" Aymar v. Chase, 12 Barb. 301. 384 Default. Relief from default. such terms as justice requires, relieve the party from the conse- quences of an omission to do the act, and allow it to be done, except as otherwise specially prescribed by law.' A court or judge is not authorized to extend the time fixed by the court within which a supplemental complaint must be made in order to con- tinue an action, after the expiration of the time fixed by the order.^ The court may also in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusa- ble neglect, and may supply an omission in any proceeding. Where a proceeding taken by a party fails to conform to a pro- vision of the Code, the court may in like manner, and upon like terms, permit an amendment thereof to conform it to the pro- vision.' The Code further provides that where a summons has been served pursuant to an order for substituted service or to an order for publication, and the defendant so served does not appear, he or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action ; and, except in an action for divorce, or wherein the con- trary is expressly prescribed by law, the defendant, or his repre- sentative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the defense is suc- cessful, and the judgment, or any part thereof, has been collected or otherwise enforced, restitution may thereupon be compelled as the court directs, but the title to property sold to a purchaser in good faith pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby.'' I Code of Civil Pro., §783. « Code of Civil Pro., §784. 3 Code of Civil Pro., § 724. "Code of Civil Pro., §445. Default. 385 Relief from default. Under a similar provision in the old Code it was held that the courts may open a default and allow a defendant to come in and defend in an action for a divorce commenced by the service of a summons by publication, notwithstanding the wording of the statute fixing the time wherein a defendant may come in and de- fend "except in actions for divorce."^ ■The opening of a default for non-service of the complaint rests in the sound discretion of the judge at Special Term.^ A default suffered through the negligence of an attorney should not be opened unless it appears that the party in default has some rights which will be impaired and great injustice will be done, and the opposite party can be fully indemnified.' To entitle a defendant to an order opening a judgment taken for want of an answer, he must clearly show that he has a defense to the action.'' The defendant should, therefore, serve with his motion papers an affidavit of merits and a copy of his proposed answer. If he does not, the motion may be denied but with leave to renew on proper papers.^ But where a party applying for leave to defend presents his application with diligence and sup- ports it with a reasonable degree of probability in his favor, the court will generally set aside the default and allow a defense to be made.* Whether a judgment entered against a defendant by default shall be vacated and the default opened rests in every case in the sound discretion of the court in which the judgment is rendered and the exercise of that discretion will not be re- viewed in the Court of Appeals.^ The defendant cannot in any case claim as a right that a default regularly taken shall be opened and that he shall be let in to defend. Regular service of the summons in either of the three modes prescribed by the Code, ' Brown v. Brown, 58 N. Y. 609. ' Martin v. Gould, 9 Jones & Sp. 544. 3 Post V. Simmons, 16 St. Rep'r, 246. * Mather v. Carroll, 14 St. Rep'r, 469. * Weston V. McCormick, 3 Law Bull. 11; Gulliver v. Newark Fire Ins. Co., 3 Law Bull. 53; Reynolds v. Palen, 13 Civ. Pro. R. 200 ; Ludlow v. Coit, 3 Law Bull. 102. * Union Pacific By. Co. v. Credit Mobilier, 58 Daily Reg., No. 25; Gage v. Lessler, 19 Alb. Law J. 400. ' New Haven Web Co. v. Ferris, 115 N. T. 641. 49 386 Application of the Rules of Pleading, etc. Rules of pleading applied in proceedings for a mandamus, whether it be personal, substituted or by publication, gives the court complete and absolute jurisdiction ; and although the de- fendant may be let in to defend under certain circumstances when the service is substituted or by pubhcation, the jurisdiction ac- quired is not conditional merely, and liable to be divested, as in case where it is acquired by the granting of a provisional remedy.* And where it appears that a defendant has delayed the mailing of his pleading until a late hour of the last day allowed for ser- vice by mail for the purpose of giving other parties an oppor- tunity to enter judgment before the plaintiff, and that the plead- ing then served was frivolous, the court may properly refuse to open the judgment and let the defendant in, although in fact the judgment was entered after the pleading was served but before its receipt by the plaintiff.^ Laches in moving to open a default is also a ground for denying the motion.' When a default is opened upon the defendant's motion the judg- ment entered thereon is sometimes allowed to stand as security. Where this course is pursued, the judgment exists merely as a security, and determines no rights of the parties in the action, and presents no obstacle to such future proceedings in the action as would be regular and requisite if no security in that form had been given or the judgment by default had not been entered.* CHAPTER XXVI. Application of the Rules of Pleading to Special Peoceedings. Section 1. Rules of pleading applied in proceedings for a mandamus. — Oral pleadings upon a writ of mandamus are abolished, and no pleadings are allowed except as prescribed in '- McCartliy v. McCarthy, 13 Hun, 579. ' Green v. Howard, 14 Hun, 434. 3 Henderson v. Savage, 14 Jones & Sp. 231 ; Depew v. Dewey, 3 Thomp. & C. 51.5; Hendricks v. Carpenter, 3 Rob. 635; 1 Abb. (N. S.) 213; 4 Rob. 665. '- Booth V. Rogers, 18 St. Rep'r, 652. Application of the Rules of Pleading, etc. 387 Rules of pleading applied in proceedings for a mandamus. article 4 of title 2 of chapter 16 of the Code of Civil Proced- ure.' These pleadings consist of the writ of mandamus, a re- turn or demurrer to the writ, and in a proper case a demurrer to the return.^ For the purpose of the application the writ, the return, and the demurrer are deemed to be pleadings in an action.' The writ is considered as a complaint and the relator as the actual plaintiff.'' The alternative writ should be a statement of the relator's title to the relief demanded ; or in other words, a statement of his cause of action, and should contain no allegations except such as are pertinent to the title and relief.' The relator must set forth in his writ the facts upon which he relies, so that thej may be admitted or traversed.^ The statement contained in the writ of the facts constituting the grievance it is issued to re- dress ; the joinder therein of two or more of sucli grievances ; and the command of the writ are subject to the provisions of chapter 6 of the Code respecting the statement in a complaint of the facts constituting the cause of action ; the joinder therein of two or more causes of action, and the demand of judgment there- upon.' The Code prescribes the mode of service of the writ* and the time when and place where it should be made returnable.' When the first writ of mandamus has been duly served, a return must be made to the same as therein required, unless it is an alternative writ and a demurrer thereto is taken. In default of a return the person or persons upon whom the writ was served may be pun- ished upon the application of the people, or of the relator, for a contempt of court.'" The return to an alternative writ of mandamus must be annexed to a copy of the writ ; and must be filed, in the office of the clerk ' Code of Civil Pro., § 2080. ' See Code of Civil Pro., g§ 2076-2078. 3 Code of Civil Pro., §2082. * People V. Ransom, 3 N. Y. 490; People v. Ovenshire, 41 How. 164. ' People V. Ransom, 2 N. Y. 490; People v, Ovenshire, 41 How. 164. ' People V. Supervisors of Westchester, 15 Barb. 607. •> Code of Civil Pro., § 2076. s Code of Civil Pro., § 2071. ' Code of Civil Pro., § 2072. i» Code of Civil Pro., § 3073. 388 Application of the Rules of Pleading, etc. Rules of pleading applied in proceedings for a mandamus. where it is returnable, within the time specified in the writ. The return to a peremptory writ of mandamus must be likewise an- nexed to a copy thereof ; and must, before the expiration of the first day of the term at which it is returnable, be either delivered in open court, or filed in the ofiice of the clerk of the court, or, in the Supreme Court, the clerk of the county wherein the term is . to be held.' The return to an alternative writ may either deny the facta stated in the writ, on which the claim of the relator is founded, or may state other facts sufficient in law to defeat the relator's claim. ^ The return may set up any number of facts, constituting as many good reasons for not pei-forming the act which the writ seeks to compel, provided they exist in point of fact.' The provisions of chapter 6 of the Code, relating to the form and contents of an answer, containing denials and allegations of new matter, except those provisions which relate to the verifica- tion of an answer, and to a counterclaim contained therein, apply to a return to an alternative writ of mandamus, showing cause against obeying the command of the writ. For the purpose of the application, each complete statement of facts, assigning a cause why the command of the writ ought not to be obeyed, is regarded as a separate defense, and must be separately stated and numbered.* The person upon whom the writ is served, instead of making a return thereto, may file in the office where the writ is returnable, a demurrer to the writ ; or he may file a demurrer to a complete statement of facts contained in the writ, as constituting a separate grievance, and make a return to the remainder of the writ. A demurrer may be thus taken, in a case where a defendant may de- mur to a complaint, or to a cause of action separately stated in a complaint, as prescribed in chapter 6 of the Code ; and it must be in like forin.^ A person who has made a return to an alternative mandamus cannot be compelled to make a further return. The people or the ' Code of Civil Pro., § 2074 ' People V. Commissioners of Highways, 11 How. 89. 3 People V. Supervisors of Ulster, 33 Barb. 473. * Code of Civil Pro., g 2077. « Code of Civil Pro., g 2076. Application of the Eules of Pleading, etc. 389 Rules of pleading applied in proceedings for a mandamus. relator may demur to the return, or to any complete statement of facts therein separately assigned as a cause of disobeying the com- mand of the writ, on the ground that the same is insufficient in law, upon the face thereof.* An issue of fact arises upon a denial, contained in the return, of a material allegation of the writ, or upon a material allegation of new matter, contained in a return, unless a demurrer thereto is taken. Where the people or the relator demur to a complete statement of facts, separately assigned as a cause for disobeying the command of the writ, an issue of fact arises, with respect to the remainder of the return.^ The provisions of title 2 of chapter 6 of the Code apply to the writ and the return ; except that it is not necessary to serve a copy of either upon the attorney for the adverse party, or to verify either, and that neither can be amended without special applica- tion to the court, or stricken out as sham.' Where a return to an alternative writ of mandamus has been filed, the attorney for the defendant making it must serve upon the attorney for the people or the relator, a notice of the filing thereof. Where the people or the relator demur to the return, or to a part thereof, a copy of the demurrer must be served upon the attorney for the defendant within twenty days after the service of such a notice. Where the defendant demurs to the writ, or to a part thereof, a copy of the demurrer must be served upon the attorney for the people or the relator, within the time prescribed by law for filing it.'' An alternative writ of mandamus cannot be quashed or set aside upon motion, for any matter involving the merits. A motion to set aside such a writ for any other cause, or to set aside or quash a peremptory writ of mandamus, or to set aside the service of either writ, must be made at a term whereat the writ might have been granted.^ The question whether a mandamus is the proper remedy, and whether the relator had another legal remedj^, in- 1 Code of Civil Pro., § 3078. ' Code of Civil Pro., § 3079. 3 Code of Civil Pro., § 3080. * Code of Civil Pro., § 2081. « Code of Civil Pro., § 3075. 390 Application of the Kdles of Pleading, etc. Pleadings in Surrogates' Courts. volves the merits of the action, and cannot be considered upon a motion to quash or set aside an alternative writ of mandamus. Such questions must be raised by a return to the writ or by a de- murrer. ^ The proceedings upon a writ of mandamus granted at a Special Term, may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this article, may be enlarged, as in an action, by an order made by a judge of the court, but not by any other officer. Where the writ was granted at the General Term, an order staying the proceedings or enlarg- ing the time to make a return, can be made only by a General Term justice of the same department ; and where notice has been given of an application for a mandamus at a General Term, or an order has been made to show cause, at a General Term, why a mandamus should not issue, a stay of proceedings cannot be granted before the hearing, by any court or judge.^ § 2. Pleadings in Surrogates' Courts. — Proceedings in Sur- rogates' Courts have been regulated by the Code, and made to conform in many particulars to the proceedings in an action in other courts of record. In ordinary cases before a surrogate, pleadings, in the technical sense of the word, are unknown ; but the surrogate may at any time require a party to file a written petition or answer, containing a plain and concise statement of the facts constituting his claim, objection or defense, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified, and a copy thereof to be served upon any other person interested. A party who fails to comply with such a re- quirement may be treated as a party in default. Except where such a requirement is made, or in a case where a written petition is expressly required by the Code, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the court.' All petitions and answers in the Surrogate's Court of the ' People V. Supervisors of Oswego, 50 Hun, 105. ^ Code of Civil Pro., g 2089. 3 Code of Civil Pro., § 2533. Pleadings in a Jdstiok's Court. 391 Pleadings authorized in a Justice's Court. county of New York are required by the rules of the court to be in writing, unless it is otherwise expressly prescribed by statute, and to contain a plain and concise statement of the facts consti- tuting the claim, objection or defense, and a demand of the de- cree, order, or relief to which the party supposes himself to be entitled, and that the petition and answer shall be verified. The provisions of sections 523, 524, 525 and 526 of the Code apply to a verification made pursuant to the requirement of the surrogate and to the petition or other paper so veiified, where they can be so appKed in substance without regard to the form of the proceeding.' CHAPTER XXVII. Pleadings in a Justice's Couet. Section 1. Pleadings autliorized in a Justice's Court- — The pleadings in a Justice's Court are : 1. The plaintiff's complaint. 2. The defendant's answer. 3. The defendant's demurrer to the complaint or to one or more distinct causes of action separately stated therein. i. sThe plaintiff's demurrer to oiie or more counterclaims stated in the answer.^ An issue is raised by the service of an answer to the plaintiff's complaint; and although the answer contains a counterclaim, a reply thereto is unnecessary and unauthorized. As a reply is not admissible in a Justice's Court, an allegation of new matter in the defendant's answer must in all cases be deemed controverted by the plaintiff, and it is competent for him to countervail it by evi- dence either in direct denial or of new matter by way of avoid- ance.' ' Code of Civil Pro., § 2534. « Code of Civil Pro., § 2935. 3 Hodges V. Hunt, 22 Barb. 150; Wilcox v. Palmeter, 2 Hun, 517. 392 Pleadings in a Justice's Couet. Form of pleadings in Justices' Courts. § 2. Form of pleadings in Justices' Courts. — A pleading in a Justice's Court may be oral or written except where it is an an- swer setting forth title to land/ or where it is verified under the act of 1881.^ If it is oral, the substance of it is entered by the justice in his docket-book; and if it is written, it is filed by the justice and a reference made to it in his docket-book. A plead- ing is not required to be in any particular form ; but it must be so expressed as to enable a person of common understanding to know what is intended.' Technical precision in matters of form is not required in pro- ceedings in Justices' Courts ;^ and even in matters of substance, great latitude is allowed in the pleadings, and the courts uniformly construe them liberally.'' For the purpose of setting forth a cause of action, defense, or counterclaim founded upon an account or upon an instrument for the payment of money only, it is sufiicient for the party to deliver the instrument or a copy of the account to the court, and to state that there is due him thereupon from the adverse party a specific sum which he claims to recover or set ofE.^ The Code does not in terms require that a pleading in a Justice's Court shall be entitled, nor that distinct causes of ac- tion or grounds of defense shall be separately stated or numbered, nor that the complaint or answer shall contain a formal demand of judgment, as such requirements would, perhaps, be inconsist- ent with a system permitting oral pleadings, the substance of which only is entered by the justice in his docket-book. But notwithstanding this liberal disregard of formal matters, parties to actions in a Justice's Court will always find it to their advan- tage to prepare and file written pleadings properly entitled, sepa- rately stating each distinct cause of action or defense, containing an appropriate demand for judgment, and indorsed for filing with the title of the cause, so that the errors and misconceptions of the justice shall be confined as far as possible to matters sub- ' Code of Civil Pro., gg 3940, 2951. ' Laws of 1881, cbap. 414. 3 Code of Civil Pro., § 2940. * Bradner v. Howard," 75 N. Y. 417. ' Evans V. Williams, 60 Barb. 346; Willard v. Bridge, 4 Barb. 361. ' Code of Civil Pro., § 2941. Pli^adings in a Justice's Couet. 393 The complaint. sequent to the joinder of issue. Plow these several causes of action or defenses shall be separately stated or distinguished is unimportant if the mode adopted is such as will apprise the ad- verse party of what is intended.' In courts of record, a complaint must contain a demand of the judgment to which the plaintiff deems himself entitled,^ and when a defendant deems himself entitled to an affirmative judgment against the plaintiff by reason of a counterclaim interposed by him, he must demand the judgment in his answer.^ Neither of these sections are made applicable to a pleading in a Justice's Court, but it will always be safe for the pleader to treat them as applicable in framing his complaint or answer, or in stating his cause of action or counterclaim to the justice if he elects to plead orally. The Code evidently contemplates a demand of judgment as a part of every pleading under which a party would be entitled to affirmative relief, as it makes the right to a new trial on appeal to the County Court depend upon the sum for which judgment was demanded by either party in his pleading, save where the action was brought to recover a chattel.'' § 3. The complaint. — The complaint must state in a plain and direct manner the facts constituting the cause of action,^ which must be so expressed as to enable a person of common under- standing to know what is intended.^ It must show that the plain- tiff has a good cause of action and not leave the defendant to conjecture as to the ground on which he is sued.'' But if it shows the true ground of action so that the defendant can under- stand the precise nature of the jjlaintiff's claim and the character of the evidence by which it is to be sustained, it is sufficient.* The complaint must contain a statement of the facts constituting the cause of action, and by " facts " must be understood the ultimate = Etall V. McKeclinie, 22 Barb. 244. ' Code of Civil Pro., § 481. 5 Code of Civil Pro., § 509. * Code of Civil Pro., § 3068. 5 Code of Civil Pro., § 2936. « Code of Civil Pro., § 2940. ■ People V. Judges of Oneida C. P., 21 Wend. 20. « Willard v. Bridge, 4 Barb. 361. 50 394 Pleadings in a Justice's Couet. Joinder of causes of action in the complaint. facts to be proved, as distinguished from the legal conclusions of the pleader or the evidence by which the facts are to be estab- lished.' It is not enough to state the nature or object of the action without stating the grounds of the action. A complaint " for the recovery of personal property valued at S85," does not state a cause of action in replevin or otherwise.^ If the plaintiff sues upon an assigned demand the complaint should allege the assignment of the demand to the plaintifE as well as the facts which must necessarily have been stated had the ac- tion been brought by the former owner of the demand. If the plaintifE is an infant suing by his guardian the complaint should allege the infancy and show by proper averments the due appoint- ment of the guardian by the justice.^ If the plaintiff sues as re- ceiver the complaint should state the time and mode of the ap- pointment so that the adverse party may take issue on such facts.* And generally, a plaintiff suing in a representative capacity must allege facts showing that he is vested with the representative char- acter which he claims and that he has a cause of action in that rep- resentative capacity. In short, he must show, a cause of action existing in him in the capacity in which he sues. A complaint by a public officer should allege in the body of the complaint that he is such officer and should indicate by appropriate language that the plaintiff sues in an official capacity.' In every case the plaintiff should demand the relief to which he deems himself entitled, either by an appropriate demand of judg- ment at the conclusion of a written complaint or hy a statement to the justice of the judgment desired if the pleading is oral.^ § 4. Joinder of causes of action in the complaint. — The plain- tiff may unite in the same complaint two or more causes of action where they arise out of ' See ante, pp. 33, 33. ^ Howe Sewing Machine Co. v. Haupt, 7 Daly, 108. 3 Hulbert V. Young, 13 How. 413; Stanley v. Chappell, 8 Cow. 335; Grant- man V. Thrall, 44 Barb. 173. '- Dayton v. Connah, 18 How. 326. s Gould V. Glass, 19 Barb. 179; Fowler v. Westervelt, 40 Barb. 371; 17 Abb. 59. » See ante, p. 393. Pleadings in a Justice's Court. 395 Verified complaint under the act of 1881. 1. The same transaction, or transactions connected with the same subject of action ; or 2. Contract, express or implied ; or 3. Personal injuries, and injuries to property, or either. But it must appear upon the face of the complaint that all causes of action so united belong to one of the foregoing subdi- visions ; that they are consistent with each other ; that they require the same judgment ; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action for which a defendant might be arrested is united with a cause of ac- tion for which he cannot be arrested, an execution against the per- son of the defendant cannot be issued upon the judgment.^ § 5. Yerifled complaint under the act of 1881 — It is pro- vided by statute that " in any action brought in any of the Jus- tices' Courts in this State arising on contract for the recovery of money only, or on an account, the plaintiff or his agent, at or be- fore the time of the issuing of the summons, may make a written complaint, stating in a plain, concise manner the facts constituting the cause of action, specifying therein the amount actually due from the defendant to the plaintiff in said action, and praying judgment against the said defendant for the amount so claimed to be due to him, which said complaint shall be subscribed by the plaintiff or his agent and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. Said summons and complaint shall be attached and shall be served upon the defendant by delivering to and leaving with him per- sonally true copies thereof, not less than six nor more than twelve days before the return day thereof, and the official certificate of the constable making such service shall be sufficient evidence thereof."^ The mode of verification of a complaint under this statute is the same as in actions pending in courts of record, and what has been said in respect to such verification need not here be re- peated.' ' Code of Civil Pro., g 2937. 'Laws of 1881, ch. 414, §1. 3 See ante, p. 59. 396 Pleadings in a Justice's Couet. The answer. Enough should be alleged in the complaint to clearly entitle the plaiutiff to a judgment in his favor in case no defense is inter- posed, as in case the defendant fails to put in a veriiied answer on the return of the summons he is deemed to have admitted the allegations of the complaint as true ; and, on the filing of the summons and complaint with due proof of service, the court must enter judgment for the plaintiff against the defendant for the amount demanded in the complaint, with costs, without further proof.^ The facts admitted by the default ought to au- thorize and support the judgment so entered. But where the complaint and summons are served upon the defendant within the county, the omission to state the places of residence of the par- ties in the complaint does not authorize an appellate court to reverse a judgment, entered upon the defendant's default, upon the ground that the residence of the parties, or one of them, is a jurisdictional fact which must appear upon the record. The jus- tice acquires jurisdiction of the person of the defendant by the return of personal service upon him within the county.* § 6. The answer. — The answer in a Justice's Court may con- tain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth ■ in a plain and direct manner, new matter, constituting one or more defenses or counterclaims.^ A denial of knowledge or information sufficient to form a belief of the mat- ters stated in the complaint is not permitted by the Code in an answer in a Justice's Court.'' As the answer is not verified there is no reason why the denial should not be positive in form. But where the defendant has been served with a verified complaint with the summons under the act of 1881, the answer thereto must be in writing, must be verified in the manner provided by section 527 of the Code of Civil Procedure, and must contain : 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or ■ Laws of 1881, cb. 414, §4. ' Hoffman v. Barton, 47 Hun, 409. "Code of Civil Pro., 1^2938. - Dennison v. Carnahan, 1 E. D. Smith, 419. Pleadings in a Justice's Couet. 397 Answer that title to lands will come in question. information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense, offset, or counterclaim.^ The same matters may be proved under a general denial in a Justice's Court that might be proved under a similar answer in the Supreme Court,^ and there is the same necessity for pleading new matter in defense in a Justice's Court as in a court of record,' and a much greater necessity for pleading a counterclaim.^ An objection to the non-joinder of proper parties plaintiff must be taken by answer, and if not so taken is waived. The defendant cannot take advantage of such a defense under a mere general denial.' It has been held that where the defect of parties plain- tiff appears in the complaint in a Justice's Court, the defendant may take advantage of it upon a motion for a nonsuit;^ but this doctrine has been questioned in later decisions.^ The Code does not in terms require that a demand of judg- ment shall in any case form a part of an answer in an action be- fore a justice of the peace ; but it authorizes a defendant in action of replevin to demand judgment in his answer for a return of the chattel replevied with or without damages for the taking, with- holding or detention thereof, if lie has not required a return of the chattel pending the action,* and it makes his right to a new trial on appeal to the County Court in other actions depend upon the sum for which he has demanded judgment in his answer, if the plaintiff has not demanded judgment for more than $50.^ It is always advisable for the defendant, whether pleading orally or in writing, to ask, in connection with his statement of facts, for any affirmative judgment to which he deems himself entitled. § 7. Answer that title to lands will come iu question.— The defendant may, with or without other matter of defense, set '- Laws of 1881, cli. 414, g 3. ' As to the matters provable under a general denial, see ante, p. 231. 3 See ante, p. 235. 4 See Code of Civil Pro., |§ 2947, 2948. ' Frazier v. Gibson, 15 Hun, 37; Able v. Clark, 31 Barb. 238. 8 Rice V. Hollenbeck, 19 Barb. 664. ^ Frazier v. Gibson, 15 Hun, 37, 40. 8 Code of Civil Pro., §2930. » Code of Civil Pro., § 3068. 398 Pleadings in a Justice's Codet. Answer that title to lands will come in question. forth in liis answer facts showing that the title to real property will come in question. Such an answer must be in writing, and it must be signed by the defendant or his attorney or agent, and delivered to the justice. The justice must thereupon countersign the answer and deliver it to the plaintiff.^ The defendant must also deliver to the justice with the answer a written undertaking executed by one or more sureties approved by the justice, to the effect that if the plaintiff within twenty days thereafter deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, the defendant will within twenty days after the deposit give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide that he will at all times render himself amenable to any mandate which may be issued to enforce a final judgment in the action to be brought. If the defendant fails to comply with the undertak- ing the sureties are liable thereupon to an amount not exceeding $200.2 The court in which the new action is to be brought is the Su- preme Court or the County Court of the justice's county at the plaintiff's election ; except that where the justice is a justice of the peace of the city of Buffalo, it is the Superior Court of Buffalo.^ Upon the delivery of the undertaking to the justice the action before him is discontinued and each party must pay his own costs. The costs so paid by either party must be allowed to him if he recovers costs in the new action to be brought as above provided. If the plaintiff fails to deposit with the justice a summons and complaint in the new action before the expiration of twenty days after the delivery of the undertaking, the defendant may main- tain an action against the plaintiff to fecover his costs before the justice.'' If the undertaking is not delivered to the justice he has juris- > Code of Civil Pro., § 2951. 2 Code of Civil Pro., § 2952. 8 Code of Civil Pro., §2953. * Cod^ of Civil Pro., § 2954. Pleadings in a Justice's Couet. 399 Answer tliat title to lauds will come in question. diction of tlie action and must proceed therein ; and the defendant is precluded in his defense from drawing the title in question.^ The answer of title is a nullity unless the undertaking is given/ and unless the undertaking conforms to the requirements of the statute.' If, however, it appears upon the trial from the plain- tiff's own showing that the title to real property is in question, and the title is disputed by the defendant, the justice must dis- miss the complaint with costs, and render judgment against the plaintifE accordingly.'' Where an action before the justice has been discontinued upon an answer of title accompanied by the proper undertaking, the plaintiff must complain in the new action for the same cause of action upon which he relied before the justice, and for that cause of action only ; and the defendant's answer must set up the same defense which he made before the justice, and that defense only.' But this does not prohibit the plaintiff from making the cause of action, upon which he relied before the justice, perfect by such new allegations as are needed for that purpose, such as a new alle- gation that the defendant is a corporation. The restriction does not go to matters of form ; the test is, does the complaint or an- swer state the same cause of action or defense.*^ The plaintiff may demur to the answer after the removal of the action to the higher court.' Where in an action before the justice the plaintiff has two or more causes of action, and the defense that the title to real prop- erty will come in question is interposed as to one or more but not as to all of them ; the defendant may deliver an answer and un- dertaking, as prescribed in sections 2951 and 2052 of the Code, with respect to the cause or causes of action only in which title 1 Code of Civil Pro., g 3955. ' Little V. Denn, 34 N. Y. 453; 1 Keyes, 235; 34 How. 68. 3 Kohlbrenuer v. Elslieimer, 19 Hun, 88. * Code of Civil Pro., § 2956. ^ Code of Civil Pro., § 2957; McNamara v. Bitely, 4 How. 44. ' Fox V. Erie Preserving Co., 93 N. Y. 54; Wiggins v. Tallmadge, 7 How. 405; TutWH v. Clark, 13 Wend. 207; People v. Albany Common Pleas, 19 Wend. 138. " Dorman v. Lang, 3 How. 59. 400 Pleadings in a Justice's Court. Counter claims in Justices' Courts. will SO come in question ; and thereupon the justice must discon- tinue the action as to those causes only, the plaintiff may com- mence a new action therefor in the proper court, and the original action must proceed as to the other causes.' The answer that title to real property will come in question may be interposed by an amended answer at any time before trial ; ^ and if the plea is interposed at the time of joining issue, but is defectively pleaded, it may be amended afterward in the same manner as any other answer.' And in an action for trespass upon lands, if the defendant interposes an answer that title to lands will come in question as to part of the locus in quo, the plaintiff may defeat the plea by an amendment of his complaint, omitting all claim for damages for trespass upon that part.* § 8. Counterclaims in Justices' Courts. — The counterclaim which may be interposed in a Justices' Court must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants between whom and the plaintiff a separate judgment may be had in the action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on con- tract existing at the commencement of the action.^ The above statement of the requisites of a counterclaim is sub- ject to the further limitation, that such a counterclaim cannot be interposed unless it is of such a nature that a Justice's Court has jurisdiction of a cause of action founded thereon ; ^ and the counter- claim specified in the second subdivision of such statement is also subject to the following rules : > Code of Civil Pro., § 2958. 2 Weeks v. Stroble, 36 How. 12.3; Hinds v. Page, 6 Abb. (N. S.) 58. 3 Smith V. Mitten, 13 How. 325. * Shull V. Green, 49 Barb. 311. <■ Code of Civil Pro., §g 501, 2945. ' Code of Civil Pro., § 2945. Pleadings in a Justice's Couut. 401 Counterclaims in Justices' Courts. 1. If the action is founded upon a contract, whieli has been as- signed by the party thereto, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto, or an assignee of the contract, at the time of the as- signment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiffs demand, if it might have been as allowed against the party, or the assignee while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, a demand, existing against the person who assigned or transferred it after it became due, must be allowed as a counter- claim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim ; but so much of a demand existing against a person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim if it might have been so allowed in an action brought by the person beneficially interested.' The Code expressly applies the general provisions of that act in respect to counterclaims in actions in courts of record to counterclaims in an action in a Justice's Court, save that it pro- vides that a counterclaim cannot be interposed unless it is of such a nature that a Justice's Court has jurisdiction of an action founded thereon.' These general provisions have been considered in an- other chapter.' The limitation that the counterclaim must be of such a nature that a Justice's Court has jurisdiction of a cause of action founded thereon, is not a limitation upon the amount of the counterclaim, and a defendant compelled to come into a Jus- ' Code of Civil Pro., § 503. 'Code of Civil Pro., § 3945. 3 See ante, p. 861. 51 402 Pleadings in a Jusiice's Court. Eifect of a failure to plead a counterclaim. tice's Court to make his defense may interpose such counterclaim as he has without reference to its amount.' Section 505 of the Code provides that in an action against an executor or an administrator, or other person sued in a represen- tative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent or other person whom he rep- resents, where the person so represented would have been entitled to set forth the same in an action against him.^ Section 506 of that act provides that in an action brought by an executor or administrator in his representative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counterclaim as if the action had been brought by the decedent in his Hfe-time ; and if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative ca- pacity ; but execution can be issued upon such judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. These sections are made applicable to a counterclaim in an ac- tion in a Justice's Court against a person sued in a representative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintifE upon a counterclaim^ for a sum exceeding $200.^ The mode of pleading a counterclaim in a Justice's Court is substantially the same as the mode of pleading a cause of action in a complaint. The defendant should demand the judgment to which he deems himself entitled under the facts pleaded, and should, as far as possible, conform his pleading to the general rules governing this branch of the answer stated in a preceding chap- ter.* § 9. Effect of a failure to plead a counterclaim. — In a court of record a defendant may plead a demand which he has against the plaintifE as a counterclaim to an action brought against him, "Heigle V. Willis, 50 Hun, 588. ' See ante, p. 264. 3 Code of Civil Pro., § 2946. ■• See ante, p. 280. Pleadings in a Jostice's Coukt. 403 Judgment upon the counterclaim. or he may bring an independent action upon his demand against the plaintiif. This is true only to a limited extent in a Justice's Court. Where the defendant, in an action brought in a Justice's Court to recover damages upon or for a breach of contract, neg- lects to interpose a counterclaim consisting of a cause of action in his favor to recover damages for a like cause which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are for- ever thereafter precluded from maintaining an action to recover the same or any part thereof.^ But the above prohibition does not extend to either of the fol- lowing cases : 1. Where the amount of the counterclaim is $200 more than the judgment which the plaintiif recovers. 2. Where the counterclaim consists of a judgment rendered before the commencement of the action in which it might have been interposed. 3. Where the counterclaim consists of a claim for unliqui- dated damages. 4. Where the counterclaim consists of a claim upon which an- other action was pending at the time when the action was com- menced. 5. Where the judgment is taken against the defendant without personal service of the summons upon him or an appearance by him.* § 10. Judgment upon the counterclaim, — Where a counter- claim is established which equals the plaintiff's demand, the judg- ment must be in favor of the plaintiif. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the resi- due only. Where it exceeds the plaintiff's demand, the defend- ant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of $200. If it is more than $200, or if no part of it is due from the plain- tiff, the justice must, at the election of the defendant, either, 1 Code of Civil Pro., §2947. 'Code of Civil Pro., §3948. 404: Pleadings in a Justice's Court. Demurrers in a Justice's Court. 1. S(5t ofE BO much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs, in which case the defendant may maintain an action I'or the residue ; or 2. Render a judgment of discontinuance with costs ; in which case the defendant may thereafter maintain an action for the whole. Where part of the excess is due from the plaintiff, the judg- ment does not prejudice the defendant's right to recover from another person so much thereof as the judgment does not cancel.^ Where, upon the trial of an action, the total amount of the ac- counts of both parties, proved to the satisfaction of the justice, exceeds $400, judgment of discontinuance must be rendered against the plaintiff, with costs. ^ § 11. Demurrers in a Justice's Court. — The defendant may demur to' the complaint, or to one or more distinct causes of ac- tion separately stated therein, where it is uot sufficiently explicit to be understood, or where it does not state facts sufficient to con- stitute a cause of action. The plaintiff may demur to one or more counterclaims stated in the answer, where it is not sufficiently ex- plicit to be understood, or where it does not state facts sufficient to constitute a counterclaim. If the court deems the demurrer well founded, it must permit the pleading to be amended, and if the party fails so to amend, the defective pleading or part of a pleading demurred to must be disregarded. If the court deems the demurrer not well founded it must permit the party making it to plead over at his election.^ The act permitting the verifica- tion of pleadings in Justices' Courts contains the same provision.* Before the amendment of that act in 1889, it was held in a num- ber of cases, that where a defendant appeared on the return day of the summons and demurred to the verified complaint, although the demurrer might be overruled and the defendant did not put in an answer, nevertheless the plaintiff could not have judgment upon his complaint without proving his cause of action in the ' Code of Civil Pro., § 2949. ' Code of Civil I'ro., § 2950. See White v. Place, 40 Huu, 481. 3 Code of Civil Pro., § 3939. * Laws of 1881, cU. 414, as amended by cb. 472, Laws of 1889. Pleadings in a Justice's Couet. 405 Time of joining issue in a Justice's Court. same manner as if the complaint was unverified. This was so held because the statute, as it then read, permitted the plaintiff to take judgment upon the verified complaint without proving his cause of action, only " in case the dtefendant fails to answer or de- mur to said complaint," and if the defendant demurred, the con- dition upon which the plaintiff might take judgment without proof did not exist.^ The amendment has removed the grounds of the decisions. § 12. Time of joining issue in a Justice's Court. — Upon the return of a summons duly served the justice must wait one hour after the time specified therein for its return unless the par- ties sooner appear.^ At the place, and within one hour after the time specified in the summons for the return thereof, or where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice ; or, where no summons is issued, at the time when the parties voluntarily ap- pear and join issue, the pleadings of the parties must be made and issue must be joined. Where both parties appear upon the return of the summons an issue must be joined before an adjournment can be had, except when the defendant refuses or neglects to plead.' "When the defendant makes default in appearing or pleading upon the return of a summons which has been duly served, the justice must hear the allegations and proofs of the plaintiff and render judgment according to law and equity as the very right of the case appear-s.* If the defendant fails to appear and answer the plaintiff cannot recover without proving his case,'* unless a verified complaint was served with the summons under the act of 1881. If such a complaint has been served and the defendant fails to an- swer it as provided in that act, at the return of the summons, he will be deemed to have admitted the allegations of the complaint as true, and the court, on filing the summons and complaint and ' Thomas v. Jones, 47 Hun, 81; Oulman v. Schmidt, 35 Hun, 345. ' Code of Civil Pro., § 2893. 3 Code of Civil Pro., § 2934. " Code of Civil Pro., § 2988. » Code of Civil Pro., § 2891; Blair v. Bartlett, 75 N. T. 150. 406 Pleadings in a Justice's Couet. Amendments of pleadings in Justice's Court. due proof of the service thereof, must enter judgment for the plaintiff against the defendant for the amount demanded in the complaint, with costs, without further proof.^ If the defendant appears on the return day after the expiration of the hour, but while the plaintiff and justice are still in court, he may insist upon the right to interpose an answer to the plain- tiff's complaint although the cause has been adjourned to a sub- sequent day for trial to enable the plaintiff to get his witnesses,^ or although the plaintiff is proceeding with the trial.^ But if the defendant does not appear on the return day, but does appear on a day to which the cause has been adjourned for the convenience of the plaintiff, he cannot then interpose an answer as a matter of right, but may as a favor, if the justice, in his discretion, permits it,* and the trial has not commenced.' The justice cannot open a judgment to let the defendant interpose a defense, whether the judgment was rendered on the return day or on a subsequent day,' unless some special statute confers the power. § 13. Amendments of pleadings in Justice's Court. — In a Justice's Court a variance between an allegation in a pleading and the proof must be disregarded as immaterial unless the court is satisfied that the adverse party has been misled thereby to his prejudice.^ The court must, upon application, allow a pleading to be amended at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby.' At any time before the trial has begun the court may permit the plaintiff to amend his complaint by changing it from one 1 Laws of 1881, ch. 414, § 4, as amended by Laws of 1889, ch. 472, § 2. ' Lowther v. Crummie, 8 Cow. 87; Pickert v. Dexter. 13 Wend. 150. 3 Lowtlier v. Crummie, 8 Cow. 87; Sweet v. Coon, 15 Johns. 86; Atwood v. Austin, 16 Jolins. 180; Pickert v. Dexter, 12 Wend. 150. ■■ Sammis v. Brice, 4 Denio, 576; Jenkins v. Brown, 21 Wend. 454; Mead v. Darragh, 1 Hilt. 396. ' Montford v. Hughes, 3 E. D. Smith, 591, 593; Mead v. Darragh, 1 Hilt. 396. • AlbuTtis V. McCready, 2 E. D. Smith, 39; Harden v. Woodside, 2 E. D. Smith, 37; People v. Delaware, etc., 18 Wend. 558; Dauchy v. Brown. 41 Barb, 555. ' Code of Civil Pro. , § 2943. » Code of Civil Pro., § 2944; Walsh v. Cornell, 17 Hun, 27; Wood v. Shullis, 4 Hun, 309. Pleadings in a Justice's Couet. 407 Amendments of pleadings in Justice's Court. form of action to another, as from an action for a fraudulent rep- resentation to an action for a breach of warranty/ but it cannot permit him to change the cause of action from contract to tort at an adjourned hearing at wliich the defendant is not present.^ The general provision of the Code that the court may upon the trial or at any other stage of the action, before or after judgment, in furtherance of justice and upon such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case, or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to tlie facts proved,' applies to all courts, including a Justice's Court.* The court may amend by striking out the names of one of two plain- tiffs,'' or the names of persons improperly joined as defendants,^ or by striking out a cause of action of which the court has no jurisdiction,^ or by adding a new cause of action. ** The court may allow a defendant to so amend his answer as to properly set up a defense imperfectly pleaded,^ and on the day to which the trial is adjourned may allow a defendant to amend his answer by setting up a defense which had arisen since the joinder of issue,^" and if the defense accrued before the close of the testimony but before the cause is submitted, it maj' still be interposed by way of amendment to the answer." There is but little discretion vested in a justice in respect to allowing an amendment of a pleading where an amendment is permitted by the Code and will promote '■ Bigelow V. Dunn, 53 Barb. 570; 36 How. 120. ' Birdsall v. Fuller, 11 Hun, 204; Gilmore v. Burnett, 20 Hun, 514. « Code of Civil Pro., § 723. * Code of Civil Pro., § 3347, subd. 6; Lapham v. Rice, .55 N. Y. 472. ' Lapbam v. Rice, 55 X. Y. 472. ' Lowe V. Rommell, 5 Daly, 17. ' Bull V. Colton,22 Barb. 94. - Babcock v. Lipe, 1 Denio, 139. « Smith V. Mitten, 13 How. 325; Leonard v. Fo-ster, 7 Hun, 464. >» Ryan v. Lewis, 3 Hun, 429. n Price v. Peters, 15 Abb. 197. 408 Pleadings in a Justice's Coukt. Amendments of pleadings in Justice's Court. substantial justice, as in such case the right to amend is absohite, and to refuse to allow the amendment is error.^ If a defendant at the trial asks leave to amend his answer, or put in a supple- mental answer, setting up a payment made since the joinder of issue, the amendment may be allowed on terms, such as the pay- ment of all costs of the action up to that time, and the plaintiff may then discontinue the action if he so elects.^ "Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a demurrer, and it is made to appear to the satis- faction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of the amendment or pleading over, an adjournment must be granted. The court may also, in its discretion, require as a condition of allowing an amendment the payment of costs to the adverse party.^ The pleadings interposed before the justice may be amended on a new trial on an appeal taken to the County Court by increas- ing the demand for judgment to the extent of the jurisdiction of the appellate court,'' or by adding a new cause of action, although by so doing the defense of the statute of limitations is avoided. The Code authorizes the exercise of this power in the furtherance of justice, and the only limitations prescribed by the statute is that when the amendment is effected by conforming the pleading to the facts proved, no substantial change of the claim or defense can be permitted, and that in all cases the amendment must be on such terms as the court deems just.^ And after an action originally brought in a Justice's Court is at issue on an appeal taken to the County Court, that court has the same power to grant any amend- ment to the pleadings which the Supreme Court has in an action pending before it.^ And where the complaint in an action before a Justice's Court sets forth a cause of action of which that court has no jurisdiction, but the cause is there tried without objection, '■ Ryan v. Lewis, 3 Hun, 429; Wood v. Shultis, 4 Hun, 309; Walsli v. Cor- nett, 17 Hun, 37. - Hall V. Olney, 65 Barb. 27. 3 Code of Civil Pro., ^ 2944. '' Simpson v. Rome, Watertown, etc., E. R. Co., 48 Hun, 113. ' Cramer v. Lovejoy, 41 Hun, 581. ' Simpson v. Rome, Watertown, etc., R. R. Co., 48 Hun, 113. Pleadings in a Justice's Couet. 409 Amendments of pleadings in Justice's Court. as being for a cause of action of which the court has jurisdiction, the County Court on an appeal upon the law may amend the complaint to conform to the facts proved.* The general princi- ples governing amendments of pleadings in courts of record apply to amendments in a Justice's Court and on an appeal from a judgment rendered therein.^ ' Argersinger v. Levor, 7 N. Y. Supp. 933. See Hall v. McKechnie, 22 Barb. 244; Doughty v. Crozier, 9 Abb. 411. ' See ante, p. 407. 52 APPENDIX OF FORMS. COMPLAINTS. No. 1. Complaint against maker of a promissory note. See ante, p. 194. SUPREME COURT — County of William Hand, Plaintiff, ugst. John Knox, Defendant. The plaintiff in this action, complaining of the defendant, alleges: That heretofore, and on the day of , 18 , the defend- ant above named, for value received, made and delivered to the plaintiff his promissory note in writing, of which the following is a copy: {Here set out a copy of the note.) That no part of said note has been paid {if a iMyment has teen made, add, except the sum of , which was paid on the day of ,18 .) That there is now due and owing to the plaintiff from the defendant, on said note, the sum of and interest thereon from the day of , 18 , which sum and interest the plaintiff claims, and demands judgment against the defendant therefor, to- gether with his costs and disbursements in this action. JOHN K. JONES, Plaintiff's A ttorney. No. 2. "Verification by party. See ante, p. 59. County of , ss.: William Hand, being duly sworn, says that he is the plaintiff in the above-entitled action; and that the foregoing complaint is true 412 Appendix of Forms. to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. WILLIAM HAND. Subscribed and sworn to before me, ) this day of , 18 . j Andrew White, Notary Public for county. No. 3. Complaint against maker of a promissory note. See ante, p. 194. SUPREME COURT — County of William Hand, Plaintifi, agst. John Knox, Defendant. The plaintiff in this action, complaining of the defendant, al- leges upon information and belief-: That herecofore, and on the day of , 18 , the above-named defendant, at , N. Y., made his certain promissory note in writing, bearing date on that day, whereby, for value received, he promised to pay to William Hand, the plaintiff herein, or to his order, the sum of at , three months after the date thereof, and then and there delivered said promissory note to the plaintifi. That said promissory note, by the terms thereof, became due and payable on the day of , 18 , but the same has not, nor has any part thereof, been paid. Wherefoie the plaintiff demands judgment against the said de- fendant for the sum of , and interest thereon from the day of , 18 , besides his costs and disbursements in this action. JOHN K. JONES, Flainii^'s Attorney. No. 4. Verification by attorney. See cuitc, p. 61. County of , ss.: John K. Jones, being duly sworn, says, that he is the attorney for the plaintifi in the above-entitled action, and that the foregoing complaint is true to his knowledge, except as to those matters Appendix of Foems. 413 therein stated to be alleged on information and belief, and as to those matters he believes it to be true. That said action is founded upon a written instrument for the payment of money only, now in deponent's possession for collection; and that said instrument is the ground of deponent's belief as to all matters not stated upon his knowledge. JOHN K. JONES. Subscribed and sworn to before me, ) this day of , 18 . j Andrew White, Notary Public for county. No. 5. Com.plaint against maker and indorser. See ante, p. 195. SUPEEME COUET — County of Hervey Eeed, Plaintiff, agst. John Knox and Henry Steel, De- fendants. The above-named plaintiff, for a complaint against the above- named defendants, alleges upon information and belief : That heretofore, and on the day of , 18 , at , the said defendant John Knox made his certain promissory note in writing, bearing date on that day, whereby for value received he promised to pay to the order of the said defendant Henry Steel the sum of dollars at the Bank of , in , N. Y., three months after the date thereof, and then and there delivered the said note to the said Henry Steel. That the said Henry Steel afterward indorsed the said note, and the same was thereujion, and before it became due and payable, for value received, duly transferred to the plaintiff. That heretofore, and when the said promissory note by the terms thereof became due and payable, to-wit, on the day of , 18 , the same was presented at the said , where the same was made payable, by a notary public, for payment, and payment thereof demanded by said notary ; but the same was not, nor was any part thereof, paid; whereupon, and on the day last mentioned, the same was protested for non-payment by the said notary, and notice of such presentment, demand, non-payment and protest served upon the said defendant Henry Steel. That the plaintiff incurred an expense of cents for the fees 414 Appendix of Forms. of said notary, for said demand, protest and notice, which remains unpaid. That the above-named plaintiff is now the owner and holder of the said promissory note and that no jjart thereof has been paid. The plaintiff demands judgment against the said defendants for the sum of dollars and cents, and interest from the day of , 18 , besides the costs of this action. J. 0. B., Plaintiff's Attorney. No. 6. Complaint in action by payee against an indorser. See ante, p. 197. {Title of the cause.) Complaining of the defendant, the plaintiff alleges: That heretofore, and on the day of , 18 , one Peter Stone made his promissory note in writing, bearing date on that day, whereby for value received he promised to pay to the order of the plaintiff herein the sum of at the Bank of , at , in months after the date thereof, and then and there de- livered the said note to the defendant herein, who thereupon, for the purpose of giving the said Stone credit with the plaintiff and of inducing the plaintiff to loan and advance to said Stone the sum of money in said note mentioned, indorsed said note and delivered it to the plaintiff, who thereupon became and still is the holder and owner thereof. That thereafter, and when the said promissory note by the terms thereof became due and payable, to-wit, on the day of , 18 , the same was presented at the said , where the same was made payable, by a notary public, for payment, and payment thereof demanded by said notary; but the same was not, nor was any part thereof, paid; whereupon, and on the day last mentioned, the same was protested for non-payment by the said notary, and notice of such presentment, demand, non-payment and protest served upon the said defendant. That no part of said note has been paid. That the plaintiff incurred an expense of cents for the fees of said notary, for said demand, protest and notice, which remains unpaid. The plaintiff demands judgment against the said defendant for the sum of dollars, and cents, and interest from the day of , 18 , besides the costs of this action. J. C. B., Plaintiff's Attorney. Appendix of Forms. 415 No. 7._ Complaint against guarantor of payment of a note. See a7ite, p. 198. ( Title of the cause. ) Complaining of the defendant, the plaintiff alleges: That heretofore, and on the day of , 18 , at , N. Y., one made and delivered to the plaintiff his promissory note in writing, dated on that day, whereby, for value received, he promised to pay to the order of the plaintiff the sum of , three months after the date thereof. That at the same time and place the above-named defendant executed and delivered to the plaintiff an agreement in writing, of which the following is a copy: {Here insert a full coj)y of the guar- anty. ) That said note became due and jDayable on the day of , 18 , and that no part of said note has been paid. Wherefore the plaintiff demands judgment against the defendant for the sum of , and interest thereon from the day of , 18 , together with his costs and disbursements in this action. {Signature plaintiff ' s attorney .) No. 8. Complaint upon a guaranty of collection of a note. See ante, p. 198. {Title of the cause.) Complaining of the defendant, the plaintiff alleges; That heretofore, and on the day of ,18 , at , N.Y., one made and delivered to the defendant herein his promissory note in writing, dated on that day, whereby the said , for value re- ceived, promised to pay to said defendant the sum of , three months after the date thereof. That before the maturity of said note, and on the day of , 18 , the said defendant sold and assigned said note to the plaintiff herein for value, by an instrument in writing dated on that day, containing a guaranty of the collection of said note, of which the following is a copy: {Here insert a copy of the instrument contain- ing the guaranty.) That said note became due and payable on the aay of , 18 ; that on that day payment of said note was demanded of the maker and payment refused, and that said note is still unpaid; that on the day of ,18 , the plaintiff commenced an action in the court, upon said note, against the maker thereof, for the recov- ery of the amount due the plaintiff thereon; that on the day of 416 Appendix of Forms. , 18 , the plaintiff recovered a judgment against the defend- ant in said action for , the amount of said note and interest, and , the costs of said action, in all for ; that on the day of , 18 , an execution against the property of said was duly issued to the shei-iff of the county of , where said resided; and that before the commencement of this action the said execu- tion was returned by said sheriff wholly unsatisfied. That said judgment still remains wholly unpaid and unsatisfied. Wherefore the plaintiff demands judgment against the defendant in this action for the sum of {the amount of the judgment against ^/*« Mff^er) with interest thereon from the day of ,18 .together with his costs in this action. J. C. B., Plaintiff's Attorney. No. 9. Complaint against the drawer and indorser of a check. See ante, p. 197. SUPREME COURT — County of Matthew Carpenter, Plaintiff, agst. James Orr and Henry Deland, De- fendants. Complaining of the defendants, the .plaintiff alleges upon infor- mation and belief : That on the day of , 18 , at , N. Y., the defendant James Orr, for value received, made his check in writing, dated on that day, directed to the Bank of , N. Y., and thereby required said bank to pay to the defendant Henry Deland, or order, the sum of and delivered the same to said defendant Deland; that thereafter the said Henry Deland indorsed said check and delivered the same to the plaintiff for value; that thereafter, and on the day of , 18 , the said check was presented at said bank for payment, and payment thereof was demanded and was refused; whereupon said, check was protested for non-payment, and notice of demand of payment, non-payment and protest was duly given to each of said defendants; that the plaiutiflf incurred an expense of for the costs of such protest; that the plaintiff is now the law- ful holder and owner of said check, and that no part of the same or of the cost of protest has been paid. Wherefore the plaintiff demands judgment against the defendants for , with interest thereon from , and the costs of this action. J. C. B., Plaintiff's Attorney. Appendix of Fokms. 417 No. 10. Complaint by payee of cheek against drawer. See a7tte, p. 197. (Title of the cause.) Complaining of the defendant, the plaintiff alleges: That on the day of , 18 , at , N". Y., the above-named defendant made his check in writing, dated on that day, directed to the Bank of , N. Y., and thereby required said bank to pay to the plaintiff or order the sum of , and delivered the said check to the plaintiff for value. That thereupon, and on the day of , 18 , the said check was presented at said bank for payment and payment thereof was demanded and refused, whereupon, and before the commencement of this action, notice of demand of payment and of non-payment of said check was duly given to said defendant. That the plaintiff is the holder and owner of said check; and that no part thereof has been paid. Wherefore the plaintiff demands jvidgment against the defendant for , with interest thereon from the day of ,18 , and costs of this action. J. C. B., Plaintiff's Attorney. No. 11. Complaint by payee against acceptor of a bill of exchange. See ante, p. 197. ( Title of the cause.) The plaintiff, for a complaint against the defendant, alleges : That on the day of , 18 , at , N. Y., one made his cer- tain bill of exchange in writing, dated on that day, and directed to the defendant above named, whereby he required the said defend- ant to pay to the order of the plaintiff, months after date, the sum of , and delivered said bill to the plaintiff for value, who thereupon became and still is the owner and holder thereof. That afterward and on the day of , 18 , the defendant ac- cepted said bill. That he has not paid the same, or any part thereof. Wherefore the plaintiff demands judgment against the defend- ant for , with interest thereon from the day of , 18 , and costs of this action. J. 0. B., Plaintiff's Attorney. 53 418 Appendix of Forms. No. 13. Complaint for goods sold and delivered. See ante, p. 141. ( Title of the cause. ) Complaining of the defendant, the plaintiff alleges: That heretofore, and between the day of and the day of , 1889, the plaintiff sold and delivered to the defendant certain goods, wares and merchandise, consisting of {state generally the kind of goods sold) of the value of , no part of which sum has been paid. Wherefore the plaintiff demands judgment against the defendant for , with interest from the day of , 18 , besides the costs of this action. {Signature plaintiff's attorney.) No. 13. Complaint for goods sold and delivered. {Title of the cause.) The plaintiff complains of the defendant, and alleges: That on the day of , 18 , at , N. Y., the plaintiff sold and delivered to the defendant, at his request, yards of , for which the defendant promised to pay to the plaintiff the sum of in three months from that date. That said term of credit expired on the day of , 18 , and that the defendant has not paid for said goods, or any part thereof. Wherefore the plaintiff demands judgment, etc. No. 14. Complaint for money loaned. ( Title of the cause. ) First. The plaintiff complains of the defendant, and alleges: That on the day of ,18 , at , the plaintiff loaned to the defendant, at his request, the sum of , which the defendant promised to repay to the plaintiff, with interest, on or before the day of , 18 , and that the defendant has not repaid to the plaintiff said sum, or any part thereof. Second. And for another and further cause of actiou the plain- tiff alleges: Appendix of Forms. 419 That on the day of , 18 , the plaintiff loaned to the defendant, at his request, the sum of , which the defendant promised to repay to the plaintiff, with interest, and that the de- fendant has not repaid the same, or any part thereof. Wherefore the plaintiff demands judgment against the plaintiff for the sum of , with interest on $ thereof, from the day of , 18 , and on $ thereof from the day of , 18 , and the costs of this action. PAUL BROWN, Plaintiff's Attorney. No. 15. Complaint against administrator for money loaned decedent. See Adams v. HoUey, 12 How. 326. SUPEEME COTJET — County of William H. Adams agst. .Mary K. Holley, as Administratrix of the goods, chattels and credits of Jotn M. Holley, deceased. Complaining of the defendant, the plaintiff alleges: That John M. Holley, late of the town of , county of , died intestate therein on or about the day of , 18 , and that thereafter letters of administration of the goods, chattels and credits of said deceased were duly issued by the surrogate of said county to the defendant herein, who thereupon duly qualified and entered upon the discharge of her duties as administratrix of the estate of said deceased.* That the said intestate, at the time of his death, was indebted to the jDlaintiS in the sum of , for money loaned and advanced by the plaintiff to the said intestate at his request; and that no part thereof has been paid to the plaintiff. Wherefore the plaintiff demands judgment, etc. No. 16. Complaint against administrator for money had and received by intestate. See Adams v. Holley, 13 How. 326. (Title and commencement as in preceding form to the *.) That the said intestate, at the time of his death, was indebted to the plaintiff in the sum of for money had and received by said 420 Appendix of Foems. intestate to the use of the plaintiff, and that no part thereof has been paid to the plaintiff. Wherefore the plaintiS demands judgment, etc. No. 17. Complaint against administrator for money paid. See Adams v. Holley, 12 How. 326. {Title and commencement as in form No. lb to the *.) That the said intestate, at the time of his death, was indebted to the plaintiff in the sum of for money paid, laid out and expended by the plaintiff for the said intestate, and at his request, and that no part thereof has been paid to the plaintiff. Wherefore the plaintiff demands judgment, etc. No. 18. Complaint for money paid for defendant's use. {Title of the cause.) The plaintiff complains of the defendant, and alleges: That in the year 18 , the plaintiff was the collector of taxes of the town of , county of , in this State. That on the 15th day of December in that year the board of supervisors of said county delivered to the plaintiff as such collector, the assessment- roll of said town with a warrant attached thereto under the hands and seals of said board of supervisors, commanding the plaintiff as such collector to collect from the several persons named in snch assessment-roll the sums mentioned in the last column of said roll opposite to their respective names, and containing also such other directions as the law prescribes. That the defendant herein was named in said assessment-roll as one of the taxable inhabitants of said town, and the sum of was set down opposite to his name in the last column of said roll as the amount of tax to be paid by the defendant upon his property. That the defendant has not paid to the plaintiff the said tax or any part thereof. That after the expiration of the time for the collection of said taxes, and on or about the day of , 18 , an action was commenced in the Supreme Court by the supervisor of said town against the plaintiff herein, and the sureties upon his official bond, for the recovery of the amount of the defendant's tax; and on or about the day of , 18 , judgment was rendered in said action against the plain- tiff herein, and entered in the clerk's office of the county of for the recovery of the full amount of said tax, to-wit, the sum of Appendix of Forms. 421 That on the day of , 18 , the plaintifE herein was compelled to pay and did pay for the use of the defendant and at his request said sum in satisfaction of said judgment. Wherefore the plaintifE demands judgment against the defendant for the sum of , with interest thereon from the day of , 18 , and the costs of this action. D, C. M., Plaintiff's Attorney. ISTo. 19. Complaint for services rendered for the defendant. See Parron v. Sherwood, 17 N. Y. 227. ( Title of the cause.) The plaintiff complains of the defendant, and alleges: That the defendant is indebted to the plaintifE in the sum of for work, labor and services done and performed for the defendant, at his special instance and request, at the city of Buffalo, by the plaintiff and his servants and agents, at divers times between the day of , 18 , and the commencement of this action, in and about quarrying, dressing, preparing, delivering and laying certain building stones used in and about the erection of defendant's dwell- ing in said city; that the said work, labor and services were reason- ably worth the sum of ; and that the defendant has not paid the plaintiff said sum, or any part thereof, but has hitherto wholly neglected and refused so to do. Wherefore the plaintiff demands judgment against the defendant for the sum of , besides the costs of this action. D. C. M., Plaintiff's Attorney. No. 20. Complaint in action by servant to recover damages for wrongful discharge. {Title of the cause.) The plaintiff complains of the defendant, and alleges: That on or about the day of , 18 , the plaintiff and defend- ant entered into a contract whereby the plaintiff agreed to work for the defendant for six months, commencing on the day of , 18 , and the defendant agreed to employ the plaintiff for that period and to pay him for his services at the rate of $40 per month; that the plaintiff entered upon the performance of said contract on said day of , 18 , and worked for the defendant until the day of , 18 , when the defendi^nt, without just cause, discharged 422 Appendix of Forms. the plaintiff and refused to allow him to render further servicer under said contract, or to complete the same, although the plaintiff was then ready and willing so to do, and refused and still refuses to pay the plaintiff the wages provided for in said contract, or any part thereof. That by reason of the premises the plaintiff has sus- tained damage in the sum of $240. Wherefore the plaintiff demands judgment against the defendant for the sum of $240 and the costs of this action. JAMES MAXWELL, Plaintiff's Attorney. No. 21. Complaint for breach of contract for future employment. (Title of tlie cause.) The plaintiff complains of the defendant, and alleges: That on or about the day of , 18 , the parties to this ac- tion entered into a contract, whereby the plaintiff agreed to sell goods for the defendant as trareling salesman for the period of six months, to commence on the day of , 18 , and the defendant agreed to employ the plaintiff as such salesman for the term afore- said, and to pay him for his services at the rate of one hundred dol- lars per month, and, also, to pay all the necessary expenses of the plaintiff during such employment. That on said day of , 18 , the plaintiff presented himself to the defendant for the purpose of entering upon the performance of his duties as salesman, and was then ready and willing to perform, and then offered to perform, said contract on his part; that the defendant then and there re- fused to perform the contract on his part and to permit the plain- tiff to render the services provided for in said contract, and has refused and still refuses to pay the plaintiff his salary for the term aforesaid, whereby the plaintiff has sustained damage in the sum of six hundred dollars. Wherefore the plaintiff demands judgment, etc. No. 22. Complaint upon an account 8tated4 See ante, p. 147. ( Title of the cause. ) The plaintiff complains of the defendant, and alleges: That prior to the day of , 18 , the plaintiff and defendant had had mutual dealings, and had claims and,demands against each Appendix of Forms. 423 other; that on said day of , 18 , the said parties accounted together, and mutually examined the claims and demands which each had against the other, agreed as to the correctness of said claims and as to the allowance or disallowance thereof, and struck and agreed upon a balance by which it was found that the defend- ant was indebted to the plaintifE in the sum of , which the said defendant then promised to pay. That the defendant has not paid said sum, or any part thereof. Wherefore the plaintiff demands judgment against the defend- ant for , with interest thereon from the day of , 18 , and costs of this action. S, W. J., Plaintiff's Attorney, No. 23. Complaint in action for rent of demised premises. {Title of thecmise.) The plaintiff comijlains of the defendant, and alleges: That on or about the day of , 18 , the plaintiff, by an insti'ument in writing dated on that day, demised and leased to the defendant, and the defendant rented of the plaintiff, the prem- ises known as No. , street, in the city of , for the term of , from the day of , 18 , for the rent of , pay- able quarterly, which rent the defendant covenanted and agreed to pay to the plaintiff as aforesaid. That the defendant entered into possession of said premises on the day of , 18 ; that by the terms of said lease the sum of be- came due and payable to the plaintiff on the day of , 18 , for the rent of said premises for the quarter commencing on the day of , 18 , and ending the day of , 18 , and is wholly unpaid. Wherefore the plaintiff demands judgment against the defendant for the sum of , with interest thereon from the day of , 18 , and the costs of this action. A. B., Plaintiff's Attorney. No. 24. Complaint for use and occupation. ( Title of the cause. ) The plaintiff complains of the defendant, and alleges: That on the day of , 18 , the above-named defendant went into possession of certain premises owned by the plaintiff in the city 424: Appendix of Foems. of Utica, known as No. , street, as the tenant of the plaintiff, under an agreement that he would pay the plaintiff for the use and occupation of said premises whatever the same was reasonably worth. That the defendant continued to occupy said premises with plaintiff's permission from that day until the day of , 18 . That such use and occupation was reasonably worth the sum of . That the defendant has not paid any part thereof. Wherefore the plaintiff demands judgment against the defendant for the sum of , and the costs of this action. A. J. N,, Plaintiff's Attorney. No. 25. Complaint in action for foreclosure of a mortgage. See ante, p. 176. SUPREME OOUET — County of James McNab, Plaintiff, agsl. Jolin Dorn, Mary Dorn, his wife, Henry Kingsland, Emily Kings- land, his wife, Ira Vanderpool, and Asa Holland, Defendants. The above-named plaintiff, for a complaint against the above- named defendants in this action, respectfully shows to this court upon information and belief: First. That the defendant John Dorn, for the purpose of securing the payment to of the sum of dollars, with interest thereon, on or about the day of , 18 , executed and delivered to the said a bond bearing date on that day, sealed with his seal, whereby the said John Dorn did bind himself, his heirs, executors and administrators in the penalty of , upon condition that the same should be void if the said John Dorn, his heirs, executors, or administrators, should pay to the said , his executors, adminis- trators or assigns, the said sum of money first above mentioned, as follows: {Here insert the condition of the lond as to payments.) That as collateral security for the payment of the said indebted- ness the said John Dorn and the defendant Mary Dorn, his wife, on the same day executed, duly acknowledged and delivered to the said a mortgage, whereby they granted, bargained and sold to the said the following described premises, with the appurte- nances thereto, that is to say: {Here insert a description of the mortgaged premises.) That the said mortgage contained the same condition as the said bond, and the further condition that if the said mortgagor should Appendix of Forms. 425 not pay the moneys thereby secured according to the terms thereof then the said , his heirs, executors, administrators, or assigns, were empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from such sale, to pay the said sum of money and interest in and by said bond secured to be paid, with the costs and expenses of the proceedings thereupon, the sur- plus, if any there should be, to be returned to the mortgagor, his heirs, executors, administrators or assigns. [If the bond and mortgage contain an interest clause, add:) And' it was further expressly agreed in and by said bond and mortgage that should default be made in the payment of principal or interest, or any part thereof, on any day when the same was made payable, and should the same remain unpaid and in arrears for the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum of dollars, with all arrearages of interest thereon, should at the option of the said , his executors, administrators or assigns, become due and payable immiediately thereafter, although the period limited, as above set forth, for the payment thereof might not then have expired, any thing therein- before contained to the contrary notwithstanding. {If the ioncl and mortgage contain an insurance clause, and the mortgagee has teen obliged to insure the property, add:) It was further expressly agreed in and by said bond and mortgage that the said mortgagor should and would keep the buildings erected a,nd to be erected upon the lauds described in said mortgage, insured against loss or damage by fire by insurers and in an amount ap- proved by the said , not exceeding dollars, and assign the policy and certificate thereof to the said and his assigns, and that in default thereof it should be lawful for the said to effect such insurance as mortgagee or otherwise, and that the premium or premiums paid for effecting and continuing the same should be a lien on said mortgaged premises, added to the amount secured by said bond and mortgage and 'payable on demand, with interest at six per centum per annum. That said mortgage was duly recorded in the office of the clerk of the county of , on the day of , 18 , in Book No. , of Mortgages, at page . That the said bond and mortgage were on the day of , 18 , and before the commencement of this action, duly assigned to the plaintiff herein for a valuable consideration, and that the plaintiff is now the lawful holder and owner thereof. That on the day of , 18 , the defendants John Dorn and Mary Dorn by a deed dated on that day sold and conveyed the prem- ises described in said mortgage, subject to said mortgage, to the defendant Henry Kingsland, by which deed the said Henry Kings- land covenanted to assume and pay the said mortgage as part of the consideration of said conveyance, which said deed was duly deliv- ered to and accepted by the said Kingsland. That the defendant John Dorn and his grantee Henry Kings- land have failed to comply with the conditions of said bond and 54 426 Appendix of Foems. mortgage by omitting to pay the sum of , which by the terms of said bond and mortgage became due and payable on the day of ,18 ; (that more than days had elapsed after such default before the commencement of this action, and that the plaintiff has elected that the entire principal sum shall become due and payable as iu such case provided in and by said bond and mortgage ; that the said mortgagor failed and neglected to insure the buildings on the premises above described against loss or damage by fire in the sum of , or in any other sum; that the plaintiff, as mortgagee, insured the said buildings against fire for the sum of , and on the day of , 18 , paid as premium for effecting such insurance the sum of ;) and that there is now justly due to the plaintiff upon said bond and mortgage the sum of That no other action has been brought to recover any part of the mortgage debt. {If a prior action has leen brought, omit the last allegation and allege instead :) That heretofore, an action was brought by this plaintiff in the Supreme Court of this State against the said defendant John Dorn for the recovery of said mortgage debt; that ■ on the day of , 18 , final judgment was rendered in said ac- tion for the recovery by the plaintiff from the defendant of the sum of ; that the judgment-roll in said action was duly filed in the office of the clerk of the county of ; that an execution against the jjroperty of the defendant was issued upon said judgment to the sheriff of the county of , (where said defendant then re- sided, or if a non-resident, allege instead, where said judgment-roll was filed, the said defendant then residing without this State) ; that said execution was returned wholly unsatisfied and no part of said judgment has been collected; {or, if part vias collected, omit the last allegntioi, and allege) that the said sheriff collected upon said execution the sum of and returned the same unsatisfied as to the remainder, and that no part of said mortgage debt has been collected except the said sum of That the defendants Henry Kingsland, Emily Kingsland, Ira Vanderpool and Asa Holland have or claim to have some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage. The plaintiff, therefore, demands that the defendants and all per- sons claiming under them subsequent to the commencement of this action may be barred and foreclosed of all right, claim, lien and equity of redemption in said mortgaged premises; that the said premises, or so much thereof as may be sufficient to raise the amount due to the plaintiff for principal, interest and costs, and which may be sold separately without material injury to the parties interested, may be decreed to be sold according to law; that out of the moneys arising from the sale thereof the plaintiff may be paid the amount due on said bond and mortgage, with interest to the time of such payment, and his costs and the expenses of this action so far as the amount of such moneys properly applicable thereto will pay the same; and that the defendants John Dorn and Henry Kingsland Appendix of Fokms. 427 may be adjudged to pay any deficiency which may remain after ap- plying all of said moneys so applicable thereto; and that the plain- tiff may have such other or further relief, or both, in the premises as shall be just and equitable. {Signature plaintiff's attorney.) No. 26. Complaint in action for the partition of real estate. See ante, p. 170. ( Title of the cause.) The complaint of the above-named plaintiff respectfully shows to the court: That on or about the day of , 18 , A. F., late of the town of , county of , died intestate, leaving liim surviving the de- fendant M. F., his widow, and the said plaintiff and the defendants B. F. and T. F., his children, and G. F. and W. F., his grand- children, being children of H. F. , a deceased sou of said A. F., his only heirs at law. That at the time of his death the said A. F. was seized in fee- simple and was in possession of the following described real estate, namely: {here insert a description of the lands sought to be parti- tioned.) That by the death of the said A. F., the plaintiff P. F., and the defendants B. F., T. F., G. F. and W. F., became seized in fee, as 'tenants in common, by descent from the said A. F., of the above- described property. That the defendant M. F., as the widow of said A. F., has a right of dower in the above-described premises, which has never been admeasured. That the plaintiff P. F. is seized in fee of an undivided one- fourth part of the above-described property, subject to said right of dower of the defendant M. F. That the defendant B. F. is seized in fee of an undivided one- fourth part of the above-described premises, subject to said right of dower of the defendant M. F. That the defendant J. F. is the wife of the defendant B. F., and has an inchoate right of dower in the undivided share of her hus- band in said property. That the defendant T. F. is seized in fee of an undivided one- fourth part of the above-described premises, subject to the right of dower of the defendant M. F. That the defendants G. F. and W. F. are each seized in fee of an undivided one-eighth part of the above-described premises, sub- ject to the right of dower of the defendant M. F. That both the defendants G. F. and W. F. are infants under fourteen years of age. 428 Appendix of Forms. That no lands other than those above described are owned by the parties to this action as tenants in common. The plaintiff, therefore, prays that partition of the real property above mentioned and described may be made by and under the direction of this court betvreen the -parties to this action, according to their respective rights and interests therein, and that commis- sioners may be appointed by the court for the purpose of making such partition, or in case a partition of said property; or of any part thereof, cannot be made without great prejudice to the own- ers thereof, then that the said premises, or such part thereof as cannot be divided, may be sold by and under the direction of the court, and that the proceeds of such sale, after paying the costs and expenses of the action, may be divided among the parties entitled thereto, according to their respective rights and interests therein, and that the plaintiff have such other or further relief as may be just in the premises. M. F. P., Plaintiff's Attorney. No. 27. Complaint in action to recover chattels wrongfully taken. See ante, p. 149. {Title of the cause.) The plaintiff complains of the defendant, and alleges : That on the day of , 18 , and at the time of the com- mencement of this action, the plaintiff was the owner and entitled to the immediate possession of the following chattels, namely: {Insert description of the property.) That on said day of , 18 , the defendant wrongfully took the above-described chattels from the plaintiff's possession, and wrongfully detains the same from the plaintiff. That the value of the chattels so taken and detained is , and that the defendant has sustained damage by reason of such wrongful detention in the sum of Wherefore the plaintiff demands judgment against the defend- ant for the recovery of the possession of said chattels, with dollars damages for the detention of the same, and the costs of this action, or in case possession thereof is not delivered to the plaintiff, that he recover of the defendant the sum of as the value of said chattels, with dollars damages for the detention thereof, and the costs of this action. J. P. A., Plcmitiff's Attorney. Appendix of Forms. 429 No. 28. Complaint in action for conversion. See ante, p. 152. {Title of the cause.) The plaintiff complains of the defendant, and alleges: That on the day of ,18 , the plaintiff was the owner and in possession of the following described iDroperty, namely: {Insert description of the property.) And that said property was reason- ably worth the sum of That on said day of , 18 , the defendant wrongfully and unlawfully converted said property to his own use, whereby the plaintiff sustained damage in the sum of Wherefore the plaintiff demands judgment against the defend- ant for the sum of , and the costs of this action. B. D. S., Plaintiff's Attorney. No. 29. Complaint for malicious prosecution. See a7ite, p. 155. {Title of the cause.) The plaintiff complains of the defendant, and alleges: That on or about the day of , 18 , the defendant above- named appeared before , a justice of the peace of the town of , county of , at his office at , in said town, and then and there made a complaint against the plaintiff' herein, charging the plaintiff with having, on the day of , 18 , at , N. Y., committed the crime of petit larceny, by stealing from the defend- ant's place of business at aforesaid, a certain , the property of the defendant, of the value of $ That upon said complaint, tlie said justice issued his warrant for the arrest of this plaintiff, and that upon said warrant the plaintiff was arrested by a constable of said town and taken before said magis- trate, and was there arraigned and held to bail for his further ap- pearance before said magistrate on the day of , 18 . That on said day of , 18 , the plaintiff appeared before said magistrate, then holding a Court of Special Sessions, and was then and there by said court tried for the offense of petit larceny charged in said complaint. That the defendant herein attended said trial with counsel and conducted the prosecution of this plaintiff thereon; and that on said trial this plaintiff was found not guilty of the offense charged, and said criminal proceeding was then and there finally terminated by the acquittal and discharge of the plaintiff herein. 430 Appendix of Fokms. That said charge of larceny was wholly false and unfounded; that the defendant herein made said charge and caused the arrest, im]msonmeut and prosecution of the plaintiff therefor, maliciously and without probable cause. That by reason of said malicious and unfounded criminal prose- cution by this defendant the plaintiff has suffered great damage and has been caused great mental distress, loss of time, physical discomfort, and expense. Wherefore the plaintiff demands judgment against the defend- ant herein for dollars damages.'and his costs in this action. A. B., Plaintiff's Attorney. No. 30. Complaint in action of interpleader. See ante, p. 190. SUPKEME COUET— County op Jolin Henry Small, Plaintiff, agst. Robert Morss and Harriet Earl, as Administratrix of the goods, chat- tels and credits of John Earl, de- ceased, Defendants. The above-named plaintiff, for a complaint against the defendauts in this action, alleges : That in the month of June 1887, the plaintiff herein purchased of John Earl, at , E". Y., certain goods, wares and merchan- dise at an agreed price, for which he promised to pay said Earl, the sum of four hundred and twenty dollars on the 1st day of Janu- ary, 1888. That said John Earl died on or about the 15th day of December, 1887. That the defendant Eobert Morss claims to be entitled to payment of the said sum of four hundred and twenty dollars by virtue of an instrument in writing, purporting to have been executed by said Earl on the 4th day of December, 1887, and to assign to said Morss all books of account of said Earl and all moneys due or to grow due to said Earl upon the accounts therein contained. That the defendant Harriet Earl also claims to be entitled to the payment of the said sum of four hundred and twenty dollars, as the administratrix of the goods, chattels and credits of John Earl, deceased, under and by virtue of letters of administration duly issued to her by the surrogate of the county of Fulton on the 9tii day of January, 1888; and also claims that the said instrument purporting to assign the book accounts of said John Earl to the defendant Robert Morss, was obtained by fraud. Appendix of Forms. 431 and is Toid. That each defendant in this action has demanded of the plaintiff payment of the said sum of four' hundred and twenty dollars, and each defendant threatens to commence an action agamst the plaintiff for the recovery of said sum; that the plaintiff has no claim upon said sum; is indifferent as between the defendants; has no interest in either of their respective claims or in the disposition of the subject of such claims; that he is justly indebted to one of the defendants in the said sum of four hun- dred and twenty dollars, and is ready to pay the same to the de- fendant lawfully entitled thereto, and does not bring this action by collusion with either; but that the plaintiff is ignorant of the respective rights of the defendants, and cannot determine, without hazard to himself, to which of them the said money rightfully be- longs; and, therefore, the plaintiff offers to bring such money into court, to be disposed of as the court may direct, and prays that the defendants and each of them be enjoined from maintaining any action against the plaintiff for the recovery of the sum claimed by them; that the defendants be decreed to interplead and settle their respective rights; and that the plaintiff recover his costs in this action. Y. Z., Plaintiff's Attorney. ISTo. 31. Complaint on undertaking given on appeal. See ante, p. 38. SUPERIOE COURT OF THE CITY OP NEW YORK. Ellen A. Lyons, as Administratrix of tlie goods, chattels and credits of Ralph Lyons, deceased, agst. William Caliill. Plaintiff complains of the defendant, and alleges on information and belief: I. That on on about October 6, 1877, in an action then pend- ing in the Court of Common Pleas for the city and county of New York, wherein this plaintiff was plaintiff, and William Lynch was defendant, judgment was duly given in favor of this plaintiff and against said Lynch for $696.84. II. That said Lynch, feeling aggrieved thereby, took an appeal from said judgment to the General Term of said Court of Common Pleas, and for the purpose of staying this plaintiff's proceedings upon said judgment, the defendant herein and one Patrick Kilgore, as sureties, did together with said Lynch as principal, execute an undertaking under and pursuant to sections 1325 and 1327 of the 432 Appendix of Forms. Code of Civil Procedure, whereby they, said Lynch, Kilgore and Cahill, did jointly and severally, pursuant to the statute in such case made and provided, undertake that said appellant would pay all the costs and damages which might be awarded against him, said Lynch, on said appeal, not exceeding 1500; and did also under- take that if the judgment so appealed from, or any part thereof, should be aiHrmed or said appeal dismissed, said appellant would pay the sum directed to be paid by the judgment, or the part thereof as to which judgment should be affirmed. Which under- taking was executed by said sureties on or about October 'ZT, 1877, and was, thei-eupon, on the same day, duly verified and ac- knowledged by them in all things pursuant to law. And, there- upon, said undertaking was duly filed by said Lynch in the office of the clerk of said Court of Common Pleas on said October 37, 1877, and a copy thereof, together with notice of filing the said original, was duly served upon this plaintiff's attorneys in said action, and thereupon this plaintiff's proceedings upon said judg- ment became and were stayed, pending said appeal. III. That such further proceedings were thereafter had in said action that on or about the 9th day of February, 1887, said judg- ment so appealed from was in all things duly affirmed, with $62 costs, which were duly awarded against the appellant in said appeal. IV. That notice of entry of said judgment of affirmance and a copy thereof were duly served upon the attorney for the appellant on said appeal on or about February 11, 1887, and that more than ten days have elapsed since such service. Wherefore, the plaintiff demands judgment against said defend- ant for the sum of $758.84, with interest on 1696.84 from October 8, 1877, and on $62 from February 9, 1887, besides costs. L. & K., Plaintiff's Attorneys. ANSWERS. No. 32. Answer — general denial. See mite, pp. 226-330. ( Title of the cause.) The above-named defendant, for an answer to the plaintiff's com- plaint in this action, denies (upon information and belief) each and every allegation in said complaint contained. C. D., Attorney for Defendant , No. 432 street, Utica, N. Y. {If the complaint is verified, add verification to the answer as fol- lows:) Appendix of Forms. 433 County of Oneida, ss.: E. F., being duly sworn, says tliafc he is the defendant in this action; that the foregoing answer is true to his knowledge excej^t as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. E. F. Subscribed and sworn before me, this day of , 1890. D. W., Notary Public in and for Oneida Co., N. Y. No. 33. Speciflc denials. See ante, pp. 226-230. (Title of the cause.) The above-named defendant, for an answer to the plaintiff's com- plaint in this action, denies that he made the promissory note men- tioned in said complaint, or that he delivered the same to the payee therein named; and alleges that whether said note was at its maturity presented at the Bank for payment, or whether pay- ment thereof was then and there demanded or refused, or whether said note was duly protested, or whether notice of presentment, demand, non-payment or protest was given to any person, or whether the plaintiff is the holder and owner thereof, he has no knowledge or information sufficient to form a belief. {Signature and office address of attorney .) [Verification.) No. 34. Ans'wer setting up the statute of limitations. See ante, p. 252. {Title of the cause.) The above-named defendant, for an answer to the complaint in this action, alleges: That the cause of action set forth in said complaint did not ac- crue, nor did any part thereof accrue, at any time within (six) years next preceding the commencement of this action. A. K., Defendant's Attorjiey. No. 48 street, Buffalo. {Add verification, if the complaint is verified.) 55 434 Appendix of Foems. No. 35. Answer of payment. See ante, p. 335. * [Title of the cause.) The above-named defendant, for an answer to the complaint in this action, alleges: That on or before the day of , 18 , he fully paid and satisfied the claim or demand set forth in said complaint as the plaintiff's cause of action. A. K., Defendanfs Attorney. No. street, New York. [Add verification, if the complaint is verified.) No. 36. Answer in replevin. Cattle distrained doing damage. See ante, p. 353. ( Title of the cause. ) First. For an answer to the complaint in this action the defend- ant admits and alleges: That the plaintiff is the owner of the cattle mentioned and described in the complaint and sought to be recovered in this ac- tion, and that the defendant took said cattle into his possession and detained them from the plaintiff as hereinafter stated but not otherwise. And the defendant alleges that on the day of , 18 , the defendant was and still is lawfully possessed of certain lands situated in the town of , county of , in this State ; that on said day said cattle were unlawfully upon said lands and were distrained by the defendant while doing damage thereupon: that for the purpose of making such distress the defendant took said cattle into his possession, kept them in a secure place, and detained them from the plaintiff until the day of , 18 , when they were taken from the defendant's possession by the sheriff of said county under and in obedience to a requisition to replevy issued to him on behalf of the plaintiff in this action. That the taking and detention in making the distress as aforesaid is the pretended wrongful taking and detention alleged in the plaintiff's complaint as constituting his cause of action. S ECOND. And for a further answer to said complaint the defend- ant denies each and every allegation therein contained not herein- before expressly admitted. V. P., Defendanfs Attorney. Angola, N. Y. {Add verification, if the complaint is verified.) Appendix of Forms. 435 No. 37. Answer of title in third person in action of trover. See ante, p. 253. {Title of the cause.) First. The defendant, for an answer to the complaint in this action, denies each and every allegation in said complaint contained. Second. And further answering said complaint, the defendant alleges: That at the times mentioned in said complaint the defendant was the sheriff of the county of ; that the property mentioned in said complaint and therein alleged to have been wrongfully taken and converted by this defendant was, at the time of said alleged taking and conversion, the property of one Y. Z. That thereto- fore, and on the day of , 18 , a judgment was duly rendered in an action pending in the Supreme Court in which one A. B. was plaintiff and said Y. Z. was defendant,for the recovery by said plaintiff from said defendant of the sum of damages and costs; that on that day the judgment-roll in said action was duly filed and said judg- ment was duly docketed in the office of the clerk of the county of , where said defendant, Y. Z., then resided; that an execution against the property of the said Y. Z. was on the day of , 18 , duly issued on said judgment to the defendant herein, as such sheriff, whereby he was commanded and required to satisfy said judg- ment out of the personal property of the said Y. Z., or if sufficient thereof could not be found, then out of the real property of said judgment-debtor; that on the day of , 18 , this defendant, as such sheriff, and under and in obedience to the requirements of said execution, levied upon certain personal property of the said Y. Z., which is the same property mentioned and referred to in the complaint in this action, and after giving due notice of sale, sold said property at public sale and applied the proceeds upon said judgment. That the acts so done by the defendant as such sheriff are the same acts mentioned in the plaintiff's complaint as constituting his cause of action and all of the same. P. P., Attorney for the Defendant. {Office address.) {Add verification, if the complaint is verified.) No. 38. Partial defense to action for assault and battery. See atite, pp. 221, 222. {Title of the cause.) First. For a partial defense to the entire complaint in this ac- tion the defendant alleges: 436 Appendix of Forms. That at the time and place stated in said complaint this defend- ant was engaged in a private conversation with one 0. P., upon busi- ness matters; that the plaintiff, who was a total stranger to defend- ant and had no connection with or interest in the negotiations then in progress, officiously and offensively interfered therewith, and when civilly requested by defendant to attend to his own affairs, became greatly enraged, called this defendant a liar and a swindler, and was still continuing in the use of insulting and abusive lan- guage and in applying opprobrious epithets to defendant, when the defendant under said provocation struck the plaintiff and knocked him down; that defendant used no other force or violence toward the plaintiff, and that the blow so struck constitutes the alleged cruel wounding and beating of the plaintiff set forth in the com- plaint, and all of the same. Second. For a further answer to said complaint the defendant denies each ;],nd every allegation in said complaint contained not hereinbefore expressly admitted. {Signature and office address.) No. 39. Answer setting up an equitable defense in foreclosure. See ante, p. 238. {Title of the cause.) The above-named defendant for a separate answer to the com- plaint in this action admits and alleges: That on or about the day of , 18 , the defendant made and delivered to the plaintiff the bond mentioned and described in the complaint in this action; that as collateral security for the pay- ments therein covenanted he executed and delivered to the plain- tiff the mortgage mentioned and described in said complaint; that said mortgage was recorded in the office of the clerk of county on the day of , 18 ; that the sum of dollars principal, and the further sum of for interest on the principal sum re- maining unpaid, became due and payable by the terms of said bond and mortgage on the day of , 18 ; and was not then paid nor during the days next following; that by the terms of said bond and mortgage the entire principal sum with all interest accrued thereon became, at the plaintiff's election, due and payable on the day of , 18 ; and that no part of such principal or interest has been paid. And this defendant, further separately answering said complaint, alleges, that after the execution and delivery of said bond and mort- gage as above admitted, and on the day of ,18 , this defendant by a deed dated on that day, and on that day recorded in the office of the clerk of county in Book No. of Deeds, at page , sold and conveyed to the defendant the lands and premises described in Appendix of Forms. 437 said mortgage, and in the complaint in this action, subject to said mortgage, wliich mortgage, by a covenant contained in said deed, and as a part of the consideration therefor, the said assumed and agreed to pay, satisfy and discharge; that the plaintiff herein had full notice of snch sale and conveyance, and of the assumption of the mortgage by the said , and of his covenant and agree- ment to pay, satisfy and discharge the mortgage debt. That after such notice to the plaintiff, and after said bond and mortgage had become due and payable by i-eason of default in pay- ment of principal and interest as hereinbefore stated, and on or about the day of ,.18 , the plaintiff and the defendant without the consent of this defendant, entered into an agreement •whereby, in consideration of the execution by tiiesaid defendant of a mortgage upon certain personal property as additional security for the payment of said mortgage debt, the plaintiff agreed to ex- tend and did extend the time of payment of the moneys due upon said first-mentioned mortgage for one year, and jjromised and agreed that he would not, before the expiiration of said year, fore- close said mortgage or sue upon said bond. That during the year for which the time of payment of said mortgage was extended, the plaintiff and defendant had other dealings with each other, in which the jjersoual property described in said chattel mortgage was, without the consent of this defendant, transferred to the plaintiff, and the mortgage canceled and discharged. That by the extension of the time of payment of said first-men- tioned mortgage by the plaintiff as aforesaid, the rights of this de- fendant as surety tor the payment of the mortgage debt were greatly prejudiced and impaired, and this defendant was discharged from all liability upon said bond, for any deficiency which may arise upon the foreclosure of said mortgage and the sale of the lands therein described. A. B., Defendant's Attorney. Bath, N. Y. {Add verification, if complaint is verified.) Xo. 40. Answer setting forth former recovery and a counterclaim. See ante, p. 245. ( Title of the cause. ) First. The above-named defendant, for an answer to the plain- tiff's complaint in this action, alleges : That the plaintiff and defendant, on the day of ,18 , en- tered into an agreement, under their hands and seals, dated on that day, whereby the plaintiff leased and rented to the defendant the premises described in the complaint in this action, for a term of three years, commencing on the day of , 18 ; and the defendant. 438 Appendix of Forms. in consideration of such leasing and renting, covenanted and agreed to pay to the plaintiff the yearly rent of $1,000, in equal quarterly payments, at the expiration of each quarter. That the defendant entered into possession of the premises under the lease. That de- fendant made default in the payment of the rent for the quarters ending on the day of , 18 , and the day of , 18 , re- spectiyely; that afterward, and on the day of , 18 , the plain- tiff commenced an action in the Supreme Court against the defend- ant to recover the rent due for the quarter ending on the day of , 18 , and on the day of , 18 , recovered judgment in said action against the defendant for the sum of , being the amount of the rent for said first-mentioned quarter, and the costs of said action, which judgment defendant has fully paid and sat- isfied of record. That afterward, the plaintiff commenced this action to recover from the defendant the rent stipulated to bo paid for the quarter ending on the day of , 18 , which was due and unpaid at the time of the commencement of said former action. And the defendant avers that the proceedings and judgment in said former action and the payment and satisfaction of the judg- ment therein by this defendant, are a bar to a recovery in this action. Second. And for a further answer to said complaint, and as a counterclaim to the supposed cause of action therein set forth, the defendant alleges\upon information and belief : That at the times hereinafter stated, 0. P. and H. K. were co- partners engaged in business at , N. Y., under the firm name of P. & K. ; that between the day of , 18 , and the day of , 18 , the said firm sold and delivered to the plaintiff at his request a quantity of sash, blinds, doors, lumber, and other build- ing material for which the plaintiff promised to pay the said firm the sum of ; that no part of said sum has been paid; that 0. P. died on or about the day of . 18 , and that H. K. as surviv- ing partner of the firm of P. & K., on' the day of , 18 , and before the commencement of this action, sold and assigned to the defendant the aforesaid demand of the said firm against the plain- tiff herein. Wherefore the defendant demands judgment against the plaintiff for the sum of and. his costs of this action. Y. Z., Attorney for Defendant. 114 street, Utica, N". Y. County of , .s'.v..- C. D., being duly sworn, says that he is the defendant in this action, that the foregoing counterclaim is true to his knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. C. D. Subscribed and sworn before me, ) this day of , 18 , \ J. P., Notary PiMic in and for county, N. T. Appendix of Fobms. 439 REPLY. No. 41. Reply to a counterclaim. See ante, p. 289. {Title of the cause.) First. The above-named plaintiff for a reply to the counterclaim set forth ;in the answer to the complaint in this actioUj^between the numerals "IV" and "V/' denies each and every allegation in said counterclaim contained. Second. And for a reply to the counterclaim last in order stated in said answer and designated by the numeral " V," the plaintifE alleges that the promissory note, a copy of which is set forth in said counterclaim, was fully paid by the plaintifE before the commencement of this action. A. B., Plaintiff's Attorney. ( Verification.) County of , ss.: 0. B., being duly sworn, says that he is the plaintifE in this ac- tion; that the foregoing reply is true to his knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. C. B. Subscribed and sworn to before me, ) this day of ^ 18 . f John Daw, Notary Public, county. DEMURREES. No. 42. Demurrer to complaint on various grounds. See ante, p. 204. {Title of the cause.) The above-named defendant demurs to the complaint of the plaintiff in this action upon the following grounds, which appear upon the face thereof, viz.: First. That the court has not jurisdiction of the person of the defendant. Second. That the court has not jurisdiction of the subject of the action. Third. That there is another action pending between the same parties for the same cause. 440 Appendix of Forms. Fourth. That the complaint does not state facts sufficient to constitute a cause of action. A. B., Attorney for Defendant) No. 421 street, Troy, N. Y. No. 43. Demurrer for misjoinder of parties plaintiff. See ante, p. 309. (Title of the cause. ) The above-named defendant demurs to the complaint of the plain- tiffs in this action upon the ground that it appears upon the face thereof that there is a misjoinder of parties plaintiflf in the joinder of the plaintiff L. B., with the other plaintiffs above named, because the said L. B. is shown to have no cause of action jointly with the other plaintiffs, and the sole cause of action set forth in said com- plaint is averred to be in such other plaintiffs exclusive of the said L. B. U. B., Attorney for Defendant. ( Office address. ) No. 44. Demurrer for defect of parties defendant. See ante, p. 209. ( Title of the cause. ) The above-named defendant demurs to the complaint in this ac- tion upon the ground that it appears upon the face thereof that there is a defect of parties defendant (arising from the omission to join as defendant A. B., the person who purchased the property in question at the sale alleged in said complaint). {Signature and office address.) No. 45. Demurrer to a counterolaim or defense. See ante, p. 282. ( Title of the cause. ) FiKST. The plaintiff demurs to the counterclaim contained in the defendant's answer to the complaint in this action upon the fol- lowing grounds appearing upon the face thereof, viz. : 1. That the court has not jurisdiction of the subject of said counterclaim; and Appendix of Forms. 441 2. That the counterclaim does not state facts sufficient to con- stitute a cause of action. Second. The plaintiff demurs to the defense consisting of new matter contained in said answer, and designated therein as " a second and further defense to the cause of action set forth in the first count of the complaint in this action," on the ground that said defense is insufficient in law upon the face thereof. A. B., Plaintiff's Attorney. No. 46. Demizrrer to reply. See ante, p. 291. {Title of the cause.) The above-named defendant demurs to the reply to the counter- claim contained in the answer in this action upon the ground that said reply is insufficient in law upon the face thereof. Y. Z., Defendant's Attorney. No. 44 street, Albany, N. Y. NOTICES, DEMANDS, AFFIDAYITS, PETITIONS, OE- DERS, ETC. No. 47. Notice of appearance and demand of copy complaint. See ante, p. 293. {Title of the cause.) Sir: — Take notice, that I have been retained by and appear for the defendant in this action and demand a copy of the com- plaint therein. Yours, etc., Y. Z,, Attorney for the Defendant. No. 44 street, Albany, N. Y. No. 48. Affidavit of service of summons and complaint. See ante, p. 373. {Title of the cause.) State of New York, ) County of Oneida, ) Richard Hart, being duly sworn, says, that he is over (twenty- 56 4:4:2 Appendix of Foems. one) years of age; that at the times and places hereinafter named, he served the annexed summons, together with the complaint therein mentioned, which is hereunto annexed, on the following defend- ants in this action, viz.: On , at ,N. Y.jOnthe day of , 18 ; on , at , N. Y., on the day of , 18 ; on , at , N. Y., on the day of , 18 , by delivering a copy of the same to each of such defendants personally, and leaving the same with them. And de- ponent further says, that he knew the persons served as aforesaid, to be the persons mentioned and descriljed in said summons as the defendants in this action. {Signature of deponent.) Subscribed and sworn to before me, ) this day of , 18. \ J. H., Notary Public, Oneida county, JV. Y. No. 49. Affidavit of service of summons and complaint in action for divorce. See ante, p. 382. ( Title of the cause. ) State of New York, ) County of , [ ^^" Henry Eoberts, being duly sworn, says, that he is over years of age; that on the day of , 18, at , N. Y., he served the annexed summons, together with the complaint therein mentioned, which is also hereunto annexed, on the defendant in this action, by delivering a copy of the said summons and complaint to such de- fendant personally, and leaving the same with And depo- nent further says, that he knew the person served as aforesaid to be the defendant in this action, from the following facts and cir- cumstances, viz.: (That during the year 18 , deponent and the par- ties to this action resided in the same ; that during that time the said parties, to deponent's personal knowledge, resided together, and were commonly known and recognized as husband and wife; and the person served by deponent with the summons and com- plaint as above stated, was then spoken of by , and friends and acquaintances, as the of the plaintiff.) HENEY EOBERTS. Subscribed and sworn to before me, ) tliis day of , 18 . ) Nathan Caktek, Notary PuUic, county. Appendix of Forms. 443 No. 50. AflB-davit to obtain extension of time to answer. See ante, p. 296. SUPEEME COUET. Tliomas Thomas agst. , Eicliard Jones. I J State of New Yoek, County of Oneida, Paul Brown, being duly sworn, says, that he is the attorney for the defendant herein, and resides in the city of Utica, N. Y. That the complaint in this action was served on or about the day of ,18 ; that the place of trial designated therein is the county of Oneida; that the time appointed for holding the next Circuit in said county is the day of , 18 ; that no previous application has been made for an order extending the time to an- swer herein, and no extension of time to answer or demur has been granted by stipulation or order; {or, if this is not according to the fad, state luhat extensions haue heen granted) that owing to {state the reccsons lohxj an extension is required) deponent has been unable to prepare and serve an answer herein, and desires an order extend- ing the time to do so (twenty) days; that from the statement of the case in the action made to deponent by the defendant, depo- nent verily believes that the defendant has a good and substantial defense upon the merits, to the cause of action set forth in the com- plaint, or to some part thereof. PAUL BEOWN. Subscribed and sworn to before me, this day of , 18 . Owen Gkiepiths, Notary PiMic, Oneida county. No. 51. Order extending time to answer. See ante, p. 298. Upon the foregoing affidavit, it is ordered: That the defendant's time to answer herein be and hereby is ex- tended days {and, if any previous extension has ieen had, add) and that date of issue he twenty days after the service of the com- plaint. Dated the day of , 18 . A. B. , {Justice Suprevie Coiirt.) 444 Appendix of Foems. No. 53. Demand of a copy of an account. See ante, p. 77. {Title of the cause.) SiK: — Please take notice that I demand a copy of the account alleged in the complaint in this action. Yours, etc., D. M., Defendant's Attorney. ( Q-ffice address. ) To J. M. C, Esq., Plaintiff's Attorney. No. 53. Copy of account funished on demand. See ante, p. 77. (Title of the cause.) Sib: — Please take notice that the following is a copy of the ac- count alleged in the plaintiff's complaint in this action, to-wit: {here set out the items, giving date and amount of each item as far as possible.) Dated (August 14, 1889.) Yours, etc., J. M. C, Plaintiff's Attorney. To D. M., Esq., Defendant' s Attorney. {If the complaint is verified, the copy account should l?e verified as folloivs:) COUSTTT OF , ss. : A. B., being duly sworn, says, that he is the plaintiff in the above- entitled action, and that he belieyes that the account, of which the foregoing is a copy, is true. {Signature.) Subscribed and sworn to before me, ) this day of , 18 . \ P. K. , Notary PxiMic, county. No. 54. Affidavit to obtain order for a bill of particulars. See ante, p. 87. {Title of the cause.) John Dodge, being duly sworn, says, that he is the defendant in the above-entitled action; that the summons and complaint therein Appendix of Fobms. 445 were served upon deponent on or about the day of , 18 ; and that no answer to said complaint has yet been served; {or, if the defendant has anstvered, state that fact) tliat an aflBdavit of merits herein was made by deponent and filed in the office of the clerk of county, on the day of , 18 , and a copy thereof was served on the attorney for the plaintiff on the day of , 18 . That this action is brought to recover (state the nature of the action. ) That in the complaint served upon this deponent it is alleged generally that (state the several allegations as to iuhich the party de- sires fu Her particulars. ) That deponent has no knowledge of the particulars of the claim so alleged against him, and will be unable to properly prepare (his answer to said complaii^t, or) for the trial of this action, unless the plaintiff shall be required to furnish deponent with a bill of par- ticulars of said claim. (Jurat.) JOHN DODGE. No. 55. Notice of motion for a bill of particiilars. See ante, p. 87. ( Title of the cause. ) Sir: — Take notice, that upon the affidavit of the defendant John Dodge, with a copy whereof you are herewith served, and upon the complaint heretofore served in this action, this court will be moved at the next Special Term thereof, to be held at the in the of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order requiring the plaintiff to deliver to the defendant's attorney, within a time therein specified, a bill of the particulars of the plaintiff's claim in this action (duly verified by the oath of the jDlaintifl), or for such other or further order or relief as the court may grant in the prem- ises (with costs of this motion). Dated the day of , 18 . Yours, etc., TWIST & DODGE, Defendant's Attorneys. No. 411 street, Buffalo, N. Y. To George Towne, Esq., Plaintiff's Attorney. 446 Appendix of Foems. No. 56. Order for a bill of particulars. See ante, p. 88. At a Special Term of the Supreme Court, held at the in the of , on the day of , 1890. Present^Hon. , Justice. SUPREME COURT. William Skinner agst. John Dodge. On reading and filing the affidavit of John Dodge, the complaint in this action, and the notice of this motion, with proof of due ser- vice thereof upon the plaintiff's attorney, and after hearing Twist & Dodge, the attorneys for the defendant, in support of the motion, and George Towne, Esq , attorney for the plaintiff, in opposition thereto, it is Ordered, that the plaintiff deliver to the defendant's attorney, within (twenty) days from the entry of this order and notice thereof, a bill of the particulars of the j)laintiff's claim (duly verified), stating the {here insert the matters as to lohich the defendant desires a more particular statement) ; and that the plaintiff be precluded from giv- ing evidence in regard to such matters upon the trial other than is specified in such bill of particulars. No. 57. Petition for a discovery of books, etc. See ante, jj. 94. SUPREME COURT. Harvey Hoyt agst. Byron Raymond. To the Supreme Court of the State of New York: The petition of Byron Raymond respectfully shows to the court: That your petitioner is the defendant in the above-entitled action; that the summons and complaint therein were served upon him on Appendix of Foems. 4J:7 the day of , 18 , and that the time to answer said complaint will expire on the day of , 18 . That your petitioner is the owner of lands situated near the vil- lage of in the county of , through which flows a stream which has long been used by the petitioner and his grantors to fur- nish power for a grist-mill located upon the bank of said stream and upon the lands of the defendant herein; that a dam across said stream at the mill above mentioned was recently carried away by a flood, and your petitioner has been engaged in rebuilding the same; that the plaintitf is the owner and in possession of lands lying along said stream above the lands of your petitioner; and has brought this action to restrain your petitioner from rebuilding and restoring said dam to its former height, and alleges in his complaint as one of the grounds for the relief therein demanded, that the rebuilding and restoration of said dam would cause the waters of said stream to flow back upon and over the lands of the plaintiff, to his damage. And your petitioner further shows, that one Reuben Eudd was on and prior to the 3d day of June, 1870, the owner of all the lands along said stream now owned by the parties to this action; and while such owner and on or about the 3d day of June, 1870, the said Eudd sold and conveyed the lands now owned by the plaintiff herein to one Elijah Davis, the plaintiff's grantor, by a deed containing a reservation to said Eudd, his heirs and assigns, of the right to back water tipon and over the lands so conveyed, to an extent therein limited and defined, by a dam then in process of construction at the site of the dam now being rebuilt by your peti- tioner; that afterward, the said Elijah Davis conveyed to the plain- tiff the lands so purchased 'by him of said Eudd, by a deed contain- ing, after a description of the land conveyed, the following clause, viz. : " Subject, however, to all rights of flowage reserved by Eeaben Eudd in and by a conveyance of the above-described premises bear- ing dale the 3d day of Jnne, 1870." That after the conveyance of said lands by Eudd to Davis as above stated, and on the 1st day of January, 1879, the said Eudd sold and conveyed the remainder of his land to your petitioner by a deed containing, in addition to the usnal words of conveyance and at the end of the description of the property conveyed, the fol- lowing clause, viz. : " Together with all and singular the rights and privileges to back water npon or over the lands now owned and occupied by Elijah Davis, reserved to the party of the first part, his heirs and assigns, in and by a conveyance of said last-mentioned lands to said Davis, bearing date the 3d day of June, 1870." And your petitioner further shows, that the complaint in this action is verified; that your petitioner desires to interpose a verified answer thereto, setting forth among other things his right to re- build, restore and maintain said dam as it was formerly constructed and maintained, and a right to back water on and over the lands of the plaintiff, and the extent and limits of such right; that your petitioner is not possessed of all the facts necessary to enable him to state under oath the exact nature, extent and limit of such right; iiS Appendix of Foems. that the particular information wliicli he requires is contained in tlae deed from Reuben Rudd to Elijah Davis; and that the petitioner cannot obtain such information elsewhere; that such deed is not in the possession or under the control of the petitioner, but is in the possession or under the control of the plaintiff herein; that said deed has not been recorded; that said Eeuben Rudd and Elijah Davis are both dead; that an inspection of said deed is necessary to enable the petitioner to properly frame an answer to the complaint in this action; that he has applied to the plaintiff for leave to in- spect said deed, and that such inspection was refused. And your petitioner further shows, that he has fully and fairly stated the case in this action to , Esq., defendant's counsel in this action, who resides at , I^. Y., and that he has a good and substantial defense upon the merits thereof, as he is advised by his said counsel, and verily believes; and that he is also advised by his said counsel, and verily believes, that a discovery and inspection of said deed is necessary to enable the petitioner to properly frame an answer to the complaint in this action. That the place of trial designated in the complaint is in the county of , in which the next Circuit is appointed to be held on the day of , 18 . Wherefore your petitioner prays that an order be granted by this court requiring the plaintiff to produce said deed from Reuben Rudd to Elijah Davis, and allow your petitioner to inspect the same, and to take a copy thereof, and to that end that all other proceedings in the action on the part of the plaintiff be in the meantime stayed, and that your petitioner have such other or fur- ther order or relief as to the court may seem just and proper in the premises. Dated this day of , 18 . BYRON" RAYMOND. State of New Yoek, ) . County of, ) ' ' Byron Raymond, being duly sworn, says, that he is the petitioner mentioned in and who subscribed the foregoingpetition; that said petition IS .true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. BYRON RAYMOND. Subscribed and sworn to before me, this day of , 18 . John McOahil, Notary Public, county. Appendix of Fokms. 449 No. 58. Order to show cause why an inspection should not be granted. See ante, p. 96. At a Special Term of the Supreme Court, held at the , in the of , on the day of , 18 . Present — Hon. , Justice. SUPKEME COURT. Harvey Hoyt agst. Byron Raymond. On reading and filing the petition of the defendant, Byron Ray- mond, bearing date the day of , IB , and on motion of , Esq., attorney for said petitioner, it is Ordered, that the plaintiff in this action allow the defendant, or his attorney, to inspect and take a copy of a certain deed, mentioned in said petition, executed by Reuben Rudd to Elijah Davis on or about the 3d day of June, 1870, conveying certain lauds now owned by said plaintiff; or that in default of such inspection, with copy, the plaintiff show cause before this court at the Special Term thereof appointed to be held at the , in the of , on the day of , 18 , at the opening of the court, why the prayer of said petition should not be granted. And it is further ordered, that a copy of this order and of said petition be served upon the plaintiff's attorney on or before the day of , 18 . And it is further ordered, that all proceedings on the part of the plaintiff be stayed until the hearing of said application. No. 59. Order for an inspection on return of order to show cause. See ante, ]}. 97. ( Title and caption as in preceding form. ) An order having heretofore and on the day of ,18 , been granted in this action upon the petition of the defendant therein, bearing date the day of , 18 , directing the plaintiff in this action to allow the defendant or his attorney to inspect and take a copy of a certain deed executed by Reuben Rudd to Elijah Davis on or about the 3d day of June, 1 870, or in default thereof, to show cause before this court at this term why the prayer of said pe- tition should not be granted. 57 450 Appendix of Foems. Now ujoon the return of said order to show cause, aud after read- ing and filing the same and the petition upon which it was granted (and proof of due service of a copy of said order and petition upon the plaintiff's attorney on the day of ,18 ), and upon also reading and filing the affidavit of the plaintiff verified on the day of , 18 , and after hearing of counsel for the defendant in support of the application, and of counsel for the plaintiff in opposition thereto, and no sufficient cause having been shown why the prayer of said petition should not be granted, it is Okdbeed, that the plaintiff in this action produce at the office of , defendant's attorney, in the of , N. Y., on the day of ,18 , at o'clock in the noon of that day, a certain deed, executed by Eeuben Eudd to Elijah Davis, on or about the 3d day of June, 1870, conveying to said Davis certain lands now owned by the plaintiff in this action; and that the said plaintiff then and there permit the defendant, or his attorney, at any time between said hour and o'clock in the noon of that day, to inspect said deed and to take a copy of so much thereof as relates to a reserva- tion by the grantor of a right to back water upon and over lands thereby conveyed. And it is further ordered, that a copy of this order be served upon the plaintiff and upon his attorney on or before the day of , 18 ; that said order shall operate as a stay of all other pro- ceedings in this action until such order shall have been complied with or vacated; that be and is hereby appointed a referee to direct and superintend such inspection with copy; and that the plaintiff pay to the defendant $10 costs of this motion and (twenty) dollars in addition thereto for the fees of such referee. No. 60. Notice of motion to strike out irrelevant matter. See ante, p. 362. (Title of the cause. ) SiE: — Take notice, that upon the pleadings heretofore served in this action, the plaintiff will apply to this court at a Special Term thereof, to be held at the , in the , of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order striking out, as irrelevant, with costs of motion, the following allegations or parts of allegations contained in the answer to the complaint in this action, viz.: FiHST. The last paragraph of the first defense in said answer reading as follows: {Quote the matter desired to he stricken out.) Second. {82Kcify in some convejiient manner all other matter de- sired to le stricTcen out.) Dated ,18 . Yours, etc., A. B., Plaintiff's Attorney. To 0. D., Esq., Defendant's Attorney. Appendix of Foems. 451 No, 61. Order striking out irrelevant matter. See ante, p. 365. ( Caption and title of the cause. ) On reading and filing the complaint and answer in this action, the notice of this motion, and proof of due service thereof, and af- ter hearing A. B. , of counsel for the plaintiff, in support of the motion, and C. D., of counsel for the defendant, in opposition thereto, it is Ordeked, That the following parts of the answer of the defend- ant in this action be stricken out as irrelevant, viz. : {Here specify the parts elimina.ted.) And it is further ordered, that the defendant pay to the plaintiff $10 costs of this motion. No. 62. Notice of motion to make answer more definite and certain. See ante, p. 369. {Title of the cause.) Sir: — Take notice, that upon the pleadings heretofore served in this action, the plaintiff will apply to this court at a Special Term thereof, to be held at the , in the of , on the day of ,18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order requiring the defendant to make his answer more definite and certain by amendment in the follow- ing particulars, viz.: {Here point out the parts of the pleading deemed too indefinite and uncertain) or such other or further re- lief as the plaintiff may be entitled to in the premises, with costs of motion. Dated , 18 . Yours, etc., A. B., Plaintiff's Attar 7iey. To 0. D., Defendant's Attorney. No. 63. •Order reqiuring answer to be made more definite and certain. See ante, p. 370. {Caption.) {Title of_ the cause.) On reading and filing the pleadings heretofore served in this ac- tion, fhe notice of this motion (and proof of due service thereof). 452 Appendix of Forms, and after hearing A. B., of counsel for the plaintiff, in support of the motion, and 0. D., of counsel for the defendant, in opposition thereto {or, and no one appearing in opposition thereto), it is Obdbeed, That the defendant amend his answer so as to make the same more definite and certain in the following particulars, viz.: {State the particular amendment required) and that the defendant pay to the plaintiff $10 as costs of this motion. No. 64. Notice of motion to strike out answer as sham. See a7ite, p. 353. {Title of the cause.) Sir: — Take notice that on the pleadings heretofore served in this action, and on the affidavit of and , with copies of which you are herewith served, an application will be made to this court at a Special Term thereof, to be held at the , in the of , on the day of , 18 , at the opening of court, or as soon thereafter as counsel can be heard, for an order striking out the answer heretofore served herein as sham, with costs of motion, or for such other or further order or relief as may be proper in the premises. Dated , 18 Yours, etc., A. B., Plaintiff's Attorney. To C. D., Defendant's Attorney. No. 65, Order striking out answer as sham. See ante, p. 354. At a Special Term, etc. {as in form JVb. 56.) {Title of the cause.) On reading and filing the jjleadings in this action, the affidavits of , and the notice of this motion, and after hearing A. B., of counsel for the plaiutiflP, in support of the motion, and C. D., of counsel for the defendant, in opposition thereto, it is Oedbred, That the answer to the complaint in this action be and hereby is stricken out as sham, with $10 costs of this motion. Appendix of Fokms. 453 No. 66. Ifotice of a motion at Special Term for judgment on a frivolous pleading. See ante, p. 357. (Title of the cause.) Sir: — Take notice, that on the pleadings heretofore served in this action, an application will be made to * this court at a Special Term thereof, to be held at the in the of , on the day of , 18 , at the opening of the court, f or as soon thereafter as counsel can be heard, for judgment upon the answer {or, demurrer, or reply) to the in this action, with costs as of a motion, or for such other or further relief as may be just. Dated , 18 Yours, etc., A. B., Attorney. To C. D., Esq., Attorney. {Office address.) No. 67. Notice of application to judge for judgment on a frivolous plead- ing. See ante, p. 357. {As in preceding form to the* and add) Hon. 0. P., a judge {or justice) of this court, at his chambers in the of , on the day of , 18 , at o'clock in the noon {and conclude as in preceding form from the f). No. 68. Special Term order for judgment on a frivolous pleading. See ante, p. 359. (Caption and title of cause as in form No. 56.) On reading and filing the pleadings heretofore served in this ac- tion, the notice of this apj^lication (and proof of due service thereof on the attorney for the ), and on motion of , of counsel for the (and after hearing , of counsel for the , in opposi- tion thereto), it is Ordered, adjudged and determined, That the answer {or demurrrer, or reply) to the complaint (or answer) in this action is 454 Appendix of Forms. friTOlous; that the plaintiff {or defendant) is entitled to judgment {here state the judgment to be entered), with $10 costs of this appli- cation; and that judgment be entered accordingly. No. 69. Judge's order for judgment on a frivolous plpading. {Title of the cause.) On reading and filing, etc. {as in preceding form to the end, with addition of date, signature of judge or justice, and official title. ) No. 70. Notice of motion to strike out reply as unauthorized. See ante, pp. 290, 293. ( Title of the cause.) Sir: — Take notice, that upon the pleadings heretofore served in this action, a motion will be made at a Special Term of this court, to be held at the in the of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order striking out the reply of the plaintiff to the counterclaim set up in the defendant's answer, with costs, upon the ground that said reply sets forth new matter inconsistent with the complaint heretofore served by the plaintiff {or upon the ground that said reply sets up a counterclaim to the counterclaim con- tained in said answer), and is unauthorized by the Code of Civil Procedure. {Date.) Yours, etc., C. D., Defendant's Attorney. {Office address.) To A. B., Esq., Plaintiff's Attorney. No. 71. Order striking out a reply as unauthorized. ( Caption and title of cause as in form No. 56.) On reading and filing the pleadings in this action, and upon mo- tion of C. D., attorney for the defendant therein, and after hearing A. B., attorney for the plaintiff, in support of the motion, it is Appendix of Forms. 455 Ordbeed, That the reply of the plaintifE to the counterclaim con- tained in the defendant's answer be and is hereby stricken out as unauthorized by the Code of Civil Procedure, with $10 costs of mo- tion to be paid by the plaintifE to tlie defendant. No. 72. Notice of election to treat answer as a nullity for defective veri- fication. See ante, p. 64. {Title of the cause.) Sir: — Take notice, that the plaintiff elects to treat the within {or annexed) copy of the defendant's answer as a nullity, and re- turns the same to you for the reason that the copy of the yerifica- tion thereof is insufficient in the following particulars, namely: {Here point out the defects complained of. ) {Date.) Yours, etc., A. B., Plaintiff's Attorney. To C. D., Esq., Defendant's Attorney. No. 73. Notice of application for leave to file supplenaental answer. See ante, p. 344. SUPREME COURT. John Odell agst. Leonard Dunn. Sir: — Take notice, that on the complaint and answer heretofore served in this action, the affidavit of the defendant herein, a copy of which is herewith served, and upon the proposed supplemental answer, a copy of which is also herewith served upon you, an appli- cation will be made to this court at a Special Term thereof, to be held at the in the of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order granting leave to the defendant to serve a supplemental answer, a copy of which is herewith served upon you, setting forth, in addition to the defenses stated in the original answer heretofore served, and as a bar to the cause of action stated in the complaint, 456 Appendix of Forms. the recovery by this defendant of a judgment against the plaintiff herein, before , Esq., a justice of the peace of the town of and county of , on the day of , 18 , for dollars dam- ages and costs, or for such other or further order or relief as the court may grant in the premises. Dated this day of , 18 . C. D., Defendant's Attorney. To , Esq. , Plaintiff's Attorney. {Address.) No. 74. Aflldavit to obtain leave to file supplemental answer. See ante, p. 345. SUPREME COURT. John Odell agst. Leonard Dunn. "1. County of , ss.: Leonard Dunn, being duly sworn, says, that he is the defendant in the above-entitled action, that said action is brought to recover $10,000 as damages for the alleged negligent and unskillful treat- ment of the plaintiff by the defendant as a physician and surgeon, as more fully appears by the complaint herein. That the summons and a verified complaint in this action were served personally on deponent on the day of , 18 ; that on the day of ,18, deponent appeared in said action by , as his attorney, and served an answer to said complaint, duly veri- fied, whereby deponent admitted that he was at the times stated in the complaint a physician and surgeon, practicing as such at , N. Y.; that as such physician and surgeon he was employed by the plaintiff to attend and treat him for the ailments from which he was then suffering, and did treat him therefor for five weeks, and undertook and agreed to use and exercise in such employment all reasonable and ordinary care and skill ; and also alleged that de- ponent did use and exercise in such employment such care and skill; and denied each and every other allegation in said complaint contained. And deponent further says, that since the service of said answer upon the plaintiff, and on the day of , 18 , deponent com- menced an action against the plaintiff herein before , Esq., a justice of the peace of the town of , county of , to recover from Appendix of Forms. 457 the plaintiff herein the sum of dollars, for the services rendered by deponent as such physician and surgeon in attending upon and treating the plaintiff herein for the ailments and under the em- ployment mentioned in the complaint herein; that the plaintiff in this action appeared in the action before said justice upon the re- turn day of the summons and joined issue therein, and procured an adjournment of the trial thereof until the day of , 18 ; that on said day of , 18 , said action was tried before said ^ justice, and a judgment was on that day duly rendered in said ac- tion for dollars damages and costs in favor of the plaintiff in said action, the defendant herein, and against the defendant in said action, the plaintiff herein; that said justice had jurisdiction of said action; that no appeal has been taken from the judgment rendered therein; and that said judgment is unreversed. And this deponent further says, that he desires to set forth the recovery of said judgment before said justice as a bar to this action by way of a supplemental answer to the complaint herein, and in addition to the answer heretofore served. LEONARD DUlSriSr. Subscribed and sworn to before me, this day of , 18 . Martih' p. Kincaid, Notary Public, county. No. 75. Order granting leave to serve supplemental answer. See ante, p. 340. At a Special Term of the Supreme Court held at the , in the of , on the day of , 18 : Present, Hon. , Justice. SUPREME COURT. John Odell agst. Leonard Dunn. On reading and filing the complaint and answer heretofore served in this action, the affidavit of Leonard Dunn, the defendant in this action, the notice of this motion, the defendant's proposed supplemental answer, the affidavits of John Odell and Henry Hart, and after hearing , of counsel for the defendant, in sup- port of said motion, and , of counsel for the plaintiff, in oppo- sition thereto, it is Ordeeed, That leave be and is hereby granted to the defendant to serve upon the plaintiff within ten days from the date of this 458 Appendix of Foems. order, the supplemental answer read upon this motion on payment to the plaintiff of 110 costs of this action (and on serving with such answer a stipulation on the part of the defendant that the plaintiff may at any time within five days thereafter enter an order discontinuing said action without costs to either party as against the other). And it is further ordered, that unless said answer (and stipula- tion) shall be served and said motion costs paid within the time above limited, that then and in that case this motion is denied with $10 costs, to be paid to the plaintiff by the defendant. No. 76. Supplemental answer setting up judgment in bar. See ante, p. 245. SUPEEME COUKT. ~\ John Odell agst. Leonard Dunn. The above-named defendant for a supplemental answer to the complaint in this action, and for a further defense to the cause of action therein stated, alleges: That at the times hereinaifter mentioned the parties to this action resided in the town of , county of , in this State. That on the day of , 18 , an action in which the defend- ant herein was plaintiff, and the plaintiff herein was defendant, was commenced before , Esq., a justice of the peace of said town, by the personal service of a summons issued by said justice on the defendant therein, at , in said county. That on the return day of said summons the parties appeared before said justice and joined issued in said action. The plaintiff therein filed with the justice a complaint in writing setting forth as his cause of action a demand for services rendered by him, as physician and surgeon, for the defendant therein, and at his re- quest, in attending and treating said defendant for certain injuries from which he was suffering, between the day of , 18 , and the day of ,18 , and alleging that said services were reason- ably worth the sum of dollars, and demanding judgment there- for. The defendant for an answer to said complaint denied each and every allegation thereof. That said action was thereupon by consent of parties adjourned by said justice to the day of _ , 18 , upon which day it was brought to trial before the justice upon the issues raised by said pleadings, and such proceedings Appendix of Forms. 459 were duly had that on the day of , 18 , said justice duly rendered judgment in favor of the phiintifl and against the de- fendant in said action for $ damages, and 8 costs, which judgment remains in full force, and is unreversed. That the services stated in the comijlaint filed with the justice and for which judgment was rendered in favor of the plaintiif in that action as above stated, are the same services mentioned and referred to in the complaint of the plaintiff in this action and which he alleges were so carelessly, negligently and unskillfully performed as to cause the damage for which he seeks to recover in this action; and this defendant alleges that all the issues in- volved in this action were conclusively determined and adjudicated in his favor by the judgment rendered in said action before said, justice. C. D., Defendafifs Attorney. (Address.) No. 77. Notice of motion for leave to amend the complaint. See ante, p. 318. (Title of the cause.) Sie: — Take notice, that on the pleadings heretofore served in this action, and upon the aiiidavit of , and the proposed amended complaint, copies of which are herewith served, an application will be made to the court at a Special Term thereof to be held at the , in the of , on the day of , 18 , at the open- ing of the court, or as soon thereafter as counsel can be heard for an order permitting the plaintiff to amend his complaint in this action (by inserting therein a statement of the facts necessary to charge the defendant, Y. Z., with the payment of any deficiency which may arise upon the sale of the premises described in the mortgage, sought to be foreclosed in this action), as stated in the- proposed amended complaint herewith served, or that the plaintiff have such other or further relief as may be just. (Date.) Yours, etc., A. B., Attorney for the Plaintiff. To C. D., Esq., Attorney for the Defendant. (And to E. P., Esq., Attorney for the Defendants .) 460 Appendix of Foems. No. 78. Afla.davit on application for leave to amend complaint. See ante, p. 319. (Title of the cause.) ( Venue.) G. H., being duly sworn, says, that he is the plaintifE in the above- entitled action, and that said action is brought {state object of the action). That the summons and complaint herein were served upon the above-named defendants {state time and mode of service). That the defendants appeared in said action by , their attorney, and served an answer to said complaint {state the fact as to the time and mode of service). That the time to amend said complaint once as of course expired on the day of , 18 . That {allege the existence of the facts or cause of action which the jplaintiff proposes to set forth tw the amended pleading). That the plaintifE desires to amend his complaint so as to set forth these facts therein. That {state the excuse for the omission of these facts from the original complaint). {Jurat.) {Signature.) No. 79. Order granting leave to amend the complaint. See ante, p. 330. {Caption and title as in form No. 56.) On reading and filing the pleadings heretofore served in this ac- tion, the affidavit of the plaintiif therein {specify all papers used on the motion), and after hearing , of counsel for the plaintifE, in support of the motion, and , of counsel for the defendant, in opposition thereto, it is Ordered, That leave be and is hereby granted to the plaintifE to amend his complaint in this action by {here specify the amendment permitted) and to serve a copy of the same upon the defendant within days from the date hereof, on payment to the defendant of 110 costs of this motion and {specify the other terms imposed, if any). Appendix of Fokms. 461 No. 80. Notice of motion to strike out amended, answer. See mite, J). 312. {Title of the cause.) Sie: — Take notice, that on the affidavit of , with a copy of which you are herewith served, and on the pleadings heretofore served in this action {specify all other papers to be used on the mo- tion), an application will be made to this court, at a Special Term thereof, to be held at the in the of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order striking out the amended answer served in this action on the day of , 18 , with costs of motion, upon the ground that said amended answer was made and served solely for the purpose of delay, and to deprive the plaintiff of the next (Circuit) for which said action is {or may be) noticed for trial, or for such other or further order or relief as to the court seems just. {Date.) Yours, etc., A. B., Plaintiff's Attorney. To 0. T>., Defendant's Attorney. Xo. 81. Affidavit on motion to strike out amended answer. See ante, p. 314. {Title of the cause.) County of , ss.: A. B., being duly sworn, says, that he is the attorney for the plaintiff in the above-entitled action; that the summons and com- plaint therein were served upon the defendant personally on the day of , 18 fas appears by the certificate of the sheriff of the county of , thereto attached); that the defendant appeared therein by of , his attorney, on the day of , 18 (that being the last day on which to answer said complaint, and requested an extension of time to answer; that a stipulation was thereupon entered into by the attorneys for the several parties to this ac- tion, extending the defendant's time to answer, twenty days; that on the day of , 18 , the defendant's attorney served upon de- ponent an order made by Hon. , extending the defendant's time to answer, twenty days) ; that on the day of ,18 , that being the last day upon which service of the answer could be made within the time allowed therefor, the defendant served an answer to said complaint (containing no counterclaim); that the place of trial designated in the complaint in this action is the county of ; that the next term of this court at which this action could be 462 Appendix of Forms. brought to trial m said county is the Circuit appointed to be held at on the day of ,18 (tliat after the service of the an- swer as aforesaid, and on the day of , 18 , deponent served personally upon the defendant's attorney a notice that this action would be brought to trial at said Circuit); that on the day of , 18 , the defendant's attorney served upon deponent an amended answer to the complaint herein (that the amendment of the original answer consists in the omission from the amended answer of the defense of failure of consideration set forth in the original an- swer) ; that deponent verily believes (from the defendant's delay in serving the original answer, from the nature of the amendment thereof, and from ), that the answer in this action was amended for the purpose of delay, and to deprive the plaintiff of the benefit of the Circuit for which he has noticed {or may notice) this cause for trial; and that if said amended answer is allowed to stand as the defendant's answer in this action, the j)laintiff will lose the benefit of said Circuit. (Sic/nature.) Subscribed and sworn to before ) me, this day of , 18 . j P. B., Notary Puhlic. ISTo. 83. Order striking out amended ans'wer. See ante, ]). 313. {Caption and title of the cause as in form No. 58. ) On reading and filing the pleadings in this action, the notice of this motion, the affidavit of and {specify all other papers read on the motion) and after hearing , of counsel for the plaintiff, in support of the motion, and , of counsel for the defendant, in opposition thereto, it is Oedeked, That the original answer served by the defendant on the day of , 18 , stand as his answer in this action as if no attempt to amend the same had been made; and that the amended answer served by the defendant on the day of , 18 , be and is hereby stricken out, with $10 costs of this motion to be paid by the defendant to the plaintiff. No. 84. Order denying motion to strike out amended answer, ( Caption and title of the cause as in form No. 58. ) On reading and filing the {specify the papers read on the motion) and after hearing , of counsel for the plaintiff, in support of Appendix of Foems. 463 the motion, and , of counsel for the defendant, in opposition thereto, it is Obdbeed, That said motion be and the same is hereby denied, with $10 costs, to be paid to the defendant by the plaintiff (within days after service of a copy of this order). No. 85. Notice of motion f oi: dismissal of complaint for non-service. See ante, p. 371. {Title of the cause.) Sir: — Take notice, that on the summons, notice of appearance and demand of a coiDy of the complaint heretofore served in this action, and upon the affidavits of and , with copies whereof you are herewith served, a motion will Tje made at a Special Term of this court, to be held at , in the of , on the day of ,18 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order dismissing the complaint in this action for a failure to serve the same upon the defendant's attorney within twenty (or forty) days after demand thereof, with costs of said motion. (Date.) Yours, etc., C. D., Defendant's Attorney {Office address.) To A. B., Esq., Plaintiff's Attorney. No. 86. Afladavit of failure to serve the complaint after demand. See ante, p. 371. {Title of the cause.) County of , ss.: C. D., being duly sworn, says, that he is the attorney for the de- fendant in the above-entitled action ; that the summons in said action was served without the complaint upon the defendant, per- sonally, at , N. Y., on the day of , 18 , as appears by the affidavit of the defendant thereto attached; that on the day of , 18 , deponent served the annexed notice of appearance and demand of a copy of the complaint in this action upon , the attorney for the plaintiff, by delivering a copy of the same to him 464 Appendix of Forms. personally at his office in , and leaving the same with him (or, if service was by mail), by depositing a copy of the same, properly inclosed in a post-paid wrapper, in the post-oflBce, at , where deponent resides, directed to , the plaintifE's attorney, at , N. Y., that being the oflSce and post-office address designated by the plaintifE's attorney upon the summons in this action. That more than twenty (or forty) days have elapsed since the service of said demand as aforesaid, and no copy of the plaintifE's complaint has been served upon deponent. {Jurat.) {Signature). No. 87. Order dismissing complaint for non service. See ante, p. 371. {Caption and title of the cause as in form No. 58.) On reading and filing the summons, notice of appearance and demand of a copy of the complaint in this action, the affidavits of and , the notice of this motion (and proof of due ser- vice thereof upon the plaintifE's attorney), and after hearing C. D., of counsel for the defendant, in support of said motion, and A.B., of counsel for the plaintifE, in opposition thereto {or, no one ap- pearing for the plaintifE, in opposition thereto) it is Ordered, That the complaint of the plaintifE in this action be and is hereby dismissed, with 110 costs of motion to be paid by the plaintifE to the defendant. No. 68. Afldavit of failure to file suramons and complaint. See ante, p. 303. {Title of the cause.) H. H., being duly sworn, says, that he is the defendant in the above-entitled action: that the summons and complaint therein were served upon him personally on the day of , 18 ; that said action is pending in the (Supreme) Court; that the county desig- nated in the summons as the place of trial of said action is the county of ; that more than ten days have elapsed since said summons and complaint were served upon deponent, and that the plaintifE has failed and neglected to file said summons and com- plaint, or either of them, with the clerk of (said county). That deponent desires that an order be granted requiring the filing of Appendix of Foems. 465 said summons and complaint within a time specified in the order, or that iu default thereof said summons and complaint be deemed abandoned; that deponent has made no previous application for such order. {Jurat.) {Signature of defendant.) No. 89. Order requiring the filing of the summons and complaint. See ante, p. 304. (Title of the cause.) tjpon the foregoing affidavit it is Ordered, That the summons and complaint in this action be filed with the clerk of (the county of ) within days after the service of this order upon the plaintiff's attorney, or that in de- fault thereof said summons and complaint be deemed abandoned. {Date.) {Signature, etc., of judge.) No. 90. Notice of defendant's demand of judgment in replevin. See ante, p. 223. {Title of tlie cause.) Sir:- — Take notice, that the defendant demands judgment for the return of the chattels replevied in this action and delivered to the plaintiff, (or to the claimant, , or for the value of said chattels, in case possession thereof is not delivered to the defend- ant, and for dollars damage for the detention thereof, and for his costs in this action. E. P., Defendant's Attorney To 0. D., Esq., Plaintiff's Attorney. {Office address.) No. 91. Notice of application to the court for judgment on default. See ante, p. 375. {Title of the cause.) Sir: — Take notice, that upon the summons and complaint in this action, and upon {specify all the papers to he used upon the 59 466 Appendix of Foems. application) an application will be made to this court at a Special Term thereof (or at the Circuit) to be held at the , in the of , on the day of , 18 , at the opening of the court, or as soon thereafter as counsel can be heard, for judgment by default for the relief demanded in said complaint. Dated this day of , 18 . Yours, etc., A. B., Plaintiff's Attorney. To 0. D., Esq., Defendant's Attorney. Eo. 92. Demand of notice of execution of reference or writ of inquiry. See ante, p. 377. {Title of the cause). Sir: — I hereby demand that notice of the time and place of the execution of any reference or writ of inquiry which may be granted upon an application to the court for judgment in this action, be served upon me pursuant to section 1219 of the Code of Civil Procedure. Dated this day of , 18 . Yours, etc., {Signature of defendant, agent, or attorney.) {Office address.) To , Esq., Plaintiff's Attorney. No. 93. Notice of execution of order of reference, etc. See ante, p. 377. ( Title of the cause. ) Sir: — Take notice, that , Esq., the referee duly appointed by an order of this court made in the above-entitled action on the day of , 18 (with a copy whereof you are herewith served), to {state the object of the reference), will attend at the office of , in the of on the day of , 1830, at o'clock in the ' noon, and will then and there execute said order and (take the proof, or account, or make the computation, or assessment) as in said order directed. Dated this day of , 18 . Yours, etc., A. B., Plaintiff s Attorney. To C. D. {Attorney or Agent for) Defendant. Appendix of Foems. 467 No. 94. Notice of motion to open default and allow defendant to answer. See ante, p. 383. (Title of the cause.) Sik: — Take notice, that on the summons and complaint hereto- fore served in this action, and on the aflBdayits of and , and the proposed answer of the defendant, with copies of which you are herewith served, an application will be made to this court, at a Special Term thereof, to be held at the in the of , od the day of , 18 , at the opening of the court, or as soon there- after as counsel can be heard, for an order setting aside the judg-, ment entered against the defendant in this action for a failure to answer, and allowing him to serve an answer to the complaint herein, and defend said action, or for such other or further relief as may be just. Dated this day of , 18 Yours, etc., C. D., Defendant's Attorney. {Office address.) To A. B., Esq., Plaintiff's Attorney. No. 95. Order opening default and allowing defendant to answer. See ante, p. 386. {Caption and title of cause as in form No. 56.) On reading and filing {specify all papers read on the motion), and after hearing O. D., of counsel for the defendant, in support of the motion, and A. B., of counsel for the plaintiff, in opposition thereto, it is Ordeeed, That the judgment for $ , entered by the plaintifE against the defendant in this action, on the day of , 18 , in the clerk's office of the county of , upon default of the defend- ant to answer the complaint herein, be vacated and set aside, and the defendant be allowed to serve an answer to said complaint, and to defend this action, on payment to the plaintiff of $ , costs in- cluded in said judgment, and $ , costs of this motion, within days from the date of this order. No. 96. Affidavit of defendant's failure to appear. {Title of the cause.) OOUNTT OF , ss.: A. B., being duly sworn, says, that he is the attorney for the 468 Appendix of Foems. plaintiff in the above-entitled action, and that the defendant has not appeared therein. {Jurat.) (Signature.) No. 97. Judgment by clerk on failure of defendant to appear. See ante, p. 372. SUPREME COURT. Harvey P. McEl wain [judgment ,18 , at h agst. William H. Henderson. \ M. m. The summonSj with a copy of the complaint in this action, having been personally served on the defendant, William H. Henderson, more than twenty days previous hereto, exclusive of the day of ser- vice, and the defendant not having appeared therein. Now on motion of , plaintiff's attorney, it is hereby adjudged that the plaintiff, Harvey P. McElwain, recover of the defendant, William H. Henderson, the sum of dollars and cents, with dollars and cents, costs and disbursements, amounting in all to dollars and cents, and have execution therefor. , Clerk. PLEADINGS IN JUSTICE'S COURT. No. 98. Complaint in Justice's Court See ante, p. 394. IN JUSTICE'S COURT — Before , Esq., Justice. James H. Perkins agst. Theodore Hoffman. The plaintiff complains of the defendant, and alleges: That at the time of the commencement of this action the plain- tiff was a resident of the town of , county of Appendix of Forms. 469 That on the day of , 18 , at (in said county), the plain- tiff purchased of the defendant a horse, and paid him therefor the sum of $ That at the time of said purchase, the defendant represented and warranted that said horse was only five years of age, was a good saddle-horse and suitable for a lady to ride, and was free from all defects, and sound. That at the time of said warranty and sale, the said horse was fourteen years of age, had never been used or broken as a saddle- horse, was not suitable for a lady to ride^, and was not sound and free from defects, and was spavined and lame. That by reason of the facts above stated, the plaintiff has sus- tained damage in the sum of $ Wherefore the plaintiff demands judgment against the defendant for $ , and his costs in this action. No. 99. Answer of accord and satisfaction, in Justice's Court. See a7ite, p. 396. IN JUSTICE'S COURT — Before , Esq., Justice. James H. Perkins agst. Theodore Hoffman. -J For an answer to the complaint in this action, the defendant alleges: That on the day of , 18 , defendant sold a horse to the plaintiff for $ ; and that afterward, and before the commence- ment of this action, the plaintiff claimed that defendant, at the time of such sale, warranted said horse to be sound, broken to the saddle, and only five years of age, as stated in the complaint in this action, and that said horse was not sound, was not broken to the saddle, and was more than five years of age, and demanded of the defendant $ as damages for the breach of said warranty. That defendant thereupon paid to the plaintiff and the plaintiff received from the defendant I in full satisfaction and discharge of his claim for damages sustained by reason of such alleged breach of warranty. That the claim so satisfied and discharged is the same claim upon which the plaintiff seeks to recover in this action. 470 Appendix of Foems. No. 100, Demurrer in a Justice's C!ourt. See ante, p. 404. {Title of the cause.) The defendant demurs to the complaint of the plaintiff in this action, upon the ground that it does not state facts sufficient to constitute a cause of action {or, upon the ground that it is not suf- ficiently explicit to be understood.) INDEX TO APPENDIX OF FORMS. Account, Page. Demand of copy account 444 Copy account furnished on demand 444 Verification of account , 444 Affidavit, Of service of summons and complaint 441 Of service of summons and complaint in divorce 442 To obtain extension of time to answer 433 To obtain order for bill of particulars 444 To obtain leave to file supplemental ansT?er 456 On application for leave to amend complaint 460 On motion to strike out amended answer 461 Of failure to serve summons after demand 463 Of failure to file summons and complaint 464 Of defendant's failure to appear 467 Answers, General denial 432 Specific denials 433 Statute of limitations 433 Payment 434 In replevin — cattle distrained doing damage 434 In trover — title in third person 435 Assault and battery — partial defense 435 In foreclosure — equitable defense 436 Former recovery and counterclaim 437 Supplemental answer — judgment in bar 458 Accord and satisfaction — Justice's Court 469 Bill of Particulars, AiB.davit to obtaiu order for 444 Notice of motion for 445 Order for 446 Complaint, Against maker of a promissory note 411, 413, 413 Against maker and indorser of a promissory note 413 By payee against an indorser 414 Against a guarantor of payment of a note 415 Upon a guaranty of collection of a note 415 4-72 Index to Appendix of Foems. Complaint — (Continued). Page. Against drawer and indorser of check 416 By payee of check against drawer 417 By payee against acceptor of bill of exchange 417 For goods sold and delivered 418 For money loaned 418 Against administrator for money loaned decedent 419 Against administrator for money had and received by intestate 4iy Against administrator for money paid 430 For money paid for defendant's use 420 For services rendered 421 For wrongful discharge of servant 421 For breach of contract for future employment 432 Upon an account stated 422 For rent 423 For use and occupation 423 For foreclosure of mortgage on lands 424 For partition of lauds , 427 To recover chattels wrongfully taken 428 In action for conversion , 429 For malicious prosecution 429 In action of interpleader 430 On undertaking given on appeal 431 In Justice's Court 468 Demand, Of copy complaint, and notice of appearance , 441 Of copy account 444 Of judgment in replevin — defendant's notice 465 Of notice of execution of reference or writ of inquiry 466 Demurrer, Want of jurisdiction — another action pending — -no cause of action stated , 439 Misjoinder of parties plaintiff 440 Defect of parties defendant 440 To counterclaim or defense 440 To reply 441 In Justice's Court 470 Judgment, By clerk on failure of defendant to appear 468 Notice, Of appearance and demand of copy complaint 441 Of motion for bill of particulars 445 Of motion to strike out irrelevant matter 450 Of motion to make answer more definite and certain 451 Of motion to strike out answer as sham 452 Of motion at Special Term for judgment on frivolous pleading 453 Of application to judge for judgment on frivolous pleading 453 Index to Appendix of Forms. 473 Notice — (Continued). Page. Of motion to strike out reply as unautliorized 454 Of election to treat answer as a nullity for defective verification 455 Of application for leave to file supplemental answer 455 Of motion for leave to amend complaint 459 Of motion to strike out amended answer 461 Of motion for dismissal of complaint for non-service 463 Of defendant's demand for judgment in replevin 465 Of application to the court for judgment on default 465 Of execution of order of reference, etc 466 Of motion to open default and allow defendant to answer 467 Order, Extending time to answer 443 For bill of particulars 445 To sliow cause why an inspection should not be granted 449 For an inspection on return of order to show cause 449 Striking out irrelevant matter , 451 Requiring answer to be made definite and certain 451 Striking out answer as sham 453 For judgment on a frivolous pleading 453, 454 Striking out reply as unauthorized 454 Grantingleave to serve supplemental answer 457 Granting leave to amend complaint 460 Striking out amended answer 462 Denying motion to strike out amended answer 462 Dismissing complaint for non-service 464 Bequiring filing of summons and complaint 465 Opening default and allowing defendant to answer 467 Petition, For discovery of books, etc 446 Reply, To a counterclaim 439 Verification, Of complaint — by party 411 Of complaint — by attorney 412 Of answer 433 Of counterclaim 488 Of reply 439 Of copy account 444 GENERAL INDEX. Abatement, Page. Pleas in abatement before the Code 241 Distinguisbed from plea in bar 241 Joinder of plea in abatement and plea in bar 241, 242 Directing jury to find separately on tbe several pleas 243 Demand of judgment not necessary to tbe plea 243 Verification of a plea in abatement required 242 Matter in abatement must be strictly pleaded 243, 243 What defenses may be pleaded in abatement 243 Non-joinder of parties, as a defense 243 How pleaded , 243, 344 Former action pending 345 Abuse of Process, Facts showing a single cause of action for 48 When an action lies for 157 Complaint in action for 156 Allegations of malice or want of probable cause ' 157 Acceptance, Averment of acceptance includes authority to accept 30, 198 Need not be alleged to have been in writing 197 General allegation of acceptance sufficient 1 97 Promise to accept, when equivalent to acceptance 198 Acceptor, Complaint in action against acceptor of bill or check 197-199 Account, Pleading an account 43 Items of account need not be set forth 43 How pleaded in Justice's Court 393 Compelling adverse party to deliver a copy account 43, 76 When a party is entitled to a copy account 76 Demand of a copy of an account pleaded 76, 77 How and when made 77 Proceedings when copy account is furnished on demand 77 Requisites of copy account served on demand 78 Need not state payments or offsets 78 Verification, subscription, indorsement, etc 78 Service '''6. 78 476 General Index. Account — (Continued). Page . Proceedings wlieu copy account is not furnished after demand 78 Precluding party from giving evidence of the account 78, 79 Proceedings when a defective copy account is served 79 Compelling further account 79 Papers on motion for further account 80 Order directing delivery of a further account 80 Proceedings if order for further account is disregarded 80 Account Stated, Compelling delivery of copy account in action on account stated. .76, 77 Bill of particulars may be ordered in action on account stated 84 Requisites of an account stated 148 Complaint on account stated 147, 148 What may be shown under general denial in action on 232 Accounting, Causes of action for a conversion and for an accounting cannot be joined 119 Identity of causes of action for an accounting 208 Act of God, Must be pleaded as an excuse for non-performance, to be available . . 238 Action Fending, Demurrer to complaint upon ground that another action is pending . . 207 What is included in word "action " 208 Must be pending in a court of this State 208 Must be between same parties 208 Causes of action must be the same 208 Defense of former suit pending must be pleaded 235, 243, 245 Is included among pleas in abatement 243 How pleaded 245 Adultery, Alleging adultery in complaint for divorce 179, ISO Alleging adultery of plaintiff iu answer in action for divorce . . . .254, 255 Administrator, Joinder of causes of action against executors and administrators 123 Complaints by or against executors or administrators 135 Title of the complaint should show representative character 111 Allegations showing representative character 125 Statements as to the issuing of letters of administration 125 Statement of a cause of action in favor of plaintiff as administra- tor 126 Construction of the complaint 126 Action by administrator of person negligently killed 165 Complaint in action under the statute 165, 166 Allegation of damage 144, 166 Want of legal capacity of foreign administrator to sue ... 207 Counterclaim in action against administrator 264 In action by an administrator 268 General Index. 477 Administrator — (Continued). Page. Counterclaim — Judgment on, in action by administrator 381, 283 In action by administrator in a Justice's Court 403 Admission, Demurrer as an admission of facts 320 Facts not denied stand admitted 233, 224 Rule not affected by party being excused from testifying 56 Matters impliedly alleged admitted if not denied 224 Readies only to material facts and facts well pleaded 234 Failure to deny matters unnecessarily alleged , . . 224 Allegation that matter is incorrectly stated, admits it 235 New matter in answer, not controverted, is admitted 291 Original pleading as an admission, after amendment - . 312 Wbat is admitted by failure to answer 375, 378 Adverse Possession, Cannot be shown under general denial in ejectment 236 Affidavit, Includes a verified pleading 52 Of excuse for omitting verification 56 On motion for bill of particulars 87 On motion for examination of party 102 On motion for extension of time to plead 397 On motion to compel filing of pleadings 303 On motion for leave to amend a pleading 319 On motion for leave to file supplemental pleading 345 On motion to strike out answer as sham 853 On opposing motion to strike out irrelevant matter 863 On motion for dismissal of complaint for non-service 371 Of defendant's default and of service of summons 873, 373, 379 On application for judgment in foreclosure 381 Of service of summons in matrimonial actions 383 Agent, Acts done by agent should be alleged as done by principal. . . .36, 27, 129 May verify copy account 43 May verify pleading in specified cases 57, 58 Form of verification by agent 61 Revocation of agent's authority shown under general denial 233 Double employment of agent must be pleaded as a defense 237 Set-off of demand against agent in suit by principal 265 Alteration, Of instrument sued on may be shown under a general denial 333 Ambiguity, Rule of construction in case of ambiguous terms 66 Amendment, After decision of demurrer 18, 318, 333 Pleadings sometimes deemed amended where no amendment made. . . 15 Of pleading, to defeat demand for bill of particulars 86, 87, 310 478 General Index. • Amendment — (Continued). Page. Of bill of particulars 91 Of pleadings once as of course 304-314 Right to amend without leave of court 304 Where court has stricken out a part of the pleading 365 Can be but one amendment without leave 306 Waiver of right to amend 306, 307 Time in which to amend of course 307 Nature and extent of amendment of course 808 New causes of action or new defenses may be added 308 Statute of limitations or usury may be set up 308 Venue of complaint may be changed 309 Demand of judgment may be changed 809 Parties cannot be added or stricken out 309 Must relate to time when original pleading was served 309 Withdrawing demurrer and serving answer instead 310 Must change the eilect of the pleading 310 Service of verified pleading in place of unverified pleading. . 310 Omitting a demurrer improperly joined with an answer 310 Effect of an amendment of a pleading 311 On previous notice of trial 305 On pending motion to correct pleading 305, 306, 311 On pending motion to change place of trial 311 Amended pleading supersedes original 311 Original pleading may be put in evidence as an admission. . . 313 Remedy for improper amendment 313 Where amendment is for purpose of delay 313 Motion to strike out amended pleading 313, 314 When the amended pleading may be treated as a nullity 818 Service of the amended pleading 314 Amended pleading must be answered 314 On motion before trial 315-321 Nature and extent of amendment allowed on motion 315 Power of the court to allow amendment 315 May change the whole cause of action or defense 316 Cause of action may be changed from contract to tort 316 Claim barred by statute may be set up 316 Unconscionable defense may be added 316 Counterclaim may be set up 317 Amendment allowed independent of the Code 317 May allow amendment after trial and appeal 317 As to adding or striking out parties. 317 In action against stockholders of corporation 318 Increasing demand of j udgment in action against city 318 Motion for leave to amend 318 Notice and motion papers 319 ESect of laches in making the motion 319 Opposing the motion 319 Decision of the motion 319, 820 Geneeal Index. 479 Amendment — (Continued). Page Terms imposed on granting leave to amend 320 Service of the order and amended pleading 321 Of pleadings at the trial 831-338 Conforming pleadings to the proofs 331 Claim or defense cannot be changed on the trial 322, 324 Test as to whether amendment vrill introduce new cause of action 323 Evidence of different cause of action 324 Evidence of a demand not alleged 324 Of complaint on a contract void by statute 335 Allowing legal remedy in equitable action 325 Allowing recovery for rent in action for use and occupation . . 825 Adding to the charge in action of slander 825 Enlarging demand of judgment 335, 326 Insertion of allegation of special damage 326 Curing a defective allegation 336 May be allowed before proofs are given 326 Proceedings in case of variance between pleadings and proof 337 Variance, how determined 337 Actual amendment may not be required 327, 338 When an actual amendment is indispensable 339 When the amendment may be made 327, 338 Amendment of answer on amendment of complaint 338 Where the trial is by a referee 82g Service of pleading after amendment on the trial 329 Failure of proof 329, 330 Inserting allegations material to the case 330 Adding or striking out or correcting name of a party .330 Entire change of party plaintiff or defendant not authorized. 330, 381 In action against a limited partnership 331 ' In action against stockholders of a corporation, etc 881 Power of a referee to amend pleadings on the trial 832 Special Term cannot review action of referee 883 Of pleadings after trial or on appeal 333-337 Power to amend a pleading after trial 833 On decision of a demurrer 388 General provisions of the Code 338-385 Complaint deemed amended by Court of Appeals 335 At the General Term 836 In the County Court on appeal from Justice's Court 387 Of pleadings in Justice's Court 406 Nature and extent of the amendment 406, 407 Condition or terms of amendment 408 On appeal to County Court 337, 408, 409 Answer, (See Pleajjikg, and other particular titles.) Discovery or inspection to enable defendant to answer 93 480 General Index. Answer — (Continued). Page. Contents of an answer under the requirements of the Code 9, 221 Must contain a denial, defense, or counterclaim 9, 221 May contain both denials, defenses and counterclaims 221 Legal or equitable defense may be set up 10, 221, 228 Inconsistent defenses may be joined 36, 221 Separately stating and numbering defenses, etc 47, 211 Partial defenses may be pleaded 17, 221 Not permitted at common law 17 How stated under the Code 17, 221 What constitutes a partial defense 17, 221»-223 Demand of judgment 223 Necessary where defendant seeks affirmatire relief 228 Denials, general or specific 223-235 When a general or specific denial is necessary 223 Admissions by failure to deny 224-226 Omitting denial to obtain affirmative of issue 225 General and specific denial of same allegation, improper 226 Form and sufficiency of general or specific denials 226 Denial need not be in any particular form 226 Doubtful and uncertain denials construed against defendant. 226 Common form of general denial 226 Forms of denials tolerated but not approved 226-238 Denial of matter between certain folios of the complaint 228 Examples of insufficient denials , . .228, 229 Form of denials in verified pleadings 50 Denials upon information and belief 51, 239 Denial of knowledge or information sufficient to form a belief 230 Forms a complete issue 230 When the proper form of denial 230 Usual form of denying knowledge, etc 231 Sufficiency or insufficiency of the denial 231 What may be shown under a general denial 231-335 Disproving complaint under general denial , 231, 233 Payment may be proved to disprove non-payment alleged. . . . 231 Want of consideration 232 Action prematurely brought 233 Alteration of contract 232 Contract void as against public policy 232 Revocation of authority of agent and notice thereof 233 Failure of plaintiff to fully perform an entire contract 232 That goods were sold and credit given to defendant's principal 232 In an action upon an account stated 232 In ejectment 233 In replevin 233 In action for conversion 333, 234 Matters tending to reduce damages in actions for tort 234 In actions for trespass and unlawful seizure of goods 234 Under special statutes 235 (jeneral Index. 481 Anstxrer — (Continued). Page. Defenses which must be pleaded to be available 335-238 A defense which, confesses and avoids must be pleaded 235 New matter must be pleaded 335 Payment in whole or in part 235 Former action pending 235 Statute of limitations 235 Adverse possession 236 Denial of incorporation 236 Non- joinder of public officers 236 Want of jurisdiction of a superior city court 236 Statute of frauds 236 Failure[of consideration of sealed instrument, or note 237 Double employment of broker 237 Awards and j udgments 337 Waiver of vendor's lien 237 Usury 237 Defenses to actions on insurance policy 237 Act of God 338 License 238 Mitigating circumstances in slander 238 Existence of legal remedy in suit in equity 238 Non-performance of conditions precedent 238 Equitable defenses may be pleaded in action at law 10, 231, 238 What are equitable (defenses 239 To action upon a j udgment 339 To action of ejectment 239-240 In action upon contract, right to reform it 340 That a deed is in fact a mortgage 340 Equitable defense should be pleaded 340 Eiiect of pleading an equitable defense 341 Pleas in abatement and in bar 341-343 Under the old practice 341 May be joined under the Code 341, 243 Verification of defense not involving the merits 342 Mode of stating matter in abatement 243, 343 Dilatory defenses must be strictly pleaded 243, 243 Defense of non-joinder of parties 348 Must be pleaded 343 Non-joinder of person jointly liable with defendant 343 Non-joinder of plaintiff .' 344 Mode of pleading non-joinder of parties 344 Death of omitted party cures defect of non- joinder 344, 345 Plea of former action pending 345 When and how made available 245 Plea of former judgment 245 Pacts necessary to sustain the defense 345 When former judgment is a bar to a second action 245, 346 How pleaded 347 61 482 General Index. Ans'wer — (Continued). Page . Plea of tender , . .348-250 Tender of specific articles 248 Tender of money, effect of 248 How pleaded 248 Tender to extinguisli a lien 248 Keeping tender good, and paying it into court 248, 249 Tender after suit brought 249 Usury as a defense 250 Must be distinctly set out in tbe answer 250 How pleaded 250, 251 Defense of usury cannot be joined with plea of tender 251 Discharge in bankruptcy, how pleaded 252 Statute of limitations, how pleaded 252 In actions to compel determination of claims to land 252 In replevin, trover,' or trespass 253 Title in third person 233, 258, 254 Chattel distrained doing damage 253 In action for divorce or separation 254, 255 In action against joint judgment debtor not summoned 256 Alleging fraud as a defense to action on contract 256 Allegations of an answer setting up false representations 256 Defendant's own fraud as a defense 257 In action of slander or libel 257 Pleading truth in justification 257 Requisites of an answer in justification ... 258 Justification under the old system 17, 259 Pleading matter in mitigation 17, 232, 358, 259 Defense that communication was privileged 259 Distinction between a defense and counterclaim 259, 260 Kew matter 260 Counterclaim 260-283 Nature and scope of a counterclaim 260 Failure to characterize matter pleaded as a counterclaim ... . 261 Requisites of a counterclaim 261 Must be a cause of action in favor of defendant 263 In actions against a surety alone 263 In an action against accommodation indorser 363 In action against guarantor 263 In action against principal and surety 208 Demand held by defendant jointly with another 263 In actions against defendants jointly and severally liable . . . 264 In actions against partners 264 In actions against persons sued in a representative capacity 264 Must be a cause of action against the plaintiff 264 Demand against one of several plaintiffs 265 Claim against plaintiff and third party 265 Demand against firm in action by single partner 265 Demand against partner in action by firm 265 General Index. 483 Answer — (Continued). Page . Counterclaim — Demand against agent in suit by principal 265 In actions upon assigned demands 265 On assigned contracts other than bills and notes 266 In actions on assigned negotiable paper 266 Effect of assignment before maturity of the demand 266 Provisions of the Code as to transfer of demands 267 Pleading counterclaim as against assignee 267 In action by trustee or plaintiff without interest 267 In atition by an executor or administrator 268 Relation between counterclaim and plaintiff's cause of action. .369-278 Independent contract may be pleaded as a counterclaim to a contract 269 When counterclaim must arise out of transaction set forth in the complaint 270 When counterclaim must be connected with subject of action 270 Cause of action for tort in action on contract 270 Cause of action on contract in action for tort 270 Independent tort in action for tort 270 Requisites as to connection between counterclaim and subject of action 272, 273 In actions on contract 269, 273-276 Counterclaim must be owned by defendant at commencement of action 374 May be for liquidated or unliquidated damages 27i In an action for rent 274, 375 In action for purchase-price of goods 275 In action for salary of municipal officer 276 In action for services 276 In action of foreclosure 276, 277 Against co-defendants 377 Counterclaims and set-offs in equity 279 Mode of pleading a counterclaim 380 Characterizing the pleading as a counterclaim '. 280 Effect of characterizing the pleading as a defense 261, 280 Demand of judgment 280 Showing counterclaim in existence at commencement of action. . 380 Showing that counterclaim arose out of plaintiff's claim, etc 381 Verification of counterclaim only 381 Folioing answer 46 Subscription and indorsement of answer 46 Verification of the answer 52 When optional 52 When compulsory 53 When excused 54 By whom verified 56 By agent or attorney 58 Form of verification by party 59 Form of verification by agent or attorney 61 484 General Index. Answer — (Conti nued). Pagg By guardian 63 By officer of corporation 64 Remedy for defective verification 64 Service of tlie answer 293 Time of service 293 Extension of time to answer 295-297 Mode of service 299 Order to accompany answer of corporation 303 Filing the answer 303 Construction of the answer 66-76 Amendment of the answer once of course 304 Eight to amend without leave of court 304 Amendment after service of demurrer 306 Time in which to serve amended answer 307 Nature and extent of the amendment allowed 308 Defenses or counterclaims may be omitted or added 308 Any new defense may be added 308, 309 Withdrawing demurrer and serving answer 310 Change in language of answer without change in legal efEect, 310 Effect of an amendment on proceedings already had 311 Original answer may be used as evidence 313 Remedy for improper amendment 312 Service of amended answer 314 Amendment of answer on motion before trial 315 Nature and extent of the amendment allowed on motion 315 No limitation as to character of amendment 316, 317 Motion for leave to amend 318 Terms imposed on granting leave to amend 320 Service of the order and amended answer 321 Amendment of the answer at the trial 321 Conforming the answer to the proofs 331 Limitation of the power to amend answer at the trial 334 Proceedings in case of variance 327 Amendment of answer on amendment of complaint 328 Power of referee to allow amendment 332 Amendment of answer after trial or on appeal 333 Pleading over or amending after demurrer 333 Supplemental answer 337, 348 Nature and object of a supplemental answer 337 What may be set up in a supplemental answer 344 Application for leave to serve a supplemental answer 344 Decision of the motion 346, 347 Proceedings where leave is granted 348 Amendment of supplemental answer as of course 349 Sham answers or defenses 350-354 Power of the court to strike out a sham answer or defense 350 Denial cannot be stricken out 851 All must be stricken out or none 353 General Index. 485 Answer — (Continued). Page . Sham answers — What answers are sham 352 The motion to strike out 352 Opposing the motion to strilio out 353 Decision of the motion 353 Proceedings where answer is stricken out as sham 354 Frivolous answers 354-360 Remedy for frivolous pleading 354, 355 What answers are frivolous 355, 356 Motion for judgment on frivolous answer 357, 358 Defeating motion by amendment 358 Attacking complaint on the motion 358 Decision of the motion 358 Order for judgment and proceedings thereunder 359 Striking irrelevant, redundant or scandalous matter from the answer. 360-365 What matter is irrelevant 360 What constitutes redundancy 361 Motion to strike out irrelevant and redundant matter 361 Opposing the motion 362 Principles governing the decision of the motion 362 Striking out scandalous matter 365 Remedy for indefiniteness and uncertainty in the answer 366 When motion to make more definite and certain is proper 367 Time and mode of making the motion 368 Opposing the motion 369 Denial of motion in case of doubt 369 Proceedings under the order 370 Default (See Default) >. 372 Judgment on failure to answer 372 Entry of judgment by the clerk on default , 372, 374 Proof of default 372, 373 Assessment of the amount due 374 Notice to defendant of assessment by the clerk 374 What the default admits 375 Application to the court for judgment on default 375 Proof of default 375, 376 ' Notice to defendant of application for judgment 377 Computation or assessment of amount of recovery 376, 377 Reference or writ of inquiry 376 Demand of notice of execution of reference or writ 377 Notice of execution of reference or writ 377 What the default admits 378 Motion for judgment cannot be withdrawn 378, 379 Proceedings on default of a defendant served without the State. 379 Judgment on default in foreclosure 380 Default in matrimonial actions 381 Relief from default 383, 384 Discretion as to opening default 385 486 Genkeajl Index. Answer — (Continued). Page . In a Justice's Court 391 May be oral or written 392 Form of the answer 392, 396 Contents of the answer 396 Verified answer to a verified complaint 396 Proofs under a general denial 397 Demand of j udgment 397 Answer that title of lands will come in question 397 When interposed 400 Undertaking to accompany the answer 398 Proceedings subsequent to the answer and undertaking .... 899 Counterclaims in Justice's Court 400 Eiiect of failure to plead a counterclaim 402 Judgment upon the counterclaim, 403 Time of answering in a Justice's Court 405 Amendment of the answer 406-409 Appeal, EHect of appeal on right of action for malicious prosecution 156 Allegation that no appeal has been taken from order vacating arrest. 156 Amendment of pleadings on appeal 333 The proper remedy for improperly allowing supplementary pleading. 349 Appearance, Notice of appearance and demand of copy complaint 394 Argumentativeness, In a pleading, no ground for demurrer 212 Arrest, Statement of facts in complaint to authorize an arrest 19 Complaint in action for false imprisonment should not state details of arrest 157 Time of serving answer in case of arrest of defendant 293 Assault and Battery, Joinder of action for assault and battery and slander 118 Intent to injure plaintifE not essential to right of action 147, 149 Complaint in action for assault and battery 148 Evidence in mitigation of damages on default ■. 377 Assessment, Of damages on default 377 Assignee, Rights of an assignee on motion for a discovery, etc - . . 97 Complaint by assignee of insurance policy - 193 Assignment, Counterclaims in actions upon assigned demands 265, 401 Amendment of complaint by inserting allegation of assignment 323 After suit, to give a cause of action 340 Complaint on assigned demand 394 Gexkeal Index. 487 Associations, Page. Complaint in an action by an association 129, 130 Attorney, When authorized to verify a pleading 57 Form of verification by an attorney 61 Counterclaim in action by attorney for services 273 Service of pleadings on the attorney for the adverse party 300 Award, Must be pleaded to be available as a bar 237 Bankruptcy, Discharge in bankruptcy must be pleaded to be available •. . 352 How pleaded 252 Reply to a plea of a discharge in bankruptcy 289 May be ordered where discharge is pleaded in the answe-r 290 Discharge may be set up by supplemental answer 344 Bar, Judgment for part of single cause of action bars remainder 115 Judgment on distinct causes arising out of single contract, etc. . . .115, 116 Judgment or award must be pleaded to be available as a bar 237 Distinction between pleas in abatement and pleas in bar. . . .241, 242,'*244 Pleas in abatement and in bar may be united in same answer S41 Plea of former judgment 245-247 Belief, Allegations or denials may be on information and belief 51, 230 Verification upon information and belief 59, 61 Attorney or agent verifying must set forth grounds of belief 61 Bill of Exchange, Complaint on bill of exchange 197 Counterclaim in action on bill of exchange 266, 401 Bill of Particulars, Nature, scope and office of a bill of particulars 81 Not intended to disclose evidence 81 Not the remedy for indefiniteness or uncertainty 81 In what actions ordered 82 In action for libel, escape, ejectment, trover 83 In action of crim. co/i. or quo uiirra?ito .... 83 Not often ordered in divorce 83 In actions for services 83 In actions for obstructing a way 83 In action for fraudulent appropriation of assets of a bank 83 In action for fraudulent representations 83 In action for conspiracy 83 In action for damages resulting from negligence 83 In action on account stated 84 Of consideration of an assignment 84 Power to order extends to all classes of actions 82, 84 Not confined to actions on money demands made up of items. ... 82 488 Genekal Index. Bill of Particulars — (Contiuued). Page. Either party may be required to furnish a bill of particulars 84 The demand of relief not controlling 84 Meaning of the word "claim " as used in the statute 84 When a bill of particulars will not be ordered 85 Where a party would be compelled to disclose his evidence. . .81, 85 Where the information is within command of moving party. .85, 86 Where the bill would call for arguments and conclusions 85 Where it calls for evidence of special damage 86 Of contributory negligence 86 Of mitigating circumstances 86 Amendment of complaint to defeat demand for a bill 87, 310 Application for the order 87 Should be made to the court although issues have been referred. 87 Notice and motion papers 87 Requisites of affidavit , 87 Obtaining extension of time to answer 87 May be before or after issue 88 Should be made with due diligence 88 Opposing the motion 88 Merits cannot be inquired into on the motion 88 Form and contents of the order 88 Form and contents of the bill of particulars 89 Particulars of an account 89 Items which need not be included 89, 90 Verification not necessary unless ordered 90 Proceedings where no bill is furnished 90 Excluding evidence on the trial 90 Staying proceedings until bill is furnished 90 Striking out complaint or counterclaim 90, 91 Proceedings where a defective or evasive bill is furnished 91 Motion for a further bill 91* The order for a further bill and its enforcement 91 Amendment of the bill , 91 Effect of the bill 92 Variance between the bill and evidence under it 92 Evidence by adverse party of items not in the bill 93 Bond, Leave to sue on sheriff's official bond 133 Default in condition' of the bond essential to foreclosure 141, 176 Breach of Contract, How alleged 141 Case, Assumpsit and case concurrent remedies before the Code 5 Capacity to Sue, Statement of facts showing capacity to sue 125, 126, 127, 128 In complaints by executors and administrators 125, 136 By receivers 127 Genpjral Index. 489 Capacity to Sue — (Continued). Page. In complaints by guardians 128 By public officers 130 Alleging permission to sue 133 Demurrer to complaint for want of capacity to sue 207 Want of capacity to sue must be pleaded 236 Cause of Action, Not considered if not pleaded 21 Separating and numbering 47 Statement of, in the complaint 112 What constitutes a single cause of action 113 Single cause of action cannot be divided 115 Joinder of cause of action 116 Causes of action which cannot be joined 123 Demurrer to complaint for mis-joinder of 210 For failure to state a cause of action 211 Adding cause of action by amendment 808, 316, 322, 324 Supplemental complaint cannot set up new 340 Certainty, In allegations as to time, place and value 32 Remedy for want of certainty in pleading is by motion 366 Bill of particulars not the remedy for uncertainty 81 Want of certainty no ground of demurrer 212 Proceedings to require a pleading to be made definite and certain 366 Certificate, Of clerk of non-filing of pleadings 303, 304 Of service of sirmmons 373 Check, Complaint on a check 197, 198 Demand of payment or want of funds must be alleged 198 Civil Damage, Complaint in action under the Civil Damage Act 167, 168 Claim to Lands, Complaint in action to determine claim to lands 175 Demand of judgment in such action 176, 203 Answer in action to determine claim to lands 252 Pleadings may be amended as in other actions 306 Co-defendants, Determination of controversies between defendants 277 Service of answer upon co-defendant affected by determination 277 Cannot set up independent controversy between themselves 278 Counterclaims against co-defendants 277-279 Committee, Leave to sue committee of lunatic or drunkard must be alleged 132 Complaint, (See Pleading, and particular titles.) The first pleading on the part of the plaintiff 9,109 General requisites of a complaint 109 490 General Index. Complaint — (Continued). Page. Must contain title of the action 110 Title must specify place of trial 110 Statement of names of parties HO Unknown parties HI Parties suing or sued in a representative character 113 Statement of a cause of action in the complaint 113 Must state facts and not conclusions of law 23, 113 Must state facts and not evidence of the facts 22, 113 Must contain every fact material to the cause of action 30, 112 Should not anticipate and negative a defense 28, 29 Each cause of action must be separately stated and numbered. 47, 113 Each cause of action stated must be complete in itself and consist- ent with the others 35, 113, 124 Same transaction may be stated in several counts 35, 113 Alleging acts done by an agent 26, 27 Facts which the law implies need not be stated 30 Matters judicially noticed need not be pleaded 31 Certainty in statement of time, place, or value 32 Conciseness required in the statement of facts 34, 109 Pleading performance of conditions precedent or excuse 36 Mode of alleging jurisdictional matters 39 Of causes of action on instruments for payment of money only. . . 40 Pleading an account 43 In action for libel or slander 44 Separate suits may be brought upon each of several causes of action. 113 A single cause of action cannot be made the subject of several suits. . . 115 What constitutes a single cause of action '. 113-115 Examples of independent causes of action 115 Joinder of causes of action in the complaint 116-135 Provisions of the Code as to joinder of causes of action 116 Claims arising out of same transaction, etc 117, 118 Meaning of term "same transaction " 117 Transactions connected with " subject of action " 116-119 Facts must be alleged to show the identity of the transaction 119 Several causes of action joined must aiTect all parties 119-131 All parties need not be affected equally 130 The test of proper joinder 120 Demands held in an individual and representative capacity 123 Joinder of causes of action upon claims against trustees 123 Joinder of causes of action against executors, etc 133 Causes of action which cannot be joined in the complaint 133 Inconsistent causes of action cannot be joined 35, 113, 124 Causes requiring separate places of trial 116, 134 Joinder of causes of action against a stockholder 124 Causes of action against trustee of insolvent bank 124 Causes of action for separation and absolute divorce 134 False imprisonment and malicious prosecution 125 Demurrer lies for misjoinder of causes of action 210 General Index. 491 Complaint — (Continued). Page. In actions by or against executors 125 Caption of the complaint should show representative character.. . 125 Allegations showing representative character 125 Mode of alleging appointment 125 When appointment need not be alleged 125, 120 Must show cause of action in representative capacity 126 Construction of complaints by or against executors 126 In action by or against a receiver 127 Mode of alleging appointment 127 Allegations of facts showing right of action in receiver 128 Alleging leave to sue 133 In action brought by guardian 128 Jlode of alleging appointment 128 \^'hen guardian may sue in his own name 128 In action by general guardian to recover a legacy 129 In actions by or against corporations or associations 129, 130 Statement of fact of corporate existence 129 Acts should be stated as done by the corporation, not by agent. . 129 Statement of cause of action against a bank ISO Statement of cause of action in favor of a bank 130 In action by officer of an association 130 In actions by or against public otficers 130 Officers authorized to sue or to be sued 180 Mode of showing official character 181 Manner of election or appointment need not be stated 132 Allegations of leave to sue 132 When leave to sue must be alleged and proved 132, 133 In actions on contract generally 133 Mode of pleading the contract 133, 134 Allegations as to consideration 135 Allegations as to performance of conditions 36, 136-139 Alleging a demand 139 Alleging a breach of the contract 141 Allegations of damage 143 Allegations of damage in actions of tort 143-146 Allegations of wrongful intent 146 In particular actions 147-199 Account stated 147 Assault and battery 148 Eeplevin 149 Trover or conversion 152 Malicious prosecution 155 Abuse of legal process 156 False imprisonment 157 Conspiracy 158 Fraud or deceit 158 Libel or slander , 161 Slander upon title 164 492 General Index. Complaint — (Continued). Page. Seduction 164 Deatli by negligence 165 Negligence generally 167 Civil Damage Act , 167 Ejectment 168 Partition 170 Dower 173 Against claimant of dower 174 To compel determination of claim to lands 175 Foreclosure of a mortgage 176, 202 Nuisance .- 178 Absolute divorce 179 For separation 181 Creditor's action 182 Against stockbolder of a corporation 186 By creditor against trustee of a corporation 189 Interpleader 190 By judgment-creditor against defendants not summoned 191 For services 191 Upon policy of insurance 192 Upon a promissory note — against maker 194 Against indorser 195 Upon bill of exchange or check 197 Against guarantor 199 Tbe demand of judgment in the complaint 199 Wbat judgment should be demanded 199, 200 Mistake in demand rarely fatal 199, 200 Must be consistent with the case made by the complaint 200 Judgment limited by the demand when there is no answer 200 Demand does not limit judgment after answer 200 May include both legal and equitable relief 201 Relief demanded must not be inconsistent 201 Alternative relief 303 Improper demand of relief not a ground of demurrer 202 Demand of general relief, of no avail under the Code 202 In action for a foreclosure of a mortgage 202 In action to determine claim to real property 176, 203 lu replevin 203 In action for dower 174 In ejectment 170 In action of interpleader 190 In action for cutting and injuring trees, etc 203 Demand of both interlocutory and final judgment '.. . 203 Requirement of the Code as to writing or printing 46 Folioing complaint 46 Subscription and indorsement of the complaint 46 Verification of the complaint 51 When optional with the plaintiff 51 General Tndex. 493 Complaint — (Continued). Page. When indispensable 53 By whom verified 56 By agent or attorney 58 Form of verification by plaintiff 59 Form of verification by agent or attorney 61 By guardian 63 By officer of corporation 64 Defective verification of the complaint , . . . 64 Service of the complaint 393 Time of service 393, 393 Where a discovery or inspection has been ordered 393 Extension of time 295 Mode of service 299 Dismissal of complaint for non-service on demand 371 Filing complaint 303 Attacking complaint on demurrer to answer 286 On motion for judgment on answer as frivolous 358 Construction of the complaint i 66 On demurrer 70 On the trial 71 When held to state action on contract and when in tort 73 Amendment of the complaint as of course 304 Right to amend once as of course 304 Time in which to amend 304, 306, 307 Nature and extent of amendments allowed 308 Effect of an amendment of the complaint 305, 311 Remedy for improper amendments 312 Service of amended complaint 314 Amendment of the complaint on motion before trial 315 Nature and extent of the amendment allowed 315 The motion for leave to amend 318 Terms imposed on granting leave to amend 320 Amendment of the complaint on the trial 321 Conforming the complaint to the proofs 321 Nature of the action cannot be changed by amendment 322 New cause of action cannot be set up by amendment 323, 334 Changing equitable to legal action 385 In action for slander 335 When the amendment may be applied for 336 Proceedings in case of variance 337 Inserting allegations material to the case 886, 330 In respect to parties 330 By referee 383 Amendment of the complaint after trial or on appeal 333 Supplemental complaint 338 Under the old Chancery practice 338 Under the Code 839 What facts cannot be set up in supplemental complaint . , . .339, 340 49i General Index. Complaint — (Continued). p Supplemental complaint — what may be set up in 341-343 Motion for leave to serve supplemental complaint 344 Decision of the motion 343 Proceedings when motion is granted 348 In Justice's Court 393 Requisites of a complaint in action before a justice 393 Joinder of causes of action 394 Verified complaint under act of 1881 395 Amendment of the complaint 406 Conciseness, Required in statement of facts in all pleadings 34 Irrelevant and redundant matter may be stricken out 34 Stating facts growing out of one transaction in several counts 35 Repeating same allegation in different counts , 35 Proceedings to strike out redundant matter 360 Conclusions, Conclusions of law should not be pleaded 23 What are conclusions of law 24 Facts specifically alleged prevail over conclusions 72 Conditions, Pleading performance of conditions precedent 86, 136 Performance of mutual conditions or tender of performance 136 When it is not necessary to tender performance before suit .136, 138, 1,39 When a condition is precedent or subsequent 136 When plaintiff must plead performance or tender of performance . . 137 What will excuse performance 137, 138 Mode of pleading performance 138, 139 Allegations in complaint on insurance policy . . 193 Failure to perform conditions must be pleaded as a defense 238 Confession and Avoidance, Defense which confesses and avoids must be pleaded 235 Consideration, Allegation that contract is void for want of, states a conclusion 26 Complaint on note may be amended by omitting statement of ... .86, 87 When complaint must allege a consideration 133 When it is not necessary to allege a consideration 135 Allegation where a promise is founded on a past or executed consider- ation 135 Not necessary to allege consideration in suit on note 135, 194 Want of consideration may be shown under general denial 233 Failure of consideration must be pleaded 237 Alleging want of consideration of mortgage 257 Consistency, Causes of action joined in complaint must be consistent 35 New matter in reply must be consistent with complaint 35 Inconsistent defenses may be set up in the answer 35 Demand of judgment in complaint must be consistent with case made 300 301 General Index. 495 Conspiracy, Page Bill of particulars in action for 83 Complaint in action for 158 Construction, Pleadings must be liberally construed 66 Rule relates to form and not to substance 66, 69 Rule does not authorize recovery on facts not pleaded 66 Use of words having different meanings 66 To be according to what is said rather than intended 67 Matters not averred will not be implied 67 Matters defectively alleged liberally construed 67 Of complaint on promissory note 67, 68 Examples of construction of pleadings 68 Pleading must be construed as an entirety 68 Construing pleadings most strongly against the pleader 68 Rule as to doubtful pleadings 69 Of defense or counterclaim . . 69 Uncertainty as to nature of action 69 Ambiguity as to place 70 Limitation of the rule 70 On demurrer 70 Liberal construction on demurrer 70 Where complaint sets up both cause of action and defense 70 Of several defenses or counterclaims 70 Demand of judgment unimportant to construction 71 On the trial 71 Pleadings sustained if possible , 71 Only incurable defects are fatal 73 Indefinite and uncertain pleadings -73 Facts specifically alleged prevail over general statements and conclu- sions 73 Whether a pleading alleges a contract or a tort 73, 74 In cases of doubt, pleading construed as on contract 73, 74 Allegations of fraudulent representations 75, 76 Of denials in a pleading 230 Contract, Party alleging breach of contract cannot recover for tort , 4 Allegations of facts justifying arrest in action on contract 19 When a pleading alleges a contract and when a tort 73 Complaint on contract prohibited by statute of this State 33, 134 Mode of pleading a contract and cause of action thereon 133 Setting forth contract or stating its substance ^ 134 Annexing copy contract to complaint 134 Recitals in contract set forth, equivalent to allegations of fact ... 134 Entire contract need not be set out in all cases 134 Complaint on modified contract 134 Superseded contract should not be mentioned 134 Allegations as to consideration 135 496 General Index. Contract — (Couti nued). Page Mode of alleging performance of conditions 136 Alleging a demand 139 Alleging a breach of the contract 141 Allegation of damage 143 Each contract furnishes but one cause of action 114 Joinder of causes of action in contract and tort 118 Invalidity of contract may be shown under general denial 233 Alleging fraijd as a defense to au action on contract 356 Counterclaims in actions on contract 273 Amendment changing action from tort to contract, etc 316, 322, 323 Contributory Negligence, Absence of contributory negligence need not be alleged 28 Conversion, Recovery on contract vi'here complaint is in form for conversion 4 Bill of particulars in action for conversion 83 Joinder of claims against carrier for conversion and excessive freight. 119 Complaint in action for conversion and trover 153 Allegation of title or right to possession 152 Description of property taken 152 Alleging value and place 33, 153, 153 Alleging the act of conversion 153 Wrongful intent immaterial 147 Demand and refusal 154, 155 Construction of complaint as to nature of action 74, 75 Issues raised by a general denial 333 Showing payment under general denial in action for conversion of a note 235 Pleading conversion of collateral security in action on note 269 Counterclaims allowed in trover 270, 271 Amendment in action for conversion 323 Answer in action for conversion 253 Title in third person as a defense 233, 334, 254 Copy, Pleading must be served by copy 399 Requisites of the copy served 46 Copy account, and proceedings to obtain it 76-80 Corporation, By whom pleading of a corporation may be verified 57 Form of verification by officer of corporation 64 Mode of alleging acts of a corporation 36 Alleging acceptance of draft by corporation 30, 198, 199 By-laws of corporations must be pleaded 31 Complaints by corporations and associations 129 Leave to bring action to annul charter of 133 Action by or against corporation to determine claim to land 175 Action by creditor against receiver, assignee, trustee, etc., of 186 Complaint in action against stockholder of 186 General Index. 497 Corporation — (Continued). , Page. Complaint in action against trustees of 189 Extension of time to plead 399 Order to accompany answer in action on note of 303 Substituting corporation in lieu of receiver by amendment 317 Amendment substituting receiver for corporation 318 Misjoinder of defendants in action against stockliolders of 331 Counterclaim, A substitute for a cross-bill 16 Separating and numbering defenses and counterclaims 47, 49, 321 Verification of answer may be confined to counterclaim 53, 60 Construction of answer as to defense or counterclaim 69 Demand of judgment when counterclaim is pleaded 223 In action for divorce or separation 255 Distinction between defense and counterclaim 259 Requisites of a counterclaim 261 Must be a cause of action in favor of defendant 262 Demand against principal in action against surety 263 Demand owned jointly by defendant and third person 263 In action on joint and several demand 264 By persons sued in a representative capacity 264 Must be a cause of action against the plaintiff 264 Must be a cause of action against all the plaintiffs 265 Demand against plaintiff and third person. . 265 Demand against firm in action by partner 365 Demand against partner in action by firm 265 Demand against agent in suit by principal 265 In actions on assigned demands 265 In action by trustee or plaintiff without interest 367 In action by an executor or administrator 268 Relation between counterclaim and plaintiff's cause of action 269 Tort, in action on contract, when allowable 269 Contract, in action for tort 270 Tort, in action for tort 370 Form of action does not determine right to counterclaim. 271 Conversion, in action on note 369 Contract, in action for fraud 370 Assault and battery, in action for assault and battery 370 Waste, in action for conversion 271 Violation of trade-mark, in action for same 271 Injunction, in action for in j unction 271 What is the subject of the action 372 Requisites of connection between counterclaim and cause of action. 273 In actions on contract 273 Must have existed at commencement of action S74 May be for liquidated or unliquidated damages 274 May consist of equitable defense, or in proper case, a tort 274 In action for rent 274, 275 63 498 General Index. Counterclaim — (Continued). , Page. In action by purchaser of goods 275 In action for work, labor, or services 276 In action for foreclosure 276 Against co-defendants 277 Set-ofis and counterclaims in equity 279 Mode of pleading a counterclaim 280 Mode of trial, and judgment on a counterclaim 281 Reply to counterclaim 287 Demurrer to counterclaim 284 Amending answer by pleading a counterclaim 317 Cannot be stricken out as sham 351 Counterclaims in Justices' Court 400 Effect of a failure to plead a counterclaim 402 Judgment upon a counterclaim 403 Demurrer to counterclaim 404 Counts, Each count must be complete in itself 35 Demurrer to entire complaint containing one good count 212 Separately stating and numbering 47, 110 Stating causes of action arising out of one transaction in several counts. 35 Covenant, Equitable defense in action for breach of covenant 240 Making complaint for breach more definite and certain 368 Alleging breach of covenant 141 Coverture, Complaint against a married woman 29 Creditors, Making creditors parties in partition 171 Remedies of a Judgment-creditor 182 Rights of a creditor at large '. 184, 186 Action against stockholder of corporation 186 Action against trustee of corporation 189 Action against defendant not summoned in prior action 191 Creditor's Action, Joinder of causes of action 120 Complaint in creditor's action 182 Where the action is to remove a fraudulent sale, etc 184; Where the action is to reach choses in action and equitable in- terests 183 By creditor of deceased insolvent debtor 186 Against a defendant not summoned in prior action 191 Against stockholder of corporation 186 Against trustee of corporation , 189 Cross-bill, Under the old practice 15 Substitute furnished by the Code 15, 260, 261 When still necessary to defendant's protection 16 General Index. 499 ■Criminal Conversation, Page. Bill of particulars may be ordered in action for 83 Damages, Are either general or special 143 General damages defined , 143 Special damages defined 143, 145 Special damages must be pleaded 143, 143, 144, 145 Loss of profits 1 43 In slander 143, 144, 145 In slander of title to lands 144, 164 In action for libel 144 In action against a public officer 144 Bill of particulars of special damage will not be ordered 86 Allegations of damage in actions on contract 143 Allegations of damage in actions for tort 143 Essential to cause of action for fraud , 159, 160 When the natural result of an act, need not be pleaded specially 143 Matter in mitigation, a partial defense 17, 231 Evidence in reduction of damage, under a general denial 334, 235 Amendment enlarging claim for damages 325 Amendment by inserting allegation of special damage 336, 336, 337 Setting up damages in supplemental complaint 341 Death, Complaint in action for death by negligence 165 Deceit, (See Fraud.) Complaint in action for fraud or deceit 158, 161 By purchaser against seller 158 Each fraudulent representation must be stated 159 Intent to deceive must be alleged 147, 159, 160 Damages essential to statement of cause of action 160 Default, Judgment cannot be more favorable than that demanded. . .8, 800, 374, 876 In serving complaint after demand 371 Motion to dismiss complaint for non-service 371 Judgment on failure to answer, without application to court 372 Proof of default and entry of judgment by the clerk 372 Proof of service of the summons 373 Detf.rmining amount of judgment 374 Notice of time and place of assessment by the clerk 874 What is admitted by the default 375 EHect of entry of judgment by clerk in action for tort 375 Judgment by default, on application to the court 375 Proof of service of summons and default 375 Determination of amount of the judgment 876 Where to apply for judgment 876 In case of default by part of the defendants 376 Notice of application for judgment 377 Demand of notice of execution of reference or writ of inquiry 377 500 Geneeal Index. Default — (Continued). Page. Notice of execution of reference or writ of inquiry 377 Proceedings on assessment of damages 377, 378 What is admitted by the default 378 Against infant 378 Application cannot be withdrawn without leave 378 Proceedings on default of defendant not personally served 379 Proof of service of summons and default 379 Proof of cause of action 379 Undertaking may be required 379, 380 Judgment on failure to answer in foreclosure 380 Order of reference to compute, etc 381 Application for judgment 381 Proof required where defendants are absentees 381 In matrimonial actions 381 Proof of facts required notwithstanding default 383 Service of summons and proof of service 382 Failure to reply 383 Application for judgment. 383 Belief from default 383 Defendants, Proceedings to determine ultimate rights of defendants 16, 377 Designating unknown defendants Ill All defendants must be affected by action 131 Defense of non-joinder of defendants 343, 344 Demurrer for want of jurisdiction of defendant 206 Demurrer for misjoinder of 309 Counterclaims against co-defendants 277 Defenses, Defendant may set forth as many defenses as he has 10, 221 Partial defenses 17, 221 No judgment can be based on adefense not pleaded 21 Should not be anticipated in pleading 38, 192 Inconsistent defenses may be pleaded 35, 331 Separating and numbering defenses pleaded 47, 49 A defense which does not involve the merits must be verified 54 Construction of answer as to setting up defense or counterclaim 69 Defenses which must be pleaded to be available 235 Equitable defenses 238 Fraud as a defense 256 Distinction between defense and counterclaim 359 Setting up new defense by amendment 308, 316, 317, 322, 324 Delivery, When impliedly alleged 30, 195 Demand, Of judgment in the complaint 199 How far the demand of relief affects the judgment 7, 8, 200 Must be consistent with the case made by the complaint 200 General Index. 501 Semand — (Continued). Page. Sliould be broad enough to cover any relief obtainable 200 For both legal and equitable relief 201 Inconsistent relief should not be demanded 201 Alternative relief 202 Of general relief, of no avail under the Code 202 In foreclosure 177, 202 In action to compel determination of claim to land 176, 203 In action of interpleader 190 In replevin 203 In ejectment 170 In action for cutting and injuring trees 243 Does not control allowance of bill of particulars 84 Not the subject of demurrer 213 Amending demand of judgment 318 Of judgment in the answer, when required 228, 242, 255 Of judgment on a counterclaim 277, 280 Of judgment in Justice's Court 393, 397 Of copy complaint 293, 294, 371 Of copy account 76, 77 Of change of place of trial. 303 Alleging a demand 139, 140 In action against drawer of check or bill 198 In action against indorser 139, 140, 198 In action against maker or acceptor 197 In action against depositary 140 In action to recover money paid by mistake 140 Amending complaint by adding allegation of demand 330, 336 In replevin 150 In conversion or trover 154, 155 How alleged 140 Allegation of refusal implies a demand . 30 Of notice of execution of a reference or writ of inquiry 377 Semurrer, Change in the common-law system of demurrers 18 General and special demurrers under the old practice 215 Construction of pleadings on demurrer 70 To the complaint 203 Defendant may demur to one count and answer another 204 Cannot be both demurrer and answer to same court 203 One defendant may answer while others demur 204 Amendment, by withdrawing demurrer and serving answer 310 Grounds of objection which may be taken by demurrer 204 Must be one embraced in the Code 204 Must appear on the face of the complaint 205 When an objection does appear on the face of the complaint. 205 Want of jurisdiction of the person or subject of action 206 Want of legal capacity to sue 207 502 General Index. Demurrer — (Continued). Page, Another action pending 307 Misjoinder of parties 309 Defect of parties 309 Misjoinder of causes of action 310 No cause of action stated 311 Defects which cannot be reached by demurrer 313 To an entire complaint containing one good count 813 Joint demurrer where cause of action stated as to one 31S No cause of action stated against a defendant not demurring 313 Does not lie to demand of judgment 313, 314 Where the facts stated do not entitle plaintiflE to relief demanded. 315 Form of demurrer to complaint 315, 316 Effect of omission to demur 317 Decision of the demurrer and proceedings thereupon 317 Pleading over or amending 318 Decision must direct the judgment to be entered 318, 319 Entry of judgment 319 Eiiect of the demurrer as an admission 330 Demurrer to supplemental complaint 348, 349 To the answer 383 For insufficiency of a counterclaim or defense 383, 383, 284 Want of jurisdiction of subject of counterclaim 383, 384 Want of legal capacity to recover on the counterclaim 382 Another action pending 283 Counterclaim not of the character specified in section 501 of the Code 283, 384, 285 No cause of action stated in the counterclaim 283 No demurrer lies to a denial, however defective 283 To a partial defense 233, 383 Mode of taking the demurrer 285 Principles governing the decision of the demurrer 286 Attacking the complaint on argument of the demurrer 286, 287 To the reply 291 When demurrer to reply is authorized 291, 393 In a Justice's Court 404 To writ of mandamus 388 To return to a writ of mandamus 389 Cannot be stricken out as sham 351 Frivolous demurrers, and the remedy therefor 354 Denials, Cannot be stricken out as sham ,350, 351 When the answer should contain a general or specific denial 233 Material facts not denied, are admitted 56, 334 A narrative of facts inconsistent with complaint, not a denial. . . .324, 225 Omitting denial to secure affirmative of issue 335 Form and sufficiency of general or specific denials 226, 230 Form of denials in verified pleadings 50 General Index. 503 Denials — (Continued). Page. On information and belief : 51, 228 Of knowledge or information sufficient to form a belief 230 Wbat may be sliown under a general denial 231 Defenses whioli cannot be proved under a general denial 235 Depositary, Alleging a demand in an action against depositary 150 Description, Of land in question in ejectment 168 In partition 172 In action for dower 173 In action against claimant of dower 174 In action to determine claim to lands 176 In foreclosure 176 Dilatory Pleas, Are not favored, and must be strictly pleaded 243 Must be verified 242 Discharge, In bankruptcy, bow pleaded 252 Need not be replied to 289 Reply to answer setting up discharge may be ordered 290 May be set up by supplemental answer 344 Discovery, What courts may compel a discovery 93 Cases in which a discovery may be ordered 93, 97 98 Requisites of a petition for a discovery 94 Verification of the petition 96 The application should be ex parte 96 The order to show cause 96 Vacating order to show cause 96 Order on return of order to show cause 97, 99 Opposing the discovery 98 Discretion as to granting or refusing the discovery 98, 99 Appointment of referee to superintend discovery 99 Staying proceedings 99 Compelling obedience to the order 100 EfEect of book or paper discovered 100 Time in which to plead where a discovery is had 298 Dismissal, Of action for failure to deliver copy account 80 Of complaint for disobedience of order for discovery 100 Distress, Defense in replevin that chattel was distrained doing damage 45, 253 Divorce, Bill of particulars rarely ordered in divorce 83 Causes of action for divorce and separation cannot be joined 124 Complaint in action for absolute divorce 179 504 General Index. Divorce — (Continued). Page . Complaint in action for a separation 181 Answer in action for divorce or separation 254 Reply to counter charges of adultery 389 Supplemental complaint 340 Default in matrimonial actions 381 Opening default and allowing defense 885 Dower, Complaint in action for dower 173 Complaint against claimant of dower 174 Reply to answer alleging divorce in action for dower 290 Ejectment, Bill of particulars may be ordered in ejectment 83 Complaint in ejectment 168-170 Demurrer for want of capacity to sue 307 Pendency of another action as a ground of demurrer 208 What may be proved under a general denial 233 Defense of adverse possession must be pleaded 336 Equitable defenses in ejectment 339, 240 Conveyance in fraud of creditors, no defense 257 Amendment to conform pleading to proof 322, 333 Amendment on appeal, where infants are plaintiffs 336 Equitable Defenses, May be pleaded in any action 10, 238, 239, 340 What are equitable defenses 239 In action upon a judgment 239 In ejectment 339, 340 In ejectment for breach of contract 240 That deed is a mortgage 240 Must be set up, instead of bringing action to restrain 240 Effect of interposing an equitable defense 241 Equity, Counterclaims and set-offs in equity 379 Complaint may be framed for legal and equitable relief 201 Blending of law and equity, effect of 6, 7 Defense of existence of a remedy at law^ must be pleaded 338 Escape, Bill of particulars may be ordered in action for escape 83 Estoppel, Estoppel in pais need not be pleaded. 338 Former judgment 346 Eviction, In action for rent 275 Evidence, Should not be pleaded 22 Excluding evidence of an account for failure to serve copy 78 Excluding evidence for failure to serve a bill of particulars 90 General Index. 505 Evidence — (Continued). Page. Excluding evidence for failure to obey order for discovery 100 Admissible under a general denial 231 Conforming pleadings to proofs 311 Szamination, Of a party in aid of pleading 101 Wlien ordered , . , 101 In wliat courts 101 Application for tlie order 103, 105 Affidavit to be used on the motion 103 Discretion as to granting the order 106 The order 186 Service of the order and mode of taking testimony thereunder. . 108 Exception, In statutes, must be negatived in pleading 29 In a covenant, need not be negatived 143 Excuse, Complaint upon a quantum meruit need not excuse partial perform- ance 38 For non -performance of conditions precedent 36 Excusing omission of presentment, demand, protest or notice 43 Alleging excuse for non-performance of conditions 137 For failure to deliver property on demand 234 Act of God, must be pleaded as excuse for non-performance 288 Execution, Complaint in action for abuse of legal process 156, 157 Alleging issuing and return in a creditor's action 182, 183 In complaint against stockholder of corporation 187 In action against a guarantor 199 Plea of tender of amount due on execution 248 Executor, Joinder of demands held in an individual and representative capacity 123 Joinder of causes of action against executors 123 Complaints by or against executors 125 Foreclosure of mortgage executed by executor 177 Foreign executor, want of capacity to sue ' 207 Counterclaims by persons sued as executors 264 In actions by executors 268, 402 Judgment on counterclaim 281 Extension, Of time to plead 87, 295 Pacts, Must be pleaded, and not evidence or conclusions 23, 33, 393 What are facts and what are conclusions of law 34 May be stated according to their legal effect 26 False Imprisonment, Various matters that enter into a cause of action for 48 506 General Index. False Imprisonment — (Continued). Page. Cannot be joined with malicious prosecution 135 Complaint in action for false imprisonment 157 False Representations, {See Fraud.) By agent, may be alleged to be made by principal 27 Allegations of, in action for fraud or deceit 159 In application for insurance 238 Fictions, ' How far abolished by the Code 13, 14 Filing, Of pleadings 303 Fire Insurance, Complaint on policy of fire insurance 192 FoUoing, Requirements as to f olioing pleadings 46 Copy account 78 Denials of matters embraced witbin specified folios 228 Foreclosure, Defendants in foreclosure , 120 Leave to sue, after or pending foreclosure 132 Alleging breach of the condition of the bond 141 Complaint in action to foreclose a mortgage 176 Demand of judgment in foreclosure 177, 202 Extinguishment of lieu of mortgage by tender 248 Answer alleging tender in foreclosure 249 Answer alleging that mortgage was given to defraud creditors 257 Counterclaim in foreclosure 271, 276 As between defendants in foreclosure 278 Bringing in new parties after decree 348 Judgment on failure to answer 380 Form, {See Index of Forms.) Abolition of forms and former rules of pleading 3 Only one form of civil action under the Code 6 Of allegations and denials in verified pleadings 50 Of verification by a party 59 By an agent or attorney 61 By guardian ad litem 63 By an oflScer of a corporation 64 Liberal rule of construction applies only to form 66 Of order for a bill of particulars 88 Of bill of particulars 89 Of demurrer to complaint 215, 216 Of general or specific denials , 226 Former Judgment, Answer setting up former judgment in bar 245 General Index. 507 Fraud, Page. Use of words " fraud " or " fraudulent " not necessary to characterize action 27 When complaint alleges but a single cause of action for fraud 49 Defendant not excused from verifying his answer 55 Whether complaint is on contract or for fraud 74, 75 Bill of particulars may be ordered in action for fraud 83 Joinder of fraud with breach of warranty 118 Fraudulent intent essential to right of action 146, 147 Intent to deceive must be alleged and proved 147 Complaint in action for fraud or deceit 158-161 Allegations of fraud in creditor's action 185 Party cannot ask to rescind contract for fraud and for an accounting. 202 Impeaching plain tifE's title in action for unlawful seizure of goods. . . 234 May be alleged as a defense to an action upon a judgment 239 Alleging fraud as a defense to an action on contract 356, 257 Counterclaim for fraud in action on contract 275 Complaint for fraud cannot be amended to contract on trial 323 Fraudulent Conveyance, Parties to action to set aside 120 Creditor's bill to reach property fraudulently conveyed 183, 184 Fraudrdent Representations, Statement of , in complaint for fraud or deceit 159 Statement of, in answer setting up fraud as a defense 256 Frivolous Pleading, Remedy for frivolous pleading 354, 355 Cannot be treated as a nullity or stricken out 355 What pleadings are frivolous , .355, 356 Motion for judgment on a frivolous pleading 357 May be made to court or judge 357 Notice of motion 357 Affidavits not used on the motion 357 May be combined with motion to strike out as sham, etc 358 Argument of motion rarely permitted 358 Defendant may attack complaint on argument 358 Order denying motion 358 Order for j udgment and proceedings thereunder 359 Conditional order 359 Pleading remains part of the record 359, 360 General Denial, When the answer should contain a denial .' 223 Effect of failure to deny 233, 334 Form of general denial 236 SuflBciency of a general denial 226-230 On information and belief. . . , 228 Of knowledge or information sufficient to form a belief 230 What may be shown under a general denial 231 Payment 233 608 General Index. General Denial — (Continued). Page. Want of consideration 233 Action prematurely brought 332 Alteration of contract 233 Contract void as against public policy 232 In action for goods sold 233 In action on account stated 232 In action of ejectment 233 In action of replevin 333 In action for conversion 233 Evidence in reduction of damage 234 In action for unlavcful seizure of goods 334 Goods Sold, What may be shown under a general denial in action for 232 Fraud or breach of warranty as a defense ' 275, 276 Plaintiff need not allege non-payment of purchase-money 38 Guardian, Form of verification by guardian ad litem 63 General answer by guardian need not be verified 54 Complaints by guardians 128 Guarantor, Allegation to charge indorser of non-negotiable note as guarantor. . . . 197 Complaint against guarantor 199 Cannot counterclaim demand in favor of principal 263 Hypothetical Pleading, Inadmissible under the Code 33, 383 Implied Averments, That which the law implies need not be alleged 30 Examples of implied averments 30, 31, 68 What is necessarily implied is alleged 31, 311 May be traversed as if expressly alleged 31 Incorporation, How pleaded 129 Indefiniteness, Bill of particulars not the proper remedy for indefiniteness 81 No ground for demurrer 213, 366 The remedy for indefiniteness and uncertainty is by motion. . . ; . . . . 366 When a motion to make definite and certain is proper 366-868 Time and mode of making the motion 368 Must be noticed before answering or demurring 368 Must be made at Special Term 369 Requisites of notice of motion 369 Motion denied unless in a clear case 369 Proceedings under order directing pleading made more definite 370 Indorser, Time material in action to charge an indorser 33 Statement of conditions precedent in action against indorser 37 General Index. 509 Indorser — (Continued). Page . Essential allegations in complaint against indorser. .42, 139, 140, 195, 196 Complaint against indorser of a note 195-197 Demand of payment essentia] to liability of indorser 197, 198 Setting up defense of usury alone 225, 226 Indorsement, Of pleadings with title of the cause and name and oiEce address of attorney 47 Of copy account 78 Construction of an averment that a note was indorsed by defendant. . 68 Complaint on a contract of indorsement 195 Infant, Cannot be made defendant in action to determine claim to land 175 Demurrer for want of capacity of infant to sue 207 Amendment on appeal, where infants are plaintiffs in ejectment 336 Judgment against infant by default 378 Information and Belief, Fact within personal knowledge may be alleged upon 51 Denial maybe stated to be on 51, 228, 229 Stating grounds of belief on verification by agent or attorney 61, 63 Denial of knowledge or information sufficient to form a belief 230 Injunction, Demand for injunction and for legal relief 201 Action to restrain suit not maintainable, where relief may be had by defense 241 May be demanded in counterclaim 271 Insolvency, When insolvency of defendant should be stated in complaint in re- plevin 151, 152 Of judgment-debtor, no excuse in creditor's action for want of execu- tion unsatisfied 185 A ground of set-off in equity - - . 279 Setting up insolvency of maker in action for conversion of note 344 Inspection, {See Discovert.) Discovery and inspection of books and papers 93 Petition for discovery or inspection 94 Motion should be made ex parte 96 Order to show cause why inspection should not be had 96 Vacating order to show cause 96, 97 Decision and proceedings on return of order to show cause 97 Opposing application 98 Order granting application 99 Staying proceedings of adverse party 99 Punishment for disobedience of order 100 Time in which to plead where an inspection has been ordered 99, 293 Installments, Falling due after commencement of action on contract 342 610 General Index. Insurance, Paire. Complaint upon a policy of insurance 192, 193 Defense of breach of warranty, or that it was a wager policy 337 Intent, Allegations of wrongful intent, when necessary 146 In action upon malicious prosecution 146 In action of fraud. 146, 147, 160 In action for slander, where the words are presumptively privi- leged , 147 Not essential in trover 147 Not essential in action for assault 147, 149 Interlocutory Judgment, Direction for, on decision of demurrer 218 Entry and proceedings thereunder 219 Demand of, in complaint 203 Interpleader, Complaint in action of interpleader 190 Intoxication, Complaint under Civil Damage Act for injuries caused by 167 Innuendo, Office of an innuendo in libel or slander 162 Irrelevancy, Cannot be reached by demurrer 291 Remedy by motion to strike out irrelevant matter 34, 360 What is meant by irrelevant matter 360 The test of relevancy 360, 361 Motion to strike out irrelevant matter 361, 362 Notice of motion to strike out irrelevant matter 361 When to be served 361 Waiver of notice 361, 362 Opposing motion to strike out matter as irrelevant 362 Principles governing the decision of the motion 362 An answer cannot be stricken out 363 Motion not favored by the courts 363 Moving party must be " aggrieved " 363, 364 When demurrer the proper remedy 364 Motion denied in case of doubt 364, 365 The order, and subsequent proceedings 365 Issue, When an issue of law or fact arises on the pleadings 12, 217 Time of joining issue in Justice's Court 405 Joinder, Provisions of the Code as to joinder of causes of action 116 Claims arising out of the same transaction 117 Claims arising out of transactions connected with subject of ac- tion 119 Causes joined must affect all parties 119 General Index. 511 Joinder — (Continued). Page. Of demands held in individual and representative capacity 132 Of claims against trustees 122 Of causes of action against executors, etc 123 Causes of action whicli cannot be joined 123 Inconsistent demands , 124 Demands affecting only part of tlie parties 119, 124 Claims requiring different places of trial 124 Against stockholders of corporations 124 Against trustees of corporations 124 Divorce and separation 124, 180 False imprisonment and malicious prosecution 125 Of pleas in abatement and pleas in bar 241 Misjoinder of parties, demurrer for 209 Non- joinder of parties, demurrer for 209 Misjoinder of causes of action, demurrer for 210 Answer of non-joinder of parties 241, 243 Joint Debtor, Complaint against joint debtor not summoned in prior action ; 191 Must be verified 52 Answer of joint debtor in such action 256 Judicial Notice, Matters judicially noticed need not be pleaded 81 Judgment, On default cannot be more favorable than that demanded 8 Leave to sue on 38, 132 Pleading judgment of court of limited jurisdiction 39 Pleading judgment of court of general jurisdiction 39 For part of entire demand merges all the demand 115 Against corporation, before action against stockholder 186, 187 Against corporation, when not prima facie evidence of debt 190 Demand of judgment in a complaint 199 Must be pleaded to be available as a defense 237 Plea of former judgment 245, 246, 247 On counterclaims 281 On failure to reply to counterclaim 290, 291, 383 Motion for judgment on frivolous pleading 357 Entry of judgment on frivolous pleading 359 On failure to answer 372 Entry by the clerk 372 On application to the court 375 On default of defendant not personally served 379 On failure to answer in foreclosure 380 On default in matrimonial actions 381 On failure to reply 290, 291, 383 Opening of judgment by default 383 Upon a counterclaim in Justice's Court 403 512 General Index. Judgment Creditor, Page. Complaint in creditor's action 183 In action against stockholders 186 In actions against trustees of corporations 189 In actions against defendants not summoned 191 Jurisdiction, Pleading jurisdictional facts under tlie Code 24, 39, 206 Pleading j urisdictional facts before the Code 39 Of superior city court presumed 39, 206 Want of jurisdiction a matter of defense 207 Pleading Judgments of courts of general Jurisdiction 39 Residence of defendant must be alleged in action in County Court. . 40 Failure to allege residence of parties in complaint in Justice's Court 396 Demurrer to complaint for want of jurisdiction 206 Alleging Jurisdiction of Judgment pleaded in bar 247 Attacking complaint for want of Jurisdiction on demurrer to answer 286 Justice's Court must have jurisdiction of counterclaim 401 Limitation is as to the nature and not as to the amount 401 Justice's Court, Pleadings authorized in a Justice's Court 391 Reply not authorized or required 391 Form of pleadings in Justice's Court 392 Pleading not required to be in any particular form 392 Pleadings may be oral or written as a general rule 393 Exception when verified or setting up title to land 392 Technical precision in matters of form not required 392 Great latitude allowed even in matters of substance 392 Pleading an account or instrument for payment of money 393 Demand of judgment 393, 394 The complaint in a Justice's Court 893 General requirements as to the complaint 893, 894 In action upon an assigned demand 394 By an infant 394 By receiver 394 By person suing in a representative capacity 394 By a public officer 394 Joinder of causes of action in the complaint 394 Verified complaint under the act of 1881 395 Service of summons and verified complaint 395 Proceedings on failure of defendant to answer 396 Answer in Justice's Court 396 May contain general or specific denial and defense or counter- claim 896 Denial of knowledge or information sufficient to form a belief. . 396 Contents of verified answer under the act of 1881 396, 397 Matters which may be proved under general denial 397 New matter which must be pleaded 397 Defect of parties must be pleaded 397 General Index. 513 Justice's Court — (Continued). Page. Demand of j udgment 397 Answer that title of lands will come in question 397, 399 When interposed 400 Must be in writing 398 Undertaking to accompany the answer 398 Discontinuance 398, 404 New action in higher court 398 Pleadings in new action 399 Failure to give the undertaking 899 Title in question on plaintiff's showing 399 Defeating answer by amendment of complaint 400 Counterclaims in Justice's Court 400 Requisites of the counterclaim allowed 400, 401 In action on contracts generally 401 In action on promissory note or bill of exchange 401 In action by trustee or person without interest 401 Not limited as to amount 401 Must be a cause of action of which justice has jnrisdiction 401 In action against person sued in a representative capacity 403 In action brought by executor or administrator 403 Mode of pleading counterclaim 403 Effect of failure to plead counterclaim 403 Judgment upon a counterclaim 403 Demurrers in Justice's Court. 404 To complaint 404 To counterclaim in the answer 404 Under the act of 1881 404 Time of joining issue in Justice's Court. 405, 406 Amendment of pleadings in Justice's Court 406 Amendment on appeal to the County Court 408 Justification, In action for slander or libel 17, 257 Before the Code 18, 259 Requisites of good answer in justification 258 Labor, (See Services.) Iiaches, A sufficient ground for refusing extension of time 297 Gross laches may defeat motion for leave to amend 319 A ground for denying leave to serve supplemental pleading 346 Law, Blending of law and equity 6 Issue of law raised by demurrer 13 Allegation of conclusions of law not permitted 33 What are conclusions of law 34 Leave to Sue, Must be alleged when a condition precedent ' 38, 133 When to be alleged 133 65 514 General Index. Legitimacy, Page. Of children, hove questioned in divorce 180 Iiibel, Code provisions as to pleading in action for libel 17, 44 Applying defamatory matter to plaintiff 17, 44 Proving mitigating circumstances and justification 17, 44, 222 Pleadings before the Code 18, 259 Answer in, may be unverified 56 Bill of particulars may be required 83 Allegations of damage 143, 144 Complaint in action for libel 161 Demurrer to complaint in action for libel 213 Answer may allege truth, in justification 257 Truth must be pleaded to be proved 257 Requisites of a plea in justification 258 Matter in mitigation 258, 259 Privileged communications 259 Supplemental complaint in action for libel 341 Xiicense, Must be pleaded 238 Iiien, Making owner of lien a defendant in partition 171 Allegations as to lien of a defendant in partition 171, 172 Iiife Insurance, Com.plaint on policy of life insurance 198 Iiife Tenant, Making life tenant defendant in partition 171 Iiimitation of Actions, For death by negligence 165 Against claimant of dower - - 174 Against a stockholder 187 Pleading statute as a defense 253 Complaint need not anticipate defense 38 Statute may be set up by amendment of answer 308 Cause of action barred by statute may be set up by amendment 316 Ijinuted Partnerships, Names of members to be placed in front of place of business 331 Variance as to number and names of partners , . . 331 Mail, Service of pleadings by 300, 301 Time in which to plead where service is by mail 393, 295 Malice, When an allegation of malice is essential to statement of cause of action 146, 147 Must be alleged in action for malicious prosecution 155 Need not be alleged in action for wrongful levy 157 Genekal Index. 515 Malice — (Continued). Page. Not necessary in stating cause for false imprisonment 158 Sliould be alleged in libel, wlien publication is presumptively privileged 163 Malicious Prosecution, Complaint for malicious prosecution 155 Bill of particulars of special damage will not be ordered 86 Cannot be joined with action for false imprisonment 125 Not actionable if there was probable cause 146 Allegation that prosecution is ended may be added by amendment. . . . 330 Mandamus, Oral pleading abolished 386 Pleadings in mandamus proceedings 387 Writ considered a complaint 387 Contents and requisites of the writ 387 Service of the writ 387 Return to the writ and filing 387 Contents and requisites of the return 388 Further return cannot be compelled 388 Demurrer to the writ 388 Demurrer to the return 389 The issues 389 Writ or return cannot be amended without leave 389 Writ or return cannot be stricken out , 889 Notice of filing return 389 Service of a demurrer to writ or return S89 Quashing or setting aside the writ 389 Staying proceedings 390 Enlarging time for making return, etc 390 Marine Insurance, Complaint on policy 193 Misjoinder, Demurrer to complaint for misjoinder of parties - . . 209 For misjoinder of causes of action 210 Amendment not permitted which will cause a misjoinder 308 In actions against stockholders of corporations, etc 318 Mitigation, Matter tending to mitigate damages a partial defense 17, 231 Proof of mitigating circumstances in slander and libel 17, 44, 238 Pleading mitigating circumstances 45, 238 Must be pleaded in action for slander 238, 258, 259 Proof of matter in mitigation on default 377, 878 Mortgage, {See Forbclosttre.) Not an instrument for payment of money only , 43 Complaint may ask to reform a mortgage and also to enforce it 115 Defendants in foreclosure 119, 130 Permission to sue on the bond ... 133 516 General Index. Mortgage — (Continued). Page . Complaint in action to foreclose 176 Deed may be shown to be a mortgage 240 Tender to estinguisb lien of mortgage "248 Motion, To require party returning pleading to receive it 65 To preclude party from giving evidence of account . . 79 To compel delivery of a further account 79, 80 For a bill of particulars 87 Where bill of particulars ordered is not served 90, 91 For a further bill of particulars 91 For a discovery or inspection of books and papers 93, 94, 96 To punish party for disobedience to order for discovery 100 For order for examination of a party 103 To strike out irrelevant, redundant or scandalous matter 109, 361 To compel party to make pleading definite and certain 109, 369 For leave to enter final judgment on demurrer 219 For judgment for failure to reply 291 For extension of time to plead 296 To compel filing of a pleading 303 When defeated by service of amended pleading 305, 311 To strike out amended pleading when served for delay 313 Por leave to amend a pleading 318 For leave to serve a supplemental pleading 344 To strike out a sham answer. . . . , 353 For judgment on a frivolous pleading 355, 857 For judgment on default of defendant 375 I'or dismissal of complaint for non-service 371 For judgment on default, summons served by publication 379 For judgment on failure to answer in foreclosure 380 For judgment on default in matrimonial actions 381 For relief from default 383 Municipal Corporations, Presentment of claim before suit against 38 Laches in applying for leave to amend 319 Names, Stating names of parties in title of the cause 110 Where name of defendant is unknown Ill Amendment of pleading as to names of parties 317, 330 Negative Pregnant, Treated as an admission 229 Negligence, Joinder of all negligent acts in a single count 49 Bill of particulars may be ordered in action for 83 Complaint in action for death by negligence 165 Complaint in action for negligence generally 167 General Index. 517 New Matter, Page. Deemed controverted wlieri not a counterclaim 10, 288 In reply must be consistent witli complaint 35 What is new matter constituting a defense 360 Non-joinder, Demurrer to complaint for non- joinder of parties. 209 Defense of non-joinder of parties 243 Waiver of objection 243 Non-payment, When necessary to be alleged in the complaint 141 Notice, Of election to treat a pleading as a nullity for defect in verification . 64, 65 Of motion to exclude evidence of an account 79 Of payment of money into court 249 Of appearance and demand of copy complaint 294 Of trial, defeated by amendment 305 Of motion for leave to amend 318, 319 Of motion for leave to file supplemental pleading 844, 845 Of motion for judgment on frivolous pleading 357 Of motion to strike out irrelevant and redundant matter 361, 362 Of motion to make pleading more definite and certain 369 Of assessment of amount due, on default 874 Of execution of reference or writ of inquiry 377 Of filing of return to writ of mandamus 389 Nuisance, • When answer to complaint for, may be unverified 56 Complaint in action for a nuisance 178 Numbering, Separating and numbering causes of action and defenses 47 Officer, Complaints by or against public officers 130 Allegation of special damage peculiar to plaintiff 144 Off-sets, Counterclaims and set-oflis in equity 279 In favor of adverse party, need not be stated in copy account 78 Order, For a bill of particulars 88 On failure to furnish a bill of particulars 90 For a further bill of particulars 91 Precluding party from giving evidence of an account 79 For a further account 79 To show cause why a discovery should not be had 96 For a discovery or inspection 98, 99 For the examination of a party 101, 105-108 Extending time to plead 296, 297 That pleadings be filed 303 For judgment on a frivolous pleading 859 518 General Index. Order — (Continued). Page. Granting leave to amend a pleading 320 That issues on a note, etc., of a corporation be tried 302 Striking out irrelevant, redundant or scandalous matter 365 On motion to strike out answer aa sham 354 Requiring pleadings to be made definite and certain 370 On motion for leave to serve a supplemental pleading 346 Ownership, Alleging ownership of a promissory note 31, 43, 194 Alleging ownership of chattels in replevin 149 Alleging ownership of property converted 152 Papers, Discovery and inspection of books and papers . 93 Requisites of the paper upon which pleadings are drawn 46 Partial Defenses, Could not be pleaded at common law 17 May be pleaded under the Code ; 17, 221 Wliat are partial defenses.-. 17, 231, 222 How pleaded 221, 223 Construction on demurrer 228, 288 Parties, Cross-action to bring in new parties 16 When excused from verifying a pleading 56 Verification of a pleading by a party 56, 59 Examination of a party in aid of pleading 101 To an action for partition 170, 171 Statement of names of parties in tbe title of the cause 110, 111 Who may be joined as parties 119, 130, 131 Causes of action in complaint must affect all parties 119, 130 Demurrer for misjoinder of parties 209 For defect of parties 309 Defense of non-joinder of parties^ 343 Service of jjleadings on a party 300 Cannot be changed by an amendment as of course 309 Amendment by the court as to parties 317 Amendment on the trial as to parties 330 Supplemental complaint to bring in new parties 338 Partners, Discovery or inspection of books in actions between 97 Non-joinder of dormant partner 244 Counterclaim in action against 264 Counterclaim in action by partner or firm 265 Peirtnership, Discovery and inspection of partnership books 97 Action by president or treasurer of 130 Counterclaims by or against 264, 265 Posting names of all members of limited partnership 331 Mistake in names of members of limited partnership 331 Genkeal Index. 519 Partition, P^g^ Bill of particulars refused in partition 86 Complaint in partition 17q Parties in partition 170 Controverting title of co-defendant in partition 223 Failure to deny the allegations in tlie complaint 225 Payment, When non-payment should be pleaded 28, 43 Payments by adverse party need not be stated in copy account 78 Plaintiff not bound to furnish bill of particulars of 90 Complaint need not negative defense of payment 148 Statement of non-payment in action of foreclosure 176 When evidence of payment may be given under general denial 231 When payment must be pleaded to be available as a defense 235 When made after suit brought, may be set up by supplemental answer. 344 Penalty, Complaint need not negative defense 29 Omission of verification of answer in action for 55 Action for statutory penalty cannot be joined with action on contract. 118 134 When action against stockholder is for a penalty 124 Performano e, Excuse for not performing an entire contract to labor, when not re- quired 28 Pleading performance of conditions precedent 36, 186 Personal Representatives, (See Executors, Admixistratoks, etc.) Of deceased partner entitled to discovery of partnership books 97 How designated in title of the action Ill Joinder of demands held in an individual and representative capacity. 122 Of causes of action on claims against trustees 132 Of causes of action against executors and administrators 123 Complaints by or against executors, etc 135 By or against receivers 137 Petition, For the discovery or inspection of books or papers 93, 94 Physician, Complaint in action by physician for slander 163 Place, Allegations of place, when material 32 Of place of contract 33, 134 Of readiness to deliver at the place specified 34 Presumption as to place, where pleading is ambiguous 70 Of place where adultery was committed 179 In action for death by negligence 166 Pleading, Defined 20 System of pleading introduced by the Code ' 3 520 General Index. Pleading — (Continued). Page. Old forms of pleading abolished 3 Matters of substance unaffected by the Code 4, 5 Law and equity blended 6 Tlie several pleadings employed under the old system 9 The pleadings authorized by the Code 9 When an issue arises on the pleadings 13 Truth, as a requisite of Code pleading 13 Cross-bill under the old_ system, and the substitute under the Code. . . 15 Partial defenses authorized by the Code 17 New rules in relation to actions of libel or slander. 17 Change in the system of demurrers 18 Allegations to show right to provisional remedy 19 General rules of pleading 20 Every material fact should be pleaded 20 No judgment can be based on matters not pleaded 21 Matters not pleaded but proved without objection 22 Facts should be pleaded and not evidence of the facts 22 Facts and not conclusions of law should be pleaded 23 Facts and conclusions of law distinguished 24-26 Facts should be stated according to their legal effect 26 Alleging acts done by an agent 26, 27 Stating in detail matters from which the ultimate fact results ... 27 Anticipating possible defenses unnecessary 28 Anticipating and avoiding statute of limitations 28 Negativing existence of contributory negligence 28 Allegations of non-payment 28 Excusing failure of plaintiff to fully perform 28 Exceptions and provisos in statutes 29 Showing validity of contract made in another State 33 Showing liability of defendant notwithstanding coverture. . . 29 Striking out matter anticipating a defense 29 Matters necessarily implied need not be alleged 30 Matters implied form part of a pleading 30, 31 Examples of implied averments 30, 31, 68 Matters judicially noticed need not be pleaded 31 Hypothetical pleading prohibited 32 Certainty as to time, place and value 33 When time is material and must be alleged 33 Allegations as to place, when material 33, 34 Allegations of value 34 Conciseness in pleading 34 In complaint, answer or reply 34 Irrelevant or redundant matter may be stricken out 34, 360 Statement of one transaction in different counts 35 Repetition of the same matter in different counts 35 Consistency in pleading 35 Consistency required only in complaint and reply 35 Inconsistent defenses may be set up in the answer 35, 36 General Index. 521 Pleading — (Continued). Page. Performance 'of conditions precedent must be alleged 36, 37, 136 Excusing non- performance of conditions precedent 36 Mode of alleging performance under the Code 87, 138 Pleader may state facts showing performance 37 Pleading due performance limited to contracts 37 Due performance of implied conditions may be alleged 37 Pleading performance of conditions in action against in- dorser 37, 43 Alleging presentment of claim to municipal authorities. ... 38 Allegation required in action upon an undertaking 88 Alleging leave to sue 38 Pleading jurisdictional matters 39 Jurisdiction of superior city courts presumed 39 Determinations of courts of general jurisdiction 89 Residence of defendant in action in county court 84, 40 Judgments of courts of other States 40 Actions or defenses founded on instruments for payment of money J^40 Short form of pleading authorized by the Code 40 Exact language of the Code need not be followed 48 Code form of pleading instrument need not be adopted 42 Allegations in actions or defenses founded on notes 41 Allegations requisite to charge an indorser 37, 42 Instruments in a foreign language 43 Mortgage not an instrument for payment of money only.. 43 'Account, how pleaded under the Code 43 Copy account may be required 43 Private statutes, how pleaded 43 Unnecessary to plead public statutes 43 Private statutes and statutes of other States must be pleaded. 44 Distinction between public and private statutes 44 In actions for libel or slander . . 44 Mitigating circumstances 45 Title in replevin 45 Formal rules of pleading 46 Requirement as to writing or printing 46 Folioing pleadings 46 Subscription and indorsement of pleadings 46 Separating and numbering causes of action and defenses 47 Matters which may be alleged in a single count 47, 48 Mode of distinguishing the several causes of action, etc... 49 Form of allegations or denials in verified pleadings 50 Allegations on information and belief 50, 51 Verification of pleadings ■ • • • 51 When verification is optional with the pleader 51 When a pleading must be verified 53 When the answer or reply to a verified pleading may be un- verified 54 522 General Index. Pleading — (Continued). Page. By whom pleadings may be verified 56 When verification may be by agent or attorney 58 Form of verification by a party 59 By agent or attorney 61 By a guardian ad litem '63 By an officer of a corporation 64 Remedy for defective verification 64 Construction of pleadings 66 Pleadings to be liberally construed 66 Rule applies to matters of form only 66 Use of words having different meanings 66 Facts stated control 67 Technical objections not encouraged 68 Pleading must be construed as an entirety 68 Construing pleadings against the pleader 68, 69 Uncertain denials 226 Whether answer sets up defense or counterclaim 69 Uncertainty as to cause of action stated in complaint 69 Ambiguity as to place 70 Limits of the rule 70 Of complaints by or against executors 126 Construction on demurrer 70 Construction on the trial 71 Facts specifically alleged prevail over general statements 72 Whether pleading alleges contract or tort 73 The complaint 109-203 Demurrer to the complaint 203-221 The answer 221-282 Demurrer to the answer 282-287 The reply 287-291 Demurrer to the reply 391 Copy account 76-SO Bills of particulars 81-93 Discovery of books, papers, etc., in aid of pleading 93-100 Examination of party in aid of pleading 101-108 Service and filing of pleadings 293 Time of service of the complaint 292 Of answer or demurrer 293 Of reply or demurrer to answer 295 Of amended pleading 331 Of answer to amended pleading 314 Of supplemental pleading 348 Extension of time to plead 295-399 Mode of service of pleadings 299 Papers to accompany pleadings served 303 Where service is without the State 802 Where action is against a corporation on a note, etc 303 Where wrong county is designated as the place of trial 803 Geneeal Index. 523 Pleading — (Continued). Page, Filing pleadings 303, 304 Amendment of pleadings of course 304 Eight to amend witliout leave of court 304 Time in which party may amend as of course 307 Nature and extent of amendment of course 308 Effect of an amendment 311 Remedy for improper amendments 312 Pleadings amended of course must be served and answered 314 Amendments on motion before trial , 315 Nature and extent of amendments allowed 315 Motion for leave to amend 318 Terms imposed on granting motion to amend 320 Service of the order and amended pleading 321 Amendment of pleadings at the trial 321 Conforming the pleadings to the proofs 321 Proceedings in case of variance between pleadings and proof. . . . 327 Inserting allegations material to the case; 330 As to parties 330 Power of referee to amend pleadings on the trial 332 Amendment of pleadings after trial or on appeal 333 Power to amend a pleading after trial 333 Supplemental pleadings 337 Nature and object of supplemental pleading 337 Supplemental complaint 338 Supplemental answer or reply 343 Application for leave to serve a supplemental pleading 344 Decision of the motion 346 Proceedings when the motion is granted 348 Sham answers or defenses 350 Power of the court to strike out a sham answer 350 What answers are sham 353 Motion to strike out sham answer 352 Proceedings where answer is stricken out 354 Frivolous pleadings 354 Remedy for frivolous pleading 354 What pleadings are frivolous 355 Motion for judgment on frivolous pleading 357 The order for judgment and proceedings thereunder 359 Irrelevant, redundant and scandalous matter in pleadings 360 What is irrelevant, redundant or scandalous matter 360 Motion to strike out irrelevant and redundant matter 361 Principles governing decision of the motion 362 Indefinite and uncertain pleading ... 366 Remedy for indefiniteness and uncertainty 366 Time and mode of making the motion 368 Proceedings under the order. 370 Default in pleading 371-386 Application of the rules of pleading to special proceedings 386 524 General Indbx. Pleading — (Continued). Page . In proceedings under writ of mandamus 386 In Surrogates' Courts 390 In a Justice's Court 391 Pleadings authorized -by the Code 391 Form of pleadings in Justices' Courts 892 The complaint/. , 893 Joinder of causes of action in the complaint 394 Verified complaint under the act of 1881 895 The answer 396 Answer that title to lands will come in question 397 Counterclaims in a Justice's Court 400 Effect of a failure to plead a counterclaim 402 Judgment upon a counterclaim 403 Demurrers in a Justices' Court 404 Time of joining issue in a Justice's Court 405 Amendments of pleadings in a Justice's Court 406 Policy, Complaint on a policy of insurance 192, 193 Defense of wager policy or breach of warranty must be pleaded .... 237 Possession, Alleging right to possession in ejectment 169 In replevin 149 ' In conversion or trover 152 Presentment, Alleging presentment or waiver in action against indorser 43, 195 In action against maker of a note 195 Principal and Agent, Alleging acts of agent as acts of principal 27 Alleging sale and delivery to principal though made to agent 27 Pleading contract made by an agent 27 Principal and Surety, Counterclaim in actions against sureties 263 Privileged Communication, Defense to action for slander, how asserted 259 Probable Cause, A justification for a prosecution instigated by malice 146 Absence of probable cause must be alleged in action for a. malicious prosecution 155 Want of probable cause no part of the allegations for false imprison- ment 158 Profits, Loss of profits should be specifically alleged 142 Promise, Sufficiently pleaded, if facts are alleged from which it will be im- plied 27, 30 General Index. 525 Promise — (Continued). Page. To pay, usually alleged in complaint on account stated 147 Written promise to accept a bill, equivalent to acceptance ... . . 198 Promissory Note, General provision as to pleading instruments for the payment of- money 40,41, 43 Complaint against maker of a note 194 Complaint against indorser of a note 195 Complaint against guarantor of a note 199 Complaint on ante-dated' note 14 Consideration need not be alleged 135 Implied averment in complaint on a note 30, 31 Verification by attorney in action upon a note 02 Construction of a complaint on a note 67 Amending complaint by omitting the consideration alleged 86, 87 Separate actions on notes given on settlement of a single claim .... 114 Alleging a demand in action on note payable on demand 140 Failure of consideration must be pleaded as a defense 237 Defense of usury in action on a note 251 Evidence admissible under a general denial in action for conversion of 235 Counterclaim in action brought by assignee of a, note 266, 401 Suit by payee of non-negotiable note against indorser 197 Proofs, Conforming pleadings to proofs 321 Failure of proof 329, 330 Protest, Excuse for failure to give notice of protest must be alleged 42, 196 How pleaded .32,33, 198 Provisional Remedy, Inserting allegations to show right to arrest 19 Effect of supplemental complaint on a, provisional remedy 349 Publication, Order for publication must be founded on verified complaint. ...... 53 Time within which to appear after service by publication 294 Filing of papers after service by publication , , 804 Proceedings on default after service by publication 374 Allegation of publication of a libel 161 Public OflScer, Verification of pleadings by 57 Public Policy, Proof under general denial , 232 Quo Warranto, Bill of particulars may be ordered in the action 83 Unnecessary allegations in complaint admitted by failure to deny . . 234 Supplemental complaint after judgment 343 52t) General Index. Rebutter, Page. Rarely used under former practice 9 Receiver, Complaints by or against receivers 137 Leave to sue receiver 133 Amendment substituting receiver for corporation, etc 317, 318 Recitals, Effect of recitals in a contract set forth in tlie complaint 184 Recoupment, Embraced in a counterclaim 260 Redundancy, Rule requiring conciseness in pleading 34 Cannot be reached by demurrer 212 Striking out redundant matter on motion 360, 361 What constitutes redundancy in pleading 361 Notice of motion to strike out redundant matter 861, 362 Moving papers 363 Opposing motion to strike out 363 Principles governing decision of the motion 362 Motion to strike out not regarded with favor 363 Granting of the motion discretionary 363 Moving party must be " aggrieved" by the redundancy 363 Motion denied in cases of doubt 364 Questions of sufBcienoy of the pleading not considered 364 Entire pleading cannot be stricken out 355 Order granting motion to strike out 365 Referee, May be appointed to superintend discovery 94 May be appointed to take examination of party before trial 106 Power of referee to amend pleadings 333 Reference, On default, to make computations, etc 376 Reformation, Reforming contract and enforcing it as reformed 301 Prior action for breach of covenant, no bar to action for reformation of covenant 208 Counterclaim for reformation of contract in suit 240 Rejoinder, A pleading under the old system 9 Release, No reply required to answer setting up a release 289 Release after issue joined, may be set up by a supplemental answer 344 Relief, Demand of alternative relief 203 Demand for general relief no longer proper 202, 203 General Index. 527 Remaindermen, Page. Right to bring action for partition 170 Remedy at La'w, Defense tliat plaintiff lias a remedy at law must be pleaded , 238 Rent, Complaint in partition seeking accounting for rents 173 Pendency of prior action for rent payable quarterly 208 Counterclaim in action for rent 275 Supplemental complaint for installments falling due after suit. .339, 340 Replevin, Pleading title in replevin 45, 253 Complaint in replevin 149 Demand of relief in complaint 152, 203 Demand of judgment by defendant by way of notice 223 What is put in issue by a general denial 233 Answer in replevin 253 Answer that chattel was distrained doing damage 45, 253 Plea of title in third person 233, 254 Plaintiff claiming as owner, cannot recover on a lien 323 Amendment inserting allegation of demand or wrongful taking 330 Amendment changing claim as executrix to claim as widow 331 Replication, A pleading under the old system 9 Reply, Must be verified where the answer is verified 54 Discovery or inspection may be ordered to enable plaintiff to reply ... 93 When required to form an issue 10, 287, 289 When not required 10, 288, 289 Striking out a reply as unauthorized 293 Requisites of the reply 289 New cause of action cannot be set up in reply to counterclaim 290 How pleaded 290 When the court may require a reply 10, 290 Requiring a plaintiff to reply, a matter of discretion 290 When the court is not authorized to order a reply 290 Effect of a failure to reply 290 t Judgment for failure to reply 291, 383 Not admissible in a Justice's Court 391 Demurrer to fhe reply 291 Time of serving reply 295 Supplemental reply 337 Report, Complaint against trustees of corporation for failure to file 189 Request, When to be alleged 38, 39 Residence, Of defendant should be alleged in complaint in County Court 40, 207 528 General Index. Residence — (Continued). 'Page. Statement of residence in action for divorce 179 Alleging residence in action for separation 181 Return, Of execution unsatisfied, wlien to be alleged in creditor's action 184 Alleging return of execution in action against stockholder 187 Alleging return of execution in action against guarantor 199 Offer to return property, when necessary to allege 257 To writ of mandamus 387 Of pleading defectively verified or not verified 65 Reversioner, Eight of reversioner to maintain action for partition 170 Scandalous Matter, Striking out scandalous matter from a pleading 34, 360-365 Costs of striking out scandalous matter charged upon attorney 365 Sealed Instrument, When consideration must be alleged in action on 135 Failure of consideration must be alleged as a defense 236 Seduction, Fiction of loss of service as the base of action 15 Complaint in action for seduction 164 Prior connection may be shown under general denial 234 Separation, Cause of action for divorce and separation cannot be joined 124 Complaint in action for separation 181 Answer in action for separation 254 Service, Of order for examination of a party 107 Of pleadings 292 Time of service of complaint 292 Time of service of answer or demurrer 293 Time of service of reply or demurrer to answer 295 Extending time of service 295 Mode of service 299 Personal service 300 Service other than personal 300 Papers to accompany pleading served 302 Of pleading amended as of course 314 Of pleading amended on the trial 329 Services, Bill of particulars in action for 83 Action for seduction founded on loss of services 164 Complaint in action for services rendered 191 Set-oflf, Included in counterclaim 260 Counterclaims and set-offs in equity 279 Geneeal Index. 529 Shaia Answers, Page. Power of the court to strike out a shain answer or defense 350 General denial cannot be stricken out as sham 350, 351 Counterclaim cannot be stricken out as sham 351 Affirmative answer or defense may be stricken out 351 Part of an entire answer or defense cannot be stricken out 352 What answers are sham , 353 Motion to strike out a sham answer 352 When and on what papers to move 352, 353 Opposing the motion 353 When motion will be denied , 353, 354 Proceedings where answer is stricken out 354 Slander, Pleadings in actions of libel and slander 17, 44 Bill of particulars may be ordered in action for 83 Causes of action for assault and slander cannot be joined 118 Special damage, in action for imputing uuohastity to a woman 143 Special damage, in action for slander generally 143, 145 Allegation of malice, when necessary 147 Complaint in action for libel or slander 161 Complaint in action for slander upon title 164 Mitigating circumstances may be shown with a j ustification 232 Mitigating circumstances must be pleaded 238 Bad character of plaintifE may be shown under general denial 234 Answer in action of slander or libel 257 Adding other defamatory words on the trial 325 Special Damages, What are special damages 143 Loss of proiits 143 Must be distinctly and definitely alleged 143, 143, 145 When failure to allege special damage is fatal 143 In actions on contract 143 In actions of tort generally 143 In actions for slander or libel 143, 144, 145 In action by private citizen against public officer 144 In action for assault and battery 148 Allegation of motive to show special damage 156 Amendment on appeal, by inserting allegation of 336 Special Demurrers, Have no existence since the Code 304 Under the old system 215 Specific Denials, {iSee Dbnial.) When the answer should contain a general or specific denial 323 Form and sufficiency of specific denials 226 Specific Performance, Alleging performance of conditions 189 Amendment on the trial to allow recovery of damages 335 67 530 General Index. Statute, Page. Complaint for statutory penalty need not negative defence 29 Exception must be negatived, but proviso need not 29 Public statute need not be pleaded 31, 43 Foreign laws and private statutes must be pleaded 31, 43 Statute of another State must be averred as any other fact 44 Distinction between public and private statutes 44 Pleading usury laws of other States ^ 351 Statute of Frauds, Defense need not be anticipated in complaint 28 Defendant mast plead the defense unless it appears on the face of the complaint 236 Statute of Limitations, Defense of, need not be anticipated 28 Defense must be pleaded by defendant 285 How pleaded 252 Pleading the statute in reply to affirmative cause of action 289 Reply may be ordered to a plea of the statute of limitations 290 Defense may be set up by amendment of answer 308, 316 Stay of Proceedings, For failure to deliver a further account when ordered 80 For failure to serve bill of particulars 90 On discovery or inspection 89 Stipulation, Extending time to plead 296, 298 Stockholders, Joinder of causes of action against 124 Complaint in actions against 186 Striking Out, Matters in anticipation of a defense 29 Complaint for disobedience to order for further account 80 Complaint for disobedience to order for bill of particulars 90 Pleading of party disobeying order for discovery, etc 100 Amended answer which is substantially the same as original 310 Sham answer and defenses 350-354 Frivolous pleadings cannot be stricken out 355 Irrelevant, redundant and scandalous matter 360 Subscription, Of pleadings 46 Of copy account 78 Superior City Court, Jurisdiction presumed 206 Supplemental Pleadings, In action for divorce or separation 182, 255 Nature and object of a supplemental pleading 337 Supplemental complaint 338 General Index. 531 Supplemental Pleadings — (Continued). Page. Supplemental answer or reply 343 Application for leave to serve 344 Decision of motion for leave to serve 346 Proceedings where leave is granted to serve 348 Supplemental Summons, Must be issued to new defendant brought in by supplemental pleading. 348 Surety, Counterclaims in actions against sureties 363 Tenants in Common, Partition may be brought by tenants in common 170 Tender, Plea of tender 248 Of specific articles called for by contract 248 To extinguish lien of mortgage 248 Of a conveyance 249 After suit 249 Payment of money into court 249 Cannot be joined with defense of usury 251 Time, Certainty in allegations as to time 33 Of demand of copy account 77 In which to amend after demurrer 219 Of service of complaint 293 Of service of demurrer or answer 298 Of service of reply or demurrer to answer 295 Extension of time to plead 295 In which to amend as of course 307 In which to move to make pleading definite and certain 368 Title, Of the cause 109, 110 Indorsement of pleadings with title of cause 47 Statement of title to chattels in replevin , 149 Statement of title in trover 153, 153 Complaint in action for slander upon title 164 Alleging title in replevin 169 Alleging title of parties in partition 173 When put in issue by general denial 338, 334 When title in third person should be pleaded 333, 254 Tort, Whether a pleading alleges a breach of contract or a tort 73 Joinder of causes of action in contract and in tort 118 Allegations of damage in actions of tort 143 Proof under general denial in action for tort 333, 284 Counterclaims in actions for tort 269, 270 Changing nature of the action by amendment 316, 3S3, 333 532 General Index. Town, Page. Complaints for failure to keep liridge in repair 29 Trade- Mark, Counterclaim in action to restrain violation of 271 Treble Damages, Demand of judgment for treble damages 203 Trespass, Bill of particulars in action of trespass ■. 83 Plea of title in third person 284 Answer in action for trespass 253 Trial, Amendment of pleadings on the trial 321 Construction of pleadings on the trial 71 Trover, Allegations as to value in trover 34 Whether complaint states action for trover or breach of contract 74 Bill of particulars in trover 83 Joinder of trover and action for accounting 118, 119 Wrongful intent of defendant not essential to sustain trover 147 Complaint in trover 15'2 What is put in issue by general denial 233, 235 Answer in trover 253 Counterclaim in action of trover 269, 270, 271 Trustees, Joinder of causes of action upon claims against trustees 122, 124 Complaint in action to foreclose mortgage executed by trustee 177 Complaint by creditor against trustee of corporation 189 Counterclaim in action by trustee 267, 401 Truth, As an element of Code pleading 13 Uncertainty, Remedy for uncertainty in pleading 81, 212, 366 Undertaking, Complaint on undertaking given on appeal 38 On entry of judgment by default 379, 380 On answer of title to land in Justice's Court 398 Use and Occupation, Amendment to allow recovery on a lease 325' Usury, When defense unavailing if unaccompanied by denial 225, 22C Defense of usury must be pleaded 237, 25( How the defense must be pleaded 250, 251 Pleading usury laws of other States 351 Cannot be joined with plea of tendpr 251 When a counterclaim and not a defense 260 Defense may be set up by amendment , 308, 316 Genekal Index. 533 Value, Page. Certainty required in allegations of value 33 Variance, When material and when immaterial 337 Proceedings where the variance is immaterial 337-338 Proceeding where the variance is material 337-338 What is not a variance but a failure of proof 339, 330 Venue, Demand of change of venue 303 Change of venue by amendment of complaint 309, 311 Verification, Of a petition for a discovery or inspection of books, etc 96 Of copy account 43, 78 BUI of particulars need not be verified unless order requires it 90 When the verification of a pleading is optional with the pleader 51 When a pleading must be verified 53, 343 When an answer or reply to a verified pleading may be unverified. . . 54 By whom pleadings may be verified 56 When verification may be by agent or attorney 58 Form of verification by a party 59 Requisites of verification by agent or attorney 61 By guardian ad litem 63 By officer of a corporation 64 Remedy for defective verification 64 Is no part of a complaint 310 Complaint cannot be amended by merely adding verification 310 Of complaints in Justice's Court, and judgment for want of answer.. . 895 Of answer to verified complaint in Justice's Court. 396 Waiver, Of want of jurisdiction of the person by appearance 39 Alleging waiver of notice of protest, etc 43 Of defect in verification 64 Of defects in pleading by failure to object before trial 71, 73 Of a vendor's lien must be pleaded by party claiming it 337 Of mistake in corporate name 336 Of right to amend once as of course 306 Of a tort cannot be abandoned at the trial . ■. 333 Of motion to strike out irrelevant matter 361 Warranty, Complaint for breach of warranty and not for fraud 75, 76 : Joinder of causes of action on a warranty and on fraud 118 ' Breach of warranty in insurance policy must be pleaded 337 Counterclaim for breach of warranty 375, 376 Waste, Committed on mortgaged premises, may be pleaded as counterclaim. . 371 Widow, Action for death of husband caused by intoxication 168 534 General Index. Will, P ^e. Counterclaim in action for construction of a will ^ '1 Writ, Of nuisance abolished and action substituted I'J'S Of inquiry, may be ordered on default 376 Of mandamus, application of rules of pleading to S^ ) %~ i jM