Kf /'^ h ! "lo-i (JJnntpU Haul §>rhnnl iCibrary KFN601o'B3Tl9or''''-'''"^^ ''\mmimiillimliiSii ""*' "'^ New York 3 1924 022 783 538 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022783538 THE RULES OF PLEADING UNDER THE NEW YORK CODE AND THE CODES OF OTHER STATES, PRAC^TICE RELATING TO PLEADING. APPENDIX OF FORMS. By EDWIN BAYLIES, LL. D. Author of " Baylies' Trial Practice,'' " Baylies on New Trials and Appeals," etc., etc. SECOND EDITION. Rochester, N. T. WILLIAMSON LAW BOOK COMPANY, LAW BOOKSELtERS AND PTTBLISHERS. 1904. 13 7^2^7 Copyright, 1904, BY Edwin Baylies. 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 com- plaint. No set form of words is now essential to the proper statement of any cause of action or defense. The pleader may dioose his own language and state 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 qualification of a successful lawyer, and a proper pleading is as important 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, haye ceased to be important^ An attempt has been made to present in the following pages a clear and concise statement . of the rules of pleading estab- lished by the Code as construed and applied by the decisions of the courts. In this attempt, the New York Code, which is the basis of the codes of many of the Code States, has been adopted as the expression of the iniles of Code pleading. The authori- ties cited have been taken from the decisions of the courts of every State in which a Code has been adopted, and in rare in- stances from the decisions of courts of other States holding the same rule of pleading. Where there is a conflict of authorities, that fact has been noted, and the cases given in the foot-notes By this method it was hoped that a volume, though made to con- form particularly to the rules of pleading established by the iii iv Preface. New York Code of Civil Procedure, would be found of use to the practitioner 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 other- wise 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. PREFACE TO THE SECOND EDITION. The Code of Procedure adopted by the Legislature of the State of New York in 1848 may with justice be called the parent of the American Codes and the basis of the present re- formed system of practice and pleading. A& it substituted a new and untried system in place of one which had grown up out of the experience and practice of centuries, it naturally aroused the opposition and hostility of the more conservative members of the bar, and also to a limited extent was the subject of hostile criticism from the bench. Even the friends of the reform movement for a time failed to grasp the full significance and scope of its provisions, and the rules of the old system were resorted to in the interpretation and application of the new. For more than a quarter of a century after its adoption in jSTew York the various provisions of the Code of Procedure were con- tinually before the courts of that State for construction and interpretation, resulting in bringing out with unmistakable distinctness the true meaning, purpose, scope and application of that act. The controversies over these questions of practice and pleading had a far-reaching effect. Many of the Western and a few of the Southern States substantially adopted and re- enacted the majority of the provisions of the New York Code of Procedure and thus in effect adopted as well the prior deci- sions of the New York courts explanatory of that act, upon the familiar principle that a Legislature in adopting a statutory provision of another State is presumed to have adopted also the prior decisions of the courts of that State construing and inter- preting that provision. It is upon this theory that the plan of the present volume has been framed. The rules of pleading established by the ISTew York Code of Civil Procedure, which is but a slightly modified vi Peeface to Second Edition. amplification of the former Code of Procedure, and the deci- sions under both so far as they are applicable, have been taken as the basis of this work; but the statutes and decisions of all the Code States have been cited impartially, although in respect to the number of citations, the preponderance is necessarily in favor of the earlier Code States. Where there is a conflict in respect to any rule of pleading in the statutes or decisions of the several States, the fact is noted in the text or foot-notes, and in most cases the cause of the divergence also is noted. But there is surprisingly little conflict in statutes or decisions. The gen- eral adoption of the essential features of the ISTew York Code has tended towards general harmony in practice and procedure throughout States having commercial and business interests in common. It has directly tended also to round out and complete our present system of Code pleading by bringing to its study and application the minds of so many distinguished jurists in States widely separated. It has changed what was once dis- tinctively the ISTew York system of pleading to the American system, and has paved the way to its general adoption through- out the country. Even in what are commonly knovsm as common-law States Code principles and methods have been en- grafted upon the old system by statute, until a knowledge of Code pleading has become as necessary there as elsewhere. Under these influences the present system has passed the forma- tive stage, and while less hampered by useless and conventional forms, is as thorougjily governed by well settled rules as the system which it supplanted. It has been the aim of the writer to state in this volume all those rules with all of their qualifications and exceptions ; to so arrange the subject-matter that it shall furnish at least a con- venient key to the reports from which the principles stated have been drawn ; to give preference to the practical over the theo- retical in the plan adopted ; and to furnish a complete and common-sense index to the subjects treated. Since the publication of the former edition of this work in 1890 more than two himdred and twenty volumes of the re- ported decisions of the courts of the State of E"ew York alone Peeface to Second Edition. vii have been added to the lawyers' libraries, and in the same period the courts of the other States have been equally fruitful. A glance at the table of cases cited will show what use has been made of this material. In citing New York cases the refer- ences have not been confined to the official series, and as a rule refer as well to other series of reports not termed " official." In view of all the surrounding circumstances it was deemed advisable to re-write rather than to revise the first edition. If the writer has failed in the following pages to present an in- telligible, comprehensive and accurate statement of the rules of Code pleading the fault lies in the gray matter of his brain and not in the lack of care and research. EDWIN BAYLIES. Johnstown, IST. Y., February, 1904. TABLE OF CONTENTS. CHAPTER I. The system of pleadings introduced by the Code. Page. Section 1. Abolition of forms and former rules of pleading 1 Section 2. Effect of the Code as to the substance of pleadings 5 Section 3. Blending of law and equity 6 Section 4. The pleadings at law or in equity before the Code 11 Section 5. The pleadings authorized by the Code 15 Section 6. AYhen an issue of law or fact arises on the pleadings .... 22 Section 7. Truth as a requisite of Code pleading 24 Section 8. The cross-complaint, cross-petition, or cross-bill 26 Section 9. Partial defenses ■ 30 Section 10. Pleadings in actions of libel or slander 30 Section 11. Other changes in pleading introduced by the Code 32 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. CHAPTER II. General rules of pleading. Nature, object and necessity of pleadings 33 Every material fact should be pleaded 35 Facts should be pleaded, not evidence of the facts 35 Facts should be pleaded, and not conclusions of law 37 What are facts and what are conclusions of law 39 Stating facts according to their legal effect 42 Anticipating possible defenses .' . . 45 That which the law implies need not be alleged 48 Matters judicially noticed need not be pleaded 50 Hypothetical pleading 51 Certainty as to time, place and value 52 Conciseness in pleading 54 Consistency in pleading 56 Pleading performance of conditions precedent 59 Pleading jurisdictional matters 63 Pleading an instrument for the payment of money only. . 66 Pleading an account 69 Pleading statutes and ordinances 70 ix X Table of Contea'ts. CHAPTER III. Formal rules of pleading. Page. Section 1. Requireniciit as to writing or printing 72 Section 2. Folioing pleadings, etc 73 Section 3. Subscription and indorsement 74 ibection 4. Separating and numbering causes of action and defenses . . 75 Section 5. Reference from one count to another 78 Section 6. Forms of allegations or denials in verified pleadings.... 79 CHAPTER IV. Verification of pleadings. Section 1. When verification is optional 81 Section 2. When a pleading must be verified 84 Section 3. When the answer or reply to a verified pleading may be unverified _. . . 85 Section 4. By vifhom pleadings may be verified 88 Section 5. When the verification may be by agent or attorney 91 Section 6. Form of verification by a party 94 Section 7. Form of verification by an agent or attorney 96 Section 8. I'orm of ■Verification by a guardian ad litem 99 Section 9. Form of verification by an officer of a corporation 99 Section 10. Remedy for defective verification 100 CHAPTER V. Construction of pleadings. Section 1. When pleading^ are to be liberally construed 102 Section 2. When a pleading is to be construed against the pleader . . 106 Section 3. Construction of pleadings on demurrer 107 Section 4. Construction of pleadings on the trial 108 Section 5. Pacts specifically alleged prevail over general statements. 109 Section 6. Construction as to the nature of the action 110 Section 7. Construction as to the nature of the defense 115 CHAPTER VI. Copy account. Section 1. When a party is entitled to a copy account 117 Section 2. Demand, liovv and when made 118 Section 3. Proceedings in compliance with the demand 119 Section 4. Proceedings on failure to comply with the demand 120 Scilion ."i. Proceedings where a defective account is served 121 CHAPTER VII. Bill of particulars. Si'ction 1. Nature, scope and oflice of a bill of particulars 122 Section 2. Aelio]is in which a bill of particulars may be ordered.. 124 Table of Contents. xi Page. Section 3. Defendant may be required to furnish a bill of particulars 127 Section 4. Requiring particulars of the damages claimed 128 Section 5. Comparative knowledge of the parties as affecting the remedy 130 Section 6. Bills of particulars in actions for personal injuries 132 Section 7. Bill of particulars to enable defendant to answer 133 Section 8. Application for the order 134 Section 9. Form and contents of the order . , 138 Section 10. Form and contents of the bill of particulars 139 Section 11. Proceedings where no bill is furnished 139 Section 12. Proceedings where a defective or evasive bill is furnished. 140 Section 13. Amendment of the bill 141 Section 14. Effect of the bill of particulars 141 CHAPTER VIII. The complaint or petition. Section 1. General requisites of a complaint or petition 143 Section 2. The title of the action 144 Section 3. General rules governing the statement of the cause of action 148 Section 4. What constitutes a single cause of action 148 Section 5. A single cause of action cannot be divided 151 Section 6. Provisions of the Code as to the joinder of causes of action 152 Section 7. Joinder of claims arising out of the same transaction... 156 Section 8. The several causes of action must affect all parties 162 Section 9. Joinder of demands held in both an individual and rep- resentative capacity 166 Section 10. Joinder of causes of action upon claims against trustees. . 167 Section 11. Joinder of causes of action against executors, etc 168 Section 12. Causes ol action which cannot be joined in the same pleading 169 Section 13. Complaints by or against executors, etc 171 Section 14. Complaints by or against a receiver 174 Section 15. Complaints by guardians 176 Section 16. Complaints by or against corporations and associations. . 177 Section 17. Alleging leave to sue in actions under the New York Code. 180 Section 18. Mode of pleading a contract 182 Section 19. Allegations as to the consideration of the contract 185 Section 20., Alleging performance of conditions 186 Section 21. Alleging a demand in an action on contract 192 Section 22. Alleging the breach of a contract 194 Section 23. Allegations of damage in actions on contract 196 Section 24. Allegations of damage in actions of tort 197 Section 25. Allegations of wrongful intent 201 Section 26. The demand of judgment or relief 203 TahI.E on? CoXTK.XTS. Section 1. iSeetion 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 21. Section 22. Section 23. Section 24. Section 25. Section 26. Section 27. Section 28. Section 29. Section 30. Section 31. Section 32. Section 33. Section 34. Section 35. Section 36. Section 37. Section 38. CHAPTER IX. The essential allegations in particular actions. p^g^ Complaint in an action on an account stated 210 ComiJlaint in action for assault and battery 211 Complaint in replevin 213 Complaint in action of trover or conversion 219 Complaint in action for malicious prosecution 224 Complaint in action for abuse of legal process 226 Complaint in action for false imprisonment 227 Complaint in action for conspiracy 228 Complaint in action for fraud and deceit 229 Complaint in action for libel or slander 233 Complaint in action for slander of title 240 Complaint in action for seduction 240 Complaint in ordinary actions for negligence 243 Complaint in actions for negligence causing death 246 Complaint in ejectment 250 Complaint in partition under the New York Code 253 Complaint in action for dower 257 Complaint in action against claimant of dower 258 Complaint in an action to compel a determination of a claim to real property 260 Complaint in action to foreclose a mortgage 262 Complaint for the reformation of a written instrument. . 265 Complaint in action for and absolute divorce under the New York Code 267 Complaint in action for a separation 269 Complaint in judgment creditor's action under the New York Code 271 Complaint in judgment creditor's action to set aside fraud- ulent conveyance 274 Complaint in creditor's action under New York statutes.. 279 Complaint in action to reach surplus income of trust property 281 Complaint in action by creditor of corporation against a stockholder 283 Complaint in action of interpleader 287 Complaint by judgment creditor against defendants not summoned 290 Complaint in an action on a policy of insurance 291 Complaint for the rescission of a contract 294 Complaint against the maker of a promissory note 296 Complaint against indorser of a promissory note 299 Complaint on a bill of exchange or check 301 Complaint upon a contract of guaranty 303 Complaint in action to recover compensation for services . . 304 Complaint for specific performance of a contract 306 Table of Contents. Xlll 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. CHAPTER X. Demurrer to the complaint. Page. When a demurrer to the complaint may be interposed .... 309 Want of jurisdiction of the subject-matter .313 Want of capacity to sue 315 Another action pending between the same parties 317 Misjoinder of parties 318 Defect of parties 320 Misjoinder of causes of action 322 No cause of action stated 324 Improper demand for relief 326 Demurrer to the whole or a part of the complaint 330 The proper party to demur 332 Form of the demurrer 333 Effect of omission to demur 336 Decision of the demurrer and proceedings thereupon 337 Effect of a demurrer as an admission of facts 340 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. iSection 14. Section 15. Section 16. Section 17. Section 18. Section 19. Section 20. Section 21. Section 22. Section 23. Section 24. CHAPTER XI. The answer. Requisites of an answer under the New York Code 342 Demand of judgment in an answer 346 Omission to deny as an admission of facts pleaded 448 Form and sufficiency of general or specific denials 350 Negative pregnant 356 Denials upon information and belief 358 Denials of linowledge or information sufficient to form a belief 360 Pleading other matters in connection with denials ^ 364 What may be shown under a general denial 366 Defenses which must be pleaded to be available 372 Equitable defenses 382 Pleas in abatement and pleas in bar 385 Defense of non-joinder of parties 388 Plea of a former action pending 390 Plea of a former judgment 390 Plea of tender 393 Usury as a defense 396 Discharge in bankruptcy 399 Statute of limitations 400 Answer in action for determination of claims to land .... 403 Answer in replevin, trover or trespass 403 Answer in action for divorce or separation 405 Answer of joint-debtor not served with summons 407 Alleging fraud to defeat action on contract 408 XIV Table of Coxtents. Page. Section 25. Answer in action of slander or libel 409 Section 26. Distinction between a defense and a counterclaim 411 Section 27. General lequisites of a counterclaim under the New York Code 414 Section 28. Counterclaim must be a cause of action in favor of defend- ant 415 Section 29. Counterclaims by persons suei in a representative capacity 417 Section 30. Must be a cause of action against the plaintiff 418 Section 31. Counterclaims in actions upon assigned demands 419 Section 32. Counterclaim in action by trustee or plaintiff without in- terest 423 Section 33. Counterclaim in actions by executors and administrators.. 424 Section 34. Relation between the counterclaim and the plaintiff's cause of action 426 . Section 35. Counterclaim in actions on contract 433 Section 36. Counterclaim in action of foreclosure 436 Section 37. Counterclaim against co-defendants under the New York Code 438 Section 38. Counterclaims and set-offs in equity 440 Section 39. Mode of pleading a counterclaim 442 Section 40. Mode of trial, and judgment on counterclaim 444 Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. CHAPTER XII. Demurrer to the answer. When a demurrer to the answer is authorized 446 Demurrer to answer containing denials 447 Demvirrer for insufficiency 449 Demurrer for want of jurisdiction 450 That the counterclaim is not authorized by the Code 451 Mode of taking the demurrer 451 Principles governing the decision on demurrer 454 Effect of omission to demur 457 CHAPTER XIII. The reply. Section 1. When a reply is required to form an issue 457 Section 2. Requisites of the reply 461 Section 3. Reply required by the court 463 Section 4. Effect of a. failure to reply - 464 CHAPTER XIV. Demurrer to the reply. Section 1. The remedy by demurrer, and its scope and effect 465 Table of Contents. XV CHAPTER XV. Service and filing of pleadings under the New York Code. Page. Section 1. Time of service of the complaint 467 Section 2. Time of service of the answer or demurrer 467 Section 3. Time of service of reply or demurrer to answer 470 Section 4. Extension of time to plead 470 Section 5. Mode of service 474 Section 6. Papers to accompany the pleading served 477 Section 7. Filing pleadings 478 CHAPTER XVI. Amendment of pleadings of course. Section 1. Right to amend without leave of court 480 Section 2. Time in which a party may amend as of course 483 Section 3. Nature and extent of amendments of course 484 Section 4. Effect of an amendment 488 Section 5. Remedy for improper amendments 490 Section G. Pleadings amended of course must be served and answered 492 Section Section Section Section Section Section Section Section Section Section Section Section Section CHAPTER XVII. Amendments on motion before trial. 1. Nature and extent of amendments allowed on motion 492 2. The motion for leave to amend 497 3. The decision of the motion and the order thereon 499 4. Terms imposed on granting leave to amend 501 5. Service of the order and amended pleading 502 CHAPTER XVIII. Amendment of pleadings at the trial. 1. Conforming the pleadings to the proofs 503 2. Proceedings in case of variance between the pleadings and the proofs 511 3. Inserting allegations material to the case 515 4. Amendment as to parties 517 5. Power of a referee to amend pleadings 520 CHAPTER XIX. Amendment of pleadings after trial or on appeal. 1. Power to amend a pleading after trial 522 CHAPTER XX. Supplemental pleadings. 1. Nature and object of a supplemental pleading 528 2. Supplemental complaint 530 xvi Taiile (IF Contents. Page. Section 3. Supplemental answer or reply 536 Section 4. Application for leave to serve a supplemental pleading. . . . 539 Section 5. Decision of a motion for leave to file a supplemental plead- ing 540 Section 0. Proceedings when the motion is granted 544 CHAPTER XXI. Sham answers or defenses. Section 1. Power of the court to strike out a, sham answer 546 Section 2. What answers are sham 550 Section 3. Motion to strike out a sham answer 551 Section 4. Proceedings where answer is stricken out 553 CHAPTER XXII. Frivolous pleadings. Section 1. Remedy for frivolous pleading 553 Section 2. What pleadings are frivolous 556 Section 3. Tlie motion for judgment on a. frivolous pleading 557 Section 4. The order and proceedings thereunder 559 CHAPTER XXIII. Striking out irrelevant, redundant or scandalous matter. Section 1. What matter is irrelevant, redundant or scandalous 561 Section 2. The motion to strike out irrelevant and redundant matter 563 Section 3. Principles governing the decision of the motion 564 CHAPTER XXIV. Indefinite and uncertain pleadings. Section 1. Remedy for indefiniteness and uncertainty 570 Section 2. Time and mode of making the motion 573 Section 3. Proceedings under the order 575 CHAPTER XXV. Default. Section 1. Failure to serve complaint on demand 575 Section 2. Judgment on failure to answer 577 Section 3. Application to the court for judgment by default 580 Section 4. Proceedings on default of a defendant not personally served in the State 585 Section 5. Judgment on failure to answer in action to foreclose a niorl"a,ui- 586 Table of Contents. xvii Page. Section 6. Default in matrimonial actions 588 Section 7. Failure to reply 589 Section 8. Relief from default 590 CHAPTER XXVI. Application of the rules of pleading to special proceedings. Section 1. Rules of pleading applied in proceedings for a mandamus. Section 2. Pleadings in surrogates' courts 594 598 CHAPTER XXVII. Pleadings in a justice's court. Section 1. Pleadings authorized in a justice's court 599 Section 2. Form of pleadings in justice's court 599 Section 3. The complaint 601 Section 4. Joinder of causes of action in the complaint 603 Section 5. Verified complaint xmder the act of 1881 603 Section 6. The answer 604 Section 7. Answer that title to lands will come in question 606 Section 8. Counterclaims in justices' courts 609 Section 9. Effect of a failure to plead a counterclaim 611 Section 10. Judgment upon the counterclaim 612 Section 11. Demurrers in a ju.stice's court 613 Section 12. Time of joining issue in a justice's court 614 Section 13. Amendment of pleadings in justice's court 615 Appendix of forms 019 Index 087 TABLE or CASES. Page. Abba V. Smyth 376 Abbe V. Clark 388 Abbott V. Allen 195 Abbott V. Hancock 319 Abbott V. Jewett 496 Abbott V. Meinken 498,501 Abernathy v. Seagle 34 Able V. Clark 605 Aborn v. Waite 498 Abram French Co. v. Shapiro. . 542 Abrams v. Mitchell 469 Acer V. Hotchkiss 116, 413, 441, 443 Acker v. Campbell 217. Adams v. Bissell 161 Adams v. Mayor of N. Y. .183, 306 Adams v. Roberts 463 Adams v. Sherrill 61, 300 Adams v. Stevens 164, 322, 323, 333 Adams & Lang v. West Shore, etc., E. R. Co 487 Adams & Westlake Co. v. West- lake 377 Adee v. Bigler 275, 277 Addington v. Allen 203, 231 Adsit V. Butler 276 Agawam Bank v. Egerton 548 A.. Hall Terra Cotta Co. v. Doyle. 206 Ahr V. Marx 298 Alabama v. Burr 37 Albanj' Bi'ewing Co. v. Barckley. 147 Albany City Savings Inst'n v. Burdick 266, 439 Albanv County Bank v. Rider. 546, 550, 552 Albert Palmer Co. v. Shaw. . . . 474 Alburtis v. McCready 615 Alder v. Bloomingdale 299 Alderton v. Conger 396 Aldrich v. Lapham 264 Alexander v. Aronson. 360, 364, 548 Alexander v. City of Albany. . 363 Alexander v. Katte....l0, 205, 329 Page. Alexander v. O'Hara 190 Alexander v. School District. .. 385 Alger V. Scoville 167 Allinger v. McKeown 243 Allis v. Leonard 352 Alleman v. Bowen 300 Allen V. Allen 5, 113 Allen V. City of Buffalo 318 Allen V. Compton 491 Allen V. Fowler & Wells Co . . . 592 Allen V. Home Ins. Co 292 Allen V. Maleom 455, 456 Allen V. McMonagle 221 Allen V. Patterson 35, 104, 107 Allen V. Stead 131 Allerton v. Allerton 295, 296 Allyn V. Thurston 276 Alston V. Mechanics' Mut. Ins. Co 501 Alston V. Wilson 38 American Bible Society v. Stark. 30 American Broom & Brush Co. v. Addiekes 123 American Credit Indemnity Co. V. Bondy 136 American Dock & Improvement Co. V. Staley 459 American Ins. Co. v. Leonard . . 63 American Nat. Bank v. Grace. 159, 162 American Insulator Co. v. Bank- ers & Merchants Tel. Co. . . . 100 American Union Tel. Co. v. Middleton 76 Ames V. Rathbun 517 Almes V. Stockert 409 Anable v. Anable 99 Anable v. Steam Engine Co . . . 349 Anderson v. Doty 87, 88 Anderson v. Hill 158, 322 Anderson v. Richards 330 Anderson v. Schlessinger 212 Anderson v. Watt 64 Anderton v. Wolf 320, 332, 336 Andrews v. Astor Bank 302 Table of Cases. Page. Andrews v. Bond 2, 366, 367 Andrews v. Cleveland 136 Andrews v. Gillespie 266 Andrews v. King County 231 Andrews v. Storms 90 Andrews v. Van Duser 410 Angel V. Simpson 376 Angell V. Van Sehaick 341 Anibal v. Hunter 409 Annis v. Upton 444 Anoka First Nat. Bank v. St. Croix Boom Co 220 Appleby v. Elkins 560 Apitz V. Missouri Pacific Ry. Co 71 Argall V. Jacobs 461 Argall V. Pitts 584 Argersinger v. Levor 618 Argotsinger v. Vines 197 Alrkenburgh v. Arkenburgh .... 583 Arkenburgh v. Wiggins 164, 166, 167 Arlt V. Whitloek 266 Armor v. Fisk 59 Armstrong v. McKelvey . . . 384, 440 Armstrong v. Percy 196 Armstrong v. Union College.. 258 Arnold v. Angel 10 Aron V. City of Wausau 340 Aiosemena v. Hinckley 222 Arrow Steamship Co. v. Ben- nett 233, 240 Arthur v. Brooks 51, 355 Arthur v. Griswold 230 Arthur v. Homestead Fire Ins. Co 20, 459 Ashland M. E. Church v. North- ein P. R. R. Co 242 A,shley v. Harrison 200 Askins v. Hearns 428, 429 Atkinson v. Manks 288 Atlantic, etc., Co. v. Baltimore & 0. R. R. Co 314 Atlantic Ins. Co. v. Manning. . 63 Atwood V. Austin 615 Atwood V. Welton 41 Auburn City Bank v. Leonard. 318, 382, 384 Aulbach v. Dahler 78 Aulger V. Clay 394 Aultman, Miller & Co. v. Hack- er 375 Austen v. Westchester Tele- phone Co 359 Austin V. Rawdon 2, 111, 112 Austin V. Schluyter 251 Auzerais v. Naglee 118 Avery v. Dougherty 36 Page. Aveiv V. N. Y. Cent., etc. R. R."Co 354, 572 Avery v. Starbuek 544 Ayrault v. Chamberlain. .. .79, 455 Ayres v. Covill 455 Ayres v. O'Farrell 466 B Babcock v. Lipe 617 Babcock v. Maxwell 459 Backus V. Clark 52 Bacon v. Burnham 301 Badeau v. Niles 36 Badger v. Benedict 159 Badger v. Gilroy 136 Badgley v. Decker 26, 242 Badlam v. Springsteen 433 Baer v. Seymour 566 Baggott V. Boulger 312 Bailey v. Aldrich 11 Bailey v. Dean 240 Bailey v. Lane 549, 557, 564 Bailey v. Lee 496 Bailey v. O'Bannon 243 Bailey v. Rider 35, 278 Bainbridge v. Priedlander 128 Baird v. Howard 222 Baird v. Morford 58 Baker v. Bailey 356 Baker v. Carrington 251, 252 Baker v. Curtiss 576 Baker v. Kinsey 441 Baker v. Magrath 396, 397 Bank of Spencer v. Simmons . . 296 Balcombe v. Northup 456 Baldwin v. Briggs 416 Baldwin v. Berrian 416 Baldwin v. Central Springs Savings Bank 376 Baldwin v. Gcnung 410 Baldwin v. Munn.' 59, 184 Baldwin v. Roberts 181 Baldwin v. Rood 505 Baldwin V. U. S. Tel. Co 455 Ball V. Evening Post Pub. Co. 123, 124, 125, 409, 410 Ballou V. Parsons 513 Baltimore, etc.. R. R. Co. v. Arthur 288 Baltiinore Machine Works v. McKelvey ].3o Baltimore & 0. R. R. Co. v. State 249 r.aUzcl v. Nosier g Balz v. Underbill 466 Bamberger v. Citizens' St. Ry. Co 249 Tai!i.e of Cases. XXI Page. Bangs V. Mcintosh 175 Bank of Commerce v. Elliott.. 399 Bank of Genesee v. Patcliin Bank 2. 381 Bank of Havana v. Magee.... 316 Bank of Kinderhook v. Giflford. 495 Bank of Lowville v. Edwards. 49, 302, 31lj, 560 Bank of Metropolis v. Lissner. 541 Bank of Wilmington v. Barnes. 556 Barber v. Bennett 563, 573 Barber v. Morgan. 203, 230, 231, 232 Barber v. Rose 30 Barclay v. Qnicksilver, etc., Co. 313, 316 Barclay v. Yoenians 252 Barhydt v. Ellis 304 Bavhyte v. Hughes 428, 429 Barker v. Cnnard Steamship Co. 54 Barker v . Foster 549 Barkley v. Rensselaer & Sara- toga' R. R. Co 118 Barkley v. Williams. .. 58, 158, 159 Barnard v. Morrison 309 Barnes v. Black Diamond Coal Co 376 Barnes v. Brown 35, 174 Barnes v. Gibbons 487 Barnes v. Harris 64 Barnes v. Henshaw 140 Barnes v. Pelham 488 Barnes v. Quigley 3, 231 Barnes v. Seligman 507 Barnes v. Smith 164 Barnett v. Meyer 495 Barney v. King 550, 555 Barney v. McClancy 264 Barney v. Worthington 43, 302 Barone r. O'Leary 127 Barrett v. McAllister 376 Barrett v. Warren 215 Barruso v. Madan 187 Barstow v. Hansen 541 Bartholomew v. Lyon 312, 316, 337, 526 Bartlett v. Prescott 105 Bartley v. Richtmeyer 242 Barton v. Griffin 354 Bartow v. Sidway 121 Barton v. Spies 323 Bascom v. Toner 145 Bass V. Comstock 322, 573 Bassell v. Elmore 198, 240 Bassett v. Eish 496, 518 Bassett v. French 344 Bassett v. Lederer 373 Bassett v. Leslie 288, 289 Page. Bassett v. Shepardson 385 Basev v. Gallagher 8 Bate V. Fellows 543 Bate V. Graham 457, 524 Bates V. Pike 93 Bates V. Rosekrans 103, 106, 115, 413, 443. 459 Bates V. Voorhies 494 Bathgate a-. Haskin 28. 412, 436, 440 Bnttennan v. Journal Co... 85, 361 Battersby v. Collier 235 r.auohor v. Gregory 51 Baudeman v. Davis 322 Bauer v. Piatt 320 Baum V. Clause 409 Baum's Castorine Co. v. Thomas. 549 Baxter v. Brooklyn Life Ins. Co. 59 Baxter v. Lancaster 190, 292 Baxter v. JiIcDonnell 456 Baxter v. Moses 276 Bavlis V. Stimson 353, 354 Beach v. Cook 192 Beach v. Barons 345 Beach v. Bay State Steamboat Co ' 107, 246, 247 Beach v. Fulton Bank 494 Beach v. King 171, 172 Beach v. Ranney 198,200 Bean v. Lamprey 376 Beardsley v. Cook 191 Beardslev Scythe Co. v. Foster. 276, 277 Beardsley v. Stover 494 Bearss v. Coply 490 Beaty v. Swarthout 373, 380 Beaudrias v. Hogan 66 Bebinger v. Sweet. 77, 226. 227, 337 Beck V. Allison 508 Beck V. Stephani 528 Becker v. Boon 394 Becker v. Washington 50 Beckett v. Cuenin 34 Beckhoefer v. Huber 542 Beckley v. Chamberlin 87 Beekwith v, Mollohan 78 Beckwith v. Union Bank 420 Bedell v. Sickles 569 Bedford v. Terhune 509 Bedlow V. Stilwell 555, 556 Beecher v. Conradt 191 Eeecher v. Press Pub. Co. 238, 239 Beers v. Shannon .... 146, 147, 174 Beers v. Waterbury 415 Beidler v. Fish 196 Beebe v. Marvin 549, 554 Table ov Cases. Page. Belden v. Curtis 389 Belden v. Wilkinson. .314, 377, 450 Bell V. Heatherton 125, 128, 129 Bell V. Lesbini 451 Bell V. Merrifield . . 9, 206, 207, 328 Bell V. Sun Printing, etc., Ass'n. 237, 240 Bell V. Wallace 45, 47 Bell T. Yates 401 Bell Tel. Co. v. Home Tel. Co. . 544 Bellinger v. Craigue 412 Eelsena Coal Mining Co. v. Lib- erty Dredging Co 550 Bender v. Bender 123, 131 Bender v. Terwilliger 255 Bendit v. Annesly 346, 487 Benedict v. Dake 574 Benedict v. Guardian Trust Co. 165 Benedict v. Tanner 550 Benedict v. Seymour. 77, 78, 79, 365 Bengtson v. Thingvalla Steam- ship Co 381 Benner v. Phoenix Towing Co. . 505 Bennett v. Gibbons 232 Bennett v. Hurd 47 Bennett v. Judson 43 Bennett v. LaWrenee 528 Bennett v. Leeds Mfg. Co 81, 355, 360 Bennett v. Preston 332 Bennett v. Whitney 146 Bensinger v. Erhardt 206 Benton v. Hatch 369 Benton v. St. Louis 17, 325 Beuware v. Pine "Valley 62 Berford v. Barnes 147 Berford v. N. T. Iron Mine. . . . 530 Bergrnann v. Jones 200 Berlin v. Hall 407 Bernascheff v. Roeth 346, 418 Bernhardt v. Seligman 3 Bernheimer v. Hartmayer 428 Bemey v. Drexel 16, 39, 220. 221, 223, 319, 335, 336 Bernstein v. Warland. 215, 219, 222 Besant v. Glens Falls Ins. Co. 321 Besson v. Southard 224 Betts V. Bache 2 Betls V. Kridell 97, 487 Boveridge v. New York El. R. R. Co ; 391 Bewley v. Equitable Life Ins. Co. ' 498 Beyer v. Wilson 25, 95, 97, 98 Bibb Land-Lumber Co. v. Lima Mach. Works 441 Bickwell v. Lancaster, etc., Fire Ins. Co 293 Page. Bidwell V. Astor Mut. Ins. Co . . 208 Bidwell V. Babcock 79 Bidwell V. Overton 362 Bien v. Freund 420 Bierstadt v. Bierstadt 270 Bigelow V. Dunn 616, 494 Bigler v. Morgan 188 Bihin v. Bihin 373 Billings V. Drew 57 Billings V. Sanderson 251, 252 Billings Ti. Vanderbeck 393 Bing V. Morse 263 Bingham v. Kern 252 Bingham v. Marine Nat. Bank. . 166 Binghampton Trust Co. v. Clark 421 Bird V. Kay 300 Bird V. Kendall 396 Bird V. Munroe 376 Birdsall v. Fuller 616 Birdseye v. Smith 25, 55 Birkley v. Presgrave 166 Biron v. St. Paul Water Comm. 63 Bisby V. Shaw 31, 410 Bish V. Van Cannon 232 Bishop V. Sullivan 85 Bitting V. Ten Eyck 202 Black V. Homeopathic Mut. Life Ins. Co 184 Black V. Vanderbilt..lO, 207, 330 Blackwell v. Pendegast 68 Blair v. Bartlett 28, 392, 615 Blair v. Claxton 435 Blaisdell v. Raymond. . .85, 88, 237 Blake v. Eldred 351, 355, 564, 565, 569, 574 Bla&e V. Harrigan 121, 135 Blakely v. Blakelv 27 Blanc V. Blanc' 529,537,542 Blank v. Hartshorn 25, 55, 56 Blasingame v. Home Ins. Co. . 292 Blaut V. Borchardt 346, 420 Blethen v. Stewart 235 Bliss V. Bliss 419 Bliss V. Cottle 217 Block V. Third Ave. R. R. Co . . 505 Blood v. Kane 417, 421 Bloomingdale v. Bowman 264 Blossom V. Barrett 337 Blum V. Bruggemann 546 Board of Underwriters v. Met- ropolitan Lords 71 Board of Water Comm. v. Dwight 7x Bockes V. Lansing 10, 162, 521 Boekover v. Harris 416 Bopckler v. Missouri Pacific Ry. ("" 78 Table op Cases. XXlll Page. Bogardus v. Parker 257 Bogardua v. New York Life Ins. Co 35, 36, 59, 186, 341 Bogardus v. Metropolitan Street R. Co 45, 245, 566, 567, 568 Bokel V. Bolcel 268 Bolognesi v. Hirzel 130 Bond V. Mitchell 213 Bonnell v. Griswold 37, 341 Bonnell v. Wheeler 323 Bbnnet v. Wanamaker 227, 228 Bonney v. Bonney 330 Bonwell v. Auld 375 Boomer v. Koon 368 Boon V. State Ins. Co 190 Boone v. Wabash, etc., By. Co . . 244 Boorman v. Juneau County. ... 59 Boos V. World Mut. Life Ins. Co 380 Booth V. Farmers, etc., Bank. . . 4 Booth V. Powers 370, 373 Booz V. School Furniture Co. . . 103, 108, 184, 330 Boreel v. Lawton 427, 434 Borel V. Mead 306 Bork V. Martin Ill Born V. Schrenkeisen 266,347 Bornmaun v. Star Co 235 Borrowers & Investors Bldg. Ass'n V. Eklund 396, 397 Bort V. Yaw 164 Bosi V. New York Herald Co. . 234-, 240 Bossert v. Poerschke 190, 507 Boston Base Ball Ass'n v. Brooklyn Base Ball Club .... 312, 315, 316 Boston Duck Co. v. Dewey 376 Boston Locomotive Works v. Wright 98 Boston Silk & Woolen Mills v. Eull 28, 412, 413 Boston Woven Hose & Rubber Co. V. Jackson 363 Bostwick V. Menek 530, 531 Bostwick V. Scott 276 Bosworth V. Higgins 114 Bothwell V. Millikan 394 Bottom V. Chamberlain 263 Boughton V. Flint 193 Bowdish V. Briggs 376 Bowdoin v. Coleman 528 Bowe V. Arnold 273, 276 Bowen v. Aubrey 8, 36 Bowen v. Bradbury 162 Bowghen v. Nolan 94 Bowman Cycle Co. v. Dyer 132, 134, 135 I Page. Bowman v. Sheldon 474, 562, 563, 564 Bowne v. Joy 390 Boyce v. Aubuchon 237 Boyce v. Brockway 221 Boyce v. Brown 33, 36, 42, 51 Boyd v. Mut. Fire Ass'n 332 Boyett V. Vaughan 21 Boyer v. Fenn 374 Boyer v. Tiedman 162 Bracken v. Atlantic Trust Co . . 393 Braekett v. Graves 288 Brackett v. Griswold 230 Brandenburg v. McGuire 400 Bradley v. Albemarle F. Co. 473, 478 Bradley v. Aldrich 10 Bradley v. Angel 420 Bradley v. Bradley 165 Bradner v. Faulkner 344, 562 Bradner v. Holland 163 Bradner v. Howard 600 Bradstreet v. Bradstreet Co. . . 566 Bradstreet Co. v. Gill 235 Brady v. Otis .\ . . 94 Brainard v. Jones 313 Brainard v. Simmons 36 Braisted v. Johnson 470 Branch v. Chappell 436 Branham v. San Jose 340 Brauer v. Oceanic Steam Nav. Co 139 Brazill v. Isham 379, 393, 412 Breed v. Padgett 21 Breese v. Trenton Horse R. Co. 41 Breen v. Henry 66 Brenner v. McMahon 38, 172 Bretz V. Mayor, etc., of N. Y.. . . 71 Breunich v. Weselman 395, 398 Brewer v. Temple 158 Brevoort v. Brevoort 370 Bridge v. Payson 464 Briggs V. Austin 275 Briggs V. Briggs 417 Brigg V. Hilton 435 Brink v. Reid 385 Brinkerhoff v. Brinkerhoff 463 Brinkerhoff v. Brown 165 Brinkerhoff v. Perry 575 Bristol V. Burt 221 Bristow V. Lane 330 Britt V. Marks 231 Broadway Bank v. Luff 407 Brockleman v. Brandt 225 Brooks v. Bates 48 Brod V. Heymann 469 Brodhead v. Brodhead 474 Bronson v. Markey 330 Brooklyn Bank v. be Grauw . . . 394 XXIV Table of Cases. Page, liiooklyn Trust Co. v. Bulmer. 469 Brooks ^. Hanchett. ..474, 573, 574 Brooks V. New York 498 Broome v. Taylor 48, 54, 67 Brotherton v. Downey, .81, 355, 360 Brown v. Babeock 501 Brown v. Broekett 203 Brown v. Brown 591 Brown v. Buckingham 427, 432, 434, 451 Brown v. Chadsey 224 Brown v. Chadsey 225, 227 Brown v. Champlin 42 Brown v. Curtiss . . . . , 304 Brown v. Fish... 251, 562, 563, 568 Brown v. Feeter 226 Brown v. Ferguson 394 Brown v. Harmon. 53, 246, 247, 248 Brown v. Jenison 550 Brown v. Kimmel 211 Brown v. Leigh 483, 485 Brown v. Mayor 392 Brown v. Mclntyre 226 Brown v. jNlitchell 495 Brown v. Moore 238 Brown v. Mount 257 Brown v. Piner 237 Brown v. Eauch 176 Brown v. Richardson 537 Brown v. Eyckman 51 Brown v. Saratoga R, R. Co. . . 342 Brown v. Southern Mich. R. R. Co 572 Brown v. Stebbins 195 Brown v. Tribune Ass'n 238 Browne v. Empire Type Setting Machine Co 6, 106 Browne v. Steeher Lithographic Co 5X4 Brownell v. Nat. Bank of Glov- crsville 572 Brownell v. Town of Greenwich. 61, 292 Bruce v. Burr 18, 57, 343, 435 Bruce v. Tilson 191 Bru.nswick, etc., Co. v. Brackett. 220 Brush V. Blot 344 Brush V. Mullany 582 Brusie v. Gales 45 Bryan v. Farmers Mutual In- demnity Ass'n 293 Bryant V. Allen 206 Bryant v. Bryant 564, 574 Buchanan v. Comstock 531 Buckley v. Harrison 113 Budd V. Hardenberg 168 Budding-ton v. Davis 51, 449 Buehner Chair Co. v. Feulner. . 331 Page. Buoss A . Koch 191, 328 IJufTalo Catholic Institute v. Bittei- 341 Buffalo Lubricating Oil Co. v. Everest 569 Bulger V. Coyne 323 Bulst V. Salvo 454 Bull V. Colton 617 Bull V. Rothschild 531, 534 Bullard v. Sherwood 580, 584 Bullock V. Bemis 512, 521 Bullwinker v. Ryker 257 Bump V. Betts 225 Bunge V. Koop 106, 189, 190 Bunting v. Cochran 441 Burdell v. Burdell 269 Burgess v. Helm 326 Bui'ke County v. Buncombe County 50 Bm-ke v. Thorn.. 106, 116, 413, 460 Burkert v. Bennett. . .361, 566, .568 Burlew v. Hunter 375 Burley v. German-American Bank 343, 352, 353 Buimeister v. Mbsely 95 Burnascheff v. Roeth 79 Burnham v. Acton 72 Burnham v. Smith 277 Burnet v. Bisco 185 Burnett v. Gould 275 Burns v. O'Neil 54 Burns v. Walsh 505 Burrall v. Moore. 482, 488, 554, 558 Burrall^. Bovi^en 398 Burroughs v. Garrison 416 Burroughs v. Wilson 300 Burrows v. Miller 317, 390 Burtis V. Thompson 190 Burton v. Beasley 237 Bush V. O'Brien 340 Bush V. Proser 4, 24, 31, 410 Bush V. Stevens 186 Bushnell v. Chautauqua Co. Nat. Bank 49 Bushey v. Reynolds 103 Butler V. Johnson 401 Butler V. Kent 198, 201 Butler v. Mann 124 Butler V. jNfason 45 Butler V. Prentiss 295 Butler V. Viele 41 Butler V. Wentworth 57 Butlorfleld v. Bennett '. 128 Butterfield v. McOmber 146, 548 Button V. Schuylers Steam Tow Boat Line ,' 505, 521 Butts V. Phelps 37, 42 Byrne v. Benton 81 Table of Cases. XXV Page. Byrne v. Hegeman 488, 489 Byrnes v. Byrnes 149, 151 Byrnes v. Dunn 494 By.xbee v. Dewey 348 Byxbie v. Wood 113 Cable Flax Mills v. Early 443 Cadwell v. Goodnough 137 Gady v. Allen 528 Cady V. Case 95 Cah'ill V. Palmer 36 Caldwell v. Cassidy 193 Caldwell A . Raymond 237 Calhoun v. Hallen 354 Call V, Barker 255 Callahan v. Oilman 138 Calvo V. Davies 108 Camp V. Smith 401 Camp V. Wilson 56 Campbell v. Am. Zylonite Co. . . 473 Campbell v. Campbell 209, 316, 500, 532 Campbell v. Genet 416 Campbell v. Heiland 16, 341 Campbell v. Irwin 410 Campbell Printing Press Co. v. Damon 206 Canada Southern E. E. Co. v. Gebard 42 Canaday v. Stitzer 384 Canales v. Perez 325 Canavello v. Michael & Co 472 Candee v. Heywood 192 Candler v. Pettit 535 Canfield v. Arnett 417 Canfield v. Tobias 45 Cannon v. Davies 459 Cantwell v. MePherson 103 Cardeza v. Osborn 561, 566 Cardwell v. Cardwell 125, 268 Carey v. Baldwin 416 Carey v. Browne 593 Carnwright v. Gray 186 Carpenter v. Adams. . .481, 487, 555 Carpenter v. Butler 181 Carpenter v. Manhattan Life Ins. Co... 427, 428, 429, 431, 432 Carpenter v. M-ergert 365, 448 Carpenter v. Ottley 383 Carpenter v. West 569 Carrier v. Dellay 501 Carrington v. Odom 298 Carroll -v. White 238, 239 Carson v. Cock 330 Carson v. W. P. R. Co 203 Carter v. Chesapeake & Ohio Ry. Co 251 Page. Carter \ . DeCamp 16, 336 Carter v. Eighth Ward Bank. 18, 365 Carter v. Fischer 376 Carter v. H. Booth, etc., Co 315 Carter v. Lothian 503 Carter v. Wann 331 Cawley V. Costello 301 Carv Mfg. Co. v. Merchants' Ins. Co. 267 Gary v. Western Union Tel. Co. 368 Case V. Beauregard 277 Case V. Humphrey 48 Case y. Pharis. . ;i23, 127. 141, 510 Casey y. Donovan 515 Casliman v. Reynolds 16, 17, 309, 487 Cass v. Higgenbotham. 305, 427, 434 Cassagne y. .Marvin 206 Cassfrly y. Witherbee 1112 Cassidy y. Daly 58 T'astle V. Houston 409 Castle y. Noyes 392 Castner y. Duryea 284, 379 Callin y. Billings 582 Catlin V. Gunter 511 Caulkins v. Bolton 355 Cavanagh v. Metropolitan St. Ry. Co 125, 1.32 Cavanagh v. Oceanic Steam Nav.'Co 547, 548 Cavalli v. Allen 383 Cave v. Gill 325, 571 Cazaire v. Abram French Co . . . 123 Cazcaux v. Mali 230 Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co 332 Center v. Weed 260, 377 Central Gas, etc., Co. v. Sheri- dan 112, 113 Central of Georgia Ry. Co. v. .Joseph 323 Central Trust Co. v. Weeks .... 420 Cei twell v. Hoyt 26, 242 Chace V. Lamphere 251 Chadbourne v. Delaware, L., etc., R. R. Co 142 Chadbourne y. Stockton Savings Bank 306 Chambers v. Lewis 429, 433, 444 Chamberlain v. Barnes 409 Chamberlin v. Kaylor 300 Chamboret v. Cagney 411, 412, 427, 428, 429, 431 Chapman v. Barney 64 Chapman v. Chapman 355 Chapin v. Dobson 521 Ghapin v. Merchants' Nat. Bank 216, 221, 222 Table of Cases. Page. Chapman v. Rannells ' . . 6 Chapuis V. Mathot 397, 399 Charlton v. Rose 507 Charlton v. Rose 514 Chsitfield V. Siraonson 413 Chaurant v. Mallard 11, 206 Chautauqua County Bank v. White 274 Cheetham v. Lewis 52 Cheever v. Pittsburgh S. & L. E. R. R. Co ' 299 Chemung Canal Bank v. Judson. 65 Chemical Nat. Bank v. Car- pentier 300 Chenango Bridge Co. v. Paige. . 202 Chesbrough v. N. Y. & Erie R. R. Co 185, 306 Chicago, B. & Q. R. Co. v. Car- ter 47 Chicago & B. I. R. Co. v. Hines. 245 Childers v. Verner lOS Childs V. Hart 214, 218 Childs V. Tuttle 131, 240 Chillingvvorth v. Freeman 275 Christopher v. Stockholm 173 Chittenango Cotton Co. v. Stew- art 518 Choen v. State 144 Chrisfield v. Murdock 378 Christ V. Armour 189 Christman v. State Ins. Co 293 Christian v. Am. Freehold L. & M. Co 180 Christian County v. Merrigan. 340 Churchill v. Gardner 49 Church V. Charleston & Savan- nah Ry. Co 46 Churchill v. Churchill 24 Church V. Hempsted 374 Cincinnati, W. & M. R. R. Co. V. Harris 162 Citizen's Bank v. Closson. . .18, 57 Citizens Bank of Buffalo v. Weinberg 284 Citizens Nat. Bank v. Hodges. . 278 Citizens Savings Bank v. Bauer. ."173 City Bank v. Doll 552 City of Bufl'alo v. Holloway. ... 41 f!ily of Dunkirk v. Wallace 325 Cilv of Marshall v. Cleveland, etc., Ry. Co 345 City of N. Y. V. Union R. Co. . 520 City of Pekin v. McMahon 240 City of Tell City v. Bielefield. . 45:! C'itv, etc., of San Francisco v. It sell 83 Claflin V. Gordon 2/5 Claflin V. .Jaro,slauski Claflin V. Reese Claflin V. Tausig Claiborne v. Ca-stle Claire v. Claire Clapp V. Graves Clark V. Bowe 43, Clark V. Clark 406, Clark V. Coles Clarke v. Crandall ~. . . Clai'k V. Dales Clark V. Dillon 6, 103, 106, 352, 353, 354, Clark V. ,Teffersonville, etc., R. R. Co Clark V. Harwood 562, Clark V. Humphrey Clark V. Metropolitan St. Ry. Co Clarke v. Ohio Puver R. Co Clark V. People Olark V. Poor Clark V. Post Olark V. Vilas Nat. Bank Clark V. Wliitaker Iron Co. . . . CInrke v. Zettick Classon v. Baldwin Classon v. Stewart Clauser v. Jones Clay V. Baker C] av County v. Simonsen 36, 39, Clayton v. Jones Cleveland, etc., Ry. Co. v. Wy- nant Clem V. Holmes 241, Clemans v. Kersteller Clemens v. Am. Fire Ins. Co. 190, Clements v. Beale Clements v. Yturria riemmons v. Brinn demons v. Davis 509. Clift'ord V. Dam 367, Clif t V. Rodger Clifton V. Brown. .. .480. 481, Clinton v. Eddy 373. 412, 461. 464, Clinton v. INlycrs Clothier w Adviance Clough V. Murray Clukies V. Bank of New York. . Chile V. Kmerich C N. Nelson Lumber Co. v, Richardson Coakley v. Mahar Goatsworth v. Lehigh Valley R K. Co 103, 108, "324, Page. 546 362 45 90 210 75 110 551 168 60 54 571 550 568 483 246 124 203 456 507 442 79 237 251 262 325 455 299 244 242 50 292 516 219 218 527 379 300 483 494 202 301 562 176 144 549 176 325 Table of Cases. xxvii Page. Cobbey v. Knapp 461 Cochran v. Reich 305 Coekerill v. Loonam..413, 443, 459 Cockle Separator Mfg. Co. v. Clark 29 Cocks V. Radford 497 Codd V. Codd 268 Coddington v. Canaday .... 316, 319 Coddington v. Union Trust Co . . 447 Cody V. First Nat. Bank 10, 205, 207, 219, 327, 330 Coe V. Beckwith 321 Coffe V. Emigh 55 Coflfin V. Grand Rapids Hydrau- lic Co 375 Coffin V. McLean 416, 441, 422 Coffin V. Reynolds 337 Coggill V. American Exchange Bank 42 Cohn V. Baldwin 135 Cohn V. Beekhardt 112 Cohen v. Continental Life Ins. Co 45 Cohn V. Goldman 229 Cohn V. Husson 21 Cohn V. Lehman 386 Cohu V. Husson .457, 524 Colburn v. Barrett 360 Colby Y. Colby 206 Cole V. Beyland 346 Colcll V. Del. L. & W. R. R. Co. 45, 248, 400 College Corner & Richmond Gravel Road Co. v. Moss. ... 251 Collins V. Coggill 550 Collins V. McWalters 399 Collins V. North Side Pub. Co. 361, 362 Collins V. Singer Mfg. Co 354 Collins V. Suan..450, 549, 556, 569 Collis V. Alburtis 350 Collis V. Press Pub. Co 238 Colquitt V. Mercer 92 Collyer v. CoUyer 509 Coquillard v. Hovey 36 Colrick V. Swinburne 142 Colt V. Davis 566, 569 Colton V. Jones 573 Colvin V. Martin 448 Colvin V. Shaw 488 Columbus, etc., Ry. Co. v. Gaf- ney "305 Commercial Mut. Ace. Co. v. Bates 340, 341 Commercial Nat. Bank v. Hand. 130 Commercial Bk. of Rochester v. City of Rochester 37, 41 Page. Commercial Bank v. Pfeiffer.. 573 Commercial Bank v. Spencer . . . 549 Commissioners of Excise v. Mc- CuUogh 552 Commonwealth v. Pittsburgh, etc., R. R. Co 456 Commonwealth v. Ginn 571 Commonwealth Bank v. Pryor . . 548 Compton v. Beecher 359, 363 Comstock V. Smith 186 Conaughty v. Nichols 110, 112 Conda v. Rogers 57 Conde v. Rogers 170 Condon v. Church of St. Au- gustin 471 Cone V. Ivinson 103 Cone V. Niagara Fire Ins. Co . . 293 Ctonger v. Johnson 51 Conger v. Judson 106 Conkling v. Gandall ... 67, 296, 299 Conklin v. McCauley 218 Connah v. Hale 221, 222 Connaughty v. Nichols 3 Conner v. Scott ". 433 Connersville v. Connersville Hy- draulic Co 32 Connors v. Meir 54 Conover v. Manke 196 Conro v. Port Henry Iron Co. . 274 Consolida.ted Canal Co. v. Pe- ters 324 Constable v. Hardenberg. . . 133, 134 Continental Construction Co. v. Vinal 530 Converse v. Hood 232 Converse v. Sickles 377 Cook V. Chase 314 Cook V. Dews 91 Cook V. Kittson 382 Cook V. Litchfield 390 Cook V. Soule 434 Cook V. Thurston 181 Cook V. Warren 37, 104, 105, 299, 300, 555 Cook V. Webb 255 Cookiugham v. Lasher 389 Cooley V. Lobdell 307 Coope V. Bowles 175 Cooper V. Burr 145 Cooper V. Griffin 145 Cooper V. Jones 480, 482 Corbin v. Knapp 534 Corcoran v. Mannering 160 Cordier v. Cordier 269, 390 Cordier v. Thompson 172 Cornell v. Savage 275 Cornelius v. Halsey 263 XXVlll , Table of Caisks. Page. Corning v. Roosevelt 346 Cornwall v. Cornwall 260, 271, 532, 544 Coriigan v. Coney Island Jockey Clul) 205, 207 Cothran v. Hanover Bank 537 Cottrell V. Cottrell 224 Coulter V. Bower 194, 263 Coulter V. E.iehmond 301 Cousins V. Swords 224,227 Cowand v. Meyers 331 Cowie V. Ahrenstedt. ..... .363, 364 Coning v. Altman 34, 507 Cowles V. Cowles 418 Cox V. James 377 Cox V. Halloran 505 Cox V. Nat. Bank -302 Coyle V. Baltimore, etc., R. R. Co 17 Coyle V. Ward 325 Cozine v. Grafiam 376 Craft V. Brandow 345 Cragin v. Lovell 414, 418, 450 Cragin Mfg. Co. v. Geuder & Paeschke Mfg. Co 424 Craig V. Parkis 304 Craig V. Ward 511 Crain v. Petrie 200 Cramer v. Comstock 556 Cramer v. Lovejoy 618 Cramer v. Oppenstein 55 Crandall v. Beach 145 Crandall v. Clark _ 59 Crane v. Crane 354 Crane v. Maynard 185 Crane v. MacDonald 288 Crane v. Powell 34, 376 Crane v. O'Reilly 234 Crary v. Gorham . 383 Graves v. Waite 113 Crim v. Starkweather 192 Crippen v. Hudson 277 Crippen v. Morss 321 Critelli v. Rod'gers 52, 53 Critten v. Chemical Nat. Bank. Ill Cromwell v. Burr 399 Cromwell v. Hewitt 301 Croome v. Craig 466 Cropsey v. Sweeney 44, 49 Cropsey v. Wiggenhorn 93 C. R. Parmele Go. v. Haas. ... 47 Crossley v. Cobb 355 Crossley v. Hojer 219 Crow v. Metropolitan St. Ry. Co 246 Crowell V. Truesdell 159 Crowley v. Panama R. R. Co. . 247 Page. Crowley v. Royal Exch. Ship Co 374 Cruger v. Hudson River R. R. Co 105 Cruikshank v. Bennett 129 Cruikshank v. Cruikshank 139 Cruikshank v. Gordon 31, 240 Cruikshank v. Press Pub. Co. 18, 351 Cruyt V. Phillips 65 Culver \ . Burgher 188 Culver V. Wright 342 Culver V. Van Anden 235, 237 Cummings v. Cummings 209 Cummings v. Morris 441 Cumins v. Lawrence County. . . 360 Cunard v. Fraucklyn 118, 121, 122, 125 Cunningham v. East River Elec- tric Light Co 227, 228 Currie v. Cowles 413, 433 Curtin v. Metropolitan St. Ry. Co 132 Curtis V. Bachman 46 Curtis V. Baldwin 558 Curtis V. Masten 396, 398 Cushman v. Jewell 505 Cutler V. Wright 50, 398 Cutterlin v. Armstrong 263 Cutting v. Marsa 65 Cuykendall v. Corning. .. .284, 285 Cythe V. La Fountain 383 D Dabney v. Greeley 558 Daggs V. Phcenix Nat. Bank .... 442 Dagal V. Simmons 398 Daguere v. Orser 494 Dailey v. Burlington & M. R. R. Co 324 Dailey v. N. Y., 0. & W. Ry. Co 248, 400 Daley >'. Russ 190 Daly V. Bloomingdale 125. 133 Daly V. Wolaneck 76 Dalton V. Vanderveer 9, 10 Dalrymple v. Security Loan & Trust Co 332 Dambmann v. Schulting 461 Daniier v. Bayor 417 Damon v. Leque 400 Dancel v. Goodj'ear Shoe Ma- chinery Co. . .". 555, 556, 557 Dandurand v. Kankakee Coun- ty gg.T Daniels v. Fowler .^n.^ Daniels v. Tearney 49 Dann v. Baker 48S. 545 Table oh' Cases. XXIX Page. Danzizer v. Boyd 251 Davrett v. Donnelly 58 Darrow v. Miller 557 Dauchy v. Brown 616 D'Auxy V. Dupre 428 Davenport Glucose Mfg. Co. v. Taussig 217, 563 Davenport v. Sniff en 473 Davidson v. Alfaro 441 Davidow v. Auerbach 136 Davies v. Chapman 125 Davis V. Atlas Ins. Co 292 Davis v. City of New York. 323, 334 Davis V. D&vis 206 Davis V. Grand Rapids Ins. Co. 293 Davis V. Hurgren 426 Davis v. Mayor, etc., of N. Y. . 518 Davis V. Morrell 219 Davis V. Muscogee Mfg. Co. . . . 516 Davis V. New Yorlc, L. E. & W. R. R. Co 494, 506 Davis V. Talbut 176 Davis V. Toulmin 415 Davis V. Willis 313 Davison v. Powell 357 Davison v. Schermerhorn 345 Dawley v. Brown. 318, 346, 386, 390 Dayton v. Conah 175, 602 Day V. Pool 435 Deagan v. Weeks. 431, 428 Dean v. Mann 123 Deane v. Loucks 593 Dearing v. MeKinnon D. & H. Co 376 DeBussierre v. Holladay 378 De Carrillo v. Carrillo 134, 136, 573 Decker v. Kitchen 554 Decker v. Mathews 220, 222 Decker v. Saltsman 505 Debolt V. Carter 316 Dedrick v. Hoysradt 382 Deering v. City of N. Y 459, 469 Deering v. Riley 250, 251 De Forest v. Baker 553 De Forest v. Fulton Fire Ins. Co 293 Dehn v. Mandevil 88 Deihl V. Robinson 498 Deiniel v. Olney 126 Deisler v. Deisler 405 Delafield v. Kinney 178 De Lavallette v. Wendt 415 Delano v. Rawson 415 De Leyer v. Michaels 460 De Lisle v. Hunt 528, 534 Delmage v. Crow 213 Devlin v. Bevins 459 Page. Del Valle v. Navarro 466 Delano v. Duchart 555 Demurest \ . Darg 392 Denipsey v. Baldwin 543 Dennis v. Piper 106 Dennison v. Carnahan 605 Dennison v. Dennison 312, 351 Dennistoun v. Merchants Bank. 5 Denny v. Northwestern Chris- tian University 52 De Noble v. Lee 573 Dent V. Ryan 125 Denithorne v. Denithorne 568 Detroit Copper & Brass Rolling Mills V. Ledwidge 275 Depew V. Dewey 593 Depew V. Leal 131 De Peyster v. Wheeler 512 Depp V. Louisville & N. R. Co. 46 De Puy V. Strong 312, 313, 321, 337 Derby v. Yale 393 Derham v. Lee 439 Des Arts v. Leggett 393 Desbeeker v. McFarline 218 Despard v. Walbridge 383 Desmond v. Brown 236 Deuel V. Sanford 555 Dewey v. Moyer 49 De Witt V. Brill 366 De ^Vitt V. Swift 447 De Wolfe v. Abraham 158 Dexter v. Alfred 454 Deyo V. Morss 494 Dezengremel v. Dezengremel . . . 45, 373, 505 Diamond Match Co. v. Roeber . . 186 Diamond v. Williamsburgh Ins. Co 495 Dickens v. New York Cent. R. R. Co 25, 77 Dickensheets v. Kaufman 103 Dickenson v. Vanderpool 388 Dibblee v. Metcalf 6, 103 Dieckman v. Young 371 Diefendorf v. Diefendorf 262 Diehl V. Beck 539 Diehl V. Robinson 499 Dillingham v. Anthony 176 Dillon V. Barnard 37 Dinan v. Coneys 457 Disler v. McCauley 241 Distin V. Rose 31 Dittmar v. Gould. 273, 274, 275, 282 Divan v. Loomis 49 Divine v. Divine 191 Divine v. Duncan 485, 545 Dix V. Palmer 579 Table of Cases. Page. Dixon V. Allen 236 Doane v. Mercantile Trust Co . . 255 Dobson V. Pearee 382 Dodd V. Focht 242 Dodds V. McCormick Harvest- ing Machine Co 297 Dodge V. Colby 16, 240, 314, 323, 335, 336 Dodge V. Cornelius 390 Dodge V. Fearey 394 Dodge V. Ockerhausen 421 Dodge V. Weill 123, 142 Dodge V. Wellman 383 Doe V. Roe 405 Doherty v. Shields 217 Dolan V. Hubinger 320 Dolcher v. Fry 185 Dolittle V. Eddy 192 Donahue v. Enterprise R. Co.46, 245 Donahue v. Henry 428 Donovan v. Main 18, 355, 356, 357, 365, 366 Donohue v. Mayor 435 Doran v. Dinsmore 51, 562 Dorance v. Henderson 537 Dorgan v. Scheer 134 Dorman v. Lang 608 Dorn V. Fox 288 Dorrell v. Hannah 456 Doty V. Brown 392 Doty V. Irwin-Phillips Co 297 Doughty V. Crozier 618 Douglas V. Coonley 455 Douglas V. Phcenex Ins. Co 79, 340, 449 Douglass V. Ireland 390 Douglass V. Winslow 229 Douglass V. McDermott 232 Douglass V. Winslow 205 Dounce v. Dow 435 Douw V. Keay 264 Dowdney v. Volkening 69 Downey v. Atchison 401 Dows V. Green 485 Doyle V. American Wringer Co. 161, 221, 213 Drake v. Cockroft. .39, 431, 434, 565 Drake v. Drake 16, 225, 336 Drake v. Siebold 368, 374 Drake v. Thayer 123 Draper v. Chase Mfg. Co 301 Draper v. Draper 258 Drevert v. Appsert 92 Drohan v. O'Brien 236 Drought v. Curtiss 528, 542 Drury v. Clark 263 Drum v. Stevens 48 Dubois V. Beaver 76 Page. Dubois V. Cassidy 176 Dubois V. Hermance . . 230, 374, 408 Du Brutz V. Jesup 194 Dubuque Co. v. Reynolds 319 Ducie v. Ford 42 Dudley v. Scranton 232 Daeber Watch Case Co. v. Key- stone Watch Case Co 135 Duff V. Hutchinson 295 Duffy V. O'Donavan 376 Dugan V. St. Paul & D. R. Co. . 243 Duggan V. Wright 39, 44, 222 Dumars v. City of Denver 325 Dumont v. Smith 197 Dimcan v. Ray 142 Duncan v. Spear 220, 369, 404 Dunham' v. Bower 28 Dunham v. Hastings Pavement Co 368 Dunham v. Mann 187, 188 Dunham v. Travis 458 Dunne v. American Surety Co . . 182 Dunlap V. Stewart 447 Dunlevy v. Tallmadge 273, 276 Dunn V. Cibson 332 Dunnigan v. Crummey 513 Dunning v. Thomas 24 Dunton v. Hagerman 344, 562 Duparquet v. Fairehild 98 Durant v. Gardner 209 Durham v. Chapin 484 Durkee v. Conklin 519 Durkee v. Cota 184 Durland v. Durland 263 Durst V. Brooklvn Heights R. R. Co ." 18 Duryea, Watts & Co. v. Rayner. 100, W6 Duval V. Busch 84 Dwight V. Germania Life Ins. Co 122, 124, 127 E Eachus V. City of Los Angeles. 326 Eagan v. New York Transporta- tion Co 157, 161 Eagleston v. Son 144 Earl V. David 180 Earle v. Scott 163 East v. Cain 387 East Line & Red River R. R. Co. V. Brinker 244 East River Bank v. Rogers .... 415 Easton Nat. Bank v. Buffalo Chemical Works 276 Eaton V. Baleom 313 Eaton V. Burnett 569 T\H1 V OK (.' \SI': 1'. Eaton V. Wells Ebbets V. J[:irtino. . . .TilUi. 510, Eecardt v. Eiscnhaucr -.'!0, Eckert v. GiiUion -I'^^S, Ecklund v. Bovvowors & Invi'sl ors Bldg. Ass'ii Eddy V. Berteli Edgei'ton \. N. Y. & II. U. 1{. Co Edcrerton v. Pngo 427, -KU, Edison Electric LiijlU, Cn. v. II. S. Electric Lisliiiii.i,' C» Edison Gcncri\l Klcclvic Co. v. Zcblcy Ed'son V. Girvan. . . . r.lO, 205, Edwards v. Burris Edwards v. Lent Edwards v. Lenta Egan V. Bissoll Efran & Co. v. Biittcrw.irl li Egbert v. Hanson Egglcston V. Bom eh Eichelberger v. OI Si5T;r;rr-- Bj.'.V r, 3«hr«l E'r':->- T, vrtiVi'-.fr-'ier 'K.. y Co f.i.". I OS ■in;! ;ti)7 2'JI •I :m .4;j-i, t;):; Irr-!. Co. , ,11, n;;, ;)()o :i;i7 •i'lO Ml 'Kid K^.O .■i7'l .SOd \>J,\\\ :w.\ uw, 4-10 :!7r, /:07 2,",'; 477 4-)/; 47,'i ;;';.■; ]^.', );»o x';2 110 413 221 Krin« \ . Mi'Uo|iolilin\ SI . K I! lOivin V. 0;i',",iM li. li. .< Nin l\i. .,,, , .,,. ft.l.l I'^iwiii \. D.'.ell h'.sniav V, P'liiiiiiii,", hNiiioiiil \. \\\\\ lleniieliolen I'Viliiniiii \ . ( )i ec'iii \ I'iMiel.Mlein X, Wci'Km KmIi'P \ . ,\nil:ll lon;v I'l-ICM ,. hl'ilcH, V.Am \. Wilro\ KIl'hilH X . ( iM'llll V.\^\\\■.^ ,. Iljlel,el |il\'niiH \ . ( liillier hhllMH \ . I ,lelllenii|i'ill V,\ >.\\\\ 1 , SlMIII'kl'l' , , Kvelell \. Kvrr.'li l'!\i'l'l:ui|| V. Mili'ii , , K\'elloll V. ivijolle I'AVell V. Will IV.ellllll,"!' h'ile ImM, < 'o V. I i-' . . , , , V'.wwy V. K' iM'f , , V.\ f'l ftm ri V, I'ii V lie ':iii hiri :ii>i) ":iii "Vil, ",; ;iii" vn 151 I Ml I Ml, IIIH. Hill, iillll !:0| ''OH ,, , 1:1.1 Mn'i vn 71 , ', « - — ■ Z. JlJ^, 'VVt- T, '^' 44S, i';or. V, i':oiiv . , . , . ■,:;'<. I'Ml.ri.'olli V, l,;iii;iil.z . .41/0 Mi: l'..iil,:.nl- -. V, l!loo)/,/le|'l , , . SW.; l':>ill<;Hllt V, IlKlell, , , 47 l';iir"liil'l V, I lii(\>, ♦-/ /;;fM' / Vf.lVi 'I'.'.ir'M^'.s.i'; i'., ',''/, , , , , 24 ''A Wl, '/':! V'.rifii^: './,■>.■> b, 'tt'yr- < /, 'I, ,-i-.-.'>-7' l /,'',!. >i 't f»':t, ' ,', 1. Vstru-j^t <^/-. Vm! ' / ','f //■■■' Table of Cases. Page. Farnham v. Feeley 224 Farnsworth v. Halstead 550 Fanand v. Haibeson 491 Fariell v. Ambeig 459, 460 Farrington v. Muchmore 400 Farron v. Sherwood. 44, 49, 182, 305 Farwell v. Tilson 376 Fasnacht v. Stelin 562, 565 Fassett Y. Tallmadge 483 Faulks V. Kamp 572 Faulknor v. Swart 420 Favilla v. Moretti 116, 413 Fay V. Grimsteed 378, 396 Fay V. McKeever 325 Feeler v. Samson 356 Feeley v. Wurster 34 1 Feeney v. Howard 376 Felix \ . Van Slosten 485 Fells V, Yestvali 182, 183, 306 Fellows- V. Muller 546, 547 Felt Y. Judd 185 Fera v. Wickham 42C Ferguson ^ . Crawford 382 Ferguson y. Ferguson 35 Fern v. Vanderbilt 25 Ferner y. Williams. .. 192, 299, 302 Fero V. Ruscoe 31 Ferris y. Hard 348 Ferst Y. Powers 331 Fettreeht v. McKay 411, 450, 549, 550, 569, 573 Fiekett y. Brice 188 Fidelity & Casualty Co. y. Wells 40, 304 Field Y. Knapp 369 Field Y. Hurst 312 Field V. Morse 485 Field Y. X. Y. Cent. & H. R. R. R. Co 133, 136 Fincke y. Rourke ' 534 Finger v. City of Kinston . . 566, 567 Fink V. Jetter 131 Fink Y. Justh 410 Firebaugh y. Burfaank 503 First Baptist Church of Utica Y. Utica & S. R. R. Co 47 First Nat. Bank y. Cincinnati N. B. & T. P. R. Co 56 First Nat. Bank y. Gibson 275 First Nat. Bank v. Knoll 319 First Nat. Bank v. Martin 548 First Nat. Bank v. Shuler 147 First Nat. Bank y. Slattery 549 First Nat. Bank v. St. Croix Boom Co 43 First Presbyterian Church v. Kennedy 8. 567 Page. Fischer v. Metropolitan Life Ins. Co 380 Fischer-Hansen v. Stierngrant. 121 Fish V. Hose 320, 332 Fisher v. Hall 312, 337 Fisher v. Charter Oak Life Ins. Co 205, 315, 327, 329 Fisher v. Gould 340 Fitzgerald v. Geils 240 Fitzgerald v. Rightmeyer 21, 462, 568 Fitzgerald y. Rodgers 63 Fitzsimons v. Drought 10, 11 Flack V. O'Brien 18 Flechter v. .Jones .351, .366, 447, 56.3, 566 Fleischmann y. Bennett 234, 237, 539, 541, .546 Fleischmann v. Fleischmann . . . 379 Fleischman v. Glaser. . . .'. 215 Fleischmann v. Stern 348, 350 Fleisher v. Farmers Loan .& Trust Co '. . 456 Fleming y. Wells 95 Fletcher y. Dulany 325 Flickinger v. Wagner 202 Flood y. Reynolds 361, 362 Florence v. Pattillo 454 Flowers Executors v. Garr 502 Flynn y. Bailey 162 Flynn y. Hudson River R. R. Co 583 Foden y. Sharp 302 Fordyce y. Nelson 299 Fogarty y. Wanamaker. . . .107, 324 Fogg y. Edwards 488, 490 Foley y. Mail & Express Pub. Co 334 Foley y. Scharniann 426 Foley y. Tipton Hotel Ass'n. . . 381 Follower y. McLaughlin 486 Folsom y. Failing 417, 419 Fontaine y. Bush 376 Foote > . Roberts 528 Foot y. Sprague 382 Forbes y. Cooper 441 Ford y. Dayid 584 Ford y. Ford 494, 495, 505 Ford y. Griffin 17, 325 Ford Y. Mattice 563 Foren v. Dealey 550 Forest v. Empire Life Ins. Co.. 497 Forc^^t \ . Mayor 171 Forgotson y. McKeon 399 Forster y. Orr 227 Forsythe y. Edmiston 236, 573 Fortunato y. The Mayor 538 Fosdick y. Graff 552 Tatjle of Cases. xxxni Page. Foster v. Board of Commission- ers 321 Foster v. Elliott 103 Foster v. Hazeii 345 Foster v. Townsend 176 Foster v. Trowbridge 264 Foster v. Van Reed 293 Fouldes V. WiUoughby 221 Foulke V. Thalmessinger . . . 393, 379 Fourth Nat. Bank v. Mahon. . .- 375 Fourth "Nat. Bank v. Scott. 312, 337 Fowler \ . Baltimore & Ohio E. E. Co 46 Fowler v. Kennedy 389 Fowler v. New York Indemnity Ins. Co 293 Fowler v. Sutherland 307 Fowler v. Westervelt 602 Fowles V. Bowen 200 Fox V. Erie Preserving Co.. 177, 608 Fox V. Mayer 276 Fox V. Ph'yfe 151 Fox ^^ Eog'ers 322 Frain v. Burgett 325 Franchot v. Leach 188 Frank Brewing Co. a . Hammer- sen 21, 566 Frank v. Bush 480, 482, 487, 488, 490 Frank v. Dunning 238 Frank v. Kaminsky 236 Frank v. Mandel." 340 Frank v. Hurray 193 Franklin v. Talmadge 144 Franklin Coal Co. v. Hicks 376 Franklin Life Ins. Co. v. De- Inority 345 Fraser v. Eraser 269 Eraser a . Granite State Prov. Ass'n 177, 178 Fraser v. Oakdale Lumber & Water Co 322 Eravert v. Fesler 363 Frazier v. Gibson 605, 606 Frear v. Pugsley 206 Erear v. Sweet 24, 34 Fredericks v. Taylor 86, 88 Fred Miller Brewing Co. v. Cap- ital Ins. Co 292 Freeman v. Fulton Eire Ins. Co. 293 Freer v. Denton 322, 573 Frees v. Ford 54, 64 Freeson v. Bissell 191 Fi-ench v. Salter 167, 171 Frensch v. Kamke 197 Freund v. Paten 461 Frey v. Johnson 188 Frev V. Sylvester 549 Page. Friddle v. Crane 297 Eriedburgh v. Bates 126 Friede v. Weissenthanner 420 Frink v. Hampden Ins. Co 293 Frisbie v. Avcrell 542 Frist A. Climm 87 Fritz V. Tompkins 393 Frost V . Koon 264 Frost v. Yonkers Savings Bank. 394 Friun V. Keeney 382 Fry V. Bennett 103, 237, 349, 409, 455 Furbish v. Eobertson 389 Fuller V. Brown 278 Fuller V. Lewis 215, 216 Fuller V. Webster Fire Ins. Co. 496 Eullerton v. Bailey 400 Fullerton v. Dalton 508, 517 Fulton Fire Ins. Co. v. Baldwin. 316, 336 Eunson v. Philo 338, 339 Furman v. Van Sise 26, 242 Furnas v. Friday 231 Fusco V, Adam 82 Fyfe V. .Tackson 112 G Gadger v. Penland 45 Gadscn a . Woodward 86 Gafiney v. Bigelow 476 Gage v. Lippman 378 Gagri- V. Marsden 310 (iaibraith a. Daily 362, 447 Gale V. James 37, 103, 104 Gallagher v. ilerrill 547 Gallagher v. Stevenson Brewing Co 424 Gallatin Nat. Bank v. Nashville, etc., R. R. Co 178 Gallerstein v. Manhattan R. R. Co 135 Galligher v. Stoddard 225 Gnmbling v. Haight 535 Gannon v. Myars 146 Gardinier v. Eldred 546 Gardinier v. Knox 125 Gardiner v. California Guarantee Investment Co 26 Gardner v. Clark 386, 388 Gardner v. Fisher 321 Gardner v. Kraft 145 Gardner v. Lansing 276 Gardner v. Ogden 163 Gardner v. Samuels 320, 336 Garfield Nat. Bank v. Kirchwey. 116. 411 Garner v. Hannah 539 Table of Cases. Page. Gainer v. Thorn 327 Garrett Co. v. Astor 231 Garrett v. Weinberg 325, 571 Garrett v. Wood 346, 388 Garrison v. Carr 474, 563 Garvey v. Fowler 303, 551 Garvcy v. N. Y. Life Ins. & T. Co 337 Garvey v. Union Trust Co.. .37, 41 Gas Light Co. v. Rome, W. & 0. R. E. Co. . 505 Gasper v. Adams 42, 507 Gasworks Construction Co. v. Standard Gaslight Co. 29, 537, 543 Gates V. Preston 392 Galling v. Central Spar Verein. 190 Gault V. Babbitt 237 Gay V. Gay 441 Gay V. Paine 61, 300 Gearon v. Sacks 466 Geary v. Bennett 239 Gebhard v. Parker 121 Gebhard v. Squier 121 Geber v. Monie 369, 370 Gee V. Chase Mfg. Co 123, 126 Geenia v. Keeah 412 Geery v. Geery 275, 276 Geisler v. Acosta 393 Gelston v. Burr 466 Genesee River Nat. Bank v. Mead 276 Genesee Mut. Ins. Co. v. Moyni- hen 352, 360 Geneva Mineral Springs Co. v. Coursey 376 George v. Grant 483 George v. Jennings 409 George v. McAvoy 84, 488 Georlet v. McKinstry 168 Gerber v. Monie 404 Germ Proof Filter Co. v. Pas- teur Filter Co 236 German-American Ins. Co. v. Etherton 63 German Fire Ins. Co. v. Grunert. 63 German Exch. Bank v. Kroder. 300, 555 Germond v. Germond 268 Gerrity v. Brady 37 Gerry v. Webster 318 Gerstein v. Fisher 544 Gertier v. Linscott 79 Gervais v. Chicago, etc., R. R. Co 315 Getty V. Hudson River R. R. Co. 208, 312, 486 Getty V. Town of Hamlin 110 Gibson v. Vanderzee 407 Page. Giddens v. Mirk 238 Gilbert v. Allen 313 Gilbert v. Cram 412 Gilbert v. Fairchild 53 Gilbert v. Hewetson 400 Gilbert v. Pritchard 76 Gilbert v. Rounds 349, 583, 584 Gilbert v. Warren 569 Gilbert v. York.... 54, 64, 312, 315 Gilchrist v. Gilchrist's Execu- tors 493, 495, 499 Gill v. Aetna Live Stock Ins. Co 194 Gillespie v. Satterlee 476 Gillespie v. Torrance 28, 416 Gillet V. Fairchild 175 Gillet V. Roberts 215, 222 Gilliam v. Brown 522 Gillies V. Improvement Co '515 Gilligan v. N. Y. & H. R. R. Co. 197 Gilreath v. Fiirman 363 Gilman v. Oilman 369 Gilmore v. Burnett 616 Ginnel v. Stayner 548 Ginsburg v. Von Seggern 296 Griswold v. Manning. .214, 216, 217 Given v. Webb 202, 224 Gj erstadengen v. Hartzell 546 Glacier Mountain Silver Mining Co. V. Willis 251 Glaul>ensklee v. Hamburgh & Am. Packet Co 100 Gleason v. Morrison 51 Gleason v. Moen : 28, 412 Glen & Hall Mfg. Co. v. Hall. 427, 430, 431 Glenny v. Hitchins 44, 49 Glasner v. Wheaton 222 Gmaehle a . Rosenberg 250 Goddard v. Benson 392, 393, 545 Goddard v. Pardee Medicine Co. 128 Godfrey v. Godfrey 2.55 Goech V. Marsh 563 Goff V. Star Printing Co 86, 88 Goggin V. O'Donnell 389 Goldman v. Bashore 2S Goldmark v. Magnolia Metal Co. 164 Goldsmith v. Glatz 126 Goldsmith v. Goldsmith 232 Goldberg v. Utlcy 322 Goodman v. Alexander. ...- .6, 48 Goodman v. Eobb..51, 449, 561, 566 Goodnight v. Goar 164 Goodwin v. Cobe 67, 303 Goodwin v. Conklin 419 Goodwin v. Griffis 112; 113 Goodwin v. Mass. Mut. Life Ins. Co 380 Table of Cases. XXXV Page. Goodwin v. Thompson 550, 553 Goodwin v. Wertheimer 18, 57, 215, 216, 222, 225 Goodyear Vulcanite Co. v. Fris- selle 181 Goossen v. Goossen 21 Goring v. Fitzgerald 400 Golthauer v. Cunningham 417 Gould V. Allen 196 Gould V. Cayuga County Nat. Bank 9, 295, 296 Gould V. Glass 105, 602 Gould V. Horner 378, 396 Goulet V. Asseler 9 Govin V. De Miranda 133, 137 Gowdy V. PouUain 498 Gowing V. Warner 217 Guenther v. Amaden 411 Gulf, G. & S. F. R. Co. V. Smith 244 Gulf, C. & S. F. E. Co. V. Wil- son 244 Gumb V. Twenty-third St. E. Co 197, 198 Gunn V. Fellows 76 Gurnee v. Beach 67, 298, 300 Gurney v. Atlantic, etc., Ry. Co. 435 Gurney v. Grand Trunk R. Co. 247, 314 Gurske v. Kelpin 433, 442 Gushee v. City of New York ... 378 Guttentag v. Whitney 495 Gutzman v. Clancy 428 Gunther v.-I>ranbauer 331 Graff V. Bonnett 282 Graffam v. Pierce 376 Graham v. Camman 325 Graham v. Maehado 300 Graham v. McCarty 385, 386 Graham v. McCoun 475 Graham v. Martin 17 Graham v. Pinckney 473 Graham v. Scripture 61, 180 Graham v. Stewart 265 Grange v. Gilbert. 430, 451, 453, 454 Grandin v. Le Eoy 377 Granger v. Howard Ins. Co 293 Grant v. Johnson 187, 191 Grant v. Shurter 168 Grantman v. Thrall 176, 602 Graves v. Cameron 505 Gray v. Angier 394 Gray v. Brown 486 Gray v. Coan 103 Gray v. Durland 241, 242 Gray v. Green 189, 394 Gray v. Kendall 90 Gray v. Eothschild 164, 165 Gray v. Shepard 127 Page. Great Western E. E. Co. v. Hanks 48 Greeff v. Equitable Life Assur- ance Soc 340, 341 Green v. Brown 18, 412, 448 Green v. Clifford 78 Green v. Lippencott 313 Green v. Milbank 377 Green v. Parsons 432 Green v. Eussell 222 Green i . Von der Ahe 151 Greenbaum v. TurriU 549 Greenfield y. Carlton 16, 309 Greenfield v. Mass. Mut. Ins. Co. 352, 353, 367, 571 Greenleaf v. Francis 203 Greensburgh, etc.. Turnpike Co. V. Sidener 335 Greentree v. Rosenstoek 112 Greenwood y. N. Y. Life Ins. Co. 206 Gregory y. Farris 376 Gregory y. Hartley 263 Gregory v. Wright 54 Greer v. .Vrlington Mills Mfg. Co 417 Grider v. Apperson 386 Gridley v. Gridley 135 Griffin' y. Cohen 480, 491 Griffin v. Long Island R. R. Co. 353, 367, 369, 403 Griffin v. Todd 555 Griffith V. Friendly 161, 322 Griffiths V. Henderson 330 Grigg V. Reed 65 Griggs V. St. Paul 340 Grimshaw v. Woolfall 159 Grinnell v. Church 24 Griswold v. Laverty 49 Griswold v. Manning 45 Griswold v. Nat. Ins. Co 466 Groee v. Jenkins 184 Grocers' Bank % . O'Rorke 360, 361. 548 Groesbeck v. Dunscomb 340 Groff V. Hagan 135 Groot V. Agens 390 Grosjean y. Gallnwav 295 Groshon v. Lyon. . . .". .317, 318, 390 Gross V. Bock 546 Gross A . Clark 12-2. 139 Gross v. Gross 332, 425. 456 GroAy V. Garlock 490 Grubb y. Buford 331 Gruwell >'. Seybolt 110 H Haas V. Colton 542 Haas V. Taylor 223 Table of Oases. Page. Habrith i . Donohuc :i74 Hackf Old v. N. Y. C. R. R. Co. . 245 Hackett v. Equitable Life As- surance See 331 Hackett v. Richards 54 Hadden v. New York Silk Mfg. Co 550 Hadden \ . St. Louis, etc., R. R. Co 390 liaddix v. Einstman 203 Haddon v. Lundy. 530, 534, 457, 525 Haddow v. Haddow 496 Hadley v. Boehra 537, 542 Hafner & Schoen Furniture Co. V. Grumine 178 Hagadorn v. Village of Edge- water 555 Haggerty v. Andrews 568, 569 Haggerty v. Ryan 125 Hahl v.'Sugo .1, 4 llaight V. Badgeley 380 Haight V. HoUey 385 Haight V. Webster 161 Haines- v. Herrick 352 Haire v. Baker 318, 383 Hake v. Buell 223 Hale V. Omaha Nat. Bank 11, 115, 328, 330,, 570 Hale V. Swinburne 358 Hall A. Allen 298 Hall V. Fisher 166, 225 Hall V. Hall 21 Hall V. Hodskins 76 Hall V. McKechnie 601, 618 Hall V. Olney 617, 528 Hall V. Taylor 181 Hall V. Werney 431, 432 Hall V. Woodward 364 Hallett V. Carter 215 Hallett V. Larconi 505 Hallett V. Hallett 551 Hallett V. narrower 146, 178 Hallett V. Metropolitan Messen- ger Co 286 Halligan v. Golden 494 Halliday v. Noble 466 Hallock' y. Belcher 196 Hallock V. Miller 198, 200 Halstead v. Black 65 Halsted v. Halsted 532 Halstead v. Nelson 411 Halsey v. Gerdes 252 Hamer v. Sidway 375 I-Iamberg v. Singer Mfg. Co. . . . 212 Haraburgher v. Baker 386 HanicrHflilag v. Gathoseope Elec- trical Co 38, 65 Hamilton v. Hamilton 592 Page. Hamilton v. Hough 51 Hamilton v. Royal Ins. Co 248, 373, 400 Hamilton v. Third Ave. R. R. Co 509 liammel v. Wasliburn 300 Hammer v. Chicago, R. I. & P. Ry. Co 77 Hammerslaugh v. Farrier 91 Hammond v. Earle 42, 34.'). 354. 450, 455, 574 Hammond v. Hudson River, etc., Co 278 Hand v. Atlantic Nat. Bank. . .. 320 Handy v. Draper 284 Hannahs v. Hammond 324 Hanover Fire Ins. Co. v. Har- per 292 Hansee v. Mead 374 Hanson v. Lehman 358 Harden v. Woodside 615 Harden v. Ongley Electric Co.. 331 Hargrove v. Hunt 319 Harker v. JIayer of N. Y 51 Harlock v. Le Baron 430 Harlow v. Hamilton 36, 349, 565 Harmon v. Vanderbilt Hotel Co. 178 Harmony v. Bingham 512 Harnes v. Tripp 95 Harper v. Chamberlain 311 Harper v. Kellar 307 Harper v. Kemble 326 Harriott v. Wells 513 Harrington v. Slade...497, 498, 546 Harrington v. Wilson 505 Harris County v. Brady 331 Harris v. Eldridge 322, 323 Harris v. Elliott 163, 164, 165 Harris v. Frank 377 Harris v. Halverson 571 Harris v. Hillegas 36 Harris v. Kniekerbacker 376 Harris v. Steiner 181 Harris v. Turnbridge 521, 525 Harris v. White 47 Harrison v. Wood 577 Harrison v. State Banking, etc., Ass'n 442 narrower v. I-Teath 528 Hartford Bank v. Green 340 Hartford Fire Ins. Co. -s . Watt . 292 Hartley v. James 89 Hartley v. Herring 200 Hartley v. Murtlia 182, 306 Harvey f. Brisbin 455 Haivcy v. Cherry 293 Harvov v. McDonnell 279 Harvey v. Truby 263 Table of Cases. XXXV 11 Page. Hasberg v. Moses 59 Hasbrouck v. Shuster 535 Haskell v. Village of Penii Yan 45, 245 Hastings v. Thurston 278 Hasty V. Bonness 488 Haswell v. Lineks 276 Hatch V. Central Nat. Bank.. . 494 Hatch V. Leonard 6, 48 Hatch V. Peet 59, 60, 110 Hatfield V. Todd 21 Hathorn v. Congress Spring Co. 409, 410, 411 Hatzel V. Hoffman House 460 Hauck V. Craighead 511, 512 Haughie v. N. Y. & N. J. Tel. Co 225 Haunstein v. ICull 176 plauptner v. White 234 Havana City Ry. Co. v. Ca- ballos 29, 319, 400 Havemeyer v. Fuller.. 198, 199, 237 Hawes v. Dobbs 378 Hawkins v. Donnerberg 400 Hawley v. City of Johnstown . . 62 Hawley v. Williams 244 Haxtun v. Bishop 193 Hayden v. Pierce 373, 401 Hayden v. Smith ville Mfg. Co.. 41 Hayes v. Davidson 131 Hayes v. St. Mary's Lodging House 123, 131 Haymond v. Saucer 242 Haynes v. Cox 463 Hays V. Berryman 473 Hayward v. Hood 545 Haywood v. Jones 378, 396 Hazard v. Harding 226 Hecht V. Friesleben 93 Hecker v. Mitchell 390 Heidenheimer v. Wilson. . . .433, 444 Heigle v. Willis 414, 429, 610 Heike v. Meyer 307 Heine v. Anderson 220 Heinrich v. England 210 Helena First Nat. Bank v. Kob- erts 252 Heman v. Payne 71 Hcmmens v. Nelson 238 Hemmingway v. Poucher 44 Hempstead v. Hempstead 84 Henderson v. Acklemire 300 Henderson v. Com. Advertiser Co 331 Henderson v. Henderson 256 Henderson v. Manning 355 Henderson v. Savage 593 Hendricks v. Carpenter 593 Page. Hendricks v. Decker 528, 537 Henequin v. Clews 399 Hennessy v. Metropolitan Life Ins. Co 351 Hcnriques v. Tr-owbridge . . . 555, 559 Henriques v. Yale University 341, 466 Henry v. Daley 415 Henry v. Clelland 184 Henry v. Ilenry 269, 271 Henry Huber Co. v. McAllester. 551 Henry Huber Co. v. Soles 592 Henry v. Sneed 457 Herbert v. Day 415 Herbert \ . Montana Diamond Co 31'6 Herr v. Bamberg 410 Herrington v. Santa Clara Coun- ty 106 Hpss v. Buffalo & Niagara Falls E. R. Co 323 Hewit V. Mason 572 Hewlett V. Wood 256 Heyde v. Heyde 268 Hcve V. Bolies 362 Hevwood V. Tillson 201 Hicl^ V. Thomas 230 Hicksville, etc., R. R. Co. v. Long Island R. R. Co 433 Hier v. Grant . . .' 352, 368 Higert v. Trustees 194 High Rock Knitting Co. v. Bron- ner 91, 98, 100 High V. Mangenberg 252 Higgins V. Crichton 162, 163 liiggins V. Parsons 267 Higgins V. Missouri P. R. Co. . . 42 Higgins V. Newtown & Flushing R. R. Co 182, 306 Hildreth v. White 251 Hill V. Allison 106 Hill V. Supervisors 248, 400 Hillhouse v. Jennings 376 Hilliard v. Austin 46 Hillman v. Allen 376 I-Iillman v. Hillman. . .320, 321, 323 Ililmes V. Stroebel 212 Hills V. Place 192, 298, 302, 394 Hilton V. St. Louis 82 Hinckley v. Troy & Albia R. R. Co 427, 428, 432, 434, 448 Hinds V. Page 608 Hines v. Dry Dock, E. B. & B. E. R. Co 123 Hinman v. Judson 382 Hiort V. Bott 221 Hirschman v. Budd 374 Table of Cases. Page. Hiishfeld v. Bopp 284, 285, 286, 287 Hirshfeld v. Weill 332 Hirst V. Brooks 193 Hitchings v. Kayser 373 Hobart v. Frost . 336 Hobbs V. Memphis, etc.. Ins. Co. 103 liobson V. Cummins 400 Hochstein v. Berghauser 266 Hochstetter v. Isaacs 512, 521 Hodge V. Drake 323 Hodge V. Sloan 186 Hodges V. Bates 243 Hodges V. Friedhelm 525 Hodges V. Hunt 599 Hodges v. Wilmington & W. E. R. Co 162 Hoeninghaus v. Chaleyer 135 Hoes V. Boyer 263 Hoff V. Coumeight 219, 222 Holl V. Pentz 118, 122 Hoffman v. Barton 604 Hoffman v. McCracken 381 Hoffman v. Dickinson 245 Hoffman v. Hoffman 532 Hoffman v. Markham 213, 217 Hoffman v. Parry 367 Hoffman v. Schwartz 212 Hoffman v. Susemihl 354 Hoffman v. Wight 568 Holden v. Holden 206, 256 Hollingsworth v. Spectator Co. 448, 454 Hollingshead v. Woodward .... 454 Hollingsworth v. Spectator Co.. 331 Hollister v. Livingston .... 474, 485 Hollister v. Stewart. .373, 377, 390 Holly V, Graf 531 Holm V. Appleby 484 Holmes v. Broughton 50 Holmes v. Holmes 184 Holmes v. Jones 31 Holmes v. Northern Pacific Ry. Co 366, 448, 456 Holroyd v. Sheridan 379 Holt V. Whatley 40 Hnlyoke v. Adams 539, 541. 544 Holzman v. Hibben 332 Home Bank a'. Brewster & Co. . 276 Homire v. Rodgers 231 Honsinger v. Mulford 376 Hnppwcll V. McGrew 381 Hopf V. U. S. Baking Co 494 Hopkins v. Everett 357 Hopkins v. Hopkins 574, 575 Hopkins v. Lane 435, 416 Hopkins v. Meyer 365, 547 Hopper V. Barnes 312, 319 Page. Hopper V. Hopper 405 Hoppough V. Struble 383 Honifager v. Hornfager 318, 487, 528 Horton v. Horton 375 Hosley v. Black 59, 306 Hotaling v. Hotaling 192 Hotel Register Co. v. Osborne. 205 Hotham v. East India Co 33 Hotopp v. Huber 321, 337 Hough V. Grants Pass Power Co. . ...' 331 Houghkirk v. D. & H. C. Co. . . . 249 Houghtaling v. Hough taling. . . 76 Houghton V. Skinner 539, 542 Hou.se v.. Lockwood 347, 391 Howard v. Daly 188, 190 Howard v. France 193 Howarth v. Howarth 262 -Howard v. Leonard 282 Howard v. Lillard 211 Howard v. Michigan Southern R. R. Co 309, 448 Howard v. Mobile Co. of Amer- ica 567 Howard v. Shores 441 Howard v. Tiffany 562 Howd V. Cole 117 Howe V. Elwell . . 360, 364, 547, 500 Howe V. Pacific Mut. Life Ins. Co 294 Howe Sewing Mach. Co. v. Haupt 602 Howe V. Wilson 76 Howell V. Adams 193 Howey v. Gowings 255 Howland v. Edmonds 61, 192 Howland v. Davis 52 Howland v. Vincent 203 Hoy t V. Sheldon 528, 543, 544 Hoyt V. Shelp 487 Hoyt V. Van Alstyne 369, 404 Hubbard v. Gorham 569 Hubbard v. Horham 450 Hubbard v. Williamstown 50 Hubbell V. Fowler 463 Hubbell V. INIeigs 233 lluber Mfg. Co. a . Hunter 458 Huber v. Wilson 573 Hudnut V. Gardner 232 Hudson V . Swan 214, 506 Hughen v. Woodward 86 Hughes V. Chicago, etc., R. W. Co 575 Hughes V. Heath 500 Hughes V. Wood 84, 85, 475 Huibert v. Young 176, 602 Hull v. Ball 90, 101 Table op Cases. XXXIX , Pan-e. Hull V. Smith 556 Humble v. McDonough .... 355, 547 Hummel v. Moore 18, 57 Hun V. Van Dyck 370 Hunt V. Bennett 48, 49, 236 Hunt V. Chapman 436 Hunt V. Farmers Loan & Trust Co 382 Hunt V. Jetmore 400 Hunt V. Hudson River Fire Ins. Co 45 Hunt V. Patten 112 Hunter v. Hudson River Iron & Maeh. Co. 216, 217 Hunter v. Hunter 125 Huntington Bank v. Hysell 298 Huntington v. Jones 275 Hurlbut V. Post 417 Hutchinson v. Ainsworth 150 Hutchinson v. Whitmore '222 Hutson V. King 79 Hutson V. Morrisiania Steam- ship Co 478 Hyate v. McMahon 36 Hyde v. Salg 96, 98 Hyland v. Hyland. 266 Hynes v. Farmers' Loan & Trust Co 164 Hynds v. Griswold 567, 569 Independent Order Mut. Aid v. Paine 187 Ingersoll v. Dixon 552 Ingerson v. Miller 26, 242 Ingols V. Plimpton 441 Ingraham v. Baldwin 312 Ingraham v. Gilbert 186 Ingram v. Root 226 Inslee v. Hampton 28 Irlbaeker v. Roth 376 Iron Age Pub. Co. v. Western Union Tel. Co 307 Isaac V. Wilisch 130, 131 Isaacs V. Mintz 144 Isear v. McMahon 334 Israel v. Israel 269, 406 Irvin V. Smith 403 Irvine v. Wood 379 Irving Nat. Bank v.<3orbett. . . 316 Ives V. Miller 419 Iyj Courts Realty Co. v. Mor- ton 108, 188, 346, 348, 450 Jack V. Des Moines & Ft. Dodge R. Co 55 Jaclonan v. Lord 244 Page. Jackson v. Andrews 266 Jackson v. Brookins 323 .lackson v. Brown 150 Jackson v. Foley 295, 517 Jackson v. Jackson 102 Jackson v. Murray 494 Jackson v. Varrick 494 .Jacob V. Haef elein 404 Jacobs V. Day 375 Jacobs V. Gibson 297 Jacobs V. Water Overflow Pre- ventative Co 128 Jaequelin v. Morning Journal Ass'n 233, 234 Jaeger v. Bowery Bank 425 .Tacger v. City of N. Y 18, 365 Jaeger v. Sunde 321 Jaffe V. Lillienthal 45 Jaflfray v. Krauss 299 Jaillard v. Tomes 98 James v. McPhee 358 Jawett V. Malott 505 James v. Work 375, 390 Jaycocks v. Ayres 410 Jeffras v. McKillop, Sprague & Co 562 Jefferson Nat. Bank v. Texas Investment Co 37, 110 Jenkins v. Brown 615 Jenkins v. Thomason 323 Jenkins v. Van Shaack 255 Jennings v. Wright 147 Jensen v. Wetherell 331 Jeroliman v. Cohen 482 Jessup V. Hulse 278 Jewell V. City of Ithaca 59, 62 Johannessen v. Munroe. . . . 185, 504 John V. Duncan 224 Johnson v. Andrews 361 Johnson v. Birley 125 Johnson v. Brown 509 Johnson v. Consolidated Min. Co 184 Johnson v. Finch 225 Johnson v. Johnson 269 Johnson v. Kelly 327 Johnson v. McConnell 212 Johnson v. Roach 250 Johnson v. Robertson 400 Johnson v. White 461 Johnson v. Wygant .J88, 189 Johnson v. Wynne 456 Johnson v. Snyder 536 Johnston v. Bryan 576 Jones V. Austin 91 Jones V. Axen 47 Jones V. City of Petaluma. . .81, 355 Jones V. De Coursey 388 xl Table or Cases. Page. Jones V. Dow 37 JO'nes V. Grant 4.39 Jones V. Iverson 330 Jones V. Ludluni 355 Jones V. Minneapolis 62 Jones V. Minogue 16 Jones V, Nichols 253 .Jones \ . Norwood 572 Jones V. Phoenix Bank 110 Jones V. Piatt 125 Jones V. Reilly 253 Jones V. Rush 367 Jones V. Seaman 83, 101 Jones V. St. Louis & S. F. Ey. Co 322 Jones V. Townsend 410 Jones V. Vinal Haven Steamboat Co 417 Jordan & S. Plank Road Co. v. Morley 44, 49 Jordan v. Nat. Shoe & Leatlier Bank 38, 422, 425, 440, 441 •Joseph Dixon Crucible Co. v. N. Y. City Steel Works 555, 558 JosljTi V. Joslyn 521, 505 .Judah V. Vincennes University. 325 Judd V. Smith - . . 303 Judge V. Hall 54, 313 Judson V. Stillwell 419 Jutte V, Hughs 196, 197 K Kager v. Brenneman 78, 116, 448, 454 Kahrs v. Kahrs 442 Kain v. Dickel 549 Kain v. Larkin..l07, 278, 324, 325 Kane v. Kane 268 Kapp V. Barthan 488 Karker v. Haverly 188 Katz V. Kuhn 398 Kaughran v. Kaughran 16, 309 Kay V. Churchill 548, 549 Kay V. Whittaker 440, 549, .553, 5.57, 558, 564 Keating v. American Brewing Co 374 Keeflfe v. Nat. Accident Soc 380 Kecler v. Brooklyn Elevated R. R. Co 390 Keeler v. Van Wic : . . 487 Keen v. Breckenridge 176 Kecne v. Tribune Ass'n 240 Kconcrt v. Iba 101 Keeney v. Morse 273, 282 Keenholts v. Becker 200, 236 Keep V. Kaufman 159, 160 Page. Kee.sling v. Watson 297 Keith V. Goldston 232 Keller ,. Dean 238 Keller V. N. Y. C. R. R. Co.. . . 248 Kelley v. Breusing 30 Kelley v. Kershaw 194 Kellogg V. Baker 53 Kellogg V. Lehigh Valley R. R. Co : 229 Kellogg V. Church 352 Kellogg V. Paine 119, 120, 122 Kelsey v. Covert 583 Kelsey v. Sargent 127 Kelsey v. Ward 318, 390 Kelsey v. Weston 35 Kelly V. Downing 10. 205, 207, 327, 329, 330 Kelly V. Ernst 568 Kelly V. .lay 337 Kelly V. Sammis 357 Kelly V. Taintor 410 Kelly V. Waterbury 410 Kelly T. West 394 Kelly V. Woman Publishing Co. 100 Kemble v. Herndon 251 Kemp V. Mitchell 335 Kendall v. Stone 199, 240 Kennedy v. Press Pub. Co. .198, 199 Kenney v. N. Y. C. & H. R. R. R. Co 201, 248, 249 Kenney v. Wells 331 Kent V. Crouse 168 Kent V. Friedman 435 Kent V. Highleyman 210 Keogh Mfg. Co. v. Eisenberg.. 183 Kerner v. Boardman 220 Kerner v. Leonard 469 Kerns v. Roberts 93 Kerr v. Hays 571 Ketchum v. State 330 Ketchum v. Van Dusen 108 Ketcham v. Zerega .... 51, 359, 447 Keteltas i-. Gilmour 137 Keteltas v. Mvers 49, 105. 297 Keyes v. Flint Co 118 Kiefer v. Grand Trunk R. Co . . 247, 593 Kiefer v. Thomass 550 Kicrsted v. West 416 Kilf V. Yeoumans 201 Killiam v. Ebbinghaus 288 King V. Brookfield 125 King V. Bryan 47 King V. Mackellar 508, 517 King V. Powell 400 King V. Orser 369, 404 Iving V. Ross 127 King V. Stafford 560 Table of Cases. xli Page. Kiun v. Sun Printing & Pub. Co 23!) King V. To\vnsliend. . .'iGl, 2(i2. 4.")li Kingsbury v. Bradstreet Go. . . . 238 Kingsbury v, Buokner 20 Kingsland v. Borst 172 Kingsland a-. Haines 230, 408 Kingsland \ . Stolves 171, 172, 264, 327 Kingsley v. Kingsley 410 Kinkaid v. Kipp ." 90, 94 Kinnier v. Kinnier 340 Kinnev v. Langenhoui' 241 Kirk v. Woodbury Conntv 4fi0 Kirldand v. Aiken ' 02 Kirtz V. Peck 380 Ki^tner a. Indianapolis 243 Kitchel v. Scbenck 399 Kittinger a . Buffalo Traction Go 341 Kizer r. Canfield 263 Klein a. Klein 271 Kleiner v. Third Ave. R. R. Go. 197 Kley V. Healy 233, 296 Kiev v. Higgins 173 Klinck V. Colby 410 Klinger v. Bondy 370, 371. 404 Kloek V. Brennan 123 Knapp V. Burnham 441 Knapp T. City of Brooklyn ..... 37, 41, 110 Knapp A-. Fowler 521 Knapp V. Roche 197, 366, 367, 370, 373, 509 Knapp V. Simon 507 Knapp V. Valentine 181 Knauth y. Wertheim 501 Kneedler v. Sternberg 343, 345 Knight y. Beach 394 Knight V. Le Beau 312. 314 Knickerbocker v. Robinson. 507, 527 Knight y. Wilcox 241, 242 Knoblauch y. Foglesong. . . .331, 454 Knowles v. Gee 36 Knox v. Commercial Agency. . . 409, 450 Knox \ . Metropolitan El. Ry. Co ■ . 147 Koeehl v. Leibinger & Oehm Brewing Go 274 Koenig v. Nott 103 Kohlbrenner y. Elsheimer 607 Koons V. St. Louis & Iron M. E. E. Co 249 Kortz y. Canvassers of Greene. 144 Kortright v. Cady 394, 395 Konntze v. Kennedy 231 Kraft V. Mnges 130 Page. Kraft V. Rice 194 Kramer y. Schatzkin 407,408 Kraner a . Halsey 183 Kraus v. Agne\v 448, 566 Kraus v. Sentinel Go 238 Kreekeler y. Ritter 379, 393 Kreling v. Kreling 321 Krower -y. Reynold.s. . . .46, 56, 194 Kyle V. Craig 311 Kyle y. IMary Lee Coal & Ry. Co 289 L La Ghicotte v. Richmond R. & L. Go 190 La Ghicotte y. Richmond R. & El. Go 514 Lacy V. Wilkinson 90 Lackey v. Vanderbilt . . 24, 474, 563 Ladd V. Arkell 572 Ladd y. Judson 275 Ladue \ . Andrews 95 LatFey y. Chapman 37 La Farue y. Halsey 415 Lafayette County Bank v. Met- inif, Moore & Co 223 La Fayette Ins. Go. v. Rogers . . 49 Lafond v. Lassere 413, 443, 459 Laidley v. Cummings 399 Laird y. Taylor 224 Lake v. Thomas 345 Lambert y. Hoffman 363 Lamming v. Galusha 160, 322 Lamont v. Ghe.shire 383 Lamport v. Abbott 209 Lance v. Shaughnessy . . . .391, 393 Lane & Abbott . 25 1 Lane y. Gilbert 569, 583 Lane v. Salter 291 Lane v. Union Nat. Bank 277 Lane y. Williams 131 Laney y. Jlayor 498 Langdon v. Bunill 190 Langdon v. Guy 213 Langdon y. Sheni er 239 Langprey y. Yates 55 Langsdale y. Girton 316 Langworthy v. Smith 184 Lanitz v. King 184, 190 Lanpher v . Clark 410 Lansing v. Hadsall 439, 440 Lapham y. Rice 616 Laraway y. Perkins 196 Lasher v. Williamson 415 Latham v. Richards 535, 543 Lathrop v. Godfrey 436 Latimer y. Wheeler 221 xlii Table of Cases. Page. Lattimer v. Sullivan 21 Lattimer v. Metallic Spring Co. 557 Latlin V. McCarty 208 Laub V. Buckmiller 208 Laufer v. Boynton Furnace Co. 504 Laurie v. Duei' 357 Laux V. Gildersleeve 396, 397 Lavendar v. Hudgans 202 Laverty v. Snethen 203, 221 Law V. Mather 546 Lawler v. Levy . . » 225 LaAvrence v. Bank of Republic. 348 Lawrence v. Beecher 108 Lawrence v. Cabot 356 Lawrence v. Chase 376 Lawrence v. Derby 548 Lawrence v. Miller. . . .' 188 Lawrence v. Spence 241 Lawrence v. Wright 37, 39 Lawson v. Gee 331 Lawyer v. Fritcher .26, 241 Lazarus v. Freidheim 38 Leach v. Boynton 550, 555 Leach v. Linde 65 Leach v. Smith lU Leary v. Boggs 353 Leary v. Moran 325 Leavenworth v. Packer. 28, 412, 413 Lebley v. Farmers Loan & Trust Co 191 Le Claire v. Thibault 427, 442 Ledgerwood Mfg. Co. v. Baird. . 355 Ledwick v. McKim 3 Ledyard v. Jones 201 Lee V. Jacobs 554, 558 Lee V. Russell 426 Lee V. Troy Citizens Gaslight Co 45, 245 Lee Bank v. Kitehing 562, 565 Leeds v. N. Y. Telephone Co. . . 244 LefFevtB v. Silsby 389 Lefferts v. Snediker 556 Lefler v. Field 230, 408 Lehmai-r v. Griswold 428, 431 Lehmann v. Tribune Ass'n. . . . 234 Leigh V. Atwater 126 Leinenkugel v. Kehl 166 Lemmon v. Moore 242 Lemon v. Stevenson 104 L<'mon V. Trull 435 Lout V. N. Y. & M. Rv. Co ... . 46, 194, 195, 297, 298, 305 Ijcimard v. Columbia Steam Nav. Co 247, 248 Leonard v. Foster 617 Leopold V. Silverman 9 Irf.7che V. Brasher. .. .418, 425, 434 Page. Le Roy v. Marshall 8 Le Roy v. Piatt 377 Leslie v. Harlow 456 Leslie v. Leslie 461 Lesser v. Gilbert Mfg. Co 502 Les Successeurs D'Arles v. Freedman 190 Lester v. Jewett 188 Lester v. Seilliere 9, 205, 329 Lcttman v. Ritz 512 Levi V. Booth 223 Levi V. Engle 252 Levi V. Jakeways 85 Levi V. Haverstick 389 Levy V. Bend 349 LeA'y V. Burgess 59, 188 Lewin v. Lehigh Valley R. R. Co '....: 249 Lewis' Admr. v. Taylor Coal Co. 322 Lewis V. Barton 397 Lewis V. Bruton 45 Lewis V. City of Buffalo 195 Lewis V. Howe 150 Lewis V. Kendall 51, 449 Lewis V. IMaloney 390 Levenberger v. Paul 202 Lichtenberg v. Hardtfelder. 275, 276 Liebmann's Sons Brewing Co. v. Cody 117 Liegeois v. McCracken 339 Lienan v. Lincoln 42 Lignot V. Redding 433 Like V. McKinstrv 240 Lillienthall v. A. P. Hotaling Co 21 Lillienthal v. Hotaling Co.... 462 Lilly V. Farmers Nat. Bank. . . . 402 Limbeck v. Gerry 227 Lincoln Nat. Bank v. Butler ... 48S Lincoln v. ^^'alker 245 Linden v. Doctsch 252. 259 Lin den v. Graham 198, 199. 200, 240 Linden v. Hepburn 8. 208. 209 Linrlenheim v. N. Y. El. R. R. Co 532, 533 Lindsay v. Jackson 440 Lind-say v. Mulqueen 113, 114 Linton v. Unexcelled Fireworks Co 349. 372, 37-3 Lipe V. Eisenlord 241 Lipe V. Becker 466 Lipnian v. Jackson Architect- ural Iron Works 437, 457 Lippencott v. Goodwin 78 Liscomb v. Agate 124, 127 Lister v. Vow'ell 519 Littell V. Sayre 332 Table of Cases. xliii. Page. Little V. Denn 607 Little V. Harrington 386 Little Rock Cooperage Co. v. Hodge 17 Litchfield v. Flint .... 146, 147, 332 Littlejohn v. Greeley.; 565, 569 Livingston County v. Morris . . 251 Livingston v. Hammer .... 357, 360 Livingston v. Muller 466 Livingston v. Smith 46 Livingston v. Swofford Bros. Diy Goods Co 277 Lloyd V. Ballantine 555 Lloyd V. Burns 362 Locklin v. Moore 193, 298, 302 Lockwood v. Bigelow 456 Lockwood V. Salhenger 552, Lobdell V. Stowell 393 Loftus & Co. V. Bennett 197, 200 Logan V. Berkshire Apartment Ass'n 184 Logan V. Moore 323 Logan V. Steele 238 Long V. Huhbard 488 Long Island Bank v. Boynton . . 397 Long Island Ins. Co. v. Hall. . . 292 Long V. SaflTord 408 Longeway v. Hale 296 Longpray v. Yates 25, 56 Lopez V. Central Arizona Min- ing Co 245 Lord V. Vreeland 327 Lorillard v. Clyde. 40, 152, 324, 571 Lorillard Fire Ins. Co. v. Mesh- ural 390 Lossey v. Orser 79, 108, 345 Lough v. Outerbridge 377 Louis V. Belgard 281, 286, 287 Louisville & N. R. E. Co. v. Belcher 47 Louisville, etc.,. R. R. Co. v. Bo- land 46 Louisville, N. A. & C. R. Co. v. Cauley 244 Louisville & N". R. Co. v. Com- monwealth 322 Louisville, etc., Ry. Co. v. Jones. 244 Louisville, etc., Ry. Co. v. Payne 42 Louisville, etc., R. R. Co. v. Reynolds 184 Louisville, etc., R. R. Co. v. Schmidt 110 Lounsbury v. Sherwood 522 Loveland v. Garner 359 Loveland v. Hosmer 410 Lovett V. Cowman 494 Page. Lovet V. German Reformed Church 263 Lovett V. Salem & S. D. R. Co. 55 Low V. Archer 196, 199 Lowe V. Burke 331 Lowe V. Prospect Hill Cemetery Ass'n 373 Lowe V. Rommell 616 Lower's Gambrinus Brewing Co. V. Bachman 375 Lowther v. Ci'ummie 615 Lowry v. Jackson 320 Lowry v. Inman 338 Lubricating Oil Co. v. Stand- ard Oil Co 43, 178 Lucas v. New York Central R. R. Co 166, 248 Lucas V. Wade 442 Luce V. Alexander 353 Lucena v. Craufurd 293 Luddington v. Heilman 322 Luddington v. Slauson 465 Ludlow V. Dole 306 Lugar v.- Byrnes 568 Lund V. Seaman's Savings Bank 447 Lunn V. Shermer 312, 321 Liish V. Adams 441 Luther v. Bi'ison 82 Luton V. Badham 376 Lutweller v. Linnell 195 Lybecker v. Murray 549 Lyke v. Post 209 Lyles V. Bolles 367 Lynch v. Bechtel 382 Lynch v. First Nat. Bank 303 Lynch v. Tomlihson 145 Lyon V. Blossom 515 Lyon V. Isett 537, 539, 543 Lyon V. Logan 457 Lyon V. Yates 582 Lyons v. Murat 97 Lytle V. Crawford 528, 373 M Mack V. Burt 367 Mack V. St. Louis, Kansas City, etc., R. Co 244 Macauley v. Bromell 81, 355 Mackey v. Auer 327, 329 Mackenzie v. Hatton 159 Maekinstry v. Smith. . . .* 413 Maden v. Underwriting Print- ing, etc., Co 125 Maders v. Lawrence 415 Maders v. Whallon 278 Maddox v. Randolph County. . . 62 Tauj.e of Cases. Page. Magauran v. Tiffany 10.5 Maglio V. New York Herald Co. 240 MuKiiiro V. Maguire 592, 593 jMaliancy v. Mutual Reserve .\ss'n 144 Maher v. Hibernia Ins. Co. .208, 2.32 .Mailer v. Home Ins. Co 206 ilahler v. Schmidt 163, 164 Mahler v. Transportation Co.. 247 Mahon v. Mayor, etc., of N. Y. 503 Makinstry v. Smith 116 Machry v. Sands 81, 355 Malcolm v. Allen 534 Malcom v. O'Reilly 220 Malaney v. Cronin 256 Malone v. Stilwell 164 Maloney v. Dowes 224 :^,linders v. Craft 56 Mandeville v. Campbell 276 Mandeville v. Reynolds . . . 382, 384 Mnndigo v. Bailey 349 Manifold v. Jones 463 Manley v. Rassiga 175 Jlann v. Fairchild 10 Manne v. Carlson 264 Manner v. Simpson 238 Manning v. Benedict 138, 139 Manning v. Dallas 402 Manning v. International Nav. Co 125 Manning v. Pippen 46 Planning v. Tyler 396,397 ]\ranning v. Winter 368 INFansur v. Streight 252 Manufacturers' Bank v. Hitch- cock 546, 549 ilaples V. Mackcy 407 Harden v. Dorthy 515 Marctzeck v. Cauldwell .... 409. 447 Marsraf v. Muir 11 Mav'jvpy v. Muir 209 IMariclc v. Brooks 460 Marie v. Garrison 16, 17. 50, 107. 307, 311, 324, 325, 333, 447, 570 ^ifaiket Nat. Bank v. Pacific Nat. Bank 469 Murks V. Townsend . . 202, 225, 227 i\Tarkwell v. Markwell 321 Marquisoc v. Brigham 560 Morran v. Carroll 319 Marry v. tjames 563 Marry v. .Jones 474 Marsh v. Falker 231 Marsh v. Masterton 391 Mar.sh v. McNair 501, 502 Marshall v. Crehore 255 :\rarshall v. Friend 431 Page. Marshall County v. Jackson 62 Maishall v. Rockwood. . . . ..67, 296 .Marshal] v. Sherman.... 287 .Marston v. Swett 24, 46, 348, 379. 39.3 ^lartin v. Atkinson '183 .Martin v. Clay 319 Martin v. Erie Preserving Co.. 547 Martin v. Gould .576, 592 Martin v. Home Bank... 508 .53 571 Martin v. Kunzmuller. 420 421, 422 Martin v. Mattison 3.30 Jlartin v. Press Pub. Co. . .238, 239 Martin v. Walker 25.5 iMason v. Carter 49 Mason a. Clark . 125. 138 JIa-on V. Dutcher 117 .Mason V. School District. 123 Afason V. St. Paul & Marine Ins. Co 3-^1 ^lason V. Wheeler "95 Mason v Whitely 485 388 Massachusetts L. & T. Co. v. Twitchell 362 Masterson \\ Townshend. . 338, 340 Mather v. Carroll 592 Mathez v. Neidig 286 Matter of !Macaulev 95 M-.itter of St. Lawrence. etc.. R. R Co 92 Matter of Van Beuren. . . . 181 Matter of Wadlev 574 Matter of Wing 181 Jlatthews v. Beach .346. 4.iO Matthews v. Cadr . .,. . 3 Matthews v. Chicopee Mfg . Co. 537 .Matthews v. Hubbard. . . . . 123. 141 JIatthews v. ^Matthews. . 376 Mattison v. Smith... 345, 352. 354 Manle v. Crawford .397. 398 Maxwell v. Farnham.... 209 Maxwell v. Pratt. 312. 313, 321. 389 Mav V. Firs Div. St. Paul &. P. 1^. R. Co "51 ^la^' A . Georger 113 ]\TaTcr x . Louis 398 Alayor v. Mayer 135 Mavger v. Cruse 306 Mavhew a-. Robinson ,385, 386 Maynard v. Talcott 195 TNfavo y. Davidge.421, 433 444, 451 flavor v. Doodv 6C . 68, 297 ^ravor. etc. v. James. . , . .548 flavor of-N. Y. v. Mabie. 434 Table of Cases. XIV Page. Mayor v. Marrener 126 McAllister v. Kuhn 44 McAtee v. Valandingham 409 MeCabe v. Goodfellow 179 McGall V. Nave 210 McCandless v. Chicago, etc., Ry. Co 243 McCann v. Hazzard 453 McCarron v. Cahill 325 McCarron v. Sire 125 McCartee v. Chambers 385 McCarthy v. McCarthy 269 McCarty" v. O'Donnell 550 JlcCarty v. Tarr 40 McCaslan v. Latimer , 528 McCray v. Humes 402 McCrea v. Hopper 443 McCourt V. Cowperthwait 140 MeClave v. Gibb 357, 358 McClure v. Wilson 58, 159, 170, 324, 335 McGonihe v. Fales 437 McCormiclc v. Riddle 42 McCormiek v. Sullivan 384 McConnell v. Spicker 401 McCosker v. Hilton & Dodge Lumber Co 516 McCoy V. Boley 263, 264 McCoy V. Trucks 241 McCray v. Humes 108 McCrea v. Gaboon 320 McCrea v. Hopper 115 McCreery v. Day 385 McCreery v. Inge 289 McCulloch V. Vibbard 418, 441 McCuUough V. Colby 531 McDonald v. Davis 463, 541 McDonald v. Edwards 236 McDonald v. Mallory 248 McDonald \. Mission View Homestead Ass'n 46, 49 McDermont v. Anaheim Union Water Co 312 McDonough v. Dillingham 3, 33, 110, 114 McElwain v. Willis 276, 277 McElwee v. Hutchinson 367 McEhvee Mfg. Co. v. Trow- bridge 459, 460 ilcEncroe v. Decker 353 McEvoy V. Appleby 282 McGean v. M. E. R. Co 538, 539 McGilvray v. McGilvray 325 McGrane v. Mayor, etc., of N. Y 502, 528 McGrath v. Maxwell 181 McGrath v. Pitkin 331 McGuire v, Bransher 33 Page. McHugh V. Harjes 376 Mcllroy v. Buekner 18 Mclntyre v. Calhoun 386 Melntyre v. Costello 258 Mclntyre v. N. Y. C. R. R. Co. 249 Mclntyre v. Ogden 569 Mcintosh v. Mcintosh 269, 271, 320 Mcintosh V. Lown 152 McKane v. Brooklyn Citizen . . . 410, 411 ilcKasey v. Huber 51 McKay v. Fiebelle 330 _, McKean v. German-American Savings Bank 414 McKee v. Metropolitan Life Ins. Co 473, 478 McKensie v. Parrell 54,464 MclCernan v. Robinson 180 McKevin v. Northern Pacific R. R. Co 45 JIcKinnou v. Mcintosh 230 McKyring v. Bull 345, 366, 373 McLachlin v. Brett 419 McLane v. Kelly 427 McLaughlin v. Fisher 238 McLean v. Electric Co 359 McLeod V. Connecticut, etc., R. R. Co 40 SIcManus v. Western Assurance Co 366, 374, 412 McMamis v. Western Ins. Co.. 63 McMahon v. Allen 531, 534, 539, 542, 543 McMahon v. Lange 559 McMoran v. Lange 301 Meiliirray v. GifFord 51, 408 iIo?iIurrav v. McMurray 502 :\Ii:\rullpn v. RaflTerty 301 McNair v. Gilbert 142 ~SU-^ air v. Moore 298 McNamara v. Bitely 608 JfcXaiiiara v. :\IcN'amara . .269. 271 McNamara v. Oakland Building & Loan Ass'n 265 j\rr-Neil T. Hodges 206 JIcNeil V. Sun & Evening Sun Bklg. Ass'n 395 McNulty V. City of New York. 379 McPherson v. Pacific Bridge Co 244 McPherson v. Weston 18 McPhillips V. Jones 301 McQueen v. Babcock . . 485, 486, 494 McVey v. Cantwell 570 Mea v. Pierce 50.5 Mead v. Darragh 615 Mead v. Pettigrew 354 xlvi Table of Cases. Page. Meade v. Gilfoyle 403 Mechfinics Bank v. Straiten . . . 298 Mechanics & Travelers Bank v. Dakin 275, 276 Medianies Bank of Williams- burgh V. Foster 37 Medbury v. Swan 541 Meeker v. Dalton 28 Meehan v. Harlem Savings Bank 361 Melcher v. Kreiser 354 Meldrum v. Knefiek 511 Mele V. Delaware & H. Canal Co 46, 245 Melendy v. Barbour 176 Melhado v. Poughkeepsie Trans. Co 45, 249 Mollwitz V. Manhattan Ry. Co. 198 Melvin v. Wood 141 Menifee v. Clark 456 Mercantile Nat. Bank v. Corn Exch. Bank 464 Merchants Exch. Nat. Bank v. Commercial Warehousing Co. 398 Merchants', etc., Bank v. Evans. 298 Merchants Bank v. Griswold . . 302 Merchants' Nat. Bank v. Hogle. 206, 326 Merchants Nat. Bank v. Snyder. 437 Mercein v. Smith 425, 466 Meriden Britannia Co. v. Zing- sen 187 Merrifield v. Cooley. 8 Merrill v. Bearing 77 Merrill v. Merrill 269, 405, 406 Merrill v. Thompson 340 Merrill v. Wedgwood 367 Merritt v. Bartholick 264 Merritt v. Briggs 368 Merritt v. Gouley 437 Merritt v. Lyon 176 Merritt v. Millard 42, 450 Merritt v. Seaman 146, 425 Merritt v. Smith 262 Merz V. Interior Conduit & In- sulation Co . 528 Meton & Sons v. Isham Wagon Co '. 100 Metraz v. Pearsall 81, 355 Metropolitan Elevated E. Co. v. Johnston 377, 378 Metropolitan El. Ry. Co. v. Manhattan El. Ry. Co . . . 295, 296 Metropolitan Life Ins. Co. v. Meaker 459 Page. Metropolitan Trust Co. v. Tona- wanda, etc., R. R. Co 115, 432, 438, 443 Metzger v. Carr 456 Meurer v. Brinkman 548 Meyer v. Amidon 231 Meyer v. Bergholz 300 Meyer v. Chamberlyn 450 Meyer v. Hibsher 49, 185 Meyer v. Van Collem 327 Mexico V. Cauthorn 70 Miaghan v. Hartford Fire Ins. Co 510 Milan v. Southern Ry. Co 343 Milbank v. Jones 367, 368, 374 Mildenberg v. James 332 Miles V. Dover Furnace Co. 307, 308 Miles V. McDermot 36 Milk V. Christie 144 Miller v. B.arber 231, 233 Miller v. Carpenter 502 Miller v. Decker 370 Miller v. Dennett 255 Miller v. Fenton 29 Miller v. Hughes 553 Miller v. Kent 126 Miller v. Losee 21 Miller v. Luco 27, 316 Miller v. Manice 392 Miller v. McClosky 353, 358 Miller v. Milligan 224 Miller v. Shall.! 476 Miller v. White ^ 393 Milligan v. Brooklyn Ware- house Co 222 Milliken v. Callahan County. . . 161 Millikin v. Carys 8 Milliken v. Western Union Tel. Co 107, 305, 324 Mills V. Collins 408 Miln V. Vose 551, 563 Milner v. Milner 269, 531, 532 Minneapolis Harvester Works V. Libby 312 Mingst v. Bleck 353 Minzesheinier v. Bruns 45, 401 Missouri Paeifie Ry. Co. v. Hemingway 325 Missouri"?, 'r. R. Co. v. Hen- nessey 244 Mitchell V. Allen 537, 543, 545 Mitchell V. Bunch 390 Mitchell V. Bunn 496, 512 Mitchell V. Campbell 252 Mitchell V. Thorn 320, 321 Mitchell V. Miller 525 Mitchell V. Mitchell 211, 268 Table of Cases. xlvii Page. Mitnaeht v. Hawthorne 251 Mittendorf v. N. Y. & H. E. E. Co 387, 389 Moberly v. Peek 393 Modern Woodmen of America v. Noyes 294 Moffatt V. Fulton 33 Moffatt V. McLaugMin 256, 324 Moliawk & Hudson Eiver E. R. Co. V. Clute 288 Molloban v. King 454 Molony v. Dows 228, 562 Moniot V. Jackson 505 Montford v. Hughes 615 Montgomery v. Gorrell 68 Monroe v. Douglass 40, 50 Montanye v. Montgomery . .347, 443 Moody V. Belden 127, 131 Moody V. Deutsch 224 Moody V, Moody 430 Moody V. Steele 421 Mooney v. Bennett 238 Moore v. Belloni 120 Moore v. Charles E. Monell Co. 184, 332 Moore v. Copp 458 Moore v. Douglas 511 Moore v. Francis 239, 240 Moore v. King 142 Moore v. McClure 44 Moore v. Noble 231 Moore v. Rand 428 Moore v. Hobbs 312 Moore v. Omaha Life Ass'n .... 275 !Mooves V. Lehman 252 Moran v. Abbott 215, 217 Moran v. Helf . .84, 95, 96, 101, 474 ^Moran v. Long Island City. . . . 473, 478 Morange v. Morange 532 Morange v. Morris 188 Moravec v. Grell 224 Morel V. Garelly 500, 542, 543 Morell V. Morell 268 Morpy V. City of Duluth 326 Morev V. Ford 309, 457 Morey v. Safe Deposit Co . . 550. 552 Morey v. Tracey 291 Morgan v. Bennett 344, 568 Morgan v. Bucki 176 Morgan v. Smith 434 Mori V. Pearsall 135 Morrison v. Spears 79 Moritz V. Lavelle 190 Morley v. Guild 95 Morn V. Leroy 316 Morningstar v. Cunningham . . 388 Morrell v. Irving Fire Ins. Co. 373 Page. Morrill v. Kazis 123, 134 Morrill v. Manhattan Life Ins. Co 290 Morris v. Kahn 593 Morrison v. O'Eeilly 358 Morris v. Sliter 187 Morrison v. Smith 238 Morris, Tasker & Co. v. Cham- berlin 459 Morris v. Tuthill 202 Morse v. Snitts 231 Mosher v. Bruhn 289 Mosher v. Hotchkiss 304 Moseley v. Moseley 409 Moses V. Bowe. . ." 218 Moser v. Cochrane 432 Jloses V. Walker 215 Moss V. Cohen 166. 324 Moss V. Lindblom 210 -Mntes V. Gila Val. & N. Ry. Co. 400 Moulton r. Beecher. . .22.5. 486. 488 :\rount T. Scholes 393 AFowbray v. Dieekman 308 IMiiellerV. Tenth & Twenty-third St. Ferry Co 125, 133 Mulford V. Hodges 149 Mukloon V. Blackwell 116, 465 Mnldownev v. Morris & Essex E. R. Co 206 iMullally V. Townsend 363 i\liillens ,-. Am. Freehold L. & M. Co 180 ■\luller V. Earle 531 ! :\r',illor V. Eno 435 i "MiiUer V. Scandinavian, etc., Emipvant Co 274 Multnomah St. Ry. Co. v. Har- ris; 277 AFunily V. Wight 409 jMungrr v. Albany City Nat. Bank 193, 422 Mnnger v. Hess 222 Plunger v. Shannon. . .555. 556, 559 Munn v. Barnum 552 Munn V. Cook 59 Munzinger v. Courier Co 520 Murphy v. McQuade 428 Murphy v. Naughton 168 :\Iurph'y V. Russell 343 ]\Iurray v. Church 146 Murray v. Dayo 421 IWurray v. Mabie 123 Murray v. New York Life Ins. Co 294 Murtha v. Curley 9, 206 Murrell v. Henry 571 Musgrove v. Mayor 81, 355 Mussina v. Clark 229 xlviii Table of Cases. Page. Mussiii;\ V. Stillman 551 Mussinaii v. Hatton 480 Miissinan v. Willner Wood Go. 130 Mutual Lifp lus, Co. v. Toplitz. 548 Mut. Life Ins, C(j. v. Yates Co. Nat. Bank 374 Mutual Loan Ass'n v. Lesser. . 497, 498 Mycis ,-. Albany Ry. Co... 125, 133 Mypis V. Burns 434 Myers v. Davis 420, 421 Myers v. Donnan 376 Myers v. Longstaff 410 Myers v. Jlyers 269 Myers f. Wheeler 397, 437 Mynrlersee v. Snook 419, 441 N Nagle V. Lutz 164 Nanz V. Oakley 312 Nash Y. Hall Signal Co... 312, 315 Nash V. McCauley 25 Nassau Bank v. Yandes 288 Nathans v. Hope 149, 150, 151 Nat. Benefit Ass'n v. Bowman. 4.3 Nat. Bank a. Boylan 416 National JBank of Commerce v. Bank of N. Y 342 National Bank of Deposit v. Rogers 504, 505 National Bank v. Lewis . . . 397, 398 National Bank of Metropolis v. Oreutt 397, 398 Nat. Bank of Republic v. Thnr- her 4:16 Nat. Bank v. Van Derwerker. . 178 Nat. Tradesmen's Bank v. Wet- "loiT- 273, 277. 279 Nat. Union Bank v. Reed.. .. 232 Nebenzahl v. Townscnd 225 Neftel V. Liglitstdue 110 Nehasane Park Ass'n v. Lloyd. 373 Nehrboss v. Bliss 168 Neiberg v. Neiberg 532 Neibuler v. Sonn 196 Nellis V. Clark 409 Nellis V. De Forest 336 Nelms V. Edinburgh-American Land Mortgage Co 179 Nelson v. Eaton 40 Nelson v. Loder 394, 395 Nelson v. Plimpton Fire-proof Elevator Co 188 Neosho CAiy Waier Co. v. City of Neirslio '. 442 Nculie}ger y. Webb ,"i47 Page. X( iidecker v. Kohlberg 103 Neuvirth v. Engler 376 Nevius V. Dunlap 266 New V. Aland 501 Newark v. Stout 41 NewBould V. Warrin 320 Newcomb v. Alney 422 Neweombe v. Chicago & North- western Ry. Co 76 Newcomb v. Hale 304 New England Life Ins. Co. v. Odell 288, 289 Newell V. Butler 123, 124 Newell V. Doty 350 Newell V. Newell 539, 540 Newell V. Salmons 416, 417 New Haven & Northampton Co. V. Qiiintard 380 New Haven Web. Co. v. Ferris. 592 New Home Sewing Machine Co. v. Wray 323 Newman v. Board of Supervis- ors 455, 546 New .Jersey Steel & Iron Co. v. Robinson 448. 4.54 NcAvman v. Otto 349 Ne\i' Orleans Gas Co. v. Dudley. 396 Newton v. Hook .' . 392 N. E. Waterworks Co. v. Farm- ers L. & T. Co 535 New York Car Oil Co. v. Rich- mond 215 New Ynik, C. & R. L. R. Co. V. Kistler 571 N. Y. r. & H. R. R. R. Co. v. llaffen 544 Nrw York, etc.. Iron Works v. Smith 298 NcAv York, etc., R. R. Co. v. Schuyler 320 New York, etc., Transp. Co. A". Hurd 490 New York lee Co. v. North- western Ins. Co.... 208. 563, 573 New York Infant Asyhim v. Roosevelt 125 New Yo;k Life Ins. Co. v. Ait- kin 180 New York Life Ins. Co. v. Uni- versal Life Ins. Go 473, 478 Np\\' York Marbled Iron Works V. Smith 49, 80 New York Monitor Milk Pan Co. V. Remington Works. . . . 496 New York & N. H. R. R. Co. v. Schnvler 15S. 163, 268 New York News Pub. Co. v. Nat. Steamship Go 43, 4.t Table of Cases. xlix Page. New York Security & Trust Co. V. Storm 301 Xew York State Monitor Milk Pan Ass'n v. Remington Ag- ricultural Works S18 Xew York Trust & Loan Co. v. Helmer 46 Nicoll V. Clark I'il, 363 Xicoll V. Fash 389 Nichols V. Corcoran .. 360, 364, 548 Nichols V. Drew 164, 323, 333 Nichols V. Dusenbury 345 Nichols V. Jones. 550, 552, 555, 556 Niggli V. Foehry 374, 375 Ni2;htengale v. Continental Life ins. Co 498 Niles V. Bradley 298 Nilsson V. De Haven 526 Nineteenth Ward Bank v. Man- hattan Ey. Co 574 N. K. Fairbank Co. v. Blant . . . 354 Noble V. Ti-otter 477 Nolan V. Skelly 349 Nones v. Hope Mut. Life Ins. Co 314 Norfolk & W. R. Co. v. Ampey. 17 Northrup v. Northrup 187 Norris v. Glenn 358 Northern Ins. Co. v. Wright. . . 304 Norton v. Huxley 391 Norton v. Kumpe 400 Norton v. McCarthy 420 Nonniy v. Dubosty 67. 73 Noxon V. Bentley 455 Nox-on V. aien 539 Niiman v. Wolf 427 Nyblath v. Herterius 161 Oakes v. Zeimer 343.360 Oaklev v. Town of Mamaroneck. 36, 48 Oakley v. Morton 59 Oakley v. Tugwell 332 Oberlander v. Speis 230 O'Bierne v. Bullio 308 O'Bierne v. Lloyd 149, 152 O'Blemis v. Karing 415 O'Brien v. Ihvire 428 O'Brien v. Fitzgerald 207 O'Brien v. Garniss 430 O'Brien v. Mayor 151 O'Brien v. McCann 367 O'Brien v. Metropolitan St. Ry. Co 541 O'Brien v. Kursheedt 11 O'Brien v. Ottenberg 11 Page. O'Callaghan v. Bode 317 OGalligan v. Cronan 201 Ocean Nat. Bank v. Olcott-. ... 276 Ochs V, Frey 50, ITS Odell T. Clyde 290 O'Dongherty v. Remington Pa- per Co 151 ''Oechs V. Cook 349 Oelberman v. N. Y. & Northern R. R. Co 542 Ogdensburgh Bank v. Van Rens- 'selaer 105, 178 Ogdensburgh, etc., R. R. Co. v. 'S'ermont, etc., fi. R. Co 314 Oolp V. Knickerbocker Life Ins. Co 478 O'Hara v. Ehrich 125 Ohio & Mississippi Ry. Co. v. Niekless 36 Ohio, etc., Ry. Co. v. Niekless. . 44 Ohio & M. Rv. Co. v. Pearcy. . . 245 Ohlv V. Ohly 269 Oishei v. Craven 297, 299 Okev V. N. Y. State Ins. Co 63 Olcott V. Carroll. 104. 324, 326. 571 Older V. Russell 438 Oldfleld V. N. Y. & H. R. R. Co. 244 Olin V. Arendt 56 Olmsted v. Brown 200 Olm.sted v. Miller 198 Olson V. Lamb 417 Oppermann v. Barr 554 Onderdonk v. Mott 8 Oneida Countr Bank v. Bonnev. 390 O'Ncil r. N. Y. C. & H. R. R. R. Co 505 Ontnvin Bank a'. New Jersey Steamboat Co 367, 370 Orange Growers' Bank v. Dun- can 265 Orden Germania r. Devender . . . 125 Oregon Steamship Co. v. Otis. 510, 521 Oren \'. Board of Commission- ers 325 O'Reilly. Skelly & Fogarty Co. V. Greene 316 Ornisbee v. Brown 538 Orr V. Gerrold 426 Orvis v. Dana . . . 123, 125, 127, 134 Orvis v. Goldschmidt 95 Osborne v. Clark 36, 43 Osborn v. Portsmouth Nat. Bank 400 Osburn v. Lovell 370 Oscanyan v. Winchester Repeat- ing' Arms Co 368 Osgood Y. Maguire 317, 390 Table of Cases. Page. Osgood V. Whittlesey 312, 494 Ostrander v. Conkey..481, 488, 489, 490 Ostrander v. Weber 377 Ostrom V. Bixby 550, 552 Otis V. Shants 451, 452 Ottman v. Griffin 123 Ottoman v. Fletcher 184 Otto V. St. Louis, Iron Moun- tain, etc., Ry. Co 244 Oulman v. Schmidt 614 Outcalt V. Johnston 371 Over V. City of Greenfield 50 Owens V. Loomis 388, 390 Pacific Mail Steamship Co. v. Irwin 567, 572 Paddock v. Barnett 500 Paddock v. Palmer 89, 90 Paddock v. Sommers 160 Padgett V. Sweeting 409 Page V. Boyd 110 Page V. Freeman 43 Pahquioque Bank v. Martin 299, 300 Paine v. Brown 189 Palmer v. Bennett 233 Palmer v. Caywood 382 Palmer v. Davis 318, 320 Palmer v. Palmer 224, 405, 525 Palmer v. Smith 410 Pam V. Vilmer 377 Palner v. Van Arden 593 Pardee v. Fish 193 Pardee v. Schenck 23 Pardi v. Conde 81, 82, 547 Park & Sons Co. v. Nat. Drug- gists Ass'n 8, 55, 562, 567 Park V. Wiley 394 Parker v. B. & M. E.. R. Co. . . . 203 Parker v. Crane 186 Paikcr V. John Pullman & Co. 326, 327, 329 Parker v. Pullman & Co 205 Parker v. Paine 374 Parker v. Parmell 188 Parker v. Stroud 192 Parker v. Turner 441 Parkes v. City of N. Y 498 Parks v. Morris Ax & Tool Co. 435 Parmer v. Parmer 206 Parr v. Johnson 193 Parshall v. Tillou 352 Parsons v. Hayes 77 Parsons v. Nash 417 Parsons v. Sutton. ... 141, 196, 426 Page. Pascekwitz v. Richards 356 Passavant v. Cantor.. 123, 137, 231 Patch V. Tribune Ass'n 325 Patchin v. Peck 312 Patchen v. Rofkar 279 Pattison v. Adams 213 Patterson v. Baker 52 Patterson v. Copeland 174 Patterson v. Ely 94 Patterson v. Hare 541 Patterson v. Patterson 422, 425 Patterson v. Wilkinson 237 Pattison v. O'Connor 474 Pattison v. Powers 263 Pattison v. Richards. .412, 428, 429 Pattison v. Taylor 42 Patton V. Whitney 125 Partridge v. Badger 49, 105, 178, 305 Paulson V. Portland 319 Peabody v. Bloomer 417 Peabodv v. Washington Co. Mut. Ins. Co 318, 330 Pearee v. Rahwn 40, 50 Pearsall v. Frazer 187 Peart v. Peart 574, 575 Pease v. Smith 221, 222, 223 Peasley v. McFadden 185 Peck V. Newton 8 Pecke V. Hydraulic Construction Co 453 Peets V. Bradt 49, 296 Pelton V. Place 320 Pelton V. Powell 428 Pelzer v. Benish 235 Pender v. Dicken 104 Pender v. Mallett 325 Penniman v. F. & W. Co 488 Pennock v. ftilleland 147 Pennsylvania Co. v. Cook 36 Pennsylvania Co. v. Hayworth. 36 Pemisvlvania Co. v. Zwick.... 36 Penter v. Staight 367 People V. Albany Common Pleas 608 People A . Bacon 65 People \-. Banker 455 Peoples Bank v. Mitchell 9 People v. Bennett 2 People V. Booth 455, 456 People V. Byron 466 People V. Christopher 355 People V. Commissioners of Highways 37, 595 People V. Common Council of Troy 490 People V. Crooks 316, 318 People V. Curtis 355 People V. Clyde 558 Table of Cases. People V. Delaware, etc 616 People V. Dennison 415, 428,- 506 People V. Dunn 146 People V. Empire Mut. Life Ins. Co 188 People ex rel. Crane v. Eyder . . 40 People's Ins. Co. v. Hart 103 People V. Judges of Oneida C. P. 601 People V. Knox 349 People V. Lauder 37 People V. Lotrop 57 People V. Mutual Gas Light Co. 90 People V. Mayor of N. Y 51. 318, 325, 327 People V. McComber 24 People V. MeCnmber 41. 362, 548, 549, 550, 552. 556, 557, 562, 564 People's Nat. Bank v. Myers.. 511 People V. Nolan 125 People V. Northern R. R. Co . . 353 People V. Ottawa Hydraulic Co. 50 People V. Ovenshire 594 People V. Phillips 490 People V. Ransom 594 People V. Ryder 52, 571 Peojile V. Snyder 50, 353 People V. Supervisors of Oswego 597 People V. Supervisors of West- chester 594 People V. Supervisors of Ulster 595 People V. Strauss 400 People V. Swinburne 536 People V. Tilton 195 People V. Tweed 573, 575 People V. Ulster & Del. R. R. Co 538 People V. Walter 490 People V. Wells 157 People V. Whitwell 487 People V. Woods 502 Perkins v. Brock 24, 348 Perkins v. Church 320 Perkins v. Montgomery . .- 288 Perkins v, Sloeum .....' 58. 167 Perkins v. Stimmel 312. 316 Perry v. Chester 441 Perrv v. Dickerson 149, 151, 391, 392 Perry v. Levinson 463, 513, 521 Peters v. Morning Journal Ass'n 233, 234. 235, 324 Peterson v. Haflfner 203 Petit V. Hudson 103 Petree v. Lansing 312 Petsch V. St. Paul Dispatch Printing Co 234 Peyman v. Bowery Bank 426 Pajje. Peyser v. McCormack 93 Pfeffer v. Kling 251 Pfeiffer v. Rheinfrank 146 Phalen v. Roberts 135 Phelan v. Rycroft 498 Phelps V. Bostwiek 193 Phelps V. Elliott 401 Phelps V. Ferguson 556 Phelps V. Nowlen 201 Phelps V. Vischer 301 Philips V. Rose 184 Phillips V. Berick 151, 393 Phillips V. Equitable Life Ass'n 592 Phillips V. Gorham 208 Phillips V. Hagadon 332 Phillips V. Melville 518 Phillips V. Prescott 468 Phillips V. Suydam 483 Phoenix Bank v. Donnell 312, 313, 316 Phrenix Ins. Co. v. Benton 293 Pha?nix Ins. Co. v. Golden 63 Phcenix Ins. Co. v. Hedrick. ... 17 Phwnix Nat. Bank v. Cleveland Co 326 Phonoharp Co. >-. Stobbe 84, 101 Physio-]\Iedical College v. Wil- kinson 40 Pickard v. Collins 201 Pickert v. Dexter 615 Pierce v. VanDyke 215 Pierson v. McCurdy 325, 328 Pierro v. St. Paul & N. P. R. Co 151 Pigot V. McKeever 357 Pine V. Huber Mfg. Co 335 Pinckney v. Keyler 417 Pinney v. King 297 Pinschower v. Hanks 389 Piper V. Neweoner 335 Pitcher v. Hennessey 266, 383 Pitteugcv v. Southern Tier Ma- sonic Relief Ass'n 353 Pittsburgh. Cincinnati etc. Ry. Co. v. Conn 243 Pittsburgh, etc.. R. R. Co. v. Hixon 325 Pittsburgh, etc., R. R. Co. v. Iddings 316 Pizzi ^ . Reid 201, 244. 249 Place V. Bleyl 348, 558 Place V. Minster 229, 511, 512 Piatt V. Crawford 175 Piatt V. Townsend 138 Piatt & Washburn Refining Co. V. Hepworth 557 Pleasant v. Samuels 400 Taisle of Cases. Page. Platnei- A-. Lehman .■!!)4. 390 Plumb V. Whipples 481. 489 Plymouth a-. Jtilner 331 Poillon V. Lawrence 4fj.'i Poillon \. Poillon 232 Polaek > . Billing 272 Polack V. Runkel 333 Polley V. Wilkinson Li7 Pollmann v. Livingston. .. .541, 542 Pollock V. Carolina I. B. & L. Ass'n 315 Pond V. Harwood 4'42 Pope A. Terre Haute etc. Co. . . .120 Pordage v. Cole 187 Porges V. Cohen 215 Poi-ter V. Citizens Bank 376 Porter v. Kingsbury .. 62, 388. 390 Porter v. Wormser 375 Porous Plastei- Co. v. Seaberry 9, 208, 22S Post-Express Printing Co. v. Adams 129 Post A-. Simmons 502 Posnett V. Marble 239 Potter V. Bacon 195 Potter V. EUiee 312. 320. 321, .337 Potter V. Frail 353 Potter V. Town of Greenwich . . 50 Potts V. Bounce 174 Potts V. State 319 Pouder v. Catterson 176 Powell V. Powell 223 Powers V. French 297 Power V. Gunn 18, 351 Powers V. Rome etc.. K. R. Co. 81, 348, 355, 356 Powers V. Savin 439 Powers V. Seaton 103 Pramagiori v. Pramagiori 268 Pratt V. Collins 419 Pratt J\rfg. On. v. Jordan Iron & Chem. Co 81, 355, 556 Pratt V. Hudson River R. R. Co. 457, 524 Pratt & Wliidiev Co. v. Pneu- matic Tool Co 115, 413 Pioy V. Todd 361 Prentiss v. Bowden 276^ 279 Prentiss v. .Tansen 257 Pnsiivaline :\rf-. Co. v. Sell- ing 538, 544 Price r. Brown .509. 521 Price V. Conway 237 Price V. McClave 299 Price v. Peters_ 617 Price v. Price! 77. 258 Price V, Sloiil 290 Page. Prince ,-. Brooklyn Daily Eagle 236 Prince v. Jacobs 295 Prickhardt v. Robertson 43 Prindle v. Aldrich 485, 502. 528 Prindle v. Caruthers .35. 49. 185, 298, 325 Pritchard v. Dratt 256 Proctors Administrators v. An- drew 502 Prosser v. Carroll 428 Prosser v. Matthiessen 387, nSO Prout V. Chisholm 206 Prouty V. Eaton 412 Prouty V. Lake Shore etc. R R. Co Pruden v. City of Lockport. . . . Prussian Nat. Ins. Co. v. Peter- son Pryce v. Jordan . . Pu'llen V. Wright. Pulse V. Osborn. Purves V. Mozlt . . Putney v, Tyng. . 534 489 293 299 357 453 215 123 Quimby v. Claflin 494. 521 Quin V. Brittain 192 Quinn v. Case 473 Quin V. Lloyd 366, 367, 373 Quin V. Moore 249 Quintard v. Newton 104 .94. R Radde v. Ruckgaber .... Rade v. Press Pub. Co. . . Rni'ford v. Radford Radley v. Houghtaling Radway v. Mather Ra e V. Bea ch Raff V. Koster. Bial & Co Raniaae v. Towles Ramshy v. Beezley Ramsden a-. Ramsden R.aiusey v. Barnes Ramsey r. Erie Ry. Co Evening News Ass"n Anderson Stewart lalhbun v. ^larkham Jatzor v. Ratzer 390, lawlcy A-. Brown 215. Rawsou V. Wetmore Rayner v, Julian Ra\ nnr v. Brenuan Ra vuor v. Timerson , . 366, 369, Read v. City of Buffalo 193. Randall v. !aiisom V. fapalee \. 3.52 199 326 528 95 62 140 320 221 270 45 202 238 549 373 574 544 216 505 166 1.59 374 302 Table of Cases. liii Page. Re.Td V. Brookman 33 Read v. Lambert 109 Recknagle V. Steinway. .79, 365, 374 Rector v. Ridgewood lee Co ... . 486, 488 Redfleld v. Holland Purchase Ins. Co 293 Redpath v. Redpath 9, 206 Eeece v. Smith 330 Reed v. Clark Cove Guano Co . . 230, 408 Reed v. Mayor etc. of N. Y 497 Reed ,'. Reed 18, 57, 343 Reeder v. Sayer 508, 521, 527 Reese v. Walworth 548, 550, 554, 555, 556 Reeves v. Bushby 456 Reformed Protestant Dutch Church V. Brown 152 Relin V. North Fairmount B. & S. Co 312, 317 Reilly v. Cavanaugh 330 Reilly v. Sabater 45, 401 Reining v. City of Buffalo 35, 59, 62 Relyea v. Beaver 52 Rembt v. Roelir Pub. Co.. 197, 200 Remy v. Olds 55 Reynolds v. Palen 592 Rensselaer etc. Plank Road Co. V. Wetsel 567 Re Oshkosh Mut. Fire Ins. Co . . 206 Requa v. Guggenheim 106 Reubens v. Joel 9 Revere Copper Co. v. Dimock.. 399 Reynolds v. Aetna Life Ins. Co. 538, 539, 540, 543, 544 Reynolds v. Craus 547 Reynolds v. Ellis 275 Reynolds v. Hurst. . , 389 Reynolds v. Shuler 221 Reynold v. Smathers 83 Rhoda V. Alamada County. ... 60 Rhodes v. Lev^in 498 Rice V. Childs 487 Rice V. O'Connor 444, 447 Rice V. Ooutant 375 Rice V. Grange 115, 413, 443 Rice V. Hollenbeek 606 Rich V. Mayer 145 Ricli V. Rich 257 Richards v. Crews 252 Richards v. Edick 325 Richards v. Travelers Ins. Co. . 46 Richards v. Warring 301 Richar'dson v. Bates 469 Richardson v. Case 407 Page. liicliardson v. Northrup 76 Richardson v. Penny 412, 415 i;ichard.son v. Sun Pub. Co... 592 Ricker y. Curtis 527 Richmond Countv Society v. Citv of N. Y.'. 374 Richt'er v. JIciMurray 360 Richtmyer v. Richtmyer. . .319, 320 Rider v. Bates 481. 488 Rider v. Foggan 21 Riddle v. MeGiunis 242 Rielly v. Sicilian Asphalt Pav- ing Co 161 Riendeau v. Vieu 40 Riggs Y. American Ti'act So- ciety 39 Riley v. Corwin 521 Riley v. Metropolitan St. Ry. Co 381 Rindge v. Baker 9 Ringle v. Wallis Iron Works.. 191 Risfiel V. Weil 375 Risley v. Wightman 526 Ronciie V. Kivlin 88 Roath V. Driscoll 203 Robh \-. Jlontgomery 189 Robbins v. Palmer 555 Robbing v. Wells 317, 544 Roberts v. Breckon 197, 200 Roberts v. Central Lead Co 381 Robert Gere Bank v. Inman .... 360, 548, 549. 550, 556 Roberts v. Safety Buggj' Co. . , 130 Roberts v. Samson 324 Roberts v. Treadwell 46 Roberts v. Waters 340 Robertson v. Bennett 487 Robertson v. Robertson 532 Robertson v, Rockland Ceme- tery Improvement Co... 501, 546 Robinson v. Brisbane 536 Robinson v. Comer 125 Robinson v. Drummond 79 Rol)inson v. Ecuador Develop- njent Co 100 Robinson v. Evening Post Pub. Co .' 117, 411 Roliin.son v. Flint 1.t9 Robinson v. Frost. .. .366, 367, 370 Robinson v. I-Iateh 409, 411 Robin,son v. Weil 141 Roblin V. Long 548, 553, 554 Robrecht v. Marling 331 Rob.son V. Comstock 103 Roby V. Hallock 360. 548 Rochester & Kettle Falls Land Co. A-. Roe 377 liv Table of Cases. Page. Rochester Ky. Co. v. Robinson . . 36, 43, 63, 103 Rockwell V. Merwin 175 Rockwell V. Saunders 213 Rnrky Mountain Nat. Bank v. Bliss 284,285 Rodgers v. Clements 23, 24, 348 Rodgers v. Brazeale 330 Rodgers v. Rodgers 113 Rodi V. Rutgers Ins. Co 291 Rodkinson v. Gantz 482 Roe V. Angevine 373 Roe V. Campbell 203 Roe Y. Roe 406 lloeber v. Dawson 580 Roemer v. Striker 366 Rafferty v. Williams 439 Rogers v. Arnold 404 Rogers v. Baltimore & 0. S. W. Ry. Co 325 Rogers v. Conde 216 Rogers v. Decker 87 Rogers v. King 380, 460 Rogers v. Lafayette Agricultu- ral Works 316 Rogers v. N. Y. & T. L. Co... 206, 209 Rogers c. Overton 245 Rogers v. Rathbun 491, 563 Rogers v. Verlander 18 Pvohrbadi v. Germania Fire Ins. Co 293 Roklan v. Power 196, 421 Rolseth V. Smith 42 Romanes v. Langevin 49 Rome Exch. Bank v. Bames.. 278 Romcyn v. Sickles 504, 507 Rnnan v. Williams 18, 30 Roome v. McGovern 216 Roome v. Nicholson 550 Roo>a V. Saugerties etc. Co. . . 563, 573 Roosevelt v. Gardiner 144 Roosevelt v. Bull's Head Bank. 394 Root V. Foster 211, 562 Root X . Lowndes 236 Root V. Price 31, 146, 178, 409 Root V. Taylor 425 Rosenstock v. Dessar 127 Rosenteil v. Van Cott 362 Rosenthal v. Dessau 535 Rosenzweig v. McCaffery 417 Rosenfield' v. Shebel 537 Rosselle v. Klein 281 Ross V. Dinsmore. . . .480, 482, 570 Ross V. Duffy 57, 454 Ross V. Tngersol 38 Ross V. Longmuir 94, 97 Page. Ross V. Mather 3, 230, 231 Ross V. Ross 554, 558 Ross V. Sadgbeer 186 Ross V. Terry 113 Rosselle v. Klein 324 Rossiter v. Schultz 46, 195 Rossiter v. Marsh 297 Rothchild v. Grand Trunk Ry. Co 114, 117 Rothschild v. Goldenberg 518 Rothschild v. Meyer 225 Rothschild v. Rio Grande West- ern Ry. Co 40 Rothschild v. Whitman 106, 429, 431 Rourke v. Elk Drug Co 321 Roussel V. St. Nicholas Ins. Co. 293 Rout V. Woods 330 Rowland v. Kellogg 494 Rowland v. Murphy 244 Rowell V. Janvrin 47, 48 Rowley v. National Bank 303 Roy V. Goings 202 Royce v. Brown 4, 5 Rover Wheel Co. v. Fielding. . 276 Ruben v. Ludgate Hill Steam- ship Co 572 Ruch V. Jones 91 Rucker v. Hall 56 Rudde V. Ruckgaber 412 Ruggles V. Fond du Lac County 403 Rumbolz V. Bennett 511 Rundell v. Butler 236, 237 Rupprecht v. Brighton Mills . . 245 Russ V. Sadler 420 Russell V. Barton 368 Russell V. McCall 167 Russell V. Spear 7 486 Russel V. State Ins. Co 63 Rutherford v. Krause..86, 87, 88 Rutledge v. Tarr 381 Riittv V. Consolidated Fruit Jar Co'. 507 Ryan v. Duffy 498 Ryan v. Hoiliday 263 Ryan v. Hurley 224 Ryan v. Lewis 617 Rvan V. McLane 341 Ryerson v. Kauffield 216, 222 Ryle v. Harrington 110 S Saalficld v. Cutting 136, 137 Sadler v. Olmstead 55 Safford v. Drew 248, 249 Safford r. Hynds 384 Sage V. Culver 50, 107, 381 Table of Cases. Iv Page. Sage V. Mosher 535, 542, 544 Sager v. Blain 3 Sagory v. N. Y. & N. H. E. R. Co 494 Salisbury v. Stinson 46, 195 Sallinger v. Lusk 357 Salomon v. Van Praag 222 Salt Springs Nat. Bank v. Bur- ton 298 Saltus V. Kipp 583 Sampson v. Grand Rapids School Furniture Co 42 Sammis v. Brice 615 Samson v. Freedman 435 Sams Avitomatic Gar Coupler Co. V. League 312, 319 Sanborn v. Hale 316 Sanchez v. Dickinson 118 Sanchez & Haya Co. v. Hirsch 363 San Francisco Paving Co. v. Fairfield 322 Sand V. St. John 45, 349 Sand Creek Turnpike Co. v. Robbins 83 Sander v. Savage 220, 222 Sanders v. Farrell 332 Sanders v. Parshall 252 Sanders v. Soutter . . 7 107, 134, 136, 324 Sanders v. Village of Yonkers . . 313, 334 Sanderson v. Caldwell 238, 239 Sandford v. Davis 376 Sanford v. Rhoads 365 Sandiord v. Travers 437 Sandford v. Halsey 184 Sands v. Calkins 448, 482 Sands v. St. John. ." 373 Sanger v. French 376 Sargent v. Steubenville etc., R. R. Co 299 Saratoga Gas & Electric Light Co. V. Hazard 220, 223 Satterlee v. Kobbe 254 Sauer v. Mayor 510 Savage v. Allen 384 Savage v. Aiken 21, 462 Savage v. City of Buflalo 427 Savings Association of St. Louis V. O'Brien 40, 41 Sawyer v. MeLouth 297 Saxton V. Dodge 408 Sayles v. FitzGerald 360 Sayles v. Wooden 409 Say ward v. Houghton 394 Scarboro v. Health Department 345 Scarborough v. Smith 255 Page. Schaefer v. Empire Lithograph- ing Co 429 Schantz v. Oakman 341 Schaus V. Manhattan Gas Co. . . 367 Scheiderer v. Travelers Ins. Co. 63 Schellens v. Equitable Life As- surance Society 178, 572 Schenk v. Barnes 282 Schenck v. McKie 477 Schenck v. Naylor 110, 195 Seheneke v. Rowell 306 Schieck v. Donohue 263, 390, 394, 395 Schiffer v. Adams 102, 206 Schmidt v. Garfield Nat. Bank 222 223 Schmidt v. McCaffery .' 546 Sehnaderbeck v. Worth 428 Schnaier v. Nathan 190 Schnitzer v. Schaefer 549 Schobacher v. Germantown Farmers Mut. Ins. Co 63 Schoepflin v. Coffey 507, 527 SchoU V. Schnebel 225 School District v. Hamilton County 400 School District v. Piatt 325 Sehotte v. Puscheck 377 Sehroeder v. Post 563 Rchrepfer v. Rockford Ins. Co . . 292 Schubart v. Harteau 433 Schuhardt v. Roth 474 Sehuler v. Post 282 Schulthofl" V. Co-Operative Dress Ass'n 121 Schultz V. Depuy 303 Schultz V. Moore 243 Schiiltze V. Rodewald 547 Schutz V. Morette 210,211 Schwab V. Furniss 455 Schwab V. Wehrle 483 Schwartz v. Oppold 368 Schwarz v. Oppold 101 Schwarzschild & S. Co. v. Math- ews 276 Sehweit v. Metropolitan St. Ry. Co 132 Schwinger v. Raymond 28 Scofield V. Demorest 236 Scofield V. Doscher 180 Scofield V. Van Syckle 313 Scofield V. Whitelegge 37. 41, 110, 213, 215, 525 Scotten V. Longfellow 224 Scovill V. New 87 Scott V. Johnson 378 Scott V. Royal Exch. Shipping Co 353 )V] Table of Casks. Page. Scott V. state 456 Sfott V. Stockwell 460 Si'ott V. Wood 24, 348 Scroggs V. Palmer 175 iScranton y. l''ainiers' & Me- chanics' Bank 173 Seaman i'. Low 123 Soaman v. McClosky 484 Soaver v. Hodgkin 330 Seaver v. Mayor 499 Second Nat. Bank v. Heming- ray 93 Secor V. Pendleton 38, 178, 316, 337 Speor V. Sturgis. .149, 150, 151, 393 Secman v. Bandler . . . .' 343 Seeman \ . Biemann 206 Se<;plken v. Meyer 112, 176 Seligman v. Dudley 436 Selover v. Coe, . . .' 373 Selye v. Zimnier 112 Seneca Connty Bank v. Gar- linghouse 484, 488 Sengfelder v. Hill 488 Senorita v. Simonds 96, 97 Seward v. Miller 561 Sexauer v. Bowen 95 Seymour v. Lorillard 159 Seymour v. MeKinstry 373, 376 Shahan v. Tallman 107 Shaffer v. Holm 125 Shain v. Bevlin 28 Shankland v. Bartlett 139 Shanks v. Stumpf _ 409 Sharp V. Johnston 202 Sharp V. Mayor 231 Shaw V. Coek 496 Shaw V. Jayne 8, 224, 228 Shaw V. Jones 462 Shaw V, Republic Life Ins. Co. 189 Shaw V. Tobias 50 Shaw V. Dwight 276 Sheaf V. Hastie 433 Shearman v. New York Central Mills 357, 555, 559 Shearman v. Niagara Fire Ins. Co 293 Sheehan a-. Hamilton 382, 384 Sheehan A'. Pierce 428 Sheldon v. fUark 47 Sheldon v. Adams 495 Slieldon V. Hoy 171, 172 Slieldon v. Lake 37, 76 Sherfey v. Evansville & T. H. R. Co 46, 244 Shepard v. Manhattan R. R. Co. 160 Sherer v. T. P. & P. Go 472 Sherman V. American Stove Co. 165 Page. Sherman v. Boehm 81, 547 Sherman v. Bushnell 360 Sherman v. N. Y. Cent. R. R. Co 44 Bhcrnian v. Tucker 282 Sheridan v. Jackson. 37, 41, 108, 525 Sherridan v. Smith 396 Scheuer v. Rosenbaum 525 Shewalter v. Bergman 64 Shields v. Clement 232 Shipman v. Long Island R. R. Go '. 9 Shoe & Leather Bank v. Baker . . 280 Short V. Barrv 9, 204 Short V. May 479 Shull V. Green 609 Shute V. Hamilton 347. 443 Siedenbach v. Riley 215 Sidenberg v. Ely 394 Silberberg v. Pearson 209 Silberman v. New Amsterdam Gas Co 117 SilUck V. Mason 282 Silver v. Holden 231 Simar v. Canaday 163 Simser v. Cowan 215 Simis V. Wissel 376 Simson v. Satterlee 338 Simmons Company v. Costello 54, 488 Simmons v. Fairchild 108 Simmons v. Kayser .... 413, 443, 457 Simmons v. Lindley 252 Simmons v. Lyons 214, 517 Simonson v. Blake 205 Simonson v. Herold Go 235 Simpson v. French 394, 396 Simpson v. Remington 360 Simpson v. Rome, Watertown, etc., R. R. Co 618 Sinclair v. Fitch 108 Sinclair v. Neill 521 Sinner v. Cavers 330 Singer v. Efiler 362 Singer v. New York Times -Co. . 132. 134 Singleton v. O'Blenis 195 Sinser v. Cowan 36 Siriani v. Deutsch 554 Sixpenny Savings Bank v. Sloan 555 Skelton ■ V. Scott 172. 264 Skilton V. Payne 378 Skinner v. Powers 410 Slack V. Heath 184, 309 Sloan V. Seaboard & Pa. Ry. Co. 330 Sloan V. McDowell 317 Slocum V. Wheeler 309 Snvder v. Free 353 Table of Cases. Ivii Page. Siiialley \. Isaacson 364 Siii.Uls' \. ^\■ildel■ 95 Siiiid V. Beniaid 238 Siiiitli \ . Bradstreet Co 571 Snnth 1 . Britton 180', 181 Smith V. Coe 24, 348 Smith V. Countryman 466 Smith Y. llrai^ei't 403 Smith V. Fellows 68, 297 Smith V. Felton 441 Smith V. Ferguson 168 Smith V, Frost 113 Smith V. Greenin 447 Smith v. Geortner 167 Smith y. Gratz 352 Smith V. Hall 113. 428 Smith V. Yienrj 340 Smith V. Hicfe 142 Smith V. Hilton 439, 569 Smith V. Holmes 195 Smith V. Homer 550 Smith V. Laird 487 Smith \ . Lockwood 41 Smith V. ilcLtan 37 Smith V. Mead 555 Smith V. Mitten 608, 617 Smith V. X. y. Cent. R. R. Co. . 50 Smith V. Rathbun 338, 339, 510, 513, 521, 522 Smith V. Rosenthall 96 Smith V. Rowe. . ." 428 Smith V. Ruohs 376 Smith V. Pfister 186, 297, 474, 487 Smith V. Sioux City Nursery & Seed Co ■ 275 Smith V. Smith 226, 269, 271, 392, 405, 406, 505 Smith V. Watson 144 Smith V. Wells 352 Smith V. Wetmore 188, 190, 528 Sniitzer v. Gordon 358 Snape v. Gilbert 102 Snow V. Fourth Nat. Bank 338 Snyder v. White 360, 483, 487 Societa Italiana v. Sulzer..l8, 57 Soldiers Home v. Sage 331 Solis > . Planning 224 Solms V. Lias 199 Solomon v. Brodie 359 Somer v. Greenberg 218 Sommers v. Hawkins 297 Soper V. St. Regis Paper Co. . . 23, 24, 348, 555, 556, 558 Southard v. Benner 275 Sonthmayd v. Jackson 164 Southwestern Tel. & T. Co. v. Benson 288 Page. Sduthwick V. First Nat. Bank. . 34. 193, 505. 507, 52(i .Southworth v. Curtis 95, 579 Spahn V. Spahn 406 Spannochia v. Loew 296 Spahr V. Tartt 37 Sparman v. Keim 113 Spear v. Dovvnins 6. 103, 185, 180 Spear r. Hart 348 Spears V. Mavor etc. of N. Y. 29, 541 Specht V. Allen 37 SiK'cklemej'er v. Dailey 65 Speidel v.'Henrici. ' 381 Speio-ht V. Jenkins 16 Speis V. :\richelsen 108, 118 Sppis \ . Munroe 40 Spellman i". AVeider 299. 309 Speiire v. Spence 104 Spencer v. Babeoek 108, 455 Spencer v. Fort Orange Paper Cn ' ._. . 137 Spencer v. Rogers Locomotive Works ' 299 Spencer v. Tooker 485, 491 Speyer r. Colgate 187. 188 Sphung V. Moore 251 Spice \ . Steinruck 325 Spies V. Nichelsen .....". 69 Spies V. Lockwood 505, 521 Spiei-es v. Parker 47 Spitz V. Heinze 128 Sluing V. Short 275 Spofford V. Rowan. ..416. 441. 464 Spooner v. Del. L. & W. R. R. Co 147 Spooner v. Keeler 31, 410, 411 Sprague v. Parsons 41 Spring A'. BoAvne 511 .Springer v. Bien 393 ' Springer v. Dwyer 416 Springstcad v. Lawton. . . .159, 160 Springsted v. Robinson 87 Spuvten DuA'vill Rolling Mill Cn. V. Williams.. . .482, 488, 574 Squier v. Gould . 198 Squires v. Thompson 205, 330 Stacey v. Bennett 355 StacT V. Graham 193 Stadler v. First Nat. Bank. . . . 423 Stafford v. Azbell 113 Stafford v. Davidson 297 ' Stafford v. Merrill 108 StaflFord v. Morning Journal Ass'n 237 ] Stahn v. Catawba Mills 332 I Standart v, Burtis 326, .328 Iviii Table of Cases. Page? Standard Fasliion Co. v. Siegel- Cooper Co 30G Stanley v. Chappell 176, 602 Stannard v. Hubbell 391 Stallkuecht v. Pennsylvania R. R. Co 247, 248 Stapenliorst v. American Mfg. Co 200 Staples V. Anderson 435 Staples V. Goodrich 150 Star Steamship Co. v. Mitchell 231 Star Steamship Co. v. Morgan 203 Starbuck v. Farmers Loan & Trust Co 340, 341 Stark V. Starr 151 Starke v. Myers 424 St. John V. NoTthrup 109, 251 St. John r. Pierce 24, 25 St. Louis Lager Beer Bottling Co. V. Colorado Bank 211 St. Paul Land Co. v. Dayton ... 46 State V. Anderson 95 State V. Adams 68 State V. Aetna Fire Ins. Co. . . 325 State V. Casteel 104 State V. City of Pierre 353 State V. Coosaw Min. Co 50 State V. Foot 277 State V. Henderson 348 State V. Jeter 571 State V. Kearns 42 State V. Lean 72 State V. Lorenz 266 Stiite of South Dakota v. Mc- Ghesnev 531, 563, 566 State V. Metschan 335 State V. Roche 367 Staten Island Midland R. R. Co. V. Hinchliflfe 18, 348, 365, 366, 448, 566 Sta\inton v. Swann 530 Stearns v. Dubois 25 Stearnes v. Webb 45 Stebbins v. Lardner 57 Stedeker v. Bernard 497, 560 Steel r. Smith 47 Steel V. Steel 46 Steiglitz V. Bel ding 454 Steinhack v. Diepenbrock 362 Stcinam v. Bell 362, 363 Steinau v. Metropolitan St. Ry. Co 132 Sidling V. Grabowsky 321 Stent V. Continental Bank.. 81, 355 Stephens v. Fox 283 Stern v. Knapp 498, 599 Steinhack v. Friedman 375 Sternbergor v. McGovern 11 Page. Stetson V. Hopper 275 Stevens v. Hyde 215 Stevens v. King 399 Slevons v. Lafayette & Concord Gravel Road Co 244 Stevens v. Mayor, etc.. of N. Y. 8, 9 Stevens v. Nichols 64 Stevens v. Orton 418 Stevens v. Rodgers 197. 211 Stevens v. Smith .' 135 Stevens v. Webb 123. 125. 128 Stevenson v. Flournoy 106 Stevenson v. Ma.xwell 191 Stevenson v. Newnham 201 Stewart v. Beebe 175 Stewart v. Blatchlev 333, 439 Stewart v. Bole ' 32,5, 371 Stewart v. Bouton 567 Stewart v. Budd 402 Stewart v. For,st 563 Stewart v. Huntington 58 Stewart v. Isidor 537, 543 Stewart v. Munroe 255 Stewart v. Travis 21, 42 Stewart a . Wilson 237 Stielieling v. Lockhaus 125 Stiefel V. Berlin 387, 389 Stieffel V. Tolhurst 351. 365, 366. 448. 566 Stiles V. Cain 306 Stiles V. Comstoek 57 Stiles -s. Fisher 489 Stillman v. Brush Electric Light Co 125 Stilwell V. Carpenter. .146. 147, 173 Stilwell V. Hamm 103, 104 Stilwell V. Kelly 483 Stirlen v. .Tewet't 381 Stitt V. Little 231 Stivers v. Baker 211 S^fo'ldnrd v. Onondaga Confer- ence 178 Stokes v. Star Co 567 Stnkes v. Morning Journal Ass'n 30, 233 Stnkes v. Stoke* 125. 129, 308 Stoll V. Houde 239 Slover V. Austin 331 Slorrs &' Harrison Co. v. Fus- sclm.an 453 Storv \ . Conger 266 Stoudt V. Shepherd 241 ^^(owell V. Chamberlain 391, 302 Stowell V. Otis... 369. 370, 403. 404 Stone V. Cooper 199 Stone V. Nix 488 Slime's Admr. v. Powell 19 Table op Cases. lix Page. Stonebridge v. Perkins 369, 404 Strange v. Manning 331 Strang v. Newberger 316 Strauss v. Trotter 456, 457 Street R. E. Co. v. Nolthenius . . 245 Sternberg v. Sehein 223 Strebell v. J. H. Furber Co. . . 128 Strong V. Harris 61 Strong V. Sproul 550, 553, 554, 555, 589 Strong V. Strong 268, 407, 537 Strubbe v. Kings County Trust Co 327 Strunk v. Smith 66 Struver v. Ocean Ins. Co 309, 561, 562 Stryker v. New York Excli. Bank 486 Stuart V. Binsee 54 Stuart V. Blatchley 447 Stuart V. N. Y. Herald Co 508 Stuber v. McEntee 357, 358 Studwell V. Charter Oak Life Ins. Co 380 Sturm V. Atlantic Mut. Ins. Co. 293 Stuyvesant v. Weil 520 Styles V. Fuller 528 Sylvis V. Sylvis 367 Suber v. Richards 376 Sugden v. Magnolia Metal Co. . . 457 Sailings v. Goodyear, etc., Co . . 388 Sullivan v. Industrial Benefit Ass'n 206 Sullivan v. Iron Silver Mining Co. 43 Sullivan v. Miller 275 Svillivan v. Nieoulin 426 Sullivan v. N. Y. & Rosendale Cement Co 312, 313, 320, 337 Sullivau V. Spring Garden Ins. Co 67, 293 Sullivan v. Toledo, etc., Ry. Co. 46 Supervisors of Saratoga v. Sea- bury 340 Sutor V. Wood 36 Sutter County v. McGrifF 322 Swamp, etc., Land District v. Feck 312 Swan v. Mut. Reserve Fund Life Ass'n 341 Swart V. Boughton 10, 37, 41, 113. 205, 207, 228, 229, 330 Swaynie v. Vess 252 Sweet V. Coon 615 Sweet V. Ingerson 159, 160 Sweet V. Tuttle 386, 387, 388 Swift V. Kingsley 108 Page. Swinburne v. Stockwell 81, 348, 355, 556 Swinerton v. Columbian Ins. Co 50 Sword r. Martin 236 T Taber v. Gardner 90 Taber v. Wilson 16 Tabler v. Wiseman 255 Taleott V. City of Buffalo 340 Talman v. Dorthy 128 T. A. Miller Co. v. Oliver 320 Tarbox v. Adams County Su- pervisors ' 34 Tate V. Ohio & C. R. R. Co.. . . 164 Tate V. Orans 106 T. A. Vulcan v. Myers 381 Taylor v. Guest 203, 232 Taylor v. Mayor 436 Taylor v. Mayor, etc., of N. Y. 415, 422 Trtvlor V. Metropolitan Elevated R. R. Co 157 Taylor v. Missouri P. R. Co. 46, 245 Taylor v. Richards 51, 387, 389, 449 Taylor v. Security Life Ins. Co. 123 Taylor v. Taylor ." 406 Teall V. City of Syracuse. . .157, 159 Teel V. Fonda 47 Tell V. Beyer 214, 348 Templeton v. Sharp 402 Ten Eyck v. Witbeck 374 Tennant v. Pfister 312 Tennessee, Virginia, etc., R. R. Co. V. Staub 195 Ter Kuile v. Marsland 428, 431 Terry v. Buck 381 Terwilliger v. Wands 198, 200 Teunis v. Barnes 462 Teutonia Ins. Co. v. Beard .... 348 Tew v. Wolfsohn 107, 320, 321 Texier v. Gonin 373 Thatcher v. Morris 54, 185 Thatchter v. Hope Cemetery Ass'n 207 Thayer v. Gile . . 36, 39, 42, 44, 220 The Harrisburgh 400 Therasson v. Peterson 510 Thew v. Miller 370 Thierry v. Crawford 353 Thilemann v. Mayor of N. Y. 494, 500, 502 Thomas v. Beebe 231 Thomas v. Bennett 176 Thomas v. Dakin 178 Table of Cases. Page. Thomas v. Desmond 37 Tliomas v. Jones 614 Thomas v. Nelson 512 Tliomas v. Smith 108 Tlioiiiiis V. Utica & Black River U. R. Co 162, 240 Thomason v. DeMott 217> Thompson v. Erie Rv. Co 546, 547. 550, 555, 564, 565 Thompson v. Flint & P. M. R. Co 46, 244 Thomp.son v. Fox 341 Thompson v. Gould 196 Thompson v. Halbert 54, 117, 346, 370, 373, 450, 455 Thompson v. Richardson 320 Thompson v. Skeen 360 Thompson v. Urdoman 221 Thompson .v. Whitmarsh 425 Thomson a-. Madison Building & .\id Ass'n 299 Tliomsoii V. Smith 191, 192 Thorp V. Carvalho 227 Thor)) V. Heyman 500 Thornton v. Moore 437 Throop V. Hatch 40, 70, 247 Thumb V. Walrath 345 Thurman v. Anderson. 383 Thurmond v. Brotvnson 34 Thurston v. Blanehard 222 Tibballs v. Selfridge 95, 99 Tibbetts v. Blood 179 TifJ'anv v. Bowerman 531 TilTanv v. St. John 395 Tiffany v. Williams. 179 Tift \-'. Wright &, Welosky Co . . 376 Tighe V. Pope 496, 499 Tiilspaugh a . Dick 577 Tilton V. Beecher 124. 125, 572 Tilson V. Clark 409 Tim \ . Tim 268 Tipton V. Feitner 189 Tisdale v. Morgan 528 Tisdale v. Moore 327 Titus V. Pool 373 T. M. R. & M. N. C. Co. V. Herbeck 249 Tobias v. Harland 198, 200 Tode V. Gross 186 Tdild V. Unfon Casualty & Sure- ty Co 291 Tolcs V. Adee 304 ToHcs V. Wood 282 Toll V. Mohawk Valley, etc., Ins. Co '. 486 Tom Boy Gold Mines Co. v. ( irc'Pii ' 499 Tomlinson v. Van Veehten 469 Page. 'I'lunlin V. Tonica, etc., R. R. Co 331 Tompkins \. Connecticut Nat. Bank 498 Tompkins y. Elliot 187 Tooker v. Arnoux 67, 337, 502, ,525. 526 Toomey v. Andrews 484 Tootle V. Wells 151 Toplitz y. Garrlgues 464 Toplitz V. King Bridge Co 123 Toplitz V. Toplitz 331 Torrey y. Field 410 Toucey v. Sehell ■. . . . 321 Town of Dunkirk v. L. S. & M. S. R. R. Co.'. 8, 55, 567 Town of Essex v. N. Y. & Can- ,ada R. R. Co 566 Town of Ontario v. First Nat. Bant 42 Town of Unity v. Burrage .... 72 Town of Jlentz a. Cook 3i7. 378 Townsend y. Bogert.8, 254. 326, 342 Toyiushend v. Norris 54 Townshend v. Townshend 348 Toy V. McHugh 511 Tracy v. Tracy 46, 194 Traphagen v. Traphagen 383 Traver y. Eighth Ave. R. R. Co. 386, 388 Traver v. Halstead 188 Travis v. Peabody Ins. Co 495 Travis v. Travis 471 Tradesmen's Nat. Bank v. U. S. Trust Co 567 Treat v. Hathorn 215 Trebby v. Transcript Pub. Co.. . 410 Treweek v. Howard 78 Tripp y. City of Yankton. .480. 4S2 Tripp V. Hunt 312 Tripp A . Pulver 222, 526 Tripp v. Vincent 29 Triscony v. Orr lOfi Trowbridge v. Didier 475 Troy & Boston R. R. Co. v. Tib- bitts 485, 494. 495, 501 Trubee v. Alden 390 Truscott V. King 377 Tuckerman v. Corbin 115 Tucker v. Edwards 18. 57 Tuers v. Tuers 112 Tugman v. Nat. Steamboat Co. 3 TuUy v. Tully 209 Turner v. Beavan 125 Turner % . O'Brien 224 Turner v. Rnliy 393 Turner y. Turner 224 Turner v. AVhite 37, 40 Table of Cases. 1x1 Page. Turnow v. Hoohstadter 508 Turton v. New York Recorder Co 238 Tuthill r. City of N. Y 456 Tuthill Y. Clark 60S Tuthill V. Jlorris 394, 395 TiVthill V. Skidmore 58,214 Tuttle V. Bishop 238 Tuttle V. Robinson 64, 6.5, 190, 273, 292 Twinam v. Swart 216 Tvli'v V. Aetna Fire Ins. Co. 473, 478 'rj'ler V. Willis 411 Tyner v. Hays 18 I^^ng V. Commercial ^Varehouse 'Co 528 U Uggla V. Brokaw 366, 448, 449, 561, 563, 566 Ulrich V. New York Press Co. 236 Underhill v. Phillips 186, 297 Union Bank v. Bush 110 Union Hardware Co. v. Flager 119 Union Ins. Co. v. MeGookey. . 63 Union Mercantile Co. v. Jacobs. 442 Union Nat. Bank of Troy v. Bassett 495 United States v. Ames 341 United Glass Co. v. Levett. 284, 285 United Glass Co. v. Vary . . 284, 285 United Press v. Abel Co... 146, 527 United States Life Ins. Co. v. Jordan 338, 339 Uransky v. D. D., E. B. & B. R. R. Co 197, 198, 246 Urquliart v. City of Ogdens- burgh " 45, 245 Urtz V. Singer Mfg. Co 507 Utah & Northern Ry. Co. v. Crawford 18 Utica Ins. C<>. v. Scott 494 V Vail V. Reviinlds 295 Valentine v. Richardt 206 Valton V. Nat. Fund Life Ass. Co 380 Van Aukin v. Westfall 31 Van Benschoten v. Yaple 565 Van Benthuysen v. Lyle 477 Van Biber v. Hilton 19, 27 Van Brunt v. Day 105, 116, 413, 443 Van Cott V. Prentice 527 Page. \'an Curen v. Switzer 600 Vandenburgh v. Van Valken- burgh 213 Vanderbilt v. Sleeker 491 Vanderbilt v. Mathis 202 Vanderslice v. Newton 196 Vandeventer v. N. Y. & N. H. R. R. Co 247 Vanderzee v. Hallenbeek. . . 126, 136 Van De Sande V. Hall 35 Van Dyke v. Doherty 451 Van Giesen v. Van Giesen 46, 194, 297, 298 Van Horn v, Montgomery 579 \'anhousen v. Broehl 454 Van Lieu v. Johnson 209 Van Leuven v. Lyke 76 Van Olinda v. Hall 135, 137 Van Publishin'4 Co. v. Westing- house, C. K. & Co 231 Van Rensselaer v, Briee 562 Van Rensselaer v. Bonesteel ... 48 Van Schaick v. Winne 34, 41, 194, 196 ^"an Valen v. Laphara 433, 444 Van Voorhis \\ Budd 144 Van Wickle ^ . Baron 499 Van Wvck v. Guthrie 410 Van Za'ndt v. Grant 312, 337 Varnum v. Hart 355 Vassear v. Livingstone 28 Vaupell V. Woodward 376 Veeder i-. Cooley 109 Velie V. Newark Citv Ins. Co. 25, 55 Vermilyea v. Beaty 53 Vermevile v. Beck 1,63 Vernon r. Gillen Printing Co.. 477 Vibbard v. Roderick 509 Vicars v. Wilcox 200 Vicksburgh & Mcridan R. R. Co. V. Phillips 274 Yietory Webb, etc., Mfg. Co. r. Beeeher 108 Viele V. Gray 236 Vila.s Nat, Bank v. Moore 555 Village of Little Falls v. Cobb. 456 Villiers v. Third Ave. R. R. Co. 135 Vilmar v. Schall Ill Vinal V. Core. .■. 224 Vincent v. Conklin 222 Vincent v. Vincent 406 Vischer v. Conant 125 Vlasto V. Varelopoulos 555 Vogel V. Banks 404 Vogt V. Vogt 567 Vogel V. Kirby 297 Volkening v. De Graaf 525 Ixii Tabxe of Cases. Page. Von Hagen v. Waterbury Mfg. Co 18 Von Hatten v. Scholl 145 Von Sachs v. Kretz 461 Vroom V. Ditmas 396 Vrooman v. Jaekson 506 Vulcan V. Myers 360 W Wachter v. Quenzer 409 VCade V. Doyle 16 Wade V. Strever 438 Wadley v. Davis 435 Wsx dsworth v. Wadsworth 27 Waggoner v. Brown 95 Waggoner y. White 17 Wainman v. Hampton 255 ^V.nit V. Borne 142 Wait V. G-etman 555, 556 Waite V. Sabel 77, 148 Wakeman v. Dalley 230, 331 Wakeman v. Everett 425, 426 Wakeman v. Kingsland 289 Walcott V. Van Santvord 192 Waldsmith v. Waldsmith 147 Wales Mfg. Go. v. Lazzaro. 134, 135 WalkenshaTV v. Perzel 486 Walker v. Am. Central Ins. Co. 412, 418, 4.59 Walker v. Granite Bank 574 Walker v. Popper 332 Walker v. Shoemaker 434 Walker v. Sims 322 Wall V. Bulger. 107, 177, 324, 570 Wall V. Mines 343 Wallace v. Bennett 240 Wallace v. Blake 368, 373 Wnllace v. Homestead Co 410 Wallace v. McConnell 302 Waller v. Robinson 36 Walling V. Schwarzkopf 435 Wallis V. Walker 235 W. ish V. Cornett 616, 617 Walsh V. Durkin 390 Walsh V. Morse 231 Waltham Mfg. Co. v. Brady. . . 570 Walter v. Lockwood 36 Walter v. Merced Academy As'n. 400 Walter v. Walter. 134, 450, 566, 569 Wallenberg v. Bernhard 409 Waltermire v. Waltermire 406 Wandle v. Turney 208 Wanser v. Wyekoff 224 Ward V. Comegys 115 Ward V. Coylan 237 Ward V. Duke, etc 166 Ward V. Gore 318 Page. Ward V. Hogan 195 Ward V. Littlejohn 140 Ward V. Neal 330 Ward V. Petrie 316 Ward V. Stuart 306 Ward V. Stout 456 Ward V. Ward 323 Waring v. Indemnity Fire Ins. Co 293 Warner v. Billings 562 Warner v. Blakeman 44, 232 Warner v. Negligar 250 Warner v. Press Publishing Co. 236 Warner v. Ross 312 Warner r. U. S. Land, etc., Co. 362 Warren v. Dennett 161, 228 Waiien v. Union Bank of Ro- chester 44, 232 Warren v. Van Pelt 435 Wartle v. Radde 163, 164. 167 Washburn v. Herriek 481, 484 Washburn v. Wilkinson 263 Watertown Paper Co. v. West. 136 Watertown Thermometer Co. v. Pool 186 Watkins v. Watkins & Turner Lumber Co 206 Watson V. Bailey 378 Watson V. Johnson 459 Watson V. Rushmore 485 Wattson V. Thibou 530, 531 ^Vatts V. Adler 377 Wayland v. Tysen. 546, 547, 549, 550 Weaver v. Barden 352, ,367, 373 Weaver v. Harlan 49 Weaver v. Nugent 50 Webb V. Foster 547, 550 Webb V. Vandebilt 310 Webb V. Van Zant 555 Wel>er v. Fowler 144 Webster v. Bond 382, 384 Webster v. Fitehburg R. R. Co. 135 Wohstcr V. Tibits 332 Weed V, Case 203 Weeks V. Cornwall 166 \\'eoks V. O'Brien 186, 190. 191, 417, 453 Weeks v. Stroble 608 Weide v. Porter 36, 44 Weidman "v. Hedges 367 Weidner v. Weidner 592 Weil V. Martin 145, 502, 520 Woiler v. Newbach 260 Welch V. Livingston 305 Welch V. Preston 488, 489 Welden v. Texas Cont. Meat Co. 57 Wellington v. Beck 345 Weller v. Harsee 186 Table of Cases. Lxiii Page. Wellman v. Star Printing & Pub. Co 234 Wells V. Jewett 164, 203, 230 Wells V. Monihan 376 Wells V. Simpson 297 Wells V. Van Aken 118, 126 Wells V. Yates 208 Wendt V. Peyser 84, 90 Wenk v. City of N. Y 50, 324 Wenman v. Mohawk Ins. Co. . . 193 Wentzell v. Zinn 360 Werner v. Franklin Nat. Bank. 130, 131 Werner v. Tueh 395 West V. American Exch. Bank. 24, 348 West V. Blake 72 West V. Bowen 456 West V. Burns 531 West V. Eureka Imp. Co 178 West V. Hanrahan 238 West Point, etc., Co. v. State. . 456 West V. West 462 West V. Wright 231 Westbrook v. New York Sun Ass'n 238 Westcott V. Central Vt. P. E. Co 248 Western Assurance Co. v. Koontz 293, 456 Western Cornice & Mfg. Works V. Leavenworth 505 Western Trans., etc., Co. v. Kil- derhouse 397 Western Union Tel. Co. v. Yopst 45 Westervelt v. Ackley 450- Westervelt v. Morrelle 550 Weston V. Stoddard 255 Weston V. Worden 494 Wetmore v. Porter 9, 173, 205, 282, 329 Wetmore v. Truslow 546 Whatling v. Nash 76 Wheeler v. Bavidge 195 Wheatley v. Baugh 203 Wheeler v. Billings 352, 367 Wheeler v. Garcia 188 Wheeler v. Chesley 93 Wheeler v. Curtis 457 Wheeler v. Dakin 181 Wheeler v. Dixon 88 Wheeler v. Floral Mills, etc., Co 42 Wheeler v. Hall 506, 516 Wheeler v. Lawson. . .369, 371, 407 Wheeler v. Nesbit 224 Wheeler v. Warner 192 Page. Wheeler & Wilson Mfg. Co. v. Worrall 194 Wheelock v. Lee 10, 342 Wheelock v. Noonan 378 W. H. Frank Brewing Co. v. Hammersen 462 Whitby V. Powell 265 White V. Bennett 84 White V. Brown 216 White V. Coatsworth 392, 393 White V. Cummings 101 White V. Drake 450 White V. Hapeman 251 White V. Joy 175, 465 White V. Kidd 568, 569 White V. Mayor 482 White V. Miller 387, 388 White V. Nellis 242 White V. Place 613 White V. Rodemann 337 White V. Spencer 109 White V. Soto 183 Whitehall, etc., R. R. Co. v. My- ers 120, 140 ^^'hitehall Lumber Co. v. Ed- monds 569 Whiting V. Mayor of N. Y 340 Whitlatch v. Fidelity & Casual- ty Co 373 Whitlock V. Curtis 471 Whitman v. Holmes Pub. Co 206 Whitf ord v. Panama R. R. Co . . 247 Whitney v. Town of Tieonder- oga 106 Whitney v. Whitney 366, 371 Whittemore v. Weiss... 410 Whittenton v. Memphis & 0. R. Packet Co 10 Whittlesey v. Delaney 44, 232 Whittier v. Bates 25 Wichita & W.' R. Co. v. Beebe. . 151 W. H. Sawyer Lumber Co. v. Russell IJ79 Wick V. Jewett 146 Wiegan v. De Jonge 131 Wies V. Fanning 51 Wigand v. Sichel 387, 389 Wiggins V. Tallmadge 608 Wigmore v. Buell 431 Wilcox V. Palmeter 599 Wilder v. Bough ton 443 Wilder v. Boynton 412, 413 Wilder v. New York Bank Note Co 21 Wilder v. Ranney 162 Wilder v. Seelye 394 Wile V. Sweeney 456 Wiles V. Suydam 158, 159, 160 Ixiy Table of Oases. Page. Wiley V. Brigham 512, 521 Wilkerson v. Rust 332 Wilkin V. Gilman 102 Wilkin V. Raplee 558, 559 Willard v. Bridge 600,601 Williams v. Allen 142 Williams v. Ayrault 317, 390 Williams v. Brown 421 Williams v. Cooper 494 Williams v. Empire Woolen Co. 82 Williams v. Estate of Cameron. 181 Williams v. Folsom 125, 231 Williams v. Gerber 340 Williams v. Hall 185 Williams v. Hayes 36, 562, 567 Williams-Hayward Shoe Co. v. Brooks 376 Williams v. Healey 184, 187, 188, 190 Williams v. Hill 198 Williams v. Lindblom 355 Williams v. McKee 409 Williams v. Reil 82, 95 Williams v. Shaw 119 Williams v. Thorn 282 Williams v. Tilt 45,399 Williams v. Williams 461,466 Williams v. Wilkinson 489 Williams v. Willis. . .373, 411, 461 Williamson v. Williamson ... 82, 101 Williamson v. Yingling 325 Willis v.- Bailey 134 Willis V. Fairchild 205 Willis V. Eclipse Mfg. Co 239 Willis V. Hudson 371 Willis V. McKinnon 251, 374 Willis V. Taggard 345 Willink V. Renwiek 494 Wilmarth T. Babcock 30 Wilmington, C, etc., R. R. Co. V. Garner 252 Wills V. Suydam 322 Wilson V. Am. Steel & Copper Plate Co 125, 133 Wilson V. Baillargeon Interior Building Co 41 Wilson V. Bennett ".85, 101 Wilson V. Commercial Union Ins. Co 363 Wilson V. Doran 355, 394, 396 Wilson V. Forsyth 275 Wilson V. Fowler 140 Wilson V. Goit 198 Wilson V. Lineberger 306 Wilson V. Mayor 312 Wilson V. Pearson 130 Wilson V. Press Pub. Co 108 Wilson V. St. Louis & S. F. Ry. Co 322 Wilson V. Viek 488 Winch V. Farmers Loan & Trust Co 504 Winchell v. Martin 137 Winfield v. Bacon 384 Winfield v. Stacom 257 Wing V. Bull 320 Wing V. Hayden 42 Winne v. Colorado Springs Co. 42 Winne v. Sickles 549 Winona v. Minnesota Ry. Con- struction Co 24, 34 Winslow V. Ferguson 550, 565 Winstandley v. Rariden 340 Winter v. McMillan . . . 27 Winter v. Quarles ....'. 106 Wintringhani v. Whitney 366, 447, 448, 452 Wintrode v. Renbarger 453 Willover v. First Nat. Bank of Clean 423, 424 Willover v. Hill 344, 380, 411 Wirgman v. Hicks 551 Wise V. Gessner 487, 555 Wisner v. Ocumpaugh 529 Witherbee v. Meyer 308, 377 Witherhead v. Allen... 46, 194, 560 Withers v. .Toulmin T.. 139 Witheringham v. Lafoy 221 Witherspoon v. Van Dolar.... 559 Witkowski v. Paramore. . .123, 137 Wittig V. Moltz 538 Wochoska v. Woclioska 297 Woleott V. Van Santvord. .298, 302 Wolcott V. McParlan 494 Wolf V. Sun Ins. Co 293 Wolfe V. Howes 47 Wolff V. Jasspon 441 Wolfe V. Supervisors of Rich- mond County 45, 245 Wolff V. Kaufman 132, 134 Wolff V. Zeller 215 Wood V. Hilbish 236. 237 Wood V. Gordon 459 Wood V. Mayor 435 Wood V. North Western Ins. Co. 293 Wood V. Rabe 395. 396 Wood V. Raydure 81, 355 Wood V. Shultis 616, 617 Wood V. Wbitins 24,348 Wood ,'. Wood , ." 268 Woodard v. Hollana Medicine Co 45 Wooden v. Strew 562 Wooden v. Western N. Y. & Ponn. R. R. Co 247 Woodhouse v. Cocke 332 Table of Oases. Ixv Page. Woodruff V. Bradstreet Co ... . 197, 198, 199 Woodruff V. Cook 54 Woodruff V. Leonard 300 Woods V. Berry 224 Woods V. Bonner 369 Woods V. Gledhill 125 Woods V. Sheldon 315 Woodworth v. Bank of America. 192 Woodward v. Oregon R. & Nav. Co 244 Woolley V. Neweombe 40 Woolsey v. Eondout 504, 517 Wooster v. Chamberlin 320, 388, 389 Wright V. Bankers', etc., Ins. Co 293 Wright V. Deering 297, 298 Wright V. Delafield 413 Wright V. Field 219 Wright V. Hooker 110 Wright V. Jewell 552 Wright V. Moore 192 Wright T. Williams 325 Wright V. Wright 387, 388 Wuensch v. Morning Journal Ass'n 344 Wust V. Brooklyn Citizen 238 Wynkoop, Hollenbeck, etc., Co. V. Albany Evening Union Co. 125 Wyman v. Herard „ 427 Wyman v. Remond 485, 486 Wymore v. Mahaska County . . . 249 X Xenia Bank v. Lee 79, 108, 427 Y Yardum v. Wolf 219, 220 Yates V. Bigelow 121 Page. Yates V. Hoffman 172 Yeomans v. Bell 295 Yertore v. Wiswall 248 Youmans v. Paine 236 Young V. Borzone 419 Young V. Catlett 357 Young V. Edwards 208, 209 Young V. Hill 210 Young V. Lynch 244 Young V. Shiekle 45 Young V. Shiekle H. & H. Iron Co 245 Younger v. Duffie 236, 567, 569 Youngs V. Kent 352, 555, 556 Youngs V. Perry 61, 296 Youngs V. Seeley 90 Zabriskie v. Smith. 6, 203, 231, 233, 312, 321, 324, 337, 388 Zaitz V. Metropolitan St. Ry. Co 537 Zboynski v. Brooklyn City R. R. Co 505 Zebley v. Farmers Loan & Trust Co. 296, 317, 381 Zeilke v. London Assurance Corp 63 Zimmerman v. Erhard 149, 150 Zimmerman v. Meyrowitz 351, 353, 366, 552, 555 Zimmerman v. Willajd 36 Zinserling v. Journal Co 234 Zivi V. Einstein 54^ Zoellner v. Newberger 89 Zorkowski v. Zorkowski 269 Zorn V. Zorn 170, 269, 271, 322 Zrskowski v. Maeh 322 Zwerling v. Annenberg . . 23, 24, 348 CODE PLEADING. CHAPTER I. The System of Pleadings Inteoduced by the CbnE. Section 1. Abolition of forms and former rules of plead- ing. — In tie year 1848, the legislature of the State of New York, deeming it expedient that the then existing forms of ac- tions 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 pro- ceeding in all cases should be established, passed an act entitled " An act to simplify and abridge the practice, pleadings and proceedings 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 and requiremeoits, 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 his cause therein from its commencement to its close, with no greater hindrance from technical rules of procedure than would be experi- enced in the trial of a cause before a justice of the peace. A simple, informal system* of pleading became an essential part of this scheme, as well for the protection of the court as the convenience of the litigant The old system of pleadings, based upon logical and scientific rules dictated by the experience of centuries, was deemed too cumbersome, complex, artificial and technical to form a part of the new procedure,^ and the Code, 1 See Hahl v. Sugo, 169 N. Y. 109, 113. 1 2 The System of Pi.eadings Ti'^TitoDUCED by the Code. Abolition of forms and former rules. therefore, provided that " all forms of pleading heretofore ex- isting are abolished, and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those pre- scribed by this act." " In the year 1876, the legislature of the State of New York enacted the Code of Civil Procedure, which, like its predeces- sor, contained a chapter devoted to pleadings in courts of record,^ and provided that " this chapter prescribes the forms of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is other- wise made by law.* Although the language of section 140 of the Code of Pro- cedure 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 provided by section 471 that the existing statutory pro- visions relating to actions, not inconsistent with the Code and in substance applicable to the new actions authorized by it, should not be affected by that act. So far, therefore, as the statutory form was not inconsistent with the Code of Procedure it might still be safely followed." The abolition of the forms of pleading by the Code left un- changed the substajitial 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 2 N. Y. Code of Procedure, § 140. 3 Chapter VI. *N. y. Code of Civil Pro., § 518. oBetts V. Bache, 23 How. 197; 41 Abb. 279; 9 Bosw. 615; Bank of Genesee v. Patehin Bank, 13 N. Y. 309, 314; People v. Bennett. 5 Abb. 384; 6 Abb. 343. Austin V. Rawdon, 44 N. Y. 63 ; Andrews v. Bond, 16 Barb. 633. The System of Pi,eadinos Inteoduced by the Code. 3 Abolition of forms and former rules. 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 the com- plaint 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 o\it of court and compelled to commence a new action, if there were facts alleged in the complaint, and sustained by the evi- dence sufficient to justify a recovery upon a different theory 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 ac- tions of assumpsit and on the case were concurrent remedies for many injuries resulting to personal property from non- feasance, misfeasance and malfeasance.^^ Under the Code, if the complaint set forth a cause of action either in tort or as- sumpsit, it was sufficient, and a recovery might be had accord- ing to the facts regardless of form. But if the pleader joined another cause of action with the one thus pleaded, and the de- fendant demurred on the ground of 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 first to decide as to the nature, of the several causes of action alleged, and to do this often felt compelled to fall back upon old precedents and principles established when ac- 7 Barnes v. Quigley, 59 N. Y. 265; Ross v. Mather, 51 N. Y. 108; Matthews v. Oady, 61 N. Y. 651; Bernhard v. Seligman, 54 N. Y. 661; Sager v. Blain, 44 N. Y. 445. 8 Conaughty v. Nichols, 42 N. Y. 83. "lb.; Ledwick v. McKim, 53 N. Y. 307; Tugman v. National Steam- ship Co., 76 N. Y. 207; Eldridge v. Adams, 54 Barb. 417. 10 See McDonough v. Dillingham, 43 Hun 493, 496. 11 1 Chitt. PI. 153. 4 The System of Pleadings Intkoduced by the Code. Abolition of forms and former rules. tions still had names and forms.^^ In fact, for a long time after the adoption of the New York Code of Procedure, the spirit and object of that 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 for- mer 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, therefore, treated as an entirely new theory of pleading, to be construed and carried into effect according to its terms, and upon princi- ples peculiar to itself. ^'^ Under the New York Code of Civil Procedure many of the former names of actions have been abandoned and others more descriptive of the relief which may be obtained therein have been substituted. Thus, the action formerly called replevin, is now denominated an action to recover a chattel,^* and the old action of ejectment is now termed an action to recover real property.^" But even in the provisions of the Code relating to the procedure in these actions the lawmakers have borrowed terms in common use under the old practice to describe and identify corresponding proceedings under the new procedure. Undoubtedly the object sought in thus changing the names of actions was to more effectually divorce the new system of pro- cedure from the formulas that seemed indispensably attached to the common law nomenclature, and nbt to destroy the old distinctions between classes of actions which must exist under any system of practice. The Code of Procedure as prepared by the Code commis- sioners was not adopted in its entirety by the legislature of the State of New York, but the system reported by the commis- sioners has been adopted with comparatively few modifications by the legislatures of many other States and made the basis of 12 Booth V. Farmers & Mechanics' Nat. Bank, 65 Barb. 457. 13 Bush V. Proser, 11 N. Y. 347; Royce v. Brown, 3 How. 391. 1* N. Y. Code of Civil Pro., § 1690. 16 N. Y. Code of Civil Pro., § 1496. See Hahl v. Stigo, 169 N. Y. 109. The System of Pleadings Inteoduced by the Code. 5 Fundamental principles unchan£,e(i. their Codes. In all these States the pireviously existing formal rules of pleading in civil actions were abolished, in direct terms, or by necessary implication from the language used, and the rules prescribed by the Code were made the test of the suffi- ciency of a pleading. Thus, in California, the Code declares " There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs." ^^ and further declares that " The forms of pleading in civil actions and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this Code." " Provisions similar in effect, though in varying modes of expression, are contained in the ' practice acts of all the Code States. § 2. Effect of the Code as to the substance of pleadings. — While the Code abolished all forms of pleading theretofore ex- isting it did not abolish the fundamental principles under which legal controversies had been conducted. It made but little change in the substance of pleadings. Under the Code the pleader is permitted to use his own language, but the necessary matter must be there and must be stated in an intelligible and issuable form and capable of trial.^^ The purpose of a plead- ing is to inform the party against whom it is aimed of the nature of the cause of action upon which relief is sought, or the nature of the defense thereto, to the end that the parties may not be surprised upon the trial. And while under the Code system the pleadings will be liberally construed in favor of the pleader this principle of construction will not be carried so far as to destroy all distinction between causes of action." The rule of construction extends only to matters of form and isOal. Code of Civil Pro., § 307. " Oal. Code of Civil Pro., § 421. 18 Boyce v. Brown, 7 Barb. 80. And see Parsley v. Nicholson, 65 N. C. 207; Dennistoun v. Merchants Bank, 2 Disn. (Ohio) 52. 18 Allen V. Allen. 52 Hun 398. 40.^1. 6 The System of Pleadings Inteoduced by the Code. Blending of law and equity. does not apply to the fundamental requisites of a cause of action.^" It has been held by the highest court of the State of New York, that under the system of pleading inaugurated by the Code of Procedure the complaint should contain the substance of the declaration under the former system.^^ And under the Code of Civil Procedure of that State, if the facts stated in a complaint would have been well pleaded if stated in a declara- tion, the complaint will be held sufficient in most cases. The Code was not intended to exact a more formal complaint than was required at common law, but instead to abolish the forms, technicalities and fictions of that practice. ^^ Thus, in an action at common law to recover for necessaries furnished an infant a declaration containing only counts as in an action for debt, for board and lodging, or goods furnished, was siifficient, and is equally sufficient under the Code.^' Precisely the same rule applies to a complaint in an action for necessaries furnished to a wife.^* § 3. Blending of law and equity. — One of the evils charged to the former judicial system of the State of ITew York was an alleged inability to determine in what forum to apply for redress. The jurisdiction of actions at law and of suits in equity was vested in distinct tribimals. Parties frequently applied to courts of law for relief when, as they afterwards found, their eases belonged in a court of equity, and vice versa. 20 Spear v. Downing, 34 Barb. 522 ; 22 How. 30 ; 12 Abb. 437 ; Clark v. Dillon, 97 N. Y. 370; Dibblee v. Metcalf, 13 Misc. 136; 69 St. Eep. 580; 35 N. Y. Supp. 263; Browne v. Empire Type Setting Machine Co., 44 App. Div. 598; 61 N. Y. Supp. 126. 21 Zabriskie v. Smith, 13 N. Y. 322, 330. Under the Iowa Code of Plead- ing it is held that an absolute departure from the common-law forms is neither necessary nor desirable. Baltzell v. Nosier, 1 Iowa 588. 22 Goodman v. Alexander, 165 N. Y. 289. Common-law rules and forms not inconsistent with the Code may still be used. Chapman v. Rannells, 2 Ohio Dec. 245, 23 Goodman v. Alexander, 165 N. Y. 289. 24 Hatch >'. Leonard. 165 N. Y. 435. The System of Pleadings Inteoduced by the Code. 1 Blending of law and equity. In some cases the parties were denied a hearing in either tribunal, the courts of law and equity both declining jurisdic- tion 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 neces- sary to determine in advance to which side of the court juris- diction belonged. Commissioners were, therefore', appointed to devise and report a system of practice that should furnish a iiniform course of procedure in all eases, whether of legal or equitable cognizance. The result of the labors of the commis- sion was the ISTew York Code of Procedure, and later, the present Code. Under the ISTew York 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. ^° Provisions of similar import have been incorporated in the Codes or practice acts of nearly all of what are commonly known as Code States.^" The language of the several acts may not be identical but it accomplishes the same result. ^^ The rules of pleading Tmder the Code are essentially the same whatever may be the character of the relief desired, at least so far as relates to the mode of alleging the facts necessary to 25 2Sr. Y. Code of Procedm-e, § 69 ; N. Y. Code of Civil Procedure, § 3339. 26 Such provisions have been incorporated in the codes or practice acts of Indiana, Wisconsin, Minnesota, Kansas, Nebraska, California, Nevada, Idaho, Colorado, North Carolina, South Carolina, Connecticut, Missouri, Ohio, North Dakota, and South Dakota, while in Kentucky, Arkansas, Iowa, and Oregon, proceedings in equity are still kept distinct from actions at law. The Constitution of the State of Michigan directs the abolishment of distinctions between proceedings at law and in equity, and the Ohio Code abolishes the distinction in practically the same language as that used in the New York Code of Procedure. 2' The California Code of Civil Procedure provides that " There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs." § 307. Substantially the same language is used in the Missouri Statute. 8 The System of Pj-eadings 1nti£Oduced by the Code. Blending of law and equity. support a cause of action or defense/' though 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 depend- ing upon common-law principles only.^' The rules of pleading in equity, while the same in form with those in actions of law, are, nevertheless, broader and more elastic by reason of the inherent character of the relief which may be sought and given/" While the Code has changed the forms of pleading it has not destroyed their essential characteristics except in some minor degree. The Code did not attempt to abolish the distinction between law and equity,^^ nor the inherent 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 retain in fact the action at law and the suit in equity.^* In New York, before the adoption of the Code, there existed, side by side, the Court of Chancery and the common-law courts, each with a distinct jurisdiction; and there also existed not only two distinct systems of practice in those courts, but also two distinct systems of substantive jurisprudence. By the Constitution of 1846 the Court of Chancery was abolished and its jurisdiction and powers were vested in the Supreme Court. Since that time the same court has administered justice under 28 Millikin v. Carys, 5 How. 272 ; Bowen v. Aubrey, 22 Cal. 566. 29 Shaw V. Jayne, 4 How. 119, 121; First Presbyterian Church v. Ken- nedy, 72 App. Div. 82, 84; 76 N. Y. Supp. 284; Park & Sons Co. v. Nat. Druggists' Assn., 30 App. Div. 508 ; 52 N. Y. Supp. 475 ; Town of Dunkirk V. L. S. & M. S. U. Co., 75 Hun 366; 27 N. Y. Supp. 105. 30 Townsend v. Bogert, 126 N. Y. 370. 31 Shaw V. Jayne, 4 How. 1 19 ; Basey v. Gallagher, 20 Wallace 670. 32 Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Le Roy v. Marshall, 8 How. 373. 33 Peck V. Newton, 46 Barb. 173; Merrifield v. Cooley, 4 How. Pr. 272; Onderdonk v. Mott, 34 Barb. 106. 34 Stevens v. Mayor, etc., of N. Y., 84 N. Y. 296. The System of Pleadings Intboduced by the Code. 9 Blending of law and equity. both systems, but the two systems have neceeearily preserved their identity and continued to exist. The declaration of the Code that there is only one form of civil action, and that the distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished, relates only to the two systems of po-actice and has no reference to the two systems of substantive jurisprudence. The forms are all that are changed. The two distinct systems of justice still re- main though they are administered by the same court, under one system of practice. ^^ And it has been held that the dis- tinction between legal and equitable actions is as fundamental as that between actions ex contractu and ex delicto, and that no legislative fiat can wipe it out.^" 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 dismissed 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 con- sistent with the case made by the complaint and embraced ■within the issue. If the allegation of the complaint warrant legal relief only, he cannot have equitable relief upon the evi- dence; ^* and if thiey would warrant equitable relief only, he ssDalton v. Vanderveer, 8 Misc. 484; 29 N. Y. Supp. 342; 31 Abb. N. C. 430; Shipman v. Long Island R. R. Co., 11 App. Div. 46, 49; 17 Misc. 102; 39 N. Y. Supp. 498; 41 N. Y. Supp. 1131. 36 Gould V. Cayuga County Nat. Bank, 86 N. Y. 75, 83; Reubens v. Joel, 13 N. Y. 488; Gtoulet v. Asseler, 22 Td. 225. 3' Emery v. Pease, 20 N. Y. 62; Leopold v. Silverman, 7 Mont. 266; Rindge v. Baker. 57 N". Y. 209 ; Murtha v. Curley, 90 N. Y. 372 ; Porous Plaster Co. v. Seaberry, 43 Hun 611; Bell v. Merrifleld, 109 N. Y. 202; Wetmore v. Porter, 92 N. Y. 76, 80; Redpath v. Redpath, 75 App. Div. 95; 77 N. Y. Supp. 668; Lester v. Seilliere, 50 App, Div. 239; 63 N". Y. Supp. 748. 38 Stevens v. Mayor, etc., of N". Y., 84 N. Y. 296 ; People's Bank v. Mitchell, 73 N. Y. 406, 415; Short v. Barry, 58 Barb. 177; 40 How. 210. 10 The System ov Pleadings Intkoduced by the Cobe. Blending of law and equity. cannot have legal relief upon the proofs. He must maintain his equitable action upon equitable grounds or fail although 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 procuring equitable relief, and that relief alone is asked for, and the facts do not show the plaintiff entitled to equitable re- lief, he cannot have legal relief if no answer is interposed, even though the complaint contains averments under which legal re- lief might have been granted had the defendant answered.*" So if the complaint 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 plaintiff than that demanded in the complaint; although 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. ''^ 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 of an equitable nature, he may frame his complaint with a double aspect-, and if every fact necessary to his cause of action 39 Fitzsimons v. Drought, 16 App. Div. 454; 45 N. Y. Supp. 44; Bradley V. Aldrieh, 40 N. Y. 504; Arnold v. Angel, 62 N. Y. 508; Mann v. Fair- child, 2 Keyes, 111; Wheelock v. Lee, 74 N. Y. 495; Dal ton v. Vander- veer, 8 Misc. 484; Bockes v. Lansing, 74 N. Y. 437. The Tennessee Code does not authorize the prosecution of a suit at common law in a common- law court under the form of pleadings belonging to a court of equity. Whittenton v. Memphis & 0. R. Packet Co., 19 Fed. 273. *o Swart V. Boughton, 35 Hun 281; Alexander v. Katte, 63 How. 262; Kelly V. Downing, 42 N. Y. 71; Black v. Vanderbilt, 70 App. Div. 16; 74 N. Y. Supp. 1095. iiEdson V. Givan, 29 Hun 422; Cody v. First Nat. Bank, 63 App. Div. 199; 71 N. Y. Supp. 277. 42 N. Y. Code of Civil Pro., § 1207; Cal. Code of Civil Pro., § 580. The System of Pleadings Intkoduced by the Code. 1 1 Pleadings before the Code. is stated, may have any relief consistent with that demanded in the complaint although no answer is interposed. ''^ It will be seen from the cases cited that it is not unimportant that the distinction between legal and equitable causes of ac- tion should still be observed both by the pleader and by the courts, notwithstanding the somewhat loose declaration of the Code that the distinction between actions at law and suits in equity are abolished. In the one class of actions a trial by jury may be a right guaranteed by the constitution while in the other class such right may be non-existent or dependent upon some act on ttie part of the pleader other than the statement of his cause of action and the demand for relief. The pleader should still 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, should adapt the statement of facts in his pleadings to relief desired. Not only that, but he should also clearly indicate the nature and character of the relief de- sired in the demand at the end of his statement of his cause of action, for while the formal demand for relief is not conclu- sive as to the character of the action,^* as whether legal or equitable, yet when the complaint sets forth facts that may sup- port either a legal or an equitable action, the demand of relief may be resorted to for the purpose of determining the nature of the aotion.*° § 4. The pleadings at law or in equity before the Code. — Under the old system, the pleadings of the several parties in an action at law were, first, the declaration ; second, the plea ; *3 See Hale v. Omaha Nat. Bank, 49 N. Y. 626 ; Bradley v. Aldrich, 40 N. Y. 504, 512; Sternberger v. MeGovern, 56 N. Y. 12; Margraf v. Muir, 57 N. Y. 159; Fitzsimons v. Drought, 16 App. Div. 454; 45 N. Y. Supp. 44; Chaurant v. Mallard, 56 App. Div. 11 ; 67 N. Y. Supp. 345. 4* O'Brien y. Ottenberg, 59 St. Eep. 379; 28 N. Y. Supp. 605; O'Brien V. Kursheedt, 61 St. Ecp. 470; 29 N. Y. Supp. 973. *B O'Brien v. Fitzgerald, 143 N. Y. 377; Elias v. Schweyer, 27 App. IHv. 69; 50 N. Y. Supp. 180. 12 The System of Pleadings iNTaoDUCED by the Code. Pleadings before the Code. third, the replication; fourth, the rejoinder; fifth, the surre- joinder; sixth, the rebutter; and seventh, the surrebutter. These pleadings were employed in presenting the facts, and fol- lowed each other in the order named. The rebutter and the surrebutter were rarely used in actual practice. In addition to these pleadings were the general or special demurrers which might be interposed by either party to any pleading of his ad- versary to raise the question of law as to its sufficiency. When the defendant in an action at law had duly appeared in obedience to process, the plaintiff in person, or through his attorney, made a statement in vrriting of his cause of action, which was termed the declaration. This pleading was required to be framed according to the established forms and rules ap- plicable to the case, and exhibited to the court and to the de- fendant within a limited time. It then devolved upon the defendant to interpose his defense to the action according to the established formulae, either by way of an objection to the plain- tiff's statement as being insufficient in law to sustain the action, or by denial of its truth in point of fact, or, if a denial was not permissible, by alleging some new matter in abatement, or suspension of the action, or in contradiction of the declaration, or in avoidance of it. If the defendant's pleading took the form of an objection to the declaration on account of its insuffi- ciency in law to sustain the action it was termed a demurrer; if, on the other hand, it took the form of a denial or of an allegation of new matter in abatement, etc., it was tedmically termed a plea. To the defense thus made, the plaintiff might in his turn reply, either, in case of a demurrer, by reasserting his declaration to be sufficient in law to support his action and referring the question to the jiidgment of the court, which was termed a joinder in dernvn^er, or, in case of a special plea, he might demur to the defendant's plea as insiiffieient in law to constitute a defense, or deny it to be true in point of fact, or allege new matter in contradiction to it, or in evasion of it, ac- cording to the circumstances, such answer in fact being styled The System of Pleadings Inteoduced bt the Code. 13 Pleadings before the Code. a replication. To the replication the defendant might either demur upon the law, or oppose a rejoinder as to the fact; and to the rejoinder, the plaintiff might demur, or oppose a surre- joinder; and so the parties might continue to proceed by a sys- tem of alternate allegation and objection, denial or evasion, until they arrived at some specific point of lavsr or fact, affirmed on one side and denied on the other, presenting the exact ques- tion for the court to determine, and technically termed the issue.*"* Such in brief, is an outline of the pleadings and their object in an action at law under the former system. In equity the course of pleading was entirely different. A person deeming himself entitled to equitable relief exhibited to the court his bill of complaint which took the place of a declaration in an action at law. There was but one form of bill in equity, although there were various kinds, with names descriptive of their object; as, bills of interpleader, bills of certiorari, bills of discovery, of revivor, of review, etc. The bill was addressed to the. court, contained the names and de- scription of the persons exhibiting it, a narrative of the facts and circumstances of the paintiff's case, and of the wrongs and grievance of which he complained, the names of the person or persons by whom the wrong was done and against who'm re- dress was sought, and various other matters, concluding with a prayer for the particular relief demanded, and for process to compel the defendant or defendants to appear and answer. It was allowable and customary for the plaintiff to state in- formally in his bill all the facts in his case with minuteness of detail and also facts and circumstances tending to prove and establish such other facts, and to so frame his bill that it might be used directly for the examination of the adverse party, not only upon the facts stated in the bill as the foundation of the right to the relief sought but also upon the collateral facts and matters of evidence which tended to establish those facts. In addition to thfe stating part there was a charging part, an inter- im* 1 Burrill's Practice, 80, 81. 14 The System of Pleadings Inteoduced by the Code. Pleadings before the Code. rogating part, a jurisdiction claiise, and the prayer for process and for the relief desired. The office of the bill was not only to present the plaintiff's case but also to compel a discovery by the defendant of evidence to support that case. The defendant was now required to become the actor. To any defect appearing upon the face of the bill the de- fendant might demur ; to such as did not so appear the attention of the court must be directed by plea or answer. If the objec- tion was to the jurisdiction of the court, or to the want of proper parties, or was otherwise of such a nature as to reduce the case to a single point, a plea was proper. If, however, the case was such that the defendant could neither plead nor demur to the bill, he might in that case put in an answer by which he either confessed and avoided or traversed and denied the several parts of the bill, or, admitting the case made by it, submitted to the judgment of the court upon the bill or upon the new case made upon the answer, or both. The last pleading in an equity case was the replication. This consisted of a general averment of the truth and sufficiency of the bill and a denial of the allegations in the answer. The office of the replication was merely to formally create and join an issue. The cause was then in readiness for the taking of proofs, which were ordinarily taken out of court., and the cause was subsequently brought to a hearing upon the pleadings and proofs thus taken.*" It will readily be seen from this mere outline of the two systems of pleading, which existed side by side prior to the Code, that they possessed but few features in common ; and that if the pleader had mistakenly taken his cause to the wrong forum, and had for that reason been turned out of court, what- ever had previously been done in the case must of necessity be throvra aside and the preparation of the case commenced de novo. There could be no transfer from the law to the equity •to VansantvooTfl's Pleadings, 33. 34, 35, 37, 38. The System of PLEiVBiNos Intboduced by the Code. 15 Pleadings authorized by the Code. side of the court, or vice versa, as jurisdiction at law and in equity was vested in distinct tribunals; and the pleadings and procedure divised and adapted to a proceeding at law was wholly out of place in a court of equity. ^ It remains to be considered what the Code has substituted in place of the systems abolished. § 5. The pleadings authorized by the Code. — The first pleading on the part of the plaintiff, which takes the place of what was known as the declaration in the common-law courts, is in some of the Code States styled the petition and in others the complaint. Thus, in jSTew York, North Carolina, Con- necticut, Endiana, Wisconsin, Minnesota, California, Oregon, Nevada, Colorado, Montana, Utah, North Dakota and South Dakota the first pleading on the part of the plaintiff is called the complaint, while in Kansas, Iowa, Nebraska, Ohio and Kentucky it is called a petition. The difference in name is unimportant as the requisites of the pleading under the Codes of the various States are substantially identical. In Ne"rtr York, the complaint must contain (1) the title of the action, specifying the name of the court in which the action 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 the parties to the action, plaintiff and defendant; (2) a plain and concise statement of the facts con- stituting each cause of action without unnecessary repetition ; and (3) a demand of the judgment to which the plaintiff sup- poses himself entitled.*^ And this is the general requirement of a complaint or petition under the various Codes and practice acts, although the language employed in expressing these re- quirements may vary in some unimportant particulars. The only pleading on the part of the defendant is either a demurrer or an answer.*^ The defendant may demur to the " N. Y. Code of Civil Pro., § 481. See Cal. Code of Civil Pro., § 426. 48 N. Y. Code of Civil Pro., § 487; Cal. Code of Civil Pro., § 422. In Arizona a demurrer is not enumerated among the authorized pleadings. 16 The System of Pleadings Inteoduced by the Code. I'leadings authorized by the Code. whole complaint, or to one or more separate causes of action stated therein ; and in the latter case, he may answer the causes of action not demurred to.*" Under the New York Code a defendant is not entitled as a matter of right to serve hoth an answer and a demurrer to the same cause of action ; °° yet where a suit is so framed that the same defendant is sought to be charged in two entirely distinct relationships, and in one rela-" tionship a liability, dependent upon the facts proved, may exist, and in the other, as a matter of law, liability cannot and does not exist, he is not prohibited from answering in the one capacity and demurring in the other.^^ And under the Codes of some of the States the right of a defendant to both plead and demur to the same pleading at the same time is either expressly given or recognized.^^ The grounds upon which a demurrer may be taken to a complaint or petition are specifically stated in the statutes of the several States ; and while a demurrer may be authorized in one State upon a ground that would be unau- thorized in another, the general rule prevails that a demurrer to a complaint or petition can be taken only upon the ground of objection stated in the Code or practice act,°' and will be available only upon the grounds specified.^* Under the former practice demurrers were of two kinds, general and special; the general demurrer applying to matters of substance and the spe- MN. Y. Code of Civil Pro., § 492; Cal. Code of Civil Pro., § 431. The answer or demurrer must go to the entire cause of action; and there can be no demurrer to some of the allegations and an answer to other allega- tions of the same cause of action. Speight v. Jenkins, 99 N. C. 50 Cashman v. Reynolds, 123 N. Y. 138. See Taber v. Wilson, 34 Mo. App. 89. siKaughran v. Kaughran, 73 App. Div. 150; 76 N. Y. Supp. 754. In this ease a person made a defendant both as executor and trustee was permitted to answer .as executor and to demur as trustee. 62 See Cal. Code of Civil Pro., § 431; Wade v. Doyle, 18 Fla. 630; Greenfield v. Carlton, 30 Ark. 547; Jones v. Minogue, 29 Ark. 637. 63 N. Y. Code of Civil Pro., § 488 ; Marie v. Garrison, 83 N. Y. 14. 54 Carter v. De Camp, 40 Hun 258 ; Drake v. Drake, 41 Hun 366 ; Berney V. Drexel, 33 Hun 419; Dodge v. Colby, 108 N. Y. 445; Campbell v. Heiland, 55 App. Div. 95; 66 N. Y. Supp. 1116. The System oe Pleadings Twteoduced by the Code. 17 Pleiidings authorized by the Code. cial demurrer to matters of form. In the special demurrer the objections were required to be specified. In other respects it resembled the general demurrer which contained no such speci- fication. "^ In some of the States, special demurrers, as known to the former practice, have no recognized place in the system of pleadings there existing, and instead of demurring the pleader must seek his remedy by way of motion.^^ In other States, objections to the form of the pleading have been ini- oluded, to a limited extent, among the statutory grounds of demurrer, as will appear in a subsequent chapter. If the defendant demurs, he thereby raises an issue of law °' to be determined by the court, and all other proceedings in the cause stop until the question of law raised thereon is decided.^* A demurrer imports, according to its etymology, that the ob- jecting 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 whether he is bound to answer. If the defendant, instead of demurring to the complaint or petition, decides to answer it, his answer must conform to the rules of pleading established in the State wherein the action is pending. If in the State of ISTew York, the answer of the de- fendant must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof suffi- cient to form a belief. (2) A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition,"" Under the Code of some of the 55 See Burrill's Pr. 144 ; Phiendx Ins. Co. v. Hedriek, 73 111. App. 601 ; Little Rock Cooperage Co. v. Hodge, 105 Ga. 828. 56 Marie v. Garrison, 83 N. Y. 14; Graham v. Martin, 64 Ind. 567; Ford V. Griffin, 100 Ind. 85; Renton v. St. Louis, 1 Wash. 215; Norfolk & W. R. Co. T. Ampey, 93 Va. 108; Code West Va., Ch. 125, § 29; Coyle v. Balti- more, etc., R. R. Co., 11 W. Va. 94; Waggoner v. White, 11 Heisk. 714. 57 N. Y. Code of Civil Pro., § 964. 58,Cashman v. Reynolds, 123 N. Y. 138, 141. 59 N. Y. Code of Civil Pro., § 500. Answers under this section may be classified as consisting of either denials, defenses or counter-claims. 18 The System oe Pj^eadings Inteoduced by the Code. Pleadings authorized by the Code. States a denial must be specific if the complaint is verified ; "" and under the Code of some of the other States a denial must be specific in all cases and a general denial is not allowed.®^ The defendant may set forth' in his answer as many defenses, or counterclaims, or both, as he has, whether they were such as were formerly denominated legal or equitable."^ But each de- fense or counterclaim must be separately stated, and, unless it is interposed aa an answer to the entire complaint, it must distinctly refer to the cause of action it is intended to answer. °^ Under the Codes of many of the States a defendant is allowed to plead inconsistent defenses/* And he is also allowed to set up a partial defense to the entire complaint or to any sepa- rate cause of action therein set forth, provided it is pleaded as such.*' All three classes may be contained in the same answer. In a number of reported cases G-atnob, J., has pointed out the distinction between a denial and a defense and the office of each in a pleading. See Flack v. O'Brien, 19 Misc. 399; 43 N. Y. Supp. 854; Green v. Brown, 22 Misc. 279; 49 N. Y. Supp. 163; Von Hagen v. Waterbury Mfg. Co., 22 Misc. 580; 49 N. Y. Supp. 465; Cruikshank v. Press Publishing Co., 32 Misc. 152; 65 N. Y. Supp. 678 ; Carter v. Eighth Ward Bank, 33 Misc. 128 ; 67 N. Y. Supp. 300 ; Durst v. Brooklyn Heights R. R. Co., 33 Misc. 124 ; 67 N. Y. Supp. 297 ; Jaeger v. City of New York, 39 Misc. 543. But the fact that the defendant unnecessarily or improperly pleads facts in his answer that might have been proved under a general denial does not render such matter any less a defense, Staten Island Midland E,. K. Co. v. Hinchliffe, 170 N. Y. 473; Donovan v. Main, 74 App. Div. 44; 77 N. Y. Supp. 229; 11 N. Y. Ann. Cas. 180. And see Benedict v. Seymour, 6 How. 298, 304. 60. Power V. Gum, 6 Mont. 5; Cal. Code of Civil Pro., § 437; Utah Comp. Laws 1888, § 3226. siTyner v. Hays, 37 Ark. 599; Mcllroy v. Buckner, 35 Ark. 555; Rogers v. Verlander, 30 W. Va. 619; Mont. Code of Civil Pro., § 87. 62 N". Y. Code of Civil Pro., § 507 ; Utah & Northern Ry. Co. v. Crawford, 1 Idaho, N. S. 770 ; Cal. Code of Civil Pro., § 441 ; MePherson v. Weston, 64 Cal. 275. See Mo. Rev. Stat. 1879, § 3522. 63 N. Y. Code of Civil Pro., § 507; Cal. Code of Civil Pro., § 441. 64 Reed v. Reed, 93 N. C. 462; Tucker v. Edwards, 7 Col. 209; Hummel V. Moore, 25 Fed. Rep. 380; Citizens' Bank v. Closson, 29 Ohio St. 78; Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 N. Y. 149; Societa Italiana v. Sulzer, 138 N. Y. 468. 65 N. Y. Code of Civil Pro., § 508; Ronan v. Williams, 41 Iowa 680. T'hb System of Pi,em)ings Intkodtjced by the Code. 19 Pleadings authorized by the Code. A denial in the answer of any material allegation in the com- plaint raises an issue of fact as to the matter denied,"" and as to such matter the pleadings have performed their office 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 act-ion."' Whether any further pleadings are required in the action after the defendant has answered may depend upon the nature of the answer or upon the system of pleadings prevailing in the State in which the action is pending. Thus, in California, the only pleadings allowed on the part of the plaintiff are the com- plaint and the demurrer to the answer, and on the part of the defendant, the demurrer to the complaint and the answer."' If no demurrer will lie to the answer the pleadings are at an end unless the case is one in which under the statute of the State in which the action is pending, a further pleading on the part of the defendant is authorized, termed either a cross- complaint, cross-petition, or cross-bill, according to the nomen- clature adopted in that particular State. A cross-complaint is authorized whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, and may be filed either with the answer or, by permission of the court, subsequently. It must be served upon the parties affected by it, and such par- ties may demur to or answer this pleading in the same manner as to the original complaint."" Speaking generally, it may be said that this form of pleading is proper, where authorized, whenever the defendants or any of them, have equities arising 66 N. Y. Code of Civil Pro., § 964; Cal. Code of Civil Pro., § 590. 6T N. Y. Code of Civil Pro., § 522. 68 Cal. Code of Civil Pro., § 422. Under the Kentucky Code of Practice the only pleadings allowed in civil actions are the petition by the plaintiff, the demurrer or answer by the defendant, and the demurrer or reply by the plaintiff. Stone's Adm'r v. Powell, 52 Ky. .342. 69 Cal. Code of Civil Pro., § 442. See Van Biber v. Hilton, 84 Cal. 585, 589; Iowa Code, § 2663. 20 Tub System of Pleadings Tnteoduced by the Code. Pleadings authorized by the Code. out of the subject matter of the original suit, which entitles them to affirmative relief which they cannot obtain in that suit.'" In New York, if the answer contains a statement of new matter, not constituting a counterclaim, it will be deemed con- troverted by the plaintiff 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 reply to the new matter.^' If a reply is directed by the court, and is not served by the plaintiff, each material allegation of new matter in the answer, to which the reply is required, must be taken as true for all piirposes 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 matter is demurrable, or contains new matter con- stituting 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 an- swer contains a counterclaim, he may reply to the eounter- 70 Kingsbury v. Buckner, 134 U. S. 650; 33 L. Ed. 1047. "N. Y. Code of Civil Pro., § 522. ^-i. '^ 72 N. Y. Code of Civil Pro., § 962-;" Arthur v. Homestead Fire Ins. Co., 78 N. Y. 462. 73 N. Y. Code of Civil Pro., § 516. 74 N. Y. Code of Civil Pro., § 522. 75 N. Y. Code of Civil Pro., § § 515, 516. 78 N. Y. Code of Civil Pro., § 522. 77 N. Y. Code of Civil Pro., §§ 494, 495; Cal. Code of Civil Pro., §§ 443, 444. The System of Pleadings Inthoduced by the Code. 21 Pleadings authorized by the Code. elaim,'^ provided, of course, that a reply is an authorized plead- ing under the recognized system of pleadings. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knovsrledge 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 reply may contain two or more distinct avoidances of the same defense or counterclaim; but they must be separately stated and num- bered.*^ A reply cannot be used to introduce a new cause of action. A plaintiff cannot in his reply plead an independent counterclaim to a counterclaim set up by the defendant in his answer.*^ The reply, when a reply is necessary, closes the pleadings 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, con- tained in the reply, on the ground that it is insufficient in law upon its face.*' If the reply is not demurrable the pleadings in the action 78 N. Y. Code of Civil Pro., § 514. 79 If inconsistent matter is pleaded it will be stricken out on motion. ' Eidlitz V. Rothschild, 87 Hun 243 ; Frank Brewing Co. v. Hammersen, 22 App. Div. 475. ■80 N. Y. Code of Civil Pro., § 514. See Boyett v. Vaughan, 79 N. O. 528. 81 N. Y. Code of Civil Pro., § 517. 82 Lillienthal v. A. P. Hotaling Co., 15 Oregon, 371; Savage v. Aiken, 21 Neb. 605; Wilder v. N. Y. Bank Note Co., 15 Misc. 459; Eidlitz v. Rothschild, 87 Hun 243; Cohn v. Husson, 66 How. 150; Fitzgerald v. Rightmeyer, 12 Misc. 186; Goossen v. Goossen, 11 Misc. 86; Breed v. Padgett, 14 Week. Dig. 574; Hatfield v. Todd, 13 Civ. Pro. R. 265. But there is respectable authority to the contrary. Rider v. Foggan, 37 N. Y. St. Rep. 438; Miller v. Losee, 9 How. 356; Stewart v. Travis, 10 How. 148; Hall V. Hall, 30 How. 51. 83 N. Y. Code of Civil Pro., § 493, Under the South Carolina Code there may be a reply denying the truth of the allegation as to a counter- claim, and at the same time a demurrer upon the ground that the pretended counterclaim did not contain matter which could be set up as a, counter- claim. South Car. Code, § 174; Latimer v. Sullivan, 3D S. C. 111. 22 The System of Pleadings Intbodtjced by the Cobe. Issues arising on the pleadings. are completed and at an end. There is no need of any plead- ing to. put in issue any fact alleged in the reply, as each allega- tion of new matter therein is deemed controverted by the de- fendant, 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 necessary, in case his demurrer is overruled to plead over by way of answer or reply, as the case may require; or, in case the 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 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 oc- curred after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a com- petent court rendered after the commencement of the action, determining, all or a part of the matters in controversy. This pleading may be in addition to or in place of the former pleading.*'' § 6. When an issue of law or fact arises on the pleadings. — The pleadings in an action are designed to evolve some ques- tion, either of fact or law, disputed between the parties and mutually proposed and accepted by them as the subject for de- cision ; and the question so produced is called the issue. An ' issue arises upon the pleadings where a fact or a conclusion of law is maintained by one party and controverted by the 84 N. Y. Code of Civil Pro., § 522. 85 N. Y. Code of Civil Pro., § 964. 80 N. Y. Code of Civil Pro., § 497. 87 N. Y. Code of CTvil Pro., § 544. The System of Pleadings Ikteobuced by the Code. 23 Issues arising on the pleadings. other. Issues are of two kinds, of law and of fact.'^ An issue of law arises only upon a demurrer.*' Under the New York Code of Civil Procedure an issue of fact arises in either of the following cases: 1. Upon a denial contained in the answer of a material al- legation of the complaint; or upon an allegation contained in the answer, that the defendant has not sufficient knowledge or information to form a belief with respect to a material allega- tion 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 both a complaint and an answer served in an action by which all the facts upon which the rights of the par- ties depend may be presented, and yet no issue may be raised by the pleadings. Thus, if the plaintiff declares upon a promissory note, and the answer merely sets up a counterclaim for goods sold, to which there is no reply, there is no issue. °^ So an answer may be served alleging facts wholly inconsistent with the facts alleged in the complaint, yet, if the answer con- tains no formal denial, it will raise no issue.°^ On the other hand, a denial of matter not alleged in the complaint will not ssjsr. Y. Code of Civil Pro., § 963; Cal. Code of Civil Pro., § 588. 89 N. Y. Code of Civil Pro., § 964; C.il. Code of Civil Pro., § 589. so N. Y. Code of Civil Pro., § 964. Under the California Code an issue of fact arises (1) .upon a material allegation in the complaint contro- verted by the answer; and (2) upon new matters in the answer, except an issue of law is joined thereon. Cal. Code of Civil Pro., § 590. 91 Pardee v. Sehenek, 11 How. 500. 92 Soper v. St. Regis Paper Co., 38 Misc. 294; Zwerling v. Annenberg, 38 Misc. 169; Smith v. Ooe, 170 N. Y. 162; Rodgers v. Clements, 162 N. Y. 422, 428. 24 The System of Pleadings IifTitoDUCED by the Code. Truth as a requisite of Code pleading. raise an is&ue.^^ Under the iNew York Code a material fact alleged is not controverted or put in issue by a statement incon- sistent with the facts, or from which a denial may be implied or inferred, and an allegation of such inconsistent facts is not equivalent to a denial.^* But in some jurisdictions, an allega- tion in an answer directly contrary to what is alleged in the complaint, is held equivalent to a denial."^ The parties to a cause may by consent try an issue of fact not made by the pleadings, and in that case the cause will be decided as it would be if the pleadings made the issue. ^^ I § 7. Truth, as a requisite of Code pleading. — It is said that one of the principal objects of the legislature in adopting the New York Code was to abolish the use of fictitious allega- tions in pleading, permissible under the old system, and to in- troduce and require absolute verity instead.'^ The theory of the Code is that the party pleading knows, or should know, be- forehand, what is the truth of his case, and he should state the truth and nothing but the truth in his pleading."* This doci- trine was applied with much strictness in the earlier cases imder 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 state- 83 Grinnell v. Church, 65 How. 399. 9* Soper V. St. Regis Paper Co., 38 Misc. 294; Zwerling v. Annenberg, 38 Misc. 169; 77 N. Y. Supp. 275; Smith v. Coe, 170 N. Y. 162; Kodgers V. Cleinent, 162 N. Y. 422; Marston v. Swett, 66 N. Y. 206, 210; Wood V. Whiting, 21 Barb. 190; West v. American Exchange Bank, 44 Barb. 175. 95 Perkins v. Brock, 80 Cal. 320 ; Scott v. Wood, 81 Cal. 398. 93 Winona v. Minnesota Ry. Construction Co., 27 Minn. 415. See Farmers' Loan & Trust Co. v. Housatonie R. R. Co., 152 N. Y. 251; Frear v. Sweet, 118 N. Y. 454. 97 Lackey v. Vanderbilt, 10 How. 155; Bush v. Prosser, 11 N. Y. 347; People V. MeComber, 18 N. Y. 315, 32,S. 9S Dunning v. Thomas, 11 How. 281. 99 Dunning v. Thomas, 11 How. 281; St. John v. Pierce, 22 Barb. 352; Lackey v. Vanderbilt, 10 How. 155; Churchill v. Churchill, 9 How. 552; The System or Pleadings Inteodtjced by the Code. 25 Truth as a requisite of Code pleading. ment 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 ISTew York Code to intro- duce absolute verity into pleadings has not been crowned with perfect success. It is evident from the form of verification prescribed that the framers of the Code intended that each al- legation 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 knowledge and what allegations were made on information and belief. 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. ^"^ 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 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 pleading Dickens v. N. Y. Cent. E. E. Co., 13 How. 228; Whittier v. Bates, 2 Abb. 477; Nash v. McCauley, 9 Abb! 159; Fern v. Vanderbilt, 13 Abb. 72. 100 Blank v. Hartshorn, 37 Hun 101; Longpray v. Yates, 31 Hun 432; Birdseye v. Smith, 32 Barb. 217; Velie v. Newark City Ins. Co., 65 How. 1. In Indiana, the same cause of action may be stated in different forms in as many different paragraphs of the complaint, in order that there may be an appropriate allegation for any form which the proof may take. Stearns v. Dubois, 55 Ind. 257. 101 Velie v. Newark City Ins. Co., 65 How. 1. 102 See Beyer v. Wilson, 46 Hun 397. 103 N. Y. Code of Civil Pro., § 522. 26 The Systdm of Pleadings Tntkoduced by the Code. Cross-complaint, cross-petition, or cross-bill. founded upon absolute verity. This system of pretence is in evidence to considerable extent througbout the New York Code. And where a defendant interposes a counterclaim and asks for affirmative relief, his right to a provisional remedy is the same as in an action brought by him against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment; and for the purpose of applying to such case the provisions of the Code, the defendant is " deemed " the plaintiff, the plaintiff is " deemied " the defendant, and the counterclaim set forth in the answer is " deemed " the com- plaint.^"* In such cases simplicity in the system of pleading and procedure is of more importance than a strict adherence to truth, and is not the survival of the fictions which the Code was designed to overthrow. Traces of legal fictions are still preserved in our system of pleading, though perhaps without the sanction of the Code. In an action brought by a parent for the seduction of a child the old fiction of the loss of service is still retained as the founda- tion of the right of action and must still be alleged in the com- plaint, although, as a matter of fact, the loss of service may be constructive rather than actual, and the actual damage may consist in the expense incurred and labor performed in caring for the seduced in sickness or pregnancy resulting from the wrongful act and in the wounded feelings and disgrace flowing from it.'"' § 8. The cross-complaint, cross-petition, or cross-bill. — 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 recoupment, 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 104 N. Y. Code of Civil Pro., § 720. 105 See Ingerson v. Miller, 47 Barb. 47; Badgley v. Decker, 44 Barb. 577; Furman v. Van Sise, 5G N. Y. 435; Certwell v. Hoyt, 6 Hun 575; Lawyer V. Fritcher, 130 N. Y. 239; Dialer v. McCauley, 66 App. Div. 42. Th£; System of Pleadings Introduced by the Code. 27 Cross-complaint, cross-petition, or cross-bill. afford him, he was obliged to seek it by way of a cross-suit and couli 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 where both causes were at issue, obtained an order that they be heard together. This feature of the old system is substan- tially retained in many of the Code States and the defendant is allowed to file a cross-complaint or cross-petition and obtain thereunder affirmative relief which would otherwise have been denied him in the action. Under the California practice whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint."" The right to file a cross-complaint under this provision of the California Code is not confined to- actions on contract but may in a proper case be claimed in an action of tort.'^'" A defendant in an action for divorce may have afiirmative relief upon a cross- complaint ; ^°* and where an action is brought to quiet title and the defendant cannot obtain full relief upon answer, he may be allowed to file a cross-complaint, and, under appropriate al- legations in such pleading, take from the plaintiff the legal title which he would recover in equity.^"" In such action if the de- fendant relies upon title in himself a cross-complaint is unneces- sary.^^" The distinction between matter by way of answer and of cross-complaint is always marked, and although the defend- 106 Cal. Code of Civil Pro., § 442. lOT Van Bibber v. Hilton, 84 Cal. 589. losBlakely v. Blakely, 89 Cal. 324; Wadswortb v. Wadsworth, 81 Cal. 182. 109 Winter v. McMillan, 87 Cal. 256. 110 Miller v. Luco, 80 Cal. 257. 28 The System of Pleadings Iktkoduoed by the Code. Cross-complaint, cross-petition, or cross-bill. ant may have intended his pleading as a cross-complaint it may be in effect an answer merely. ^^^ The New York Code permits a defendant to set up a counter- claim in his answer which embraces all the matters which 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, however, compelled to resort to his remedy by way of counter- claim, but may bring an independent action against the plain- tiff,^^^ except in a case where a judgment -against him in the first action would establish that he had no right to maintain the second. ^^* Under the old practice a defendant was sometimes compelled to resort to a cross-bill in order to lay before the court a con- troversy between himself and a co-defendant as to matters in- volved in the suit, and to obtain a determination of his ultimate rights as against his co-defendant. ^^° Under the New York Code the same relief may now be obtained by an answer, con- taining the proper allegations and demand, served upon the attorney for any defendant to be affected by the determina- tion.^^* There is no provision in the New York Code authoriz- ing or requiring a defendant upon whom such an answer has 111 Goldman v. Bashore, 80 Cal. 146; Meeker v. Dalton, 75 Cal. 154; Shain v. Belvin, 79 Cal. 262. iisVassear v. Livingston, 13 N. Y. 248; Bathgate v. Haskin, 59 N. Y. 533; Leavenworth v. Packer, 52 Barb. 132; Gleason v. Moen, 2 Duer 639; Boston Silk & Woolen Mills v. Bull, 37 How. 299; 6 Abb. N. S. 319. 113 Inslee v. Hampton, 8 Hun 230; Gillespie v. Torrance, 25 N. Y. 306. imSee Blair v. Bartlett, 75 N. Y. 150; Dunham v. Bower, 77 N. Y. 76; Sch winger v. Raymond, 83 N". Y. 192, 197. Under the California Code, if a defendant has a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or con- nected Avith the subject of the action and omits to set it up as a counter- claim, neither he nor his assignee can afterward maintain an action against the plaintiff therefor. Cal. Code of Civil Pro., § 439. 116 Story's Eg. PL, § 392. 110 N. Y. Code of Civil Pro., § 521. The System of Ple-vdings Inteoduced by the Code. 29 Cross-eomplaint, cross-petition, or cross-bill. been served to answer or reply to the allegations therein con- tained ; but under another provision of the Code the allegations of the answer are to be deemed controverted by the defendant upon whom it is served either by traverse or avoidance, as the case requires.^^^ But under the practice in Nebraska an answer which seeks to enforce rights against the property of a co- defendant is deemed to be in the nature of a cross-petition, and the co-defendant against whom the answer is filed is entitled to plead to it as though he was sole defendant and the defendant filing the answer was plaintiff.^^* Under the old practice a defendant was compelled in some cases to resort to a crosst-bill 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 if the defendant, on motion, presents a proper case for the service of such a pleading.^^" In ISTew York a cross-action may still be necessary to the pro- tection of a defendant's rights where he seeks to have new par- ties brought in. The Code, lierefore, 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 ap^ plicant's rights requires it, must permit the defendant to bring a cross-action for that purpose. The cross-action must be brought in the same court unless 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 effect as if it had been brought therein. Unless the court otherwise directs, the original action and the cross-action 117 \ Y. Code of Civil Pro., § 522; Havana City Ry. Co. v. Ceballos, 49 App. T. 421; 63 N. Y. Supp. 422. 118 CocKle Separator Mfg. Co. v. Clark, 26 Neb. 702. 119 See Miller v. Fenton, 11 Paige 18; Tripp v. Vincent, 3 Barb. Ch. 613. "ON. Y. Code of Civil Pro., § 544; Cal. Code of Civil Pro., § 464; Gasworks Construction Co. v. Standard Gaslight Co., 47 Hun 255- 13 N. Y. St. Pep. 339 ; Spears v. Mayor, etc., 72 N. Y. 442. 80 The System of Pleadings Inteoduced by the Code. Partial defenses. must be tried and judgment rendered therein as if they were one action/^^ This provision of the Code is believed to fur- nish the only vestige of the old cross-bill, as formerly known, now remaining in that State, and to present the only case in which it is either necessary or proper therein/^^ § 9. 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 might be given in evi- dence upon the trial under the general issue.^^^ By the ITew York Code the general issue is abolished, but the defendant is allowed to set forth as many defenses and counterclaims as he may have,^^* including a partial defense to the entire complaint or to one or more separate causes of action therein set forth, but is required to expressly state that it is a partial defense. A partial defense under this statute includes matter tending 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.^^^ § 10. Pleadings in actions of libel or slander. — Prior to the Code it was necessary for the plaintiff in an action for libel or slander to state in his complaint extrinsic facts which would show that the defamatory matter was written or spoken of the plaintiff. ^^^ But the Code dispenses with the necessity of stating in the complaint in such action any extrinsic fact for the purpose of showing the application to the plaintiff of the 121 N. Y. Code of Civil Pro., § 760. 122 See American Bible Society v. Stark, 45 How. 160. i23Wilmarth v. Babcoek, 2 Hill 194; Barber v. Rose, 5 Hill 76; 21 Wend. 273. 124 N. Y. Code of Civil Pro., § 507. 125 N. Y. Code of Civil Pro., § 508. And see Id., § 536. The require- ment is general that a partial defense must be pleaded as sueh. See Ronan v. Williams, 41 Iowa 680. 126 iSee Stokes v. Morning Journal Assn., 72 App. Div. 184, 192 ; 73 N. Y. Supp. 245. The System of Ple^vdings Tsttiiodttced by the Code. 31 Pleadings in actions of libel or slander. defamatory matter, and allows the plaintiff to state generally that it was published or spoken concerning him, and, in case that allegation is controverted, requires him to establish it on the trial."' Before the Code the defendant in an action of slander or libel could not give the truth of the charge in justification un- less it was specially pleaded; and if pleaded, he could give no evidence in mitigation tending to disprove malice, as the justi- fication was regarded as a reiteration of the charge and con- clusive evidence of malice. If he failed in his justification the damages were enhanced. If he did not justify, he was pre^ eluded 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 or libelous were true.'^^ These perils in the path of the defendant were removed by the pro- visions of the Code permitting the defendant to prove mitigat- ing circumstances notwithstanding that he has pleaded or at- tempted to prove a justification.^^" But this provision of the Code is not to be construed as a license to interpose a plea in justification or mitigation in bad faith, or as a shield for the protection of the defendant against enhanced damages in such 127 N. Y. Code of Civil Pro., § 535 ; Cal. Code of Civil Pro., § 460. See Ohio Code, § 124; Eev. Stat. Ohio 1880, § 5093; Indiana Code, § 86; Indiana Eev. Stat. 1881, § 372; Missouri Rev. Stat. 1879, § 3552; Kansas Code of Civil Pro., § 125; Nebraska Code of Civil Pro., § 131; South Carolina Code, § 187; North Carolina Code 1883, § 265; Wisconsin Rev. Stat. 1878, § 2677; Oregon Code, § 88; Minnesota Code, § 95; Nevada Comp. Laws 1873, § 1125; Colorado Code of Civil Pro., § 69; Iowa Code 1886, § 2681; Bullitt's Kentucky Code, § 123. 128 Van Aukin v. Westfall, 14 Johns. 233; Root v. King, 7 Cow. 613; 4 Wend. 113; Fero v. RuSboe, 4 N. Y. 162; Spooner v. Keeler, 51 N. Y. 527, 538; Bush v. Prosser, 11 N. Y. 347, 349; Bisbey v. Shaw, 12 N. Y. 67. 129 N. Y. Code of Civil Pro., § 535; Cal. Code of Civil Pro., § 461. 130 Oruikshank y. Gordon, 118 N. Y. 178; Holmes v. Jones, 121 N. Y. 461; Distin v. Rose, 69 N. Y. 122. 32 The System of Pleadih'gs iNTitoDucED by the Code. Results accomplished by the Code. § 11. Other 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 de- fects which before could be reached only by special demurrer, became, under the Code, the subject of correction by motion. By reducing 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. Something of precision was sacrificed by the change; and some matters formerly determined before trial were carried to the trial term for settlement, and even the legis- lative intent to force causes to speedy trial and judgment in many cases miscarried. 'No system has yet been adopted which can wholly circumvent the ingenuity of a skillful attorney in devising pretexts for delay and impediments in the way of the speedy trial of a hopeless cause when delay will operate to the benefit of his client. Many minor questions which before the Code were involved in doubt, were settled by explicit pro- visions 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. It was the intent of the framers of the ISTew York Code that the pleadings should be directed to the ultimate relief desired to the exclusion of all consideration of remedies merely pro- visional. The Code defined the cases in which the plaintiff might obtain an order for the arrest of the defendant. The facts alleged in the complaint as the plaintiff's cause of action might entitle the plaintiff to the arrest of the defendant, or the right to the provisional remedy might depend in part upon facts not alleged in the complaint as the plaintiff's cause of action, and which were presented to the court by affidavit. Wow, by an amendment of the provisions of the Code, facts, which be- General Eules of Pleading. 33 Nature, object and necessity of pleadings. fore liad been stated in part outside of the complaint, are required to be stated in it as a part of the cause of action. By this amendment tbe nature of the cause of action was changed somewhat, but no new rule of pleading was introduced. ^'^ These allegations of what before were extrinsic matters have now become pertinent and material and can no longer be treated as mere surplusage.^"^ Since the adoption of the Code in ISTew York, certain statu- tory proceedings denominated actions, but in effect special pro- ceedings, have lost their peculiar features, and are now governed by the Code both as to practice and pleading; and the practice and pleadings in inferior courts have been made to conform more nearly to that of the higher courts. The tendency of the Code has been toward uniformity in every step in all actions in all courts. CHAPTEE II. Geneeal Ettles or Pleading. Section 1. Nature, object and necessity of pleadings. — Pleading is the statement in logical and legal form of the facts which constitute the plaintiff's cause of action or the defend- ant's ground of defense. It is the formal mode of alleging that on the record which would be the support or defense of the partj in evidence.^ 131 See N. y. Code of Civil Pro., § 549; Moffat v. Fulton, 132 N. Y. 507,. 514; Elwell v. Russell, 29 App. Div. 436; 51 N. Y. Supp. 964; McGuire ■ V. Bransher, 52 App. Div. 276; 65 N. Y. Supp. 382. i32McDonough v. Dillingham, 43 Hun 493. iChitt. PI. 195; Read v. Brookman, 3 Term R. 159; Hotham v. Bast India Co., Doug. 278; Boyce v. Brown, 7 Barb. 80. Whenever there is submitted to a court for adjudication a proposition of fact or of law which is affirmed by one party and denied by the other, no matter how' the issue is made, whether orally or in writing, whether formally or informally, the affirmation by one party and the denial by the other con- 34 General Kuxes of Pleading. Nature, object and necessity of pleadings. This was tlie accepted definition of pleading under the for- mer practice, and though much that was formal, and much that was logical under the old system has given place to directness and simplicity under the present system of procedure, the gen- eral nature and object of pleading is unchanged. Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them.^ The filing or service of a complaint or of some written statement of the cause of action of a party in whose favor a judgment is rendered is absolutely indis- pensable to the maintenace of the judgment.^ The present system of procedure is founded upon the idea that litigants should know in advance, when possible, the precise questions that they must meet at the trial,* and the office 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.^ Under the present system proof without allegation is as ineffective as allegation without proof, ° and a judgment cannot be rendered on evidence unsupported by allegations. '^ But parties may waive any right, privilege or advantage which the law confers upon them in a civil case ; and they may, if they so elect, depart from the strict issues made by the pleadings and try other questions relating to the merits of the controversy by consent or acquiescence,* and in such case the cause will be decided as it would be if the pleadings made the issue.* stitute pleadings; such affirmation being in substance and effect a declara- tion, complaint or petition, and such denial a plea or answer. Tarbox v. Adams County Sup'rs, 34 Wis. 558. 2 Southwick V. First Nat. Bank of Memphis, 84 N. Y. 420. 3 Beckett v. Cuenin, 15 Colo. 281. 4 Crane v. Powell, 139 N. Y. 379. 6 Van Schaick v. Winne, 16 Barb. 89. 6 Abernathy v. Seagle, 98 N. C. 553. 7 Thurmond v. Brownson, 69 Texas 597. 8 Farmers' Loan & Trust Co. v. Housatonic R. R. Co., 152 N. Y. 251; Frear v. Sweet, 118 N. Y. 454. 8 Winona v. Minnesota Ry. Construction Co., 27 Minn. 415; Cowing V. Altman, 79 N. Y. 167. G-ENEBAL EuLES OF P1.EADIWG. 35 Facts should be pleaded, not evidence. § 2. Every material fact should be pleaded. — The general rules of pleading require each party to state in his pleading every fact which he must prove upon the trial in order to estab- lish prima facie a cause of action or defense.^" This rule does not require the pleader to set forth his evidence in detail, but, on the contrary, that he shall allege the resultant material facts which he expects to establish by evidence given upon the trial.^^ A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient.^" The failure of a party to allege in his pleading a fact essen- tial to his case may prove fatal on the trial unless the court permits the omitted averment to be supplied by amendment. No proof can be received upon the trial 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 amendment is not a matter of right,^* and the court may impose such terms as it deems 'just as a condition of the amendment ; " and the necessity of asking for an amend- ment always places the moving party at a disadvantage on the trial. What allegations are material to a particular cause of action or defense will be noticed hereafter. § 3. 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 loPrindle v. Caruthers, 15 N. Y. 425; Van DeSande v. Hall, 13 How. 458; Allen v. Patterson, 7 N. Y. 476; Reining v. City of Buffalo, 102 N. Y. 308, 312. 11 Bogardus v. New York Life Ins. Co., 101 N. Y. 328, 343. 12 Gal. Code of Civil Pre, § 463. 13 Bailey v. Ryder, 10 N". Y. 363, 370; Ferguson v. Ferguson, 2 N. Y. 360; Kelsey v. Weston, 2 N. Y. 500. 1* Barnes v. Brown, 130 N. Y. 372. 15 N. Y. Code of Civil Pro., § 723; Cal. Code of Civil Pro., § 473. 36 Genebai. Eulbs of Pleading. Facts should be pleaded, not evidence. pleaded and not the evidence of those 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 establish such essential facts. ^' The criterion in every such ease is whether the allega- tion 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 de- mand may be evidence of a conversion of the property; but the ultimate fact to be established is the conversion, and an allega- tion of the demand and refusal would be an immaterial aver- ment and should not be pleaded.^" So where an action is brought upon a contract made by a duly authorized agent for and on behalf of his principal, the contract may be alleged to be the contract of the principal without mention of the fact of the agency.'"' In some jurisdictions, where facts are pleaded from which an ultimate fact necessarily results, it is the same as if the ultimate fact were specifically pleaded."^ 18 Rochester Ry. Co. v. Robinson, 133 N. Y. 242; Bogardus v. New York Life Ins. Co., 101 N. Y. 328, 343; Avery v. Dougherty, 102 Ind. 443; Waller v. Robinson, 2 Ohio Dec. 16; Zimmerman v. Willard, 114 111. 364; Kelly V. Breusing, 33 Barb. 123; Brainard v. Simmons, 58 Iowa 464; Walter v. Lockwood, 23 Barb. 228; 4 Abb. 307; Clay County v. Simonsen, 1 Dak. Ter. 403; Bowen v. Aubrey, 22 Cal. 566; Harris v. Hillegass, 54 Cal. 463; Miles v. MeDermot, 31 Cal. 270; Oakley v. Town of Mamar- oneck, 39 Hun 448; I&iowles v. Gee, 4 How. 317; 8 Barb. 300; Harlow V. Hamilton, 6 How. 475; Boyce v. Brown, 7 Barb. 80; Hyate v. McMahon, 25 Barb. 457; Coquillard v. Hovey, 23 Neb. 622; Badean v. Niles, 9 Abb. N. C. 48; Cahill v. Palmer, 17 Abb. 196. iTKnowles v. Gee, 4 How. 317; Williams v. Hayes, 5 How. 470; Sutor V. Wood, 76 Texas 403. 18 Williams v. Hayes, 5 How. 470. 19 Thayer v. Glle, 42 Hun 268 ; Sinser v. Cowan, 56 Barb. 395. 20 Weide v. Porter, 22 Minn. 429. See Ohio * Mississippi Ry. Co. v. Nickless, 73 Ind. 382. 21 Osborne v. Clark, 60 Cal. 622. Compare Harris v. HiUegas, 54 Cal. 463. This is not the rule in Indiana. See Pennsylvania Co. v. Zwick, 27 N. E. 508; Pennsylvania Co. v. Cook, Id. 509; Pennsylvania Co. v. Hay- worth, Id. 509. Geneeai. Eules of Pleading. 37 Pleading facts rather than conclusions. § 4. Pacts should be pleaded, and not conclusions of law. — It is a well settled rule of pleading that the pleader must allege facts and not mere 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 con- clusion as an equivalent for the group of separate facts from which it is an inference. The allegations of a pleading should be such, and so stated as to permit a distinct traverse and evolve a definite issue. ^* No issue will be raised by the denial of a conclusion of law.^^ And when the facts are stated from which the court may draw the proper legal conclusions it is neither necessary nor proper to state the conclusions.^' The pleader will not be bound by his averment of the law deducible from the facts pleaded, ^^ and if his pleading is demurred to his conclusion of law will not be admitted by the demurrer.^' If the conclusion is not accompanied by the facts from which it may be deduced, no evidence can be received in its support upon the trial. ^' The failure of a party to take issue upon a matter of law averred in his adversary's pleadings will not operate as an admission or estoppel. °" It is only where matter 22 Swart V. Boughton, 34 Hun 281; Seofield v. Whitelegge, 49 N. Y. 259; Commercial Bank of Rochester v. City of Rochester, 41 Barb. 341; Knapp V. City of Brooklyn, 97 N. Y. 520; Thomas v. Desmond, 12 How. 321; Alabama v. Burr, 115 U. S. 413; Laii'ey v. Chapman, 9 Colorado 304; Spahr V. Tartt, 23 111. App. 420; Smith v. McLean, 22 111. App. 451; 123 111. 210; Gerrity v. Brady, 44 HI. App. 203; People v. Lauder, 82 Mich. 109; Butts V. Phelps, 79 Mo. 302; Sheridan v. Jackson, 72 N. Y. 170; Gar- vey V. Union Trust Co., 29 App. Div. 513 ; 52 N. Y. Supp. 260. 23 Seofield V. Whitelegge, 49 N. Y. 259. 24 Cook V. Warren, 88 N. Y. 37. 2B Turner v. White, 73 Cal. 299; Gale v. James, 11 Colorado 540; People V. Commissioners of Highways, 54 N. Y. 276. 26 Sheldon v. Lake, 40 How. 489; 9 Abb. N. S. 306; Lawrence v. Wright, 2 Duer 673. ST Jefferson Nat. Bank v. Texas Investment Co., 74 Texas 421. 28 Jones V. Dow, 137 Mass. 119; Bonnell v. Griswold, 68 N. Y. 294; Dillon V. Barnard, 21 Wall. 430. 29 Specht V. Allen, 12 Oregon 117. 30 Jordan v. National Shoe & Leather Bank, 74 N. Y. 467. 38 GBOsrEEAx Rules of Plejading. Pleading facts rather than conclusions. is well pleaded that a failure to deny an allegation admits it/^ 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 determina- tion of a court or officer of special jurisdiction to allege that the judgment or determination was " duly made " or " duly given " without stating the facts conferring jurisdiction.^^ But this form of allegation will be insufficient unless it is made to appear that the judgment or determination was made or given in a proceeding before some court or judicial tribunal/' and also alleges that it was duly made or given.'* The Code also permits a party pleading performance of a condition precedent in a contract 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.'^ This ex- ception will be noticed hereafter. The Code 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 to allege generally in an action of replevin that the defendant " wrongfully " took the chattel, without setting forth the facts showing that the detention was wrongful." These and similar exceptions will be more fully noticed hereafter. 81 Alston V. Wilson, 44 Iowa 130. 32Cal. Code of Civil Pro., § 456; N. Y. Code of Civil Pro., § 532; Ross V. Ingersoll, 53 App. Div. 87; 65 N. Y. Supp. 753; Mansf. (Ark.) Dig., § 5067; Lazarus v. Friedheim, 51 Ark. 371. S3 Secor v. Pendleton, 47 Hun 281. But see Brenner v. McMahon, 20 App. Div. 3; 46 N. Y. Supp. 643. 8* Hamerschlag v. Cathoscope Electrical Co., 16 App. Div. 185; 44 N. Y. Supp. 668. 86 N. Y. Code of Pro., § 162; N. Y. Code of Civil Pro., § 533; Cal. Code of Civil Pro., § 457; Colo. Code of Civil Pro., § 67; Nevada Comp. Laws, f 1123; Nebraska Code of Civil Pro., § 128; Wisconsin Eev. Stat. 1878, § 2674; Indiana Rev. Stat. 1881, § 370; Ohio Rev. Stat. 1880, § 5091; Minn. Code, § 92; Kansas Code, § 122; Missouri Rev. Stat. 1879, § 3551. 86 N. Y. Code of Civil Pro., § 534. 87 N. Y. Code of Civil Pro., § 1721. Genbeal Eules of Plbadiitg. i , 39 Facts and conclusions of law distinguished. § 5. Wtat 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 em- ployed in reference to a pleading are widely difEerent, 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 effecf The facts which the Code re- quires to be set forth are not propositions which are true in law, but physical facts, capable as such of being established by evi- dence, oral or documentary, and from which, when so estab- lished, the right to maintain the action or the validity of the defense follows as a necessary conclusion of law.^° It is not always easy to draw the line of demarcation between a fact alleged according to its legal effect and a conclusion 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 effect, is the narration of a fact. A statement of a conclusion of law is usually a statement of the right or liability flowing 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 per- son is of unsound mind ; *^ or that by a foreign law " the title of all the personal property of which the testator was possessed at the time of his decease vested immediately thereafter in the plaintiff " ; *^ or an allegation in an action for a breach of covenant of seizin that the defendant was not the true owner 38 Drake v. Cockroft, 4 E. D. Smith 34; 10 How. 377; 1 Abb. 203. 39 Lawrence v. Wright, 2 Duer 673; Clay County v. Simonsen, 1 Dak. T. 403. *o Thayer v. Gile, 42 Hun 268; Berney v. Drexel, 63 How. 471; 33 Hun 34. See Duggan v. Wright, 157 Mass. 228. *i Riggs V. American Tract Society, 84 N. Y. 330. 42 Berney v. Drexel, 63 How. 471 ; 33 Hun 34. 40 General Kules of Pleading. Facta and conclusions of law distinguished. and was not seized of the premises in fee, is an allegation of a matter of fact and not of a conclusion of law.*' It has also been held that an allegation that an election was duly and legally held ; ** that a note was duly indorsed by an officer duly authorized ; *^ that a corporation was duly organ- ized ; *^ that the plaintiff, with full knowledge of all the facts, duly ratified and confirmed a payment made, and elected to consider the same a proper and valid payment ; " that title is derived by gift ; *' or that the plaintiffs are heirs,*" is an allega- tion of a fact. The laws of another State or country should be pleaded as a fact f and it should apipear 'from the allegation whether the law relied upon is statute on common-law, as the rules of proof of the two are different." The foreign law must be pleaded like any other fact, and it will not suffice for the pleader to allege his conclusions as to the effect of the law without setting out the law itself."" But where the statute is pleaded in due form an allegation of the meaning and purpose of the statute, as defined, construed, administered and enforced by the courts *3 Woolley 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. i* People ex rel. Crane v. Ryder, 12 N. Y. 433. *6 Nelson v. Eaton, 26 N. Y. 410. *8 Lorillard v. Clyde, 86 N. Y. 384. " Speis V. Munroe, 35 App. Div. 527; 54 N. Y. Supp. 916. *8 McCarty v. Tarr, 83 Ind. 444. *i> Physio-Medical College v. Wilkinson^ 108 Ind. 314. 00 Fidelity & Casualty Co. v. Wells, 49 App. Div. 171; 62 N. Y. Supp. 1066; Monroe v. Douglass, 5 N. Y. 447; Rothschild v. Rio Grande Western Ry. Co., 59 Hun 454; 13 N. Y. Supp. 361; Savings Association of St. Louis V. O'Brien, 51 Hun 45; 3 N. Y. Supp. 764; Throop v. Hatch, 3 Abb. 23. 61 Riendeau v. Vieu, 50 St. Rep. 309 ; 21 N. Y. Supp. 501. 62 Rothschild v. Rio Grande Western Ry. Co., 59 Hun 454; 13 N. Y. Supp. 361 ; McLeod v. Connecticut & Passumpic Rivers R. R. Co., 58 Vt. 727 ; Pearce v. Rahwn, 13 111. App. 637. Geneeal Kules of Pleading. 41 Facts and conclusions of law distinguished. of the State where it was enacted, will be regarded as an al- legation of a fact.°' An allegation that the plaintiff was and is entitled to the possession and the rents and profits of lands,^* or tliat a party to a contract has failed to fulfill his obligations,^^ or that the plaintiff paid money by compulsion and not voluntarily, ^° or tliat a grantee procured a deed by false and fraudulent repre- sentations and practices, and by undue and improper influ- ences, °^ or that a defendant wrongfully detains property men- tioned in the complaint in an action of replevin.^' or that a specified act was contrary to statute,"" or that a devise is void because in contravention to the law of the State,'" or that act was done pursuant to statute,*^ or that it was tbe duty of a party to do or to refrain from doing a specified act,°^ or that the act is unlawful,"^ or that an assessment, levy and sale, etc., were illegal and void and not according to the provisions of the statute,"* or that an attachment was illegal, unauthorized and void,*° or that a judgment and execution are void,*'* or that 63 Savings Association of St. iLouis v. O'Brien, 51 Hun 45; 3 N. Y. Supp. 764. - thorize the inference that ihe judgment was wilJiout considera- tion and fraudulently and collusively obtained, without using the word " fraud " or " fraudulent " to characterize the transac- tion."" A party is under no obligation to state in his pleading the theory of law upon which his claim is based."^ In pleading facts according to their legal effect it may some- times happen that the opposite party is left in the dark as to the proof which he may be required to meet at the trial, but, ordinarily, this difficulty can be avoided by motion, when neces- 86 Sherman v. New York Cent. R. R. Co., 22 Barb. 239. 86 Ohio, etc., Ry. v. Nickless, 73 Ind. 382. 87 Weide v. Porter, 22 Minn. 429 ; Moore v. McOlure, 8 Hun 557 ; Edison Electric Light Co. v. United States Electric Lighting Co., 35 Fed. Rep. 134. 88 Thayer v. Gile, 42 Hun 268 ; McAllister v. Kuhn, 96 U. S. 87. See Duggan V. Wright, 157 Mass. 228. soFarron v. Sherwood, 17 N. Y. 227; Cropsey v. Sweeney, 27 Barb. 310; 7 Abb. 129; Glenny v. Hitchins, 4 How. 98; See Jordan and S. Plank Road Co. V. Morley, 23 N. Y. 552. 90 Whittlesey v. Delaney, 73 N. Y. 571; Warner v. Blakeman, 4 Keyes, 487 ; Warren v. Union Bank of Rochester, 157 N. Y. 259. 81 Hemmingway v. Poucher, 98 N. Y. 281. General Rules of Pleading. 45 Anticipating defenses. sary, to make the pleading more definite and certain, or by a demand for a bill of particulars."" § 7. Anticipating possible defenses. — It is neither neoesi- sary nor proper for the party pleading to anticipate and nega- tive a possible plea of the adverse party.'' Thus, it is unneces- sary for the plaintiff to allege in his complaint any facts or circumstances to anticipate or avoid the statute of limitations."* Under the New York Code that objection can be taken only by answer."" In an action to quiet title the plaintiff need not show in his complaint that the cause of action is not barred by the statute."" So, in an action for negligence it is unneces- sary to allege in the complaint freedom froifl contributory negli- gence."^ So, where a pleading alleges the existence of an agree- 92 New York News Publishing Co. v. National Steamship Co., 148 N. y. 39. S3 Hunt V. Hudson Eiver Fire Ins. Co., 2 Duer 481 ; Cohen v. Continental Ijfa Ins. Co., 69 N. Y. 300; Claflin v. Taussig, 7 Hun 223; Williams v. Tilt, 36 N. Y. 319, 323; Nat. Benefit Assn. v. Bowman, 110 Ind. 355; Gris- wold V. Manning, 67 App. Div. 372 ; 73 N. Y. Supp. 702 ; Canfield v. Tobias, 21 Cal. 349; Jafife v. Lilienthal, 86 Cal. 91; McKevin v. Northern Pacific R. E. Co., 45 Fed. Rep. 464; Gadger v. Penland, 108 N. C. 593; Western Union Tel. Co. v. Yopst, 118 Ind. 248; Stearnea v. Webb, 11 Ky. L. E. 36; Lewis v. Bruton, 74 Ala. 317; Bell v. Wallace, 81 Ala. 422. 9* Sand V. St. John, 36 Barb. 628; 23 How. 140; Esselstyne v. Weeks, 12 N. Y. 635; 2 Abb. 272; Minzesheimer v. Bruns, 1 App. Div. 324; 37 N. Y. Supp. 261; Butler v. Mason, 16 How. 546; 5 Abb. 40; Woodard v. Hol- land Medicine Co., 15 N. Y. Supp. 128; Ramsey v. Barnes, 12 N. Y. Supp. 726; Eeilly v. Sabater, 43 N. Y. Supp. 383. 95 N. Y. Code of Civil Pro., § 413; Dezengremel v. Dezengremel, 24 Hun 457. It is otherwise where a. statute gives a right of action unknown to the common-law and limits the time within which an action shall be brought to assert it. In such case the limitation of time operates as a limitation on the right of action itself and the objection may be taken although not pleaded. Colell v. Del., L. & W. R. R. Co., 80 App. Div. 342. 96 Brusie v. Gates, 80 Cal. 462. 97 Urquhart v. City of Ogdensburgh, 23 Hun 75 ; Wolfe v. Supervisors of Richmond County, 19 How. 370; Haskell v. Village of Penn Yan, 5 Lans. 43, 48; Melhado v. Poughkeepsie Trans. Co., 27 Hun. 99; Bogardus V. Metropolitan Street R. Co., 62 App. Div. 376; 10 N. Y. Ann. Caa. 172; Young V. Shiekle, H. & H. Iron Co., 103 Mo. 324; Lee v. Troy Citizens Gas- 46 General Ktjles of Pleading. Anticipating defenses. ment which ■wooild. be void under the statute of frauds if not in writing, it is not necessary to anticipate the defense and allege that the agreement was in writing."* It has been held that in an action to recover for goods sold and delivered it is not neces- sary to allege non-payment of the purchase price ; "" but this doctrine is not generally accepted, and the contrary rule is asserted to the effect that in an action for rent, for services, upon a contract for the payment of money, or other contract, the complaint or petition must contain an allegation of non- payment or breach of the contract.^"" A complaint on a con- tract executed by a corporation need not specifically allege that the contract, which is valid upon its face, is not ultra vires.^"^ A complaint in an action for an absolute divorce need not allege that the plaintiff was not in fault.^"^ A plaintiff suing upon a quantum meruit for work, labor and services performed under a contract to labor for a definite time, need not allege in his complaint an excuse for not fully perform- Light Co., 98 N. Y. 115; Depp y. Louisville & N. R. Co., 12 Ky. L. K. 366; Mele V. Delaware & H. Canal Co., 14 N. Y. Supp. 630; Donahue v. Enter- prise R. Co., 32 S. C. 299; Taylor v. Missouri P. R. Co., 26 Mo. App. 336; Church V. Charleston & Savannah Ry. Co., 21 S. C. 495; Holt v. Whatley, 51 Ala. 569; Fowler v. Baltimore & Ohio R. R. Co., 18 W. Va. 579. In some States freedom from contributory negligence must be alleged by the plaintiff either by direct averment or by implication from the facts pleaded. Louisville, etc., R. Co. v. Boland, 53 Ind. 398; Sherfey v. Evans- ville & T. H. R. Co., 121 Ind. 427; Thompson v. Flint & P. M. R. Co., 57 Mich. 300. See Sullivan v. Toledo, etc., Ry. Co., 58 Ind. 26. »8 Livingston v Smith, 14 How. 490; Hilliard v. Austin, 17 Barb. 141; McDonald v. Mission View Homestead Assn., 5] Cal. 210; Manning v. Pip- pen, 86 Ala. 357; Marston v. Swett, 66 N. Y. 206; New York Trust & Loan Co. V. Helmer, 12 Hun 35. 99 Salisbury v. Stinson, 10 Hun. 242 ; Rossiter v. Schultz, 62 Wis. 655. 100 Roberts v. Treadwell, 50 Cal. 520; Richards v. Travelers Ins. Co., 80 Cal. 505; Curtiss v. Baehman, 84 Cal. 216; Witherhead v. Allen, 4 Abb. Ct. App. Dee. 628; Tracy v. Tracy, 59 Hun. 1; 35 St. Rep. 167; 12 N. Y. Supp. 665; Van Giesen v. Van Giesen, 10 N. Y. 316; Krower v. Reynolds, 99 N. Y. 245; Lent v. New York & Massachusetts Ry. Co., 130 N. Y. 504. 101 St. Paul Land Co. v. Dayton, 37 Minn. 364. 102 Steel V. Steel, 104 N. C. 631. General Rules of Pleading. 47 Anticipating defenses. ing his contract. That is a matter for reply to a defense inter- posing the contract.^"^ A complaint in an action for a statutory penalty need not negative mere matters of defense.^"* An ex- ception in a statute must be negatived in pleading while a proviso need not ; ^°° and this, it is said, is on the ground that an exemption by proviso is a matter of defense that a party must shovf to relieve him of liability.^"" Where an exception is embodied 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 benefit of the pleader, and afterwards follows a proviso whichi is against him, he may plead the clause and leave it to his adversary to show the proviso. '^^ The rear son upon which this rule of pleading rests seems to be that when a party counts upon the enacting clause of a statute containing an exception as the foundation of his action, he cannot logic- ally state his case unless he negative the exception. But if the modifying words are no part of the enacting clause, but are found in some other part of the statute, or in some subsequent statute, it is otherwise, and he may then state his case in the words of the enacting clause and it will be prima facie sufS- cient.'*' 103 Wolfe V. Howes, 20 N. Y. 197. 10* Bell V. Wallace, 81 Ala. 422. lOB Harris v. White, 81 N. Y. 532; Spierea v. Parker, 1 Term R. 141; King V. Bryan, 2 Str. 1101; Steel v. Smith, 1 B. & Aid. 95; Rowell v. Jan- vrin, 151 N. Y. 60; First Baptist Church of Utica v. Utiea & Schenectady R. R. Co., 6 Barb. 313; Fairbault v. Hulett, 10 Minn. 30. An exception exempts something absolutely from the operation of a statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes out of the statute something that otherwise would be a part of the subject matter of it; a proviso avoids them by way of de- feasance or excuse. Rowell v. Janvrin, 151 N. Y. 60, 67. 108 Spieres v. Parker, 1 Term R. 141. 107 Jones v. Axen, 1 Ld. Raym. 119; Louisville & N. R. Co. v. Belcher, 11 Ky. L. Rep. 393; Rowell v. Janvrin, 151 N. Y. 60; Harris v. White, 81 N. Y. 532; Sheldon v. Clark, 1 Johns. 513; Bennett v. Hurd, 3 Johns. 438; Teel V. Fonda, 4 Johns. 304; C. R. Parmele Co. v. Haas, 171 N. Y. 579, 583; Chicago, B. & Q. R. Co. v. Carter, 20 111. 390. 108 Rowell V. Janvrin, 151 N. Y. 60, 67; Great Western R. R. Co. v. Hanks, 36 111. 281. 48 General Rules of Pleading. Matters implied need not be alleged. The complaint in an action against an infant to recover for necessaries furnished may be framed as in any other action for board and lodging or goods furnished, and it is not neces- sary to allege in addition the non-existence of any person standing in such relation to the infant as to bear the obligation to supply it "with necessaries, or that, if existing, such person was unable to do so.^"" The same rule applies to a complaint in an action to recover for necessaries furnished to a wife.^^" It is not necessary that the complaint against a woman upon her obligation should state vyhether she is married or single, and if the defendant is a married woman and her coverture is a defense, she may be left to set it up by answer. ^^^ Where an action is brought against a town to recover dam- ages sustained by reason of its neglect to keep a bridge in repair, it is not necessary to insert in the complaint an aver- ment that ithe defendant had money -with, which to make the necessary repairs.^^^ Matters which merely anticipate a defense may be stricken out on motion. ^^^ § 8. That wMch the law implies need not be alleged. — A direct allegation of a fact which the law implies is not necessary tmder the Code although the insertion of such an allegation in a pleading is common and often proper. ^^* A direct allegation that a publication was false and mali- cious is not necessary to a complaint in an action for libel which sets forth a publication which is unambiguous and in- capable of being understoood in any other sense than as de- 109 Goodman v. Alexander, 165 N. Y. 289. 110 Hatch V. Leonard, 165 N. Y. 435. 111 Broome v. Taylor, 76 N. Y. 564. 112 Oakley v. Town of Mamaroneck, 39 Hun 448. 113 Brooks V. Bates, 7 Col. 576. 114 Hunt V. Bennett, 19 N. Y. 173; Van Rensselaer v. Bonesteel, 24 Barb. 365; Case v. Humphrey, 6 Conn. 130; Drum v. Stevens, 94 Ind. 181. General Eules of Pleading. 49 Matters implied need not be alleged. famatory tO' an extent that must necessarily expose the plainti£E to contempt and ridicule.^^^ An allegation that a contract for the sale of lands was made implies that it was in writing; ^^^ an averment that on a specified day the defendant made an instrument in writing is equivalent to an averment of a delivery of the instrument ; ^" and an averment of indorsement to the plaintiff legally im- ports a delivery.^^* An allegation that certain drafts were ac- cepted by a corporation by its treasurer includes an averment of authority in the treasurer to accept the drafts; ^^^ and an averment of a decree for a bankrupt's discharge includes an allegation of a decree in bankruptcy, the appointment of an assignee, and an assignment to the latter as necessary incidents of the discharge.^^" An allegation of a refusal implies a de- mand and is equivalent to an allegation of demand and re- fusal.^^^ Where facts are^ stated from which the law implies a promise, it is not necessary to the legal sufficiency of the plead- ing that it should contain a direct averment of the promise.^^^ Whatever is necessarily understood or implied in a pleading forms a part of it as much as if it was expressed ; "^ and facts 115 Hunt V. Bennettj 19 N". Y. 173. 118 McDonald v. Mission View Homestead Assn., 51 Gal. 210. 117 Churchill v. Gardner, 7 Term R. 596 ; Peets v. Bradt, 6 Barb. 662 ; Prindle v. Caruthers, 15 N. Y. 425; Meyer v. Hibsher, 47 N. Y. 265; Keteltas v. Myers, 19 N. Y. 231; Romanes v. Langevin, 34 Minn. 312; La Fayette Ins. Co. v. Rogers, 30 Barb. 491. lis Bank of Lowrille v. Edwards, 11 How. 216; Griswold v. Laverty, 3 Duer 69 1-; New York Marbled Iron Works v. Smith, 4 Duer 362. 119 Partridge v. Badger, 25 Barb. 146. 120 Dewey v. Moyer, 9 Hun. 473, 484 ; 72 N. Y. 70. 121 Mason v. Carter, 8 S. C. 103; Divan v. Loomis, 68 Wis. 150. i22Parron v. Sherwood, 17 N. Y. 227; Oropsey v. Sweeney, 27 Barb. 310; 7 Abb. 129; Bushnell v. Chautauqua Co. Nat. Bank, 10 Hun 378; Glenny v. Hitchins, 4 Hun 98; Jordan & Skaneatelas Plank Road Co. v. Morley, 23 N. Y. 552. Facts necessarily implied from direct averments will be treated as having been pleaded. Weaver v. Harlan, 48 Mo. App. 319. 123 Partridge v. Badger, 25 Barb. 146; Daniels v. Tearney, 102 U. S. 415; Weaver v. Harlan, 48 Mo. App. 319. General Rules of Pleading. Matters judicially noticed. impliedly averred may be traversed in the same manner as if they vsrere expressly averred.^^* An allegation that a municipal ordinance was duly passed necessarily implies that all the essential antecedent acts were done which were requisite to its legal enactment.^^^ And an allegation of acceptance by a municipal corporation means that the acceptance was according to law.^^° And where it clearly appears from the averments in the complaint that there was an assignment by indorsement in writing, this will be held equivalent to a direct averment of the fact.^^' § 9. 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 paiblic statute law, matters of public history,^'" or any other matter which ought to be generally known within the limits of the jurisdiction of the court.^^^ But foreign laws,'"^^ including the laws of other States, '■^^ private statutes 134 124 Marie v. Garrison, 83 N. Y. 14, ^3; Sage v. Culver, 147 N. Y. 241; Ochs V. Frey, 47 App. Div. 390; 62 N. Y. Supp. 67; Wenk v. Cfity of New York, 171 N. Y. 607. 125 Becker v. Washington, 94 Mo. 375. 126 Hubbard v. Williamstown, 61 Wis. 397; Over v. City of Greenfield, 107 Ind. 231. 127 Clenians v. Kersteller, 98 Ind. 378. 128 Shaw V. Tobias, 3 N. Y. 188; State v. Coosaw Min. Co., 45 Fed. Rep. 804; Weaver v. Nugent, 72 Tex. 272. As to the matters of which the California coTirts take judicial notice" see California Code of Civil Pro- cedure, § 1875. ,129 Shaw V. Tobias, 3 N. Y. 188; People v. Ottawa Hydraulic Co., 115 111. 281; Burke County v. Buncombe County, 101 N. C. 520. ISO People V. Snyder, 41 N. Y. 397; Swinerton v. Columbian Ins. Co., 37 N. Y. 174. 131 Smith V. New York Central R. R. Co., 43 Barb. 255. 132 Monroe v. Douglass, 5 N. Y. 447. 133 Holmes v. Broughton, 10 Wond. 75; Cutler v. Wright, 22 N. Y. 472; Pearce v. Rhawn, 13 111. App. 637. 134 1 Bla. Comm. 85; Steph. on Plead. .347; Potter v. Town of Green- wich, 26 Hun 326, 335. Geneeal Rules of Pleading. 51 Hypothetical pleading. and by-laws of municipal corporations ^^^ must be pleaded. Where, however, the law of another State is not the basis of the plaintiff's case, but only an element therein, it need not be pleaded.''' § 10. Hypothetical pleading.— Under the old system of pleading it was a rule that a plea must either traverse or deny, or confess and avoid."' This rule has been applied frequently under the ISTew York Code ^''^ and is as necessary under the present system as it was under the old."" This rule necessarily prohibits the statement of facts in a hypothetical or alternative form: and under it a count is bad which assumes to set up matter in avoidance of a charge in the complaint, but does not confess the charge,"" as, for example, a count which alleges that if the defendant spoke any slanderous words of and con- cerning the plaintiff of the nature of those charged in the complaint, they were confidential and privileged and not spoken in malice."' But this rule is not inflexible and the courts have sometimes permitted a defense to be hypothetically predicated upon a fact alleged in the complaint, not presumptively vrithin the knowledge of the defendant, in connection with a denial of any knowledge or information sufficient to form a belief."- Hypothetical statements have been permitted in an answer to enable the defendant to present all of his defenses.'^^ issHarker v. Mayor of N. Y., 17 Wend, 199; People v. Mayor of N. Y. 7 How. 81. 136 Bauchor v. Gregory, 9 Mo. App. 102. 137 1 Chitty's PI. (14 Am. Ed.) 526. 138 Lewis V. Kendall, 6 How. 59; Buddington v. Davis, 6 How. 401. 139 Goodman v. Robb, 41 Hun 605. "0 McMurray v. Gifford, 5 How. 14 ; Boyce v. Brown, 7 Barb. 80 ; Con- ger V. Johnson, 2 Denio 96; Arthur v. Brooks, 14 Barb. 533; Wies v. Fanning, 9 How. 543; Hamilton v. Hough, 13 How. 14. 1*1 Goodman v. Robb, 41 Hun 605. 1*2 Brown v. Eyckman, 12 How. 313; Keteham v. Zerega, 1 E. D. Smith, 553; Taylor v. Richards, 9 Bosw. 679; Doran v. Dinsmore, 33 Barb. 86; 20 How. 503. i*3McKasy v. Huber, 65 Minn. 9. 52 General Exiles of Pleading. Certainty as to time, place and value. § 11. Certainty as to time, place and value. — Under the old system of pleading it was necessary to state the time when every m^aterial and traversable fact happened, but generally it was not necessary to prove the time as alleged.^** Under the Code, if the time when a fact happened is material to consti- tute a cause of action or a defense, it must be stated, ^*^ and a failure to state it renders the pleading' demurrable. '^^^ In an action against the indorser of a note, the time when notice of dishonor was given is material, and an allegation that notice of dishonor was given, without an allegation when such notice was given, is an immaterial averment, and does not constitute or aid in constituting a cause of action. But if the nature of the controversy ia such that a statement of the 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 im- material,- 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 as- sault.^** The time alleged in actions ex delictu of the act complained of is generally an immaterial averment. ^*'' At common-law, while the party was permitted to prove a single act or injury alleged, he could prove no more than one an- terior to the day stated in his pleading, although he was not so limited subsequent to that day and prior to the commence- ment of the action.^°° Under the present system evidence of- fered to prove more than one act of trespass anterior to the Hi 1 Chitty's PI. 257. 1*5 People V. Ryder, 12 N. Y. 433. 146 Patterson v. Baker, 6 Tliompson & Cook, 76. 147 See People v. Ryder, 12 N. Y. 433 ; Backus v. Clark, 1 Kans. 303 ; Denny v. Northwestern Christian University, 16 Ind. 220; Howland v. Davis, 40 Mich. 545. 148 People V. Ryder, 12 N. Y. 433. iioCritelli v. Rodgers, 87 Hun 530; 34 N. Y. Supp. 479. 160 Chitty's PI. 259, 383, 384; Cheetham v. Ije-wis, 3 Johns. 42; Relyea v. Beaver, 34 Barb. 547; 25 N. Y. 123. General Rules of Pleading. 53 Allegations of time, place and value. alleged time would be treated as nothing more than a va- riance. ^^^ When the only materiality of the statement as to time is to show the order in which events occurred, it is suffi- cient to aver that a certain event occurred after another with- out giving the date of either.^''^ In an action to recover for work, labor and services the plaintiff may allege that the services were performed during certain years specified, and leave the defendant to a motion to make the pleading more definite and certain if greater definite- ness of statement is required. It was also a general rule of pleading under 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 nature, 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 al- legations as well as the proofs of the parties. If a plaintiff 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 such contracts were author- ized. In such case it is not for the defendant to allege as a matter of defense that the contract 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 ma- 161 Critelli v. Rodgers, 87 Hun 530 ; 34 N. Y. Supp. 479. 152 Brown v. Harmon, 21 Barb. 508; Kellogg v. Baker, 15 Abb. 286, 289; Martin v. Kanouse, 2 Abb. 330. 153 Gilbert v. Fairchild, 4 Denio 80. i54Steph. PI. 288; 1 CMtty's PI. 284; Vermilyea v. Beatty, 6 Barb. 429. 54 General Rules of Pleading. Conciseness. terial to his right of action, that its afSnnation is essential to the validity of his complaint."^ Where one agrees to sell and deliver at a particular place, and 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 for non-delivery.^^" In New York, if 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 jurisdic- tion both of the person of the defendant and of the action.^^' Allegations of value have been held material in actions for services or goods sold,^^^ but ordinarily go only to the amount of damages and are not traversable.^^" In an action of trover the plaintiff must prove the value of the articles converted as the basis of his recovery, and may allege the same to furnish a prima facie measure of damages ; but such an allegation in the complaint is needless, and, if denied, raises no technical issue.^'*'' Allegations of time in a complaint are presumed to refer to the conditions existing when the action was begun, unless con- trolled by other allegations showing that a different date is in- tended."' § 12. Conciseness in pleading. — The Code requires that the statement of facts in pleadings shall be in ordinary and 165 Thatcher v. Morris, 11 N. Y. 437. 156 Clark V. Dales, 20 Barb. 42. 157 Gilbert V. York, 41 Hun 594; 111 N. Y. 544; Frees v. Ford, 6 N. Y. 176; Judge v. Hall, 5 Lans. 69. IBS Gregory v. Wright, 11 Abb. 417. i59McKensie v. Farrell, 4 Bosw. 193; Stuart v. Binsse, 10 Bosw. 436; Connors v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 E. D. Smith, 13; Woodruff v. Cook, 25 Barb. 505. 160 Thompson v. Halbert, 109 N. Y. 329; Gleason v. Morrison, 20 Misc. 320; 45 N. Y. Supp. 684. leiTownshend v. Norris, 7 Hun 239; Broome v. Taylor, 9 Hun 155; Burns v. O'Neil, 10 Hun 494; Barker v. Cunard Steamship Co., 91 Hun 495 ; 36 N. Y. Supp. 256 ; Simmons Company v. Costello, 63 App. Div. 428 ; 71 N. Y. Supp. 577. Geneeal Rules of Pleading. 55 Conciseness. concise language without unnecessary repetition/"" and provides that irrelevant and redundant matter contained in a pleading may be stricken out on motion. ^"^ In actions in which damages only are sought for a breach of contract or for a tort but little difficulty can be experienced in observing the rule requiring conciseness in pleading; but when equitable relief is sought there must be from the necessity of the case greater latitude in the allegations of the complaint. The nature of the relief itself frequently requires, not only that the ultimate facts from which the right to relief arises should be stated, but that facts which are somewhat collateral should be laid before the court so that the precise relief re- quired and the way it should be granted may be understood. For that reason greater latitude and liberality are allowed in the preparation of pleadings in equitable actions, and the power to strike out matter claimed to be irrelevant is used with re- luctance and caution.^"* The rule requiring a concise statement of the facts cunstitut- ing each cause of action without unnecessary repetition does not preclude the plaintiff from stating in separate counts sev- eral causes of action arising out of the same transaction if a statement in that form be needful to prevent a possible va- riance between the pleadings and the proofs. ^"^ Thus, in an action for labor and services, the plaintiff may set forth in one count that the labor and services were i>erformed under a spe- cial contract at an agreed price, and if he is in doubt as to his 162 N. Y. Code of Civil Pro., §§ 481, 500, 514; Cal. Civil Code, § 426; Coffee V. Emigh, 15 Colo. 184; Colo. Code, § 49. 163 N. Y. Code of Ci^•il Pro., § 545 ; Cal. Code of Civil Pro., § 453. 164 Town of Dunkirk v, L. S. & M. S. Ry. Co., 75 Hun 366; 27 N. Y. Supp. 105; Park & Sons Co. v. Nat. Druggists Assn., 30 App. Div. 508; 52 N. Y. Supp. 475. See ante p. 8. 165 Blank v. Hartshorn, 37 Hun 101; Longprey v. Yates, 31 Hun 432; Velie V. Newark City Ins. Co., 65 How. 1; Birdsey v. Smith, 32 Barb. 217; Jack V. Des Moines & Fort Dodge E. Co., 49 Iowa 627; Sadler v. 01m- stead, 79 Iowa 121; Remy v. Olds, 34 Pac. (Cal.) 216; Cramer v. Oppen- stein, 16 Colo. 504; Lovett v. Salem & S. D. R. Co., 91 Mass. 557. 56 General Rules of Pleading. Consistency. ability to satisfactorily establish the contract on the trial, he may add another count for the same services upon a quantum meruit.^"'^ Where the same transaction gives rise to one cause of action or another according to the existence or non-existence of a fact primarily within the defendant's knowledge, the plain- tiff may set out the same in separate causes of action and re- cover on either.^"^ A plaintiff may in one count set up a cause of actiou'on a note and in another eoimt a cause of action on the consideration of the note.^"* In alleging the facts necessary to each cause of action or de- fense, it may frequently happen that matters alleged in one count must of necessity be repeated or specifically referred to in another. This is not a violation of the rule requiring a concise statement of facts and prohibiting unnecessary repeti- tion. § 13. Consistency in pleading. — It is somewhat peculiar that under the New York Code of Civil Procedure the rule re- quiring consistency in pleading is limited to pleadings 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 is permitted to set forth in his answer as many defenses or counterclaims or both as he may have whether they were such as were formerly denominated 16 6 Blank v. Hartshorn, 37 Hun 101; Longprey v. Yates, 31 Hun. 432; Manders v. Craft, 3 Colo. App. 236. lerRucker v. Hall, 105 Cal. 425; First Nat. Bank v. Cincinnati N. B. & T. P. E. Co., 9 Ohio Dec. 702. 168 Camp V. Wilson, 16 Iowa 225. 169 N Y. Code of Civil Pro., § 484 ; Olin v. Arendt, 35 App. Div. 529 ; 54 N. Y. Supp. 820. The statement in the opinion in Krower v. Reynolds, (99 N. Y. 245, 249) that a plaintiff may join in his complaint different and even inconsistent causes of action provided they all belong to one of the classes mentioned in the section above cited was not necessary to the decision of the case and is in direct conflict with the language of that section. iTo N. Y. Code of Civil Pro., § 514. Geneeal E.ULES OF Plbading. 57 Consistency. legal or equitable/'^ and whether they are consistent or incon- sistent with each other/^^ Section 507 of the New York Code of Civil Procedure as originally enacted required that the several defenses or counter- claims set forth in an answer should be consistent with each other, but the clause containing this requirement 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 sen- tences of Section 150 of the old Code of Procedure under which it was held that inconsistent defenses might be united.^''' And this is also the rule under the Codes of other States.^^* ISTo satisfactory definition has yet been given of the words " consistent with each other " as applied to several causes of action stated in a complaint. Where such causes of action are entirely separated in their origin and nature, require different modes of trial in different branches of the court, and different modes of enforcing any single judgment rendered which would embrace both causes of action, as where the complaint sets up a cause of action for equitable relief and another count upon a common-law demand, such causes of action are not consistent with each other and cannot be joined. ^'^ Where a complaint sets lip a cause of action based upon the theory of a valid con- tract under which moneys have become due to the plaintiff, and also a cause of action based upon the theory that the contract is invalid and the plaintiff entitled to recover damages for what 171 N. Y. Code of Civil Pro., § 507. 172 Ross V. Duffy, 12 St. Rep. 584 ; Soeieta Italiana v. Sulzer, 138 N. Y. 468; Goodwin v. Wertheimer, 99 N. Y. 149. 173 Bruce v. Burr, 67 N. Y. 237 ; Stiles v. Comstock, 9 How. 48 ; Butler v. Wentworth, 9 How. 282. 174 See Citizens' Bank v. Closson, 29 Ohio St. 78; Hummel v. Moore, 15 Fed. Rep. 380; Reed v. Reed, 93 N. C. 517; Oregon Code, § 72; Billings v. Drew, 52 Cal. 565; Colorado Code, § 60; Colorado Rev. Stat. 1868, § 14; People V. Lothrop, 3 Colo. 428; Tucker v. Edwards, 7 Colo. 209; South Dakota Comp. Laws, § 4915; Stebbins v. Lardner, 2 S. Dak. 127; Texas Rev. Stat., Art. 1262; Welden v. Texas Cont. Meat Co., 65 Texas 487. In Missouri inconsistent defenses are prohibited by statute. 175 Condg v. Rogers, 74 App. Div. 147; 77 N. Y. Supp. 518. 58 General Rules of Pleading. Consistency. was done by virtue of it, the several causes of action are en- tirely inconsistent.^'" A count setting up a cause of action for a breach of contract, and another setting up a cause of action to recover* a statutory penalty, are inconsistent.^''' So a claim of ownership and a claim of lien for unpaid purchase-money are inconsistent averments.^'* It may be stated as a general rule that causes of action which require different forms of judgment and different forms of final process for their enforcement are not consistent with each other.^'^ So a plaintiff will not be permitted to set up a cause of action based upon the theory of an affirmance of a contract and a right to recover money due under it, and also another cause of action based upon the theory of a rescission of the con- tract by the plaintiff and a conversion by the defendant of the subject of the contract by a refusal to restore the property received under it.^*" A party cannot deny in one count what is affirmed by him in another.^*^ The remedy for a joinder of inconsistent causes of action may be by way of demurrer,^*^ or by motion before answer to compel the plaintiff to elect between the causes of action,^*' or by a similar motion at the trial.^** To a certain extent inconsistent averments in a pleading are permissible where from the necessity of the case the pleader cannot know which averment expresses the truth and the facts are therefore stated in an alternative form. A complaint is not to be condemned merely because it states facts for relief in an alternative form if any one of such averments would be suffi- ce McClure V. Wilson, 13 App. Div. 274; 43 N. Y. Supp. 209. "TBarkley v. Williams, 30 Misc. 687; 64 IST. Y. Supp. 318. I'sTuthill V. Skidmore, 124 N. Y. 248. 179 Perkins v. Slocum, 82 Hun. 366; 31 N. Y. Supp. 474. 180 Stewart v. Huntington, 124 N. Y. 127. 181 Baird v. Morford, 29 Iowa 531 ; Darrett v. Donnelly, 38 Mo. 492. 1S2N. Y. Code of Civil Pro., § 488; Perkins v, Slocum, 82 Hun 366; 31 N. Y. Supp. 474. 183 Cassidy v. Daly, 11 W. Dig. 222. i84Tuthill V. Skidmore, 124 N. Y. 148. Geneeal Rules of Pleading. 59 Performance of conditions precedent. cient upon which to found the relief asked for in the complaint. Where, through no fault of his own, the plaintiff does not know which of two aheolutely inconsistent grounds he may suc- ceed in proving, either of which will entitle him to recover, as in case of fraud or mistake, and the like, he is permitted to state them in a single cause of action in the alternative. Aver- ments in this form are not the suhject of demurrer, and the remedy of the defendant, if they are so uncertain as to leave him in the dark as to the charge made against him, is by mo- tion to make the complaint more definite and certain. ^'° § 14. 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 circum- stances which constitute such excuse.^^' Under a complaint set- ting 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 little consequence as the plaintiff may amend his complaint on the trial and then give the evi- dence."^ Where the non-performance of a condition precedent is occa- sioned by the act of a party either disqualifying himself from lasHasberg v. Moses, 81 App. Div. 199; Munn v. Cook, 24 Abb. N. C. 314, 332, 333, note. 186 Bogardus v. New York Life Ins. Co., 101 N. Y. 323; Hatch v. Peet, 23 Barb. 575; Oakley v. Morton, 11 N. Y. 25; Levy v. Biirgess, 64 N. Y. 390, 394; Reining v. City of Buffalo, 102 N. Y. 308; Daley v. Kuss, 86 Cal. 114; Boorman v. Juneau County (Wis.), 45 N. W. 675; Jewell v. City of Ithaca, 72 App. Div. 220; 76 N. Y. Supp. 126; Armor v. Fisk, 1 Colo. 148. 187 Oakley v. Morton, 11 N. Y. 25. 188 Baxter v. Brooklyn Life Ins. Co., 44 Hun 184; Baldwin v. Munn, 2 Wend. 399; Cromdall v. Clark, 7 Barb. 169; Oakley v. Morton, 11 N. Y. 25. 189 Hosley v. Black, 28 N. Y. 438. 60 Geneeal E.TOES OF Pleading. Performance of conditions precedent. performing on his part, or by his giving notice that he will not perform, the other party in seeking his remedy is not bound to aver performance or a readiness to perform on his part, but may allege the facts constituting his excuse, and if the proof sustains them, he will establish his right to recover such dam- ages as he has suffered by the non-performance of the adverse party."" The Code provides that in pleading the performance of a condition precedent in a contract it is not necessary to state the facts constituting performance, but the party pleading may state generally that he or the person whom he represents, duly performed all "the conditions on his part; and further provides that if the allegation is controverted, the party must on the trial establish performance. ^^^ . This provision furnishes a simple and easy mode of stating performance and one that is generally adopted. But it is al- ways optional with the pleader whether he will allege due per- formance of all the conditions on his part or whether he will state the facts showing such performance."^ If he elects to adopt the latter mode of pleading he must state fads showing performance, and not circumstances which are mere evidence or mere legal conclusions.^"^ By the terms of the statute itself the provision of the Code allowing the pleader to allege generally the due performance of a condition precedent is limited to cases of contract."* But it 190 Clarke v. Crandall, 27 Barb. 73. If a party to an obligation gives notice to another before the latter is in default, that he will not per- form the same upon his part, and does not retract such notice before the time at which performance on his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. Cal. Civil Code, § 1440. 191 N. Y. Code of Civil Pro., § 533; Cal. Code of Civil Pro., § 457; Mont. Code of Civil Pro., § 746 ; Burn's Ind. Rev. St. 1894, § 373 ; Wagn. (Mo.) Stat. 1520, § 42; Wis. Rev. Stat., § 2674. See ante, p. 38. 192 Mayor v. Doody, 4 Abb. 127. 193 Hatch V. Peet, 23 Barb. S75. 194 Rhoda V. Alameda County, 52 Cal. 350. General Rules of Pleading. 61 Performance of conditions precedent. is not limited to oontiraots in which conditions precedent are expressly stated and applies as well to contracts in which such conditions are implied.^^'* An allegation that payment of a note was duly demanded at maturity, that payment was re- fused and that the note was thereupon protested for non-pay- mentj and notice thereof duly given to the indorser, is sufficient although none of these conditions precedent to the liability of the indorser axe expressed in the contract of indorsement.^'^ An allegation that the defendant duly indorsed a note to the plaintiil is sufficient in an action against the indorser."^ The word " duly " in legal parlance means according to law.^"* The existence or non-existence of certain facts or conditions may be a condition pTecedent tO' the liability of the defendant, and when such is the case the existence or non-existence of such facts or conditions must be alleged in some form as a part of the plaintiff's cause of action. ^°' A request or demand of the thing claimed may and frequently does constitute a condition precedent to the obligation of the defendant, and when that is the case, such demand before suit brought must be averred and proved to enable the plaintiff to maintain the action. ^'"' Where a statute prohibits an action upon a judgment except upon leave of court first had, such leave must be alleged and proved. ^°^ So where a statute directs that an action upon an undertaking on appeal shall not be maintained until ten days after service of notice of the entry of judgment of affirmance on the appellant, the service of this notice is a condition prece- dent to the commencement of the action, and, in the absence of an allegation of such service, a complaint in an action upon 195 Youngs V. Perry, 42 App. Div. 247; 59 N. Y. Supp. 19; Adams v. Sherrill, 14 How. 297. 198 Gay V. Paine, 5 How. 107; Adams v. Sherrill, 14 How. 297. 19T Youngs V. Perry, 42 App. Div. 247; 59 N. Y. Supp. 19. issBrownell v. Town of Greenwich, 114 N. Y. 527. 199 Strong V. Harris, 84 Hun 314; 65 St. Rep. 548; 32 N. Y. Supp. 349. 2ooHowland v. Edmonds, 24 N. Y. 307, 308. 201 Graham v. Scripture, 26 How. 501. 62 Geneeal RtTLES OF Pleading. Performance of conditions precedent. such undertaking will not state a cause of action. ^"^ So where a statute provides that no action to recover or enforce any claim against a city shall be brought until the expiration of a specified number of days after the claim has been presented to the common council, the presentation of the claim and the ex- piration of the time specified thereafter is a condition precedent to the commencement of an action upon the claim and must be alleged and proved like any other material fact.^"^ If the plain- tiff pleads that the claim was " duly presented " but states facts in connection therewith showing a failure to perform the statu- tory condition, the general allegation will be of no avail to the pleader.*"* The distinction between a statute making the presentation of a claim in a specified time a condition precedent to a right of action and a statute making the failure to present the claim within such time a bar to an action thereon, is imn portant. The first goes to the existence of a cause of action and must be pleaded ; the second is defensive and the plaintiff need not plead it."" There are other statutes authorizing the pleader in tie cases therein specified to allege generally the performance of the acts upon which the right to institute an action or proceeding de- pends. Thus, where a statute regulating proceedings for the condemnation of real property provides that the petition by which the proceeding is commenced shall contain " a statement that it is the intention of the plaintiff in good faith to complete the work of improvement for which the property is to be con- demned, and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding," the plain- 203 Porter v. Kingsbury, 5 Hun 597; 71 N. Y. 588; Rae v. Beach, 76 N. Y. 164. 203 Reining v. City of Buflfalo, 102 N. Y. 308; Jewell v. City of Ithaca, 72 App. Div. 220; 76 N. Y. Supp. 126; Jones v. Minneapolis, 31 Minn. 230 ; Benware v. Pine Valley, 53 Wis. 527 ; Maddox v. Randolph County, 65 Ga. 216; Marshall County v. Jackson County, 36 Ala. 613. 204 Jewell V. City of Ithaca, 72 App. Div. 220; 76 N, Y. Supp. 126. 205 Hawley v. City of Johnstown, 40 App. Div. 568 ; 58 N. Y. Supp. 49. GeNEEAL EuiES OF PLEADING. 63 Jurisdictional matters. tiff has Ms eleetion either to set forth the several acta done by him which constitute the preliminary steps referred to, or to adopt the language of the s.tatute, and in the concise form there prescribed tender an issue to the defendant on that branch of the case.^°° But it has been held in Minnesota that where a statute prescribes that certain specified conditions shall be performed before a right of action shall accrue, the complaint must set forth facts showing such performance, and that a gen- eral allegation that the plaintiff has performed all the acts re- quired is not sufficient.^'" In an action upon a policy of insurance an allegation that the plaintiff has complied with all the requirements of the con- tract obligatory upon him, is a sufficient allegation of the per- formance of the conditions precedent in the policy.^"* It is held in Iowa that if the plaintiff has not performed the con- ditions in the policy, and relies upon a waiver, by the company, he must plead the waiver, or evidence of waiver will not be regarded as excusing the performance of the conditions.^"" This rule is not reco'gnized in all the States. ^'^'' § 15. Pleading jurisdictional matters. — Where the court in which an action is brought is one of general jurisdiction it 206 Rochester Ry. Co. v. Robinson, 133 N. \. 242. 207 Biron v. St. Paul Water Comm. 44 Minn. 519. 208 Neb. Civil Code, § 128 ; German- American Ins. Co. v. Etherton, 25 Neb. 505; Beasingame v. Home Ins. Co., 75 Cal. 633; River Falls Bank v. Ger- man American Ins. Co., 72 Wis. 535; Scliobacher v. Germantown Farmers Mut. Ins. Co., 59 Wis. 86; Phoenix Ins. Co. y. Golden, 121 Ind. 524; Okey V. State Ins. Co., 29 Mo. App. 105; Fitzgerald v. Rodgers, 58 App. Div. 298; 68 N. Y. Supp. 946; McManus v. Western Assurance Co., 43 App. Div. 550; 48 N. Y. Supp. 820; 60 Id. 1143; Emery v. S. P. Ins. Co., 88 Cal. 300; Ohio Code, § 121; Union Ins. Co. v. McGookey, 33 Ohio St. 555; American Ins. Co. v. Leonard, 80 Ind. 272; Scheiderer v. Travelers Ins. Co., 58 Wis. 13. 209 Eiseman v. Havekeye Ins. Co., 74 lovra 11. 210 Atlantic Ins. Co. v. Manning, 3 Colo. 224; German Fire Ins. Co. V. Grunert, 112 111. 68; Zielke v. London Assurance Corp. 64 Wis. 442; Russel V. State Ins. Co., 55 Mo. 585. 64 General Rules of Pleadiitg. Jurisdictional matters. is unnecessary to allege jurisdictional facts. ^^^ In cases where jurisdiction depends upon the citizenship of the parties, as in actions brought in the circuit courts of the United States, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred ifl. the pleadings or should appear afhrmatively with equal distinctness in other parts of the record^ in order to support, on review, the judgment or decree rendered. It is not sufficient that jurisdiction may be inferred argumentatively from the averments. ^^^ The pre^ sumption is that a court of limited and inferior jurisdiction is without jurisdiction when the jurisdictional facts are not al- leged in the complaint in an action in such court. And in an action in the County Court in the State of ISTew York, an aver- ment in the complaint that the defendant is a resident of the county is necessary. ^^' It was a settled rule of pleading at common-law 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 the person of the defendant, and that a mere general averment of jurisdiction was not sufficient.^" This rule in many States was changed by the Code and it was provided that in pleading a judgment or other determination of a court ov officer of special jurisdiction it is not necessai-y to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made, and, if that allegation is con- troverted, the party pleading must on the trial establish the facts conferring jurisdiction. ^^^ This provision in the ISTew 211 Shewalter v. Bergman, 123 Ind. 155. 212 Chapman v. Barney, 129 U. S. 677; Stevens v. Nichols, 130 U. S. 230; Anderson v. Watt, 138 U. S. 694. 213 Frees v. Ford, 6 N. Y. 17C; Gilbert v. York, 41 -Hun 5fl4; 111 N. Y. 544. 21* Barnes v. Harris, 3 Barb. 603; 4 N. Y. 374. 216 N. Y. Code of Civil Pro., § 532; Cal. Code of Civil Pro., § 456; Tuttle V. Robinson, 91 Hun 187; 36 N. Y. Supp. 346. General Eules of Pleading. 65 Jurisdictional matters. York Code is applicable only where the action is brought in a court of record upon a judgment of an inferior court, and does not relieve a party of the necessity of pleading facts conferring jurisdiction when the action is brought in an inferior court upon the judgment of another inferior court.''^* In pleading a judgment or determination of a court of in- ferior jurisdiction, if the facts conferring jurisdiction are not stated, the complaint must allege that "the judgment or deter- mination was duly given or made, as this allegation is one of substance without which the pleading is fatally defective. ^^'^ Where an action is brought upon a judgment or other deter- mination of a court of general jurisdiction, or of an officer of such court, it is unnecessary to allege jurisdictional facts, as jurisdiction , is presumed.^'* And where the judgment was rendered by a court of record of a sister State it is sufficient to allege that the judgment was duly given without stating the facts conferring jurisdiction,^^" or even alleging in direct terms liiat such court was a court of general jurisdiction as that fact may be noticed judicially.^^" Where by the rules of pleading a plaintiff is required to allege, as a jurisdictional fact, that one of the parties is a resi- dent of the city, town, or county in which the action is brought, and the complaint does not contain this allegation, and judg- ment is rendered against the defendant by default, the fact of the residence of the party may nevertheless be shown when the 216 Grigg V. Eeed, 26 Misc. 298 ; 56 N. Y. Supp. 1093. 2i7Tuttle V. Robinson, 91 Hun 187; 36 N. Y. Supp. 346; Cutting v. Marsa, 15 N. Y. St. Rep. 316; Hamerschlag v. Cathoscape Electrical Co., 16 App. Div. 185; People esc rel. Batchelor v. Bacon, 37 App. Div. 414; 55 N. Y. Supp. 1045. 2i8Cruyt V. Phillips, 16 How. 120; 7 Abb. 205; Chemung Canal Bank V. Judson, 8 N. Y. 254. 2i9Halstead v. Black, 17 Abb. 227; Leach v. Linde, 70 Hun 145; 24 N. Y. Supp. 176. 220 Speeklemeyer v. Dailey, 23 N^eb. 101. 66 Geneeal E.ULES of Pleading. Instruments for payment of money. judgment is attacked collaterally in a proceeding to en- force it.'" § 16. Pleading an instrument for payment of money only. — In New York and some of the other States the Code provides that where a cause of action, defense, or counterclaim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon from the adverse party a specified sum which he claims; and such an allegation is declared equivalent to setting forth the instrument according to its legal effecf ^ In other States this method of pleading is extended to accounts, and it is provided that " In an action, counterclaim, or set-off founded upon an account, promissory note, bill of exchange, or other instrument for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum which he claims with interest. When others than the makers of a promissory note or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liabilities of the several parties, and the facts, as they may be, which fix their liability." ''' The concluding paragraph of the statute above quoted might have been added with propriety to section 162 of the New York Code of Procedure, or to section 534 of the New York Code of Civil Procedure, as the courts in construing those sections have recognized and applied the rule of pleading stated in that 221 Beaudrias v. Hogan, 23 App. Div. 83 ; 48 N. Y. Supp. 468 ; Breen v. Henry, 34 Misc. 232; 69 N. Y. Supp. 627. 222 N. Y. Code of Civil Pro., § 534. Substantially the same provision is to be found in the Codes or practice acts of North Carolina, South Caro- lina, Wisconsin, and some of the other States. See Wis. Rev. Stat. p. 1443, § 26; Strunk v. Smith, 36 Wis. 631. 223 Ohio Code of Civil Pro., § 122; Kans. Code of Civil Pro., § 123; Neb. Code of Civil Pro., § 129. General Rules of Pleading. 67 Instruments for payment of money. pfaragraph, and have given to the statutory method of pleading by copy the effect declared by the statute, and that only, namely, that it is equivalent to setting forth the instrument according to its legal effect, and have required that, if further facts are necessary to the statement of a cause of action or defense, such facts shall be pleaded. ^^^ Thus, in an action against the maker and indorser of a promissory note a complaint which merely sets forth a copy of the note and indorsement and alleges that the plaintiff is the holder and ovener of the note and that there is due him thereon a specified sum which he claims, will not be sufficient as against the indorser, ^^^ though sufficient as against the maker. -^^ So in an action upon a promissory note by one not a party thereto, the complaint must allege that the plaintiff has acquired title to the note or other facts from which his own- ership can be legally inferred; and the lack of this allegation will not be supplied or the defect avoided by setting forth a copy of the note in the statutory formula.^^'' A policy of fire insurance is a contract for the payment of money only, and in an action thereon, if a copy is set out with an allegation of the amount due and allegations of extrinsic facts showing the loss, the complaint will be sufficient under section 534 of the Code of Civil Procedure."^ If the instrument for the payment of money only is written in a foreign language it may still be pleaded in the mode au- thorized by the Code, although the better practice in such oases is to plead the instrument by stating its legal effect. ^^^ The pleader is never under any obligation to set forth in his pleading a copy of the instrument upon which his cause of action, defense 224Conkling v. Gandall, 1 Keyes 228; Tooker v. Arnoux, 76 N. Y. 397; Goodwin v. Gobe, 24 Misc. 389 ; 53 N. Y. Supp. 415 ; Broome v. Taylor, 76 N. Y. 564. 225 Conkling v. Gandall, 1 Keyes 228. 226 Marshall v. Eoekwood, 12 How. 452. 22T Guruee v. Beach, 40 Hun 108. 228 Sullivan v. Spring Garden Ins. Co., 34 App. Div. 128 ; 54 N. Y. Supp. 629. 229Jsrourny v. Dubosty, 12 Abb. 128. 68 Geneeal Rules of Pleading. Instruments for payment of money. or counterclaim is founded, but may, if he so desires, set forth the material facts according to their legal effect^'" If he adopts the form of pleading authorized 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. ^^^ In California the party pleading any written instrument may save himself the trouble of proving its genuineness and due execution by setting out a copy or annexing a copy to the complaint or answer. The Code provides that when an action is brought upon a written instrument, and the complaint con- tains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument are deemed admitted unless the answer denying the same be veri- fied ; ^^^ and that when the defense to an action is founded upon a vsTitten instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execu- tion of such instrum.ent are deeaned admitted unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant. ^^^ But the execution of the instrument so pleaded is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon proper demand, refused an inspection of the original.^'* Under the Indiana practice, if a complaint is founded solely upon a written instrument and the instrument or a copy thereof is not filed with the complaint and made a part thereof, the com- plaint will be bad on demurrer. "'^ 230 Mayor, etc., of N. Y. v. Doody, 4 Abb. 127. 231 Smith V. Fellows, 26 Hun 384. 232 Cal. Cod& of Civil Pro., § 447. 233 Cal. Code of Civil Pro., § 448. 234 Cal. Code of Civil Pro., § 449. 235 Montgomery v. Gorrell, 51 Ind. 309; Ind. Rev. Stat. 1894; § 365; Rev. Stat. 1881, § 362; Blackwell v. Pendergast, 132 Ind. 550; State v. Adams, 15 Ind. App. 310. Geneeal Rules of Pleading. 69 Pleading an account. § 17. Pleading an account. — As has been stated, in some of the States a party is allowed to plead an account in the riame manner as an instrument for the payment of money only, by giving a copy of the account with all credits or indorsements thereon, and stating that there is due to him on such account from the adverse party a specified sum which he claims, with interest.''^ In New York the Code provides as follows: " It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but in that ease he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is veri- fied, must be verified by his affidavit, to the effect, that he be- lieves 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. If he fails to do so, he is precluded from giving evidence of the account. 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. 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." ^^' It will be seen that the Code contemplates two kinds of bills of particulars, the first relating to " items of an account " alleged in a pleading, the second to matters constituting any other form of claim.^^" The practice in relation to procuring a copy account or a bill of ^^eAnte, p. 66. 23TN. Y. Code of Civil Pro., § 531, Section 454 of the California Code of Civil Procedure provides as follows : " It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or a judge thereof may order a further account when the one delivered is too general, or is defective in any particular." 238 Spies V. Michelsen, 15 Misc. 414; Dowdney v. Volkening, 5 J. & Sp 313, 316. 70 Geneeai Rules of Pleading. Statutes and ordinances. particulars, and tlie oases in whick a party is entitled to an amplification of the pleadings in this manner, will be noticed in a subsequent chapter. § 18. Pleading statutes and ordinances. — A court will al- ways take judicial notice of the public statutes of its own State and, therefore, it is unnecessary to plead them ; but it will not take judicial notice of foreign laws, including the statutes of other States, or of the private statutes of its own State, or of the by-laws of municipal corporations, and, therefore, these must be pleaded where the rights of the party pleading are dependent thereon. ^^' A statute of another State must be averred in the same man- ner as other facts."" In ISTew York, 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, without setting forth any of the contents thereof. ^*^ In Wisconsin, a statute may be pleaded by referring to its title; "" and in California, in pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage.^*' It is also provided by statute in that State that in pleading the statute of limitations it is not necessary to state the facts shovsdng the defense, but it may be stated generally that the cause of action is barred by the provisions of a specified section of the Code of Civil Procedure, giving the number of the section, and, if subdivided, the number of the subdivision, relied upon, leaving the party pleading, if such allegation is controverted, to establish on the trial that the cause of action IS so barred."* 239 Ante, p. 50. 2*oThroop V. Hatch, 3 Abb. 23. Ml N. Y. Code of Civil Pro., § 530. 242 Wis. Rev. Stat., § 2676. 243 Cal. Code of Civil Pro., § 459. And this is the rule in Missouri. Mexico V. Cauthorn, 25 Mo. App. 285. M* Cal. Code of Civil Pro., § 485. Geweeax Kules of Pleading. 71 statutes and. ordinances. The rule as to pleading an exception or proviso in a statute has been sufficiently noticed. ^*^ In pleading a municipal ordinance it is sufficient to set out its substance,^*" without setting it out in full or detailing the steps preliminary to its passage, ^*^ unless they constitute juris- dictional facts in proceedings wherein the jurisdiction of the court is special and limited.^** It is not always easy to determine what statutes are public, and need not be pleaded, and what statutes are private and must be pleaded.^*" Blackstone says: "The distinction be- tween public and private statutes is this: A general or public act is a universal rule that regards the whole community, but a special or private act is rather the exception than the rule." ^'*° " A private statute is one which concerns only certain desig- nated individuals and affects only their private rights. All other statutes are public, in which are included statutes creat- ing or affecting corporationsi." "^ There are statutes which are local in one sense, but are nevertheless public statutes ; fon it is not necessary to render a statute public that it should be equally applicable to all parts of the State. It is sufficient if it ex- tends to all persons doing or omitting to do an act within the territorial limits prescribed by the statute. ^''^ An act which concerns a whole community and not particular persons nor a private enterprise, although local, cannot be deemed a private act.^" 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 vsdthin their purview, are 2«4m Morrison v. Spears, 8 Ala. 98; Hutson v. King, 95 Ga. 271. 40 Robinson v. Drummond, 24 Ala. 174. *i Gertier v. Linscott, 26 Minn. 82 ; Clark v. Whitaker Iron Co., 9 Mo. App. 446; Benedict v. Seymour, 6 How. 293; Bidwell v. Babcock, 87 Cal. 29; Xenia Bank v. Lee, 2 Bosw. 694; 7 Abb. 372; Ayrault v. Chamberlain, 33 Barb. 229; Lossey v. Orser, 4 Bosw. 391; Reeknagle v. Steinway, 58 App. Div. 352, 356; 69 N. Y. Supp. 132; Bernascheff v. Roeth, 34 Misc. 388; Douglass v. Phoenix Ins. Co., 138 N. Y. 209. *2Reeknagel v. Steinway, 58 App. Div. 352; 69 N. Y. Supp. 132. 80 iFoBMAi. Rules of Pleading Undee the Code. Form of allegations or denials in verified pleadings. verifying the pleading; and that an allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter, must, for the same purposes, be -re- garded as an allegation that the person verifying the pleading had not such knowledge or information.^^ It also provides that the affidavit of verification shall be to the effect that the plead- ing 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 of a plead- ing are in formi 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 transac- tion to which the action relates was intrusted to the manage- ment of agents or servants, or if for any other reason, the facts relating to it are not within the personal knowledge of the party, ' sudi facts should be stated to be alleged upon informa- tion and belief. A /act may be alleged upon information and belief even though it may be within the personal knowledge of the person verifying the pleading ; *° and 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 in- formation sufficient to induce him to believe that the allegations 43 N. Y. Code of Civil Pro., § 524. *i N. Y. Code of Civil Pro., § 526. ■•B New York Marbled Iron Works v. Smith, 4 Duer 362. Veeification of Pleadings. 81 When verification is optional. which he denies are not true.*" This was so held by the Su- preme Court of the United States in a ea^e involving the con- struction of similar ptrovisions of the Civil Practice Act of Montana,*^ and by the courts of California under the Code of Civil Procedure of that State. *^ There is a class of New York oases holding that a denial in an answer must be framed in the manner prescribed by section 500 of the Code of Civil Procedure and that when it is designed to deny any portion of a complaint it must be by a general or specific denial or by a denial of any knowledge or informa- tion sufScient to form a belief, and that a denial " upon in- formation and belief " might properly be stricken out on mo- tion.*" There is still another class of cases holding that a denial upon information and belief may be stricken out on motion where it appears from the pleadings that the facts so denied were vsdthin the personal knowledge of the defendant."" CHAPTER IV. Veeification of Pleadings. Section 1. When verification is optional. — As a general rule it is optional with the plaintiff whether he will verify his *6 Brotherton v. Downey, 21 Hun 436 ; 59 How. 206 ; Wood v. Raydure, 39 Hun 144; Musgrove v. Mayor, etc., 19 Jones & Sp. 528; Macauley v. Bromell, 14 Abb. N. C. 316; Stent v. Continental Bank, 5 Abb. N. C. 88; Metraz v. Pearsall, 5 Abb. N. C. 90; Bennett v. Leeds Mfg. Co., 110 N. Y. 150. « Maelay v. Sands, 94 U. S. 586. *8 Jones V. City of Petaluma, 36 Cal. 230. *9 Pratt Mfg. Co. v. Jordan Iron & Chem. Co., 33 Hun 143, 544; Swin- burne V. Stockwell, 58 How. 312; Powers v. Rome, etc., R. R. Co., 3 Hun 285. BO Fallon v. Durant, 60 How. 178; 3 Law Bull. 13; Byrne v. Benton, 13 Week. Dig. 100; Sherman v. Boehm, 15 Abb. N. C. 254; Pardi v. Conde, 27 Misc. 496; 58 N. Y. Supp. 410. 82 Veeificatiok of Pleadings. When the complaint must be verified. complaint or serve it without verification. As a pleading, a complaint is as perfect witliout a verification as witli it.^ The verification is no part of the complaint,^ and, as a rule, is im- portant merely with reference to subsequent proceedings.^ To this rule there are exceptions. Under the New York Code if a defendant cannot be personally served with a sum- mons 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 al- leged to be jointly indebted on contract, and the summons in the action has been served upon one or more but not upon all 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 New York Code of Civil Procedure, the complaint in such action must be verified." The word " affidavit," as used in the ISTew York Code, in- cludes a verified pleading; " and whenever a plaintiff is en- titled to a provisional remedy on making certain proof by affi- davit, 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 default,' the verification of the complaint may not only prevent the defend- ant from setting up a defense for the mere purpose of delay, but in case of default, may save the trouble and inconvenience 1 Williams v. Kiel, 11 How. 374. 2 George v. McAvoy, 6 How. 200; Pardi v. Conde, 27 Misc. 496; 58 N. Y. Supp. 410. See Williams v. Empire Woolen Co., 7 App. Div. 345, 349; 39 N. Y. Supp. 941; Fusco v. Adam, 11 N. Y. Supp. 735. 3 Williams v. Kiel, 1 1 How. 374. Under the Missouri Practice Act plead- ings require no verification. Hilton v. St. Louis, 99 Mo. 199. *N. Y. Code of Civil Pro., § 439; Williamson v. Williamson, 64 How. 450; Luther v. Prison, 4 Law Bull. 91. B N. Y. Code of Civil Pro., § 1938. 6 N. Y. Code of Civil Pro., § 3348. 7 N. Y. Code of Civil Pro., § 420. Verification of Pleadings. 83 When verification is optional. of making proof before the clerk on tlie entry of judgment.' But these considerations present mere questions of convenience and expediency. In California, a provisional or temporary injunction may be granted at the time of issuing the summons upon the complaint, or at any time afterward, before judgment, upon affidavits. No injunction can be granted on the complaint unless it is verified.* And in actions in that State against steamers, vessels and boats, the complaint must be verified by the plaintiff or some one on his behalf." If the complaint is not verified, it is optional with the de- fendant whether he will verify his answer or not,^^ unless he pleads a defense which does not involve the merits/^ or unless, as in some States, the State, or an officer of the State in his official capacity, is plaintiff. ^^ A defendant may verify a part of his answer to an unveri- fied complaint, and leave the remainder unverified. The ISTew York Code provides that if the complaint is not verified, and the answer sets up a counterclaim, and also a defense by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counterclaim.^* If the prior pleading is defectively verified, it may be treated as an unverified pleading, and the answer or reply thereto may 8 See N. Y. Code of Civil Pro., § 1213. 9 Cal. Code of Civil Pro., § 527. In Indiana, the verification of the com- plaint in suits for an injunction is required only in cases where a restrain- ing order or temporary injunction is sought before final judgment in the action. When the sole relief sought is to be had in the final judgment of the court, no verification is necessary. Sand Creek Turnpike Co. v. Robbins, 41 Ind. 79. 10 Cal. Code of Civil Pro., § 815. 11 Jones V. Seaman, 30 Misc. 65 ; 62 N. Y. Supp. 883 ; Reynold v. Smath- ers, 87 N. C. 24. 12 N. Y. Code of Civil Pro., § 513. 13 Cal. Code of Civil Pro., § 446. This does not include an action in which a city is plaintiff. City and County of San rraneisco v. Itsell, 80 Cal. 57. 1* N. Y. Code of Civil Pro., § 527. 84 Verification of Pleadings. When a pleading must be verified. be unverified.^" And although the original pleading was prop- erly verified, if the copy served contains no verification, the party served may treat it as an unverified pleading and serve an unverified answer 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 the others is not, the defendants cannot serve a joint unverified answer, but those on whom the copy containing lie verification was served must verify their answer and the other defendants may serve an un- verified answer.^^ § 2. When a pleading must be verified. — The New York Code provides that where a pleading is verified each subse- quent pleading except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified, subject to certain exceptions which will be noticed hereafter. '' The term " subsequent pleading," as used in this provision of the Code, applies only to pleadings in answer to the pleading veri- fied, or to such as are subsequent in order of pleading rather than to such as are subsequent in order of time ; ^° and although a defendant may have served a verified answer to a verified com- plaint, this will not preclude the plaintiff frem serving an amended complaint without a verification.^" If the plaintiff has served an unverified complaint to which the defendant has served an unverified answer, the subsequent service of a new complaint in all respects like the original, except that it is veri- fied, does not compel the defendant to serve a verified answer. The new pleading is not an amended complaint."^ iBN. Y. Code of Civil Pro., § 528; Moran v. Helf, 52 App. Div. 481; 65 N. y. Supp. 113; Phonoharp Co. v. Stobbe, 20 Misc. 698. 18 Hughes V. Wood, 5 Duer 603, note. i' Wendt V. Peyser, 14 Hun 114. 18 N. Y. Code of Civil Pro., § 523. 10 Hempstead v. Hempstead, 7 How. 8; Duval v. Busch, 13 Civil Pro. E. 366; 13 St. Rep. 752. 20 Hempstead v. Hempstead, 7 How. 8. 21 George v. McAvoy, 6 How. 200. See White v. Bennett, 7 How. 59. Veeification of Pleadings. 85 When the answer or reply may be unverified. If an answer is verified, a reply must be verified also.^' A defense virhich does not involve the merits cannot be pleaded unless it is verified.^" In California, when the complaint is verified, or when the State, or any officer of the State, in his official capacity, is plaintiff, the answer must be verified, unless an aidmission of the truth of the complaint might subject the pai'ty to a crim- inal prosecution, or unless an officer of the State in his official capacity is defendant."* § 3. When the answer or reply to a verified pleading may be unverified. — 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 a divorce,"' or libel "" the defendant may answer without verifying his pleading notwithstanding the verification of the complaint. The ISTew York Code provides that in a case where it is not otherwise specially prescribed by law, tlie verification may be omitted where the party pleading would be privileged from testifying as a witness concerning an allegation or denial con- tained in the pleading.^" By this it was intended that in all cases where the pleading to be answered contained allegations 22 Levi V. Jakeways, 4 How. 126. 23 N. Y. Code of Civil Pro., § 513. 2-1 Cal. Code of Civil Pro., § 446. 25 Hughes V. Wood, 5 Duer 603, note. 26 Bishop V. Sullivan, 3 Law Bull. 7. 27 N. Y. Code of Civil Pro., § 523. 28 N. Y. Code of Civil Pro., § 1757. 29 Batterman v. Journal Co., 28 Misc. 375 ; Blaisdell v. Raymond. 5 Abb. 144; 6 Abb. 148; Wilson v. Bennett, 2 Civ. Pro. R. 34. 30 N. Y. Code of Civil Pro., § 523. 86 Veeification of Pleadings. When the answer or reply may be unverified. sihowing the adverse party guilty of an offense as to which he would be privileged as a witness from giving accusatory evi- dence against himself, he might in answer deny such allega- tions without oath, and thus compel his adversary to prove the same. The provision is designed to apply only to cases where the accusatory matter is contained in the pleading to be an- swered, 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 himself as to which he would be privileged from testifying as a witness.^^ The criterion is whether if called as a witness the party would be excused from answering.^^ The New York Code provides that a competent witness shall not be excused from answering a relevant question on the ground only that the answer may tend to establish the fact that he owes a 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 manufacturing corporation seeks to recover from one of its trustees the amount of a debt due to the plain- tiff 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 law, the action is for a penalty or forfeiture, and the defendant may serve an unverified an- swer although the complaint is verified."* The rule is otherwise where a creditor seeks to render a director of a membership 81 See Fredericks v. Taylor, 52 N. Y. 596, construing § 157 of the New York Code of Procedure, and § 1, Ch. 75, Laws of 1854. 32 Goflf V. Star Printing Co., 21 Abb. N. C. 211 ; Rutherford v. Krause, 8 Misc. 547, 549; 29 N. Y. Supp. 787. 33 N. Y. Code of Civil Pro., § 837. 34Gadsen v. Woodward, 103 N. Y. 242. See Hughen v. Woodward, 2 How. N. S. 127. Veeification of Pleadings. 87 When the answer or reply may be unverified. corporation liable for the debt of the corporation under section 11 of the Membership Corporations Law of Ifew York.'° A defendant is not excused from verifying his answer to a complaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other in- strument, or transferred or delivered money or personal prop- erty, with intent to hinder, delay or defraud creditors, or with being a party or privy, to such transaction by another person with like intent towards the creditors of that person; or with any fraud whatever, affecting the right or property of an- other.^^ A defendant is therefore not permitted to serve an unverified answer to a verified complaint in an action brought to recover the consideration paid on a purchase of stock induced by false and fraudulent representations set up fully in the complaint. ^^ A complaint which charges the defendant with negligence in immoderately driving, while intoxicated, on a public highway, charges two distinct crimes, and may be met by an unverified answer.*^ So where a complaint alleges that the defendant ovms and keeps a bawdy-house which is a public nuisance and prays that a continuance thereof may be enjoined, the answer may be unverified.'" The fact that a party may be excused from testifying as a witness as to certain allegations in the pleadings of his adver- sary does not exempt him from the operation of th6 general rule that facts not denied are deemed admitted. His proper course is to serve an unverified pleading containing a denial of the accusatory allegations.^" If it appears on the face of the plead- as See Rogers v. Decker, 131 N. Y. 490. 36 N. Y. Code of Civil Pro., § 529. STBeekley v. Chamberlin, 65 Hun 37; 19 N. Y. Supp. 745. But see to the contrary Frist v. Climm, 6 Civ. Pro. R. 30; 67 How. 214. 38 Rutherford v. Krause, 8 Misc. 547; 60 St. Rep. 679; 29 N. Y. Supp. 787. 39 Anderson v. Doty, 33 Hun 238. *oSeovill V. New, 12 How. 319; Springsted v. Robinson, 8 How. 41. 88 VEEiFicATioiir OF Pleadings. By whom pleadings may be verified. ings that he would be excused from testifying as a witness con- cerning certain allegations therein, it is not necessary for him to serve with his pleading an affidavit showing an excuse for omit- ting the verification.*^ But if it does not so appear it is at least proper tha.t he should serve such affidavit with the unveri- fied pleading. At least, when the question as to the right of the party to serve an unverified answer is brought before the court for determination upon a motion by either party, an affi- davit should be made by the defendant showing a valid reason why his answer was not verified.*^ If a party served with an unverified pleading returns it for that reason, the right to serve it in that form may be determined by a motion to compel the party to accept it as a pleading in the cause.*^ The party served may give notice to the adverse party that he elects to treat the unverified pleading as a nullity,** or he may move to strike it out.*° In either case the question of right may be brought before the court for determination. § 4. By whom pleadings may be verified. — Under the ISTew York Code the verification of a pleading must be made by the affidavit 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 follows: 1. Where the party is a domestic corporation, the verifica- tion must be made by an officer thereof. 2-. Where the people of the State are, or a public officer, in their behalf, is the party the verification may be made by any person acquainted with the facts. 41 Wheeler v. DiKon, 14 How. 151; Blaisdell v. Raymond, 5 Abb. 144; 6 Abb. 148; Anderson v. Doty, 33 Hun 233; Goflf v. Star Printing Co., 21 Abb. N. C. 211; Rutherford v. Krause, 8 Misc. 547; 29 N. Y. Supp. 787. *2Roache v. Kivlin, 25 Hun 150. See Dehn v. Mandeville, 68 Hun 335; 22 N. Y. Supp. 984. 43 Fredericks v. Taylor, 52 N. Y. 596. *4 N. Y. Code of Civil Pro., § 528. 46 Fredericks v. Taylor, 52 N. Y, 596. Veeifioation of Pleadings. 89 By whom pleadings may be verified. 3. Wtere 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 where 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 instru- ment for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allega- tions 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 the attorney for the party. *° This provision of the Code permits one of two or more pai'- ties who are united in interest and plead together to verify the pleading where the party verifying is acquainted with the facts. The question whether the parties are united in interest may be better determined by the pleadings than by a statement of that conclusion in the verification ; and where that union of interest appears from the pleadings it is not necessary to state in the verification that the parties are united in interest and pleading together. So it is unnecessary to state in the verification that the party who verifies the pleading is acquainted with the facts, if such acquaintance appears presumptively from the plead- ings.*^ The presumption always prevails until rebutted that a ' copartner has knowledge of copartnership transactions; and it \ was held under the old Code, and is equally true under the j present statute, that one party sued jointly with another may make the verification in behalf of both.*'. If the verification is positive and absolute it is not necessary that the party verify- ing should state that he is acquainted with the facts.*' But it *6 N. Y. Code of Civil Pro., § 525. " Paddock v. Palmer, 32 Misc. 426 ; 66 N. y. Supp. 743. *8 Hartley v. James, 18 Abb. 299; Paddock v. Palmer, 32 Misc 426- 66 N. Y. Supp. 743. •*3 Zoellner v. Newberger, 1 Law Bull. 29. 90 Veeification of Pleadings. By whom pleadings may be verified. may be advisable to insert sudi a statement in the verification where one of two defendants pleading together serves an an- swer, .verified by himself only, containing denials of knowledge or information sufficient to form a belief. It is not clear how far one of two defendants answering jointly can 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 verification.^^ The maker and indorser of a promissory note are not so united in interest that one may verify for both.°^ Where husband and wife are joined as de- fendants and the interest of the wife in the subject of the litiga- tion is, in a legal point of view, distinct and separate from that of her husband she should verify the answer as well as the hus- band.=' The Code requires that title verification must be made by the affidavit of " the party " except in certain cases specified. By parties under the New York Code of Civil Procedure are meant such persons only as are parties to the record either as plaintiff or defendant.^* But it has been held that where an action is prosecuted or defended for the immediate benefit of one not a party to the record, but who is the party in interest, the pleading may be verified by him.°° The verification of a pleading by one co-defendant is deemed a compliance vsdth the provision of the California Code of Civil Procedure requiring that the verification must be by the affi- davit of a party, or, under certain conditions, by his attor- ney.^" The Kentucky Code provides that a joint pleading of 60 See Kinkaid v. Kipp, 1 Duer 692 ; Lacy v. Wilkinson, 7 Civ. Pro. R. 104; Paddock v. Palmer, 32 Misc. 426; 66 N. Y. Supp. 743. 51 Gray v. Kendall, 10 Abb. 66; 5 Bosw. 666; Wendt v. Peyser, 14 Hun 114. 62 Hull V. Ball, 14 Hov7. 305; Andrews v. Storms, 5 Sandf. 609. 63 Youngs V. Seeley, 12 How. 395. 64 People V. Mutual Gas-Light Co., 14 Hun 157. 66 Taber v. Gardner, 6 Abb. N. S. 147. 68 Claiborne v. Castle, 98 Cal. 30. Veeificatioit of Pleadings. 91 When verification may be by agent or attorney. parties united in interest may be verified by either of them.^' And in Missouri, one of several defendants ansvrering jointly may verify the pleading.^^ And in Texas a joint plea in abate- ment by two defendants may be verified by either.'^" But in Tennessee to entitle a joint answer to be received as the answer of any of the several defendants, it must be sworn to by each of them unless the oath is waived."" § 5. When the verification may be by agent or attorney. — It is the general rule that a pleading must be verified by the party, and that it may be verified by the agent of or attorney for the party is an exception to the rule."^ The agent or attorney can verify the pleading only in a ease provided for by the statute."^ Under the New York Code there are five distinct classes of cases in which an agent or attorney may verify the pleading of his principal or client, namely : 1. When the party is a foreign corporation. 2. Where the party, though capable of making the affidavit, is not within the county where his attorney resides, or if the attorney is not a resident of the State, where the party is not within the county where such attorney has his office. 3. Where two or more par- ties, united in interest, plead together, and no one of them, who is acquainted vsdth the facts, and capable of making the affi- davit, is within that county. 4. Where the action or defense is founded upon a written instrument for the payment of money "Ky. Civ. Code, § 117, Subsec. 3. ssEueb V. Jones, 33 Mo. 393. 69 Jones V. Austin, 6 Texas Civ. App. 505. 60 Cook V. Dews, 2 Tenn. Ch. 496. , Section 63 of the Civil Practice Act of Montana provides that the veri- fication of a pleading shall be made by the party, or, if there are several parties united in interest or pleadings, by one at least of such parties ac- quainted with the facts, if such party is in the county and capable of making the affidavit. 81 See N. Y. Code of Civil Pro., § 525. 62 Hammerslaugh v. Farrier, 95 N. C- 135. 92 Vekificatiojst of Pleadings. When verification may be by agent or attorney. only, and such instrument is in the possession of the agent or attorney. 5. Where all the material allegations of the pleading are within the personal knowledge of the agent or the at- torney."^ / It is also held that the complaint in an action brought by /a domestic corporation may be verified by its attorney where ^ the corporation has its place of business and its ofiicers reside ^ in a county other than the residence of such attorney. °* There may be cases, too, in which an attorney and agent of a domestic corporation may be clothed by the corporation with such au- thority and powers in respect to some corporate matter as to render him in effect an officer of the corporation within the meaning of the Code, and authorize him to verify a pleading on behalf of the corporation although not a general officer thereof."' Where a party has several agents any one of them may verify the pleading, although he is not the agent best acquainted with the facts; and an attorney may verify a pleading although he derives his information from a resident agent of the party."" An agent who is authorized under the Code to verify the com- plaint may verify the reply."' It is provided by statute in Georgia that in suits on contracts, if the defendant resides out of the county, issuable pleas may be sworn to by the attorney. A plea to the merits is an " issuable plea " within the meaning of this statute."^ The doctrine is generally recognized that 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 attor- ney of a party, the verification may be made by such agent or 63 N. Y. Code of Civil Pro., § 525. 64 High Rock Knitting Co. v. Bronner, 18 Misc. 627; 43 N. Y. Supp. 725. 66 Matter of St. Lawrence & Adirondack R. R. Co., 133 N. Y. 270. 66 Drevert v. Appsert, 2 Abb. 165. 67Kirkland v. Aiken, 66 Barb. 211. 68 Colquitt V. Mercer, 44 Ga. 432. See Act of 1869, p. 131; Ga. Code, § 3449. Verification or Pleadings. 93 When verification may be by agent or attorney. attorney, though the language expressing the doctrine may not be identical in the Codes and Practice Acts of the several States.*" This doctrine is limited in its application to actions founded on a written instrument for the payment of money only. An action to foreclose a mortgage on real property is not an action on a written instrument for the payment of money only, and the complaint therein cannot be verified by the attor- ney for the plaintiff on this ground although he may have the bond and mortgage in his possession.''" In California a pleading must be verified by the affidavit of a party, unless the parties are absent from the county where the attorney resides or from some cause is unable to verify it, or the facts are within the knowledge of his attorney or other «9N. Y. Code of Civil Pre, § 525; Ohio Code, § 113; South Car. Code, i 178. The last mentioned act provides that a pleading must be verified "by the affidavit of the party, if such party be within the .county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defense be founded on a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney." It is held that under this statute an attorney, in the absence of the party from the county, cannot verify a complaint unless the action is founded upon a written instrument for the payment of money only in his possession, or unless he has personal knowledge of all the material allegations of the complaint. Heeht v. Friesleben, 28 S. C. 181. In New York an attorney who has in his possession a written instru- ment for the payment of money may verify a^eemplaint in an action founded upon such instrument whether the plaintiff is within or out of the county where the attorney resides. Wheeler v. Chesley, 14 Abb. 441. In Wisconsin, the attorney for a non-resident plaintiff may verify a com- pla,int in an action upon a note in his possession. Bates v. Pike, 9 Wis. 224. And in Nebraska, a person having in his possession as agent or at- torney, a written instrument for the payment of money only may verify a pleading when such instrument constitutes the substantive cause of action, whether the relief sought is at law or in equity, Cropsey v. Wiggenhorn, 3 Neb. 108. 70 Peyser v. McCormack, 7 Hun 300 ; 51 How. 205 ; Second Nat. Bank of Cincinnati v. Hemingray, 31 Ohio St. 168; Kerns v. Roberts, 2 Ohio Dec. 537. 94: Veeification of Pleadings. Form of verification by a party. person verifying the pleading.'^ In Iowa, an attorney who has full knowledge of all the facts set forth in the petition may verify it.'^ This is true also of a pleading under the ISTew York Code of Civil Procedure.'"' § 6. Form of verification by a party.— Where the verifica- tion is by the party it must be to the effect that the pleading is true to the knowledge of the deponent, except as to the mat- ters therein stated to be alleged on information and belief, and as to those matters he believes it to be true.'* As a general rule the Codes of the several States do not pre- scribe any particular words in which the verification must be made, but merely require that it shall be " to the effect " therein stated. The verification therefore need not be in the exact words of the statute. It will be sufficient if it is in substan- tial compliance with the statutory requirements. '° If none of the allegations of the pleading are made upon information and belief it is not necessary to insert in the verification the words " except as to the matters therein stated to be alleged on in- formation and belief, and as to those matters he believes it to be true." In such cases an' affidavit that the pleading is true to the knowledge of the deponent is sufficient. ''" Even less will suffice. A statement in the affidavit of verification that the deponent knows the contents of the pleading " and that the same are true " is eqmvalent to saying that they are true to the knowledge of deponent, and is a sufficient compliance with " Cal. Code of Civil Pro., § 446. 72 Brady v. Otis, 40 Iowa 97. T3 N. Y. Code of Civil Pro., § 525. "N. Y. Code of Civil Pro., § 526; Cal. Code of Civil Pro., § 446; Mont. Civil Practice Act, § 63; South Car. Code, § 178. 'BBowghen v. Nolan, 53 How. 485; Kinkaid v. Kipp, 1 Duer 692. 70 Bowghen v. Nolan, 53 How. 485 ; Kinkaid v. Kipp, 1 Duer 692 ; Rad- way V. Mather, 5 Sandf. 654; Ross v. Longmuir, 24 How. 49; 15 Abb. 326; Patterson v. Ely, 19 Cal. 28. Veeificatiok of Pleadings. 95 Form of verification by a party. the statute.'" An affidavit that " tlie matters set forth in the foregoing answer are true " is equivalent to an affidavit that " the foregoing answer is true." ''^ But although none of the allegations of the pleading purport to be made on information and belief, the affidavit of verification may be in the language of the statute and will be regarded as stating that the pleading is true to the knowledge of the deponent, and the words "ex- cept as to the matters stated to be alleged," etc., will be treated as surplusage. '^ Where all the allegations of a pleading are stated to be made on information and belief, a verification is sufficient which states that the pleading is true as deponent is informed and believes.'" In some States the statute merely requires that the verification shall be to the effect that the deponent believes it to be true,°^ and in such States a verifica- tion to the effect that the deponent has read the complaint, knows the contents thereof, and that the statements therein con- tained are true " as he verily believes," is sufficient."^ Qualifying words cannot be injected into the affidavit of veri- fication with safety. A verification which states that the plead- ing is " substantially " true to the knowledge of the deponent is insufficient.'^ 77 Matter of Macauley, 94 N. Y. 574; Southworth v. Curtis, 6 How. 271; Moran v. Helf, 52 App. Div. 481; 65 N. Y. Supp. 113. There is a class of cases holding that such a verification is rendered insufiicient by reason of the omission of the statement to the efi'ect that the pleading is true to the knowledge of the person making it. Williams v. Kiel, 11 How. 374; 5 Duer 601; Tibballs v. Self ridge, 12 How. 64; Sexauer v. Bowen, 10 Abb. N. S. 335 ; 3 Daly 405. And see Smalls v. Wilder, 6 S. Car. 402. 78 Fleming v. Wells, 65 Cal. 336. 79Ladue v. Andrews, 54 How. 160; Beyer v. Wilson, 46 Hun 397. Such a verification will be regarded as altogether positive. State v. Anderson, 26 Fla. 240. But see Burmester v. Moseley, 33 S. Oar. 251 ; Morley v. Guild, 13 Wis. 576. soOrvis V. Goldschmidt, 64 How. 71; Harnes v. Tripp, 4 Abb. 232; Rad- way V. Mather, 5 Sandf. 654. 81 Wash. Code Proc.,, § 293. 82Cady V. Case, 11 Wash. 124. 83 Waggoner v. Brown, 8 How. 212. 96 Veeification of Pleadings. Form of verification by agent or attorney. Under the New York Code, where the complaint is not veri- fied, and the answer sets up a counterclaim, and also a defense by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counterclaim; and in that case the provisions of the Code as to the person by whom the verification must be made, as to the form of the affidavit of verification, and as to the construction to be placed upon an allegation not stated to be made on information and belief, a^ply to the affidavit and the coimterclaim as if the latter was a separate pleading.** § 7. Form of verification by an agent or attorney. — The affidavit of verification, whether made by the party or his agent or attorney must 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 upon information and belief, and as to those matters he believes it to be true. What shall be stated in addition depends principally upon the statute of the State in which the pleading is designed to be used, and to some extent upon the manner in which the cause of action or matters of de- fense are alleged in the pleading to be verified. Under the ISTew York Code where the verification is made by a person other than the party he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party.*' The manner in which this reason shall be stated will be dependent upon cir- cumstances. If the action or defense is founded upon an in- strument for the payment of money only which is in the posses- sion of the agent or attorney, and these facts are stated in the affidavit of verification, they will constitute a sufficient reason for the verification by agent or attorney instead of the party.*' So where the verification by an agent states that all the material Si N. Y. Code of Civil Pro., § 527. SB N. Y. Code of Civil Pro., § 526. 86 Hyde v. Salg, 27 Hun 369; Smith v. Rosenthall, 11 How. 442; Senorita V. Simonda, 1 Oregon 274. /: Veeification of Pleadings. 97 Form of verification by agent or attorney. allegations of the pleading are within his personal knowledge, it will be held sufficient notwithstanding the failure to assign any reason why it 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.'^ Where all the allegations of the pleading are stated positively and no matters are alleged upon information and belief, no grounds of belief need be stated.'" But if in such ease the at- torney goes further and states facts which disprove the posses- sion of actual, personal knowledge in an attempt to state the sources of his information as to the facts alleged he will render his verification defective and entitle the adverse pai-ty to treat the pleading as unverified."" Where all the material allegations of the pleading are within the personal knowledge of an agent, he may verify it without alleging that the principal is out of the county."^ And although the agent may swear that to be true of his own knowledge which he could not in all probability know to be true, the ad- verse party must receive it as a duly verified pleading if it in other respects complies with the letter and form of the Code."^ If, however, the statements made in the verification are clearly inconsistent with the statements made in the an- swer which it verifies, as for example, where the answer denies that the defendants were copartners and the verification states that the ground of the belief of the attorney verifying is in- formation derived from one of the defendants who was a partner of the other defendant at the times mentioned in the complaint sTBetts V. Kridell, 20 Abb. N. C. 1; 13 Civ. Pro. E. 157; 12 St. Eep. 163. 88 Lyons v. Murat, 54 How. 23. SDMoran v. Helf, 52 App. Div. 481; 65 N. Y. Supp. 113; Ross v. Long- muir, 24 How. 49; 15 Abb. 326. 90 Moran v. Helf, 82 App. Div. 481; 65 N. Y. Supp. 113. 91 Senorita v. Simonds, 1 Oregon 274. 92 Beyer v. Wilson, 46 Hun 397. 98 Verification oe Pleadings. Form of verification by agent or attorney. the coiiit, on a motion to strike out tlie answer as sham, may require a verification by the party."^ The Code permits the verification of a pleading by the agent of a party, but does not prescribe in what respect the agency must exist, nor require that the nature of it be stated in the verification."* But where the pleading is verified by an agent or attorney the affidavit should state that the person verifying is the agent or attorney for the party, as this is an essential fact. Where it is necessary for the agent or attorney verifying a pleading to state " the grounds of his belief," as where some of the allegations of the pleading are made upon information and belief, a statement of the source of the deponent's informa- tion, taken in connection with the other statements of the affi-^ davit of verification, may be treated as 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. de- tail the information."^ A statement in an attorney's verificar tion that the action is founded upon a written instrument for the payment of money only in the deponent's possession for col- lection, " 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."" While the Code in certain cases requires an attorney making a verification to state the grounds of his belief, it does not pre- scribe any particular phraseology or form in which it shall be done, and does not require that the attorney shall label or pre- face his statements thereof with the recital in express words that they are his sources of belief."' But although a verifica- tion may be practically sufiicient which substitutes equivalent S3 Jaillard v. Tomes, 3 Abb. N. C. 24. 04 Beyer v. Wilson, 46 Hun 397. Contra, Boston IJocomotive Works v. Wright, 15 How. 253. 95 Duparquet v. Fairchild, 49 Hun 471 ; 2 N. Y. Supp. 264. 96 Hyde v. Salg, 27 Hun 369. 07 High Rock Knitting Co. v. Bronner, 18 Misc. 627; 43 N. Y. Supp. 725. Veeifioatiok of Pleadings. 99 Form of verification by guardian. 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 doubt- ful experiments, not favored by the courts, and are clearly not to be followed as precedents.'^ In California when a pleading is verified by an attorney, or any other person, except one of the parties, he must set forth in the affidavit the reason why it is not made by one of the par- ties."" § 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 in the action and neither is he the agent or attorney of the party as those words are usually understood and applied. But as the guardian is appointed to prosecute 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 con- templation of the Code, who may, as such, verify a pleading. A guardian, therefore, verifies 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."" The general answer of an infant by his guardian ad litem need not be verified.^"^ § 9. Form of verification by an officer of a corporation. — The Code provides that where the party to an action is a do- mestic corporation the verification must be made by an officer thereof."^ There has been considerable discussion and uncer- tainty in respect to the meaning of the language of the statute and as to capacity or position occupied by the officer making 9s See Tibballs v. Selfridge, 12 How. 64. 99 Cal. Code of Civil Pro., § 446. 100 Clay V. Baker, 41 Hun 58; Anable v. Anable, 24 How. 92. ioi See N. Y. Code of Civil Pro., § 523. 102 N. Y. Code of Civil Pro., § 525. 100 Verification or Pleadings. Form of verification by officer of a corporation. the verification; but it is held that where the verification of a pleading by a corporation is made through one of its officers, it stands the same as a verification by a party and that it is not necessary that the verification should comply with the require- ments of the Code in resjject to verifications by agents or at- torneys."' The Code also provides that where the party is a foreign cor- poration the verification may be made by the agent of or the attorney for the party.^"* It is held that an officer of a foreign corporation is an agent of the party within the meaning of the statute and may verify a pleading for the corporation as such agent, and must set forth in his affidavit the grounds of his belief as to all matters not stated upon his knowledge, but need not state the reason why the verification is not made by the cor- poration.^°° A verification by the general manager of a domestic corpora- tion should state the duties of that office, as otherwise the veri- fication is not shown to be made by an officer of the corporation within the meaning of the Code.^"° A verification by a former officer of a corporation after he has tendered his resignation is not authorized by law.^"^ § 10. Remedy for defective verification. — The remedy for a defective verification of a pleading is to treat it as an unveri- fied pleading. Where the copy of a pleading is served without a sufficient verification, in a case where the adverse party is 103 Glaubensklee v. Hamburgh & American Packet Co., 9 Abb. 104; Amer- ican Insulator Co. v. Bankers & Merchants' Tel. Co., 13 Daly 200; 2 How. N. S. 120; 7 Civ. Pro. R. 443; Duryea, Watts & Co. v. Rayner, 11 Misc. 294; 32 N. Y. Supp. 247; High Rock Knitting Co. v. Bronner, 18 Misc. 627, 629; 43 N. Y. Supp. 725. 10* N. Y. Code of Civil Pro., § 525. 106 Robinson v. Ecuador Development Co., 32 Misc. 106 ; 65 N. Y. Supp. 427. 108 Meton & Sons v. Isham Wagon Co., 15 Civ. Pro. R. 259; 4 N. Y. Supp, 215. 107 Kelly V. Woman Publishing Co., 4 N. Y. Supp. 99; 15 Civ. Pro. R. 259, n. Veeification of Pleadings. \5'*»"TW*J^ Remedy for defective verification. entitled to a verified pleading, he may treat it as a nullity, pro- vided he gives notice with due diligence to the attorney of the adverse party that hb elects so to do.^"^ Without such notice the pleading cannot be treated as a nullity.^"" If a complaint, or a counterclaim contained in an ansvrer to an unverified complaint, is defectively verified, the party served with the pleading has a clear right to serve an unverified, an- swer or reply. ^^° Ordinarily this is all the remedy required. If, however, the pleading defectively verified is in answer or reply to a pleading defectively verified, the remedy of the party prejudiced by the defective 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 in verification, or the want of any verification, is ordinarily an irregularity which may be waived, and the right to take advantage of the defect or omis- sion may be lost by delay. "^ The objection that an answer has not been properly verified is not a proper one to be raised on the trial. ^^^ But where the summons is served by publica- tion upon a complaint to whidi the verification is fatally de- fective, the defect is jurisdictional and the defendant may move to set aside the summons and order of publication upon the ground that the complaint presented to the justice granting the order was not verified. ^^^ The Code does not in terms require that the pleading de- fectively verified shall be returned with the notice of election to treat it as a nullity ; but there would be manifest inconsistency in retaining a paper and at the same time treating it as a nullity. The usual practice is to return the pleading with the 108 N". Y. Code of Civil Pro,, § 528. io!> Jones V. Seaman, 30 Misc. 65, 66. iioKeenert v. Iba, 17 Misc. 69; 39 N. Y. Supp. 836; Phonoharp Co. v. Stobbe, 20 Misc. 698; Moran v. Helf, 52 App. Div. 481; 65 N. Y Supp HO. 111 Hull V. Ball, 14 How. 305; Wilson v. Bennett, 2 Civ. Pro. R. 34; White V. Cummings, 3 Sandf. 716. 112 Schtvarz v. Oppold, 74 N. Y. 307. 113 Williamson v. Williamson, 64 How. 450. 102 Construction of Pleadings. When pleadings will be liberally construed. proper notice indorsed upon it. The objection to the verifica- tion must be stated explicitly in the notice, and the particular defect or omission should be pointed out so that the other party 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 sufiicient or not, the better practice is to receive it without question.^'-^ And if a pleading p-roperly 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 verification 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 notice, for leave to serve a verified pleading. CHAPTEE V. CONSTEUCTION OF PlEADINGS. Section 1. When pleadings are to be liberally construed. — The Codes and practice acts of many States provide in terms that in the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally con- strued, with a view to substantial justice between the parties; ^ ii4Snape v. Gilbert, 13 Hun 40* 'i'^'^ 116 Wilkin V. Oilman, 13 How. 225. iCal. Code of Civil Pro., § 452; Iowa Rev. Stat., 1860, § 2951; 1 Nev. Comp. Laws, 1133; Wash. Code, § 94; Jackson v. Jackson, 17 Oregon 110; Sehiffer v. Adams, 13 Cal. 572. CONSTEUCTION OF PlEADINGS. When pleadings will be liberally construed. or, as the rule is more briefly stated in some of the States, the allegations of a pleading must be liberally construed with a view to substantial justice between the parties.'' And this is the rule in Wisconsin,' Indiana,* Arkansas,^ and the ma- jority of the States. These and similar statutory provisions have in effect abrogated the common-law rule that all pleadings will be construed most strongly against the pleader. ° Under the more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature of the pleader's claims are sufficient, if under them he would be entitled to give the necessary evidence to establish his cause of action.' But it is to be remembered that these provisions of the Code refer to rules of pleading and not to rules of law.' They modify the former rules of construction so far as they relate to mere matters of form, but not in matters of substance.' They require that pleadings shall not be condemned for want of form, but not that sub- stantial defects shall be disregarded.^" They do not mean that substantial averments may be omitted, ^^ nor do they authorize a recovery upon facts not pleaded,^^ or upon evidence which 2N. Y. Code of Civil Pro., § 519; Idaho Rev. Stat., § 4207; S. Car. Code of Proc, § 182; Wyo. Eev. Stat., § 2483. 3Eobson v. Comstock, 8 Wis. 372. * Dickensheets v. Kaufman, 28 Ind. 251. 5 Bushey v. Reynolds, 31 Ark. 657. eBushey v. Reynolds, 31 Ark. 657; Cantwell v. McPherson, 34 Pac. 1095; Gray v. Coan, 23 Iowa 344; Foster v. Elliott, 33 Iowa 216; Powers V. Seaton, 2 Ohio Dee. 365 ; Petit v. Hudson, 2 Ohio Dec. 660 ; People's Ins. Co. V. Hart, 5 Ohio Dec. 234; Hobbs v. Memphis, etc., R. R. Co., 56 Tenn. 873; Childers v. Verner, 12 S. C. 1; Cone v. Ivinson, 4 Wyo. 203; Stilwell V. Hamm, 97 Mo. 579. 7 Rochester Ry. Co. v. Robinson, 133 N. Y. 242, 246; Coatsworth v. Le- high Valley R. Co., 156 N. Y. 451, 457; Booz v. Cleveland School Furniture Co., 45 App. Div.' 393; 61 N. Y. Supp. 407. s Fry V. Bennett, 5 Sandf. 54. 3 Bates V. Rosekrans, 23 How. 98; Clark v. Dillon. 97 N. Y. 370; Dibblee V. Metealf, 13 Misc. 136; 34 N. Y. Supp. 122. 10 Spear v. Downing, 34 Barb. 522; 22 How." 30; 12 Abb. 432. "Koenig v. Nott, 2 Hilt. 323; 8 Abb. 384; Gale v. James, 11 Colo. 540. 12 Neudecker v. Kohlberg, 81 N. Y. 296. 104 Construction of Pleadings. When pleadings will be liberally construed. disproves those which are pleaded.^' It was not the intent of the Code to dispense with the necessity of properly pleading the facts which constitute the pleader's cause of action." A party is still required to make out his ease by his pleadings and not leave it to conjecture or inference. The rule requiring a liberal construction of the pleadings does not authorize the courts to supply the pleading bodily, or any substantial aver- ment which the party has omitted.^^ A pleading should be given an interpretation such as fairly appears to have been intended by its author.^" Although plead- ings are to be liberally construed 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 definition, and the other founded upon an inacurate popular use, the latter can be adopted in con- struing a pleading only where it plainly appears from the other averments or the whole tenor of the paper that such was the sense in which it was employed.^' This is not in confiict with the general doctrine that under the liberal construction estab- lished by the Code, a word, purely ambiguous, and capable of two different meanings, should have a reasonable construc- tion, and be so construed as to support rather than to defeat the pleading.^^ But where the word has a fixed legal meaning, and the other parts of the pleading indicate that it was used in that sense, and there is nothing from which are intention to use it in a different or popular sense can be fairly implied, there is no such ambiguity as requires an arbitrary choice of 13 State V. Casteel, 110 Ind. 174. 14 Lemon v. Stevenson, 36 111. 49. IB Gale V. James, 11 Colo. 540. lestilwell v. Hamm, 97 Mo. 579; Spence v. Spence, 17 Wis. 448. 17 Cook V. Warren, 88 N. Y. 37. 18 Allen V. Patterson, 7 N. Y. 476 ; Oceott v. Carroll, 39 N. Y. 436 ; Quin- tard V. Newton, 5 Rob. 72 ; Pender v. Dieken, 27 Misc. 252. OoiTSTBUOTION OF PlEADINGS. 105 When pleadings will be liberally construed. meanings to support the pleading and the sense plainly in- tended must prevail/^ A pleading must be construed according to what it says, and not according to what the pleader intended, if it would he necessary to supply omitted allegations in order to conform the pleading to such intention."" In construing pleadings re^ gard must be had to the facts stated, and a pleading cannot be sustained upon implications unless they of necessity follow from what has been alleged. ^^ The court will not assume in favor of a pleading anything 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 sufficient 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."* Under the present system of pleading mere technical objections will not be encouraged fur- ther than is necessary for the due and orderly administration of justice."^ In construing a pleading it must be taken as an entirety. A pleading is not to be judged from general statements or de- tached sentences, but from its general scope and tenor. If the pleading is an answer and contains matter in confession and avoidance, every part of the pleading must be taken, and if 19 Cook V. Warren, 88 N. Y. 37. 20 Gould V. Glass, 19 Barb. 179; Ogdensburgh Bank v. Van Rensselaer, 6 Hill 240. 21 Magauran v. Tiffany, 62 How. 251. 22 Cruger v. Hudson River R. R. Co., 12 N. Y. 190 ; Bartlett v. Prescott, 41 N. H. 493. 23 Van Brunt v. Day, 81 N. Y. 251 ; 8 Abb. N. C. 336. See Tenn Code, § 2884. 24 Partridge v. Badger, 25 Barb. 146. See ante p. 48. 26Ketelta3 v. Myers, 19 N. Y. 231. 106 CONSTEUCTION OF PlEADINGS. When construed against the pleader. the avoidance is ample, the confession cannot be separated from it. Nothing extrinsic can be considered on the question of construction. °° * § 2. When a pleading is to be construed against the pleader. — Notwithstanding the statutory rule that pleadings must be lib- erally construed with a view to substantial justice between the parties, in matters of substance it is still the rule that a pleading of doubtful meaning must be construed most strongly against the pleader." It is still the duty of a party to present a clear and unequivocal statement of his causes of action or defense, and he is not permitted now more than formerly to so frame his pleading by the insertion therein of doubtful or uncertain allegations 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, it will be construed as setting up only the defense of payment."^ If a complaint is so framed as to leave it uncer- tain for which of two causes of action the plaintiff is suing, it should receive a construction most favorable to the defend- ant.'"' If the place where the thing happened or was done is 20 Whitney v. Town of Tieonderoga, 53 Hun 214 ; 6 N. Y. Supp. 844. 2' Browne v. Empire Type Setting Machine Co., 44 App. Div. 598; 61 N. Y. Supp. 126; Clark v. Dillon, 97 N. Y. 370; Conger v. Judson, 69 App. Wv. 121; 74 N. Y. Supp. 504; Bunge v. Koop, 48 N. Y. 225, 231; Burke V. Thorn, 44 Barb. 363; Stevenson v. Flournoy, 11 Ky. L. Rep. 745; Dennis V. Piper, 21 111. App. 169; Rothschild v. Whitman, 57 Hun 135; -10 N. Y. Supp. 427; Hill v. Allison, 51 Texas 390; Tate v. Orans, 54 Ala. 16; Tris- cony V. Qrr, 49 Cal. 612; Herrington v. Santa Clara County, 44 Cal. 496; Winter v. Quarles, 43 Ala. 692. 28 Clark V. Dillon, 97 N. Y. 370. 29 Bates V. Rosekrans, 23 How. 98; Burke v. Thorn, 54 Barb. 363. 30 Requa v. Guggenheim, 3 Lans. 61. CoNSTBUCTIOlf OF Pi.EADINGS. 107 Construction on demurrer. 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 language of the pleading is to have a reasonable intendment, and construction, and that when a matter is capable of different meanings that shall be taken which will support the pleading and not the other which will defeat it/^ After judgment a pleading is to be construed in favor of the pleader and in support of the judgment/^ § 3. Construction of pleadings on demurrer. — When a complaint is met by demun-er on the ground of insufficiency, the question is always whether, assuming every fact alleged to be true, enough has been well stated to constitute any cause of action whatever. The compilaint will be deemed sufficient whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argu- mentative and the pleading deficient in logical order and tech- nical language. The pleading will be held to state all the facts that can be implied from the allegations by reasonable and fair intendment, and facts so impliedly averred vsdll be given the same force and effect as if directly stated.^* The pleadings will not be construed strictly against the pleader, and averments which sufficiently point out the nature of the pleader's claims will be held sufficient, if under them he would be entitled to give the evidence necessary to establish his cause 31 Beach v. Bay State Steamboat Co., 30 Barb. 433; 10 Abb. 71; 18 How. 335. 32 Allen V. Patterson, 7 N. Y. 476. See ante, p. 104. 33 Shahan v. Tallman, 39 Kans. 185. 34 Marie v. Garrison, 83 N. Y. 14, 23; Sanders v. Soutter, 126 N. Y. 193; Sage V. Culver, 147 N. Y. 241; Tew v. Wolfsohn, 174 N. Y. 272; Wall v. Bulger, 46 Hun 346; Milliken v. Western Union Tel. Co., 110 N. Y. 403; Kain v. Larkin, 141 N. Y. 144; Fogarty v. Wanamaker, 60 App. Div. 433. 108 CoNSTEUCTiojsr OF Pleadings. Construction on the trial. of action or defense.^'' But the sufficiency of the pleading will be determined by the facts set out and not by the conclusions of the pleader.^^ Where a complaint states facts sufficient to constitute a cause of action, and, in addition, facts constituting a defense, the whole will be considered together, the allegations tending to discharge as well as those tending to charge the defendant on a demurrer to the complaint upon the ground that it does not state facts sufficient U> constitute a cause of action.^' In construing a complaint containing several counts, or an answer setting up several defenses or counterclaims, each count must stand alone and will be considered as a separate and dis- tinct pleading, except so far as by express reference it embodies the allegations of another count.''* § 4. Construction of pleadings on the trial. — The question of the sufficieney of a complaint may be raised upon the trial by a motion to dismiss on the ground that the complaint does not state facts sufficient to constitute a cause of action.'" The motion is in effect a demurrer; and the pleading will be con- strued, and its suffi'ciency determined, in substantially the same manner as when the questions involved are presented by demurrer,*" except that the courts will exercise still greater 35 Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451 ; Ivy Courts Realty Co. V. Morton, 73 App. Div. 335, 338; Booz v. Cleveland School Furniture Co., 45 App. Div. 593; 61 N. Y. Supp. 407. 36 Lavprence v. Beecher, 116 Ind. 312; McCray v. Humes, 116 Ind. 103. 3T Calvo V. Davies, 73 N. Y. 211. 38 Victory, Webb, etc., Mfg. Co. v. Beecher, 55 How. 193; Simmons v. Fairchild, 42 Barb. 404; Loosey v. Orser, 4 Bosw. 391, 405; Xenia 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. 39 N. Y. Code of Civil Pro., § 499. 10 Thomas v. Smith, 75 Hun 573; Wilson v. Press Pub. Co., 14 Misc. 514; 36 N. Y. Supp. 12; Sheridan v. Jackson, 72 N. Y. 170; Stafford v. Merrill, 62 Hun 144; 16 N. Y. Supp. 467; Ketchum v. Van Dusen, 11 App. Div. 332; 42 N. Y. Supp. 1112; Spies v. Michelsen, 2 App. Div. 226; 37 N. Y. Supp. 720. CONSTEUCTIOW OF PlBADINGS. 109 Specific allegations prevail over general. liberality in construing the allegations of the pleading with a view to substantial justice between the parties. The Code provides ample means of correcting defects in pleadings before the trial; and where neither of the parties have resorted to any of the remedies provided by the Code for the correction 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 great lengths in sustaining pleadings on a trial, even though they were extremely informal and defective, and even though they contained averments 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 evidence 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 inr curable defects that can be then taken advantage of. The courts will be less strict in considering the question of suf- ficiency 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 presented to them by demurrer to the complaint.** § 5. Facts specifically alleged prevail over general state- ments and conclusions. — In construing a pleading a specific statement of facts vsdll always prevail as against a general state- ment, whether the general statement should be regarded as a *i Read v. Lambert, 10 Abb. N. S. 428. 42Veeder v. Cooley, 2 Hun 74. *3 White V. Spencer, 14 N. Y. 247. 4* St. John V. Northrup, 23 Barb. 25. 110 CONSTEUCTION OF PleADINGS. As to the nature of the action. mere conclusion of law or not.*^ An averment of a legal con- clusion is of no avail as against an admitted fact ; *" and a state- ment of the law as applied to certain facts does not conclude even the party pleading it/'' An averment of a mere conclu- sion 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, without reference to the form used or to the legal con- clusions adopted by the pleader.*" Epithets will never out- weigh inferences legitimately drawn from the facts stated.^" § 6. Construction as to nature of action. — Under the Code a pleader is not required to state the class of actions to which he conceives his cause of action belongs. If the complaint states facts entitling the plaintiff to any relief whatever, it is then for the court to determine when the question is properly presented, what is the nature of the cause of action set up, and whether it is founded on contract or tort. The character of the cause of action must in all cases be determined by an analysis of the averments of the complaint and by the nature of the relief de- manded.^^ A cause of action on contract may be alleged in the complaint; the answer may allege negligence on the part of the plaintiff as a defense; and the reply may allege contribu- tory negligence on the part of the defendant, but these allega- ta Clark V. Bowe, 60 How. 98; Hatch v. Peet, 23 Barb. 575; Page v. Boyd, 11 How. 415; Ryle v. Harrington, 14 How. 59; Gruwell v. Seybolt, 82 Cal. 7. 48 Jones V. Phoenix Banlc, 8 N. Y. 228 ; Getty v. Town of Hamlin, 46 Hun 1 ; Scofield v. Whitelegge, 49 N. Y. 259, 261. *7 Union Bank v. Bush, 36 N. Y. 631; Jefferson Nat. Bank v. Texas In- vestment Co., 74 Texas 421. ■18 Schenck v. Naylor, 2 Duer 675; Knapp v. City of Brooklyn, 97 N. Y. 520. 49 Wright V. Hooker, 10 N. Y. 51 ; Union Bank v. Bush, 36 N. Y. 631. BO Louisville, etc., R. R. Co. v. Schmidt, 106 Ind. 73. 51 McDonough v. Dillingham, 43 Hun 493 ; Conaughty v. Nichols, 42 N. Y. 83; Elwood v. Gardner, 45 N. Y. 349; Neftel v. Lightstone, 77 N. Y. 96. CONSTEUCTION OB" PlEADINGS. Ill As to the nature of the action. tions in the answer and reply will not change the nature of the action from contract to tort.^^ Although a complaint may con- tain allegations entirely unnecessary to the statement of a cause of action on contract it does not follow that such force is to be given to the unnecessary allegations as to change the nature of the cause of action. Thus, where the facts set forth in a complaint constitute a cause of action on contract, an allegation that the defendant has fraudulently converted and appropriated the sum demanded to his own use vsdll not change the cause of action to one for conversion.^' A complaint which alleges an agreement by the defendants to deliver certain securities, a de- mand therefor, and that the defendants wrongfully refused to deliver them, and had vrrongfully disposed of and converted them to their own use to the great damage of the plaintiff, and prays judgment for the value of the securities, with interest, as the damages sustained by the plaintiff by means of the prem- ises, states a cause of action on contract and not in tort.^* In such case the allegation of a wrongful refusal to deliver the securities, and of a vsrrongful disposition and conversion thereof, will be construed as an averment of the breach of the agreement and not as the gist of the action.''^ And in an action brought to recover moneys held by the defendant under a parol trust, an allegation that the defendant " has fraudulently and dishonestly appropriated said moneys and converted them to his own use," may be construed as an unnecessarily strong characterization of the defendant's refusal tO' pay them over to the plaintiff, and not as indicating the intention of the pleader to frame his com- plaint as for trover."" A pleading will ordinarily 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 52 Critten v. Chemical Nat. Bank, 171 N. Y. 219. 63 Leach v. Smith, 27 App. Div. 290; 50 N. Y. Supp. 664. 54 Austin V. Rawdon, 44 N. Y. 63. See Vilmar v. Schall, 61 N. Y. 564. 56 Austin V. Rawdon, 44 N. Y. 63. 66 Bork V. Martin, 132 N. Y. 280. 112 CoNSTEUCTiojsr OF Pleadings. As to the nature of the action. 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 un- necessary to be stated ; and in such case, the court in construing the pleading may disregard the unnecessary allegation and treat it as stating only the cause of action set up by the other allega- tions. This is illustrated by the numerous cases in which the courts have disregarded an allegation of conversion of money or property unnecessarily inserted in a complaint otherwise alleg- ing a cause of action on contract. °^ Where one joint ovsTier of personal property has assumed to sell the interest of the other owners, they may repudiate the sale and bring an action of trover, or ratify the sale and sue for money received ; and where the complaint in an action by such other ovmers contains a demand merely for the value of their interest in the property, and does not contain the words com- monly used in an action for the 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 breach of contract only or a cause of action for the conversion of personal property, if it appears that any part of the property alleged to have been converted is not of a species for which an action of trover could be maintained, this ■will properly characterize the entire action as one on contract."' If the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it as being in the 57 Conaughty v. Nichols, 42 N. Y. 83; Greentree v. Rosenstock, 61 N. Y. 583; Segelken v. Meyer, 94 N. Y. 473; Central Gas, etc., Co. v. Sheridan, 1 Misc. 386; 22 N. Y. Supp. 76; Tuers v. Tuers, 100 N. Y. 196; Fyfe v. Jackson, 55 App. Div. 74; 66 N. Y. Supp. 972; Hunt v. Patten, 33 App. Div. 613; 53 N. Y. Supp. 1042; Cohn v. Beekhardt, 63 Hun 333; 18 N. Y. Supp. 84; Selye v. Zimmer, 40 St. Rep. 604; 15 N. Y. Supp. 881. 68 Goodwin v. Griffis, 88 N. Y. 629. 69 Austin V. Eawdon, 44 N. Y. 63. CoNSTETJCTioir OF Pleadings. 113 As to the nature of the action. nature of an action on contract/" The demand for relief may he resorted to for the purpose of determining the nature of the complaint in cases of doubt." The fact that an order of arrest has been granted in the action on the ground of injury to prop- erty will not affect the construction as to the nature of the action as disclosed by the complaint."^ Where a complaint alleges that the plaintiff was and is the owner of certain bonds ; that the defendant obtained possession of the same as trustee ; that the plaintiff demanded their return ; and that the defendant refused to deliver the same to the plain- tiff, a cause of action for a conversion is stated and not an action on contract. '^^ And where the action is not founded upon a mere breach of an agreement to deliver property to the plaintiff, but upon the wrong done to the plaintiff by the conversion of his property by the defendant, the complaint will be construed as stating a cause of action in tort rather than on contract.*^ Where a complaint states a cause of action on contract the fact that it also contains allegations of fraudulent representa- tions made by the defendant does not necessarily fix the char- acter of the action 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 pur- chaser of goods to recover the damages sustained by him by 60 Goodwin v. Griffis, 88 N. Y. 629, 638, 639. See May v. Georger, 21 Misc. 622; 47 N. Y. Supp. 1057. «i Swart V. Boughton, 35 Hun 281; Central Gas, etc., Co. v. Sheridan, 1 Wise. 386 ; 22 N. Y. Supp. 76 ; Buckley v. Harrison, 1 N. Y. Ann. Cas. 335; 10 Misc. 683; Elias v. Sehweyer, 27 App. Div. 69; 50 N. Y. Supp. 180; Eodgers v. Eodgers, 11 Barb. 595. But the demand of relief is not ordi- narily conclusive as to the nature of the action. Hale v. Omaha Nat. Bank, 49 N. Y. 626. 62 Stafford v. Azbell, 6 Misc. 89; 26 N. Y. Supp. 41. 63 Smith V. Frost, 70 N. Y. 65. See Allen v. Allen, 52 Hun 398; 5 N. Y. Supp. 518. 6 4 Smith V. Hall, 67 N. Y. 48. 65Byxbie v. Wood, 24 N. Y. 607; Sparman v. Keim, 83 N. Y. 245; Ross V. Terry, 63 N. Y. 613 ; Graves v. Waite, 59 N. Y. 156. 66 Lindsay v. Mulqueen, 26 Hun 485. 114 CONSTEUCTIOM- OF PleADINGS. As to the nature of the action, reason of the failure of the goods to correspond with the war- ranty and representations of 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 war- ranty and representations and believing them to be true was thereby induced to purchase and did purchase the goods; that the goods were not of ike quality warranted and represented, but were of a greatly inferior quality, all of which the defendant knew at the time of the fraudulent Warranty and representa- tions, states a cause of action for a breach of warranty only, and not a cause of action for fraud or deceit."^ So a complaint which alleges an offer by the defendant to sell to the plaintiff a horse; that the defendant warranted and fraudulently repre- sented the horse to be sound ; that the plaintiff purchased reiv- ing upon the warranty and representations ; and that at the time of sale the horse was unsound, will be construed as an action for a breach of contract of warranty and not to recover dam- ages for fraudulent representations, and the allegations of fraud will not change the construction of the pleading."' A cause of action on contract will not be transformed into an action of tort by mere averments of fraud or negligence."" In all cases where the pleader avers the sale and delivei^- of property to the defendant at a fixed price, which remains un- paid, and also alleges that the defendant perpetrated a fraud in making the purchase by means of false representations as to his solvency, and a question is presented whether it was the in- tention of the pleader to set forth a cause of action ex contractu or ex delicto, the omission to allege that damages have accrued to the plaintiff by reason of the fraud is accepted by the courts as a circumstance. indicating the purpose of the pleader to rely upon the contract as constituting his cause of action.'" liT Lindsay v. Mulqueen, 26 Hun 485. osBosworth v. Higgins, 7 N. Y. Supp. 210; 26 St. Rep. 474. 69Rothchild v. Grand Trunk Ey. Co., 10 N. Y. Supp. 36; 30 St. Rep. 642. 70 McDonough v. Dillingham, 43 Hun 493. CONSTEUCTIOW OF PlEADINGS. 115 As to the nature of the defense. § 7. Construction as to nature of the defense. — Under our practice a party having an affirmative defense to the action by way of a counterclaim is bound to plead it in explicit terms and not leave it to inference.'^ While he is not bound to employ any particular formula in his answer to designate the intended effect of the matter set up, he is bound to so present it in hia pleading that the adverse party and the court may determine whether it is relied upon as a mere defense to the cause of ac- tion set up in the complaint or as an independent cause of action in favor of the defendant. It is not always easy to determine whether the matter set up by the defendant in his answer was intended to be pleaded as a defense or as a counterclaim. If the pleader designates it as a defense and neither by appropriate Rrords of introduction nor by his prayer for relief conveys any intimation that he intends to make a personal claim in his own favor, the construction given by the defendant will be accepted as the true one by the court.'^ So if the defendant character- izes as a counterclaim matter set up in his answer lie will be bound by the designation he has deliberately given it and will not be permitted afterwards to urge that the matter was merely a defense.'''* But the characterization by the defendant is not conclusive ; and although the matter set up by the defendant is not specially denominated a counterclaim in the answer, and is in fact characterized as a defense, yet if the matter pleaded would not constitute a defense- to the cause of action alleged in the complaint but would constitute a valid original cause of action in favor of the defendant, and it appears by the relief demanded that it was intended as a counterclaim, it will be ?o construed.''* Where the proper constniction of the answer in this particular is a matter of serious doubt, the courts will apply '1 Rice V. Grange, 131 N. Y. 149. 72 Bates V. Rosekrans, 37 N". Y. 409 ; 4 Abb. N. S. 276 ; Pratt & Whitney Co. V. Pneumatic Tool Co., 50 App. Div. 369; 63 N. Y. Supp. 1062; Ward V. Comegys, 2 How. N. S. 428. 73 Tuclcerman v. Corbin, 66 How. 404. "McCrea v. Hopper, 35 App. Div. 572; 55 N. Y. Supp. 136; Metropoli- tan Trust Co. V. Tonawanda. etc., R. R. Co., 18 Abb. N. C. 368. 116 CONSTEUCTION OF PleADINGS. As to the nature of the defense. the old common-law rule that a pleading in matters of substance is to be construed most strongly against the pleader/" When the question whether the answer sets up a defense or a counterclaim comes before the court on a claim that the matter pleaded has been admitted by want of a reply, the defendant will be bound by his own definition of his answer. If he has failed to describe the matter set up as a counterclaim, and has, on the contrary, described it as a defense, it will be so construed by the court and a reply will be held to be unnecessary.'* The claim that the answer contained a counterclaim which stands admitted by reason of the plaintiff's failure to reply cannot be raised for the first time on appeal.'' A defendant may plead the same new matter both as a de- fense and as a counterclaim provided he pleads them separately and properly labels them in his answer.'* If he sets up facts which might be available in either manner, but without eharao- terizing their effect, and proves them without objection, he is entitled to the benefit of the evidence given either in reduction or extinguishment of the plaintiff's claim, or in support of an affirmative judgment in his favor." In a doubtful case, and where a construction can be given a pleading which will bring it within the requirements of section 507 of the ITew York Code of Civil Procedure, paragi'aphs of an answer, not separately stated and numbered as required by that section, will not be treated as separate defenses.*" A defense set up in the answer may be construed to be a " partial defense," although not so characterized in the plead- ing, where it so clearly appears that such is its nature that there 76 Burke v. Thorne, 44 Barb. 363. 76 Equitable Life Assurance Society v. Cuyler, 75 N. Y. 511; Favilla v. Moretti, 18 Civ. Pro. R. 388. 77 Muldoon V. Blackwell, 84 N. Y. 646. 78 Garfield Nat. Bank v. Kirchwey, 17 Misc. 310; 39 N. Y. Supp. 333. 7» Van Brunt v. Day, 81 N. Y. 254; Makinstry v. Smith, 16 Misc. 251; 38 N. Y. Supp. 93 ; Acer v. Hotchkiss, 97 N. Y. 395. 80 Kager v. Brenneman, 33 App. Div. 452 ; 54 N. Y. Supp. 94. Copy Account. 117 When a party is entitled to a copy account. can be no possibility of dispute.^^ But ordinarily where new matter is set up in an answer, and is not expressly stated to be a partial defense, it will be assumed that the new matter is pleaded as a complete defense, and will be tested as such on demurrer/'' CHAPTER VI. Copt Account. Section 1. When a party is entitled to a copy account. — Under the !N"ew York Code, when a party has not set forth in his pleading the items of an account therein alleged, the ad- verse party may serve upon him a vs^ritten 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 veri- fied if the pleading containing the account was verified. In case he fails to do so the statute precludes him from giving evidence of the account.^ Under the California Code the copy of the account must be delivered within five days after a demand thereof in writing.^ A copy of an account may or may not be a part of the plead- ing in which the account is alleged. An unverified bill of par- ticulars may be annexed to and made a part of a verified com- plaint upon an account, and the verification of the complaint will be a sufficient verification of the items of account annexed.' siHowd V. Cole, 74 Hun 121; Robinson v. Evening Post Pub. Co., 25 Misc. 243. 82 Thompson v. Halbert, 109 N. Y. 239; Silberman v. New Amsterdam Gas Co., 30 Misc. 42 ; 61 N. Y. Supp. 699 ; Mason v. Dutcher, 33 X. Y. Supp. 689. 1 N. Y. Code of Civil Pro., § 531. 2 Cal. Code of Civil Pro., § 454. 3Liebmann's Sons Brewing Co. v. Cody, 21 App. jAv. 235; 47 N. Y. Supp. 669. 118 Copy Account. Demand of a copy account. A copy of an account served pursuant to demand, forms no part of the complaint in whicli the account is pleaded.* The account which an adverse party may require to be de- livered to him is an account containing items, and this includes an account stated when it contains items,' but not otherwise." The word " account " as used in the statute applies to almost every claim on contract which consists of several items and is not confined to an account stated.'' Where a party has served an account stated, he cannot be required to furnish a further account showing the transactions upon which the account stated was based. ^ § 2. Demand, how and when made. — The demand of a copy of an account pleaded generally by the adverse party should be in writing,' and where so required by the rules of court, as in New York, should b© siibscribed with the name and office ad- dress of the attorney making it,^° and indorsed with the title of the cause.^^ A copy should be made to be used with proof of service in case further proceedings should become necessary. The demand should be served upon the attorney for the adverse party ^^ sufficiently in advance of the trial to allow him the full statutory time in which to comply therewith.^' Delay in mak- ing the demand may render it ineffectual. The adverse party 4 Speis V. Michelsen, 15 Misc. 414; 36 N. Y. Supp. 619. 5 Sanchez v. Dickinson, 47 St. Eep. 203 ; Wells v. Van Aken, 39 Hun 315; Cunard v. Francklyn, 49 Hun 233; 1 N. Y. Supp. 877; 15 Civ. Pro. R. 134; Keyes v. Flint Co., 69 App. Div. 141; 74 N. Y. Supp. 483. 6 Cunard v. Francklyn, 49 Hun 233; 1 N. Y. Supp. 877. ^ Barkley v. Rensselaer & Saratoga E. R. Co., 27 Hun 515. sHoff V. Pentz, 1 Abb. N. C. 288. It is held in California, that in an action upon an account stated the defendant is not entitled to be furnished with a copy of the original accounts upon which the stated account is based. Auzerais v. Naglee, 74 Cal. 60. "N. Y. Code of Civil Pro., § 531; Cal. Code of Civil Pro., § 454. 10 Rule 2, Sup. Ct. 11 Rule 19, Sup. Ct. 12 Cal. Code of Civil Pro., § 1015; N. Y. Code of Civil Pro., § 799. 13 This will be ten days under the New York Code and five days under the California Code. Copy Accouitt. 119 Proceedings in compliance with demand. may wait until the last day of the statutory time and then serve a defective account, rendering an application for a further ac- count necessary, or he may ignore the demand, rendering it necessary to apply for an order precluding him from giving evi- dence of the account upon the trial. Then again the main ob- ject of procuring a copy of the account is to enable the party demanding it to see in advance what items are claimed so that he may he prepared tO' meet the claim upon the trial. The de- mand should be made sufficiently in advance of the trial to enable the party to make this preparation, notwithstanding the default or evasion of his adversary. § 3. Proceedings in compliance with the demand. — If the demand is properly made in a proper case the attorney upon whom it is served should comply vnth it in good faith by pre- paring and serving upon the attorney for the adverse party, within the time allowed by statute, a copy of the account pleaded.^"* In this should be specified the several items, stated with all practicable particularity as to date, amount and general character.^^ Items of payments or offsets Avith which the ad- verse party is entitled to be credited need not be stated.^^ Under the ISTew York statute, if the pleading containing the account is verified, the copy account must also 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 i*N. y._Code of Civil Pro., § 531; Cal. Code of Civil Pro., § 454. 15 Kellogg V. Paine, 8 How. 329. 18 Williams v. Shaw, 4 Abb. 209. But see Union Hardware Co. v. Flager, 8 St. Rep. 894. " N. Y. Code of Ci\al Pro., § 531. 120 Copy Accotjnt Proceedings on failure to oomply with denaand. be indorsed with the title of the cause.^° The copy account so prepared should then be served upon the attorney who has de- manded it. § 4. Proceedings on failure to comply witli the demand. — The old Code of Procedure provided that the party upon whom a demand was made for a copy of an account pleaded by him, must deliver to the adverse party within the time prescribed a copy of such account "or be precluded from giving evidence thereof." ^° The language of the present Code, though slightly changed is substantially the same. It is to the effect that if the party fails to comply with a proper demand for a copy of the account pleaded, " he is precluded from giving evidence of the account." ^^ The language of either statute is broad enough to authorize a trial court to exclude evidence of the account on an objection taken thereto and proof of a demand and a failure to comply therewith, without any formal order made in advance of the trial. But it was held tO' be the better practice under the old Code,^^ and indeed absolutely necessary ^^ for a party who intended to preclude his adversary from proving an account on the ground that he had not complied with a demand for a copy thereof, to make application to the court by motion, before the trial, for an order precluding the party in default from giving evidence of his account on the trial. And such is held to be the proper practice under the present Code of Civil Procedure ; and it is further held that it is not error to admit evidence of an account, notwithstanding a demand for a copy thereof has been 18 This is required by the general rules of practice in New York. See Rules 2, 19, Sup. Ct. 19 N. Y. Code of Procedure, § 158. This is also the language of § 454 of the California Code of Civil Procedure. 20 N. Y. Code of Civil Procedure, § 531. 21 Kellogg V. Paine, 8 How. 329. 22 Whitehall, etc., R. R. Co. v. Myers, 16 Abb. N. S. 34; Moore v. Belloni, 10 J. & S. 184. Copy Account. 121 Proceedings where defective account is served. made and disregarded, where an order excluding such evi- dence has not been secured before trial. ^^ The motion for an order excluding evidence of the account should be based upon the pleading containing the accoxmt, upon the demand and proof of service, and upon an affidavit 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 it appears on the hearing of the motion that the demand was made in a proper manner in a proper case, the motion will be granted ; but if it appears from an inspection of the pleading that no " account " is therein al- leged within the meaning of the statute the motion will be de- nied.^* The order can be granted only where there was a total failure to serve a copy account; "^ and when granted should not preclude the party from proving his cause of action, but merely from proving his account.^' § 5. Proceedings where a defective account is served. — Where a party in attempted compliance with a demand for a copy of an account has served one which is defective, he may be compelled to furnish a further account by an order made by the court, or a judge authorized to make an order in the action, on an application made for that purpose.^' The motion for an order directing a further account may be made at any time before trial, ^' though there are the same rea- sons for moving promptly in this case that dictate prompt action where no account is furnished on demand.^" The motion should 23Gebhard v. Squier, 13 Civ. Pro. R. 43; 10 St. Rep. 255; Gebhard v. Parker, 120 N. Y. 33; Bartow v. Sidway, 72 Hun 435; 25 N. Y. Supp. 179. 24 See Blake v. Harrigan, 33 St. Rep. 210; 19 Civ. Pro. R. 207; 11 N. Y. Supp. 209; Cunard v. Francklyn, 49 Hun 233; 15 Civ. Pro. R. 134; 16 St. Rep. 771. 25 SchuIthoflF V. Co-operative Dress Ass'n., 3 Civ. Pro. R. 412. 26 Fischer-Hansen v. Stierngrant, 65 App. Div. 162; 72 N. Y. Supp. 593. 27 N. Y. Code of Civil Pro., § 531; Cal. Code of Civil Pro., § 454. 28 Yates V. Bigelow, 9 How. 186. ^^Ante, p. 120. 122 Bill op Paeticulaes Nature, scope and office of the bill. 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- count 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 fol- lows a failure to deliver a copy account at the demand of the adverse party but is silent as to the penalty for a failure to de- liver a further account when ordered by the court. The court has always possessed the power to enforce obedience to its or- ders, and is never at a loss for . appropriate remedies to compel a compliance therewith. If a plaintiff refuses to obey an order of the court requiring him tO' furnish a copy of his account, the court may, as a penalty, stay his proceedings until he complies vrith the order, or may, in advance, order that his proof be ex- cluded, or may strike out his complaint and dismiss the ac- tion.='=' CHAPTEK VII. Bill of Paetictjlabs. Section^ 1. Nature, scope and office of a bill of particulars. — ' The office of a bill of particulars is to amplify a pleading and to inform a party with reasonable certainty of the nature of 30 Kellogg V. Paine, 8 How. 329. See Dwight v. Germania Life Ins. Co., 84 N. Y. 493, 506. 31 Hoff V. Pentz, 1 Abb. N. C. 288 ; Cunard v. Francklyn, 49 Hun 233. 32 Gross V. Clark, 87 N. Y. 272. Bill of Paeticulaes. 123 Nature, scope and office of the bill. the claim made by his adversary in order to prevent surprise and to enable him to intelligently meet the issue upon the trial/ The office of the bill is to amplify the 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.^ The bill of particulars is not a pleading or part of the plead- ings ; nor does it take the place of the pleading it amplifies, or set forth the cause of action, or change its nature, or enlarge it.' It is not the office of the bill to state the grounds upon which a party claims to recover ; * or to disclose the evidence relied upon to establish his claim ; ° or to disclose the name of a witness ; ° or to furnish a defendant with facts upon which to base , an af- firmative or other defense.' A bill of particulars is necessary only 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 in- definiteness and uncertainty in pleading but for want of par- i Klock V. Brennan, 35 St. Rep. 745 ; Stevens v. Webb, 12 Daly 88 ; Higen- botam V. Green, 25 Hun 214; Witkowski v. Paramore, 93 N. Y. 467; Taylor V. Security Life Ins. Co., 73 App. Div. 319, 323; 76 N. Y. Supp. 671; Dean V. Mann, 28 Conn. 352; Mason v. School District, 34 Mich. 228. 2 Matthews v. Hubbard, 47 N. Y. 228; Murray v. Mabie, 55 Hun 38; 8 N". Y. Supp. 289; Dodge v. Weill, 158 N. Y. 346. 3 Putney v. Tyng, 1 St. Rep. 760; American Broom & Brush Co. v. Ad- diekes, 19 Misc. 36; 42 N. Y. Supp. 871; Toplitz v. King Bridge Co., 20 Misc. 576; 46 N. Y. Supp. 418; Hines v. Dry Dock, B. B. & B. R. R. Co., 75 App. Div. 391. * Seaman v. Low, 4 Bosw. 337. 5 Newell V. Butler, 38 Hun 104; Passavant v. Cantor, 48 Hun 546; Higenbotam v. Green, 25 Hun 214; Ball v. Evening Post Pub. Co., 38 Hun 11; Gee v. Chase Mfg. Co., 12 Hun 630; Hayes v. St. Mary's Lodging House, 89 Hun 27; 34 N. Y. Supp. 996; Ottman v. Griffin, 58 Hun 164; Morrill v. Kazis, 8 App. Div. 304; 40 N. Y. Supp. 954. e Taylor v. Security Mut. Life Ins. Co., 73 App. Div. 319; 76 N. Y. Supp. 671; Cazaire v. Abram French Co., 91 Hun 641. 7 Drake v. Thayer, 5 Rob. 694; Case v. Pharis, 106 N. Y. 114; Bender v. Bender, 88 Hun 448 ; 34 N. Y. Supp. 876. 8 Orvis V. Dana, 1 Abb. N. C. 268, 287. 124 Bill of Paeticulaes. Actions in which the bill may be ordered. ticularity.^ A pleading may be free from indefiniteness and uncertainty and yet be so general that the opposite party cannot prepare to meet it at the trial. The common counts in assump- sit 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 pleading itself states the propositions or facts relied upon by the pleader so specifically and particularly that to require him to give further information in reference thereto would compel him to disclose the evidence which he expects to produce to support them, a bill of particu- lars is uncalled for.^^ The object of ordering a bill of par- ticulars is to enable a party reasonably to protect himself against surprise, not to impede the prosecution of the action nor un- necessarily increase its expense.^^ § 2. Actions in which a bill of particulars may be ordered. — The ISTew York 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 de- mands that a party should be apprised of the matter for which he is to be put for trial with more particularity than is re- quired by the rules of pleading and is not confined to actions upon demands for money made up of various items.^* It ex- tends to actions for torts as well as to actions on contract.^^ A oTilton V. Beecher, 59 N. Y. 176, 183. 10 Ball V. Evening Post Pub. Co., 38 Hun 11. 11 Newell V. Butler, 38 Hun 104. 12 Butler V. Mann, 9 Abb. N. C. 49. 13 N. y. Code of Civil Pro., § 531. iiTilton V. Beecher, 59 N. Y. 176; Dwight v. Germania Ins. Co., 84 N. y. 493 ; Liscombe v. Agate, 51 Hun 288 ; 4 N. Y. Supp, 167. 15 Clarke v. Ohio River R. Co., 39 W. Va. 732; W. Va. Code, Ch. 130, Bill of Paeticulaes 125 Actions in which bill may be ordered. 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/* thougli in actions of the latter class the power is somewhat re- luctantly exercised. A bill of particulars may also be granted in a proper case to recover damages for personal injuries resulting from negli- gence; ^° in an action to recover damages for false representa- tions inducing a sale ; "" in an action to recover damages for false representations concerning the plaintiff whereby he was 10 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; Bell V. Heatherton, 66 App. Div. 603; 73 N. Y. Supp. 242; Wynkoop, HoUenbeck, etc., Co. v. Albany Evening Union Co., 26 App. Div. 623; 49 N. Y. Supp. 662; Maden v. Underwriting Printing & Pub. Co., 10 Misc. 27; 30 N. Y. Supp. 1052; Stokes v. Stokes, 72 Hun 392; 25 N. Y. Supp. 405. 17 Davies v. Chapman, 2 Add. & El. 767. 18 Stevens v. Webb. 17 Week. Dig. 213; Vischer v. Conant, 4 Cow. 396. "Robinson v. Comer, 13 Hun 291; Cunard v. Francklyn, 111 N. Y. 511; Patton V. Whitney, 5 St. Rep. 845; Orden Germania v. Devender, 12 Daly 500; 6 Civ. Pro. R. 161. 20 Jones V. Piatt, 60 How. 277 ; Stiebeling v. Loekhaus, 21 Hun 457 ; Gar- dinier v. Knox, 27 Hun 500; Mason v. Clark, 75 App. Div. 460; 78 N. Y. Supp. 327; Haggerty v. Ryan, 17 Misc. 277; 40 N. Y. Supp. 384; Dent v. Ryan, 29 St. Rep. 379; 8 N. Y. Supp. 806; McCarron v. Sire, 14 Civ. Pro. ~R. 252; Turner v. Beavan, 23 Abb. N. C. 432. 21 Johnson v. Birley, 5 B. & A. 540. 22Tilton V. Beecher, 59 N. Y. 176; Shaffer v. Holm, 28 Hun 264; Woods V. Gledhill, 35 St. Rep. 597; 12 N. Y. Supp. 764. 23 People V. Nolan, 63 How. 271; 10 Abb. N. C. 471. 2*Cardwell v. Cardwell, 12 Hun 92; Hunter v. Hunter, 38 Misc. 672; 78 N. Y. Supp. 243. 25 Mueller v. Tenth and Twenty- third St. Ferry Co., 38 App. Div. 622; 56 N. Y. Supp. 310; King v. Brookfield, 72 App. Div. 483; Wilson v. Am. Steel & Copper Plate Co., 56 App. 527; Manning v. International Nav. Co., 24 App. Div. 148; 49 N. Y. Supp. 182; Cavanagh v. Metropolitan St. Ry. Co., 70 App. Div. 1 ; Myers v. Albany Ry. Co., 5 App. Div. 596 ; 39 N. Y. Supp. 446; Stillman v. Brush Electric Light Co., 92 Hun 504; 37 N. Y. Supp. 49; O'Hara v. Ehrich, 32 St. Rep. 118; Daly v. Bloomingdale, 71 App. Div. 563. 26 Williams v. Folsom, 37 St. Rep. 635; 13 N. Y. Supp. 712. 126 Bill ob' Paeticttlaes. Actions in which bill may be ordered. prevented from obtaining employment ; ^' in an action to recover damages sustained by reason of a conspiracy to withhold evi- dence in a former action ; ^* in an action to recover damages sustained by reason of a fraudulent combination and conspiracy to procure money on false vouchers ; ^^ in an action for obstruct- ing a right of way ; '" in an action to charge trustees of a savings bank with a fraudulent misappropriation of the assets of the bank ; ^^ and in an action of replevin. ^^ It will be seen from the illustrations given that the power of the court to order a bill of particulars is not dependent in any respect upon the form of the action, and that it may be exer- cised in all cases where it appears that justice requires that a more particular statement should be given to the moving party of the claim made against him than has been furnished by the pleading of his adversary. But the power is most frequently exercised in actions on contracts involving accounts. In an ac- tion brought for services and disbursements the plaintiff may properly be required to state the particular 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.^* And a bill of particulars may be ordered in an action on an account stated, where the defendant seeks to open the ac- count and assail the balance of the account as' stated, whether he admits or denies that the account was looked over and a balance struck.^^ 27 Holdsmith v. Glatz, 27 Week. Dig. 453. 28 Leigh V. Atwater, 2 Abb. N. C. 419. 29 Mayor v. Marrener, 49 How. 36. 30 Vanderzee v. Hallenbeck, 14 Civ. Pro. R. 99; 14 St. Rep. 449. ^'1 Friedburg v. Bates, 24 Hun 375. 32 Deimel v. Olney, 18 Abb. N. C. 248. 33 Gee V. Chase Mfg. Co., 12 flun 630. 34 Miller v. Kent, 23 Hun 657; 60 How. 388. ■15 Wells V. Van Aken, 39 Hun 315. Bill of Pautioulaes. 127 Defendant may be required to furnish bill. § 3. Defendant may be re4iiired to furnisli a bill of par- ticulars. — The JSTew York Code declares that the court may in any ease direct a bill of the particulars of the claim of either party to be delivered to the adverse party. ^° Under this pro- vision 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 plaintiff a bill of particulars of matter set up in the answer although he does not seek or demand therein affirmative relief. The word " claim " as used in the provision of the Code referred to 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 statute, when considered in its application to the answer of a defendant, is whatever is set up by the defendant as a reason why the action may not be maintained against him, whether the matter is set up as a bare defense or as a basis for affirmative relief. '^ But while there is no question as to the power of the court to grant a bill of particulars in either case when the facts showing the necessity for such relief to the moving party is presented, the court ordinarily will refuse to order the bill where a bare defense is set up, such as payment of the claim in suit,^* or the statute of limitations,^^ or where the answer contains only admissions and denials.*" Where an action is brought on contract and the plaintiff al- leges due performance of the contract on his part, and the an- swer of the defendant contains a general or specific denial of tJie 36 N. Y. Code of Civil Pro., § 531. 37 Dwight V. Germania Life Ins. Co., 84 N. Y. 49.3 ; Llscomb v. Agate, 51 Hun 288; 4 N. Y. Supp. 167; Orvis v. Dana, 1 Abb. N. C. 268, 281; Kelsey V. Sargent, 100 N. Y. 602. 38 Moody V. Belden, 15 N, Y. Supp. 119; Kosenstock v. Dessar, 40 App. Div. 620; 58 N. Y. Supp. 145; Barone v. O'Leary, 44 App. Div. 418; 60 N. Y. Supp. 1131. 39 Eosenstock v. Dessar, 40 App. Div. 620; 58 N. Y. Supp. 145. *o King V. Ross, 21 App. Div. 475 ; 47 N. Y. Supp. 562 ; Gray v. Shepard, 36 St. Rep. 610; 13 N. Y. Supp. 27. 128 Bill of Pakticulabs. Requiring particulars of damages claimed. allegation of due performance by the plaintiff, the defendant cannot be compelled to furnish a bill of particulars pointing out in what particular respect the plaintiff has failed to perform the contract/^ Where a complaint charges that the defendant, as agent, re- ceived money from a third person to be paid over to the plaintiff, but instead of so paying it over has converted it to his own use, and the answer admits the receipt of the money, but alleges that the defendant has paid it to or for the plaintiff at his re- quest, the defendant may be required to furnish a bill of par- ticulars of the names of the persons to whom the money was paid, and the amount and date of each payment.*^ Where a bill of particulars is demanded by the plaintiff in an action of ejectment concerning matters known to his attorney, and the apparent object of the demand is to limit the defendant in his defense, the motion will be denied.*'' There is the same authority for requiring a bill of particulars of an affirmative defense as for requiring a bill of particulars of the plaintiff's daim.** The rules applicable in the one case are equally applicable in the other. § 4. Requiring particulars of the damages claimed. — In actions of slander or libel, where the plaintiff seeks to recover both general and special damages, the defendant is entitled to a bill of particulars of the special damage but not of the general damage.*'' It is no piart of the office of a bill of particulars to state the elements which enter into the general damages which 4iStrebell v. J. H. Furber Co., 2 Misc. 450; 21 N. Y. Supp. 1032; God- dard v. Pardee Medicine Co., 52 Hun 85; 5 N. Y. Supp. 119; Bainbridge v. Friedlander, 7 Misc. 227; 27 N. Y. Supp. 261. *2 Talman v. Dorthy, 68 Hun 329 ; 22 N. Y. Supp. 888. *3 Stevens v. Webb, 12 Daly 88. a Spitz V. Heinze, 77 App. Div. 317. ttiBell V. Heatherton, 66 App. Div. 603; 73 N. Y. Supp. 242; Jacobs v. Water Overflow Preventative Co., 72 Hun 637 ; 25 N. Y. Supp. 346 ; Butter- field V. Bennett, 18 N. Y. Supp. 432. Bill of Paeticulaes. 129 Requiring particulars of damages claimed. may be recovered in sucli an action ; *' and where special dam- age is not so pleaded as to entitle the plaintiff to give evidence of it a bill of particulars of such damage is uncalled for and unnecessary.*'' The office of a bill of particulars is to amplify what is pleaded, not to supply material allegations which have been omitted.** If the pleader intends to allege general dam- ages only, sucli as injury to the reputation or to the feelings, then no more particular specification is required. But if tlie pleader intends to give evidence of particular instances of loss occasioned by the wrongful acts of the defendant, and has al- leged his special damage so as to entitle him to give proof of such loss, those instances must be specified by a bill of particu- lars, if demanded, as otherwise the party will not be permitted to give evidence of them.** If a merchant, seeking to recover damages occasioned by a libelous publication charging him with crime and dishonesty, demands $25,000 for injury to him in his business, reputation and standing in the community, and $5,000 as special damages on account of the refusal of divers persons, who had theretofore sold him goods on credit, to deal with him or deliver to him goods, including goods theretofore ordered, without payment of cash, the defendant is not entitled to a bill of particulars of the general damage, setting forth the names, residences and places of business of the individuals, firms and corporations with whom he had been doing business and with whom his business rela- tions had been injuriously affected by the libel, and the dates and circumstances of the damage to his business, reputation and standing in the community, but he is entitled to demand a bill of particulars of the special damages, giving the names and ad- ie Stokes v. Stokes, 72 Hun 372; 25 N. Y. Supp. 405. 47 Cruikshank v. Bennett, 30 Misc. 232; 62 N. Y. Supp. 118. 48 See ante, p. 122. 40 Post-Express Printing Co. v. Adams, 55 Hun 35, 37 ; 8 N. Y. Supp. 276. 130 Bill of Paeticulaes. Knowledge of the parties as affecting remedy. dresses of the persons, firms and corporations the loss of whose trade and business resulted in the damage.'^" The same principles are applicable to demands for bills of particulars in actions on contract. If the plaintiff asks nothing more than the damages necessarily arising from a breach of the contract, there is no reason for ordering a bill of particulars."^ If, however, the plaintiff in his complaint, or the defendant in his counterclaim, sets up a claim for special damages, a bill of particulars may be ordered.^^ § 5. Comparative knowledge of the parties as affecting the remedy. — Where the facts relied upon by the pleader are stated in his complaint or answer so specifically and particularly that to require him to give further information in respect thereto would force him to disclose the evidence which he expects to produce to support his case, a bill of particulars is uncalled for and will be denied.^^ The particularity with which a party should be required to inform his adversary as to the essential facts which are in con- troversy, depends upon the nature of the facts and the extent to which information may fairly be presumed to be within the cognizance of the respective parties. A party should never be required to make specifications of those matters which from their inherent character are not capable of exactitude, or which constitute evidence rather than) substantive facts, nor to proffer information which is presumably more within the knowledge of his adversary than his own.^* Where the information sought 50 Bell V. Heatherton, 66 App. Div. 603; 73 N. Y. Supp. 24-2. 51 Bolognesi v. Hirzel, 58 App. Div. 530; 69 N. Y. Supp. 534; Commer- cial Nat. Bank v. Hand, 9 App. Div. 614; 41 N. Y. Supp. 823. 52Mussinan v. Willner Wood Co., 69 App. Div. 448; 74 N. Y. Supp. 1026; Isaac V. Wiliseh, 69 Hun 339; 23 N. Y. Supp. 589; Kraft v. Dinges, 38 Hun 345; Roberts v. Safety Buggy Co., 1 App. Div. 74; 36 N. Y. Supp. 1094; Baltimore Machine Works v. McKelvey, 71 App. Div. 340; 75 N. Y. Supp. 1090. 53 Higenbotam v. Green, 25 Hun 214 ; Werner v. Franklin Nat. Bank, 40 App. Div. 485; 58 N. Y. Supp. 107. 64 Wilson V. Pearson, 13 Fed. Eep. 386. Bill of Paeticulaks. 131 ICnowledge of the parties as affecting remedy. is in the possession of the party asking it, tlaen it will be plain that the moving party is inspired by some motive other than a desire for specific details ; and if it appears in addition that the parties from vs^hom particulars are asked are not in a situation to ansv?er the demand, and do not possess the facts, a plain case is presented for the refusal of the order. °" There is no pre- sumption that the surviving guardian of infants possesses any knowledge of the acts of a deceased guardian, or that the infants possessed such knowledge, and in the absence of proof of such knowledge, a bill of particulars of the acts of the deceased guardian cannot be required of the survivor or of the infants.^'' A bill of particulars will not be ordered where the information sought lies peculiarly within the knowledge of the moving party,^^ or where the moving party has the same means of ac- quiring the desired information as the adverse party,^* or has already been furnished with the means of obtaining the informa- tion sought, either under an order for the inspection of books and papers, or "for the examination of the party pleading. '"' Mere ignorance on the part of an administrator as to whether his intestate owed a debt evidenced by a -written admission of the deceased, does not entitle him to a bill of particulars of the circumstances out of which the indebtedness arose."" Where an application for a bill of particulars is made by the defendant before answer upon the ground that it is necessary to enable him to plead, and the affidavit in support of the mo- tion, made by the defendant's attorney, states in terms tliat the 55 Wiegan v. DeJonge, 18 Hun 405. 56 Werner v. Franklin Nat. Bank, 40 App. Div. 485; 58 N. Y. Supp. 107. And see Allen v. Stead, 11 N. Y. Supp. 536. 57 Fink V. Jetter, 38 Hun 163 ; Hayes v. Davidson, 33 Hun 446 ; Hayes v. St. Mary's Lodging House, 89 Hun 27 ; 34 N. Y. Supp. 996 ; Childs v. Tut- tle, 15 Civ. Pro. R. 132; Husson v. Oppenheimer, 19 N. Y. Supp. 135. 58 Moody V. Belden, 60 Hun 582; 15 N. Y. Supp. 119; Isaac v. Wilisch, 69 Hun 339; 23 N. Y. Supp. 589. 59 Depew V. Leal, 5 Duer 663 ; Lane v. Williams, 37 Hun 388. 60 Bender v. Bender, 88 Hun 448; 34 N. Y. Supp. 876; 2 N. Y. Ann. Cas. 196. 132 Bill of Paeticulars. In actions for personal injuries. defendant has fully and fairly stated his case and that he has advised him that he has a good and substantial defense on the merits, the application will be denied for the reason that if the attorney has become possessed of facts sufficient to show a good defense to the plaintiff's cause of action, the defendant does not need a bill of particulars to enable him to plead."^ § 6. Bills of particulars in actions for personal injuries. — Where an action is brought to recover damages for personal injuries alleged to have been received, through the negligence of the defendant, and the complaint describes the injuries in general words vsdthout stating the nature of the injuries or upon what part of the body of the plaintiff they were received, a bill of particulars may be ordered requiring the plaintiff to give these details."^ So where the complaint in such action, after giving a full and complete statement of the injuries received, adds the words " some of the said injuries are permanent," without distinguishing which are temporary and which are permanent, the defendant is entitled to a bill of particulars specifying the injuries which the plaintiff declares are perma- nent.°^ And where the plaintiff, after specifying the particular injuries sustained, alleges that she " was otherwise injured to ' 61 Wolff V. Kaufman, 65 App. Div. 29; 72 N. Y. Supp. 500. See Singer V. New York Times Co., 74 App. Div. 380. But see Bowman Cycle Co. v. Dyer, 23 Misc. 620; 52 N. Y. Supp. 159. 62 Scliweit V. Metropolitan St. Ry. Co., 24 Misc. 409 ; 53 N. Y. Supp. 545. But in another ease the court held that the plaintiff, alleging that she was seriously injured, should not be compelled to specify by n bill of particu- lars, the injury complained of, its nature, location and extent. Steinau v. Metropolitan St. Ry. Co., 63 App. Div. 126. See English v. Westchester El. E. Co., 69 App. Div. 576; 75 N. Y. Supp. 45. 6 3Cavanagh v. Metropolitan St. Ry. Co., 70 App. Div. 1; 74 N. Y. Supp. 1107. A distinction seems to be made in some eases between applications for bills of particulars where injuries are claimed to be permanent and oases where there is no allegation of permanent injury. See Curtin v. Metropolitan St. Ry. Co., 65 App. Div. 610; English v. Westchester El. R. Co., 69 App. Div. 576; 75 N. Y. Supp. 45. Bill oi" Paeticulaes. 133 To enable defendant, to answer. her damage," she may be required to furnish a bill of particu- lars of the injuries not specified/* Where the complaint alleges that the accident causing the injury complained of " was due to the carelessness, negligence and want of proper care and skill on the part of the defendant, or its agents, servants^, or employees," the defendant is entitled to a bill of particulars stating the particular facts upon which the claim of negligence and want of proper care and skill is based."'^ Where the injury is alleged to have been caused by defective machinery, and the particular defect is not stated, the plaintiff may be required to specify the defect in a bill of particulars."'' And when a corporation employing many per- sons is sued for damages alleged to have been occasioned by the failure to provide competent and teiaperate employees, the plaintiff may be compelled to indicate in a bill of particulars the employees whose competency it is proposed to question on the trial." § T. Bill of particulars to enable defendant to answer. — There is a distinction between the office of a bill of particulars to enable a defendant to answer, and one required for use upon the trial. A plaintiff may be required to- furnish a bill of par- ticulars to prevent surprise upon the trial where the application would be denied if made for the purpose of enabling the de- fendant to frame his answer."^ An application for a bill of particulars will be denied when it appears that it is not made for the purpose of enabling the defendant to answer and that 64 Mueller v. Tenth and Twenty-third St. Ferry Co., 38 App. Div. 622; 56 N. Y. Supp. 310. 65 Myers v. Albany Railway, 5 App. Mv. 596; 39 N. Y. Supp. 446. c6Daly V. Bloomingdale, 71 App. Div. 563; 76 N. Y. Supp 131; Wilson V American Steel & Copper Plate Co., 56 App. Div. 527; 67 N. Y. Supp. 508. 67 Field V. N. Y. Cent. & H. R. R. R. Co., 35 Misc. Ill; 71 N. Y. Supp. 220. 68 Constable v. Hardenberg, 76 Hun 434; 27 N. Y. Supp. 1022. See Govin V. De Miranda, 87 Hun 227; 33 N. Y. Supp. 753. 134 Bill ob Paeticulaks. Application for the order. the leal object of the application is to furnish the defendant with the evidence intended by the plaintiff to be introduced upon the trial.'"' It will algo be denied where the attbrney for the defendant states in terms in his affidavit that the defendant has fully and fairly stated his case and that he has advised him that he has a good and substantial defense upon the merits/" § 8. Application for the order. — Under the practice in ^ew York 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 re- ferred.''" It should be made on the usual notice to the adverse party, and should be based upon the pleading sought to he am- plified and upon 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 im- portant that the affidavit, in connection with the pleading, should show dearly that justice demands that the moving party should be apprised with greater particularity of the claim made against him.'* The affidavit should allege a want of knowledge on the part of the moving party as to the facts in respect to which he seeks a bill of particulars.'^ It should further state that he has no means of obtaining the information sought and that the information is entirely with the adverse party."' If 09 Morrill v. Kazis, 8 App.'Div. 304; 40 N. Y. Supp. 954. 70 Wolff V. Kaufman, 65 App. Div. 29; Singer v. New York Times Co., 74 App. Div. 380. But see Bo-\vman Cycle Co. v. Dyer, 23 Misc. 620; 52 N. Y. Supp. 159. TIN. Y. Code of Civil Pro., § 531. T2 See Walter v: Walter, 4 Hun 195. "Willis V. Bailey, 19 Johns. 268; Orvis v. Dana, 1 Abb, N. C. 268. 7-1 Constable v. Hardenberg, 76 Hun 434; 27 N. Y. Supp. 1022; Sanders V. Soutter, 54 Hun 310; 7 N. Y. Supp. 549. 75 Wales Mfg. Co. v. Lazzaro, 19 Misc. 477; 43 N. Y. Supp. 1110; De Car- rillo V. Carrillo, 53 Hun 359; 6 N. Y. Supp. 305. 70Dorgan v. Scheer, 31 Misc. 801; 64 N. Y. Supp. 383; Bowman Cycle Co. v. Dyer, 23 Misc. 620; 52 N. Y. Supp. 159; Constable v. Hardenberg, 76 Hun 434, 438; 27 N. Y. Supp. 1022, 1024. Bill ob" Paeticulaes. 135 Application for the order. the application is made on behalf of a corporation by one of its officers an allegation that Jie has no knowledge or information of the matters as to which a bill of particulars is sought is insuffi- cient. The affidavit should go further and state that the moving party cannot through any of its officers, agents and servants acquire the info^rmation.'^ It is want of information on the part of the moving party that must be shown, and this want of information cannot be shown by the affidavit of the attorney for the party.'* It must appear in some manner that the party from whom the particulars are sought has information that the moving party has not.''^ The affidavit for a bill of particulars should be made by the moving party and not by his attorney merely ; and if made by the attorney, without giving any reason why it is not made by the party, it will be insufficient.'" And if the only proof of the necessity of the order is contained in the affidavit of the attor- ney for the moving party, the application will be denied '^ unless in an exceptional case. Such an exceptional case is presented where the party is incapable of making an affidavit, and the affidavit must be made by some one other than the party, as in ■'^ Bowman Cycle Co. v. Dyer, 23 Jlise. 620 ; 52 N. Y. Supp. 159 ; Villiers V. Third Ave. E. R. Co., 22' Misc. 17; 48 N. Y. Supp. 614; Wales Mfg. Co. V. Lazzare, 19 Misc. 477; 43 N. Y. Supp. 1110. 78 Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 50 St. Rep. 417; 23 Civ. Pro. R. 44; 21 N. Y. Supp. 342; 66 Hun 634; Van Olinda v. Hall, 82 Hun 357. 'sPhalen v. Roberts, 21 App. Div. 603; 47 N. Y. Supp. 780. 80 Mayer v. Mayer, 29 App. Div. 393; 51 N. Y. Supp. 1079; Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 50 St. Rep. 417; 21 N. Y. Supp. 342; Gridley v. Gridley, 7 Civ. Pro.R. 215; Van Olinda v. Hall, 82 Hun 357; 31 N. .Y. Supp. 495; Blake v. Harrigan, 11 N. Y. Supp. 209; 33 St. Rep. 210; Cohn v. Baldwin, 74 Hun 346; 26 N. Y. Supp. 457; Hoeninghaus v. Chaleyer, 22 St. Rep. 528; Webster v. Fitchburg R. R. Co., 32 Misc. 442; 66 N". Y. Supp. 220. 81 Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., 21 N. Y. Supp. 342 ; Gallerstein v. Manhattan E. Co., 27 Misc. 506 ; 58 N. Y. Supp. 374; Groff v. Hagan, 13 Misc. 322; 34 N. Y. Supp. 462; Mori v. Pearsall, 14 Misc. 251; 35 N. Y. SUpp. 829; Stevens v. Smith, 38 App.' Div. 119; 56 App. Div. 540. 136 Bill of Pabtioulaes. Application for the order. the case of a corporation.^^ Another exception has been made in case of an application for a bill of particulars to enable the defendant to answer, where the affidavit showing the necessity for such relief, if made by the defendant, would necessarily be founded mainly upon the judgment and advice of the attorney/^ In rare cases the court may grant a bill of particulars upon an inspection of the pleadings only where the complaint is gen- eral in its allegations, and the answer, verified by the defendant, denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations of the complaint.** An application for a bill of particulars, if based upon the ground that it is necessary for the defense of the case, is pre- mature if made before answer.*"* Except upon facts showing necessity therefor it is not usual to require a plaintiff to furnish a bill of particulars before joinder of issue. *° But delay in moving for a bill of particulars may operate to the prejudice of the moving party. *^ 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.*^ But under the present practice the fact that the motion is de- ferred until after the service of the answer is not necessarily an objection ; *^ while an application before answer may be de- nied as premature unless the object of the motion is to obtain 82 Field V. N. Y. Cent. & H. R. E. E. Co., 35 Misc. Ill; 71 N. Y. Supp. 220. S3 Sanders v. Soutter, 54 Hun 310; 7 N. Y. Supp. 549. 84 Badger v. Gilroy, 21 Misc. 466; 47 N. Y. Supp. 669. 86 American Credit Indemnity Co. v. Bondy, 17 App. Div. 328 ; 45 N. Y. Supp. 1133; Watertown Paper Co. v. West, 3 App. Div. 451; 38 N. Y. Supp. 229 ; Saalfield v. Cutting, 25 Misc. 661 ; 56 N. Y. Supp. 343. so Davidow v. Auerbach, 15 App. Div. 424; 44 N. Y. Supp. 461. sTVanderzee v. Hallenbeck, 14 St. Rep. 447; 14 Civ. Pro. R. 99; De Carrillo v. Carrillo, 53 Hun 359, 361. ss Andrews v. Cleveland, 3 Wend. 43. 80 Justum V. Bricklayers' Union, 78 Hun 503; 29 N. Y. Supp, 621. Bill of Paeticulaes. 137 Application for the order. information necessary to enable the defendant to plead. The fact that a motion has been made and denied before answer af- fords no ground for the denial of a similar motion after an- swer.'" After the issues have been referred and the trial com- menced before the referee it will be too late to move for a bill of particulars."^ The motion for a bill of particulars may be opposed upon the ground that the pleading is sufficiently specific in its allega- tions ; or that the particulars sought are presumably within the knowledge of the moving party ; or that he has the means of in- forming himself in respect thereto ; or that, for any other reason, a bill of particulars is unnecessary. It may be opposed also upon the ground that the application is premature ; or that the moving party has been guilty of laches in making it or in bring- ing it to a hearing; though when that objection is taken the laches of the one party may be offset against the laches of the other. °^ But the merits of the case cannot be inquired into on the motion.'^ Whether a bill of particulars shall be ordered, and what shall be the scope of the bill, if ordered, is a matter resting in the sound discretion of the court of original jurisdiction, to be de- termined by the particular facts of each particular case."* If the application is made before answering and the defend- ant 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 an application for an extension of time to an- swer, and obtain this further relief in case his application is 90 Govin V. De Miranda, 87 Hun 227 ; 33 N. Y. Supp. 754. siCadwell v. Goodnough, 28 How. 479; 2 Rob. 706; 3 Rob. 633. 92Winehell v. Martin, 14 Week. Dig. 458; Govin v. De Miranda, 87 Hun 227. 93 Matthews v. Hubbard, 47 N. Y. 428. 9* Spencer v. Fort Orange Paper Ck)., 74 App. Div. 74; 77 N. Y. Supp. 251; Witkowski v. Paramore, 93 N. Y. 467; Passavant v. Cantor, 48 Hun 546; Van Olinda v. Hall, 82 Hun 357; 31 N. Y. Supp. 495; Keteltas v. Gilmour, 10 Miac. 788 ; 33 N. Y. Supp. 1064. 138 Bill of Paeticulaes. Form and contents of the order. granted."'^ So he may ask in Ms notice of motion, in connec- tion with his application for a bill of particulars, that the complaint be made more definite and certain, and the latter relief may be granted although the application for a bill of particulars may be denied. "^ A motion for a bill of particulars of the matters alleged in a complaint may be defeated by the service of an amended com- plaint within the time limited therefor and before the hearing of the motion, if served in good faith, as the amended complaint supersedes the original and deprives the motion of the basis on which it rested.'" § 9. Form and contents of the order. — The order for a bill of particulars should specify the several matters as to which fuller details are required. The scope of the order, subject to the settled rules of practice of the court, will ordinarily be a matter resting in the discretion of the court in view of the cir- cumstances surrounding each particular case. It is the usual pracitice 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 the copy of the order. There is no authority for the insertion in the order of a pro- vision that in default of the service of a bill of particulars the party upon whom it is served will be precluded from giving evidence at the trial in support of his pleading.'* The order should require that the bill of particulars be verified whenever the pleading to be amplified is verified, unless in an exceptional case."" If the pleading is unverified the order should direct S6 Piatt V. Townsend, 3 Abb. 9 ; 5 Duer 668. 96 Saalfield v. Cutting, 25 Misc. 662; 56 N. Y. Supp. 343. ST Callahan v. Oilman, 11 App. Div. 522; 42 N. Y. Supp. 497. 08 Mason v. Clark, 75 App. Div. 460; 78 N. Y. Supp. 327. 99 Manning v. Benedict, 31 App. Div. 51; 52 N. Y. Supp. 530. Bill of Pakticulaes. 139 Form of bill — Proceedings on disregard of order. the service of an unverified bill of particulars.^"" A bill of particulars need not be verified unless so directed by tbe court/"^ § 10. Form and contents of the bill of particulars. — Wbere a bill of particulars has been ordered the party upon whom the order is served has his election either to comply with the order and serve the bill, or to appeal from the order, or to disregard it and accept the penalty imposed in case of disobedience. If he elects to comply with the order he should prepare a bill in siibstantial compliance with the terms of the order and serve it upon the moving party within the time limited. If the party is unable to furnish all the particulars required by the order he should state that fact in his bill of particulars, serve the bill and then apply to the court for such modification of the order as to the court might seem just.^°' The bill served should be verified if verification is required by the order or the practice of the court."^ § 11. Proceedings where no bill is furnished. — ^Vhere an order has been made and served requiring a plaintiff to furnish a bill of particulars of his claim, and the order is wholly disre- garded, the court has the power, on a proper application, to stay the proceedings of the plaintiff until he complies with the order, or to order in advance of the trial that proof of the claim be excluded, or to strike out the complaint.^"* So where a defendant has been ordered to serve a bill of par- ticulars of a counterclaim set up in his answer and has refused to obey the order, the plaintiff may move for and obtain an 100 Brauer v. Oceanic Steam Navigation Co., 26 App. Div. 623; 49 N. Y. Supp. 937. 101 Shankland v. Bartlett, 15 Civ. Pro. R. 24, 26. But see Withers v. Toulmin, 13 Civ. Pro. R. 1. 102 Cruikshank v. Cruikshank, 30 App. Div. 381. 103 See Manning v. Benedict, 31 App. Div. 51-; Brauer v. Oceanic Steam Nav. Co., 26 App. Div. 623; 49 N. Y. Supp. 937; Shankland v. Bartlett, 15 Civ. Pro. E. 24, 26; Withers v. Toulmin, 13 Civ. Pro. R. 1. 104 Gross V. Clark, 87 N. Y. 272. 140 Bill of Paeticulaes. Defective or evasive bill. order precluding the defendant from giving evidence at the trial of such counterclaim/"" or he may move for an order strik- ing out so mxioh of the answer as contains the counterclaim.^"" If the answer consists of an affirmative defense, a counterclaim and a general denial, and the defendant has been ordered to furnish a bill of particulars of his defense and eoimterclaim, an order to strike out the entire answer for disobedience of the order is improper. The defendant should be allowed the bene- fit of his general denial notwithstanding his default.^"^ § 12. Proceedings where a defective or evasive bill is fur- nished. — Where a party has been ordered to furnish a bill of particulars and has attempted to comply with the order, the ad- verse 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 the sufficiency of the bill.^"^ If the moving party retains the bill without objec- tion for an unreasonable time, such retention vsdll be deemed an admission that it complies with the order requiring the service of a bill of particulars.^"" The application for a further bill of particulars should be made to the court on the usual notice, and should be based on the original pleading, the prior order for a bill of particulars, and the bill served under such order. If any affidavit is neces- sary to present the facts to the court it may be made by the at- torney for the moving party. ^^" Upon such application the court may make an order directing the service of a further bill of particulars, specifying the particulars required, and on fail- ure of the party to comply with this order the same proceedings 105 RaflF V. Koster, Bial & Co., 37 App. Div. 534; 56 N. Y. Supp. 292. 106 Wilson v. Fowler, 44 Hun 89. 107 Kaflf V. Ko3ter, Bial & Co., 37 App. Div. 534. 108 Barnes v. Henshavf, 21 Wend. 426 ; Whitehall, etc., K. R. Co. v. Myers, 16 Abb. N. S. 34. lOoMcCourt v. Cowperthwait, 31 Misc. 802; 63 N. Y. Supp. 240. 110 Ward v. Littlejohn, 25 St. Rep. 340. Bill of Paeticulaes. 141 Amendment of bill — Effect of bill. may be had as on a failure to serve any bill under the original order. § 13. Amendment of the bill. — Where a defendant has been allowed to amend his answer on the trial the plaintiff may be allowed to amend his bill of particulars also/^^ and where there is no possibility of surprise the court may allow the amend- ment 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 payments or offsets which he has voluntarily cred- ited, and by mistake has presented the matter in such manner as to imperil his right or 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. ^^' § 14. Effect of a bill of particulars.— The effect of a bill of particulars is to restrict the proofs of the party serving it to the matters specified, and to limit the recovery thereto.^" But the bill of particulars like the pleading it amplifies is entitled to a reasonable construction. If a plaintiff in an action for profes- sional services has furnished a bill of particulars specifying the nature of his services, the dates between which they were ren- dered, and the amount claimed, his proof will be restricted 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.^^° In an action brought to recover compensa- tion for services alleged to have been rendered by the plaintiff for the defendant with reference to the purchase of land by the "iMelvln V. Wood, 3 Keyea 533; 4 Abb. N. S. 438. 112 Parsons v. Sutton, 66 N. Y. 92. 113 Case V. Pharis, 106 N. Y. 114. 114 Matthews v. Hubbard, 47 N. Y. 428. 110 Robinson v. Weil, 45 .N. Y. 810. 142 Bill of Paeticulabs. * Effect of bill. latter where the answer sets up a general denial and payment and a bill of particulars has been furnished of the services for which the plaintiff seeks to recover, evidence of services rendered by the plaintiff for the defendant in the purchase of land, though not mentioned in the bill of particulars, may be received, not for the purpose of establishing a right to recover for services out- side of the bill, but as bearing upon the probabilities of the ex- istence of the contract of employment alleged in the complaint."" The fact that a bill of particulars has been furnished will not exclude proof of matters, not embraced or intended to be em- braced in the bill which are within the issues made by the plead- • 117 mgs. Although a plaintiff, after delivering a bill o'f 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 entitled to recover all that appears due to him.^^^ Ajid where on the trial of an action the plaintiff is allowed to amend his complaint to conform to the proof, a bill of particulars previous- ly served by the plaintiff ceases to limit the recovery.^^' Slight variances between the bill of particulars and the evi- dence will not be regarded. Variances are immaterial unless they are calculated to mislead.^^" A variance of a year be- tween the evidence given on tlie trial and the statement in the bill of particulars as to the time of a sale, 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.^^^ 116 Dodge V. Weill, 158 N. Y. 346. 117 See Wait v. Borne, 123 N. Y. 592. 118 Williams v. Allen, 7 Cow. 314. 118 Moore v. King, 57 Hun 224; 10 N. Y. Supp. 651. i2oMcN"air v. Gilbert, 3 Wend. 344; Smith v. Hicks, 5 Wend. 48. 121 Duncan v. Ray, 19 Wend. 530. 122 Chadbourne v. Delaware, Lackawanna, etc., R. R. Co., 6 Daly 215; Colrick V. Swinburne, 105 N. Y. 503. The Complaint ok Petition. 143 General requisites. ' CHAPTER VIII. The Complaint or Petition. Section 1. General requisites of a complaint or petition. — The first pleading on the part of the plaintiff is termed, under the majority of the Codes or Practice Acts-, the complaint,^ and under the others, the petition.^ But under whatever name the pleading may be called in the different jurisdictions, the statu- tory requisites are essentially the same, and are to the general effect that the pleading shall contain the title of the cause; a plain and concise statement of the facts constituting the cause of action; and a demand for the relief sought." In New York the complaint must contain : 1. 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. 2. A plain and concise statement of the facts constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled.* In California the complaint must contain : 1. The title of the action, the name of the court and county 1 This is the statutory name of the first pleading on the part of the plaintiff in New York, North Carolina, South Carolina, Connecticut, In- diana, Wisconsin, Minnesota, California, Oregon, Nevada, Colorado, Wash- ington, North Dakota, South Dakota, Idaho, Montana, Utah and Arizona. 2 So called in Iowa, Kansas, Kentucky, Missouri, Nebraska, Ohio, Okla- homa, Wyoming, Georgia, New Mexico. 3 The phraseology differs slightly in different States, but the order and substance are the same. 4N. Y. Code of Civil Pro., § 481. 144 The Complaint ob Petition. Title of the action. in which the action is brought, and the names of the parties to the action; 2. A statement of the facta constituting the cause of action, in ordinary and concise language; 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.^ In some of the States in which the first pleading on the part of the plaintiff is termed a petition, the word " petition " must foUow the names of the parties.* But the omission of this word is a mere formal defect and constitutes no ground for dis- missal.' § 2. The title of the action. — In addition to the name of the court in which the action is brought, and, when necessary, the name of the county designated as the place of trial,* the title of the complaint must contain the names of all the parties to the action, whether plaintiff or defendant.' The law recognizes but one Christian name,^" and therefore the omission of the middle name of a party is of no conse- quence.^^ If a defendant is known by one name as well as an- other, he may be sued under either name," and, of course, may be designated in the caption of the complaint by the name used in the title of the summons. A party may sue under tiie name t Cal. Code of Civil Pro., § 426. e This is required in Iowa, Kansas, Kentucky, Nebraska and Ohio. ^ Smith v. Watson, 28 Iowa 218. 8 See preceding section. 9 N. Y. Code of Civil Pro., § 481 ; Cal. Code of Civil Pro., § 426 ; Eev. Stat. Indiana, § 338. 10 Van Voorhis v. Budd, 39 Barb. 479 ; Franklin v. Talmadge, 5 Johns. 84; Roosevelf v. Gardiner, 2 Cow. 463; Milk v. Christie, 1 Hill 102; Weber V. Fowler, 11 How. 458; Clute v. Emmerich, 26 Hun 10; Mahaney v. Mu- tual Reserve Ass'n., 69 Hun 12, 16; Kortz v. Canvassers of Greene, 12 Abb. N. C. 84; Choen v. State, 52 Ind. 347. 11 Clute V. Emmerich, 26 Hun 10. i2Eagleston v. Son, 5 Rob. 640; Isaacs v. Mintz, 12 N. Y. Supp. 276; 34 St. Hep. 758. The CoMPLAiiirT oe Petition. 145 Title of the action. by which he is commoiily known even though that may not be his true name.^^ A divorced woman may sue in her maiden name.^* And the fact that a corporation plaintiff has misnamed itseK is a mere formal error which is amendable on motion/"* The use of initials in place of the full Christian name is not a compliance with the statutory requirement that the names of the parties shall be stated in the title of the complaint or peti- tion.^" And a complaint is bad which does not give the Chris- tian name of the plaintiff unless such name is supplied by other pleadings in the action.^' A person may have an initial as a name.^^ When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.^" The use of a fictitious name is allowable only when the plaintiff is ignorant of the true name of the defendant,^" and when a fictitious name is used in the complaint there should be a distinct allegation that the defend- ant 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 VTife of the defendant. But an error of this character may be cured by amendment. ^^ If the plaintiff assumes to state the surname of 13 Cooper v.- Burr, 45 Barb. 9. 14 Ricli V. Mayer, 26 St. Rep. 107 ; 7 N. Y. Supp. 69. 15 Empire State Savings Bank v. Beard, 81 Hun 184; 30 N. Y. Supp. 756. 18 Bascom v. Toner, 5 Ind. App. 229. IT Cooper V. Griffin, 13 Ind. App. 212. 18 Lynch v. Tomlinson, Daily Reg., Oct. 30. 1883. i»Cal. Code of Civil Procedure, § 474; N. Y. Code of Civil Pro., § 451. 20 Crandall v. Beach, 7 How. 271. 21 Gardner v. Kraft, 52 How. 499. 22 Weil V. Martin, 24 Hun 645. See Von Hatten v. Soholl, 1 App. Div. 32; 36N. Y. Supp. 771. 146 The Complaint oe Petition. Title of the action. the defendant, alleging that the defendant's Christian name is unknown and that the name used is fictitious, he must stand or fall by the surname stated in case the defendant makes default^* Where a party sues or is sued in a representative capacity the title in the complaint should clearly indicate that fact by the addition to the name of the party of words indicating his repre- sentative character, as, for example, John Doe as executor of the last will and testament of Richard Eoe, deceased. The repre- sentative capacity is properly indicated in the title of the com- plaint by the insertion of the word " as " between the words showing the representative character and the name of the party as in the illustration given. The mere addition to the name of a 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 descrip- tion of the person. ^^ But if the complaint shows by appropriate averments that the action is brought by or against a person in a representative capacity, the defect in the title will be cured.^' So where the whole body of the complaint shows a cause of action in favor of the plaintiff, not in his representative but in his individual capacity, the descriptive words in the title may be rejected, leaving the action to stand as one in the individual capacity of the plaintiff.^* So where the defendant is described in the title of the complaint by his name with an official title added, if the cause of action alleged is personal against him the added title may be disregarded notwithstanding the insertion 23 People V. Dunn, 27 Misc. 71; Gannon v. Myars, 11 Civ. Pro. E. 187. 2* Root V. Price, 22 How. 372; Butterfield v. MeOmber, 22 How. 150; Hallett V. narrower, 33 Barb. 537; Merritt v. Seaman, 6 N. Y. 168; Pfeiffer v. Rheinfrank, 2 App. Div. 574; 37 N. Y. Supp. 1076; United Press V. Abell Co., 73 App. Div. 240; Bennett v. Whitney, 94 N. Y. 302. 25 Beers v. Shannon, 73 N. Y. 292 ; Stilwell v. Carpenter, 62 N. Y. 639 ; 2 Abb. N. C. 238. 26 Litchfield v. Flint, 104 N. Y. 543 ; Wiek v. Jewett, 9 St. Rep. 477 ; Murray v. Church, 1 Hun 49; 58 N. Y. 621. The Complaint oe Petition. 147 Title of the action. of the word " as " between the added title and the name of the defendant.^'' It will be seen from an examination of the reported cases bearing upon the questions above considered, that they are mainly divisible into two classes, in one of which a cause of ac- tion was upon a right accruing to the plaintiff or existing against a defendant in a representative character which was imperfectly expressed in the title of the action, and in the other class were the cases where there was an unnecessary addition of a repre- sentative title to the name of the party, when in fact the cause of action was upon an individual right or obligation. In these cases it has been held that the title and the rest of the pleading may be considered together to ascertain the true nature of the action, and that the action will be treated as brought in an individual or in a representative character as determined from an inspection of the entire pleading.^* Where the complaint states a cause of action in favor of an infant the title should show that the action is brought by the infant by its guardian ad litem; but if, by inadvertence, the order is reversed, and the action, from the title of the' complaint, appears to be brought by the guardian, as such, the defect may be disregarded in the absence of any objection thereto, or may be cured by a mere formal amendment if objection is taken. ^^ If the plaintiffs improperly style themselves in the title of the complaint as " executors " instead of as " trustees," and their proper representative character appears in the body of the com- plaint, the erroneous description in the title is immaterial.^" 27 Berford v. Barnes, 45 Hun 253 ; Albany Brewing Co. v. Barekley, 42 App. Div. 335; 59 N. Y. Supp. 65. 28 See First National Bank v. Shuler, 153 N. Y. 163; Stilwell v. Carpen- ter, 2 Abb. N. C. 238; 62 N. Y. 639; Beers v. Shannon, 73 N. Y. 292; Litch- field v. Mint, 104 N. Y. 543; Jennings v. Wright, 54 Ga. 537; Waldsmith V. Waldsmith, 2 Ohio 156; Pennock v. Gilleland, 1 Pitts. Pa. 37. 29 Spooner v. Delaware; Lackawanna & Western R. R. Co., 115 N. Y. 22. 30 Knox V. Metropolitan El. Ry. Co., 58 Hun 517 ; 12 N. Y. Supp. 848. 148 The Complaint oe Petition. Statement of cause of action. § 3. General rules governing the statement of the cause of action. — A oomplaint must contain a plain and concise statement of each cause of action, without unnecessary repitition.'^ It must state facts as distinguished from mere conclusions of law/^ and as distinguished from the circumstances which are mere evidence of the facts.^^ Every fact material to the cause of action intended to be set up should he pleaded.'* If two or more causes of action are set forth in the complaint the statement, of the facts constituting each 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 proofs, several causes of action arising out of the same transaction may be stated in separate counts.^'' If but a single cause of action is pleaded the several paragraphs by which the cause of action is started should not be numbered, as that practice serves no useful purpose and often tends to confuse and mis- lead.-^ § 4. What constitutes a single cause of action. — There is no rule of law and no 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 upon each; a party upon whose person or property successive distinct trespasses have been committed may bring a separate suit for every trespass; and all demands, of whatever nature, arising out of separate and distinct transactions may be sued 31 N. Y. Code of Civil Pro., § 481 ; Cal. Code of Civil Pro., § 426. siAnte, p. 37. ssAnte, p. 35. s*Ante, p. 35. ^5 Ante, p. 75; Ohio Code, § 86. 36Amte, p. 79. S7 Ante, p. 55. asWaite v. Sabel, 44 App. Div. 634; 62 N. Y. Supp. 419. The Complaint oe Petition. 149 What constitutes a single cause of action. "upon separately. It makes no difference that the causes of ac- tion might be united in a single suit ; the right of the party in whose favor they exist to separate suits is not affected by that circumstance, except, that in proper cases, for the prevention of vexation and oppression, the court will enforce a consolidation of the actions.'" It is not always easy to determine whether separate items of claim constitute a single or separate cause of action. The true distinction between demands or rights of action which are single and entire and those which are several and distinct, is that the former immediately arise out of one and the same contract, and the latter out of different acts or contracts.^" In the case of torts, each trespass, or conversion, or fraud, gives a right of action and but a single one, however numerous the items of wrong or damage may be ; *^ and in respect to contracts, express or implied, each contract affords one, and only one, cause of action. ^^ The case of a contract containing several stipulations to be performed at different times is no exception. Although an action may be maintained on each stipulation as it is broken before the time for the performance of the others the ground of action is the stipulation which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, where money has been lent or paid for the use of a party at different times, or several items of claim spring in any way from contract, whether one only or separate rights of action exist will in each ease depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods or perform work or advance money; and usually in the case of a running account it may be fairly implied that 39Seeor v. Sturgis, 16 N. Y. 548; Nathans v. Hope, 77 N. Y. 420; Zim- merman V. Erhard, 83 N. Y. 74, 78 ; Perry v. Dickerson, 85 N. Y. 345, 350. «(>Secor V. Sturgis, 16 N. Y. 548; Byrnes v. Byrnes, 102 N. Y. 4. *i Secor V. Sturgis, 16 N. Y. 548. 42Secor V. Sturgis, 16 K. Y. 548; O'Beirne v. Lloyd, 43 N. Y. 248; MuV ford V. Hodges, 10 Hun 79. 150 The Complaiitt oe Petition. What constitutes a single cause of action. it is in pursuance of an agreement that an account may be opened and continued either for a definite period or at the pleasure of one or both parties. But there must be either an express contract, or the circumstances must be such as to raise an im- plied contract embracing all the items, io make them, when they arise at different times, a single or entire demand or cause ,_of-.action.*^ ' Where goods are sold and delivered at different times and on the same terms of credit, the different sales do not constitute one entire and indivisible demand, and the vendor can bring separate actions for each separate sale, or for all of them I together as he pleases.^* The holder of several past due promis- sory notes against the same parties may bring separate actions upon each, although they were all given upon the settlement of one and the same demand.*^ Where there are three separate contracts for the sale of mer- chandise, each relating to goods of the same identical kind, quality and value, they cannot be grouped together as a single cause of action.*^ A complaint may state but a single cause of action, although, several distinct items of relief are demanded.^' A complaint which seeks to reform a mortgage and to enforce it as reformed, states but a single cause of action.''^ A complaint alleging in one count a cause of action for loss of services of a servant by reason of seduction by the defendant, and in another count a cause of action to set aside a release of the first cause of action for fraud in obtaining it, in reality states but a single cause of action for the loss of services, the second count being properly matter in avoidance of the release if pleaded as a defense.*" 43 Secor V. Sturgis, 16 N. Y. 548. 44 Zimmerman v. Erhard, 83 N. Y. 74; Staples v. Goodrich, 21 Barb. 317. 45 Nathans v. Hope, 77 N. Y. 420. 46 Egan & Co. v. Butterworth, 66 App. Div. 480; 73 N. Y. Supp. 301. 47 Lewis V. Howe, 64 App. Div. 44; 71 N. Y. Supp. 704. 48 Hutchinson v. Ainsworth, 73 Cal. 452. 49 Jackson v. Brown, 74 Hun 25; 26 N. Y. Supp. 156. The Complaint oe Petition. 151 Single cause of action cannot be divided. § 5. A single cause of action cannot be divided. — An entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits.'*" If several suits are brought for different parts of such claim the pendency of the first may be pleaded in abatement of the other, and a judgment upon the merits in either will be available as a bar in other suits.^^ This principle is applied to prevent vexatious litigation. A suit and judgment for a part of an entire de- mand and a payment of the judgment do not actually satisfy the demand; but the policy of the law is to compel a party to litigate an entire demand in a single action, and if he splits it up by suing for part, he cannot subject the party thus sued to further expense and litigation as to the other part, and the whole demand is treated as merged in the first judgment.^^ But this rule does not require that distinct causes of action, each of which would authorize, by itself, independent relief, shall be presented in a single suit, although they exist at the same time and might be presented together.^^ The bare fact that 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. A claim by an employee for wages earned, and a claim of damages for a wrongful dismissal constitute two separate and distinct causes of action, and a suit and judgment upon one of them is not a bar to a suit upon the other.^* Where several claims, payable at different times, arise out of the same 50 Green v. Von der Ahe, 36 Mo. App. 394; Evans v. Collier, 79 Ga. 319; Wichita & W. R. Co. v. Beebe, 39 Kans. 465; Tootle v. Wells, 39 Kans. 452; Pierro v. St. Paul & N. P. R. Co., 39 Miim. 451; Seeor v. Sturgis, 16 N. Y. 548; O'Brien v. Mayor, 28 Hun 250; Jex v. Jacob, 19 Hun 105; Phillips v. Berick, 16 Johns. 136. 51 Secor V. Sturgis, 16 N. Y. 548 ; O'Brien v. Mayor, 28 Hun 250 ; Fox v. Phyfe, 36 Misc. 207; 73 N. Y. Supp. 149. 52 O'Dougherty v. Remington Paper Co., 81 N. Y. 496, 499, 500. 53 Stark V. Starr, 94 U. S. 477; Seeor v. Sturgis, 16 N. Y. 548; Fox v. Phyfe, 36 Misc. 207; 73 N. Y. Supp. 149; Byrnes v. Byrnes, 102 N. Y. 4; Nathans v. Hope, 77 N. Y. 420. 5* Perry v. Dickerson, 85 N. Y. 345. 152 The Complaint ok Petition. Joinder of causes of action. contract or transaction, separate actions may be brought as each liability inures; but if no action is brought until more than one is due, a recovery in the one first brought will be an effectual bar to a second action brought to recover other claims that were due when the first was brought."" A covenant in a lease to keep the buildings and fences on the leased premises in repair, and another covenant in the same instrument to build a specified amount of fence, are as distinct as though contained in separate contracts, and a recovery for a breach of the one will not bar an action upon the other. "^ § 6. Provisions of the Code as to joinder of causes of action. — While there is not absolute uniformity in the provisions of the Codes of the various States as to the causes of action which may be joined in the same complaint or petition, there is a noticeable simikrity due to the fact that section 167 of the ISTew York Code of Procedure of 1848, sometimes termed the Old Code, was substantially followed in the Codes enacted in other States."^ The order in which the classes of action are stated is not the same in all the States, as the class of actions first mentioned in one statute may be the last in another, but this is an immaterial variance. The distinctive features of the several Codes will be noticed either in the text or notes, or the provision of the statute will be given in full or in sub- stance. The New York Code of Procedure provided as follows : The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore 65 Reformed Protestant Dutch Church v. Brown, 54 Barb. 191 ; Lorillard V. Clyde, 122 N. Y. 41 ; O'Beirne v. Lloyd, 43 N. Y. 248. 00 Mcintosh v. Lown, 49 Barb. 550. 57 See Ohio Code, §§ 80, 81; Rev. Stat. 1880, § 5019; Wisconsin Rev. Stat., 1878, § 2647; Minnesota Stat., Ch. 66, § 118; Kansas Code of Civil Pro., § 83; Comp. Laws, 1885, § 3882; Nebraska Code of Civil Pro., §§ 87, 88; Comp. Stat., 1881, p. 542; North Carolina Code of Civil Pro., § 128; Code of 1883, § 276; South Carolina Code, § 190; Rev. Stat., 1873, p. 609. The Complaint ob Petition. 153 Joinder of causes of action. denominated legal or equitable, or both,^* wbere they all arise out of, 1. The same transaction, or transactions connected with the same subject of action ; °° or 2. Contract, express or implied ; *" or 3. Injuries, with or without force, to person or property, or either; ^^ or 4. Injuries to character ; ®^ or 5. Claims to recover real property, with or without dam- ages for the withholding thereof, and the rents and profits of the same ; °' or 6. Claims to recover personal property, with or without damages for the withholding thereof;^* or 7. Claims against a trustee, by virtue of contract or by opera- tion of law.°^ But the causes of action so united must all belong to one of B8 This provision is not found in the corresponding statutes of Kentucky, Arkansas, Nevada, Oregon, Iowa and California, though in the latter State legal and equitable claims may be united. See Eastman v. Turman, 24 Cal. 379; Gray v. Dougherty, 25 Cal. 266; More v. Massini, 32 Cal. 590. 59 Subdivision 9 of Section 484 of the New York Code of Civil Procedure. Omitted from the Codes of Arkansas, Oregon, Arizona, California, Colorado, Montana, Nevada, Utah, Washington, Indiana, Iowa and Kentucky. The Connecticut statute places this subdivision last. 80 Subdivision 1 of Section 484 of the New York Code of Civil Procedure. Not found in the Arizona statute. In Colorado all actions for damages, whether upon contracts or for injuries to property, person or character, may be joined. Colo. Code of Civil Pro., 1883, § 73. 81 Injuries to the person and injuries to property are placed in separate classes in Indiana, California, Idaho, Utah, Montana and Oregon, and now in New York. 82 In California and Nevada, injuries to character are made a separate class, but it is allowable to join an action for malicious arrest and prose- cution, or either of them, with an action for either an injury to character or the person. 83 This is class first under the Colorado Code. 64 This is class second under the Colorado Code. 85 In Missouri and Connecticut there is also embraced claims by or against a party in a representative capacity. 154: The Complaint ok Petition. Joinder of ca,uses of action. these classes, must affect all the parties to the action, and not require different places of trial, and must be separately stated."" In Indiana it is provided as follows: The plaintiff may unite several causes of action in the same complaint vsrhen they are included in either one of the following classes : 1. Money demands on contract. 2. Injuries to property. 3. Injuries to person or character. 4. Claims to recover possession of personal property, with or without damages for the withholding thereof, and for injuries to the property withheld. 5. Claims to recover possession of real property, with or without damages for with- holding thereof, and rents and profits of the same; to make partition thereof, and to quiet the title to real property. 6. Claims to enforce the specific performance of contracts and to avoid contracts for fraud or mistake. 7. Claims to foreclose mortgages; to enforce or discharge specific liens; to subject to sale real property upon demands against decedent's estates, when such property has passed to heirs, devisees or their assigns; to marshal assets and to substitute one person to the right of an- other; and all other causes of action arising out of a contract or duty and not falling within either of the foregoing classes. But causes of action so joined must affect all the parties to the action, and riot require different places of trial, and must be separately stated and numbered." In Iowa it is provided as follows: Causes of action of whatever kind, when each may be prosecuted by the same kind of proceedings, provided they be by the same party, and against the same party, in the same right, and if suit on all may be brought and tried in the same county, may be joined in the same petition; but the court, to prevent confusion tlierein, may direct all or any portion of the issues joined therein to be tried separately, and may determine the order thereof."* The Ari- 66 N. Y. Code of Proc, § 167. 67 Eev. Stat., 1881, § 278. 68 Iowa Rev. Stat. (McCflaine's Ed.), § 3836; Iowa Code, § 2630. The Complaint oe Petition. 155 Joinder of causes of action. zona Code merely provides that the complaint may contain several different causes of action.^" Under the present statutes of New York the plaintiff may unite in the same complaint, two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows : 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal con- versation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or deten" tion thereof. 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or trans- actions connected with the same subject of action, and not included within one of the foregoing subdivisions. 10. For penalties incurred under the fisheries, game and forest law. But it must ap'pear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions^ that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the action^ and it must appear upon the face of the complaint, that they do not require different places of trial.'" In California the plaintiff may unite several causes of action in the same complaint where they all arise out of : 1. Contracts, express or implied; 2. Claims to recover specific real property with or without 69 Rev. Stat., § 659. '0 N. Y. Code of Civil Pro., § 484. 156 The Complaint oe Petition. Claims arising out of the same transaction. damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same ; 3. Claims to recover specific personal property, with or with- out damages for the withholding thereof ; 4. Claims against a trustee by virtue of a contract or by operation of law ; 5. Injuries to character; 6. Injuries to person ; 1. Injuries to property. The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to the character or to the person.'^ The word " property " includes both real and personal prop- erty." § 1. Joinder of claims arising out of the same transaction, etc. — Subdivision 9 of section 484 of the ITew York Code of Civil Procedure,'^' when read in connection with the remainder of the section provides that the plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought " upon claims arising outiof the same transac- tion or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section." But it must appear upon the face of the com- plaint that all the causes of action so united belong to one of the foregoing subdivisions of this section ; that they are consist- ent with each other; and except as otherwise provided by law, that they affect all the parties to the action ; and it must appear 71 Cal. Code of Civil Pro., § 27. 72 Cal. Code of Civil Pro., § 17. 73 For the entire section see ante, p. 155. The OoMPLAiifT OB Petition. 157 Claims arising out of the same transaction. upon the face of the complaint that they do not require different places of trial. Provisions of a similar character are to he found in the Codes of many but not all of the States.''* The -words, " and not included within one of the foregoing subdivisions of this section," mean the same as if the section had read " and not included vsrithin one only of the foregoing subdivisions of this section." ^° The concluding portion of section 484, that " it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section," does not prevent the union of causes of action belonging to different subdivisions, but arising out of the same transaction as that clause applies to subdivision 9 as vtrell as to the others. ''" As a result of the decisions it is settled that under subdivision 9 of section 484, causes of action specified in two or more of the eight preceding subdivisions may be united if it appears upon the face of the complaint that they arose out of the same transaction or transactions con^ nected with the same subject of action, are not inconsistent with each other, affect all the parties to the action, and do not require different places of trial.'' The language of this provision is very general and very indefi- nite. The judges have taxed their ingenuity to invent a rule for determining what the " same transaction " means, and when a cause of action shall be deemed to " arise out " of it, and what the " same subject of action " means, and when trans- actions are to be deemed connected with it ; and a distinguished jurist, after an examination of the various authorities upon 7* The exceptions are Arizona, Arkansas, California, Colorado, Indiana, Iowa, Kentucky, Montana, Nevada, Oregon, Utah and Washington. 7B Taylor v. Metropolitan Elevated R. E. Co., 52 N. Y. Super. Ct. 299; People V. Wells, 52 App. Div. 583 ; Eagan v. New York Transportation Co., 39 Misc. Ill; 78 N. Y. Supp. 209.^ But see Teall v. City of Syracuse, 32 Hun 332, 334. 76 Policy v. Wilkinson, 5 Civ. Pro. E. 135; Eagan v. New York Trans- portation Co., 39 Misc. Ill; 78 N. Y. Supp. 209. "People V. Wells, 52 App. Div. 583; 65 N. Y. Supp. 319. 158 The Complaint or Petitioit. Claims arising out of the same transaction. this question, declared tkat it was impracticable to lay down any general rule which would serve as a guide for future cases, and that it was safer for the courts to pass upon the question as each case is presented/^ The framers of the old Code had in effect abrogated equity jurisdiction in many important cases by failing to provide for a union of parties and subjects in one suit indispensable to its exercise. The clause in question was introduced by an amendment of the old Code in 1852, which is substantially re-enacted in the present Code, and was doubtless intended to remedy the defect and to apply to equitable actions which frequently embrace many complicated acts and transactions relating^ to the subject-matter of the action which it would be desirable to settle in a single action. '^ The language of the amendment was well chosen for the purpose intended, because it was so obscure and so general as to justify the interpretations which should be found most convenient and best calculated to promote the ends of justice.^" It does not follow that because two causes of action originated, or happened, at the same time, each cause of action arose out of the same transaction. Time is not an important element in the determination of the question of identity of transactions. A cause of action for an assault and battery and a . cause of action for slanderous words spoken at the time of the assault,^^ or a cause of action for slander and a cause of action for false imprisonment originating at the same time,*^ do not arise out of the same transaction and cannot be joined in the same com- plaint. A cause of action for the alienation of the affections of the wife of the plaintiff and a cause of action for the conversion of personal property cannot be united in the same complaint, 78 Wiles V. Suydam, 64 N. Y. 173, 177, 178, Church, C. J.; Barckley v. Williams, 30 Misc. 687 ; 64 N. Y. Supp. 318. 78 Wiles V. Suydam, 64 N. Y. 173. 80 New York & New Haven K. R. Co. v. Schuyler, 17 N. Y. 592. 81 Anderson v. Hill, 53 Barb. 238. But see Brewer v. Temple, 15 How. 286. 82 De Wolfe v. Abraham, 151 N. Y. 186. The Complaint ok Petition. 159 Claims arising out of the same transaction. although the physical abandonment of the plaintiff and the carrying away of his property were concurrent acts.^^ A cause of action for a breach of a warranty in the sale of a chattel, cannot be joined with a cause of action for fraud and deceit in concealing defects in the chattel at the same sale.^* So a cause of action for a breach of a covenant for quiet enjoyment contained in a lease, cannot be joined with a cause of action for entering the apartments of the plaintiff with false keys and maliciously and feloniously removing and injuring his prop- erty.'^ So the plaintiff cannot join a cause of action for a statutory penalty with a cause of action on contract. '° A cause of action on contract cancaot be united in the same complaint with a cause of action for a tort, although both causes of action arose out of the same transaction, if they are not consistent with each other." But where the several causes of action arise from the same transaction, or transactions con- nected with the subject of the action, they may be joined in the same complaint under subdivision 9 of section 484 of the New York Code of Civil Procedure, even though one cause of action is on contract and the other in tort, if this is the only objection to such joinder.** This is unquestionably the rule in equitable saCrowell v. Truesdell, 69 App. Div. 502; 73 N. Y. Supp. 1013. 8* Sweet V. Ingersou, 12 How. 331; Seymour v. Lorillard, 8 Civ. Pro. R. 90. 85 Keep V. Kaufman, 56 N. Y. 332. 86 Wiles V. Suydam, 64 N. Y. 173. sTMcCIure v. Wilson, 13 App. Div. 274; 43 N. Y. Supp. 209; Barkley v. Williams, 30 Misc. 687; 64 N. Y. Supp. 318; American Nat. Bank v. Grace, 64 Hun 22. 88 Mackenzie v. Hatton, 6 Misc. 153; 26 N. Y. Supp. 873; Badger v. Bene- dict, 1 Hilt. 414, 419 ; Grimshaw v. Woolfall, 40 St. Rep. 299 ; Robinson v. Mint, 16 How. 240. There is a class of cases holding without qualifica- tion that a, cause of action on contract cannot be joined with a cause of action in tort, although they arise out of the same transaction. Raynor V. Brennan, 40 Hun 60; Teall v. City of Syracuse, 32 Hun 332; Spring- stead V. Lawson, 23 How. 302 ; 14 Abb. 328. The reason assigned in Ray- nor V. Bowman was that the two causes of action did not belong to either one of the subdivisions specified in section 484 of the Code. The reason assigned for the decision in Teal v. City of Syracuse was that the two 160 The Complaint oe Petition. Claims arising out of the same transaction. actions where both claims relate to the same subject,*^ but is not applied in actions at law to recover damages where independent causes of action having no legal affinity between them are at- tempted to be united in the same complaint."" Under subdivision 9 of section 484 of the New York Code of Civil Procedure, the owner of real property whose property rights are injuriously affected by the operation of a steam railroad constructed without authority in a public highway, and who has sustained personal injury from being liirown from a wagon, while driving along such highway, in consequence of his horses being frightened by a passing train, may unite in the same complaint a demand for an injunction restraining the maintenance and operation of the railroad, and for damages for the interference with his property rights, and also a claim for damages for the personal injury; or in other words, he may unite in a single action all his claims, legal and equitable, which arise in consequence of the same general cause, the nuisance maintained by the defendant. The subject of the action in such case is the injury committed by the defendant in main- taining a public nuisance causing injury to real property and to the person."^ The Code permits a plaintiff to join in the same complaint two or more causes of action upon claims arising out of the same transaction, or transactions connected with the same subject of action. The " subject of action " here referred to is the subject of the action as a unit, and not the subjects of the different counts or several causes of action. A consignee of goods who has made advances thereon may maintain an action causes of action were included In some of the subdivisions of that section but were not all included in one of them. Springstead v. Lawson was de- cided upon the authority of Sweet v. Ingerson, 12 How. 331, in which it was held that the causes of action joined were not consistent with each other. 80 Corcoran v. Mannering, 10 App. Div. 516 ; 41 N. Y. Supp. 1090. 00 Keep v. Kaufman, 56 N. Y. 332 ; Wiles v. Suydam, 64 N. Y. 173. 91 Lamming v. Galusha, 135 N. Y. 239. See Shepard v. Manhattan R. Co., 117 N. Y. 442; Paddock v. Somers, 102 Mo. 226. The Complaint oe Petitiok. 161 Claims arising out of the same transaction. against a carrier for the loss, waste or wrongful conversion of the goods, and may join in the same action a claim to recover back soims overpaid for the freight of the goods."^ A cause of action for the wrongful taking of personal property from the possession of the plaintiff may be joined with a cause of action for an assault and battery committed by the defendant while, engaged in the wrongful act, as both acts proceed from the same wrong and are transactions connected with the same subject of action.'^ An injury to the person and an injury to property, although resulting from the same tortious act, constitute dif- ferent causes of action."* A cause of action for false imprison- ment and a cause of action for malicious prosecution may be united in the same complaint,'^ and under the Codes of Cali- fornia and I^evada a cause of action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to the character or to the person,"" and under the Code of Colorado, all actions for damages, whether upon contract or for injuries to property, person or character, are grouped in a single class. °^ In some of the States a cause of action for property converted and a cause of action for damages proximately resulting from a breach of contract may be joined where the matters relied on for a recovery are connected with and grow out of the same cause of action and subject-matter."^ But as a general rule, a cause of action for a tort cannot be joined with a cause of action on contract, unless they both arose out of the same trans- 92 Adams y. Bissell, 28 Barb. 382. osGriflSth v. Friendly, 30 Misc. 398; 62 N. Y. Supp. 391; Eagan v. New- York Transportation Co., 39 Misc. Ill; 78 N. Y. Supp. 209. See Doyle v. American Wringer Co., 60 App. Div. 525. 9* Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40. 95 Warren v. Dennett, 17 Misc. 86; 39 N. Y. Supp. 830; Haight v. Web- ster, 18 Week. Dig. 108. And this is the rule under the Illinois statutes. Nyblath t. Herterius, 41 Fed. Rep. 120. 96 Cal. Code of Civil Pro., § 427; Nevada Comp. Laws of 1873, § 1127. 97 Colo. Code of Civil Pro., § 71; Code of 1883, § 73. 98 Milliken v. Callahan County, 69 Texas 205. 162 The Complaint oe Petition. Causes joined must affect all parties. action or transactions connected with the same subject of ac- tion/" and not in that case even, under the statutes and decisions of some of the States.^™ A general allegation in the complaint that the several causes of action therein set forth arose out of the same transaction or transactions connected ■with the same subject of action, does not establish that fact. It should appear satisfactorily and clearly by the pleading itself from the statement of facts therein that the several causes of action originated in the same transaction.^"^ If legal and equitable causes of action are joined, the pleadings must be made broiad enough to include both causes of actiouj^"^ and facts must be alleged which would be sufficient to entitle the plaintiff to the relief had he sought it in separate actions. ^°^ § 8. The several causes of action must affect all the parties. — ■ One requisite of the joinder of several causes of action in the same complaint is that all the causes of action so joined shall affect all the parties to the action, except where the law prescribes otherwise.^"* It is not necessary to the proper joinder of various causes of action in one complaint that they should affect all the parties 99 American Nat. Bank of Providence v. Grace, 64 Hun 22 ; 18 N. Y. Supp. 745 ; Thomas v. Utiea & Black River R. R. Co., 97 N. Y. 245 ; Week V. Keteltas, 10 Civ. Pi-o. R. 43; Hodges v. Wilmington & W. R. Co., 105 N. C. 170. looBoyer v. Tiedman, 34 Ind. 72; Cincinnati, W. & M. R. Co. v. Harris, 61 Ind. 290. But under the Indiana statutes, where the action arises out of contract, the plaintiff may join such other matters in his complaint as may be necessary for a complete remedy and a speedy satisfaction of his judgment. Ind. Rev. Stat., 1881, § 280. See Bowen v. Bradbury, 121 Ind. 235. 101 Flynn v. Bailey, 50 Barb. 73. 102 Wilder v. Ranney, 16 Week. Dig. 478; Bockes v. Lansing, 74 N. Y. 437. 103 Bockes V. Lansing, 74 N. Y. 437. 104 New York Code of Civil Pro., § 484; Higgins v. Crichton, 11 Daly 114; Cal. Code of Civil Pro., § 427. And this is the rule under nearly all the Codes. The Complaint ok Petition. 163 Causes joined must affect all parties. equally. It is enough that they affect all, though in unequal degrees."^ The test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them.^"" A judgment creditor may bring an action to have a conveyance of the judgment debtor set aside as fraudulent. He may also unite in the same action any other persons having liens upon the premises affected by the fraud- ulent conveyance; and if the judgment debtor has incumbered the premises by false and fraudulent liens, such liens may be annulled; and if the debtor has placed in the hands of others property to be covered up and hid for the purpose of keeping it from being applied in payment of his debts, such persons may be made parties and the property followed. All such parties are interested in the centering point in issue in the ease, and all are concerned in the common point of litigation which is the fraudulent transfer of the property of the judgnnent debtor into their hands for the purpose of defrauding his creditors.^'" An action in the nature of a creditor's bill may be maintained against two or more judgment debtors to reach and apply to the satisfaction of the judgment legacies bequeathed to the defendants in severalty, and in which they have no common interest.^"* But the rule still remains that several causes can be united in the same complaint only where each cause of action affects all the parties to the action,^"" and where they are in favor of all the plaintiffs and against all the defendants."" If the action is against different persons 105 Vermeule v. Beck, 15 How. 333. 106 Mahler v. Schmidt, 43 Hun 512 ; Harris v. Elliott, 29 App. Div. 568 ; 51 N. Y. Supp. 1012; New York & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592, 608; Simar v. Canaday, 53 N. Y. 298, 305. 107 Mahler v. Schmidt, 43 Hun 512. 108 Bradner v. Holland, 33 Hun 288. looEarle v. Scott, 50 How. 506; Gardner v. Ogdeu, 22 N. Y. 329, 340; Higgins V. Crichton, 11 Daly 114. 110 Earle v. Scott, 50 How. 506 ; Ehos v. Thomas, 4 How. 48 ; Wartle v. 16-i The Complaint oe Petitioit. Causes joined must aflfect all parties. concerning things of ' distinct natures in which some of the parties have no interest, then there is a misjoinder of causes of action. ^^^ A cause of action against one defendant only cannot be joined with a cause of action against the other de- fendant only.^^^ A cause of action based on the sole liability of one defendant cannot be joined with a cause of action based on the liability of all the others.^^^ A joint action cannot be maintained against a common defendant by two or more parties having distinct and separate causes of action, while neither has any interest in the cause of action of the other.^^* It does not alter the rule that the causes of action arose out of the same transaetion.^^^ The Code does not require that, in an action against several defendants, the same judgment shall be asked for against each defendant; but to permit the joining of several defendants, where a money judgment only is asked for, it is necessary that each defendant should have an interest either in the subject of the action, or in a fund out of which the money judgment must, as a result of the action, be derived; and whenever it appears that one defendant has no interest whatever in the result of the action so far as another defendant is concerned, and that there is no common fund in regard to which the rights of the Radde, 28 How. 230 ; Adams v. Stevens, 7 Misc. 468 ; 27 N. Y. Supp. 993 ; Nichols V. Drew, 94 N. Y. 22, 26. Ill Mahler v. Schmidt, 43 Hun 512; Arkenburgh v. Wiggins, 13 App. Div. 96; 43 N. Y. Supp. 294; Goldmark v. Magnolia Metal Co., 30 App. Div. 580; 52 N. Y. Supp. 446. 11= Hess V. Buffalo & Niagara Falls R. R. Co., 29 Barb. 391; Southmayd V. Jackson, 15 Misc. 476; 37 N. Y. Supp. 201; Harris v. Elliott, 29 App. Div. 568; 51 N. Y. Supp. 1012. 113 Barnes v. Smith, 1 Rob. 699; 16 Abb. 420; Malone v. Stillwell, 15 Abb. 421; Wells v. Jewett, 11 How. 242. ii^Bort V. Yaw, 46 Iowa 323; Nagel v. Lutz, 41 App. Div. 193; 58 N. Y. Supp. 816; Gray v. Rothschild, 48 Hun 596; 112 N. Y. 668; Hynes v. Farmers' Loan & Ti-ust Co., 9 N. Y. Supp. 260; 31 St. Rep. 136. 116 Tate V. Ohio, etc., R. R. Co., 10 Ind. 174; Goodnight v. Goar, 30 Ind. 418. The ' Complaint oe Petitioit. 165 Causes joined must affect all parties. defendants are to be adjudged, he cannot be joined with the other defendants."" Where several persons have each a good cause of action against the same person for the recovery of damages arising from similar but distinct and independent fraudulent representations made to each, and each has suffered separately, but no two or more have been jointly prejudiced, their several causes of action can- not be joined in one complaint, ^^'^ unless all such causes of action have been assigned to one person who brings the action, in which case there will be no misjoinder. ^^^ But where two persons, owning shares of stock in severalty, but acting in concert in respect thereto, and in the interest represented by them, by fraudulent representations made to one with intent that both shall be misled, are induced to sell their respective shares at less than actual value, they may join as plaintiffs in an action in equity to obtain a rescission of the sale for fraud and for the restoration of the stock, although neither plaintiff has any pfecuniary interest in the stock of the other and has no interest in the damages sustained by the other. The joinder is per- mitted in such case because the plaintiffs were jointly deceived to their joint injury, which though not measurable in money is appreciable in equity. ^^^ Such a case is admitted tO' be near the border line. The rule that where there is a common interest to be maintained in equity, either in favor of the plain- tiff or against the defendants, all persons in any manner con- nected with the interest could regularly be brought before the court for its determination,^^" requires that the interest to be protected or to be assailed in the action shall be a common one and that the plaintiffs are identified in interest in maintaining 116 Harris v. Elliott, 29 App. Div. 568; 51 N. Y. Supp. 1012. 117 Gray v. Eothsohild, 48 Hun 596; 112 N. Y. 668. 118 Benedict v. Guardian Trust Co., 58 App. Div. 302; 68 N. Y. Supp. 1082. 119 Bradley v. Bradley, 53 App. Div. 29; 165 N. Y. 183. See Sherman v. American Stove Co. (Mich.), 48 N. W. 537. 120 See Brinkerhoff v. Brown, 6 Johns. Ch. 139. 166 The Complaint oe Petition. Joinder of demands held in different capacities. the action and obtaining the relief it may be its object to secure. A court of equity will not generally take cognizance of distinct and separate claims of different persons in one suit though standing in the same relative situation. ^^^ There must be a common interest centering in the point in issue. ^^^ An executor, in an action to settle his accounts and to obtain the determination of the court upon certain portions of the will and as to his compensation as executor and trustee, cannot join different causes of action relating to separate and distinct trusts which do not affect all the parties to the suit.^^^ An action to quiet title does not unite causes of action iror properly merely because the defendants hold separate parcels of land, where each defendant has, or claims to have, an interest in the premises hostile to the plaintiff's deed.^^* § 9. Joinder of demands held in both an Individual and rep- resentative capacity. — It is held in New York that a cause of action which had accrued to a testator or intestate, cannot be united with another accruing to the personal representatives after his decease ; ^^^ and, generally, that the plaintiff is not allowed to include in the same action claims in his individual right and as executor or administrator of anO'ther.^^" This is undoubtedly the rule where the two claims are inconsistent and adverse,^^^ or where some of the parties are interested in their different individual or representative capacities in one of the causes of action, and some of them in another cause of action, J21 Weeks v. Cornwall, 39 Hun 643; Birkley v. Presgrave, 1 East 220, 226, 227. 122 Ward V. Duke, etc., 2 Aust. 469, 477 ; Rayner v. Julian, 2 Dickens 677. 123 Weeks v. Cornwall, 39 Hun 643. 124 Leinenkugel v. Kehl, 73 Wis. 238. 125 Bingham v. Marine Nat. Bank, 41 Hun 377; 112 N. Y. 661; Arken- burgh V. Wiggins, 13 App. Div. 96; 43 N. Y. Supp. 294. • 126 Lucas V. New York Central R. R. Co., 21 Barb. 245; Moss v. Cohen, 15 Misc. 108; 36 N. Y. Supp. 265. 127 Hall V. Fisher, 20 Barb. 441. The Complaint oe Petition. 167 Joinder of claims against trustees. and all of the defendants are not interested in all the causes of action."^ § 10. Joinder of causes of action upon claims against trustees. — Twenty-two out of twenty-seven Codes of the several States and territories authorize the joinder in the same com- plaint of claims against a trustee by virtue of a contract or by operation of law. The exceptions are Arizona, Colorado, In- diana, Iowa and Kentucky. To create a cause of action by operation of law within the meaning of the Code, there must be a liability which arises simply from the holding of the position of trustee. It is not suflScient that the liability arises in part from the ^act that the defendant held the position of trustee, and in part from the fact that in holding that position he did or omitted to do certain things which the law required him to do.^^^ A claim against one defendant in his individual capacity can- not be joined in the same complaint with claims against him as trustee, and neither of such claims can be joined vrith de- mands against other defendants.^^" A claim against a defendant as trustee cannot be joined with a claim against another de- fendant individually.^^^ A cause of action against a defendant upon a contract made by him individually cannot be joined with a cause of action against him as president or trustee of an association. ^^^ There are persons standing in some degree in the relation of trustees of a fund who are not trustees in the full sense of that term. A surviving partner holds such a position in respect to the partnership property so far as relates to the duties he owes to the estate of the deceased partner. ^^^ But he takes the 128 Arkenburgh v. Wiggins, 13 App. Div. 96; 43 N. Y. Supp. 294. 129 French v. Salter, 17 Hun 546. 130 Smith V. Geortner, 40 How. 185 ; Perkins v. Slocum, 82 Hun 366 ; 31 N. Y. Supp. 474. 131 Alger V. Seoville, 6 How. 131. ^ 132 Warth V. Radde, 28 How. 230; 18 Abb. 396. 133 Kussell V. McCall, 141 N. Y. 437. 168 The Complaiitt oe Petition. Joinder of causes of action against executors, etc. legal title to the partnership property, is individually liable to a creditor of the firm for a partnership debt, and may be sued by the creditor, and a recovery may be had against him in the action, -without any suggestion of the partnership/^* A cause of action against a defendant as surviving partner may therefore be joined with one against him as an individual. ^'"^ But causes of action against a firm of which a lunatic was a member, and against the lunatic's estate, and against his committee individ- ually cannot be joined. A trust is discharged by the committee, but the trust is in the court, and the committee acts as its agent or officer. ISTo title to the real or personal estate of the lunatic is vested in him. The title remains as before.^'" § 11. Joinder of causes of action against executors, etc. — The ISTew York Code provides that an action may be brought against an executor or administrator personally and also in his representative capacity in either of the following cases: 1. Where the complaint sets forth a cause of action against him in both capacities, or states facts which render it uncertain in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the defendant in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action ; do not require different places or modes of trial, and are not inconsistent with each other.^'" Prior to the enactment of the above provision of the Code an action could not be maintained against an executor or adminis- trator as an individual and in his representative capacity.^^' But since the enactment such joinder is allowed.^^' A person 134 Georlet v. McKinstry, 1 Johns. Cas. 405 ; Grant v. Sharter, 1 Wend. 148 ; Smith v. Ferguson, 33 App. Div. 561 ; 53 N. Y. Supp. 1097. 135 Kent V. Grouse, 5 St. Rep. 141 ; Nehrboss v. Bliss, 88 N. Y. 600; Smith V. Ferguson, 33 App. Div. 561 ; 53 N. Y. Supp. 1097. 136 Kent V. West, 33 App. Div. 112; 53 N. Y. Supp. 244. 137 N. Y. Code of Civil Pro., § 1815. 138 Clark V. Coles, 50 How. 178. 139 Murphy v. Naughton, 68 Hun 424. The CoMPLAiiirT oe Pbtitiow. 169 Causes of action which cannot be joined. may be in possession of money as an executor and in possession of other money as an individual; and a complaint in an action to compel sudi person to account for sucli moneys does not state two causes of action.^*" The causes of action which may be united in a complaint under the authority of the second subdivision of section 1815 of the 'New York Code of Civil Procedure must be such as do not require different modes of trial. It would seem that a legal cause of action triable by jury and an equitable cause of action triable by the court, could not be united in the same complaint by the authority of this subdivision, and that on the contrary such joinder is impliedly prohibited. § 12. Causes of action which, cannot be joined in the same pleading. — In nearly all the States where the reformed pro- cedure has been adopted, the causes of action which may be joined in a complaint or petition are stated in separate sub- divisions of the section of the statute governing this branch of procedure. Where the statute permits the joinder of causes of action which all arise out of the same transaction, or transac- tions connected with the same subject of action, it may be allow- able to join causes of action falling under two or more sub- divisions of the section ; ^*^ but where this provision is not contained in the statute, or where it is not applicable, catises of action which do not fall under some one subdivision only cannot be joined in the same complaint or petition. This necessarily follows from the language of the statute. There is a statutory exception in California and Nevada permitting an action for malicious arrest and prosecution or either of them to be joined with an action for either an injury to the character -or the person.^*^ In ISTew York, to authorize the joinder of several causes of action it must appear upon the face of the 140 Budd V. Hardenberg, 36 Misc. 90. 1*1 See ante, p. 156. 1*2 See ante, p. 161. lYO The Complaint or Petition. Causes of action which cannot be joined. complaint that all the causes of action so joined belong to one of the subdivisions of section 484 of the Code of Civil Pro- cedure. The statute will be complied vi^ith if all the causes of action joined fall under the ninth subdivision of that seo- tion,"= Under the 'New York Code causes of action cannot be united in the same complaint imless it appears upon the face of the complaint that all the causes of action so united are consistent v^ith each other.'-** A satisfactory definition of the phrase " consistent vsdth each other " has not as yet been formulated ; but it seems to have been determined that where causes of action are entirely separated in their origin and nature, and one is for equitable relief and the other for a common-law demand; where they require different methods of trial in different branches of the court; and where a single judgment embracing each cause of action would have to be enforced in an entirely different way and by different process, such causes of action are not consistent with each other.^*^ A cause of action which pro- ceeds upon the theory that a, contract is valid and that money is due to the plaintiff as for money had and received, and a cause of action which proceeds upon the theory that the contract is invalid and illegal, that no rights were acquired under it, and repudiates it, and seeks to recover damages for what has been done by virtue of it, cannot be joined, as they are entirely inconsistent.^*" A cause of action for an absolute divorce, on the ground of adultery, cannot be joined in the same complaint with a cause of action for a separation from bed and board. ^*^ A cause -of action against the trustee of an insolvent savings bank to recover the damages occasioned by unauthorized and illegal investments made by him cannot be united in the same complaint with a cause of action upon a bond given by him na See ante, p. 155. 1** N. Y. Code of Civil Pro., § 484. i« Conde V. Rogers, 74 App. Div. 147; 77 N. Y. Supp. 518. "6 McCIure v. Wilson, 13 App. Div. 274; 43 N. Y. Supp. 209. 1*7 Zorn V. Zorn, 38 Hun 67. The Complaint oe Petition-. ITl Complaints by or against executors, etc. to assist in making up a deficiency in the assets of the bank."* Causes of action cannot be joined which do not affect all the parties to the action; ^^^ and under the present ISTew York Code it must appear upon the face of the complaint that they affect all parties to the action, and if it does not so appear the- causes of action cannot be joined/'^'' ISTearly all the Codes prohibit the joinder of causes of action which require different places of trial/"^ and in ISTew York, under the present Code, it must appear upon the face of the complaint that the causes of action united do not require dif- ferent places of trial.^°^ § 13. Complaints by or against executors, etc. — The cap- tion of a complaint in an action by or against an executor or administrator should show that the action is brought by or against the party in a representative capacity.^^'* But this alone is not sufficient to show that the party sues or is sued in a representative capacity. In addition to the matter in the cap- tion it should be directly alleged in the body of the complaint and in an issuable form that the party is an executor or ad- ministrator. If a plaintiff sues as an executor he must aver his appointment and title, as such, in particular ; or if the action is brought to recover a debt to or from a testator or intestate, there must be an allegation showing the appointment of the executor or administrator, as such, with all the necessary details to make the fact apparent.^^* It is not enough to allege that " letters of administration were duly issued and granted unto the plaintiff." It should be stated that letters of administration 148 French v. Salter, 17 Hun 546. 149 See ante, p. 162. 150 N". Y. Code of Civil Pro., § 484. 151 See ante, p. 154. 162 N_ Y. Code of Civil Pro., § 484. 153 See ante, p. 146. i54Kingsland v. Stokes, 25 Hun 107; 61 How. 494; Sheldon v. Hoy, 11 How. 11-; Stephen's PI. 288; Beach v. King, 17 Wend. 197; Forest v. Mayor, 13 Abb. 350. I 172 The Complaint oe Petition. Complaints by or against executors, etc. or letters testamentary, as the case may be, had been issued upon the estate of the decedent by a surrogate of some county within the State,^'^^ naming the surrogate or his county, and the time and place of the appointment/"* In respect to this latter requirement there is a distinction between complaints by' administrators and complaints by executors due to the difference in the source of their powers. An executor derives his power from the will, while the administrator derives his representative character from appointment by the court and his authority from the law. The appointment of an adminis- trator is dependent upon a situation and state of facts to be made to appear in a proceeding for the purpose. And a complaint by an executor which properly alleges the making and probate of a will by which the plaintiff was appointed executor, that letters testamentary were duly issued to the plaintiff on a day specified, who duly qualified as such on that day, may be held sufficient to show a legal capacity to sue, although there is no direct allegation that the letters testamentary were issued to the plaintiff by any surrogate in any proceeding before a court, and although the absence of such allegation might be fatal in a complaint by an administrator.^"' When the complaint is against an executor as such upon an instrument executed by him in that capacity, it is s^^fficient to allege that the instru- ment was executed by him as such executor without setting forth the particulars of his appointment.^"* And it has also been held that in an action for a debt of the testator the complaint may allege that the defendants are sued as executors, or may set forth their representative character to show that the action is brought to recover a demand owing by their testator in his life-time.^"" It is not always necessary in such an action that 155 Secor V. Pendleton, 47 Hun 281 ; Beach v. King, 17 Wend. 197. 156 Sheldon v. Hoy, 11 How. 11; Beach v. King, 17 Wend. 197. 157 Brenner v. McMahon, 20 App. Div. 3 ; 46 N. Y. Supp. 643. i58Kingsland v. Stokes, 2.5 Hun 107; 61 How. 404; Skelton v. Scott, 18 Hun 375. And see Kingsland v. Borst, 14 Week. Dig. 114. 169 Yates V. Hoffman, 5 Hun 113; Cordier v. Thompson, 8 Daly 172. The Complaint oe Petition. ITS Complaints by or against executors, etc. the allegations of tlie complaint as to the representative character of the defendants should be direct and positive, but it is neces- sary, if the allegations are not made in that way, that the frame and averments and scope of the complaint shall be such as to fix upon the defendants such a character. It is not enough to describe the defendants as executors in the title of the action, BJid to allege in the complaint the death of the debtor, and the execution and probate of his v^ill, if there is no allegation in the complaint that any person vs^as nominated as executor in that will, or that letters testamentary were issued to the de- fendants, or that they ever qualified as executors. ^°° A plaintiff suing in a representative capacity, besides set- ting forth his appointment as before stated, should then by appropriate averments set forth a cause of action in his favor in his representative character. A complaint in an action by an administrator as such which does not show a cause of action existing in favor of his intestate against the defendant is bad.^*^ The plaintiff should show by his pleading that he seeks to recover in his representative capacity. But if the cause of action is stated throughout the complaint as accruing to the plaintiff as executor or as administrator, this fact will sufficiently ap- pear.^*^ If the titfe does not declare the character in which the \ plaintiff sues, it may be gathered from the body of the com- ; plaint. The court will look to the whole complaint to determine whether a plaintiff named as executor, sues in his representative or individual capacity.^®' If the frame of the complaint and the averments therein are such as to affix to the plaintiff a rep- resentative character and standing in the litigation, and to show that the cause of action if any devolved upon him solely in that character, he may recover in that capacity, although the word " as " is omitted between the name of the plaintiff and 160 Kley V. Higgins, 59 App. Div. 581 ; 69 N. Y. Supp. 826. 161 Christopher v. Stockholm, 5 Wend. 36; Wetmore v. Porter, 92 N. Y. 76, 83. 162 Seranton v. Farmers' & Mechanics' Bank, 33 Barb. 527; 24 N. Y. 424. 163 Stilwell V. Carpenter, 62 N. Y. 639 ; 2 Abb. N. 0. 238. 174 The Complaint oe Petition. Complaint by or against a receiver. the words descriptive of his representative capacity in the title.^"* So the question whether an action is brought against defendants personally, or against them in a representative capacity is to be determined from the averments in the complaint. If the facts stated and the prayer for relief fully characterize the action as one against the defendants in their representative capacity it is sufficient although they are not named in that capacity in the title.^^° At commcxi-law the liability of a joint debtor was discharged by his death and no action at law would lie against his estate, the survivors becoming the principal debtors, charged with the duty of discharging the joint obligation. But while no action at law could be brought against the estate of the deceased debtor, an action could be maintained in equity against the estate upon showing an inability to collect from the survivors. By the provision of the ISTew York Code of Civil Procedure that the estate of a person of party jointly liable on contract with others shall not be discharged by his death, ^"^ the legal rule has been changed, and the creditor may now proceed at law to enforce his claim against the estate of the deceased joint debtor, as formerly he might have done in equity. But the rule of pro- cedure has not been changed, and when the personal representa- tives of a deceased joint debtor are directly proceeded against at law, the plaintiff should still allege and prove the insolvency, or inability to pay, of the survivors."'' § 14. Complaints by or against a receiver. — A complaint in an action brought by a receiver should state facts showing that the plaintiff was duly appointed receiver by some com- petent court, and if security is necessary, that he has given that security. It is not enough to allege the naked legal con- clusion that the plaintiff has been duly appointed receiver. The 18* Beers v. Shannon, 73 N. Y. 292. 166 Patterson v. Copeland, 52 How. 460. And see ante, p. 147. 16 6 N. Y. Code of Civil Pro., § 758. 167 Potts V. Dounee, 173 N. Y. 335; Barnes v. Brown, 130 N. Y. 372. The Complaint oe Petition. 1T5 Complaint by or against ii receiver. complaint must at least allege that lie was appointed by the order or decree of a court, stating the name of the court, the place where it was held, and the date of the decree or order.^"^ The appointment is part of the plaintiff's title, and imless the fact is stated the plaintiff does not show any right to sue."" But it is not necessary to set out all the proceedings by which he was appointed.^'" If the complaint in an action brought by a receiver appointed in proceedings supplementary to execution alleges that on a specified day and at a specified place and by an order made by a specified justice of the Supreme Court, on the application of certain specified judgment creditors, the plaintiff was duly appointed receiver of the property of the judgment debtor, without pleading any judgment or proceeding upon which such appointment was or could be made, it will be sufficient; and under the allegation that the plaintiff was " duly appointed " he may prove on the trial all the facts con- ferring jurisdiction.^'^ An allegation that the plaintiff, at a time and place specified, upon the application of a judgment creditor, in proceedings supplementary to execution, and by an order duly made by the county judge of a specified county, was appointed receiver of the property of the judgment debtor, is a sufficient statement of the appointment; and the allegation that the order was duly made carries with it the filing of the order and all the steps necessary to make a valid determina- tion."^ Besides showing a valid appointment, the receiver must state facts in his complaint, showing a right of action in the parties whom he represents,^'^ and if any steps, subsequent to his appointment, are necessary to vest him with that right of action issGillet V. Falrchild, 4 Denio 80; White v. Joy, 13 N. Y. 83; Bangs v. Mcintosh, 23 Barb. 592; Dayton v. Connah, 18 How. 326. 169 White V. Joy, 13 N. Y. 83 ; Stewart v. Beebe, 28 Barb. 34. 170 Piatt V. Crawford, 8 Abb. N. S. 297 ; Stewart v. Beebe, 28 Barb. 34. 171 Rockwell V. Merwin, 45 N. Y. 166. i72Manley v. Eassiga, 13 Hun 288. See, also, Scroggs i. Palmer, 66 Barb. 505. An appeal taken in this ease was dismissed. See 55 N. Y. 643. 173 Coope V. Bowles, 42 Barb. 87; 28 How. 10; 18 Abb. 442. 176 The Complaint oe Petition. Complaints by guardians. or -with title to the stubjedrmatter thereof, the complaint should allege facts showing that such steps have been taken.^'* The complaint in an action brought by a receiver should allege leave of court tO' institute and prosecute the action/'" unless in a case where the right of action is not dependent upon his official character, as in case of an action to recover possession of property wrongfully taken from him, or withheld from him by one holding imder him as lessee or tenant.^'" A com- plaint against a receiver on a money demand must allege leave to bring the suit,"' and a suit against the receiver of a railroad, even for a tort, cannot be brought without the permission of the court appointing him.^'* Leave to bring suit is a juris- dictional fact which cannot be waived by any act of the re- .ceiver.^'" It is not necessary to obtain leave of court before action against a receiver under the Act of Congress of March 3, 1887."'" § 15. Complaints by guardians. — A complaint in an action brought by an infant by his guardian ad litem should allege in a traversable form facts showing the due appointment of the guardian by the court or judge,^^^ and also that the infant is under the age of twenty-one years.^*^ A general guardian may maintain an action in his own name as such guardian to recover a debt due his ward.^^" He may 174 Dubois V. Cassidy, 75 N. Y. 298. 1T5 Foster v. Townshend, 68 N. Y. 203; Merritt v. Lyon, 16 Wend. 405; Morgan v. Bucki, 30 Misc. 245; 61 N. Y. Supp. 929; Davis v. Talbut, 128 Ind. 222. 176 Pouder v. Catterson, 127 Ind. 434. 177 Keen v. Breckenridge, 96 Ind. 69 ; Olukies v. Bank of New York, 74 App. Div. 38. 178 Melendy v. Barbour, 78 Va. 544. 179 Brown v. Rauch, 20 Pacific 785. ISO Dillingham v. Anthony, 73 Texas 47; 24 U. S. Stat, at Large, 552; 25 Id. 433, 436, § 3. See Clukies v. Bank of New York, 74 App. Div. 38. isiHulbert v. Young, 13 How. 413; Stanley v. Chappell, 8 Cow. 236. 182 Grantman v. Thrall, 44 Barb. 173. 183 Hauenstein v. Kull, 59 How. 24; Thomas v. Bennett, 56 Barb. 197; Segelken v. Meyer, 14 Hun 593 ; Coakley v. Mahar, 36 Hun 157. The Oomplaint ok Petitioi^. ITY Complaints by or against corporations, etc. also maintain an action as general guardian of an infant legatee to recover the legacy bequeathed to his ward by the will of the defendant's testator. In such an p.ction it is sufficient to en- title the plaintiff to maintain the action as guardian, that the complaint, besides the description of the plaintiff as general guardian of the person and estate of the infant, contains an allegation that the plaintiff was duly appointed the general guardian of the legatee, an infant under the age of fourteen years, that letters of guardianship were duly granted to him, and that he thereupon became entitled to receive the legacy as such guardian.^** § 16. Complaints by or against corporations and associa- tions. — The New York Code of Civil Procedure provides that in an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation ; must state whether it is a domestic corpora- tion or a foreign corporation, and if the latter, the State, country or government by or under whose laws it was created. But the plaintiff need not set forth or specially refer to any act or proceeding by or under which the corporation was cre- ated.^*° It also provides that 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 affirmative allegation that the plaintiff or defendant, as the case may be, is not a corporation. ^^^ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant. The statement of a cause of action in the complaint will be as complete without this allegation as with it.^^'' The failure to comply with the requirements of 18* Wall V. Bulger, 46 Hun 346. ISO N. Y. Code of Civil Pro., § 1775. 186 N. Y. Code of Civil Pro., § 1776. 187 Fox V. Erie Preserving Co., 93 N. Y. 54 ; Rothehild v. Grand Trunk Ry. Co., 10 N. Y. Supp. 36; 14 N, Y. Supp. 807; Fraser v. Granite State 178 The Complaint oe Petition. Complaints by or against corporations, etc. the statute in respect to the statement as to whether the de- fendant is a foreign corporation, etc., is not a ground for de- murrer but of a motion to remedy the defect.^** A plaintiff, in stating a cause of action against a corporation should state the acts complained of as being the acts of the cor- poration itself, and it is not necessary or proper to aver in the complaint that they were done by or through the authorized agent of the corporation. It is a matter of proof upon the trial to establish that the person who did the act was the authorized agent of the corporation, for it can only act through its officers and agents. When a charge is made in a pleading against a corporation by its corporate name, the legal inference is that some person or persons in its employ did the act imputed. ^^° An averment in a complaint that an agreement was made be- tween the plaintiff and a corporation, is, in effect, an averment that the agreement was made by an officer or agent of the cor- poration acting by its authority.^"" When a banking association is sued in the name of its presi- dent, the plaintiff should allege that the bank was indebted, and being indebted promised to pay, and that the bank had not paid. And when one of such associations sues in the name of its president, the pleader should allege that the defendant was indebted to the bank, not to the plaintiff,^"^ and that the president sues as president of the association and not as an individual.^'^ Provident Association, 58 N. Y. St. Rep. 803; Oehs v. Frey, 47 App. Div. 390 ; 62 N. Y. Supp. 67 ; Harmon v. Vanderbilt Hotel Co., 79 Hun 392 ; 29 N. Y. Supp. 783. And see West v. Eureka Imp. Co., 40 Minn. 394 ; Hafner & Schoen Furniture Co. v. Grumme, 10 Civ. Pro. E.. 176. 188 Harmon V. Vanderbilt, 79 Hun 392; 29 N. Y. Supp. 783; 143 N. Y. 665. 189 Lubricating Oil Co. v. Standard Oil Co., 42 Hun 153; 1 Chitt. PI. 286; Stoddard v. Onondaga Conference, 12 Barb. 575 ; Schellens v. Equitable Life Assurance Society, 32 Hun 235. 190 Gallatin Nat. Bank v. Nashville, etc., R. R. Co., 4 St. Rep. 714; Par- tridge V. Badger, 25 Barb. 146. 191 Ogdensburgh Bank v. Van Rensselaer, 6 Hill 240; National Bank v. Van Derwerker, 74 N. Y. 234; Delafield v. Kinney, 24 Wend. 345; Root v. Price, 22 How. 372 ; Thomas v. Dakin, 22 Wend. 9. 192 Hallett V. narrower, 33 Barb. 537 ; Root v. Price, 22 How. 372. The Complaint oe Petition. 179 Complaints against associations. In ISTew York it is provided by statute that an action or special proceeding may be maintained by the president or treasurer of an unincorporated association consisting of seven or more persons to recover any property, or upon any cause of action, for or upon -which all the associates may maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common. An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association, within the meaning of this section.^"^ The complaint in an action by an officer of the association should allege that it consists of seven or more associates,^'* but it need not state their names. ^°° If the action is against the treasurer of the association to recover moneys due from the association the plaintiff must allege and prove that all the mem- bers of the association were liable, either jointly or severally, to pay the plaintiff the amount of his claim'.^'^ Where a statute of a State provides that no foreign corpora- tion shall do business in such State without having first procured a certificate of the secretary of State that it has complied with all the requirements of law to do business in that State, it is not necessary in an action brought by such corporation to allege compliance with the statute, as non-compliance is a matter of defense.^"'' 183 Code of Civil Pro., § 1919. 194 Tiflfany v. Williams, 10 Abb. 204. 195 Tibbetts v. Blood, 21 Barb. 650. 196 McCabe v. Goodfellow, 133 N. Y. 89. i97Nieoll V. Clark, 13 Misc. 128; 34 N. Y. Supp. 159; W. H. Sawyer Lumber Co. v. Russell, 31 N. Y. Supp. 1107; Nelms v. Edinburgh- American 180 The Complaint ok Petition. Alleging leave to sue. § 17. Alleging leave to sue in actions under the New York Code, — Whenever leave to sue is a conditioii precedent to the right of action, such leave must be averred or the complaint will fail to show a cause of action. ^°* The ISTew York Code provides that while an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought,^°' and that the complaint in an action to foreclose a mortgage upon 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.^'"' The owner of the mortgage debt who holds an obligation or covenant for its payment or collection given by a person other than the mortgagor, cannot enforce it by action, unless authorized by the court, during the pendency, or after judgment in an action to foreclose the mortgage. ^°^ In such oases the authority to sue is at the very basis of the right to sue ; there is no right of action until the court has given one ; and it is therefore to be pleaded as a part of the plaintiff's case.^"^ But the prO'Vision of the statute referred to has reference only to a foreclosure action conducted in New York, and has no application where the action for foreclosure was brought in a foreign jurisdiction.^"^ Leave to sue is essential to a right to maintain an action Land Mortgage Co., 33 Am. & Eng. Corp. Cas. 27. But the rule seems to be otherwise in Alabama. See Mullens v. American Freehold Land & M. Co., 88 Ala. 280 ; 7 So. 201 ; Christian v. American Freehold Land & Mortg. Co., 7 So. 427. 108 Graham v. Scripture, 26 How. 501 ; Smith v. Britton, 45 How. 428. 109 N. Y. Code of Civ. Pro., § 1628. 200 N. Y. Code of Civil Pro., § 1629. 2oiScofield v. Dosoher, 72 N. Y. 491; McKernan v. Robinson, 84 N". Y. 105. 202Scofield V. Doscher, 72 N. Y. 491; Earl v. David, 20 Hun 527; 86 N. Y. 634. 203 New York Life Ins. Co. v. Aitkin, 125 N. Y. 660. The Complaint ok Petition. 181 Alleging leave to sue. against a receiver in most cases,^"* or on the official bond of a sheriff/"^ to a right of action against the conimittee of a luna- tic ^"^ or habitual drunlcard.'" Except as otherwise specially prescribed by the Code, an action upon a judgment for a sum of money, rendered in a court of record of the State of JSTew York, cannot be maintained be- tween the original parties to the judgment unless either ten years have elapsed since the docketing of such judgment, or it was rendered against the defendant by default for want of an appearance or pleading, and the summons was served on him otherwise than personally, or the court in which the action is brought has previously made an order granting leave to bring it.^"* This provision of the Code applies only to a judgment for a sum of money, ^'"' rendered in a court of record,^^" and does not apply to judgments of the United States courts docketed in the office of a county clerk, -^^ or to actions on a judgment of -a justice of the peace which has been so docketed, ^^^ or to actions by the assignee of the judgment,^" or by an executor or administrator of a deceased judgment creditor.^^* Leave of court should be obtained before the commencement of an action by the attorney-general to annul the charter of a corporation."^'' The 'New York Code also provides for leave to prosecute the official bond of a surrogate or of an officer acting as a surrogate,"" 204 See ante, p. 176; N. Y. Code of Civil Pro., § 1890. 205 N. Y. Code of Civil Pro., § 1880. 20 6 Williams v. Estate of Cameron, 26 Barb. 172; Matter of Wing, 2 Hun 671. 207 Hall v. Taylor, 8 How. 428. 208 N. Y. Code of Civil Pro., § 1913. See Cook v. Thtirston, 18 Misc. 506. 209 Matter of Van Beuren, 33 App. Div. 158; 53 N. Y. Supp. 349. 210 Harris v. Steiner, 30 Misc. 624 ; 62 N. Y. Supp. 752. 211 Goodyear Vulcanite Co. v. Frisselle, 22 Hun 174. 212 Baldwin v. Roberts, 30 Hun 163. 213 Carpenter v. Butler, 29 Hun 251; Knapp v. Valentine, N. Y. St. Rep. 582; McGrath v. Maxwell, 17 App. Div. 246; 45 N. Y. Supp. 587. 214 Smith V. Britton, 45 How. 428; Wheeler v. Dakin, 12 How. 537. 215 N. Y. Code of Civil Pro., §§ 1798, 1799. 216 N. Y. Code of Civil Pro., § 182 The Complaint oe Petitioit. Mode of pleading a contract. or upon the official bond of a county treasurer/^'' or the official bond of any other pmblic officer required to give an official bond to the people, where special provision is not made by law for the prosecution of the bond by or for the benefit of a person who has sustained by his default, delinquency, or misconduct, an injury for which the sureties on the bond are liable, ^^* including tbe bond of a receiver, an assignee of an insolvent debtor, or a trustee or other officer appointed by a court or a judge, ^^^ but not including executors or administrators.^^ § 18. Mode of pleading a contract. — It is sometimes op- tional with the plaintiff whether he will base his action upon a special contract entered into with the defendant and frame his complaint accordingly, or whether he will seek to recover upon the contract which the law will imply from the facts existing in the particular case. A party who has performed a special contract for work and materials is not bound to declare upon the contract, but may declare generally for the value of the work performed and materials furnished, and on the trial may refer to the contract to determine the value. ^^^ It does not follow that because there was a specific contract for a certain service at a fixed price, the plaintiff must in every ease set forth that contract in his complaint and aver performance or ex- cuse non-performance if the defendant has himself been guilty of a breach of the contract. When there has been a breach of the contract on the part of the defendant the plaintiff may waive the contract and its breach and sue on a quantum meruit as if no contract had been made thereby waiving his damages for the breach, or he may set up the contract and sue for the damages 217 N. Y. Code of Civil Pro., § 1887. 218 N. Y. Code of Civil Pro., § 1889. 210 N. Y. Code of Civil Pro., § 1890. =20 Dunne v. American Surety Co., 43 App. Div. 91 ; 59 N. Y. Supp. 429. 221 Farron v. Sherwood, 17 N. Y. 227; Fells v. Vestvali. 2 Keyes 152; Hig- gins V. Newton & Flushing E. R. Co., 3 Hun 611; 66 N. Y. 604; Hartley V. Murtha, 5 App. Div. 408 ; 39 N. Y. Supp. 212. The Complaiktt oe Petition. 183 Mode of pleading a contract. resultiag from the broach, in which case he must excuse Bon- performance on his part, if any there has been, by appropriate averments in the complaint, or, if he has fully performed, he may still sue on a qiumtum meruit and recover even if the proof shows an express contract at a fixed price. The only effect of such proof is that the contract price becomes the qiumtum meruit in the case. It is not a question of variance but only of the mode of proof of the allegations of the pleadings. ^^^ If the pleader elects to sue upon the quantum meruit, he has merely substituted the contract which the law implies for the special contract which the parties had made, the action is still upon contract, and the complaint is governed by the rules of pleading relating to the statement of causes of action based upon implied contracts. Where the right to maintain an action depends upon the ex- istence of an implied promise, the plaintiff may allege the promise or state the facts from which the law will imply it.^^' If the plaintiff seeks to recover upon an express promise or con- ,' tract he must either set forth the contract in its precise words i or state its substance with all its conditions and qualifications.^^* I He may adopt either form of pleading. ^^° But the complaint must contain an allegation that a contract, stating its substance, was made, or a clear statement of facts upon which a contract can be predicated. ^^° If the contract is in writing, instead of setting out the contract in the body of the pleading the plaintiff may annex a copy and refer to it in the body of the complaint. ''^^ If a copy of a contract is annexed to a complaint containing more than one count, and is referred to in one count only, it will not be considered in connection with, or in aid of any other count of 222 Fells V. Vestvali, 2 Keyes 152; KeoghMfg. Co. v. Eisenberg, 7 Misc. 79; 27 N. y. Supp. 356. 223 See ante, p. 49 ; Kraner v. Halsey, 82 Cal. 209. 224 Adams v. Mayor of New York, 4 Duer 295. 225 White V. Soto, 82 Cal. 654. 226 Martin v. Atkinson, 64 Wis. 493. 22T Fairbanks v. Bloomfield, 2 Duer 349. 184: The Complaint oe Petition. Mode of pleading a contract. the pleading. ^°' If the copy contract is ambiguous the plaintiff should put some definite construction upon it by a proper aver- ment in his complaint ; ^^^ but it is unnecessary to insert therein any allegation as to the legal effect of a contract annexed to and ' forming a part of the complaint as that is to be gathered from the contract itself and not from the allegations of the pleading. ^^° Recitals in a contract set forth in the complaint and averred to have been executed by the defendant have the same force and effect as an averment of the truth of the facts recited. ^^^ It is unnecessary to allege that the contract sued on is in wri1> ing as that is ordinarily a matter of proof rather than of plead- ing. ^''^ It is not alv?ays necessary for the plaintiff to set out the entire contract, but only such parts of it as constitute the engagement alleged to have been broken, especially v^here the parts of the agreement omitted would not give a different con- struction to the part of the agreement stated. ^^^ The terms of the contract must be so stated as to show the obligation resting on the defendant. ^^* If the original contract has been changed or modified the complaint should set forth the contract as changed or modified,^^^ unless the change or modification has in no way affected the right of action and the breach complained 228B00Z V. Cleveland School Furniture Co., 45 App. Div. 593; 61 N. Y. Supp. 407. 22£>Durkee v. Cota, 74 Cal. 313. 230 Black V. Homeopathic Mut. Life Ins. Co., 47 Hun 210. 231 Slack V. Heath, 1 Abb. 331; 4 E. D. Smith 95. See Moore v. Charles E. Monell Co., 27 Misc. 235; 58 N. Y. Supp. 430. 232Groce v. Jenkins, 28 S. C. 172; Ottoman v. Fletcher, 23 Abb. N. Cas. 430; 10 N. Y. Supp. 128; ante, p. 49. If not entirely in writing it may be pleaded as a parol contract. Louisrille, etc., R. Co. v. Reynolds, 118 Ind. 170. 233Sandford v. Halsey, 2 Denio 235, 253; Henry v. Cleland, 14 Johns. 400; Williams v. Healey, 3 Denio 363; Logan v. Berkshire Apartment Ass'n., 46 St. Rep. 14; 18 N. Y. Supp. 164. 234 Johnson v. Robinson Consolidated Min. Co., 13 Colo. 258. 235'Evarts V. Smucker, 19 Neb. 41; Lanitz v. King, 93 Mo. 513; Baldwin V. Munn, 2 Wend. 399; Langworthy v. Smith, 2 Wend. 587; Philips v. Rose, 8 Johns. 392 ; Holmes v. Holmes, 9 N. Y. 525, 528. The Complaint oe Petition. 185 Alleging a consideration. of is as to the portion unchanged. ^^^ If the original agreement has been wholly superseded by a new contract, it is unnecessary and improper to refer to the original in the complaint.''''^ If the action is brought upon a contract which is prohibited and made indictable by the laws of this State, the plaintiff should aver that the contract was made at a place without the State, and that by the laws of the place where the contract was made such contracts were authorized. ^^^ If the contract is not set forth in its entirety, and time, place, value or quantity is material, it should be alleged according to the fact."" The requisite allega- tions as to consideration, performance, demand, breach of the contract and resultant damage will be considered in subsequent sections of this chapter. § 19. Allegations as to the consideration of the contract. — Where an action is brought upon a parol agreement for the payment of money, the complaint must allege a consideration for the agreement, as otherwise it is demurrable as not stating facts suificient to constitute a cause of action.^*" So where the action is brought upon a written contract, not under seal, other than a negotiable promissory note, the complaint must allege a consideration for the contract.-" If, however, the contract is set out in the complaint and purports to be for value received, this will be a suiHcient allegation of consideration.^*^ 2S6 Crane v. Maynard, 12 Wend. 408. 237 Chesbrough v. N. Y. & Erie R. R. Co., 26 Barb. 9; 13 How. 557. 238 Thatcher v. Morris, 11 N. Y. 437. 239 4mfe, p. 52. 240 Dolcher v. Fry, 37 Barb. 152 ; Burnet v. Bisco, 4 Johns. 235. 241 Spear v. Downing, 34 Barb. 522; 22 How. 30; 12 Abb. 437; Johannes- sen V. Munroe, 84 Hun 594; 32 N. Y. Supp. 863; Pelt v. Judd, 3 Utah 315. 242Prindle v. Caruthers, 15 N. Y. 425; Meyer v. Hibsher, 47 N. Y. 265; Elmquist v. Markoe, 39 Minn. 494. In California a written instrument is presumptive evidence of a consideration. Cal. Civil Code, § 1614. There- fore in an action in that State on a written contract for the payment of money, a complaint which sets out the contract in hose verla, need not al- lege the consideration. Williams v. Hall, 79 Cal. 606. And see Peasley v. McFadden, 68 Cal. 611. 186 The Complaint oe Petition. Alleging performance of conditions. Where an action is brought upon a negotiable promissory note, no consideration need be alleged, as the note imports a consideration. The rule is the same although the copy of the note set out in the complaint does not purport to have been given for value received. ^*^ Where an action is brought upon an instrument under seal, the seal imports a consideration and none need be alleged in the complaint,^** unless the action is founded upon a contract in restraint of trade, in which case the complaint should allege facts showing that the contract was founded upon a valuable consideration, notwithstanding that the instrument is under seal.='*= Where an action is brought upon a promise founded upon a past or executed consider^ation, the complaint should allege that the act which constituted the consideration of the promise was done at the request of the party promising, or should show at least that the party promising was under a moral obligation to perform the promise.^** § 20. Alleging performance of conditions. — It is essential to the legal statement of a cause of action on contract that it shows an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or a tender of their performance, or some adequate excuse for non-perform- ance.^*'' It is not always easy to apply this rule and determine 243 Underhill v. Phillips, 10 Hun 591; Smith v. Pfister, 39 Hun 147, 149; Oarnwright v. Gray, 127 N. Y. 92. 24* Bush V. Stevens, 24 Wend. 256. 246 Ross V. Sadgbeer, 21 Wend. 166; Wellerv. Hersee, 10 Hun 431. The doctrine upon which this exception rests, if not repudiated, has been much weakened in New York by more recent decisions. See Tode v. Gross, 127 N. Y. 480; Watertowix Thermometer Co. v. Pool, 51 Hun 157; 4 N. Y. Supp. 861; Diamond Match Co. v. Eoeber, 106 N. Y. 473; Hodge V. Sloan, 107 N. Y. 244. 246 Parker v. Crane, 6 Wend. 647; Spear v. Downing, 22 How. 30; 34 Barb. 522; 12 Abb. 437; Ingraham v. Gilbert, 20 Barb. 151; Comstock v. Smith, 7 Johns. 87. 24T Bogardus v. New York Life Ins. Co., 101 N. Y. 328; Weeks v. O'Brien, 141 N. Y. 299; ante, p. 38. The Complaiitt or Petition. 187 Alleging performance of conditions. from a construction of the contract whether the performance by the plaintiff of some act therein specified is a condition prece- dent to a right of action. It is well settled that where the covenants between the parties are mutual and both parties are to perform at the same time, the covenants operate as mutual conditions and neither party can maintain an action until he has performed or tendered a per- formance of his part of the agreement. ^*^ The covenants are dependent, and neither party is obliged to part with his money or property and trust to his remedy by action against the other. ^^^ But where it appears from the terms of the agreement, or the nature of the case, that the things to be done were not intended to be concurrent acts, but the performance of one party was to precede that of the other, then he who was to do the first act may be sued although nothing has been done or offered by the other party. ^'*° He has not made performance by the other party a condition precedent to his liability, but has trusted to a remedy by action on the agreement.*^^" ISTo technical words are requisite to render a stipulation a con- dition precedent or subsequent, nor does the construction of the stipulation in this respect depend on the position of words. ^°^ The only cardinal rule is to construe covenants according to the meaning of the parties and the good sense of the case.*^^^ The intent of the parties must control. ^^^ Where the consideration of the defendant's contract is execu- tory, or his performance is to depend on some act to be done or 248 Morris v. Sliter, 1 Denio 59 ; Williams v. Healey, 3 Denio 363 ; Dun- ham V. Mann, 8 N. Y. 508; Speyer v. Colgate, 67 Barb. 192; 4 Hun 622; Independent Order Mutual Aid v. Paine, 17 111. App. 572. 249 Morris v. Sliter, 1 Denio 59. 250 Morris v. Sliter, 1 Denio 59 ; Williams v. Healey, 3 Denio 363 ; Meri- den Britannia Co. v. Zingsen, 48 N. Y. 247; Northrup v. Northrup, 6 Cow. 296. *250 Morris v. Sliter, 1 Denio 59. 251 Barruso v. Madan, 2 Johns. 145. *25i Tompkins v. Elliot, 5 Wend. 496; Pearsall v. Frazer, 14 Barb. 564; Pordage v. Cole, 1 Saund. 319, 320, note 4. 252 Grant v. Johnson, 5 N". Y. 247. 188 The Complaint oe Petitioit. Alleging performance of conditions. forboTne by tke plaintiff, or on some other event, the plaintiff must aver the fulfillment of suoh condition precedent, whether it is in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must shoyr some excuse for the non-performance.*'''^ But when the agreement between the parties contains reciprocal covenants con- stituting mutual conditions to be performed at the same time, the plaintiff must aver not only a readiness to perform his part of the contract and a neglect and refusal of the defendant to perform on his part,^^^ but also that the plaintiff tendered performance on his part.*^^^ Thus, where a contract for the sale of property contains no stipulation for credit or delay on either side, the de- livery of the property and the payment of the price are each conditions of the other, and neither party can sue for a breach without having offered performance on his part. A mere readi- ness to perform is not sufficient "'^^ But in this class of cases an actual tender of performance may be excused where there is a willingness to perform, and actual performance has been pre^ vented or expressly waived by the parties to whom performance is due.^''^ If a vendee, knowing that his vendor is ready and willing to perform, declares himself unable to perform on his part, this excuses a formal tender. ^^"^ »252 Williams v. Healey, 3 Denio 363. 253Bigler v. Morgan, 77 N. Y. 312; Morange ^. Morris, 34 Barb. 311; Nelson v. Plimpton Fire-proof Elevator Co., 55 N. Y. 480. *263 Williams v. Healey, 3 Denio 363; Levy v. Burgess, 64 N. Y. 390; Speyer v. Colgate, 67 Barb. 192 ; 4 Hun 622 ; Culver v. Burgher, 21 Barb. 324; Johnson v. Wygant, 11 Wend. 48; Parker v. Parmell, 20 Johns. 130; Frey v. Johnson, 22 How. 316; Lester v. Jewett, 12 Barb. 502; Fickett v. Brice, 22 How. 194; Dunham v. Mann, 8 N. Y. 508. 25* Speyer v. Colgate, 67 Barb. 192; 4 Hun 622; Dunham v. Mann, 8 N". Y. 508. 255 Nelson v. Plimpton Fire-pi'oof Elevator Co., 55 N. Y. 480 ; Howard v. Daly, 61 N. Y. 362; People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; Karker v. Haverly, 50 Barb. 70; Franchot v. Leach, 5 Cow. 506; Traver V. Halstead, 23 Wend. 66; Lawrence v. Miller, 86 N. Y. 131; I^^y Courts Realty Co. v. Morton, 73 App. Div. 335 ; Smith v. Wetmore, 167 N. Y. 234. 250 Lawrence v. Miller, 86 N. Y. 131 ; Wheeler v. Garcia, 40 N. Y. 584. The Complaint oe Petition. 189 Alleging performance of conditions. Where one party to a contract declares to the other party to it, that he will not make performance on the future day fixed by it therefor, and does not, before the time arrives for an act to be done by the other party, withdraw his declaration, the other party is excused from performance on his part of a condition precedent or from offering to perform it, and may maintain his action for a breach of the contract when the day has passed.^" The failure of one party to a contract to perform some of its obligations, when it consists of a number of independent pro- visions, furnishes no excuse for noii,-performanee to the other party. ^?^ It is only where the non-performance is of a condition precedent, or where such party has wholly i-efused to perform, or has wholly disabled himself from completing a substantial per- formance that the other party is relieved from the performance or a tender thereof.^^° Where in a contract for the sale of land payments are to pre- cede the conveyance, it is no excuse for non-payment that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay offers to do so on receiving a good title, and then it must be made to him or the contract will be rescinded.^"" Where by the terms of the contract it is pro- vided that payments shall be made previous to the execution of the deed, it is not necessary for the plaintiff to convey, or to offer to convey, before bringing suit, even for the last installment.^*^ Under the Code a plaintiff may allege generally that he has duly performed all the conditions on his part, and this will be a sufficient averment of performance of all conditions precedent.^"'' 25T Shaw V. Republic Life Ins. Co., 69 N. Y. 286; Gray v. Green, 9 Hun 334; Christ v. Armour, 34 Barb. 378; Cal. Civil Code, § 1440; Bunge v. Koop, 48 N. Y. 225. 268Bogardus v. New York Life Ins. Co., 101 N. Y. 328; Tipton v. Feitner, 20 N. Y. 423. 259 Bogardus v. New York Life Ins. Co., 101 N. Y. 328. 260Robb V. Montgomery, 20 Johns. 15. 261 Paine v. Brown, 37 N. Y. 228. But see- Johnson v. Wygant, 11 Wend. 48. 262 N. Y. Code of Civil Pro., § 533; Cal. Code of Civil Pro., § 457; North 190 The Compi,aint ok Petitiok. Alleging performance of conditions. The -word " duly " in this and other like provisions of the Code has been held to be one of substance and not of form merely. ^°^ If an excuse for not performing a condition precedent is relied upon the plaintilBE should allege his readiness to perform and the particular circumstances which constitute such excuse.^^* It is well-settled law that a complaint which avers performance of a contract does not authorize proof showing an excuse or waiver of non-performance. ^^° But when performance of a contract is alleged by the plaintiff and denied by the defendant, it is com- petent for the plaintiff to prove that the defendant would not allow him to perform, or repudiated the contract, or had com- mitted a breach of it himself, by hindering performance or re- fusing to abide by its obligations. ^°° And where a building or other contract riequires the certificate of the engineer or archi- tect as a condition precedent to the right to maintain an action for the contract price, this stipulation in the contract has no Car. Code Civil Pro., § 122; Code, 1883, § 263; Colo. Code of Civil Pro., § 67; Oregon Code, § 86. See ante, p. 38. An allegation that the plaintiff has performed all and singular his agreements and covenants with the de- fendant has been held to be a snificient allegation of the performance of a condition precedent. Moritz v. Lavelle, 77 Cal. 10. 2S3 Clemens v. American Fire Ins. Co., 70 App. Div. 435; Les Successeurs D' Aries v. Freedman, 53 N. Y.' Super. Ct. 519 ; Baxter v. Lancaster, 58 App. Div. 380; 68 N. Y. Supp. 1092; Tuttle v. Robinson, 91 Hun 187, 189; 36 N. Y. Supp. 346. 264 Williams v. Healey, 3 Denio 363; Boon v. State Ins. Co., 37 Minn. 426; Daley v. Russ, 86 Cal. 114. 265 Schnaier v. Nathan, 31 App. Div. 225; Elting v. Dayton, 43 St. Rep. 363; 17 N. Y. Supp. 849; 144 N. Y. 644; Bossert v. Poerschke, 51 App. Div. 381 ; 64 N. Y. Supp. 733 ; Gatling v. Central Spar Verein, 67 App. Div. 50 ; Weeks v. O'Brien, 141 N. Y. 199. Under an allegation of performance the plaintiff is not at liberty to prove a modification of the contract, and a per- formance in accordance therewith. La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380; 44 N. Y. Supp. 75; Alexander v. O'Hare, 48 App. Div. 401 ; 63 N. Y. Supp. 179. One who would recover upon a contract as modi- fied must set up the modification in his complaint or petition. Lanitz v. King, 93 Mo. 513. 26 8Burtis V. Thompson, 42 N. Y. 246; Bunge v. Koop, 48 N. Y. 225; Howard v. Daly, 61 N. Y. 362; Langdon v. Burrill, 21 Vt. 466; Smith v. Wetmore, 167 N. Y. 234. The Complaint oe Petition. 191 Alleging performance of conditions. application where a notice kas been given to the contractor that the owner himself would resume charge of the work and com- plete the contract.''" The questions relating to pleading performance of conditions precedent arise frequently in actions based on contracts for the sale of real estate. When the contract provides that the vendor shall convey on condition that the vendee shall pay the purchase price therein specified, and that the vendee shall pay the same in five equal annual installments, the total failure of the vendee to make any of the payments does not entitle the vendor to main- tain an action to recover the entire purchase-money after it is all due without alleging and proving an offer before suit brought to convey the land to the defendant on receiving the purchase price. ^"^ But in equitable actions, where an offer to perform is essential to a recovery, it has been held unnecessary to allege or prove an offer to perform before suit brought, and that an offer in the complaint is sufficient. This has long been the rule in actions for equitable relief where the party seeking the relief is bound to pay some unascertained amount before the relief can be granted ; in actions for the specific performance of contracts relating to land, and in actions to foreclose a lien for purchase money due upon an executory contract for lie sale of land.^°° So where a mortgagor brings an action against the morjtgagee to redeem the chattels mortgaged after default in payment, it is not essential to the plaintiff's right of action that before com- mencing it he should tender or offer to pay the balance due upon the mortgage nor is it necessary for him to offer in his com- plaint to pay the amount which should be found due. The tender and offer are important only as bearing upon the ques- 267 Weeks v. O'Brien, 141 N. Y. 199; Beardsley v. Cook, 143 N. Y. 143; Ringle v. Wallis Iron Works, 149 N. Y. 439. 288Beeclier v. Conradt, 13 N. Y. 108; Thomson v. Smith, 63 N. Y. 301; Smith V. MeCluskey, 45 Barb. 610; Divine v. Divine, 58 Barb. 264. And see Grant v. Johnson^ 5 N. Y. 247. 2e9Freeson 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; Lebley v. Farmers' Loan & Trust Co., 139 N. Y. 461. 192 The Complaint oe Petition. Alleging a demand in actions on contract. tion of costs. ^'^ This distinction between legal and equitable actions grows out of the circumstance that in the latter actions the courts can proteot the rights of any party entitled to per- formance by the judgment.^^^ It is also held that where the purchaser of land under an ex- ecutory contract has made default in the payment of the pur- diase money, no notice to quit, or demand of the amount due, or of possession, or tender of a deed is necessary before bringing an action of ejectment. ^'^ § 21. Alleging a demand in an action on contract. — A de- mand of payment of the maker of a promissory note at the time and place therein named, is an essential part of an indorser's con- tract, and no right of action accrues against him until after a de- mand of the maker has been made in strict compliance with the terms of the contract, and due notice given of the maker's de- fault. 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 in ISTew York 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 the sale of goods, have stipulated for the payment of a specific sum of money on de- mand, 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 de- mand before suit is not essential to a recovery against him.^'* 270 Quin V. Brittaln, Hoff. Ch. 353 ; Beach v. Cook, 28 N. Y. 508 ; Casserly V. Witherbee, 119 N. Y. 522. 271 Thomson v. Smith, 63 N. Y. 301. 272 Wright V. Moore, 21 Wend. 230; Dolittle v. Eddy, 7 Barb. 74; Candee V. Heywood, 34 Barb. 352; Hotaling v. Hotaling, 47 Barb. 163. 273 Parker v. Stroud, 98 N. Y. 379 ; Wolcott v. Van Santvoord, 17 Johns. 248; Woodworth v. Bank of America, 19 Johns. 392;-Ferner v. Williams, 14 Abb. 215; 37 Barb. 10; Grim v. Starkweather, 88 N. Y. 339. 274 Hills V. Place, 36 How. 26; 7 Eob. 389; 5 Abb. N. S. 18; 48 N. Y. 528; Howland v. Edmonds, 24 N". Y. 307; Wheeler v. Warner, 47 N. Y. 519; The Complaint oe Petitioit. 193 Alleging a demand in actions on contract. ISTo right of action exists against a depositary of money until an actual demand of it; and there is no right of action upon a certificate 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 de- liver 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 de- mand 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. In alleging a demand of payment of money due under a verbal contract a general allegation that at various times be- fore the commencement of the action the plaintiff demanded of the defendant the sum sought to be recovered is sufiieient with- out specifying the time and place of the demand.^^* In an action for the recovery of money upon a contract expressly made payable in chattels, the plaintiff must aver as part of his cause of action that a demand of the chattels was made and refused."" Wenman v. Mohawk Ins. Co., 13 Wend. 267; Locklin v. Moore, 57 N. Y. 360; Caldwell v. Cassidy, 8 Cow. 271; Read v. City of Buffalo, 67 Barb. 526; Hirst V. Brooks, 50 Barb. 334; Haxtun v. Bishop, 3 Wend. 13. zTsMunger v. Albany City Nat. Bank, 85 N. Y. 580; Pardee v. Fish, 60 N. Y. 265; Howell v. Adams, 68 N. Y. 314; Boughton v. Flint, 74 N. Y. 476; Phelps v. Bostwick, 22 Barb. 314. z'?e Stacy v. Graham, 14 N. Y. 492; Howard v. France, 43 N. Y. 593. 2"Southwick V. First Nat. Bank, 84 N. Y. 420; 61 How. 164. 27S Frank v. Murray, 7 Mont. 4. 27« Parr v. Johnson, 37 Minn. 457. 194 The Complaint oe Petitioit. Alleging a breach of contract. § 22. Alleging the breach of a contract. — In pleading the breach of a contract 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 existing between them.^*° A complaint is insufficient which merely alleges a promise without averring its breach, or if it assigns a breach of something which has not been promised.^*^ If the complaint in an action to foreclose a mortgage alleges the giving of a bond, it should also allege default in the performance of the condition of the bond.^*^ If the action is on a covenant to pay a mortgage the complaint must allege non-payment or that the defendant had failed to perform his covenant. ^'^ And it is generally held that in all actions for breaches of contract for the payment of money the complaint must in some form allege non-payment of the money to which the plaintiff is entitled.^** There can be no recovery for a breach of warranty without an allegation of the breach. ^^° And the same rule applies to an action on a policy of insur- ance. ^^° And a complaint on contract which fails to allege a breach of the contract by the defendant is demurrable, ^'^ even though the breach consists of the non-payment of moneys due under the contract notwithstanding the general rule that a plain- tiff in the statement of his cause of action is not bound to antici- pate and negative a possible defense.^** But in some oases it 280 Van Schaick v. Winne, 16 Barb. 89 ; Witherhead v. Allen, 4 Abb. Ct. Ap. Dec. 628 ; Tracy v. Tracy, 35 St. Eep. 167 ; Van Giesen v. Van Giesen, 10 N. Y. 316; Krower v. Reynolds, 99 N. t. 245; Lent v. N. Y. & M. R. Co., 130 N. Y. 504; Gill v. /Etna Live Stock Ins. Co., 82 Hun 363; Kraft V. Rice, 45 App. Div. 569. 281 r)u Brutz V. Jessup, 70 Cal. 75. 282 Coulter V. Bower, 4 Law. Bull. 94. 283 Krower v. Reynolds, 99 N. Y. 245. 284Higert v. Trustees of Indiana University, 53 Ind. 326; Wheeler & Wilson Mfg. Co. v. Worrall, 80 Ind. 297 ; Lent. v. N. Y. & M. R. Co., 130 N. Y. 504. 285Kelley v. Kershaw, 5 Utah 417. 286 Gill V. iEtna Live Stock Ins. Co., 82 Hun 363. 287 Kraft V. Rice, 45 App. Div. 569 ; 61 N. Y. Supp. 368. 288 Tracy v. Tracy, 59 Hun 1 ; 12 N. Y. Supp. 665. The Complaint ob Petition. 195 Alleging a breacli of contract. has been held in effect that a complaint in an action for the purchase price of goods sold and deliveredj which alleges a sale and delivery at an agreed price, is sufficient although it fails to allege that no part of such purchase price has been paid.^^" 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 sufficient.^"" 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 sub- stance, though not according to the letter of the covenant. ^"^ The plaintiff may 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 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 performance of either of two acts in the alternative the complaint should allege the non-performance of both aets.'°' 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 289E,ossiter v. Shultz, 62 Wis. 655; Salisbury v. Stinson, 10 Hun 242. This later case has been overruled. Lent v. N. Y. & M. R. Co., 130 N. Y. 504. A complaint need not expressly aver that a claim is due and unpaid if those facts appear from all of the allegations of the complaint taken together. Singleton v. O'Blenis, 125 Ind. 151. 200 Tennessee, Virginia, etc., E. R. Co. v. Staub, 7 Lea (Tenn.), 397. 291 Sehenek v. Naylor, 2 Duer 675. 292 Potter V. Bacon, 2 Wend. 583. 203 Brown v. Stebbins, 4 Hill 154; Abbott v. Allen, 14 Johns, 248; Ward V. Hogan, 11 Abb. N. C. 478. 294 Smith V. Holmes, 19 N. Y. 271; Maynard v. Talcott, 11 Barb. 569; Lewis v. City of BuflFalo, 29 How. 335. 296 Wheeler v. Bavidge, 9 Exch. 668. 288 Lutweller v. Linnell, 12 Barb. 512; People v. Ttilton, 13 Wend. 597. 196 The Complaint ob Petition. Alleging damage in actions on contract. by virtue of the instrument sued upon, but the facts should be stated upon -which this legal conclusion is based.^"' § 23. Allegations of damage in actions on contract, — In an action to recover damages for a breach of contract there must be an averment in the complaint that some damage has accrued to the plaintiff from the breach in order that he may recover even those general damages vsrhich the law assumes flow natu- rally and necessarily from such breach.^"* But while there should be an allegation of damage in order to permit a recovery of general damage, it isi not necessary that such damage should be specifically pleaded.^^'' Thus in an action on contract for the sale and delivery of chattels, if the complaint alleges that the defendant refused to deliver the property to the damage of the plaintiff in a specified sum, it need njjt further allege the price or value of the property at the time and place of delivery, or that the plaintiff could have resold the same at a profit '"'' A recovery of special damage must be based upon a distinct and definite statement in the complaint. ^"^ Thus, in an action to recover damages for a refusal to receive and pay for certain gold contracted for by the defendant the plaintiff must allege facts showing how he was damaged 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 insuffioient.^°^ Damages resulting from loss of profits are special and should be specifically alleged.'"^ 297 Van Schaiok v. Winne, 16 Barb. 89. 20S Goldman v. Gainey, 67 App. Div. 330; Neibuhr v. Sonn, 29 App. Div. 360; 51 N. Y. Supp. 592. 293 Laraway v. Perkins, 10 N. Y. 371 ; Jutte v. Hughes, 67 N. Y. 267. soo Conover v. Manke, 71 Wis. 108. And see Duryea, Watts & Co. v. Rayner, 20 Misc. 544; 46 N. Y. Supp. 437. 301 Goldman v. Gainey, 67 App. Div. 330; Roldan v. Power, 14 Misc. 480; 35 N. Y. Supp. 697; Parsons v. Sutton, 66 N. Y. 92; Armstrong v. Percy, 5 Wend. 535 ; Low v. Archer, 12 N. Y. 277 ; Hallock v. Belcher, 42 Barb. 199; Vanderslice v. Newton, 4 N. Y. 130; Sprout v. Newton, 48 Hun 209. 302 Thompson v. Gould, 16 Abb. N. S. 424. See Gould v. Allen, 1 Wend. 182. 303 Beidler v. Fish, 14 111. App. 623. The Complaint oe Petition. 197 Alleging damage in actions of tort. § 24. Allegations of damage in actions of tort. — Damages are either general or special. General 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 com- plained oi."" It is essential to the m.aintenance 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 therefore 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 ac- tion for a tort to specifically allege in-the complaint such dam- ages as would necessarily and naturally result from the act com- plained of.^°° Such damages may be proved under a general allegation that damages were sustained by the plaintiff ; ^" but as a general rule, if the plaintiff seeks to recover damages which are not the necessary result of the act complained of, and con- sequently are not implied by law, such damages must be par- ticularly stated in the complaint in order to prevent a surprise upon the defendant at the trial ; ^°' and if not so stated, the plaintiff will not be permitted to give evidence of them on the trial ; ^"^ and if the action be not sustainable independent of the special damage, and none be alleged, the complaint will be 304Woo(iruff V. Bradstreet Co., 35 Hun 16; Gumb v. Twenty-third St. E. Co., 114 N. Y. 411, 414; Loftus & Co. v. Bennett, 68 App. Div. 128; 74 N. Y. Supp. 290; Dumont v. Smith, 4 Denio 322; Rembt v, Roehr Publishing Co., 71 App. Div. 459. 305 Knapp V. Roche, 94 N. Y. 329, 332, 333 ; Frensch v. Kamke, 63 Md. 274. 306Jutte V. Hughes, 67 N. Y. 267; Argotsinger v. Vines, 82 X. Y. 303; Gumb V. Twenty-third St. R. Co., 114 N. Y. 414; Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193, 200. 307 Gumb V. Twenty-third St. R. Co., 114 N. Y. 414; Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193, 200. 30S Roberts v. Breekon, 31 App. Div. 431; ,52 N. Y. Supp. 638; Uransky V. D. D., E. B. & B. R. R. Co., 118 N. Y. 304; Gumb v. Twenty-third St. R. Co., 114 N. Y. 414; Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193, 200. 309Gilligan V. N. Y. & H. E. R. Co., 1 E. D. Smith 453; Stevens v. 198 The Complaint oe Petition. Alleging damage in actions of tort. held bad on demurrer as not stating a cause of action,^^" or may be dismissed on the trial/^^ In an action for slander in uttering words not actionable per se, the plaintiff in order to recover must allege and prove special damages, and the special damages must be particularly stated in the complaint.'^^ Where the words charged are not actionable in themselves the plaintiff must allege and prove that by reason of the slander he has sustained some pecuniary dam- age. It is not enough that he has suffered pain of mind, lost the society or good opinion of his neighbors, or the like, unless he has also been injured in his estate or property. The pe- cuniary loss which must be alleged and proved must be the effect of the injurious imputation upon persons other than the plain- tiff."^ Among the things which may be pleaded as special dam- age may be mentioned by way of illustration a refusal of civil entertainment at a public house ; ^^* the exclusion of the plaintiff from a home with her uncle until she had cleared up her char- acter ; ^^^ the refusal of persons to continue to provide fuel, cloth- ing, etc., as formerly ; "° 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 Rodgers, 25 Hun 54; Gumb v. Twenty-third St. R. Co., 114 N. Y. 414; Butler V. Kent, 19 Johns. 223; Squier v. Gould, 14 Wend. 159; Mellwitz V. Manhattan Ry. Co., 17 N. Y. Supp. 112; 43 St. Rep. 354; Uransky v. D. D., E. B. & B. R. R. Co., 118 N. Y. 304; 28 St. Rep. 711. 810 Kennedy v. Press Publishing Co., 41 Hun 422; Butler v. Kent, 19 Johns. 223 ; Havemeyer v. Fuller, 60 How. 316 ; 10 Abb. N. C. 9. 311 Woodruff V. BradstreeJ Co., 35 Hun 16. 3i2Bassell v. Elmore, 65 BarB. 627; 48 N. Y. 561; Tobias v. Harland, 4 Wend. 537; Hallock v. Miller, 2 Barb. 630; Linden v. Graham, 1 Duer 670; Terwilliger v. Wands, 17 N. Y. 54. 313 Wilson V. Goit, 17 N. Y. 442; Beach v. -Ranney, 2 Hill 309; Bassell V. Elmore, 48 N. Y. 561 ; Terwilliger v. Wands, 17 N. Y. 54. 314 Olmsted v. Miller, 1 Wend. 506. 33 6 Williams v. Hill, 19 Wend. 305. 316 Beach v. Ranney, 2 Hill 309. The Complaint oe Petition. 199 Alleging damage in actions of tort. the plaintiff from receiving what would otherwise be conferred upon him, though gratuitously.^^^ To the general rule that in an action for slander in uttering words not actionable per se the plaintiff must allege and prove special damages there is in New York a statutory exception. In an action of slander brought by a woman for words imputing unchastity 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 maliciously, and must be followed as a natural and legal consequence by a pe- cuniary damage to the plaintiff 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.'^" And in order to maintain an action for libel where the law does not necessarily imply liiat the plaintiff sus- tained damage by the act complained of, the complaint must state with particularity that damage resulted in order to dis- close a cause of action.'^^ Where special damage is the foundation of the cause of action 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, or by reason of the publication of a libel, he has lost customers in trade, he should not only state that fact but also state the names of the cus- 3" 1 Stark, on Sland. 195, 202. 318 N. Y. Code of Civil Pro., § 1906. 310 Kendall v. Stone, 5 N. Y. 14; Linden v. Graham, 1 Duer 670. 320 Kennedy v. Press Publishing Co., 41 Hun 422. 321 Woodruff V. Bradstreet Co., 35 Hun 16; Stone v. Cooper, 2 Denio 293; Wallace v. Bennett, 1 Abb. N. C. 478. 322Havemeyer v. Fuller, 60 How. 316; Solms v. Lias, 16 Abb. 311; Low v. Archer, 12 N. Y. 277; Bade v. Press Publishing Co., 37 Misc. 254; 75 N. Y. Supp. 298. 200 The Complaint or Petition. Alleging damage in actions of tort. tomers ; ^^' 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 for that cause refused to loan or purchase.'^* The same rule has been applied in an action to recover the damages sustained by a manufacturer of mustard through the negligence, of the de- fendant in allowing oil impregnated with iron filings to leak from his premises into the plaintiff's mustard mills, whereby the character and reputation of the manufactured article was ruined.'*'' 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 reptition of those words by a third person.^" But this rule is not inflex- ible; 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.'^^ 323Hallock V. Miller, 2 Barb. 630; Hartley v. Herring, 8 Term R. 133 Tobias v. Harland, 4 Wend. 537; Roberts v. Breckon, 31 App. Div. 431 52 N. Y. Supp. 638; Rembt v. Roehr Publishing Co., 71 App. Div. 459 Loftus V. Bennett, 68 App. Div. 128 ; 74 N. Y. Supp. 290. As to the effect of evidence of loss of custom following the publication of an article libelous on its face, where the persons who ceased to trade with the plaintiff are not alleged and no proper objection is taken to the admission of the evidence see Bergmann v. Jones, 94 N. Y. 51. 32* Linden v. Graham, 1 Duer 670. 325 Stapenhorst v. American Mfg. Co., 46 How. 510. 326 Grain v. Petrie, 6 Hill 522. 327 Beach v. Ranney, 2 Hill 309 ; Vicars v. Wilcox, 8 East 1 ; Ashley v. Harrison, 1 Esp. 48; Terwilliger v. Wands, 17 N. Y. 54; Anonymous, 60 N. Y. 262; Olmsted v. Brown, 12 Barb. 657. 32S 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. The Complaint oe Petition. 201 Allegations of wrongful intent. ^ A complaint in an action by a private citizen against a public officer for nusbehavior in office, wbether from misfeasance or nonfeasance, shonld allege a special damage peculiar to the plaintiff.^^^ But in an action against a sheriff for neglecting to return an execution it is not necessary for the plaintiff to allege or prove special damage.'^" In an action by an administratrix to recover damages for a vtrrongful 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 "widovsf or next of kin for vsrhose 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. ^^^ The effect of special averments of special damage without any allegation of general damage is to confine the pleader to proof of the special damage alleged to the exclusion of proof of general damage."^^ § 25. Allegations of wrongful intent. — In certain classes of actions the intent with which the defendant committed a vwong- ful act is wholly immaterial, and need not be alleged, and in others the intent with which the 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 w^hich 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 institut- 329 Butler V. Kent, 19 Johns. 223. ssoLedyard v. Jones, 7 N. Y. 550. 331 Kenney v. N. Y. Cent. & Hudson River E. R. Co., 49 Hun 535 ; 2 N. Y. Supp. 512; Pizzi v. Reid, 72 App. Div. 162. 832 Goldman v. Gainey, 67 App. Div. 330. s33Kiff V. Youmans, 86 N. Y. 324; Phelps v. Nowlen, 72 N. Y. 39 O'Callaghan v. Cronan, 121 Mass. 114; Pickard v. Collins, 23 Barb. 444 Heywood v. Tillson, 75 Me. 225; Stevenson v. Newnham, 96 E. 0. L. 281 202 The Complaint oe Petition. Allegations of wrongful intent. ing 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 prosecution, and want of probable cause cannot be in- ferred from the existence of malice. ^^'^ But as malice on the part of the defendant 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.^^" The in- tent with which the prosecution was commenced may be ad- missible as evidence on the question of malice but is not ad- missible to show want of probable cause.^^^ But even malicious motives and the absence of probable cause will not give a party arrested an action for false imprisonment. They may aggravate his damage but have nothing whatever to do with the cause of action. ^^* Where a mortgage is due and has been assigned, the assignee may maintain an action to foreclose it notwithstanding the fact that he took title to it from motives of malice and the as- signor assigned it to him from a like motive and without con- sideration.^^'' A party who has the right to the natural flow of water in a stream and takes lawful measures to enforce that right will not be restrained by a court of equity although the right claimed is of no value to the claimant and is insisted upon from a bad motive and for the purpose of annoying the plain- tiff!'*" But there are States where the doctrine is held that an Chenango Bridge Co. v. Paige, 83 N. Y. 178; Kamsey v. Erie Ey. Co., 8 Abb. N. S. 174. 33^ Lavender v. Hudgans, 32 Ark. 763; Fliekinger v. Wagner, 46 Md. 580; Sharp V. Johnston, 4 Mo. App. 575 ; Leyenberger v. Paul, 12 111. App. 635. 335 Bitting V. Ten Eyek, 82 Ind. 421 ; 8 Wait's Act. & Def. 388. 336 Vanderbilt v. Mathis, 5 Duer 304; Given v. Webb, 7 Rob. 65. 337 Roy V. Goings, 6 111. App. 140. 338 Marks v. Townsend, 97 N. Y. 590, 597. 339 Morris v. Tuthill, 72 N. Y. 575. 340 Clinton v. Myers, 46 N. Y. 511. The Complaint oe Petition. 203 Demand of judgment or relief. act lawful in itself may be made unlawful because the party who does it is actuated by malice. ^^^ A false representation does not amount to a fraud at law un- less made with a fraudulent intent. An intent to deceive is an essential element of the fraud, and to support the action for the recovery of damages sustained by reason of the false repre- sentation, the intent to deceive must be alleged and proved.'*^ It is not, however, necessary that the intent to deceive should be alleged in express terms if all the averments taken together impute a fraud intentionally committed.'*' But an express aver- ment is preferable, and more in accordance vdth the spirit of the Code.'" In an action for slander, where the words uttered are pre- sumptively 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 plaintiff is not essential to a right of action for an assault where there was an intent to do the wrongful act from which the in- jury resulted.'*^ § 26. The demand of judgment or relief. — The ISTew York Code of Procedure required that the complaint should contain a demand of the relief to which the plaintiff supposes himself 3*1 See Wheatley v. Baugh, 25 Penn. 528; Roath v. DriscoU, 20 Conn. 533 ; Carson v. W. R. R. Co., 8 Gray 423 ; Howland y. Vincent, 10 Metcalf, 373; Parker v. B. & M. R. R. Co., 3 Gush. 114; Greenleaf v. Francis, 18 Rich. 117, 122. 342Addington 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 Steamship Co. v. Mitchell, 1 Abb. N. 8. 396; Brown v. Brockett, 55 How. 32; Evertson v. Miles, 6 Johns. 138; Weed v. Case, 55 Barb. 534. 3*3 Barber v. Morgan, 51 Barb. 116. 3"Zabriskie v. Smith, 13 N. Y. 322. 3«Viels V. Gray, 18 How. 550; 10 Abb. 1. 346 Laverty v. Snethen, 68 N. Y. 522; Roe v. Campbell, 40 Hun 49; Had- dix V. Einstman, 14 111. App. 443. 347 Peterson v. Haffner, 59 Ind. 130. 204 The Complaikt ok Petition. Demand of judgment or relief. entitled, and that if tke recovery of money be demanded, that the amount thereof be stated.^*' This requirement was adopted in substance in all or nearly all of the Code States,^*" and was the basis of the requirement in the present New York Code that the complaint must contain " a demand of the judgment to which the plaintiff supposes himself entitled." ^^'' Although the Code requires that the complaint shall contain this demand of judgment or relief, a mistake in the form or ex- tent of the relief demanded is not ordinarily fatal to the plain- tiff's case. The judgment demanded should be consistent with the allegations of the complaint, and should be such as the facts alleged, assuming them 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. ^^^ Whether the failure of the plaintiff to insert a proper demand of judgment or relief in his complaint or petition is important or otherwise depends largely upon the subsequent proceedings on the part of the defendant. The Code provides that " Where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. Where there is an answer, the court may permit the plaintiff to take any judgment consistent with the ease made by the complaint and embraced within the issue. '^^ Thus, if no answer is interposed, 348 jsr. Y. Code of Proo., § 142. s-ig This is the requirement in California. Cal. Code of Civil Pro., § 426. In Missouri, the statute adds to the requirement as to the statement of the amount demanded, the words " or such facts as will enable the court to ascertain the amount demanded." Eev. Stat., 1879, § 3511. In Ohio, the statute adds to the requirement as to the statement of the amount demanded, the words " and if interest thereon be claimed, the time from which interest is to be computed shall also be stated." 350 N. Y. Code of Civil Pro., § 481. 351 Short V. Barry, 58 Barb. 177; 40 How. 210. 352 N. Y. Code of Civil Proc, § 1207. The New York Code of Procedure provided that " The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the The Complaint oe Petition. 205 Demand of judgment or relief. the plaintifE is practically limited on default or demurrer to the relief demanded, although the facts stated may be suck as would have entitled him to other and different relief had lie 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 an answer is inter- case made by tlie complaint and embraced within the issue." Code of Proc. § 275. This section is copied literally in the statutes of California, Colorado, Indiana, Iowa, and South Carolina, and substantially in the statutes of Kentuelcy, Missouri and Nevada. 353 See Swart v. Boughton, 35 Hun 281 ; Alexander v. Katte, 63 How. 262; 10 Daly 506; Simonson v. Blake, 12 Abb. 331; 20 How. 484; Cody V. First National Bank, 63 App. Div. 199; Edson v. Girvan, 29 Hun 422; Fisher v. Charter Oak Life Ins. Co., 67 How. 191; 14 Abb. N. C. 32; 52 Super. Ct. 179; Corrigan v. Coney Island . Jockey Club, 2 Misc. 512; 22 N. Y. Supp. 394. A demurrer is not to be deemed an answer within the meaning of the provision of the Code here considered. Kelly v. Down- ing, 42 N. Y. 71. A demurrer raises the question whether the plaintiff is entitled to the judgment demanded, for there being no answer, the plaintiff by law can have no other judgment than the one demanded. Willis v. Fairchild, 51 Super. Ct. 405. On demurrer to a complaint, the issue is not whether there are stated in the allegations of the complaint facts sufficient to make some cause of action, but whether the complaint alleges facts sufficient to sustain the judgment demanded by the complaint. Douglass V. Winslow, 52 Super. Ct. 439. But it has also been held that under the present system of pleading a, plaintiff is entitled on demurrer to such relief as the allegations of the complaint justify, irrespective of the prayer for judgment, whether such relief be legal or equitable; and that upon such allegations as make out any cause of action a complaint is not demurrable for a failure to demand the precise relief to which the plaintiff appears to be entitled. The court also held that § 1207 of the New York Code of Civil Procedure providing that where there is no answer, the judgment shall not be more favorable to the plaintiff than he has demanded in his complaint, relates not to an action where a demurrer has been inter- posed, but to one where a judgment is to be entered by default. Parker v. Pullman & Co., 36 App. Div. 2ff8; 56 N. Y. Supp. 734. This doctrine was re-affirmed in a subsequent case. Squires v. Thompson, 73 App. Div. 552, 556, 558. In the Parker case the court held that the plaintiff was entitled to the accounting demanded in the complaint. In the Squires case both legal and equitable relief was demanded, and the court held that the plaintiff was entitled to equitable relief. See also, in the same con- nection, Wetmore v. Porter, 92 N. Y. 76; Lester v. Seilliere, 50 App. Div. 239; Hotel Register Co. v. Osborne, 84 App. Div. 307. 206 The Complaint oe Petition. Demand of judgment or relief. posed the formal relief a&ked in the complaint is not of much importance.^^* The plaintiff will not tihen be turned out of court because he has prayed for too much, or too little, or the wrong relief.^^° If he has asked for relief to which he is not entitled he may still obtain other relief to whicb he is entitled under the allegationsi of the complaint.''^^ If the plaintiff has alleged the facts necessary to maintain an action at law for the amount due under a contract, and the defendant has answered, the plaintiff may take any judgment consistent with the case made by the complaint and embraced within the issues although he has asked for an accounting tO' which he was not entitled.^" So if the complaint alleges facts sufficient to entitle him to maintain an action for the specific performance of a contract his right to maintain such action will not be defeated by the fact that he has asked for a money judgment.^'^ The relief de- 354 Bell V. Merrifield, 109 N. Y. 102; Prout v. Chlsolm, 89 Hun 108; 34 N. Y. Supp. 1066; Sullivan v. Industrial Benefit Assn., 73 Hun 319; 26 N. Y. Supp. 186. 355Murtha v. Curley, 90 N. Y. 372; 12 Abb. N. S. 12; Muldowney v. Morris & Essex E. R. Co., 42 Hun 444; Frear v. Pugsley, 9 Misc. 316; 30 N. Y. Supp. 149; Bryant v. Allen, 54 App. Div. 500; Maher v. Home Ins. Co., 75 App. Div. 226; Redpath v. Redpath, Id. 95. If the facts put in issue by the pleadings and established by the evidence entitle the party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it; and the power to do so is not conditioned on the form of the prayer. Campbell Printing Press Co. v. Damon, 48 Hun 509; 1 N. Y. Supp. 185; Schiffer v. Adams, 13 Colo. 572; Holden v. Holden, 24 111. App. 106; Merchants Nat. Bank v. Hogle, 25 111. App. 543; Greenwood v. New York Life Ins. Co., 27 Mo. App. 401; Davis v. Davis, 9 Mont. 267; McNeill v. Hodges, 105 N. C. 52. The fact that the court cannot grant all the relief asked in the complaint or petition does not deprive it of jurisdiction to grant any relief. Be Oshkosh Mut. Fire Ins. Co., 77 Wis. 366. see Colby v. Colby, 81 Hun 221; 30 N. Y. Supp. 677; Whitman v. Holmes Pub. Co., 33 Misc. 47; Watkins v. Watkins & Turner Lumber Co., 11 App. Div. 517; 43 N. Y. Supp. 41; Parmer v. Parmer, 88 Ala. 545. 367Chaurant v. Maillard, 56 App. Div. 11; 67 N. Y. Supp. 345. To the same general eflFect see Cassagne v. Marvin, 143 N. Y. 292, 302; Valentine V. Riehardt, 126 N. Y. 272; Rogers v. N. Y. & T. L. Co., 134 N. Y. 197; A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603. 358 Bensinger v. Erhardt, 74 App. Div. 169. The Complaint oe Petitioit. 207 Demand of judgment or relief. manded does not necessarily characterize the action or limit the plaintiff in respect to the remedy he may have ; and the fact that 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 facts entitle the plain- tiff to such relief /"* But a demand of judgment for money only will stamp the action as one at law, unless the facts pleaded show an equitable cause simply, and that the relief asked was improperly confined to a money demand merely ; ^°° and if the facts alleged in the complaint are as appropriate to a legal as to an equitable cause of action, the court vdll be guided by the re- lief asked in determining the nature of the aetion.^"^ Where all the allegations of a complaint are made for the purpose of pro- curing equitable relief, and where equitable relief only is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed/*^ Where only legal redress is de- manded and no answer is interposed, the complaint cannot be sustained for equitable relief. ^"^ In this view the -character of the demand for relief may be important. As it is never possible to anticipate when drawing the com- plaint the course of procedure 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 con- sequence. A complaint may be framed in a double aspect so as to present 359 Thatcher v. Hope Cemetery Assn., 46 Hun 594. 3S0 Bell V. Merrifield, 109 N. Y. 202. 361 O'Brien v. Fitzgerald, 143 N. Y. 377. And see Elias v. Schweyer, 27 App. Div. 69; 50 N. Y. Supp. 180. 362 Swart V. Boughton, 35 Hun 287; Cody v. First Nat. Bank, 63 App. Div. 199; Black v. Vanderbilt, 70 App. Div. 16; Kelly v. Downing, 42 N. Y. 71; Corrigan v. Coney Island Jockey Club, 2 Misc. 512; 22 N. Y. Supp. 394. 363 Cody V. First National Bank, 63 App. Div. 199; 71 N. Y. Supp. 277. 208 The Complaint oe Petition. Demand of judgment or relief. grounds for both legal and equitable relief/"* and in such case both forms of relief should be included in the demand of judg- ment. The complaint may demand judgment by way of dam- ages for a breach of a written contract, and also for a reforma- tion 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 fraudulent deed be set aside and that the plaintiff be awarded possession of the lands held under it^°^ It may ask for an injunction restraining the violation of a trader-mark and for damages for past violation thereof. ^^' It may ask for damages caused by the obstruction of navigable water, and that the de- fendants be enjoined from obstructing it in the future.^"' But although a plaintiff may be entitled to maintain separate actions for either legal or equitable 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 plain- tiff cannot demand judgment for an injunction restraining the defendants from using demised premises in a manner pro- hibited 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 possession of the premises."^ So a plain- tiff cannot properly seek to restrain the defendant from erecting 364 Phillips V. Gorham, 17 N. Y. 270; New York lee Co. v. North Western. Ins. Co., 23 N. Y. 357; 21 How. 296; 12 Abb. 414; Laub v. Buckmiller, 17 N. Y. 620, 626; Getty v. Hudson River R. R. Co., 6 How. 269; Wandle V. Turney, 5 Duer 661. 366 New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; 21 How. 296; 12 Abb. 414; Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 233; Maher V. Hibernia Ins. Co., 67 N. Y. 283 ; Wells v. Yates, 44 N. Y. 525. 36 6 Laub V. Buckmiller, 17 N. Y. 620. 307Lattin v. McCarty,.41 N. Y. 107. See Phillips v. Gorham, 17 N. Y. 270. 368 Porous Plaster Co. v. Seabury, 43 Hun 611. 369 Getty V. Hudson River R. R. Co., 6 How. 269. 370 Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Young v. Edwards, 11 How. 201. 871 Linden v. Hepburn, 3 Sandf. 668; 5 How. 188. The Complaint oe Petitiok^. 209 Demand of judgment or relief. a frame building in violation of a city ordinance, and at the same time demand judgment for a penalty for a violation of the ordinance/'" Upon the same principle, a plaintiff cannot demand judgment for the conversion of personal property, and also for the recovery of the possession of the property.''" IT either can a party seek the rescission of a contract on the ground of fraud, and also claim an account under it.^'* It seems, that in some cases, relief in the alternative may be demanded, and relief be granted in the one form or the othqr ; '"" but this doctrine is not unquestioned.^'" A demand for general relief, so common under the old prac- tice, has lost much of its importance under the Code, as in case no answer is interposed, the judgment will be limited to the relief specifically demanded, and in case an answer is. inter- posed, the plaintiff may have any judgment consistent with the case made by the complaint and embraced within the issues. But this prayer is still employed, and seems to still perform the office of a general prayer under the former system of pleading.^" The demand of judgment in an action to compel the deter- mination of a claim to real property 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 complaint.''^ A plaintiff in an action of replevin, who seeks to recover dani- sms Lamport V. Abbott, 12 How. 340. 373 Maxwell v. Farnham, 7 How. 236. 374 Van Lieu v. Johnson, 6 T. & C. 648; 4 Hun 415. 375 Linden v. Hepburn, 3 Sandf. 668; 5 How. 188; Young v. Edwards, 11 How. 201; Margi-af v. Muir, 57 N. Y. 155; Lyke v. Post, 65 How. 298; Campbell v. Campbell, 23 Abb. N. C. 187; 23 St. Eep. 352; 5 N. Y. Supp. 171. 378l>urant v. Gardner, 19 How. 94; 10 Abb. 445. 377 See Rogers v. N. Y. & T. L,. Co., 134 N. Y. 197; Silberberg v. Pearson, 75 Texas 287; Cummings v. Cummings, 75 Cal. 434; Everton v. Esgate, 24 Neb. 235. 378 N. Y. Code of Civil Pro., § 1639. 210 Essential Allegations. Complaint on an account stated. 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 defendant, must demand such damages in his complaint.^'" In an action triable by the court without a jury, the plaintijff 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 IX. The Essential Allegations in Paeticulae Actions. Section 1. Complaint in an action on an account stated. — A complaint or petition in an action upon an account stated is sufficient if it sets forth the fact that an account was stated be- tween the parties ; that a specified sum was found due from the defendant to the plaintiff ; and that such sum is not yet paid.^ It is unnecessary for the plaintiff to set forth in his complaint the subject matter of the original debt,^ or to allege that the de- fendant promised to pay the amount found due to the plaintiff on the accounting, as the law will imply such promise from the other facts alleged.' A promise to pay may be inferred from the retention of an account for a considerable length of time without objection,* but an allegation in the complaint that one of the parties to an account made a statement of it and de- STDN. Y. Code of Civil Pro., § 1722. 380 N. Y. Code of Civil Pro., § 482. 381 N. Y. Code of Civil Pro., § 1668. 1 Moss V. Lindblom, 39 App. Div. 586 ; 57 N. Y. Supp. 703. sSchutz V. Morette, 146 N. Y. 137; 2 N". Y. Am. Cas. 35; Moss v. Lindblom, 39 App. Div. 586; McCall v. Nave, 52 Miss. 494. 3 Moss v. Lindblom, 39 App. Div. 386; Heinrieh v. England, 34 Minn. 395; Claire v. Claire, 10 Neb. 54. 4 Kent V. Highleyman, 17 Mo. App. 9; eonng v. Hill, 67 N. Y. 162, 172. Essential Allegations. 211 Complaint in action for assault and battery. livered it to tlie 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 tha^t there was due to the plaintiff the sum which he seeks to recover.^ An allegation that a verified claim set forth had been presented to an executor pursuant to notice, and that although a reasonable opportunity for examination into its validity was had, the execu- tor had not disputed or rejected it, does not justify an inference of all the facts which are essential to constitute an action on an account stated. ISTo assent of an executor to the correctness of an account presented and a promise to pay the claim can be im^ plied from its presentation, its retention, and his subsequent silence." § 2. Complaint in action for assault and battery. — In an action to recover damages for an assault and battery the essen- tial allegations 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.' It is not essential to the statement of a cause of action that the plaintiff should allege the motion, object or intent of the as- sault, though such motive may be material on the question of damages.^ A party may be liable for an unwarranted assault 5 Emery v. Pease, 20 N. Y. 62; St. Louis Lager Beer Bottling Co. v. Colorado Bank, 8 Colo. 70; Brown v. Kimmel. 67 Mo. 430. 6 Schutz V. Morette, 146 N. Y. 137. 7 Stevens v. Rodgers, 25 Hun 54. As to allegations of special damages, see ante, p. 197. It is held in some jurisdictions that a complaint alleging generally that the defendant assaulted the plaintiff is sufficient. Mitchell V. Mitchell, 45 Minn. 50. In others it is held that a petition alleging that the defendant did " set upon and assault the plaintiff," etc., is not sufficient, without stating the acts which were done, to conform to the provision of the Code requiring a statement of the facts which constitute a cause of action. Stivers v. Baker, 87 Ky. 508. See Ky. Civil Code, § 90. As to the usual mode of stating the wrongful act, see Doyle v. American Wringer Co., 60 App. Div. 526. 8 Root V. Foster, 9 How. 37. The complaint or petition need not charge malice, to justify the recovery of exemplary c'a,mages. Howard v, Lillard, 17 Mo. App. 228. il2 Essential Allegations. In action for assault and battery. although it may not have been committed in anger." If the plaintiff sets forth facts from which malice may be inferred, evidence of the circumstances immediately connected with the transaction tending to show that the defendant acted maliciously is competent and xaay be given, although the complaint contains no express averment that the assault was made with malice.^" If the plaintiff seeks to make the defendant liable for an as- sault committed by anotiher he must allege in his complaint facts showing either a relation between the defendant and the other which in law creates the responsibility, or that the defendant is chargeable by reason of participation or some act tantamount to it. If the assault was committed by a servant of tbe defendant, the plaintiff should allege facts shovsdng - the relation and that the assault was committed while engaged in the defendant's busi- ness, or that the defendant instigated, aided, abetted or sanc- tioned the assault.^^ If the action is brought against both mas- ter and servant, and the complaint instead of charging a joint assault, sets out that one defendant directed the commission of tbe assault by the other, it will be sufficient to show the liability of the master.^^ Although the pleader in stating a cause of action for assault and battery has inserted in the complaint, by way of induce- ment or description, an allegation that the defendant wrongfully, unlavsrfully and forcibly entered upon the premises of the plain- tiff and took personal property therefrom, if this allegation is neither followed by an allegation of injury to the freehold nor of the value of the property taken, the pleading may be con- strued as setting forth a single cause of action for an assault, and not as setting up and joining an action for trespass on Johnson v. McConnell, 15 Hun 293. loElfers v. Woolley, 116 N. Y. 294. 11 Anderson v. ScMesinger, 16 Misc. 535; 38 N. Y. Supp. 296; Hamberg V. Singer Mfg. Co., 4 N. Y. Supp. 185. Mere presence at the time of the assault creates no liability. Hilmes v. Stroebel, 59 Wis. 74; Anderson v. Schlesinger. 16 Misc. 535. 1= Hoffman v. Schwartz, 11 Civ. Proc. R. 200. Essential Allegations. 213 In replevin actions. lands, for trespass to personal property, and for an assanlt.^^ Slanderous words spoken at the time of the assult may properl}' be alleged in the complaint for the purpose of showing the ma- licious and evil intent and design of the defendant towards the plaintiff at the time he conunitted the assault; and the addition of such allegation will not be construed as adding a count for slander.^* § 3. Complaint in replevin. — In an action to recover chat- tels wrongfully taken or detained by the defendant the essential facts to be established are' either the ownership of the chattels by the plaintiff or his right to their possession by virtue of a special property therein ; the value of the chattels ; the wrongful taking or the wrongful detention of the same as the case may be ; and, if the plaintiff seeks damages for injury to the chattels while in the possession or under the control of the defendant, the amount of his damages. The New York Code specifies three classes of cases in which the action will not lie.^^ These classes are in the nature of an exception to lie general rule, and it is unnecessary for the plain- tiff to allege in his complaint that the action is not within any of the excepted cases. ^° An action of replevin can be maintained only by one who has the general or a special property in the thing taken or detained ; and therefore the complaint in such action must allege such gen- eral or special property in the plaintiff ; a general allegation that the plaintiff is entitled to the immediate possession of the chat- tels is not sufficient.^' 13 Doyle V. American Wringer Co., 60 App. Div. 525; 69 N. Y. Supp. 962. And see Langdon v. Guy, 91 N. Y. 661. i^Delmage v. Ci-ow, 22 Misc. 511. 15 N. Y. Code of Civil Pro., § 1690. 16 Hofifman v. Markham, 88 Hun 18; 34 N". Y. Supp. 508. 17 Bond V. Mitchell, 3 Barb. 304; Rockwell v. Saunders, 19 Barb. 473; Pattison v. Adams, 7 Hill 126; Scofield v. Whitelegge, 49 N. Y. 259; 12 Abb. N. S. 320; Vandenburgh v. Van Valkenburgb, 8 Barb. 217. 214 Essential Allegations. In replevin actions. Under the ISTew York Code, if the action to recover a chattel 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 virtue 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 entitled to the possession of the chattel/" In an action based upon the wrongful detention of a chattel, if the complaint alleges that the plaintiff is the owner of the chattel, it is unnecessary to also allege that he is entitled to its immediate possession. Owner- ship imports a right of possession. The complaint must show the title to tlie property in the plaintiff or his right to possession by virtue of some special property therein, but both are not essential, and either is sufficient to maintain the action.^" 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 his claim .turns out to be invalid, fall back upon a claim of lien.^^ A claim of ownership of property and of a lien thereon for unpaid purchase money are inconsistent ; but if the inconsistency plainly appears upon the face of the complaint, the ■ defendant should, before answering, move that the plaintiff be compelled to elect between the inconsistent claims. ^^ When the complaint contains a sufficient statement of the plaintiff's title, a general allegation that the defendant wrong- fully took the chattel is sufficient without setting forth the facts 18 N. Y. Code of Civil Pro., § 1720; Simmons v. Lyons, 55 N. Y. 671; Tell V. Beyer, 38 N. Y. 161; Cliilds v. Hart, 7 Barb. 370. le N. Y. Code of Civil Pro., § 1720. 2oGriswold v. Manning, 67 App. Div. 372; 73 N. Y. Snpp. 702. 21 Hudson V. Swan, 83 N. Y. 552. 22Tuthill V. Skidmore, 124 N. Y. 148. Essential Allegations. 215 In replevin actions. showing that the taking was wrongful. Where the taking of the chattel is not complained of, but the action is founded upon its wrongful detention, the complaint must set forth the facts show- ing that the detention was wrongful. ^^ A complaint which al- leges that the defendant wrongfully detains a chattel from the plaintiff, without alleging that the plaintiff has a general or spe- cial property in the chattel and is entitled to its immediate pos- session, or any other fact showing that the detention is wrongful, does not state a cause of action, and may properly he dismissed on the trial. ^^ Where the plaintiff's case depends upon a wrong- ful 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 demand and refusal to deliver. ^^ Thus, a iona fide pur- chaser of exempt property at a constable's sale is not liable to 23 N. Y. Code of Civil Pro., § 1721. 24Scofield V. Whitelegge, 49 N. Y. 259; 12 Abb. N. S. 320. 25Scofield V. Whitelegge, 49 N. Y. 259; Goodwin v. Wertheimer, 99 N. Y. 149; Moran v. Abbott, 26 App. Div. 570; 50 N. Y. Supp. 337; Fleisehman v. Glaser, 28 Misc. 555; 59 N. Y. Supp. 686; Porges v. Cohen, 23 Mise. 703; 52 N. Y. Supp. 71; Rawley v. Brown, 18 Hun 456; Wolff v. Zeller, 27 Misc. 646; 58 N. Y. Supp. 608; Purves v. Mozlt, 5 Eob. 653; 2 Abb. N. S. 409; 32 How. 478; Stevens v. Hyde, 32 Barb. 171; Fuller v. Lewis, 13 How. 219; 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 viTongful 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. To the same effect see Siedenbach v. Riley, 36 Hun 211, 213; Bernstein v. Warland, 33 Misc. 280, 283; 67 N. Y. Supp. 444. 26 New York Car Oil Co. v. Richmond, 19 How. 505; 10 Abb. 185; 6 Bosw. 213; Moses v. Walker, 2 Hilt. 536. 2THallet V. Carter, 19 Hun 629; Pierce v. Van Dyke, 6 Hill 613. 28 Barrett v. Warren, 3 Hill 348 ; Gillet v. Roberts, 57 N. Y. 28. 216 Essential Allegations. In replevin actions. an action to recover possession thereof" without a previous de- mand."" 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 personal property is demised, there must be a demand after the termination of the term, to sustain re- plevin.^'^ 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 prop- erty delivered to him by a wrong-doer should allege a demand of the property and a refusal to deliver it.^^ Such an allega- tion is essential to a complaint in replevin against an assignee for the benefit of creditors who has merely received, under the general assignment, property which his assignor had obtained by fraud. ''* But where the action is brought directly against the fraudulent vendee 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 plaintiff 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 wrongful.^" In alleging a demand it is not necessary to expressly aver that the demand was made by the plaintiff personally or by his au- 2!> Twinam v. Swart, 4 Lans. 263. soRawley v. Brown, 18 Hun 456. 31 White V. Brown, 5 Lans. 78, 32E,yerson v. Kauffield, 13 Hun 387. =3 Fuller V. Lewis, 13 How. 219; 3 Abb. 383. 3* Fuller V. Lewis, 13 How, 219; 3 Abb, 383; Roome v, McGovern, 8 Daly 60 ; Goodwin v. Wortheimer, 99 K, Y, 149, 35 Hunter v. Hudson River Iron & Machine Co,, 20 Barb. 493, 30 Chapin v. Merchants' Nat, Bank, 31 Hun 529; Rogers v, Cond6, 67 App. Div. 130; 74 N. Y. Supp. 390; Griswold v. Manning, 67 App. Div. 372; 73 N, Y, Supp. 702. Essential Allegations. 21T In I'eplevin actions. tkorized agent.^^ If the demand is made in an action against a vendee who is in the lawful possession of property under a conditional contract of sale, the demand should be in the alter- native, for the chattel itself or the money due. A demand of the latter only is insufficient.'^ In an action for the wrongful taking of a chattel it is not necessary to allege in terms the detention of the property by the defendant,'" nor to set forth facts showing that its detention is wrongful.*" It is well settled that the taking of goods upon fraudulent representations is a tortious taking ; *^ and it is held that the complaint in an action, of this character need not set forth the facts showing the wrongful detention.*^ So it has been held that in an action of replevin to recover goods obtained by a defendant through a purchase under fraudulent representa- tions, it is not necessary to allege in the complaint the facts going to establish the fraud, but that the plaintiff must declare gener- ally, claiming the property as his and giving the special facts in evidence on the trial.*' But 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 showing the insolvency of the defend- ant at the time of the purchase, the fraudulent suppression of insolvency, and the design of the defendant in making the pur- chase, including fraudulent representations made to others by which the property was obtained, although the facts so alleged may partake somewhat of the character of evidence.** An allegation that the defendant took the property of the plaintiff imports a wrongful taking; *° and therefore where a 37 Griswold v. Manning, 67 App. Div. 372. 38Moran v. Abbott, 26 App. Div. 570; 50 N. Y. Supp. 3.37. 39 Hoffman v. Markham, 88 Hun 18; 34 N. Y. Supp. 508. toGowing V. Warner, 30 Misc. 593; 62 K. Y. Supp. 797. 41 Acker v. Campbell, 23 Wend. 372. 42Gowing V. Warner, 30 Misc. 598; 62 X. Y. Supp. 797. 43 Hunter v. Hudson River Iron Co., 20 Barb. 493; Bliss v. Cottle, 32 Barb. 322. See Doherty ,. Shields, 86 Hun 303, 307; 33 X. Y. Supp. 497. 4* Davenport Glucose Mfg. Co. v. Taussig, 31 Hun 563. « Cbilds V. Hart, 7 Barb. 370, 372. 218 , Essential Allegations. In replevin actions. complaint alleges that the plaintiffs are co-partners ; that the de- fendant is the sheriff of the county ; and as such sheriff took from the possession of the plaintiffs certain merchandise owned by them, and wrongfully detains the same, it states facts sufficient to constitute a cause of action.*" But should it be held that the action is for a wrongful detention of the property by the sheriff and that the complaint must set forth facts showing that the de- tention was wrongful, this requirement will be sufficiently com- plied with where the complaint alleges that the plaintiffs were the owners and entitled to the immediate possession of the property described in the complaint ; that they made a demand for the property from the sheriff who was then in possession of it; that the demand was refused; that the sheriff wrongfully detains tiie goods from the plaintiff; and that the cause of such detention was a levy by the sheriff upon said prop- erty by virtue of executions issued against third parties.*^ Where the action is brought against the sheriff tO' recover the possession of exempt. property levied on by him, the complaint should al- lege that the property levied on was an article exempt by law from levy and sale by virtue of an execution; that the plaintiff so notified the officer at the time of the levy, and that he claimed exemption by virtue of the provisions of the statute.** The complaint should of course describe the property sought to be recovered in the action, but the same particularity of de- scription is not required in the complaint as is necessary in the affidavit to be delivered to the sheriff.*" Where the plaintiff 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- 46 Moses V. Bowe, 35 Hun 560. *7 Somer v. Greenberg, 9 Misc. 720 ; 29 N. Y. Supp. 602 ; Desbecker v. McFarline, 42 App. Div. 455; 59 N. Y. Supp. 439. 48 Conklin v. McCauley, 41 App. Div. 452; 58 N. Y. Supp. 879. ioClemmons v. Brinn, .36 Misc. 157; 72 N. V. Supp. 1066. Essential Allegations. 219 In action of trover or conversion. ingly.^" It is not necessary tliat the complaint skould contain a special allegation of the cause of the injury or depreciation as tlie damages can be assessed without such an allegation." 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 plaintiff, and damages for injury to it or depreciation in value, 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. § 4. Complaint in action of trover or conversion. — The complaint in trover should contain allegations showing title, in the plaintiff to the property converted or a right to its posses- sion ; ^" a description of the property ; a statement of its value ; '^^ an allegation of its conversion by the defendant ; "* an allegation of damage; ^^ and a demand of judgment for tlie damages sus- tained.^" To entitle a plaintiff to recover in trover there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate actual possession of it." The action will lie in favor of a plaintiff wbo has either the title to the property or the right to its immediate possession ; he need not have both.''^ So far as the pleading is concerned it is sufficient if facts are set forth which show property or right of possession 50 K. Y. Code of Civil Pro., § 1722. siCrossley v. Hojer, 11 Misc. 57; 31 N. Y. Supp. 837. "Yardum v^ Wolf, 33 App. Div. 247; 54 N. Y. Supp. 192; Wright v. Field, 2 Civ. Pro. R. 141; 64 How. 117. 53 4mfe, p. 52. 6*1 Ghitty PI. 181; Bernstein v. Warland, 33 Misc. 280; 67 N. Y. Supp. 444. ' 'i^ Ante, p. 197. ^^ Ante, p. 203. 5T Clements v. Yturria, 81 N. Y. 285; Hoflf v. Coumeight, 14 Misc. 314; 35 >J. Y. Supp. 1052; Cody v. First Nat. Bank, 63 App. Div. 199; 71 N. Y. Supp. 277. 5S Davis V. Morrell, 16 Week. Dig. 530. 220 Essential Alleqatiosts. In action of trover or conversion. in the plaintiff."" Bare possession of property or mere prior possession is sufficient to sustain trover."" An allegation of pos- session imports lawful possession."^ The plaintiff may allege generally that at the time of the conversion he was the owner of the property and lawfully in possession thereof without setting forth in detail how he acquired such title or possession."- An allegation that the defendant wrongfully took into his possession property of whidi the plaintiff was owner is a sufficient state- ment of the plaintiff's title and right to possession." The property converted should be described with particularity sufficient to identify it, if it is capable of identification, and the time when the property was converted should be alleged with reasonable certainty, as the value of the property at the time of the conversion may constitute the measure of damages. 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 must depend upon the facts of the case. It is not necessary for the plaintiff to al- lege the details from which his title, or possession, or the conver- sion 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 prop- erty to his own use."*^ A fuller statement of the fact may be issYardum v. Wolf, 33 App. Div. 247; 54 N. Y. Supp. 192. 60 Duncan v. Spear, 11 Wend. 54. eiYardiini v. Wolf, 33 App. Div. 247. 62Malcom v. O'Reilly, 89 N. Y. 156; Heine v. Anderson, 2 Duer 308; Berney v. Drexel, 33 Hun 34. 63Kerner v. Boardman, 14 X. Y. Supp. 787; 39 St. Rep. 61. 64 See ante, p. 52; Brunswick, etc., Co. v. Brackett, 37 Minn. 58. 65 Thayer v. Gile, 42 Hun 268; Decker v. Mathews, 12 N. Y. 313; Sander v. Savage, 75 App. Div, 333; Anoka First Nat. Bank v. St. Croix Boom Co., 41 Minn. 141. And see Saratoya Gas & Electric Light Co. v. Hazard, 55 Ilun 251; 7 X. Y'. Supp. 844. Where conversion is alleged as a fact, in general terms, that, is sufficient to admit of any evidence on the Essejsttial Allegatiom'S. 221 In action of trover or conversion. preferable, but excessive particularity is not required in the statement of tbe manner in which a wrong was committed as the defendant is presumptively 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 opposite party than of the party pleading. If the pleader elects to give a narrative of the acts constituting the eonversjon, he must be governed in his allegations by the general rules of pleading and the facts of his particular case. A wrong- ful 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 assuming dominion or control over it."^ Any unauthorized act which deprives another of his prop-- erty permanently or for an indefinite time is a conversion."^ JSTo manual taking on the defendant's part is necessary."^ An as- sumed act of ownership inconsistent with the dominion of the plaintiff, whereby he suffers 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 property, as to trial of issues joined that tends to establish such conversion. Under such an allegation the plaintiff may show that the defendant obtained possession of the property through assignment 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. Berney v. Drexel, 33 Hun 34. See Chapin v. Merchants' Nat. Bank, 31 Hun 529. se Boyce v. Brockway, 31 N. Y. 490; Pease v. Smith. 61 N. Y. 477; Laverty v. Snethen, 68 N. Y. 522 ; ante, p. 203. sTBoyce v. Brockway, 31 N. Y. 490; Pease v. Smith, 61 N. Y. 477; Laverty v. Snethen, 68 N. Y. 522; Fouldes v. Willoughby, 8 M. & W. 540. See Thompson v. Urdoman. 66 Hun 245; 21 N. Y. Supp. 179. esHiort v. Bott, L. E., 9 Exch. 86. 6 9 Bristol V. Burt, 7 Johns. 254; Connah v. Hall, 23 Wend. 462; Reynolds V. Shuler, 5 Cow. 323; Witheringham v. Lafoy, 7 Cow. 735. 70 Pease v. Smith, 61 N. Y. 477; Latimer v. Wheeler, 1 Keyes 468; Bristol V. Burt, 7 Johns. 254; Allen v. McMonagle, 77 Mo. 478; Ramsby v. Beezley, 11 Oregon 49. 222 Essential Allegations. In action of trover or conversion. show a defiance of tlie owner's right, and a determination to ex- ercise 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 de- fendant and he has since done no act in denial of the plaintiff's rights.^^ The sole object of a demand is to turn an otherwise lawful possession 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 unlaw- fully taken the plaintiff's property,^* or, having lawfully ob- 71 Gillet V. Roberts, 57 N. Y. 28. 72Eyerson v. KaufiSeld, 13 Hun 387; Arosemena v. Hinckley, 11 Jones & Sp. 43 ; Goodwin v. Wertheimer, 99 N. Y. 149 ; Hoff v. Coumeight, 14 Misc. 314; 35 N. Y. Supp. 1052; Tripp v. Pulver, 2 Hun 511. But see Milligan V. Brooklyn Warehouse Co., 34 Misc. 55; Bernstein v. Warland, 33 Misc. 280, in which it was held that a demand and refusal in conversion and replevin is a matter of evidence and not a matter of pleading, and does not need to be pleaded any more than other evidence. 73 Pease v. Smith, 61 N. Y. 477; Bsmay v. Fanning, 9 Barb. 176; Munger v. Hess, 28 Barb. 75; Vincent v. Conklin, 1 E. D. Smith, 203; Glassner v. Wheaton, 2 E. D. Smith 352. 74 Connah v. Hale, 23 Wend. 462 ; Pease v. Smith, 61 N. Y. 477 ; Salomon V. Van Praag, 6 Hun 529; Sander v. Savage, 75 App. Div. 333. To secure the possession of property by means of a contract made vsdth its owner, for a small portion of its value, by one who at the time knew the OAvner to be incapable of entering into a contract, constitutes a fraud. Baird v. Howard, 51 Ohio St. 57, 65; Sander v. Savage, 75 App. Div. 333. In an action of conversion by the committee of such defrauded owner, the com- plaint need not allege a demand nor set forth the facts by which the conversion was accomplished. Sander v. Savage, 75 App. Div. 333, citing Thurston v. Blanehard, 22 Pick. 18; Green v. Russell, 5 Hill 183; Decker V. Mathews, 12 N. Y. 313; Chapin v. Merchants' Nat. Bank, 31 Hun 529; Schmidt v. Garfield Nat. Bank, 64 Hun 298; Hutchinson v. Whitmore, 9 Mich. 255; Duggan v. Wright, 157 Mass. 228. Where the complaint alleges that the defendant obtained the property of the plaintiff without his authority, and wrongfully disposed of and converted it to his own use. EssBiTTiAL Allegations. 223 In action of trover or conversion. tamed its possession, has subsequently unlawfully sold or dis- posed 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 the ordinary course of. business, has purchased stolen goods, and subsequently, without knowl- edge of the theft, has sold and delivered 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 tibe plaintiff demanded the property and the defendant re- fused 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 vsdll not render the pleading de- murrable, nor will it debar the plaintiff from proving the de- mand 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 de- liver on demand is an essential part of the wrongful act, it must be alleged in the complaint. In an action for conversion the failure of the complaint to allege that the plaintiff was damaged by the conversion will not an allegation of a demand is unnecessary. Schmidt v. Garfield Nat. Bank, 64 Hun 298; 19 N. Y. Supp. 252; Saratoga Gas & Electric Light Co. v. Hazard, 55 Hun 251; 7 N. Y. Supp. 844; Pease v. Smith, 61 N. Y. 481; Lafayette Co. Bank v. Metcalf, Moore & Co., 40 Mo. App. 502. 76 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 Mich. 89. 76 Pease v. Smith, 61 N. Y. 477. If property sold on the installment plan is stolen from the vendee before an installment is due, a subsequent demand and refusal to deliver will not establish a conversion. Sternberg V. Schein, 63 App. Div. 417. 77Berney v. Drexel, 33 Hun 34. -i24 Essential Allegations. In action for malicious prosecution. vitiate it where it alleges ownership of the property by the plain- tiff, its value, and its conversion by the defendant ; but if it also fails to allege the value of the property it is fatally defective.'* The ad damnum averment in the complaint is customary, though in some jurisdictions held to be noni-essential.'" But if special damages are sought they must be pleaded or they cannot be re^ covered.^" § 5. Complaint in action for malicious prosecution. — To support an action for malicious prosecution it must be alleged iind proved that a prosecution was commenced against the plain- tiff; 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 suf&cient 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 evidence of malice, or which merely tend to aggravate the ordi- nary damages which necessarily result from the alleged wrong, should not be pleaded.*'* But the complaint may contain a statement of facts tending to show the motive of the defendant in instituting the proceedings if it also tends to show special dam- 's Ryan V. Hurley, 119 Ind. 115. '» Woods v. Berry, 7 Mont. 195. so Moravec v. Grell, 78 App. Div. 146. 81 Wheeler v. Nesbitt, 65 U. S. 544; Miller v. Milligan, 48 Barb. 30; Farnam v. Feeley, 56 N. Y. 451; Wanser v. WyckoflF. 9 Hun 178; Laird <:. Taylor, 66 Barb. 139; Vinal v. Core, 18 W. Va. 1; Scotten v. Longfellow, 40 Ind. 23; Cottrell v. Cottrell, 126 Ind. 181. 82 Season v. Southard, 10 N. Y. 236 ; Miller v. Milligan, 48 Barb. 30 ; John V. Duncan, 2 Law Bull. 20; Brown v. Chadsey, 39 Barb. 253; Given v. Webb, 7 Rob. 65; Turner v. O'Brien, 11 Neb. 108; Moody v. Deutseh, 85 Mo. 237; Turner v. Turner, 85 Tenn. 387; Palmer v. Palmer, 8 App. Div. 331; 40 N. Y. Supp. 829; Cousins v. Swords, 14 App. Div. 338; 43 N. Y. Supp. 907. 83Solis V. Manning, 37 How. 13; Eddy v. Beach, 7 Abb. 7; Shaw v. Jayne, 4 How. 119; Malony v. Dows, 15 How. 261, 265. Essential Allegations. 225 In action for malicious prosecution. age which could not be proven on the trial without such state-, ment.** The plaintiff should not allege in his complaint the fact that an account of the plaintiff's arrest and the charge of the defendant upon, which the arrest was made was published in a newspaper, as such matters are irrelevant. ^^ But special dam- ages from loss of business occasioned by the wrongful act of the defendant cannot be recovered unless alleged. ^° The fact that the prosecution has legally and finally termi- nated in the plaintiff's favor is an indispensable 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 prosecution is accompanied by a statement of the manner of its termination, and the facts stated do not show that no further proceedings can be had upon the charge, it will not be sufficient.^* But an allegation that a nolle prosequi had been entered on the indictment against the plaintiff, with the concur- rence 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 ma- licious prosecution, although an appeal has been taken from the judgment and is pending."" But it has been held that where s^Brockleman v. Brandt, 10 Abb. 141. ssHanghie v. K Y. & N. J. Telephone Co., 34 Misc. 634; 70 N. Y. Supp. 584. S6 Erins v. Metropolitan Street R. Co., 47 App. Div. 511 ; 62 N. Y. Supp. 495. See ante, p. 197. 87 Gallagher v. Stoddard, 47 Hun 101 ; Brown v. Chadsey, 39 Barb. 253 ; Hall V. Fisher, 20 Barb. 441 ; Nebenzahl v. Townsend, 61 How. 353 ; Roths- child V. Meyer, 18 111. App. 284; Johnson v. Finch, 93 N. C. 205; Lawler V. Levy, 33 La. Ann. 220. This rule does not apply where the defendant had no opportunity to defend. Bump v. Betts, 19 Wend. 421. ssThomason v. De Mott, 18 How. 529; 9 Abb. 242. In this ease the statement was that the district attorney had certified on the indictment that the case was frivolous and ought not to be tried. An allegation that the magistrate acquitted the plaintiff is substantially an allegation that he discharged him. Scholl v. Schnebel, 29 St. Rep. 676; 8 N. Y. Supp. 855. 89 Moulton V. Beecher, 8 Hun 100. 90 Marks v. Tovnisend, 97 N. Y. 590. 226 Essential Allegations. In action for abuse of legal process. an action for malicious prosecution is based upon an arrest under an order which has since been vacated, the complaint should allege that no appeal has been taken from the order va- cating the order of arrest. °^ § 6. Complaint in action for abuse of legal process. — When the process of the court is illegally and wrong-fully used to com- pel the surrender of property or rights, a right of action accrues to the party injured."^ In an action for abuse of legal process the pleadings and the proofs will vary according to the nattire of the injury for which the plaintiff seeks redress. An action will lie against one who wrongfully and willfully causes an execu- tion to issue on a judgment which he knovre to be paid and satisfied under which the property of the defendant in the ex- ecution is taken and sold ; and in such action it is not necessary that express malice should be alleged in terms and explicitly proved. If the complaint charges the act to have been wrong- fully and willfully done, and the evidence supports the allegation it is sufiicient.^^ In such case it is evident that it is imma- terial to the right of action whether the defendant was actuated by actual malice towards the former judgment-debtor or by a de- sire to obtain double payment of his judgment. So an action may be maintained against one who has wrongfully sued, arrested and imprisoned the plaintiff for a wrongful or fictitious claim, vnth- out alleging or proving a want of probable cause; and an aver- ment of the wrongful act in substantially the language above used, is an averment of a fact and is good pleading under the present practice."* So where a landlord without right has turned 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 91 Ingram v. Root, 51 Hun 238. 02 Brown v. Feeter, 7 Wend. 301; Bebinger v. Sweet, 1 Abb. N. 0. 263; 6 Hun 478; Smith v. Smith, 20 Hun 555; Brown v. Mclntyre, 43 Bai-b. 344. 93 Brown v. Feeter, 7 Wend. 301. 94 Hazard v. Harding, 63 How. 326. Essential Allegations. 227 In action for false imprisonment. charge, the tenant may maintain an action for the damages he has sustained without alleging or proving the termination of the criminal prosecution."^ But in action for having falsely and maliciously and without probable cause procured process to be issued in an action brought by the defendant against the plain- tiff under which the latter was arrested and imprisoned, and the proceedings are regular on their face, the complaint must allege that the process under which the arrest was made had been set aside or vacated in the action in which it was issued. °° § 7. Complaint in action for false imprisonment. — False imprisonment is the unlawful restraint of a person contrary to his will, either with or without process of law. Two things are requisite, detention of the person and the unlawfulness of such detention. Malice need not be shown and is immaterial except as it may affect the question of damages, but in such case it is necessary to show want of probable cause. Malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggravate his damage, but have nothing whatever to do witii his cause of ac- tion. °^ The complaint must show that the arrest was unlawful, and an allegation that the arrest was procured maliciously and without probable cause is insufficient."^ If the arrest was made upon a criminal charge the complaint should allege either that the imprisonment of the plaintiff was illegal, or was procured without a warrant.'" The complaint must show that the im- prisonment was " unlawful and without authority of law." But it is not necessary that the illegality of the imprisonment should 95 Bebinger v. Sweet, 1 Abb. N. C. 263; 6 Hun 478. 9« Forster v. Orr, 17 Oregon, 447. "Thorp V. Carvalho, 14 Misc. 554; 36 K. Y. Supp. 1; Marks v. Townsend, 97 N. Y. 590; Limbeck v. Gerry, 15 Misc. 663; 39 N. Y. Supp. 95; Brown V. Chadsey, 39 Barb. 253. 98 Cunningham v. East River Electric Light Co., 42 St. Rep. 212; 17 N. Y. Supp. 372; Bonnet v. Wanamaker, 34 Misc. 591; 70 N. Y. Supp. 372. 99 Cousins v.* Swords, 14 App. Div. 338; 43 N. Y. Supp. 907; Bonnet V. Wanamaker, 34 Misc. 591. 228 Essential Allegations. In action for false imprisonment. be alleged in tliose words where it appears from the facts alleged in the complaint that the arrest was unlawful and without authority or due process of law. The words quoted are but the conclusions drawn from the facts presented. ^'"' An allegation that the arrest was made " without any right or authority so to do " may be deemed, on demurrer, to state that the imprisonment was illegal, though it would be better to definitely state that the imprisonment was illegal or procured without a warrant."^ It was never necessary in an action for false imprisonment to set forth in the complaint the particular instrumentality by which a plaintiff was restrained of his liberty. If the imprison- ment complained of was the immediate effect of the act of a third person who made the arrest for and with the approbation of the defendant, the false imprisonment should be alleged in the complaint as the act of the defendant.^"^ In such case 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 impris- oned him against his will for a time specified, to the great damage of the plaintiff, and demands judgment for damages has been held to be a good pleading under the Code and to sufficiently state a cause of action for false imprisonment.^*" If the plaintiff has sustained special damages by reason of the false imprisonment they should be alleged.^"* § 8. Complaint 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 defraud, or to cause other injury 100" Warren v. Dennett, 17 Misc. 86; 39 N. Y. Supp. 830; Cunningham V. East River Electric Light Co., 42 St. Rep. 212; 17 N. Y. Supp. 372. 101 Bonnet v. Wanamaker, 34 Misc. 591 ; 70 N. Y. Supp. 372. 102 Shaw V. Jayne, 4 How. 119, 122; Eddy v. Beach, 7 Abb. 17. 103 Shaw V. Jayne, 4 How. 119, 122. loiMolony v. Dews, 15 How. 261. See ante, p. 197. Essential Allegations. - 229 In action for conspiracy — for fraud and deceit. to person or property, which actually resulted in damage to the person or property of the plaintiff.^"^ The fact of conspiracy cannot be established by a bare aver- ment of an unlawful combination."" A complaint in an action for a conspiracy to defraud is sufBcient 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 the preconceived intent not to pay for them, and that in carrying out this conspiracy, false and fraudulent representations were made to the plaintiff by S., on which the plaintiff relied, and parted with his goods to his damage, etc Such general alle- gations may be proved upon the trial by any circumstance going to establish them.^"^ Great latitude is allowed in the statement of the particular acts from which the conspiracy is to be inferred."* The complaint must allege damage to the plaintiff. A charge of conspiracy is fatally defective where there is no averment in a competent form that the conspiracy, or the acts done in furtherance of it, resulted in damage to the plaintiff.^"" § 9. Complaint in action for fraud or deceit. — The essen- tial constituents of an action for fraud and deceit are representa- 105 Place V. Minster, 65 N. Y. 89. 106 Kellogg V. Lehigh Valley R. R. Co., 61 App. Div. 35. A complaint which alleges that the defendants, at a time and place specified, " in concert did, by connivance, conspiracy and combination, cheat and defraud the plaintiflFs out of " certain goods of a value stated, does not state facts sufficient to constitute a cause of action. Cohn v. Goldman, 76 N. Y. 284. Upon the trial of the case of Ynguanzo, reported 3 Daly 153, a motion to dismiss a complaint, containing similar allegations, upon the ground that it did not state facts sufficient to constitute a cause of action, was denied; the action of the trial court was sustained by the General Term, and the complaint held sufficient, and, on appeal to the Court of Appeals, the judgment was affirmed, but without written opinion. This case is dis- approved in Cohen v. Goldman, above cited. 107 Place V. Minster, 65 N. Y. 89. los Mussina v. Clark, 17 Abb. 188; Tappan v. Powers, 2 Hall 277. 109 Douglass V. Winslow, 52 Super. Ct. 439. 230 Essential Allegations. In action for fraud and deceit. tion, falsity, scienter^ deception, and injury.^^" The complaint in an action brought by the vendee of goods against the vendor to recover damages sustained by reason of having been induced to make the purchase by the false and fraudulent representa- tions of the vendor, must allege the making of the representa- tions by the defendant, and their substance; that they were false and known by the defendant to be false when made; that they were made with intent to deceive the plaintiff and induce him to make the purchase; that the plaintiff believed the rep- resentations so made and relied thereon and was deceived thereby arid induced thereby to make the purchase to his dam- age.^^^ And, generally, it is necessary for a party seeking to recover or offset damages on the ground of fraud to allege and prove the making of false representations with knowledge of their falsity, by which he was deceived and upon which he relied, and in consequence of which he sustained damage.^^^ Every fraudulent representation upon which the plaintiff relies to sustain his cause of action should be stated as only such as are pleaded can be proved upon the trial.^^^ The acJts of fraud must be specifically set out in the complaint; but it is unnecessary to state minutely and in detail all the conversations by which the fraudulent representations are proved.^^* Ex- cessive particularity is not required in allegations of fraud. The array of- facts and circumstances, although not minutely stated, is sufficient.^^^ The plaintiff may allege directly that 110 Arthur v. Griswold, 55 N. Y. 400, 410; Brackett v. Griswold, 112 N. Y. 454, 467; Kingsland v. Haines, 62 App. Div. 146, 148. And see McKinnon v. Mclntosli, 98 N. C. 89. 111 Barber v. Morgan, 51 Barb. 116; Cazeaux v. Mali, 25 Barb. 278; Boss V. Mather, 51 N. Y. 108. 112 Arthur v. Griswold, 55 N. Y. 400; Oberlander v. Spiess, 45 N. Y. 175; Wakeman v. Dalley, 51 N. Y. 27; Lefler v. Field, 52 N. Y. 621; Dubois v. Hermance, 56 N.' Y. 673; Brackett v. Griswold, 112 N. Y. 454; Kingsland V. Haines, 62 App. Div. 146; Eccardt v. Eisenhauer, 74 App. Div. 35. ii3Eeed v. Clark Cove Guano Co., 47 Hun 410; Wells v. Jewett, 11 How. 242. i"Hiek V. Thomas, 27 Pac. (Cal.) 208, 376. 116 Williams v. Folsom, 57 Hun 128; 10 N. Y. Supp. 895; Passavant v. Cantor, 21 Abb. N. C. 259, 264. Essential Allegations. 231 In action for fraud and deceit. the representations were made with intent to deceive and de- fraud the plaintiff/^" or he may allege facts which taken together necessarily imply that a fraud has been committed.^^' The falsity of the representation may be pleaded by an express averment or by a statement of facts showing that it is false.^^' It must appear that the defendant believed or had reason to believe at the time he made the representations that they were false; or that, without Imowledge, he assumed, or intended to convey the impression, that he had actual knowledge of their truth; and it must also appear that the plaintiff relied Tipon such representations to his injury.^^^ The complaint must therefore allege that the defendant in making the representa- tions knew that they- were false ^^° as this averment is essential to establish fraud except in those cases where the representa- tion is made as of personal knowledge and it is false.^'^ An allegation that the defendant " falsely and fraudulently repre- sented " that certain facts existed is a sufficient allegation that the defendant knew the representation to be false when he made it ^^^ and charges an intentional fraud.^'^ lie Morse v. Snitts, 19 How. 275; Addington \. Allen, 11 Wend. 402; Star Steamship Co. v. Mitchell, 1 Abb. N. S. 396. iiT Barber v. Morgan, 51 Barb. 116; Sharp v. Mayor of X. Y.. 40 Barb. 256; 25 How. 389; Zabriskie v. Smith. 13 N. Y. 322; Andrews v. King County (Wash.), 23 Pac. 409. iisHomire v. Rodgers, 74 Iowa 395. iisKountze v. Kennedy, 147 N. Y. 124; Garrett Co. v. Astor, 67 App. Div. 595; 73 N. Y. Supp. 966; Marsh v. Falker, 40 N. Y. 562; Stitt v. Little, 63 N. Y. 427; Wakeman v. Dalley, 51 N. y. 27; Meyer v. Amidon, 45 N. Y. 169. See West v. Wright, 98 Ind. 335; Walsh v. Morse, 80 Mo. 568. 120 Van Publishing Co. v. Westinghouse, C. K. & Co., 72 App. Div. 121; Britt V. Marks, 25 Pac. (Or.) 636. But see Furnas v. Friday, 102 Ind. 129. 121 Garrett Co. v. Astor, 67 App. Div. 595 ; 73 N. Y. Supp. 966. Defend- ant's knowledge of the falsity of his representations may be stated by im- plication as well as by direct averment. Silver v. Holden, 50 N. Y. Super. Ct. 236. 122 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; 36 How. 385. 123 Dudley v. Scranton, 57 N. Y. 424. 232 Essential Allegations. In action for fraud and deceit. A complaint may be so framed as to allege a fraud althougH the words " fraud " or " fraudulently " are not employed to characterize the transaction or any of the acts ^of the defend- ant.^^* Where the complaint sets forth the facts and their necessary consequence is fraud, it need not he characterized in the complaint in terms.^^" But 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.^^' It is incumbent on the party claiming to recover in this class of actions to show that he was influenced by the representations made to him, and to allege the fact in his complaint as well as to prove it on the trial.^^* It is usual to allege in the complaint that the plaintiff believed the rep- resentations made to him to be true; and such belief is a fact essential to fraud; but an allegation that the plaintiff relied upon the representations made by the defendant and acted upon them imports belief that they are true.^^° In an action to recover damages for deceit in inducing the 124 See Warner v. Blakeman, 4 Keyes 487 ; Maher v. Hibernian Ins. Co., 67 N. Y. 283; Whittlesey v. Delaney, 73 N. Y. 571; Goldsmith v. Goldsmith, 145 N. Y. 313. 125 Warren v. Union Bank of Rochester, 157 N. Y. 259, 273 ; Poillon v. Poillon, 37 Misc. 729. 126 Shields v. Clement, 12 Misc. 506 ; 33 N. Y. Supp. 676. An intent to defraud may be alleged generally without alleging facts showing the intent. National Union Bank v. Reed, 27 Abb. N. C. 5; 12 N. Y. Supp. 920. In some jurisdictions the motive of the defendant in making the false representations is immaterial, as the law infers an improper motive. Keith V. Goldston, 22 111. App. 457. That false representations are conclusively presumed to have been made with intent to deceive, see Hudnut v. Gard- ner, 59 Mich, 341. 12T Bennett v. Gibbons, 55 Conn. 450; Estep v. Armstrong, 69 Gal. 536. See ante, p. 230. 1=8 Taylor v. Guest, 58 N. Y. 262; Barber v. Morgan, 51 Barb. 116; Bish V. Van Cannon, 94 Ind. 263; Converse v. Hood, 149 Mass. 471. 128 Douglass V. McDermott, 21 App. Div. 8; 47 N. Y. Supp. 336. But compare Estep v. Armstrong, 69 Cal. 536. Essential Allegations. 233 In action for libel or slander. plaintiff to purchase worthless property it is not necessary or proper to allege in the complaint a return or an offer to return the property.^^" In an action for falsely and fraudulently representing a person as solvent, the complaint should allege that the representations were made with intent to deceive and defraud, but if it alleges this in substance it is sufficient.^" § 10. Complaint in action for libel or slander. — In an action for libel or slander it is not necessary to state in the com- plaint any extrinsic fact for the purpose of showing the appli- cation to the plaintiff of the defamatory matter; but the plaintiff may state generally that it was published 'or spoken concerning him, and if the allegation is controverted, the plain- tiff must establish it on the trial.^'^ The former rule requiring a preliminary averment in the complaint pointing out the appli- cation to the plaintiff of the words published or spoken has been abrogated by the above provision of the Code.^^' Under this provision it is no longer necessary to allege in a complaint for libel that the alleged libelous matter was understood by the friends and acquaintances of the plaintiff and by the public generally as applying to the plaintiff, if it is alleged that the article was published of and concerning the plaintiff.^'* It is not necessary to a recovery for a libel that the plaintiff should have been named in the libelous article if the description or reference contained therein identifies him.^^^ And where the 130 Miller v. Barber, 66 N. Y. 558 ; Hubbell v. Meigs, 50 N. Y. 487 ; Kley V. Healy, 127 N. Y. 555. i3iZabriskie v. Smith, 13 N. Y. 322. 132 See ante, p. 30; N. Y. Code of Civil Pro., § 535; Cal. Code of Civil Pro., § 460; Colo. Code of Civil Pro., § 69. 133 Arrow Steamship Co. v. Bennett, 73 Hun 81 ; 25 N. Y. Supp. 1029 Stokes v. Morning Journal Assn., 72 Ap'p. Div. 184; 76 N. Y. Supp. 429 Jacquelin v. Morning Journal Assn., 39 App. Div. 515; 57 N. Y. Supp. 299 134 Stokes V. Morning Journal Assn., 72 App. Div. 184; 76 N. Y. Supp, 429; Peters v. Morning Journal Assn., 74 App. Div. 305; 77 N. Y, Supp. 597. 135 Palmer v. Bennett, 83 Hun 220; 31 N. Y. Supp. 567. 234 Essential Allegations. In action for libel or slander. words published amount to a libelous charge against some person, but their application to the plaintiff is uncertain, such application may be shown by proof of extrinsic facts, although they are not alleged in the complaint.^'" The object of the provision of the Code above referred to was to allow the plain- tiff to allege that an article was published of and concerning him, mthout requiring the allegation of the facts from which that inference could be drawn.^^' But where the publication does not relate to a class, and does not in any way identify the person spoken of, it cannot be made to apply to an individual by a simple allegation that it was published of and concerning him.^'* And although the complaint alleges that the article was published of and concerning the plaintiff, this allegation must be rejected, on demurrer, when the facts stated are at variance with the allegation and it appears on inspection of the complaint that the article did not refer to the plaintiff.^'" If the language of the libel does not necessarily refer to the plaintiff, he must allege in some issuable form that they were intended to and were understood by others to be applicable to him, or he must follow the form prescribed by the Code and allege that the defamatory matter was published of and con- cerning the plaintiff.^*" If the latter mode of pleading is followed it is not essential that the express words of the Code should be used, as equivalent words are sufficient. ^^^ Where a publication refers to a number of the members of the staff of a hospital and one of the number brings an action i36Petsch V. St. Paul Dispatch Printing Co., 40 Minn. 291; Peters v. Morning Journal Assn., 74 App. Div. 305; 77 N. Y. Supp. 597. IS' Peters v. Morning Journal Assn., 74 App. Div. 305. issHauptner v. White, 81 App. Div. 153. 139 Pleischniann v. Bennett, 87 N. Y. 231; Wellman v. Sun Printing & Pub. Co., 66 Hun 334; 21 N. Y. Supp. 577; Zinserling v. Journal Co., 26 Misc. 591; 57 N. Y. Supp. 905; Bo.si v. New York Herald Co., 33 Misc. 622. See Lehmann v. Tribune Assn.,- 37 Misc. 506, 509. "o Crane v. O'Reilly, 13 Civ. Pro. R. 71; 11 St. Rep. 277. 1" Jacquelin v. Morning Journal Assn., 39 App. Div. 515 ; 57 N. Y. Supp. 299. Essential Allegations. 235 In action for libel or slander. for libel, if the answer mentions the plaintiff by name the legal effect of the publication is the same as if the plaintiff was the only one referred to in the article and as if reference had been made to him therein eo nomine.^" The complaint in an action for libel should contain an aver- ment that the defendant published concerning the plaintiff certain defamatory matter which should be stated fully. The alleged libeloxis matter must be stated in the complaint in order that the defendant may be apprised exactly of what he is to meet and repel, and that the court may know precisely what was ^vritten.^^^ 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 pTecise words published should be set out, and it is not sxifficient to set out their tenor and effect with inuendoes.^*^ If the words were published in a foreign language they should be set forth in that language with an averment of their meaning in English.^*'' It is held in some jurisdictions that the complaint in an action on a libel published in a foreign language, where the signification only is published in English, must aver that the libel was so under- stood.^*^ But if facts are alleged from which it may fairly be inferred that it was so understood a failure to allege the fact directly will not render the complaint demurrable.^*' 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 i*2Bornmann v. Star Co., 174 N. Y. 212. 1*3 Battersby y. Collier, 24 App. Div. 89 ; 48 N. Y. Supp. 976. i« Culver T. ^'an Anden, 4 Abb. 375; Blethen v. Stewart, 41 Minn. 205; Wallis V. Walker, 73 Texas 8. 145 Battersby v. Collier, 34 App. Div. 347; 48 N. Y. Supp. 976; Brad- street Co. V. Gill, '72 Texas 115. "6 Lettman v. Eitz, 3 Sandf. 734; Pelzer v. Benish, 67 ^Yis. 291. i«Simonsen v. Herold Co., 61 Wis. 626. 148 Peters v. Morning Journal Assn., 74 App. Div. 305. 236 Essential Allegations, In action for libel or slander. necessarily expose the plaintiff to contempt and ridicule, the law will infer malice, and the absence of a direct averment of falsity and malice will not render the pleading legally objection- able.^*" An allegation that the Avords published are a libel is a sufficient averment of falsehood and malice.^^" Where the defamatory matter is presumptively privileged the complaint should contain an averment of malice ; and a general statement that the words were poiblished falsely and maliciously is suf- ficient."^ 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.^^' It is not sufficient to set forth the slanderous words with the qualification " or words of like purport, meaning and effect," or to set forth the tenor and effect of the words used.^" The words must be proved strictly as alleged. ^'^^ If the defamatory words im- 149 Hunt V. Bennett, 19 N. Y. 173; Dixon v. Allen, 69 Cal. 527; Ulrieh V. New York Press Co., 23 Misc. 168; 50 N. Y. Supp. 788; Prince v. Brooklyn Daily Eagle, 16 Misc. 186 ; 37 N. Y. Supp. 250. An allegation of falsity is not traversable and the defendant must plead facts wMch constitute justification. Seofield v. Demorest, 55 Hun 254; 7 N. Y. Supp. 832. 150 Hunt V. Bennett, 19 N. Y. 173. The presumption of the law is that the publication, if false and libelous, was malicious. Youmans v. Paine, 86 Hun 479; 35 N. Y. Supp. 50; Warner v. Press Pub. Co., 132 N. Y. 181. 151 Viele V. Gray, 18 How. 550; 10 Abb. 1 ; Younger v. Duffie, 26 Hun 442. 152 It is as necessary to show that the slander was uttered in the presence of others as that it was uttered. Frank v. Kaminsky, 109 111. 26; Des- mond V. Brown, 33 Iowa 13. 153 Forsyth v. Edmiston, 2 Abb. 430; 5 Duer 653; Germ Proof Filter Co. V. Pasteur Filter Co., 81 Hun 49; 30 N. Y. Supp. 584; McDonald v. Edwards, 20 Misc. 523; 46 N. Y. Supp. 672. 154 Sword V. Martin, 23 111. App. 304 ; Drohan v. O'Brien, 76 App. Div. 265. i55Este3 V. Estes, 75 Me. 478; Wood v. Hilbish, 23 Mo. App. 389. Actionable words not counted on cannot be given in evidence. Rundell V. Butler, 7 Barb. 260; Keenholts v. Becker, 3 Denio 346; Root v. Lowndes, 6 Hill 518. Essential Allegations. 237 In action for libel or slander. pute the commission of a crime the complaint need not allege malice."" In an action for slander or libel it is unnecessary for the plaintiff to allege good character and repute and the respect of friends, acquaintances and the community. All of this the law assumes.^"' In an action for libel, if the words published are not libelous per se, the complaint must allege the extrinsic fact on which the plaintiff relies to show the alleged libelous character of the words complained of. The fact must be distinctly averred, and it will not be sufficient to allege it by way of inuendo.^^^ The same rule applies in actions for slander.^°^ After the statement of the extrinsic fact should follow the inuendo, if one be needed. The office of an inuendo is to define the defamatory meaning which the plaintiff places upon the words published, to show how they came to have that meaning and how they relate to the plaintiff.^"" It is only this last mentioned office of the inuendo that has been dispensed with by the Code.^°^ As the inuendo is explanatory merely, and is designed to show the true meaning and intent of the words published, it cannot enlarge the sense of words, or supply or alter them where they are deficient.^'" It cannot extend the meaning of the words beyond what is justified 156 Burton v. Beasley, 88 Ind. 401. iBf Stafford v. Morning Journal Assn., 142 N. Y. 598. 158 Caldwell v. Raymond, 2 Abb. 193; Culver v. Van Anden, 4 Abb. 375; Stewart v. Wilson, 23 Minn. 449; Fry v. Bennett, 5 Sandf. 54; Ward v. Colyhan, 30 Ind. 395; Wood v. Hilbish, 23 Mo. App. 389; Boyce v. Aubuchon, 34 Mo. App. 315. 159 Hart V. Coy, 40 Ind. 553; Ward v. Colyhan, 30 Ind. 395; Rundell V. Butler, 7 Barb. 260. 180 Price v. Conway, 134 Pa. 340. Under the Massachusetts statutes no inuendoes are necessary in a declaration for slander. Mass. Pub. Stat., Ch. 167, § 91. See Clarke v. Zettick, 153 Mass. 1. i«i Caldwell v. Raymond, 2 Abb. 193. lo^Blaisdell v. Raymond, 14 How. 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., Assn., 3 Abb. N. C. 157; Havemeyer V. Puller, 60 How. 316; 10 Abb. N. C. 9; Fleischman v. Bennett, 87 N. Y. 231. 238 Essential Allegations. In action for libel or slander. by the words themselves and the extrinsic facts with which they are connected."^ If reading the published article as a whole it is defamatory and libelous per se, there is no need of an inuendo to point out what was intended to be charged by the language employed.^"* But where the article is capable of both an innocent and a defamatory meaning there must be an inuendo to point out the defamatory meaning which the plaintiff claims to be the true meaning and upon which he relies to sustain his action as in such case the inuendo is necessary to the sufficiency of the statement of a cause of action. ^^° That the right meaning be assigned and one that can be supported by the words used is to the last degree important. Where a plaintiff assigns a meaning to the words published he rejects every other meaning which might be ascribed to such words; is limited to the mean- ing of the words as interpreted by himself ; and if such meaning is not libelous, then the plaintiff has not stated a cause of action, even though the words standing alone might be libel- 183 Sanderson v. Caldwell, 45 N. Y. 398; Brown v. Moore, 90 Hun 169; 35 N. Y. Supp. 736; McLaughlin v. Fisher, 136 111. 111. is^Collis V. Press Publishing Co., 68 App. Div. 38; 74 N. Y. Supp. 78; Keller v. Dean, 57 App. Div. 7 ; 67 N. Y. Supp. 842 ; Turton v. New York Recorder Co., 144 N. Y. 144; Mooney v. Bennett, 44 App. Div. 423; 60 N. Y. Supp. 1103; Carroll v. White, 33 Barb. 615; Tuttle v. Bishop, 30 Conn. 80; Frank v. Dunning, 38 Wis. 270; Giddens v. Mirk, 4 Ga. 364; Logan V. Steele, 1 Bibb 593; West v. Hanrahan, 28 Minn. 385; Randall v. Evening News Assn., 44 N. W. (Mich.) 783; Manner v. Simpson, 13 Daly 156. lesHemmens v. Nelson, 138 N. Y. 517; Kingsbury v. Bradstreet Co., 116 N. Y. 211; Beecher v. Press Publishing Co., 60 App. Div. 536; 69 N. Y. Supp. 895; Smid v. Bernard, 31 Misc. 35; 63 N. Y. Supp. 278. 186 Martin v. Press Publishing Co., 40 Misc. 524; Wust v. Brooklyn Citizen, 38 Misc. I; Brown v. Tribune Assn., 74 App. Div. 359; 77 N. Y. Supp. 461; Westbrook v. New York Sun Assn., 32 Misc. 37; 65 N. Y. Supp. 399; Morrison v. Smith, 83 App. Div. 206; Beeeher v. Press Pub. Co., 60 App. Div. 536; Smid v. Bernard, 31 Misc. 35. It was held in Wisconsin that where the publication is libelous on its face and is set out in the complaint, the fact that inuendoes enlarge the meaning and attribute to the words used a signification that they will not bear, does not render the complaint demurrable. Kraus v. Sentinel Co., 60 Wis. 425. ESSENTIAX AXLEGATIONS. 239 In action for libel or slander. Where the language of a libel as pleaded shows on its face that it was used of and concerning the plaintiff in an official capacity or special character, an express averment that it was so used is unnecessary.^" And where tJie words spoken or published import the existence of a thing it is unnecessary to aver its existence.^"^ 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 dis- graceful to him in his profession, he must aver in his complaint that he was a practicing 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 occupation 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 necessarily to be reposed, they are actionable although not applied by the speaker to the profession or occu- pation 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 he made.^^° If the words used in the defamatory charge are not action- able 'per se, the plaintiff cannot recover general damages, nor can he recover special damages unless special damage is alleged and proved.'^^^ But when words are written or spoken of a person in relation to his business or occupation which will have is^stoll V. Houde, 34 Minn. 193. 168 Posnett V. Marble, 62 Vt. 481. 169 Carroll v. White, 33 Barb. 615. See Geary v. Bennett, 65 Wis. 554. 170 Sanderson v. Caldwell, 45 N". Y. 398; Moore v. Francis, 121 N. Y. 199, 206. 171 Beecher v. Press Publishing Co., 60 App. Div. 536 ; Willis v. Eclipse Mfg. Co., 81 App. Div. 591 ; Martin v. Press Pub. Co., 40 Misc. 524 ; Lang- don V. Shearer, 43 App. Div. 607; Erwin v. Dezell, 64 Hun 391; King v. Sun Printing & Pub. Co., 84 App. Div. 310. 240 Essential, Allegations. In action for slander of title — for seduction. a tendency to hurt or. are calculated to prejudice him therein, he is entitled to maintain an action and recover, unless a lawful excuse is shown, without allegation or proof of special damage.^'^ Where the libel refers to the property of the plaintiffs, and not to the plaintiffs individually, the complaint must allege special damage in order to state a cause of action.^^' How special damage should be pleaded has been considered in another chap- ter."* § 11. Complaint in action for slander of title. — Many of the rules applicable to an action for personal slander, by words not actionable per 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 plaintiff'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 dam- age, which should be specially alleged.^^^ An action will also lie for a slander upon title to personal property ; and the complaint in such action will be substantially the same as in an action for slander upon title to lands.^'* § 12. Complaint in action for seduction. — The requisite allegations in a complaint in an action for seduction depend 172 Moore v. Francis, 121 N. Y. 204; Keene v. Tribune Assn., 76 Hun 488; 27 N. Y. Supp. 1045; Fitzgerald v. Geils, 84 Hun 295; 32 N. Y. Supp. 306; Cruikshank v. Gordon, 48 Hun 308 ; Arrow Steamship Co. v. Bennett, 73 Hun 81. 173 Maglio V. New York Herald Co., 83 App. Div. 44. 174 See ante, p. 197; Wallace v. Bennett, 1 Abb. N. C. 478; Bell v. Sun Printing & Publishing Assn., 3 Abb. N. C. 157; Bassell v. Elmore, 48 N. Y. 561; Bosi v. N. Y. Herald Co., 33 Misc. 622; 68 N. Y. Supp. 420. 175 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. Graham, 1 Duer 670; Bailey v. Dean, 5 Barb. 297; Childs v. Tuttle, 48 Hun 228; 17 St. Rep. 943. 176 See Like v. McKinstry, 41 Barb. 186; 4 Keyes, 397; 3 Abb. Ct. App. Dec. 62. Essential Allegations. 241 In action for seduction. to a considerable extent upon the statutes of the State in which the action is brought. The facts giving a right of action for seduction in one State may be wholly insufficient for that pur- pose in another. In California and in some other States an un- married female may prosecute as plaintiif in an action for her own seduction and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor.^'^' In j^ew York and other States where the statute has not changed the rule, the legal maxim is recognized that " that to which a person assents is not esteemed in law an injury " ; and as seduction presupposes the consent of the person seduced, no right, of action accrues to her in consequence of the seduction.^'* In California and in some of the other States, a father, or ■in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with or in the -service of the plaintiff at the time of the seduction or afterward, and there be no loss of service.^'^ Under the statutes of Kentucky an allegation of loss of service is unnecessary,^^" and this is also the rule in Virginia.^^^ In ISTew York, and in many of the other States, an action of seduction is, in theory, based upon the loss of service. ^'^ The action is not maintainable upon the relation 177 Cal. Code of Civil Pro., § 375; Indiana Eev. Stat. 1881, § 263; Iowa Code, § 2555; Oregon Code of Civ. Pro., § 35. See McCoy v. Truclcs, 121 Ind. 292. 178 Disler v. McCauley, 66 App. Div. 42, 44 ; 73 N. Y. Supp. 270. But it is also held that vehether the defendant prevailed by false promises or artifice, by flattery or violence, a cause of action is made out, where a loss of service is shown. Lawrence v. Spence, 99 N. Y. 669. 178 Cal. Code of Civil Pro., § 375. This is also the law in Oregon, In- diana and Minnesota. ISO Kentucky Gen. Stat. 1873, p. 141. 181 Clem V. Holmes, 33 Gratt. 722; Va. Code, § 2896. 182 Knight V. Wilcox, 14 N. Y. 413; Lawrence v. Spence, 29 Hun 169; 99 N. Y. 669; Gray v. Durland, 51 N. Y. 424; Kinney v. Langhenour, 89 N. C. 365; Lipe v. Eisenlord, 32 N. Y. 233, 236; Lawyer v. Fritcher, 130 N. Y. 239, 245. In Michigan loss of service is not the basis of the parent's right of action. Stoudt v. Shepherd, 73 Mich. 588. 242 Essential Allegations. In action for seduction. of parent and child, but solely upon that of master and ser- vant.^'*'' A seduotion S'imply, if unaccompanied by loss of where such an action can be maintained, it is not essential to service, gives no cause of action to the parent.^^* But evidence of the rendition of the slightest services will he sufficient to establish the relation of master and servant in an action for seduction, and will support a recovery for the heaviest damages, and on the question of damages the actual loss of service is often an unimportant factor.^*° It has even been held that 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 support, 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 in- jury 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 unmarried, and was so at the time of the seduo- tion, and that the plaintiff then was and still is entitled to her attentions and services," 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.'* ° In an action by an unmarried woman for her own seduction, 183 Bartley v. Richtmyer, 4 N. Y. 38 ; Knight v. Wilcox, 14 N. Y. 413. 184 Gray v. Durland, 51 N. Y. 424; White v. Nellis, 31 N. Y. 405. 185 Eadgley v. Decider, 44 Barb. 577 ; Ingerson v. Miller, 47 Barb. 47. 186 Furman v. Van Sire, 56 N. Y. 435. See also Certwell v. Hoyt, 6 Hun 575. 187 Ingerson v. Miller, 47 Barb. 47. 188 Riddle V. McGinnis, 22 W. Va. 253; Clem v. Holmes, 33 Gratt. (Va.) 722. In Iowa the petition in an action by the parent for the seduction of his daughter must allege her minority. Dodd v. Focht, 72 Iowa 579. i89Lemmon v. Moore, 94 Ind. 40. See Haymond v. Saucer, 84 Ind. 3. Essential Allegations. 243 In ordinary actions for negligence. where sucli an action can be maintained, it is not essential to allege in the complaint that the plaintiff was previously chaste or of good reputation for chastity ; nor is it necessary to partic- ularly describe in the complaint the means used to effect the seduction or to allege that the plaintiff relied on the promises of the defendant.^'" § 13. Complaint in ordinary actions for negligence. — The essential facts to be established in an action to recover damages for negligence are that the plaintiff, without fault on his part, has sustained damage through the negligence of the defendant. What the petition or complaint must allege in such action will depend upon the facts and circumstances of the particular case. Enough must be alleged to show that the plaintiff has sustained injury; and it should appear, presumptively at least, from the allegations of the complaint or petition that the proximate cause of the injury was the negligence of the de- fendant. ^^^ A complaint showing on its face that the negligence charged was not the proximate cause of the injury is demur- rable.^"^ An allegation to the effect that the injury was in consequence of the wrongful and negligent acts of the defendant before set forth sufficiently avers that his negligence was the proximate cause of the injury.^"'' In some eases the mere state- ment in the complaint of the circumstances surrounding the injury will raise a presumption of negligence on the part of the defendant, although the particular act or omission which caused the injury is not disclosed. In such case a general allegation that the injury was caused by the negligence of the defendant 100 Hodges V. Bates, 102 Ind. 494. In Missouri the prior chastity of tlie seduced must be proved and is not to be presumed. Bailey v. O'Bannon, 28 Mo. App. 39. 191 McCandless v. Chicago & Northwestern Ey. Co., 71 Wis. 41; Pitts- burgh, Cincinnati, etc., Ry. Co. v. Conn., 104 Ind. 64; Allinger v. McKeo-wn, 30 Misc. 275; 63 N. Y. Supp. 221; Dugan v. St. Paul & D. E. Co., 40 Minn. 544. is2Kistner v. Indianapolis, 100 Ind. 210. 193 Schiiltz V. Moore, 33 Mo. App. 329. 24:4 Essential Allegations. In ordinary actions for negligence. is sufficient without setting forth the particular negligent acts/'* Under such general allegation, where permissible, the plaintiff may introduce evidence of the particular neglect or misconduct of the defendant tending to produce the injury.^°° If the de- fendant desires greater particularity of statement he should move for a bill of particulars or to make the complaint more definite and certain.^"" In some cases it is held that the facts relied on as constituting negligence need not he particularly and specifically set forth ; ^"^ and in others it is held that the facts constituting the negligence charged must be set out and that a general allegation of negli- gence is insufficient ; and that the act done or omitted constitut- ing negligence must be averred.^"' So in some jurisdictions the complaint or petition in an action to recover damages for negli- gence must allege the absence of contributory negligence on the part of the plaintiff or what amounts to the same thing that the plaintiff was without f ault,^"" while in others it is held that contributory negligence is an affirmative defense and that it is 19* Gulf, C. & S. F. R Co. V. Smith, 74 Texas 276; Edgerton v. New York & Harlem R. E. Co., 39 N. Y. 227; Gulf, C. & S. F. R. Co. v. Wilson, 79 Texas 371; Mack v. St. Louis, Kansas City, etc., Ry. Co., 77 Mo. 232. i05Oldfield v. New York & Harlem R. R. Co., 14 N. Y. 310; Boone v. Wabash, St. Louis, etc., Ry. Co., 20 Mo. App. 232; Edgerton v. New York & Harlem R. R. Co., 39 N.' Y. 227 ; Leeds v. New York Telephone Co., 64 App. Div. 484; 72 N. Y. Supp. 250. iMJaekman v. Lord, 56 Hun 192; 9 N. Y. Supp. 200; Pizzi a . Reid, 72 App. Div. 162; 76 N. Y. Supp. 306; Young v. Lynch, 66 Wis. 514; Hawley v. Williams, 90 Ind. 160. 19' Louisville, New Albany, etc., Ry. Co. v. Jones, 108 Ind. 551; Rowland V. Murphy, 66 Texas 534; Cleveland, Columbus, etc., Ry. Co. v. Wynant, 100 Ind. 160; Mack v. St. Louis, Kansas City, etc., Ry. Co., 77 Mo. 232; Otto v. St. Louis, Iron Mountain, etc., Ry. Co., 12 Mo. App. 78; Louisville, N. A. &, C. R. Co. V. Cauley, 119 Ind. 142; East Line & Red River R. R. Co. V. Brinker, 68 Texas 500. 108 Woodward v. Oregon R. & Nav. Co., 18 Oregon 289; McPherson v. Pacific Bridge Co., 26 Pae. 560; Missouri P. R. Co. v. Hennessey, 75 Texas 155; Thompson v. Flint & P. M. R. Co., 57 Mich. 300. looSherfey v. Evansville & T. H. R. Co., 121 Ind. 427; Thompson v. Flint & P. M. R. Co., 57 Mich, 300; Stevens v. Lafayette & Concord Gravel Road Co., 99 Ind. 392. Essential Allegations. 245 In ordinary actions for negligence. not necessary to' negative it in the complaint/"" unless the other averments in the complaint suggest the inference that the plaintiff was guilty of contributory negligence. '"^ An averment in the complaint that the negligence of the defendant was the cause of the injury is equivalent to an allegation that it was the sole cause; '"' and in States where an allegation of freedom from contributory negligence is required the phrase " without fault " is a sufficient compliance with the reqiiirement.^'"' A complaint by an employee against his employer which alleges that the injuries received by the plaintiff resulted from the negligence of the employer in failing to supply the plaintiff with safe and suitable appliances with which to do the work for which he was employed, states a cause of action ; ^"* and it is not necessary that the complaint should contain an allegation that the plaintiff had no knowledge or means of knowledge of the defective character of the machinery or appliances by which the injury resulted.^"^ If the complaint contains an allegation of due care that will Siufficiently negative negligence on the part of the plaintiff and, by implication, his knowledge of the defects resulting in his injury.^"" 200 Donahue v. Enterprise E. R. Co., 32 S. C. 299; Taylor v. Missouri P. R. Co., 26 Mo. App. 336; Bogardus v. Metropolitan Street R. Co., 62 App. Div. 376; 70 N. Y. Supp. 1094; Mele v. Delaware & Hudson Canal Co., 39 St. Rep. 153; 14 N. Y. Supp. 630; Lincoln v. Walker, 18 Neb. 244; Lopez v. Central Arizona Mining Co., 1 Arizona 464; Young v. Shickle H. & H Iron Co., 103 Mo. 324; Hackford v. N. Y. C. R. R. Co., 6 Lans. 381; 53 N. Y. 654; Lee v. Troy Citizens' Gas Light Co., 98 N. Y. 115. 201 Street R. R. Co. v. Nolthenius, 40 Ohio St. 376. 202 Lee V. Troy Citizens' Gas Light Co., 98 N. Y. 115; Urquhardt v. City of Ogdensburgh, 23 Hun 75; Haskell v. Village of Penn Yan, 5 Lans. 43, 48; Wolfe v. Supervisors of Richmond Co., 19 How. 370. 203 Rogers V. Overton, 87 Ind. 410. 204 Donahue v. Enterprise R. Co., 32 S. C. 299; Hoffman v. Dickinson, 31 W. Va. 142. 205 Young V. Shickle, H. & H. Iron Co., 103 Mo. 324; Ohio & M. Ry. Co. V. Pearey, 128 Ind. 197. And see Rupprecht v. Brighton Mills, 27 App. Div. 77; 50 N. Y. Supp. 157. 206 Chicago & E. I. R. Co. v. Hines, 132 111. 161. 246 Essential Allegations. In actions for negligence causing death. If the plaintiff claims to have sustained permanent injuries as the result of the defendant's negligence, that fact must be alleged in the complaint to admit proof on the trial. ^°' Presumptively, damages for negligently diminishing the earn- ing capacity of a married woman belong to her husband, and when she seeks to recover such damages the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor; or, if she seeks to recover for damages to her business, she must allege that she was engaged in business on her own account and by reason of the injury was injured therein as specifically set forth.^"* § 14. Complaint in actions for negligence causing death. — The New York 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 de- cedent, by reason thereof if death had not ensued. Such an action must be commenced within two years after the decedent's death.^"« The California Code authorizes an action by the father, or in case of his death or desertion of his family, by the mother, for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another, and further provides that the action may be maintained against the person causing the injury or death, or if such person be employed, by another person who is responsible for his conduct, and also against such other person. ^^° It also authorizes a similar action 207 Clark v. Metropolitan Street Ey. Co., 68 App. Div. 49 ; Crow v. Metropolitan Street Ry. Co., 70 App. Div. 202. 208Uransky v. D. D., E. B. & B. K. R. Co., 118 N. Y. 304. 209 N. Y. Code of Civil Pro., § 1902. 210 Cal. Code of Civil Pro., § 376. Essential Allegations. 24Y In actions for negligence causing death. by the heirs or personal representatives of a person, not being a minor, whose death is caused by the wrongful act or neglect of another."^ In many of the other States statutes somewhat similar have been enacted, changing the common-law rule that a cause of action for personal injuries dies with the person, defining the persons who may maintain the action, and in most cases pro- viding for the distribution of the sums recovered. It is im- practicable to give in this connection all of these various statutes, and imnecessary, as the examples given sufficiently indicate their general character. In an action brought under the provisions of the New York Code the complaiat should allege when the wrongful act was committed,"^ and the place where the cause of action arose.^" 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 a statute will give a right of action to an administrator appointed by the surrogate of the State in which the action is 211 Cal. Code of Civil Pro., § 377. 212 Brown v. Harmon, 21 Barb. 508. 213 Beach v. Bay State Steamboat Co., 30 Barb. 433; 18 How. 335; 10 Abb. 71; Vandeventer v. N. Y. & N. H. R. K. Co., 27 Barb. 244; Crowley v. Panama E. R. Co., 30 Barb. 99; Whitford v. Panama R. R. Co., 23 N. Y. 465; Mahler v. Transportation Co., 35 N. Y. 352. 2i4Throop V. Hatch, 3 Abb. 23; Stallknecht v. Pennsylvania K. R. Co., 53 How. 305; Wooden v. Western New York & Penn. R. R. Co., 126 N. Y. 10. It is not essential that the statute of the State where the cause of action arose and the statute of the State where the action is brought should be identical in their terms or precisely alike. It is enough that they are of similar import and character, founded upon the same principle and possessing the same general attributes. Leonard v. Columbia Steam Navigation Co., 84 N. Y. 53 ; Wooden v. Western New York & Penn. R. R. Co., 126 N. Y. 10; Kiefer v. Grand Trunk R. Co., 12 App. Div. 28; 42 N. Y. Supp. 171; Gurney v. Grand Trunk R. Co., 59 Hun 625; 13 N. Y. Supp. 645. The manner in which a foreign statute should be pleaded has been noticed. See ante, p. 40. 248 Essential Allegations. In actions for negligence causing death. brought. ^^^ If the cause of action arose on the high seas, on a vessel hailing from and registered in a port within the State of l^evf York, and owned by citizens thereof, these facts should be alleged in a complaint in an action brought in that State, as they are necessary to bring the case within the statute. ^^° If the cause of action arose in a State other than that in which the action is brought, and the statute of the State where the cause of action arose gives a right of action if commenced within a specified time, the commencement of the action within the time limited by the foreign statute is a condition precedent to the right to maintain it.^^' The complaint in an action of this nature need not directly allude to the statute under which it is brought, but it must state all the facts requisite to bring the case within the statute. ^'^^ It should allege the ofiicial character of the plaintiff as executor or administrator, and that letters testamentary or of administra- tion have been issued to him by the surrogate of a county within the State. ^^° It should- allege that the decedent left a husband, widow, or next of kin, according to the fact-,^^" but need not state their names. ^^^ It should allege the wrongful act, neglect or default of the defendant and that the decedent's death re- sulted therefrom. A general averment of negligence will be suifioient to admit proof of the fact; and an allegation of the absence of contributory negligence on the part of the decedent is not required where the complaint alleges that the death was 215 Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48 ; Stallknecht V. Pennsylvania K. R. Co., 13 Hun 451 ; 53 How. 305. 216 McDonald v. Mallory, 77 N. Y. 546 ; 7 Abb. N. C. 84. 21T Colell V. Delaware, L. & W. R. E. Co., 80 App. Div. 342 ; Dailey v. New York, Ontario & Western Ry. Co., 26 Misc. 539; 57 N. Y. Supp. 485. See Hill v. Supervisors, 119 N. Y. 344; Hamilton v. Royal Ins. Co., 156 N. Y. 327, 338. 2i8Yertore v. Wiswall, 16 How. 8; Brown v. Harmon, 21 Barb. 508. 2i9Kenney v. N. Y. Cent. & H. R. R. Co., 49 Hun 535. See anic, p. 172. 22oSafford v. Drew, 3 Duer 627; Lucas v. N. Y. Cent. K. R. Co., 21 Barb. 245; Kenney v. N. Y. Cent. & II. R. R. R. Co., 49 Hun 535. See Westcott V. Central Vt. R. Co., 61 Vt. 438. 221 Keller v. N. Y. Cent. R. R. Co., 24 N. Y. 172. Essential Allegations. 249 In actions for negligence causing death. caused by the wrongful and willful neglect and default of the defendant. ^^^ An allegation that the plaintiff was not guilty of contributory negligence is unnecessary in an action brought in the New York courts, as the legislature of that State has declared in substance by the statute that where the death of a person is caused by the negligent act of another, the next of kin may recover from the negligent party the damages sustained thereby, not withstanding the negligence of such next of kin contributed thereto. ^^' It is also held in Iowa in substance that the contributory negligence of the plaintiff will not bar a recovery under the statute. ^^* But the weight of authority is to the contrary.^^' It is always proper to allege that the persons for whose benefit the action is brought have sustained a pecuniary loss to a specified amount by reason of the decedent's death. ^^° But such an allegation is not necessary to the statement of a cause of action under the statute, and without it the plaintiff may recover at least nominal damages. ^^^ Of a nature somewhat similar to the statutes before referred to is the statute enacted by the legislature of the State of New York in 1903, entitled "An act to extend and regulate the liability of employers to make compensation for personal in- juries suffered by employees," under which the employee in- jured, or in case the injury results in death, the executor or 222Melhado v. Poughkeepsie Transp. Co., 27 Hun 99. 223 Lewin v. Lehigh Valley R. R. Co., 52 App. Div. 69 ; 165 N. Y. 667. The question of the effect of the plaintiff's contributory negligence upon his right to recover was not passed upon by the Court of Appeals. 224 Wymore v. Mahaska County, 78 Iowa 396. 225 Bamberger v. Citizens' St. R. Co., 95 Tenn. 18; City of Pekin v. McMahon, 154 111. 141; Koons v. St. Louis & I. M. R. R. Co., 65 Mo. 592; Baltimore & 0. R. R. Co. v. State, 30 Md. 47 ; T. M. R. & M. N. C. Co. v. Herbeck, 60 Texas 602. 226 Safford v. Drew, 3 Duer 627, 641. 227 Kenney v. N. Y. Cent. & H. R. R. R. Co., 49 Hun 535 ; Quin v. Moore, 15 N. Y. 432; Mclntyre v. N. Y. Cent. R. R. Co., 43 Barb. 532; Pizzi v. Reid, 72 App. Div. 162; Thomas v. Utica & Black River R. R. Co., 6 Civ. Pro. R. 353; Houghkirk v. D. & H. C. Co., 92 N. Y. 219. 250 Essential Allegations. In ejectment. administrator of a deceased employee who has left him surviving a husband, wife, or next of kin, is given the same right of com- pensation and remedies against the employer as if the employee had not been an employee of or in the service of the employer, or engaged in his work, but subject to the conditions prescribed by that act.^^^ In an action brought under such statute the giving of the notice required by the act is a condition precedent to the right to maintain the action, and a statement that such notice was given is an essential averment of a cause of action and must be inserted in the complaint. ^^° § 15. Complaint in ejectment. — All that is necessary in declaring in ejectment is a statement of the real names of the parties to the action; a description of the premises sufficiently certain to enable the sheriff to deliver possession; a statement of the interest the plaintiff claims in the premises; that the plaintiff was in possession or was entitled to possession; that the defendant wrongfully entered and dispossessed the plaintiff or those under whom he claims. the premises and withholds the possession; and sufficient allegations to show that the plaintiff is entitled to rents and pirofits or damages, if damages are claimed in the action.^''" This should be supplemented by a proper demand for judgment, which will be for the recovery of the property or its possession, and if the case requires it, for damages for withholding the property. ^'^ These damages in- clude the rents and profits or the value of the use and occupation of the property for the term of six years prior to the time of the commencement of the action, and the damages arising from the withholding of the property after the bringing of the action, 228La^va of 1902, Ch. 600. 229 Gmaehle v. Rosenberg, 80 App. Div. 541 ; Johnson v. Roach, 83 App. Div. 351. 230Deering v. Riley, 38 App. Div. 164; 56 N. Y. Supp. 593; 167 N. Y. 184; Warner v. Nelligar, 12 How. 402; Ensign v. Sherman, 14 How. 439. 231 N. Y. Code of Civil Pro., § 1496. Essential Allegations. 251 In ejectment. if damages are legally recoverable.^^^ Damages for withhold- ing the property cannot be recovered unless alleged in the com^ plaint. ^''^ The complaint must describe the property claimed with common certainty by setting forth the township or tract, and the number of the lot if any, or in some other appropriate manner, so that, from the description, possession of the property claimed may be delivered if the plaintiff is entitled thereto. ^^* It is not necessary to set out in the complaint the source and chain of title under which the plaintiff claims, ^^° or to state in detail the facts constituting the estate or interest claimed in the land, but the general form or character of the estate or interest must be averred. ^'^ It is sufficient for the plaintiff to set forth the nature of his estate, whether in fee, or for life, or for a term of years, and to allege that he is entitled to the possession of the land and that the defendant wrongfully withholds the same from him to his damage in the sum 232 N. Y. Code of Civil Pro., §§ 1497, 1531; Classon v. Baldwin, 129 N. Y. 183; Danzizer v. Boyd, 120 N. Y. 249; Chaee v. Lamphere, 67 Hun 599; Willis v. McKinnon, 79 App. Div. 240. 233Pfeffer v. Kling, 58 App. Div. 179; 68 N. Y. Supp. 641. But see Classon v. Baldwin, 129 N. Y. 183; Deering v. Riley, 38 App. Div. 173. 234 N. y. Code of Civil Pro., § 1511. A tract of land known by a par- ticular name may be described by that name. Glaicier Mountain Silver Mining Co. v. Willis, 127 U. S. 471; 32 L. Ed. 172; Hildreth v. White, 66 Cal. 549. The property may be identified by stating its location, the buildings thereon, and the purposes for which they are used. Carter V. Chesapeake & Ohio By. Co., 26 W. Va. C44. See Kemble v. Herndon, 28 W. Va. 524. But compare College Corner & Richmond Gravel Road Co. V. Moss, 92 Ind. 119. The description should be such as would enable a competent surveyor to locate the property by referring to deeds, writings, or known objects by which the exact land can be identified. Lane v. Abbott, 23 Neb. 489. See generally Sphung v. Moore, 120; St. John v. Northrup, 23 Barb. 25; May v. First Div. St. Paul & Pacific R. R. Co., 26 Minn. 74; Livingston County v. Morris, 71 Mo. 603; White v. Hape- man, 43 Mich. 267. A description of the property by its lot and block number on the official assessment map of a city is sufficiently definite. Baker v. Carrington, 34 Misc. 54; 68 N. Y. Supp. 405. 235 Baker v. Carrington, 34 Misc. 54; 68 N. Y. Supp. 405; Mitnacht v. Hawthorne, 31 Misc. 378; 64 N. Y. Supp. 493; Brown v. Fish, 37 Misc. 367; Billings v. Sanderson, 8 Mont. 201. 236 Austin V. Schluyter, 7 Hun 275. 252 Essential Ali>egations. In ejectment. claimed.^*^ It has been held that where the complaint states that the plaintiff is seized in fee and that the defendant unlaw- fully withholds the possession, the omission of an averment that the plaintiff is entitled to possession does not render the complaint demurrable.^^* But this doctrine is not unquestioned, and it has been held that an allegation of title without an allegar tion of right to the possession of the premises is not sufficient to support a complaint in ejectment, °^^ and this is unquestion- ably the rule where the averment is required, as in some States, by statute.'" The complaint must also allege that the defendant is in actual possession of the property, or that the property is vacant and the defendant claims title thereto,'*^ and that the plaintiff is unlawfully kept out of possession, or that in substance.'*' When the action is based upon the withholding of possession by a tenant or a grantee after breach of a covenant contained' in a lease or deed, it may be necessary to set forth more fully the facts showing that the continued possession of the defendant is wrongful and that the defendant's right of possession has terminated. A complaint which alleges that the plaintiff was lawfully possessed as owner in fee simple of the premises de- scribed in the complaint ; that the plaintiff deeded the same to the defendant upon the express consideration that the defendant would care for and support the plaintiff and infant daughter in 237 Baker v. Carrington, 34 Misc. 54 ; 68 N. Y. Supp. 405 ; Helena First Nat. Bank v. Roberts, 9 Mont. 323; Mitchell v. Campbell, 24 Pac. (Oregon) 455; High v. Mangenberg, 39 Cal. 268. 238 Wilmington, Columbia, etc., R. R. Co. v. Garner, 27 S. C. 50; Halsey V. Gerdes, 17 Abb. N. C. 395. 239 Linden v. Doetselt, 40 Hun 239, 240 ; Moores v. Lehman, 20 Jones & Sp. 283. 240 Barclay v. Yeomans, 27 Wis. 682 ; Ind. Rev. Stat., § 1054 ; Simmons V. Lindley, 108 Ind. 297; Mansur v. Streight, 103 Ind. 358; Richards v. Crews, 16 Oregon 58; Ashland M. B. Church v. Northern P. R. Co., 78 Wis. 131; Bingham v. Kern, 18 Oregon 199. 2-11 Sanders v. Parshall, 67 Hun 105 ; 22 N. Y. Supp. 20. 2*2 Levi V. Engle, 91 Ind. 330; Swaynie v. A^ess, 91 Ind. 584. This is a statutory requirement in Indiana. Essential Allegations. 253 In partition. accordance with the terms and conditions of the deed and of a written agreement executed contemporaneously therewith and that in case the defendant failed to perform the deed should be void ; that the defendant wholly failed to perform ; that the deed thereupon become void ; that notwithstanding such failure the defendant entered into possession of the premises and wrong- fully and unlawfully withholds the same from the plaintiff, to the plaintiff's damage, in a siim specified, and demands the immediate possession of the premises and a specified sum as damages for the use and occupation thereof, states a cause of action in ejectment. ^^^ A complaint alleging in substance the plaintiff's ownership of the premises therein described ; the leasing of the same to the defendant; the failure of the defendant to pay the rent stipu- lated; the service of a three days' notice to quit; concluding with the demand for relief that the defendant be removed from the premises and possession thereof be awarded to the plaintiff, may support a judgment in ejectment.^** § 16. Complaint in partition under the New York Code. — The JSTew York Code defines with sufficient clearness the persons who may or who must be made parties in an action of partition, and such features of the procedure as are peculiar to that action. These matters will not be considered here, except so far as the requisites of the plaintiff's complaint are involved therein. The essential allegations in a complaint in partition will necessarily vary according to the persons made parties, and the nature of their respective rights or interests in the property. The complaint must describe the property with common cer- tainty, and must specify the rights, 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 243 Jones V. Nichols, 42 App. Div. 515; 59 N. Y. Supp. 564. 24* Jones V. Eeilly, 68 App. Div. 116. 254 Essential Allegations. In partition. to the plaintiff; or if a shaxe, 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 renaainr der, so that the party cannot be named; that fact must also be stated in the complaint. ^*^ The scheme provided by the Code is to permit, as far as possible, the determination in an action of partition of all the rights of the parties ; and, with that end in view, the plaintiff is accorded great liberality in his pleading. If ignorant of the interest of any claimant in the land sought to be partitioned he may so aver, and the burden is then imposed upon the de- fendant to accept the invitation tendered and present his rights by answer.^*" But if the plaintiff is cognizant of the title of the parties, he must spread upon his complaint the facts upon which that interest rests. If the plaintiff assumes to have knowledge of the title of a defendant, and asserts that such title is invalid and void, he must set out the facts from which that legal deduction can be made.^*^ The Code authorizes an action for partition where 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. ^** A complaint in an action for partition brought by one of such persons must state facts showing the existence of the conditions giving the right of action. A complaint containing a bold allegation that the plaintiff and certain of the defendants named are respec- tively seized in fee of an interest in the real estate sought to be partitioned, but without facts tO' support the allegation, and con- taining no allegation of possession by the plaintiff or by any of the defendants, or of joint tenancy or tenancy in common 245 N. Y. Code of Civil Pro., § 1542. To the same general effect see California Code of Civil Pro., § 753. 246 Townsend v. Bogart, 126 N. Y. 370, 374; Satterlee v. Kobbe, 39 App. Div. 420; 57 N. Y. Supp. 341. 247 Satterlee v. Kobbe, 39 App. Div. 420. 248 N. Y. Code of Civil Pro., § 1532. Essential Allegations. 255 In partition. by any of them, or of facts from which such tenancy can be inferred, is wholly destitute of facts to support the action.^*" 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 implied therefrom.^^" The possession referred to in the statute does not mean actual physical possession only, but also that possession which follows the title.^^^ A complaint which alleges the possession and ownership in fee of the prem- ises in question by a person who is the common source of title ; the death of such person intestate and without issue while such owner and possessor, and that the parties to the action are the brothers and sisters of the intestate and the only heirs at law and next of kin surviving, is sufficient to show that the plaintiff is a tenant in common of an estate of inheritance, and the alle- gations, if proved, are sufficient to enable, him to maintain his action vsdthout showing actual physical possession of any part of the premises in question.^^^ The fact that the plaintiff's cotenanta are in possession holding adversely will not affect the right of action where the adverse possession has not been suffi- ciently long continued to extinguish the plaintiff's title.^^' To 249 Doane v. Mercantile Trust Co., 160 N. Y. 494. 200 Stewart v. Munroe, 56 How. 193; Jenkins v. Van Schaack, 3 Paige 242. 25iWainmau v. Hampton, 110 N. Y. 429, 433; Weston v. Stoddard, 137 N. Y. 119, 128; Bender v. Terwilliger, 48 App. Div. 371; 63 N. Y. Supp. 269. It means not a strict pedis possessio, but a, present right of posses- sion. Weston T. Stoddard, 137 N. Y. 119; Drake v. Drake, 61 App. Div. 1 ; 70 N. Y. Supp. 163. 252 Bender v. Terwilliger, 48 App. Div. 371 ; 63 N. Y. Supp. 269. 253 Weston V. Stoddard, 137 N. Y. 119. In many of the States it has always been held that a disseized co-tenant may maintain compulsory partition. Call v. Barker, 12 Me. 325; Marshall v. Crehore, 13 Met. 464; Miller v. Dennett, 6 N. H. 109; Tabler v. Wiseman, 2 Ohio St. 207; Godfrey y. Godfrey, 17 Ind. 9; Cook v. Webb, 19 Minn. 170; Howey v. Goings, 13 HI. 108; Scarborough v. Smith, 18 Kans. 399; Martin v. Walker, 58 Cal. 590. The tendency in recent years has been in favor of relaxing the former rule requiring the trial by jury of all questions involv- ing the title to land, and of permitting a disseized co-tenant to have his 256 Essential Allbqations. In partition. the general rule requiring possession either actual or constructive as a condition precedent to the maintenance of an action for the partition of lands, the Code makes one exception. A person claiming to be entitled as a joint tenant or 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 the partition thereof, whether he is in or out of possession, not- withstanding an apparent devise thereof to another by the der- cedent, and possession under S'uch a devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.^"^* It is not now necessary for the plaintiff to '"allege possession where the property is held adversely by a defendant under a void devise, whether such defendant is the original devisee or his grantee.^'''' But to bring a case within the statutory exception the plaintiff must allege and prove that he is an heir claiming lands by descent from an ancestor who died in possession of the same and that the lands are held, directly or derivatively as the case may be, under an apparent devise which is void.^^° The complaint should show by ap- propriate averments wherein tbe will is invalid. The fact that since the execution of the will events have occurred that would authorize a court of equity to restrain the devisee from claiming under the will is not a case provided for by the statute.^^^ The coinplaint may, and to be strictly regular, should, allege, where infants are interested, that the parties to tihe action do not own other lands in common. But this averment is no part of the statement of the plaintiff's cause of action, and the omission of the averment is at most a mere irregularity in procedure which cannot be reached by demurrer. ^°^ right and title determined in an action for partition. Holder v. Holder, 40 App. Div. 255. 254 N. Y. Code of Civil Pro., § 1537. 265 Malaney v. Cronin, 44 Hun 270 ; Hewlett v. Wood, 62 N. Y. 75, 78 ; Henderson v. Henderson, 44 Hun 420. 256 Holder v. Holder, 40 App. Div. 255 ; 59 N. Y. Supp. 204. 257 See Ellerson v. Westcott, 148 N. Y. 149. 258Pritehard v. Draft, 32 Hun 417; Moffatt v. McLaughlin, 13 Hun 449. Essential Allegations. 257 In action for dower. The plaintiff may, at his election, make a creditor, having a lien on an undivided share or interest in the property, a de- fendant in the action. In that case he must set forth the nature of the lien and Specify the share or. interest to which it at- taches. ^^^ If any of the parties claim a specific lien for moneys paid to extinguish liens upon the premises sought to be parti- tioned, 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 defendant to account for rents he should allege the facts' entitling him to such relief and specifically demand it in the complaint.^"^ § 17. 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 inheri- tance; 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 described in the complaint; that the defendant is in actual possession of the premises and wrongfully withholds from the 269 N. Y. Code of Civil Pro., § 1540. See Id., § 1578; Winfield v. Staeom, 40 App. Div. 95; 57 N. Y. Supp. 563. 2«oBogardus v. Parker, 7 How. 305. See Prentice v. Jansen, 7 Hun 86- 14 Hun 548; 79 N. Y. ,478. seiBullwinker v. Ryker, 12 Abb. 311. See N. Y. Code of Civil Pro., § 1589; Brown v. Mount, 54 App. Div. 604; 66 N. Y. Supp. 1000; Rich V. Rich, 50 Hun 199. 282 N. Y. Code of Civil Pro., § 1606. 258 Essential Allegations. In action against claimant of dower. 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 defense to be interposed by answer. ^^* It is not necessary for the plaintiff to allege or prove that her husband went into actual possession of the property out of which the dower is claimed. Where it is alleged that the husband was seized of an estate of inheritance 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 possession of the property. ^°' If the widow seeks to recover damages for vdthholding her dower she should demand such relief in the complaint; and if the action is brought against a person other than the heir she should allege a demand for dower of the defendant; but if the action is against the heir such demand is unnecessary.^"' § 18. 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 im- prisoned on a criminal charge, or in execution upon conviction of a criminal offense. But such an action canmot be commenced 263 Draper v. Draper, 11 Hun 616. The Revised Statutes required the plaintiff to state that she was possessed of an undivided one-third part of the ' premises 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 sufficiently 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. 264 Draper v. Draper, 11 Hun 616. 266McIntyre v. Costello, 47 Hun 289. 266 See N. Y. Code of Civil Pro., § 1600; Price v. Price, 54 Hun 349; Armstrong v. Union College, 55 App. Div. 302. Essential Allegations. 259 In action against claimant of dower. until tbe expiration of four months after the death of the de- fendant's husband.^"^ The plaintiff may bring the action, not in hostility to the widow's right, but in assertion of it, and for the purpose of having her dower set off and admeasured; or he may bring the action in hostility to her claim of dower, and in denial of it, for the purpose of obtaining a judgment of the court that she be forever barred from such a claim. In either case the plaintiff should allege his estate in the property and should describe the land with convenient certainty ; and should also allege that more*than four months have elapsed since the death of the defendant's husband. If he admits the defendant's right of dower in the premises he should allege facts showing the existence and extent of the right in substan- tially the same manner that would be requisite if the complaint was in behalf of the defendant in an action for dower. It is not necessary to allege that the widow claims dower in the premises as the plaintiff may maintain the action whether the widow claims dower or is silent. The complaint must conclude with a demand of judgment that the defendant's dower be admeasured.^"* If the defendant does not admit that the defendant has a right of dower in the property, he should allege his estate therein, describing the land with convenient certainty; allege the death of the defendant's husband, and that more than four months had elapsed since such death before the commencement of the action; that the defendant unjustly and without right claims to have a right of dower in the whole or a part of the property; and demand judgment that she be forever barred from such claim. ^°* 267 N. Y. Code of Civil Pro., § 1647. 268 N. y. Code of Civil Pro., §§ 1647, 1648; Linden v. Doetsch, 40 Hun 239. 269 N. Y. Code of Civil Pro., §§ 1647, 1649; Linden v. Doetsch, 40 Hun 239. 260 Essential Allegations. In action to determine claim to real property. § 19. Complaint in an action to compel a determination of a claim to real property.— Where a person has been, or lie and tkose whose estate he has have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life or for a term of years not less than ten, he may maintain an action under section 1638 of the ~Sevr York Code of Civil Procedure against any other person to com- pel the determination of any claim, other than for dower, 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, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not, and also including any lien or incum- brance upon said property of the amount or value of not less than two hundred and fifty dollars. The action may be maintained by or against a corporation, or by or against an unincorporated association, as if it was a natural person ; and it may be maintained by or against the receiver or other successor of any such corporation or associa- tion, "'"' or by or against an infant in his own name.^'^ The action given by this statute is based upon the legal title held or claimed by the plaintiff and has no reference to an action for a similar relief which proceeds upon equitable grounds.^'^ The JSTew York Code provides in substance that the com- 270 N. Y. Code of Civil Pro., § 1650. See Cal. Civil Code, § 738. 271 N. Y. Code of Civil Pro., § 1686. The conflict formerly existing between the provisions of §§ 1638 and 1686 in respect to the maintenance of the action against an infant (see Weiler v. Nev^bach, 47 Hun 166; 114 N. Y. 36) has been obviated by the amendment of § 1638, in 1891, omitting the words " except a person who is when the action is commenced an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a, criminal charge, or in execution upon conviction of a criminal offense.^' 2T2 Center v. Weed, 63 Hun 560; 18 N. Y. Supp. 554. Essential Allegations. 261 In action to determine claim to real property. plaint in an action to compel the determination of a claim to real property 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 aot less than ten ; and whether .he holds it as heir, devisee or pur- chaser, with the source or means by which his title immediately accrued to him. 2. That the property at the commencement of the action was, and for one year next preceding, has been in his possesr sion, or in the possession of himself and those from whom he derives his title, either as sole tenant, or as joint tenant, or tenant in common with others. 3. That the defendant unjustly claims an estate or interest, or easement therein, or a lien or incumbrance thereupon of the character specified in section 1638 of the Code before cited. 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 any, or in some other appropriate manner, so that if the action was ejectment and the plaintiff succeeded therein, possession of the property might be delivered from the description alone. The demand of judgment may be to the effect that the defendant and every person claiming under him be barred from all claim to the property described in the complaint, or from all claim to an interest or easement therein, or a lien or incumbrance thereupon, of the character above specified in section 1638 of the Code above cited, or it may combine two or more of said demands with other demands for appropriate relief. ^^^ Where the complaint alleges that the plaintiff is the owner in fee of the real property described in the complaint it is not essential to the statement of a cause of action that he should allege that he is the sole ovmer in fee, as sole ownership is fairly implied from the allegation made."* But if the eom- 273 N. Y. Code of Civil Pro., § 1639. 274 King V. Townshend, 78 Hun 380; 29 N. Y. Supp. 181. 262 Essential Allegations. In action to foreclose a mortgage. plaint fails to allege the fact, of possession by the plaintiff or by the plaintiff and those from whom he derives his title, it will not state a cause of action. ^'° An allegation that the defendant unjustly claims to be the owner in fee of the land described in the complaint is sufficient without setting forth the particulars of the defendant's adverse claim. That is a m'ktter for the defendant to take care of by . answer."" Where the plaintiff is an infant the complaint, in addition to the ordinary averments should allege the fact of infancy and the due appointment of a guardian ad litem.^'''' § 20. Complaint in action to foreclose a mortgage. — The complaint in an action to foreclose a mortgage on real, property 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 place where it was recorded, the default in the payment of the amount secured thereby, or such other breach of the covenants contained therein as give the right to enforce it against the property therein described, and the amount due the plaintiff thereon. It should also describe the mortgaged premises in substantially the language of the mort- gage. If the action is not brought by the mortgagee, the com- plaint should allege such facts as will show a right in the plaintiff to maintain the action. If a bond accompanied the mort- gage, the complaint should allege the giving of the bond, its conditions, and default in the performance of those condi- 276 Howarth v. Howarth, 67 App. Div. 354 ; 73 N. Y. Supp. 785. Prior to 1891, actual possession was required by the statute to give a. right of action. By the amendment of this section in 1891 the word " actual " was stricken out, and now a person in possession of land by his tenant may maintain the action. King v. Townshend, 73 Hun 380, 387; 29 N. Y. Supp. 181; Classon v. Stewart, 23 Misc. 177; 51 N. Y. Supp. 1100. But see Merritt v. Smith, 50 App. Div. 349, 353. See Diefendorf v. Diefen- dorf, 132 N. Y. 100. 276 King v. Townshend, 73 Hun 380; 29 N. Y. Supp. 181. 277 See ante, p. 176. Essential Allegation's. 263 In action to foreclose a mortgage. tions.^^* If the mortgage was given to secTire the payment of a promissory note, the complaint should allege the giving of the note, its terms, and non-payment.^'" If the mortgage was given to indemnify the plaintiff an allegation that the plaintiff was compelled to pay vsdll be sufficient without an additional allegation that the defendant has failed to repay the plaintiff.""" A judgment of foreclosure cannot be rendered for a breach of condition not set forth in the complaint. ^^^ If the mortgage was given to secure a note an averment in the complaint or peti- tion that the debt nor any part thereof has been paid sufficiently sets out a breach of the condition of the mortgage.^^^ 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 cred- itors are made parties, the complaint should allege generally that they have or claim some interest in or lien upon the mortr gaged premises, which, if any, is subsequent to the plaintiff's mortgage. The complaint need not allege any detail of their titles or the extent and relative priority of their interests. ^°'' 278 Coulter V. Bower, 64 How. 132; 11 Daly 203; Cornelius v. Halsey, 11 N. J. Eq. 28; Harvey v. Truby, 62 App. Div. 503; 71 N. Y. Supp. 86. 279 Ryan V. Holliday, 110 Cal. 335. 280 Cutterlin v.- Armstrong, 101 Ind. 258. 281 Washburn v. Wilkinson, 59 Cal. 538. 282 Durland v. Durland, 62 Neb. 813. 283 N. Y. Code of Civil Pro., § 1629. See Neb. Code of Civil Pro., § 850; Durland v. Durland, 62 Neb. 813; Pattison v. Powers, 4 Paige 549; Bing V. Morse (Neb.), 71 N. W. 712. A failure to follow the exact language of the statute will not render the complaint demurrable. Bottom V. Chamberlain, 21 Misc. 556; 47 N. Y. Supp. 733; Schieck v. Donohue, 77 App. Div. 321. See Kizer v. Canfield, 17 Wash. 417. 284Lovet V. German Reformed Church, 12 Barb. 68; Gregory v. Hart- ley, 6 Neb. 356. 285 Drury v. Clark, 16 How. 424 ; Hoes v. Boyer, 108 Ind. 494 ; McCoy 264 Essential Allegations. In action to foreclose a mortgage. Where some of the defendants are infants the complaint should allege that fact; that the infants have an interest in the mort- gaged premises ; and whether it is paramount to or subordinate to the interest mortgaged. ^^^ Where the bond and mortgage were executed by an executor and trustee, as such, it is not necessary to allege that the mort- gagor was such executor or trustee, or to state facts showing his appointment.^*^ If the action is brought by an assignee of the bond and mort- gage the complaint should allege the assignment to the plaintiff of the bond as well as the mortgage, as the right of the plaintiff to maintain the action depends upon his having a good title to the bond secured by the mortgage. The transfer of the mortr gage without a transfer of the debt is a nullity. ^*° But it has been held in an action to foreclose a mortgage given to secure certain promissory notes that an allegation in the complaint that the mortgage had been duly assigned to the plaintiff is sufficient to show an assignment of the notes. ^*° Where the mortgage sought to be foreclosed provides that upon default in the payment of any one of the several notes it is given to 'secure the mortgagee may elect to declare the whole debt due, the complaint in an action brought to foreclose mort- gage upon default in payment of the first note is not demurrable for failure to allege an election to declare the whole debt due, as the commencement of the action and demand for a foreclo- sure for the entire sum show a sufficient election. ^°° V. Boley, 21 Fla. 803; Frost v. Koon, 30 N. Y. 428, 448; Douw v. Keay, 16 Misc. 192; 38 N. Y. Supp. 994. ssoAldrich v. Lapham, 6 Ho^v. 129. 287 Kingsland v. Stokes, 25 Hun 107; 58 How. 1; Skelton v. Scott, 18 Hun 375. 288 See Manne v. Carlson, 49 App. Div. 276; 63 N. Y. Supp. 162; Blooniingdale v. Bowman, 51 Hun 639 ; 21 St. Rep. 247 ; Merritt v. Bartho- lick, 36 N. Y. 44. 280 Foster v. Trowbridge, 39 Minn. 378. 290 Barney v. MeClaney, 15 Colo. App. 63. Essential Allegations. 265 In action to reform an instrument. Where a mortgage provides tliat attorney's fees should be taxed on foreclosure, it is not necessary to plead this provision in order to obtain the benefit of it in the judgment or decree on foreclosure. ^°^ The description of the property covered by the mortgage should be such that if a sale is ordered the decree of foreclosure may be executed safely and the purchaser may know what he has purchased; but the mortgagor cannot be heard to complain of any indefiniteness in the description in the mortgage what ever might be the effect of a sale under the description. ^'^ If the complaint contains a copy of the mortgage and the mortgage contains a full description of the land, it will be sufficient al- though no description is otherwise contained in the complaint itself.'"' The demand for relief should be full and explicit, and in ordinary 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 personally 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 redemption in and to the mortgaged premises, and every part thereof, and that the plaintiff recover his costs in the action. § 21. Complaint for the reformation of a written instru- ment. — To entitle a plaintiff tO' the reformation of a contract he must prove that it was the intention of both parties to make the contract he seeks to have established, and that this intention was frustrated either from some fraud, accident, or mutual mis- 291 Orange Growers' Bank v. Duncan, 133 Cal. 254. If it provides for a reasonable fee it is unnecessary to allege that the fee claimed is reason- able. McNamara v. Oakland Building & Loan Assn., 131 Cal. 336. 292 Graham v. Stewart, 68 Cal. 374. 293 Whitby V. Powell, 82 Cal. 635. 266 Essential Allegations. " ^ In action to reform an instrument. take of the parties.^^* Therefore a complaint for the refonnation of a contract, where the action is based upon a mutual mistake of the parties, should set forth what the parties agreed to do; should show wherein the writing fails to express their agreement by setting out the terms of the contract as executed or other- wise; should allege in some form that the failure to express the actual agreement of the parties was due to mutual mistake ; and, in some jurisdictions, should allege that the mistake did not occur through any carelessness or negligence' of the plaintiff,^"'' though this requirement is exceptional and the negligence of the plaintiff not ordinarily deemed a bar to equitable relief. ^^^ Where there has been no mistake in the agreement, but merely a mistake in reducing it to Avriting, an action may be maintained f6r its reformation, and it is not essential to allege that the mistake in reducing it to writing was mutual. In such case it is sufficient if the facts alleged or the inferences to be drawn therefrom by fair intendment show either fraud or mistake on the part of the defendant. ^'^ A complaint for the reformation of a bond and mortgage which alleges the actual agreement, and the particulars in which the writings departed from it, whereby the plaintiff's debt was increased and the rights given him were omitted, and which alleges that the instruments were thus drawn by the defendant's agent with intent to defraud the plaintiff by substituting a different contract for that agreed upon, and that by the agent's fraudulent representations the plaintiff was deceived and led to believe that the real agreement was expressed in the writings, is not defective for want of specific allegations as to facts of the fraud.^°^ 29*Nevius V. Diinlap, 33 N. Y. 676; Story v. Conger, 36 N. Y. 673; Jackson v. Andrews, 59 N. Y. 244 ; Hochstein v. Berghauser, 123 Cal. 681 ; Seeman v. Biemann, 108 Wis. 365; State v. Lorenz, 22 Wash. 289. 205 See Hyland v. Hyland, 23 Pac. (Oregon) 811. 298 See Andrews v. Gillespie, 47 N. Y. 487 ; Albany City Savings Inst'n. V. Burdick, 87 N. Y. 40. 297 Pitcher v. Hennessey, 48 N. Y. 415; Born v. Sohrenkeisen, 110 N. Y. 55; Arlt v. Whitlock, 65 App. Div. 246. 298 Gardner v. California Guarantee Investment Co., 137 Cal. 71. The Essential Allegations. 267 In action for absolute divorce. It is an elementary principle that to justify a decree for the reformation of a contract it must appear by clear and convinc- ing proof that there was a mutual mistake of the parties as to some material provision of that contract, or mistake of one party and fraud by the other. It is important that the pleader carefully analyze the facts of the case before pleading, as, if he bases his right to relief upon allegations of mutual mistake, and fails to sustain them by proof, he will not be permitted to amend his complaint by inserting allegations of fraud.^"" § 22. Complaint in action for absolute divorce under the New York Code.— It is provided by the ISTew York Code that in either of the following cases, a husband or a wife may main- tain an action, against the other party to the marriage to procure a judgment, divorcing the parties and dissolving the marriage, by reason of the defendant's adultery. 1. Where both parties were residents of the State, when the offence was committed. 2. Where the parties were married within this State. 3. Where the plaintiff was a resident of the State, when the offence was committed, and is a resident thereof, when the ac- tion 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 an absolute divorce under this statute must allege the fact of marriage, and such other facts California Civil Code provides that vclien, through fraud or mutual mis- take of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of the party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons in good faith and for value. Cal. Civ. Code, § 3399. See Higgins v. Parsons, G3 Cal. 280. 299 Gary Mfg. Co. v. Merchants' Ins. Co., 42 App. Div. 201; 59 N. Y. Supp. 7. 300 N. Y. Code of Civil Pro., § 1756. 268 Essential Allegations. In action for absolute divorce. as to the residence of the parties, the place of marriage or the place where the adultery is committed as will hring the case within the statute. The statute does not require the plaintiff to allege that the offense was committed with any designated person, or at any specified 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 action 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 com- plaint, and the adultery should be charged with reasonable cer- tainty as to time and place; and if the persons with whom the adultery was committed are unknown, that fact should be al- leged, and the defendant should be charged with having com- mitted adultery with persons whose names are unknown, stating times and places, if known, or if unknown, at times between certain specified dates, and in certain towns or cities named, with an averment that the plaintiff is unable to state more par- ticularly the times and places. This seems to be the rule de- ducible from the authorities.^"^ The complaint should also allege that the adultery charged was committed without the consent, connivance, privity or pro- curement of the plaintiff ; that five years have not elapsed since the discovery of the fact that such adultery had been com- mitted ; and that the plaintiff has not voluntarily cohabited with the defendant since such discovery ; and also, where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged 301 Mitchell v. Mitchell, 61 N. Y. 398. 302 Mitchell v. Mitchell, 61 N". Y. 398 ; Codd v. Codd, 2 Johns. Ch. 224 ; Germond v. Germond, 6 Johns. Ch. 347; Wood v. Wood, 2 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, 3 Rob. 719; Pramagiori v. Pramagiori, 7 Rob. 302; Tim v. Tim, 47 How, 253; Cardwell v. Cardwell, 12 Hun 92. Essential Allegatioits. 269 In action for a separation. to have been committed, that five years have not elapsed since such adulterous intercourse was discovered by the plaintiff/"^ These allegations are to be inserted in the complaint in order to comply with the provisions of the rules of court in case the defendant makes default and to avoid the necessity for the affi- davit required by the rule in that case. In a contested case these are matters of affirmative defense.^"* If the action is brought by the husband, and he wishes to question the legitimacy of any of the children of his wife he should distinctly allege 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 divorce 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 a complaint in an action for an absolute divorce may be amended while a hearing is pending before a referee so as to set forth additional times, places and persons,^"* provided the matters so set forth were unknown to him when the action was commenced,^"" or the plaintiff may base a new action upon the newly-discovered facts."" § 23. Complaint in action for a separation. — The com- plaint in an action under the New York Code to procure a judg- 303 Rule 73, Sup. Ct.; Myers v. Myers, 41 Barb. 114; Zorkowski v. Zor- kowski, 27 How. 37. 304 McCarthy v. McCarthy, 143 N. Y. 235; Merrill v. Merrill, 41 App. Div. 347; 58 N. Y. Supp. 503. soBEuIe 76, Sup. Ct. See Tully v. Tully, 28 Misc. 54; 59 N. Y. Supp. 818. 306Zorn V. Zorn, 38 Hun 67; Johnson v. Johnson, 6 Johns. Oh. 163; Smith V. Smith, 4 Paige 92; Mcintosh v. Mcintosh, 12 How. 289; Henry V. Henry, 17 Abb. 411; 27 How. 5; 3 Rob. 614; McNamara v. McNamara, 9 Abb. 18; Burdell v. Burdell, 2 Barb. 473. 30T Ohly V. Ohly, 3 Law Bull. 12. SOS Eraser v. Eraser, 4 Law Bull. 6. Compare Milner v. Milner, 2 Edw. Ch. 114; Cornwall v. Cornwall, 30 Hun 573. 309 See Israel v. Israel, 54 App., Div. 408 ; 66 N. Y. Supp. 777. 310 Cordier v. Cordier, 26 How. 187. 270 Essential Allegations. In action for m. separation. ment separating the parties from bed and board forever, or for a limited time, must contain three distinct allegations : the first, as to the marriage of the parties ; the second, as to the residence of the parties; and the third, as to the misconduct of the de- fendant which is supposed to authorize the court to render the judgment sought. The complaint should allege that the parties to action are husband and wife; and, if both the parties are not residents of the State when the action is commenced, should allege when and where they were married. If both the parties are resi- dents of the State at the time of the commencement of the action it is of no consequence when or where they were married.'^^ The residence of the parties is a jurisdictional fact and should be explicitly alleged. If both of the parties are resi- dents of the State at the time of the commencement of the action an allegation to that effect is all that is required to confer juris- diction. If the plaintiff is a resident of the State, the defend- ant a non-resident, and the parties were married within the State, a statement of these facts will confer jurisdiction of the action without any allegation as to thei length of the plaintiff's residence, and without any allegation that the defendant had ever been a resident of the State. If the plaintiff at the time of the commencernent of the action is a resident of the State, the defendant a non-resident, and the parties were married without the State, the complaint should allege the residence of the plaintiff, the residence of the defendant, the place of mar- riage, and that the parties, at some time, between certain speci- fied dates, have been residents of the State for at least one year.^^^ It is advisable in alleging non-residence of the de- fendant or marriage without the State to state the place where the defendant resides ot the marriage took place. The complaint must also allege either the cruel and inhuman 311 Bierstadt v. Bierstadt, 29 App. Div. 210; 51 N. Y. Supp. 852. 312 See N. y. Code of Civil Pro., § 1763; Bierstadt v. Bierstadt, 29 App. Div. 210, overruling Eamsden v. Ramsden, 28 Hun 285. Essential Allegations. 271 In a judgment — creditor's action. 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 plaintiff ; or, the abandonment of the plaintiff by the defend- ant ; or, where the wife is plaintiff, the neglect or refusal of the defendant to proyide 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 al- legations present the matters upon which issue is to be joined. To be issuable every circumstance 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 licentious acts committed by the de- fendant with females other than the plaintiff, without any aver- ments of connecting facts tending as a whole to establish a ground for a separation, such statement is improper and may be stricken from the complaint. ^^^ Charges of adultery and of cruel usagp are distinct and independent in their character and cannot be joined together in the same action."" All the matters of fact tending to establish a ground for a judgment for separation which were known to the plaintiff be- fore commencing the action should be alleged in the complaint or they will be deemed waived. But matters which have oc- curred since the commenoement of the action which tend to support it may be brought before the court by way of suppleh mental complaint. ''^^ § 24. Complaint in judgment creditor's action under the New York Code. — There are several distinct modes of pro- 813 N. Y. Code of Civil Pro., § 1762. 3" N. Y. Code of Civil Pro., § 1764. 315 Klein v. Klein, 2 Jones & Sp. 57; 11 Abb. N. S. 450; 42 How. 166. 3i8Zorn V. Zorn, 38 Hun 67; Smith v. Smith, 4 Paige 92; Mcintosh V. Mcintosh, 12 How. 289; Henry v. Henry, 17 Abb. 411; McNamara v. McNamara, 9 Abb. 118. 317 Cornwall v. Cornwall, 30 Hun 573. 272 Essential Allegations. In a judgment — creditor's action. cedure by means of which the property of a judgmenlxlebtor 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 caim,ot be seized under an execution, or the property may have been transferred by the debtor and be held by a third person with a view of evading the payment of his debts. The Code therefore provides a remedy by way of a judgment-cred- itor'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 purchase of real estate may be reached and ap- plied in satisfaction of the judgment.'^" But there are certain limitations to the application and scope of this remedy. This statute does not apply to a case where the judgmentrdebtor is a corporation, created by or under the laws of the State. ISTor does it authorize the discovery or seizure of, or other interfer- ence with, any property, which is expressly exempted by law from levy and sale, by virtue of an execution; or any money, thing in action, or other property held in trust for a judgment- debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judg- ment-debtor; or the earnings of the judgment-debtor for his personal services, rendered within sixty days next before the commencement of the action, where it is made to appear, by 318 N. Y. Code of Civil Pro., §§ 1871, 1873. See Alabama Code, §§ 814, 819, 821; Polack v. Billing, 131 Ala. 519. 319 N. Y. Code of Civil Pro., § 1874. Essential Allegations. 273 In a judgment — creditor's action. his oath or otherwise, that those earnings are necessary for the use of a family, wholly or partly supported by his labor.^^" The object of this statute is to aid a judgment-creditor, who has exhausted his remedy at law, in discovering the debtor's property, and in reaching choses in action and equitable inter- ests; 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 returned un- satisfied in whole or in part.^^^ This was the rule under the provisions of the Eevised Statutes ^" for which sections 1871 and 1872 are the 'substitutes.^" The fact that the plaintiff is a judgment-creditor, and en- titled to rights as such, may be shown by alleging the pendency of a former action in a specified court, between parties named, in which judgment in favor of the plaintiff and against the defendant was duly given for a specified sum of money. The complaint should also allege the county in which the judgment- roll was filed, and if a transcript of the judgment has been is- sued, the county in which the transcript is filed. The complaint should show out of what court the execution issued. If at the time of the commencement of the action the judgment-debtor was a resident of the State of New York, the complaint should state that fact and name at least the county of the defendant's residence and allege that the execution was issued to the sheriff of that county. If the judgment-debtor was not then a resident of the State, but had an office therein for the regular transaction of business in person, these facts 320 N. Y. Code of Civil Pro., § 1879. See Keeney v. Morse, 75 N. Y. Supp. 728; 71 App. Div. 104. 321 N. Y. Code of Civil Pro., §§ 1871, 1872; Dunlevy v. Tallmadge, 32 N. Y. 457, 460; National Tradesmen's Bank v. Wetmore, 124 N. Y. 241; Tuttle V. Robinson, 91 Hun 187; Bowe v. Arnold, 31 Hun 256, 258. 322 2 R. S. 173, 174, §§ 38, 39. 323 Dittmar v. Gould, 60 App. Div. 94 ; 69 N. Y. Supp. 708. 274 Essential Allegations. In action to set aside fraudulent conveyance. should be alleged, and the complaint should show that the ex- ecution was issued to the county where tlie defendant had such office. If the defendant is a non-resident and has no office for the regular transaction of business in person in the State, these facts should be stated and it should be alleged that the execu- tion was issued to the sheriff of the county where the judgment- roll is filed, unless it was issued out of a court other than the court in which the judgment was rendered, in which case it' should be alleged that the execution was issued to the sheriff of the county where a transcript of the judgment is filed.'^* The complaint should also allege such facts in relation to the debtor's property or interest in property as will show a right to the aid of the court in procuring the application thereof to the satisfaction of the judgment.""'' If the debtor has created' a trust for his own benefit, or if there is money, notes, bonds, or other property due to him, or belonging to him, these or simi- lar facts should be alleged. Enough also should be stated to connect any other person made defendant with the cause of ac- tion set up in the complaint. § 25. Complaint in judgment creditor's action to set aside fraudulent conveyance.— There are cases in which a judgment- creditor may maintain an action to reach the property of the judgment-debtor and apply it in satisfaction 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 execu- tion, but that by reason of some fraudulent incumbrance thereon, or fraudulent transfer thereof the execution cannot be en- 324 N. Y. Code of Civil Pro., § 1872. 325 See Simmons v. Eldridge, 20 How. 309; 19 Abb. 296. 320 Dittmar v. Gould, 60 App. Div. 94, 98 ; Conro v. Port Henry Iron Co., 12 Barb. 27, 58; Chautauqua County Bank v. White, 6 N. Y. 236; Vicks- burg & keridian R. R. Co. v. Phillips, 64 Miss. 108; Koechl v. Leibinger & Ochm Brewing Co., 26 App. Div. 573, 579; 50 N. Y. Supp. 568; Muller v. Scandinavian, etc.. Emigrant Co., 1 N. Y. Ann. Cas. 397. Essential Allegations. 275 lu action to set aside fraudulent conveyance. forced.^" In that class of cases a court of equity has inherent jurisdiction and power to grant to the creditor the appropriate relief. ^^^ But subject to exceptions which will be noticed here- after the plaintiff 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 establish his debt by the judgment of a court of com- petent jurisdiction/^^ and either acquire a lien upon the specific property or be in a situation to perfect a lien thereon and subr ject it to the payment of bis judgment upon the removal of the obstacle presented by the fraudulent assignment or transfer.'"" The rule is well settled that a creditor's bill filed for the purpose of removing a fraudulent obstruction must show that such re- moval will enable the judgment to attach upon the property.^^^ To entitle himself to a remedy against the real estate of his debtor the plaintiff must show in his complaint that there is such particular real estate; that the judgment would have been a lien thereon if the fraudulent obstruction had not been inter- posed ; that by reason of such interposition 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 327 See Mechanics' & Travelers' Bank v. Dakin, 51 N. Y. 519; First Nat. Bank v. Gibson, 60 Neb. 767. 3=8Dittniar v. Gould, 60 App. Div. 94, 98; Stetson v. Hopper, 60 App. Div. 277; 70 N. Y. Supp. 170; Ghillingworth v. Freeman, 67 Barb. 379, 384. 329Briggs V. Austin, 129 N. Y. 208; Claflin v. Gordon, 39 Hun 54, 60; Moore v. Omaha Life Assn., 62 Neb. 497 ; Smith v. Sioux City Nursery & Seed Co., 109 Iowa 51; Cornell v. Savage, 49 App. Div. 429; 63 N. Y. Supp. 540; Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 HI. 305; Ladd V. Judson, 71 HI. App. 283; 174 HI. 344. In some States it is held that judgment before bringing the action is unnecessary, as this judgment may be rendered in the suit in which the equitable relief is sought. Huntington v. Jones, 72 Conn. 45. 330 Southard v. Benner, 72 N. Y. 424; Sullivan v. Miller, 106 N. 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, 27 Hun 366. 331 Spring V. Short, 90 N. Y. 538; Lichtenberg v. Herdtfelder, 103 N. Y. 302. 332 Wilson V. Forsyth, 24 Barb. 105. 276 Essential Allegations. In action to set aside fraudulent conveyance. exhausted all the remedies known to the law to obtain satisfac- tion of it before resorting to equity. If he seeks choses in ac- tion or equitable assets he must show an execution issued on the judgment and returned unsatisfied.'^^ If he seeks real or per- sonal estate which would be liable to execution but for fraud- ulent obstructions placed in the way by the debtor he must show an execution issued '^* and outstanding at the time the action is commenced,''^ or returned unsatisfied in whole or in part.'^* The rule is the same where the action 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 recovery of a judgment, the issuing of an execution thereon, and either that sssGeery v. Geery, 63 N. Y. 252; Dunlevy y. Tallmadge, 32 N. Y. 457; Shaw V. Dwight, 27 N. Y. 244, 249; Genesee Eiver Nat. Bank v. Mead, 18 Hun 303; Gardner v. Lansing, 28 Hun 413; Baxter v. Moses, 77 Me. 465; 52 Am. R. 783. 334Easton Nat. Bank v. Buffalo Chemical Works, 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. Mayer, 54 N. Y. 125, 129. 335 Adsit V. Butler, 87 N. Y. 587; McElwain v. Willis, 9 Wend. 548, 561; Home Banlc v. Brewster & Co., 15 App. Div. 338; 44 N. Y. Supp. 54; Mechanics', etc., Bank v. Dakin, 51 N. Y. 519, 522; Easton Nat. Bank v. BuflFalo Chemical Works, 48 Hun 557; Scliwarzsehild & S. Co. v. Mathews, 39 App. Div. 477; 57 N. Y. Supp. 338. An action in equity may be maintained in aid of an execution, without its return, where there has been an actual levy, and the object of the suit is to remove fraudulent claims upon the property levied on. Beardsley Scythe Co. v. Foster, 36 N. Y. 561, 565. The failure of the creditor to bring his case to trial within the life of the execution will not defeat the action. His rights will be determined with reference to the condition of things existing at the time the action was commenced. Schwarzschild & S. Co. v. Mathews, 39 App. Div. 477; 57 N. Y. Supp. 338; Home Banlc v. Brewster & Co., 15 App. Div. 338; 44 N. Y. Supp. 54. 336Haswell v. Lincks, 87 N. Y. 637; Royer Wheel Co. v. Fielding, 31 Hun 274; Shaw v. Dwight, 27 N. Y. 244, 249; Prentiss v. Bowden, 145 N. Y. 342. 337Estes V. Wilcox, 67 N. Y. 264; Allyn v. Thurston, 53 N. Y. 622; Ocean Nat. Bank v. Olcott, 46 N. Y. 12; Mandeville v. Campbell, 45 App. Div. 512; 61 N. Y. Supp. 443. Essential Allegation's. 27Y In action to set aside fraudulent conveyance. it is still outstanding or has been returned unsatisfied as the case demands. No allegation of insolvency of the judgment- debtor will take the place of these averments or excuse their omission.^^^ The fact of the issuing and return of the execution unsatisfied should 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 hinder, delay and defraud creditors, and is therefore void, if such is the fact relied on.^*" The evi- dence necessary to support this allegation of a fraudulent intent on the part of the grantor and grantee may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time of the conveyance, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff's claim which was merged in the judg- ment, are all facts bearing on the general allegation of fraud, and can be proved under a general allegation that a conveyance was made with intent to hinder, delay and defraud creditors, 338Adee v. Bigler, 81 N. Y. 349; Estes v. Wilcox, 67 N. Y. 264; McElwain v. Willis, 9 Wend. 548; Beardsley Scythe Co. v. Foster, 36 N. Y. 561; 34 How. 97; Crippen v.' Hudson, 13 N. Y. 161; National Tradesmen's Bank v. Wetmore, 124 N. Y. 241, 248. In some of the States the issue and return of execution preliminary to an action in equity is not required when it clearly appears that it would be utterly fruitless. See Livingston V. Swofford Bros. Dry Goods Co., 56 Pac. (Colo. App.) 351; Burnham v. Smith, 82 Mo. App. 35. And this is the doctrine of the United States Supreme Court. Case v. Beauregard, 101 U. S. 688; 25 L. Ed. 1004. In Oregon, where a debtor has clouded the title to real estate by a fraudulent transfer, the creditor may proceed without exhausting his legal remedies. Multnomah St. Ry. Co. v. Harris, 13 Oregon 198. And see State v. Foot, 27 S. C. 340 ; Lane v. Union Nat. Bank, 75 111. App. 299. 339 Beardsley Scythe Co. v. Foster, 36 N. Y. 561; 34 How. 97. 340 Beardsley Scythe Co. v. Foster, 36 N. Y. 561 ; 34 How. 97. 2V8 Essential Allegations. In action to set aside fraudulent conveyance. and without any allegation of the insolvency of the defendant or that the defendant had no other property out of which the plaintiff could collect his judgment other than that alleged to have been fraudulently conveyed.^''^ If the transfer claimed as fraudulent is an assignment for the benefit of creditors, and it is alleged in terms that the assignment was made to hinder, delay and defraud the creditors of the assignor and is therefore fraudulent and void, it is not necessary in pleading to point out the particular features or clauses of the instrument which are relied on to establish its invalidity. ^*^ So under a general al- legation that execution upon the judgment was issued to the sheriff of a specified county, evidence may be given of the kind of execution issued and against whom it was issued. ^*^ But no decree can be made in favor of a complainant upon grounds not stated in his bill. If the bill alleges a resulting trust the plaintiff cannot succeed on a fraud not alleged.'^* If a party claims the benefit of a trust conveyance, treating it as valid in his complaint, and nowhere therein seeking to impeach it, he is not entitled tO' any relief on the ground that it is void or fraudulent, or intended to defraud creditors although it may appear to be fraudulent and void on the pleadings and evi- dence.^*^ A judgment-creditor of a deceased judgment-debtor may maintain an action in behalf of all the creditors to set aside a conveyance of land by the debtor in fraud of creditors, without the issuing and return of an execution, upon the refusal of the representatives of the deceased debtor to bring it. But it should appear from the complaint that such is the object of the action, 3- murrable because the facts are informally and imperfectly al- leged, or because it lacks definiteness and precision, yet a plain- tiff in his complaint must present a clear and unequivocal state- ment of a cause of action, and failing in this will be adjudged bad on demurrer.^" In California, Colorado, Idaho, Montana and Utah it is a ground of demurrer that a complaint is ambiguous, unintel- ligible, or uncertain. But this is a separate ground of de- murrer and the objection cannot be taken under a demurrer that the complaint fails to state facts constituting a cause of action."" § 9. Improper demand for relief. — In Connecticut and Iowa it is a ground of demurrer that the facts stated do not entitle the plaintiff to the relief demanded.^"^ In other States the fact that the complaint asks relief which cannot be granted under the facts stated will not render the pleading demurrable.'^''" A complaint or petition will not be held bad on demurrer, escept in the States mentioned, upon the ground that the plaintiff is not entitled to the relief prayed for, if upon the facts stated he is entitled to any relief. ^"^ Where the complaint is demurred to on the ground that it does not state facts sufficient to^ constitute a cause of action the test applied upon the hearing is whether the complaint sets forth 98 Olcott V. Carroll, 39 N. Y. 436. 91! Kadford v. Radford, 40 App. Div. 10. 100 See Burgess v. Helm (Nev.), 51 Pac. 1025; Eachua v. City of Los Angeles, 130 Cal. 492. 101 See Iowa Code, 1873, § 2648. io2Townsend v. Bogert, 126 N. Y. 370; Alworth v. Seymour, 42 Minn. 526 ; Merchants' Nat. Bank v. Hogle, 25 111. App. 543. 103 Parker v. John Pullman & Co., 36 App. Div. 208; 56 N. Y. Supp. 734; Morey v. City of Duluth (Minn.), 71 N. W. 694; Harper v. Kemble, 65 Mo. App. 514; Phoeni.x Nat. Bank v. Cleveland Co., 34 St. Rep. 498; 11 N. Y. Supp. 873 ; Standart v. Burtis, 46 Hun 82. Demuerbe to the Complaint. 32T Where improper relief is demanded. facts ■whicli) if true would entitle the plaintiff to any relief whatever.^"* It cannot be said that tlie decisions of the courts of the State of New York are altogether harmonious as tO' the rules governing the decision of 'a demurrer in eases in which the facts alleged do not warrant the relief demanded. Many of these cases have been noticed in a preceding chapter. ^"^ The quesn tion whether section 120Y of the oSTew York Code of Civil Pro^ cedure, providing that where there is no answer the judgment shall not be more favorable to the plaintiff than he has de- manded in his complaint, relates solely to a case where the defendant has made default or is applicable where a demurrer is interposed, seems to be regarded as still open-^'^ It is there- fore important to consider what has been the course of the decisions of that State in respect to the effect of a demand for relief not warranted by the facts alleged upon demurrer to the complaint. It is frequently stated as a vule of pleading that the defend- ant cannot demur to the demand of judgment or prayer for relief.^"' It is undoubtedly true that a demurrer must reach the whole cause of action, and will not lie to a portion or para- graph 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 the plaintiff has asked for greater relief than he is entitled to on the facts stated,"" or has not 104 Strubbe v. Kings County Trust Co., 60 App. Div. 548. 105 See ante, p. 203. 106 See Parker v. Pullman & Co., 36 App. Div. 208 ; 56 N. Y. Supp. 734 ; Kelly V. Downing, 42 N. Y. 71; Edson v. Girvan, 29 Him 422; Fisher v. Charter Oak Life Ins. Co., 67 How. 191; Cody v. First Nat. Bank, 63 App. Div. 199; 71 N.Y. Supp. 277. lOT Johnson v. Kelly, 2 Hun 139; Mackey v. Auer, 8 Hun 180; Garner V. Thorn, 56 How. 452; 6 Abb. N. C. 212; Kingsland v. Stokes, 25 Hun 107. ■ 108 Lord V. Vreeland, 24 How. 316; 15 Abb. 122. 109 Kingsland v. Stokes, 25 Hun 107. iioTisdale v. Moore, 8 Hun 19; Meyer v. Van Collem, 28 Barb. 230; People V. Mayor, etc., of N. Y., 17 How. 56. 328 Demueeee to the Complaint. Where improper relief is demanded. pirayed for all the relief to whioh. the facts stated would entitle him/^^ or has failed to pray for the precise relief to which he is entitled/^^ or has misconceived the nature of the judgment whioh 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 facts alleged as a cause of action are sufficient to sustain an action either at law or for equitable relief, the fact that after the allegation 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 performance of a contract, and has demanded a judgment for money, the complaint is not demur- rable 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 whioh he has demanded. ^^'' It has been held that if the complaint prays for relief not warranted by the alleged facts, a demurrer for that reason will not lie,^^'' and that whenever a complaint contains allegar tions of fact which, if proved upon a trial after issue of fact joined, would entitle the plaintiff to some relief, either legal or equitable, although not that asked for by the complaint, a de- 111 Buess V. Koch, 10 Hun 299. 112 Swart V. Boughton, 3'5 Hun 281. 113 Pierson v. McCurdy, 61 How. 134. 11* Hale V. Omaha Nat. Bank, 49 N. Y. 626. 115 Hale V. Omaha Nat. Banlt, 49 N. Y. 626 ; Bell v. Merrifleld, 109 N. Y. 202. 116 Buess V. Koch, 10 Hun 299. 117 Standart v. Burtis, 46 Hun 82. If a complaint alleges facts show- ing the plaintiff entitled to legal relief only and demands both legal and equitable relief, it is not demurrable though framed for the purpose of ob- taining equitable relief. Porous Plaster Co. v. Seabury, 43 Hun 611. Demueeeb to the Complaint. 329 Where improper relief is demanded. murrer on the ground that the complaint does not state facta sufficient to constitute a cause of action will not be upheld."' But the Code provides that" where there is no answer the judg- ment shall not be more favorable to the plaintiff than that demanded in the complaint,"" and a demurrer 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 relief alone is asked for, the complaint cannot, on demurrer, be sustained for legal redress.^^^ So where the relief demanded in the com- plaint 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 judgment, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action vsdll 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 plain- tiff 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 demanded it.^^^ The doctrine has been announced in general terms that if a case for either legal or equitable relief is alleged, the complaint is not demurrable, because the plaintiff has not demanded the precise relief to which he is entitled. ^^* But this rule is not lis Mackey v. Auer, 8 Hun 180. 119 Code of Civil Pro., § 1207. 120 Kelly V. Downing, 42 N. Y. 71. 121 Swart V. Boughton, 35 Hun 281 ; Alexander v. Katte, 63 How. 262. 122 Edson V. Girvan, 29 Hun 422. 123 Edson V. Girvan, 29 Hun 422 ; Fisher v. Charter Oak Ins. Co., 67 How. 191; Kelly v. Downing, 42 N. Y. 71.' 124 Lester v. Seilliere, 50 App. Div. 239; 63 N. Y. Supp. 748; Wetmore V. Porter, 92 N. Y. 76; Parker v. Pullman & Co., 36 App." Div. 208; 56 N. Y. Supp. 734. 330 Demueree to the Complaint. To the whole or a part of the complaint. to be applied literally to all cases/^^ The preponderance of authority seems to be to the effect that, on a demurrer, for the purpose of ascertaining whether a good cause of action is stated, the inquiry is whether the plaintiff would be entitled to a judgment for any relief by default. Accordingly it is held that where a pleading is framed as an action at law, and there is no prayer for any form of equitable relief, if the com- plaint fails to state a good cause of action at law, it is de- murrable even though the facts would afford ground for equi-' table relief ; and that where all the allegations of the complaint are for equitable relief, and equitable relief only is demanded, if a good cause in equity be not alleged, the complaint is de- murrable even though the facts stated show that the plaintiff has a cause of action at law.^^° § 10. Demurrer to the whole or a part of the complaint. — The defendant may demur to the entire complaint or to one or more separate causes of action tlierein stated,''^' and the de- murrer will be sustained or fail to the whole extent to which it is applied.^^^ If a general demurrer is interposed to a com^ plaint containing two counts, and a sufficient cause of action is alleged in either count, the demurrer will be overruled.^^* 125 Black V. Vanderbilt, 70 App. Div. 16, 23. 126 Cody V. First Nat. Bank, 63 App. Div. 199 ; Swart v. Boughton, 35 Hun 281; Kelly v. Downing, 42 N. Y. 71. And see Squiers v. Thompson, 73 App. Div. 552, 557. 127 N. Y. Code of Civil Pro., § 492; Code of S. C, § 166. 128 Peabody v. Washington County Mut. Ins. Co., 20 Barb. 339 ; Booz v. Cleveland School Furniture Co., 45 App. Div. 593; 61 N. Y. Supp. 407; Sloan V. Seaboard & Pa. Ry. Co., 64 S. C. 389. 129 Hale V. Omaha Nat. Bank, 49 N. Y. 626 ; Martin v. Mattison, 8 Abb. 3; Seaver v. Hodgldn, 63 How. 128; Bronson v. Markey, 53 Wis. 98; Reeee V. Smith, 94 111. 362; Rout v. Woods, 67 Ind. 319; Carson v. Cock, 50 Texas 325; Jones v. Iverson, 131 Cal. 101; Griffiths v. Henderson, 49 Cal. 567; Bonney v. Bonney, 29 Iowa 448; Reilly v. Cavanaugh, 32 Ind. 214; Singer V. Cavers, 26 Iowa 178; Ketchum v. State, 2 Oregon 103; Rodgers v. Bra- zeale, 34 Ala. 512; McKay v. Fiebelle, 8 Fla. 21; Bristow v. Lane, 21 111. 194; Anderson v. Richards, 22 111. 217; Ward v. Neal, 35 Ala. 602; Tomlin Demubeeb to the Complaint. 331 To the whole or a part of the complaint. A demurrer to a part of a count will not lie."" Where an ac- tion is brought to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant, if the complaint alleges negligence on more than one ground, and one of such grounds is sufficiently stated and another is not, it is sufficient on general demurrer.^^^ If the action is for in- juries to a servant and the complaint states three distinct grounds of recovery, one of which is good and the others are bad, the demurrer must be overruled.^^^ If the action is brought on an account and one of the items constitutes a valid demand against the defendant a general demurrer will be overruled. ^^^ If the action is brought to recover damages for breach of contract and the complaint sets up many items of damage with allegations showing that some damages are recoverable, the complaint will not be demurrable because some items are alleged which are not recoverable.^'^ A demurrer does not run to the summons or to the caption of the complaint "^ or to the demand for relief,"' and facts not alleged in the complaint cannot be considered in support of a demurrer to the complaint."^ And where a complaint sets up V. Toniea, etc., R. R. Co., 23 111. 429; Grubb v. Burford, 98 Va. 553; Plymouth v. Milner, 117 Ind. 324; Storer v. Austin, 136 Cal. 588; Lowe v. Burke, 79 Ga. 164; Robrecht v. Marling, 29 W. Va. 765; McGrath v. Pit- kin, 56 N. Y. Supp. 398; 26 Misc. 862; Strange v. Manning, 99 N. C. 165; Gunther v. Dranbauer, 86 Md. 1 ; Henderson v. Commercial Advertiser Co., 46 Hun 504; Kenney v. Wells, 23 Ind. App. 490; Carter v. Wann (Idaho), 57 Pac. 314; Jensen v. Wetherell, 79 App. Div. 33; Ferst v. Powers, 64 S. C. 221. 130 Knoblauch v. Foglesong, 38 Minn. 459; Cowand v. Meyers, 99 N. C. 198; Lawson v. Gee, 57 S. G. 502; Toplitz v. Toplitz, 54 App. Div. 630; 66 N. Y. Supp. 386; Hollingsworth v. Spectator Co., 53 App. Div. 291. 131 Hough V. Grants Pass Power Co., 41 Oregon 531. 132 Buehner Chair Co. v. Feulner, 28 Ind. App. 479. 133 Harris County v. Brady, 115 Ga. 767. 13* Hackett v. Equitable Life Assurance Soc, 50 App. Div. 266. 135 Soldiers' Home v. Sage, 11 Misc. 159; 67 St. Rep. 293; 33 N. Y. Supp. 549 ; 1 N. Y. Ann. Cas. 106. 136 See ante, p. 327. isTHardon v. Ongley Electric Co., 89 Hun 487. 332 Demueeee to the Complaint. Who may demur. a cause of aotion in favor of the plaintiff individually, the fact that the plaintiff is described in the caption " as executor " will not render the complaint demurrable.^'* § 11. The proper party or parties to demur. — Where there are several defendants and the complaint in the action is deemed defective, the question whether the objection to the defect should be presented by a demurrer taken by one or more or by all of the defendants is important. If the complaint states a good cause of action against one defendant he cannot demur upon the ground that it does not state a cause of action against his OQ-defendants.^'" And if there are several defendants who jointly demur, and the complaint states a good cause of action against one of them, the demurrer will be overruled.^*" A joint demurrer for defect of parties vrill be overruled if the aotion can be maintained without prejudice as to the rights of any one defendant without bringing in new parties. ^*^ It is only a party having an interest in having lie omitted parties joined, or who is prejudiced by the non-joinder, who may properly demur for defect of parties. ^*^ But where two causes of action on contract are joined in the complaint, and one of the causes of action does not affect all of the defendants, a defendant who 138 Litchfield v. Flint, 104 N. Y. 543; Gross v. Gross, 25 Misc. 297; 54 N. Y. Supp. 572. issLittell V. Sayre, 7 Hun 485; Holzman v. Hibben, 100 Ind. 338; Wood- house V. Cocke (Tex. Civ. App.), 39 S. W. 948; Dalrymple v. Security Loan & Trust Co., 9 N. D. 306. "oHirshfeld v. Weill, 121 Cal. 13; Mildenberg v. James, 62 App. Div. 617; 71 N. Y. Supp. 1142; Boyd v. Mut. Fire Assn. (Wis.), 90 N. W. 1086; Stahn V. Catawba Mills, 53 S. C. 519; Moore v. Charles E. Monell Co., 27 Misc. 235; Phillips v. Hagadon, 12 How. 17; Eldridge v. Bell, 12 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. 172; Webster v. Tibbits, 19 Wis. 438; Bennett v. Preston, 17 Ind. 291; Dunn v. Gibson, 9 Neb. 513; Oakley v. Tugwell, 33 Hun 357. "1 Dalrymple v. Security Loan & Trust Co., 9 N. D. 306. 142 Anderton v. Wolf, 41 Hun 571 ; Cedar I;ake Hotel Co. v. Cedar Lake Hydraulic Co. (Wis.), 48 N. W. 371. Demueeer to the Complaint. 333 Form of the demurrer. is affected by both may demur to the complaint on the ground of misjoinder of causes of action. ^*^ Where an action for a breach of contract is brought against three persons as co-part- ners, and against one of the oo^partners individually, the latter may detmiui' to the complaint if it fails to allege a cause of action against him individually.^^* If a complaint in an action against two defendants states facts showing a cause of action against each separately but not a cause of action against both jointly, the defendants may demixr jointly on the ground of misjoinder of causes of action. ^*^ § 12. Form of the demurrer. — Under the old system of pleadings 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 in- terposed, 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 requiring 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. Special demurrers as known to the former practice, were abrogated in ISTew York by the Code, and no pleading is now demurrable unless it is subject to one or more of tbe objections specified in the Code of Civil Procedure define ing the grounds of demurrer."" The ISTew York Code of Pro- cedure required that the demurrer should distinctly specify the grounds of objection to the complaint and provided that unless it did so it might be disregarded."^ This rendered all de- 1*3 Nicholls V. Drew, 94 N. Y. 22. 1** Polack V. Runlcel, 56 App. Div. 365 ; 67 N. Y. Supp. 753. 145 Hess V. Buffalo & Niagara Falls R. R. Co., 29 Barb. 391; Adams v. Stevens, 7 Misc. 468 ; 27 N. Y. Supp. 993. And see ante, p . — . 1*6 Marie v. Garrison, 83 N. Y. 14; Stewart v. Blatchley, 8 Misc. 472; 29 N. Y. Supp. 547. 1*7 N. Y. Code of Procedure, § 145. 334 Demueeee to .the Complaint. Fori5a of the demurrer. murrers special in respect to the mode of presenting the objec- tion relied on.^^' The present Code substantially re-enacted this provision of the Code of Procedure, but provided further, in substance, that an objection that the court has not jurisdiction 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 csause, or that the com- plaint does not state facts sufficient to constitute a- cause of action, may be stated in the language of the statute, while an objection that the plaintiff has not legal capacity to sue, or that there is a misjoinder of parties plaintiff, or that there is a defect of parties plaintiff or defendant, or that causes of action have been improperly united, must point out specifically the particular defects relied upon.^*" Under this provision of the Code a demurrer to a complaint upon the ground that the plaintiff has no legal capacity to sue, or that there is a defect of parties plaintiff, taken in the language of the statute and without specifically pointing out the defect relied on is insufficient.^^" So an objection that it appears upon the face of the complaint that causes of action have been improperly united will be insufficient if it fails to point out specifically the particular defect relied upon.^°' In order to take advantage by demurrer of the misjoinder of a person as plaintiff, on the ground that he has no cause of action jointly with the other plaintiffs, it is necessary that the defemd- ant should assign as a ground of demurrer not only " that there is a misjoinder of parties plaintiff," but also that he should proceed to point out that such plaintiff is improperly joined with the other plaintiffs because as appears upon the face of the complaint such plaintiff has no cause of action jointly, and that 148 Sanders v. Village of Yonkers, 63 N. Y. 489, 493. "» N. Y. Code of Civil Pro., § 490. 150 Foley v. Mail & Express Pub. Co., 8 Misc. 91 ; 28 N. Y. Supp. 778. loilsear v. McMahon, 16 Misc. 95; 37 N. Y. Supp. 1101; Davis v! City of New York, 75 App. Div. 518. Demueeee to the Complaint. 335 Form of the demurrer. the sole cause of action is averred to be in the other plaintiffs to the exclusion of the one named.^''^ In some of the States the demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken; and unless it do so it may be disregarded.^^' This is substantially the language of the California Civil Code, and under that statute it has been held that a demurrer for mis- joinder of parties defendant is sufficient which merely states that the demurrant is improperly joined with other defend- ants.^^* A demurrer for improper joinder of causes of action is sufficient, under the JSTew York Code, which states that " Causes of action upon contract are joined with causes of ac- tion for a tort," and does not state in the precise words of the Code that there is a misjoinder of causes of action.^^^ A demurrer need not be taken in the precise words of the statute. It is only required that the ground of demurrer should be so plainly stated that it may be clearly understood.^^^ But it is always the better practice to use the language of the statute, as in that case there can be no question as to the 152 Berney v. Drexel, 33 Hun 419. If the demurrer is for defect of par- ties it should point out in some definite way those who should have been made parties but were not. State v. Metschan (Oregon), 46 Pac. 791. 153 Cal. Code of Civil Pro., § 431 ; Conn. Gen. Stat., § 873 ; Hill's Ann. Laws of Oregon, § 68; Ala. Code, § 3303. iM Gardner v. Samuels, 116 Cal. 84. i55McClure v. Wilson, 13 App. Div. 274; 43 N. Y. Supp. 209. A de- murrer which states " that causes of action have been improperly united, viz., a, cause of action for slander of title, being a transitory action, with one for trespass on lands without the State, of which the court has no juris- diction," is unauthorized by the Code. Dodge v. Colby, 108 N. Y. 445. A demurrer is meaningless which states that " the complaint does not state facts sufScient to constitute a complaint." Pine v. Huber Manuf. Co., 83 Ind. 121. The correct form of demurrer in such case is " that the com- plaint does not state facts suiEcient to constitute 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 plaintiff to the relief demanded," raises no question. Kemp v. Mitchell, 29 Ind. 163; Piper v. Newcomer, 25 Iowa 221. 156 MeClure v. Wilson, 13 App. Div. 274; 43 N. Y. Supp. 209. 336 Demueeee to the Complaint. Effect of omission to demur. particular class of defects to whioh the objection relates. It is useless to assign a ground of deanurrer not authorized by the Code/" and an attempt to combine two authorized grounds of demurrer in a single statement of the defendant's objection to the complaint will always prove an experiment of doubtful expediency. It is safe to follow the statute;; and it is of the utmost importance that the defendant 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 demun-able on the particular ground assigned. If a specific ground of demurrer is stated which is untenable, tbe 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 som© whichi 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 further and attempts to point out specifically the particular defects relied upon he will thereby limit his demurrer to the particular defects specified.^"" § 13. Effect of omission to demur. — An objection which may be taken by demurrer, and is not so taien, 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 157 Dodge V. Colby, 108 N. Y. 445. 158 Carter v. De Camp, 40 Hun 258 ; Berney v. Drexel, 33 Hun 419 ; Drake V. Drake, 41 Hun 366; Dodge v. Colby, 108 N. Y. 445; Fulton Pire Ins. Co. V. Baldwin, 37 N. Y. 648 ; People v. Crooks, 53 N. Y. 648 ; Hobart v. Frost, 5 Duer 672. 169 Anderton v. Wolf, 41 Hub 571. 180 Nellis V. De Forest, 16 Barb. 61. Demueeeb to the Complaint. 337 Decision and proceedings thereon. does not state facts sufficient to oon&titute a cause of action. ^"^ These latter objections are not waived by an omission to demur even where they appear upon the face of the compiaint.^"^ By an omission to demur to the complaint the defendant waives the objection appearing on the face of the pleading that the plaintiff has not legal capacity to sue ; ^°' that there is an- other action pending between the same parties for the same '-cause; ^"^ that there is a misjoinder of parties plaintiff;"^ that there is a defect of parties plaintiff or defendant ; ^^'^ or that causes of action have been improperly united.^"'^ § 14. Decision of the demurrer and proceedings thereupon. — 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 vsdll wait the judgment of the court as to whether he is bound to answer. The demurrer raises 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 161 N. Y. Code of Civil Pro., §§ 498, 499; Cal. Code of Civil Pro., §§ 423, 434; Zabriskie v. Smith, 13 N. Y. 322; De Puy v. Strong, 37 N. Y. 372; Sullivan v. New York & Rosendale Cement Co., 119 N. Y. 348; Van Zandt V. Grant, 67 App. Div. 70; 73 N. Y. Supp. 600. And see' ante p. 312. 162 Coffin V. Reynolds, 37 N. Y. 640; Tooker v. Arnoux, 76 N. Y. 397. 163 Bartholomew v. Lyon, 67 Barb. 86; Secor v. Pendleton, 47 Hun 281; Van Zandt v. Grant, 67 App. Div. 70. i64Garvey v. N. Y. Life Ins. & T. Co., 14 Civ. Pro. E. 106; 14 St Rep 909. 165 Fisher v. Hall, 41 N. Y. 416; Kelly v. Jay, 79 Hun 535"'; 29 N. Y. Supp. 933; 61 St. Rep. 552. 166 Fourth Nat. Bank v. Scott, 31 Hun 301; Potter v. Ellice, 48 N. Y 321; Hotopp V. Huber, 160 N. Y. 524. i67Bebinger v. Sweet, 1 Abb. N. C. 263; Blossom v. Barrett, 37 N. Y. 434; White v. Rodemann, 44 App. Div. 503; 60 N. Y. Supp. 971. 168 N. Y. Code of Civil Pro., § 964; Cal. Code of Civil Pro., § 589. 169 N. Y. Code of Civil Pro., § 969. 338 Demureee to the Complaint. Demurrer and proceedings thereon. judgment to be entered thereupon.^^" ISTo stated form and no prescribed words are provided by the Code in which to express a decision. It answers the requirements if it can be seen that the court decided the question at issue, and it can also be under- stood how it decided it^^^ Upon the decision of the demurrer 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 shall be given to the plaintiff.^'* If the com- plaint cannot be so amended as to enable the plaintiff to recover, leave to amend will be refused, and judgment absolute ordered for the defendant ^^^ Leave tt> 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 complaint is allowed because two or laore causes of action are improperly 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 deteitnination of the causes of action therein stated.^^^ The decision or report upon the trial of the demurrer must direct the final or interlocutory judgment to be entered thereupon^''* and must fix its terms with definiteness.^'^ Where it directs an interlocutory judgment with leave to the party to plead anew i™ N". Y. Code of Civil Pro., § 1021. iTiFunson v. Philo, 27 Misc. 262; 58 N. Y. Supp. 419. 172 N. Y. Code of Civil Pro., § 497. 173 Simson v. Satterlee, 64 N. Y. 657. See Masterson v. Townshend, 123 N. Y. 458, as to the conditions under which a plaintiff in ejectment would be entitled to judgment on demurrer. 1" Lowry v. Inman, 37 How. 286 ; 6 Abb. N. S. 394. 176 Snow V. Fourth Nat. Bank, 7 Rob. 479. 17G Lowry v. Inman, 37 How. 286 ; 6 Abb. N. S. 394. 177 N. Y. Code oi Civil Pro., § 497. 178 N. Y. Code of Civil Pro., § 1021 ; Smith v. Eathbun, 88 N. Y. 660. 179 United States Life Ins. Co. v. Jordan, 46 Hun 201. Demtjeeee to the Complaint. 339 Demurrer and proceedings thereon. or amend, or permits the action to be divided into two or more actions, and no O'ther issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or tei*ms im- posed. ^^^ 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 payment of costs or other terms, the time limited for amendment will not com- mence 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 accordance with the direction. If the interlocutory judgment does not direct the final judgment to b© 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 requires.^^^ If the de- murrer 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.^'* Where the decision requires the entry of an interlocutory judgment before final judgment, the entry of final judgment, without first filing the proper roll and entering an interlocutory judgment thereon, will be premature and vsdll be set aside as irregular.^*" Where an action has been brought against several alleged joint tort feasors, a demurrer to the complaint has been in- 180 N. Y. Code of Civil Pro., § 1021. 181 United States Life Ins. Co. v. Jordan, 46 Hun 201. i82Liegeois v. McCracken, 22 Hun 69; 83 N. Y. 624; Funaon v. Philo, 27 Misc. 262; 58 N. Y. Supp. 419. 183 N. Y. Code of Civil Pro., § 1222; Smith v. Rathbun, 88 N. Y. 660. See Funson v. Philo, 27 Misc. 262 ; 58 N. Y. S«pp. 419. 184 United States Life Ins. Co. v. Jordan, 40 Hun 201. 185 Funson v. Philo, 27 Misc. 262; 58 N. Y. Supp. 419. 340 Demueeee to the Complaint. Demurrer as an admission. terposed by one of the defendants and overruled with leave to answer over within twenty days upon payment of costs, an inter- locutory judgment has been entered in aocordanoe with, the der cision of the court, and the demurring defendant has failed to answer over within the time allowed therefor, if the plaintiff thereafter amends his complaint, the demurring defendant is entitled to the service of a copy thereof upon him and an opportunity of answering it before final judgment can be en- tered against him.^*° The oases 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 without leave to plead to the merits, or with leave not availed of.^^' § 15. Effect of a demurrer as an admission of facts. — ^A de- murrer admits the facts pleaded and merely refers their legal sufficiency to the decision of the court. ^^^ It admits the truth of all the facts stated and the necessary inferences resulting tlierefrom,^^^ but it does not admit the truth of any conclusion of law ^"^ or fact ^°^ aven'ed in the pleading demurred to, or ise Merrill v. Thompson, 80 App. Div. 503. 18T risher v. Gould, 81 N. Y. 228 ; Whiting v. Mayor, etc., of N. Y. 37 N. Y. 600. 18S 1 Chitt. PI. 700. 189 Frank v. Mandel, 76 App. Uiv. 413; Greeff v. Equitable Life Assur- ance Soc, 160 ISUY. 19; Williams v. Gerber, 75 Mo., App. 18. 190 Supervisors of Sar.atoga v. Seabury, 11 Abb. N. C. 461; Groesbeck v. Dunscomb, 41 How. 302; Winstandley v. Rariden, 110 Ind. 140; Kinnier V. Kinnier, 45 N. Y. 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; Commercial Mut. Ace. Co. V. Bates, 74 111. App. 335; Aron v. City of Wausau (Wis.), 74 N. W. 354; Bush v. O'Brien, 47 App. Div. 581; 62 N. Y. Supp. 685; Talcott v. City of Buffalo, 125 N, Y. 280 ; Starbuck v. Farmers' Loan & Trust Co., 28 App. Div. 308; 51 N. Y. Supp. 8; Christian County v. Merrigan, 191 111. 484; Masterson v. Townshend, 123 N. Y. 458. 191 Frank v. Mandel, 76 App. Div. 413; Douglas v. Phoenix Ins. Co., 63 Hun 393; 18 N. Y. hupp. 259. Demuekee to the Complaint. 341 Demurrer as an admission. the correctness of any inferences drawn by the pleader from the facts alleged.^"^ If the complaint sets forth a contract, and a demurrer to the complaint is interposed by the defendant, the demurrer will admit the execution of the contract, but not the construction placed thereon by the plaintiff. ^^'' A demurrer admits as true the issuable facts in the pleading to which it is directed,^^* and issuable facts only.^"'' An alle- gation that a party is insolvent and unable to pay his debts is a conclusion of fact admitted by a demurrer.^"" A demurrer to a complaint in tort does not admit the amount of the dam- ages alleged.^'" Averments of the effect of statutes pleaded are not in amy sense allegations of fact and are not admitted by de- murrer. ^^* So an allegation that the plaintiff has no adequate remedy at law is a mere conclusion of law not admitted by de- murrer.^'" So an allegation that the plaintiffs are the heirs at law of a testatrix is a mere .legal conclusion and not admitted by demurrer. °°° Where a complaint alleges that certain specified defendants have or claim to have some interest in or to the premises in- volved in the action and to the funds derived from the sale thereof, a demurrer by such defendants upon the ground that the complaint does not state facts sufficient to constitute a cause 192 Greeflf v. Equitable Life Assurance Soe., 160 N. Y. 19. 193 Ryan v. McLane, 91 Md. 175; Greeff v. Equitable Life Assurance Soc, 160 N. Y. 19; Bonnell v. GrisAvold, 68 N. Y. 294; Buffalo Catholic Institute V. Bitter, 87 N. Y. 250; Bogardus v. New York Life Ins. Co., 101 N. Y. 328, 338; United States v. Ames, 99 U. S. 35; Swan v. Mutual Reserve Fund Life Assn., 20 App. Div. 255; 46 N. Y. Supp. 841; Schautz v. Oak- man, 163 N. Y. 148. 194 Third Nat. Bank v. Weaver, 73 111. App. 463. 196 Commercial Mut. Ace. Co. v. Bates, 74 111. App. 335; Kittinger v. Buffalo Traction Co., 160 N. Y. 377. 195 Campbell v. Heiland, 55 App. Div. 95; 6fi N. Y. Supp. 1116. 197 Thompson v. Fox, 21 Misc. 298; 47 N. Y. Supp. 176. i98Angell V. Van Sehaick, 56 Hun 247; 9 N. Y. Supp. 568; Feeley v. Wurster, 25 Misc. 544; 54 N. Y. Supp. 1060. i99Starbuck v. Farmers' Loan & Trust Co., 28 App. Div. 308; 51 N. Y. Supp. 8. 290 Henriques v. Yale University, 28 App. Div. 354. 342 The Answer. Requisites of an answer. of action against them, is an admission of the allegation that they claim to have an interest in the premises and to the fund derived from the sale thereof.""^ An admission by demurring 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 a complaint on the ground that the court had no jurisdiction, if the demurrer is overruled and the defendant avails himself of leave given to withdravs^ his demurrer and to ansvsrer, he vpill not he precluded from alleging want of juris- diction.^"" Where a party has availed himself of leave to withdraw his demurrer and to answer, it is then out of the case, forms no part of the record and is not available to either party for any purpose.^"* But so long as it remains on the record the admission stands, and the facts admitted by it cannot be con- troverted.'"'' CHAPTEE XI. The Answee. Section 1. Requisites of an answer under the New York Code. — Where the defendant has carefully inspected the com- plaint served upon him, and has reached the conclusion that there are no defects therein which should be corrected by mo- tion, 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 201 National Bank of Commerce v. Bank of New York, 17 Misc. 691; 41 N. Y. Supp. 471; Townsend v. Bogert, 126 N. Y. 370. 202 Culver v. Wright, 22 N. Y. 472. 203 Wheelock v. Lee, 74 N. Y. 295. 204 Wheelock v. Lee, 74 N. Y. 295 ; Brown v. Saratoga R. R. Co., 18 N. Y. 495. 206 Culver v. Wright, 22 N. Y. 472. The Answer. 343 Requisites of an answer. Specific denial of each material allegation of the complaint controverted by him, or of any knowledge or information there- of 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 denials, defenses, and counterclaims.^ The Code permits the defendant to 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 equitable,' and whether they are consist- ent or inconsistent with each other. ^ But each defense or counterclaim 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 I to the entire complaint, or to one or more separate causes of \ action therein. Matter tending only to mitigate or reduce damages in an aption to recover damages for a breach of prom- 1 N. Y. Code of Civil Pro., § 500. This was the language of the former Code (N. Y. Code of Procedure, § 149), and, with certain exceptions which will be hereafter noticed, expresses the statutory requirements of an an- swer in the majority of the Code States. See Missouri Kev. Stat., 1889, § 2049; S. D. Code, §4914; S. D. Comp. Laws, 2908; Iowa Code, 1886, § 2655; Iowa Codes, § 3566; Colo. G6de, 1887, § 56; Ohio Code of Civil Pro., § 92; Ohio Rev. Stat., 1878, § 5070; N. C. Code, § 243; S. C. Code of Civil Pro., § 170; Wis. Rev. Stat., 1878, § 2655; Minn. Code of Pro., § 79. 2Burley v. German- American Bank, 111 U. S. 216; 28 L. Ed. 406. 3N. Y. Code of Civil Pro., § 507. See also S. C. Code, § 171, subd. 2; Idaho Rev. Stat, § 4187; Cal. Code of Civil Pro., § 441; Iowa Code, 1873, § 2655. i See ante, p. 56 ; Bruce v. Burr, 67 N. Y. 237 ; Millan v. Southern Ry. Co., 54 S. 0. 485; Iowa Code, 1873, § 2710; Wall v. Mines, 130 Cal. 27; Reed v. Reed, 93 N. C. 462; Seeman v. Bandler, 25 Misc. 328; 54 N. Y. Supp. 564. See ante, p. 57. In Nebraska a defendant is not permitted to plead inconsistent defenses. Oakes v. Zeimer, 84 N. W. 409. In Idaho, while the defenses may be in some degree inconsistent, they cannot be so inconsistent that proof of one defense will disprove the other. Murphy v. Russell, 67 Pac. 421. 5 See ante, p. 18 ; N. Y. Code of Civil Pro., § 507 ; Kneedler v. Sternberg, 10 How. 68. 344 The Answeh. Requisites of an answer. ise to marry, or for a personal injury, or an injury to property, may be thus set forth as a partial defense.** In such actions the defendant may prove at the trial facts not amounting to a total defense, tending to mitigate or otherwise reduce the plain- tiff's dam.ages, 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 plaintiff's damages, prove facts of that description.^ But where an an- swer is interposed the defendant is precluded from proving cir- cumstances by way of mitigation unless such matter is pleaded.* In an action of libel or slander the defendant may prove mitigat- ing circumstances notwithstanding he has pleaded or attempted to prove a justification." Mitigating circumstances, while they do not constitute a total defense to an action for libel, are facts from which it may be found that the defendant acted without malice, and had reasonable ground to believe that the statements in the article published were true.^° Mitigation extends or relates to punitive or exemplary damages only. There can be no mitigation of actual or compensatory damages.^^ To a par- tial defense pleaded by way of mitigation the rules by which the sufficiency of a pleading is ordinarily determined cannot be applied in all their customary strictness. ^^ It is a defense by a surety, against whom an action is broiight iipon a sheriff's '- N. Y. Code of Civil Pro., § 508. 7 N. Y. Code of Civil Pro., § 536. sDunton v. Hagerman, 18 App. Div. 146; 46 N. Y. Supp. 758; Morgan V. Bennett, 44 App. Div. 323; 60 N. Y. Supp. 619; Brush v. Blot, 16 App. Div. 80; 44 N. Y. Supp. li573; Wuensch v. Morning Journal Assn., 4 App. Div. 110; 38 N. Y. Supp. 605; Bassett v. French, 1 N. Y. Ann. Cas. 270; 31 N. Y. Supp. 667; Willover v. Hill, 78 -N. Y. 36; Bradner v. Faulkner, 93 N. Y. 515. ! '" ,. 9 N. Y. Code of Civil Pro., § 535. 10 Morgan v. Bennett, 44 App. Div. 323; 60 N. Y. Supp. 619. 11 Wuensch v. Morning Journal Assn.. 4 App. Div. 110; 38 N. Y. Supp. 605. 13 Morgan v. Bennett, 44 App, Div. 323; 60 N. Y. Supp. 758; Bradner v. Faulkner, 93 N. Y. 515. The Answer. 345 Requisites of an answer. official bond, that he or any other surety or sureties have been or will be compelled, for want of sufficient piroperty of the sheriff, to pay, upon one or more judgments recovered against him or them, upon the same bond, an aggregate amount, ex- clusive 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 aggi-egate amount so paid, or to be paid, and the sum for which the defendant is thus liable, is less than tbe amount of the plaintiff's demand. ^^ An answer which puts in issue some of the material aver-/ ments of the complaint is not demurrable.^* It is not essential to the validity of the defendant's pleading that it should answer the whole of the complaint, or of any single count. It is suffi- cient 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 in- tended 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.^'/'lFnew matter is pleaded as a partial defense, the answer must so state, 13 N. Y. Code of Civil Pro., § 1884. 14 Wellington v. Beck (Colo.), 65 Pac. 626. 15 McKyring v. Bull, 16 N. Y. 297. 16 Poster V. Hazen, 12 Barb. 547; Beach v. Barons, 13 Barb. 305; Thumb V. Walrath, 6 How. 196; Willis v. Taggard, 6 How. 433; Nichols v. Du- senbury, 2 N. Y. 283; Kneedler v. Sternberg, 10 How. 67; Franklin Life Ins. Co. V. Dehority, 89 Ind. 347; Ivake v. '-Thomas, 84 Md. 608; City of Marshall v. Cleveland, C, C. & St. L. By. Co., 80 III. App. 521. "Davison v. Sehermerhorn, 1 Barb. 480; Mattison v. Smith, 1 Rob. 706; 19 Abb. 288. 18 Hammond v. Earle, 58 How. 426; Loosey v. Orser, 4 Bosw. 391; Sbar- boro V. Health Department, 26 App. Div. 177; 49 N. Y. Supp. 1033; Craft V. Brandow, 24 Misc. 306; 52 N. Y. Supp. 1078. 346 The Answer. Demand of judgment. and if it does not, it will lie assumed to be pleaded as a com- plete defense, and will be tested as such on demurrer.^" § 2. Demand of judgment in an answer. — Where the answer contains mere denials, or new matter admitting and avoiding the cause of action set up in the complaint and constituting a defense thereto, it need not contain a demand of judgment,^" although it is the common practice in such cases to demand judgment for the dismissal of the complaint and for the de- fendant's costs and disbursements in the action. But it is provided by the ISTew York Code that 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. ^^ This is consistent with the general scheme of the Code.' It requires the plaintiff to demand in his complaint the judgment to which he supposes himself entitled, and the counterclaim, being in the nature of a cross-complaint, should contain a similar demand if the defend- ant deems himself entitled to an affirmative judgment against the plaintiff. But where an action is brought to recover a sum. of money and the defendant seeks by his counterclaim to merely defeat a recovery against him by offsetting claim against claim, the failure to incorporate any demand for judgment in the answer will not render it demurrable.^^ But it has been held that there can be no recovery against the plaintiff by way of counterclaim where tbere is no claim for affirmative relief in 19 N. Y. Code of Civil Pro., § 508 ; Matthews v. Beach, 5 Sandf . 256 ; 8 N. Y. 173; Bernascheflf v. Roeth, 34 Misc. 588; 70 N. Y. Supp. 369; Thomp- son V. Halbert, 109 N. Y. 329; Ivy Courts Realty Co. v. Morton, 73 App. Div. 335; Garrett v. Wood, 57 App. Div. 242; 68 N. Y. Supp. 157; 9 N. Y. Ann. Cas. 292 ; Cole v. Beyland, 67 N. Y. Supp. 1024. 2oBendit v. Annesley, 42 Barb. 192; 27 How. 184; Dawley v. Brown, 9 Hun 461. 21 N. Y. Code of Civil Pro., § 509. 22Blaut V. Borchardt, 12 Misc. 197; 33 N. Y. Supp. 273. But see Corn- ing V. Roosevelt, 25 Abb. N. C. 220. The Answer. 347 Demand of judgment. the answer.-^ It has also been held in an action to foreclose an instrument in the form of an absolute deed, but alleged to have been given as seeiurity, that where it was alleged in the answer and proved upon the trial that the deed was delivered to the plaintiff, not as security, but for the purpose of convey- ing title through him to the defendant, the court had power to administer full relief and adjudge that the plaintiff execute a deed to the defendant although the demand of judgment in the answer was merely for a dismissal of the complaint.^* So in an action upon a contract which the defendant claims does not express the agreement of the parties, the defendant should allege by way of counterclaim the facts entitling him to a re- formation of the agreement and pray judgment for such re- formation; but if the defendant fails to do so, and proof of the requisite facts are given without objection, the defendant may have judgment for reformation notwithstanding his failure to demand it.^^ In such cases the recovery by the defendant is not based upon any rule of pleading, but upon the waiver and disregard of the rule by the parties. If a defendant seeks a determination of ultimate rights as between himself and a co-defendant he must demand such determination in his answer and serve it upon such co-defend- ant. ^° This is often necessary 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 of the chattel replevied to the defendant, or for its value, either with or without damages for its detention, may be made by way of a notice and independent of the answer. ^^ 23 Shute V. Hamilton, 3 Daly 462 ; Montanye v. Montgomery, 47 St. Eep. 114; 19 N. Y. Supp. 655. 24 House V. Lockwood, 137 N. Y. 259. 25 Born V. Schrenkeisen, 110 N. Y. 55. 26 N. Y. Code of Civil' Pro., § 521. 27 N. Y. Code of Civil Pro., § 1543. 2s N. Y. Code of Civil Pro., § 1725. 348 The Answer. Admission by omission to deny. § 3. Omission to deny as an admission of facts pleaded. — Tlie answer of the defendant must contain some authorized form of denial of each material allegation of the complaint which he desires to controvert upon the trial, as each material allega- tion of the complaint, not controverted by the answer, must for the purpose of lie action, be taken as true.^" A denial in the ,' answer of a material allegation of the complaint, or an allega- tion in the answer that the defendant has not sufficient knowl- edge or information sufficient to form a belief with respect to a material allegation of the complaint, raises an issue of fact for trial.'" This is the only manner in which the facts a,lleged in the complaint can be put in issue. A statement in an answer of a state of facts inconsistent with the facts alleged in the complaint, will not amount to a denial nor will it have the eilect of preventing the allegations of the complaint from being taken as true.'^ A fact admitted by failure to deny it cannot be contradicted or varied by evidence on the trial. ^^ This rule applies as well 29 N. Y. Code of Civil Pro., § 522; Cal. Code of Civil Pro., § 462; Iowa Code, § 3622; Hill's Ann. Laws (Oregon), § 98; N: C. Code, § 268; Nev. Comp. Laws, 1900, § 3160; State v. Henderson, 86 Mo. App. 482; Teutonia Ins. Co. V. Beard, 74 111. App. 496; Staten Island Midland R. Co. v. Hinchcliffe, 34 Misc. 49; 68 N. Y. Supp. 556. 30 N. Y. Code of Civil Pro., § 964; Cal. Code of Civil Pro., § 590. 31 Smith V. Coe, 170 N. Y. 162; Rodgers v. Clement, 162 N. Y. 422, 428; Fleischmann v. Stern, 90 N. Y. 110; Marston v. Swett, 66 N". Y. 210; Wood V. Whiting, 21 Barb. 190; West v. American Exchange Bank, 44 Barb. 175; Swinburne v. Stockwell, 58 How. 312; Powers v. Rome, W. & 0. R. R. Co., 3 Hun 285; Place v. Bleyl, 45 App. Div. 17; 60 N. Y. Supp. 800; Ivy Courts Realty Co. v. Morton, 73 App. Div. 335 ; Soper v. St. Regis Paper Co., 77 N". Y. Supp. 896; 78 N. Y. Supp. 782 Zwerling v. Annenberg, 38 Misc. 169; 77 N. Y. Supp. 275. But it has been held that an averment to the direct contrary of the matter alleged in the complaint is equivalent to a denial. Perkins v. Brock, 80 Cal. 320; Scott v. Wood. 81 Cal. 398; Byx- bee V. Dewey (Cal.), 47 Pac. 52. 32 West v. American Exchange Bank, 44 Barb. 175; Tell v. Beyer, 38 N. Y. 161; Fleischmann v. Stern, 90 N. Y. 110; Spear v. Hart, 3 Rob. 420; Lawrence v. Bank of Republic, 3 Rob. 142; To^^^^shend v. To^vnshend, 1 Abb. N. C. 81 ; Ferris v. Hard, 135 N. Y. 354, 361. The Awswee. 349 Admission by omission to deny. to a failure to deny material facts impliedly pleaded as to a failure tplaint as a / necessary and material fact to constitute a cause of action/^* ' And it may be stated as the general rule, that under a general denial the defendant may controvert by evidence anything vfhich the plaintiff is bound t« prove in the first instance to make out his cause of action, or anything that he is permitted to prove for that purpose under his complaint/^^ An exception to the rule is found in statutes requiring denials to be sp©- cific.^^" A general denial, like the general issue under the former practice, puts in issue the existence at any time of the existence of the cause of action alleged in the complaint, and admits evi- dence tending to establish suoh defense.^^^ If a cause of action \ has once accrued or existed, and has been satisfied or defeated / by something which has accrued subsequently, that is new mat- / ter which must be pleaded in order to be proved.^^^ Under a general denial the defendant may show a want (jf consideration ; ^^^ that the aotion was prematurely brought ; ^^^ 38 N. Y. 263 ; Weaver v. Barden, 49 N. Y. 286 ; Griffin v. Long Island K. R. Co., 101 N. Y. 348; Jones v. Rush, 156 Mo. 364; Merrill v. Wedgwood, 25 Neb. 283; Renter v. Staight, 1 Wash. 365; Wiedeman v. Hedges, 88 N. W. (Neb.) 170. 134 Quin V. Lloyd, 41 N. Y. 349 ; Knapp v. Roche, 94 N. Y. 329 ; State V. Roche, 94 Ind. 372; McElwee v. Hutchinson, 10 S. C. 436. 135 Greenfield v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430 ; Wheeler v. Billings, 38 N. Y. 263; O'Brien v. MeCann, 58 N. Y. 373; Weaver v. Barden, 49 N. Y. 286; Lyles v. Bolles, 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; Cliflford v. Dam, 81 N. Y. 52, 57; Griffin v. Long Island R. R. Co., 101 N. Y. 348, 354; Robinson v. Frost, 14 Barb. 536; Milbank v. Jones, 141 N. Y. 340; Sylvis v. Sylvis, 11 Colo. 319. 136 See ante, p. 350. 137 Evans v. Williams, 60 Barb. 346; Hoflfman v. Parry, 23 Mo. App. 20; Feeney v. Chapman, 89 Mo. App. 371. 138 Evans v. Williams, 60 Barb. 346 ; Weaver v. Barden, 49 N. Y. 286. 139 Evans v. Williams, 60 Barb. 346. 140 Mack V. Burt, 5 Hun 28. 368 The Answee. Facts provable under a general denial. that the contract in suit Las been altered since its execution ; ^*^ or facte showing that no valid contract had ever been entered into between the parties/*'^ In respect to impeaching the validity of a contract upon the ground that it is against public policy, the rule seems to be that the plaintiff must, to support his action, allege and prove a contract valid on its face. If he fails to do so his complaint may be dismissed although the in- validity of the contract is not pleaded/^^ But if the contract alleged and proved by the plaintiff is valid on its face, the de- fense that it is in fact against public policy and illegal is not available unless specially pleaded. '^^^ In an action for goods sold and delivered, which are claimed to have been purchased by the defendant's agent, the defendant may show, im.der a general denial, a revocation of the agent's authority and notice thereof to the plaintiff prior to the sale ; ^*^ or that the defendant had contracted to deliver a certain amount of merchandise and had delivered only a part; ^*° or that the defendant dealt with the plaintiff as agent for a disclosed prin- cipal to whom the credit was given. ^*' But the defendant can- not be permitted to show under a general denial, that after the receipt of merchandise purchased, he rejected it because of its inferior quality and that thereupon it was arranged that lie should be considered as having received it as consignee to sell for and on account of the plaintiff.^^^ 1*1 Schwartz v. Oppold, 74 N. Y. 307 ; Boomer v. Koon, 6 Hun 645. 142 Gary v. Western Union Tel. Co., 47 Hun 610; 20 Abb. N. C. 333. 1*3 Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261 ; 26 L. Ed. 539; Russell v. Barton, 66 Barb. 539; Dunham v. Hastings Pavement Co., 56 App. Div. 244; 67 N. Y. Supp. 632. i**Milbank v. Jones, 127 N. Y. 370; Drake v. Siebold, 81 Hun 178; 30 N. Y. Supp. 697. In one ease it was held that the invalidity of the con- tract could be shown under a, general denial. See Cary v. Western Union Tel. Co., 47 Hun 610; 20 Abb. N. C. 333. But this is contrary to the cases above cited. i*5Hier v. Grant, 47 N. Y. 278. i*e Manning v. Winter, 7 Hun 482. i*7Merritt v. Briggs, 57 N. Y. 651. 148 Wallace v. Blake, 128 N. Y. 676. The Answer. 369 Facts provable under a general denial. Under a geoieral denial in an action upon an account stated, the defendant may give evidence which would show that there was actually no account between him and the plaintiff ; that he had had no dealings with him ; and that no account had been stated."" A general denial in 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 aetion.^^" Under this answer the defendant may show title out of the plaintiff, '^^^ or want of title in the plaintiff ^^* at the time of the commence- ment of the action. So in an action of replevin based solely upon a wrongful detention, a general denial puts in issue both the VTTongful detention and the plaintiff's property in the chat- tel, and under such plea the defendant may show title in a stranger although he does not connect himself with such title.^^'' The jSTew York Code provides generally that in an action to recover a chattel the defendant may by answer defend on the ground that a third person was entitled to the chattel vsdthout connecting himself with the latter's title.^^* But in actions of trespass or trover the general rule is that an answer of title in a stranger, without an allegation connecting the defendant with such title is no defense.^^^ But it has been held that in an ac- tion for the conversion of- personal property a general denial puts in issue, not only the conversion, but also the plaintiff's title, and that under it the defendant may show that the plain- 149 Field V. Knapp, 108 N. Y. 87. isoGillman v. Gillman, 111 N. Y. 265. 151 Raynor v. Timerson, 46 Barb. 518; Woods v. Bonner, 89 Tenn. 411. 152 Benton v. Hatch, 122 N. Y.- 322. 153 GriflSn v. Long Island R. R. Co., 101 N. Y. 348. 164 N. Y. Code of Civil Pro., § 1723. 165 Stonebridge v. Perkins, 141 N. Y. 1 ; Stowell v. Otis, 71 N. Y. 36 ; Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 12 Wend. 30; King v. Orser, 4 Duer 431; Hoyt v. Van Alstyne, 15 Barb. 568; Gerber v. Monie, 56 Barb. 652 ; Wheeler v. Lawson, 103 N. Y. 40. 370 The Answer. Facts provable under a, general denial. tiff had no title/°° without an affirmative allegation of title in himself.^^' But putting the plaintiff'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 plaintiff 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 neces- sary to connect himself with that title. ^^^ Where" for the pur- pose of establishing a conversion the plaintiff has proved a de- mand 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 amovmt of the plaintiff's damages, and under it the defendant may prove any fact affecting the value of the jjroperty 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 150 Robinson v. Frost, 14 Barb. 536. See Miller v. Decker, 40 Barb. 228, 233. lOT Brevoort v. Brevoort, 8 Jones & Sp. 211. issKlinger v. Bendy, 36 Hun 601; Stowell v. Otis, 71 N. Y. 36; Gerber V. Monie, 56 Barb. 652. 150 Ontario Bank v. New Jersey Steamboat Co.. 59 N. Y. 510. i«o Thompson v. Halbert, 109 N. Y. 329 ; Booth v. Powers, 56 N. Y. 22. See Thew v. Miller, 73 Iowa 742. loiKnapp V. Roche, 94 N. Y. 329; Hun v. Van Dyck, 26 Hun 567; 92 N. Y. 660 ; Osburn v. Lovell, 36 Mich. 246. The Ajstswee. ' 371 Facts provable under a general denial. plaintiff under a general denial ; ^''' and in an action for seduc- tion 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 chatties, if it ap'pears 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.^"" "V^^ere the complaint in an action for partition alleges that a person who is the source of title died intestate, a defendant who denies all the allegations of the complaint except that the parties named are the heirs at law and next of kin of such decedent may prove and read in evidence an unprobated will of the decedent/"^ In an action for services alleged to have been rendered for the plaintiff, the defendant may show under a general denial that the work was done by others.^"' Where the complaint alleges ownership of property by the plaintiff, the defendant may prove ownership of the property in himself under a general denial.^"" There are statutes which have enlarged the scope of a general 162 Anonymous, 8 How. 434. Contra, Anonymous, 6 How. 160. lesWandell v. Edwards, 25 Hun 498. 164 Willis V. Hudson, 63 Texas 678. i65Klinger v. Bondy, 36 Hun 601. 168 Wheeler v. Lawson, 103 N. Y. 40. 16T Whitney v. Whitney, 171 N. Y. 176. 168 See Outcalt v. Johnston, 9 Colo. App. 519. 169 Dieckman v. Young, 87 Mo. App. 530. 372 The Answee. Defenses which must be pleaded. denial and permit a defendant in the cases therein specified to prove facts thereunder, that but for the statute could not be in- troduced in evidence unless formally pleaded. These excep- tions to the general rules of pleading are generally to be found in statutes incorporating cities and villages and need not here be specially noticed. § 10. Defenses which must be pleaded to be available. — A general or specific denial controverts only material allega- tions, or such facts as the plaintiff would be compelled to prove to establish his cause of action. It does not put in issue imma- terial averments because the Code does not require that they should be denied. Thus, if an action is brought by a servant to recover damages sustained by reason of a breach of the contract of employment, where the breach consists in the discharge of the plaintiff before the expiration of his term of service, it is neces- sary for the plaintiff to allege and prove that he was discharged before his term of service, as provided by the contract, had ex- pired, but it is not necessary that he should, specifically or in express terms, aver or prove that he was discharged without cause, as a discharge before the determination of the stipulated period is prima facie a violation of the agreement entitling the plaintiff to recover, and an allegation that he was discharged without cause would be an immaterial averment anticipatory of a possible defense and surplusage. If such additional and immaterial matter is alleged in the complaint this will not au- thorize the defendant to prove facts in justification of the dis^ missal under a general denial in the answer. The defense of justification confesses the contract and discharge but avoids the ' cause of action by showing new matter and must be pleaded.^'" The foregoing is but an illustration of the general rule that 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 170 Linton v. Unexcelled Fireworks Co., 124 N. Y. 533. The Answer. 373 Defenses which must be pleaded. must be pleaded to authorize evidence thereof to be given on the trial.^" Tbis rule 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 thougb the complaint alleges non-payment/^'' unless such allegation is necessary and material to tbe statement of a cause of action. ^'^^ If the action is for the conversion of a promissory note the defendant may sbow, under a general de- nial, in reduction 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.^''' Tbe defendant must also plead tbe defense of the statute of limitations,^^' unless in a case where tbe commencement of an action within the time limited is a necessary and material alle- gation to support the plaintiff's cause of action.^^" iTiMcKyring v. Bull, 16 N. Y. 297; Lytle v. Crawford, 69 App. DiT.273; Linton v. Unexcelled Fireworks Co., 124 N. Y. 533; Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 50; Wallace v. Blake, 128 N. Y. 676;'Lowe V. Prospect Hill Cemetery Assn., 58 Neb. 94 ; 78 N. W. 488. 172 Roe V. Angevine, 7 Hun 679. 173 Weaver v. Barden, 49 N. Y. 286 ; Seymour v. McKinstry, 106 N. Y. 230, 242 ; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429 ; Rapalee v. Stewart, 27 N. Y. 310; Beaty v. Swarthout, 32 Barb. 293. i74McKyring v. Bull, 16 N. Y. 297; Texier v. Gonin, 5 Duer 389, 392; Hitchings v. Kayser, 65 App. Div. 302, 303; 72 N. Y. Supp. 549; 171 N. Y. 636. 175 Bassett v. Lederer, 1 Hun 274. 176 Knapp V. Roche, 94 N. Y. 329 ; Quin v. Lloyd, 41 N. Y. 349. 177 See Booth v. Powers, 56 N. Y. 22 ; Thompson v. Halbert, 109 N. Y. 329. i78Hollister v. Stewart, 111 N. Y. 645. 179 N. Y. 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; Nehasane Park Assn. v. Lloyd, 167 N. Y. 431, 438; Hayden V. Pierce, 144 N. Y. 512; Titus v. Pool, 145 N. Y. 414; Hamilton v. Royal Ins. Co., 156 N. Y. 327. isoSelover v. Coe, 63 N. Y. 438. 374 The Answer. Defenses which must be pleaded. In an action of ejectment the defense of adverse possession must be pleaded and cannot be shown under a general denial. ^*^ In an action against a corporation the defense of ultra vires must be pleaded in order to be available to the defendant.^*^ In an action upon a contract a defendant relying upon the invalidity of the contract as a defense should plead the facts establishing such invalidity if they do not appear iipon the face of the con- tract.^^^ The alteration of a bill or note need not be pleaded when the instrument is declared on in its altered state, but when the declaration is on the instrument in its original condition the alteration must be specifically pleaded. ^^* A defendant who desires to avail himself of the defense of a former adjudication ; ^'^ or of a defect of parties plaintiff not appearing upon the face of the complaint ; ^^^ or of a misjoinder of plaintiffs, where the defect cannot be reached by de-- murrer ; ^''' or the want of consideration in an action upon an instrument under seal ; ^^^ or that the deed relied upon by the plaintiff in ejectment is void under the champerty act ; ^^^ or of the defense of an accord and satisfaction ; ^'"' or of an account isiHansee v. M«ad, 27 Hun 162; Raynor v. Tiinerson, 46 Barb. 518; Crowley v. Royal Exeh. Ship. Co., 2 Civ. Pro. R. 174; Church v. Hempsted, 27 App. Div. 412; 50 N. Y. Supp. 325. 182 Hess V. Sloane, 66 App. Dir. 522; 73 N. Y. Supp. 313; Keating v. American Brewing Co., 62 App. Div. 510; 71 N. Y. Supp. 95; Richmond County Society v. City of New York, 73 App. Div. 607; 77 N. Y. Supp. 41. 183 Milbank v. Jones, 127 N. Y. 370 ; 141 N. Y. 347 ; Boyer v. Fenn, 19 Misc. 128; 43 N. Y. Supp. 533; Drake v. Siebold, 81 Hun 178; 30 N. Y. Supp. 697. isiHirschman v. Budd, L. B., 8 Ex. 171; Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354, 360. 185 Willis V. McKinnon, 37 Misc. 386 ; 75 N. Y. Supp. 770. 186 Parker v. Paine, 37 Misc. 768; 76 N. Y. Supp. 942; McManus v. Western Assurance Co., 43 App. Div. 550; 60 N. Y. Supp. 1143. 187 Eghcrt V. Hanson, 34 Misc. 760. issRecknagel v. Steinway, 58 App. Div. 352; 69 N. Y. Supp. 132; Mut. Life Ins. Co. v. Yates Co. Nat. Bank, 35 App. Div. 218; 54 N. Y. Supp. 743; Dubois V. Herniance, 56 N. Y. 673. ISO Ten Eyck v. Witbeck, 55 App. Div. 165; 66 N. Y. Supp. 921. looHabrich v. Donohue, 51 App. Div. 375; 64 N. Y. Supp. 604; Niggli The Answer. 375 Defenses which must be pleaded. stated and payment of a balance thereon, in an action for goods sold and delivered ; ^^^ or that the plaintiff is not the real party in interest; ^"^ or the defense of duress; ^"^ or want of jurisdic- tion of the court to render the foreign judgment sued upon ; ^°* or of- a right of way by prescription ; ^"^ or a release of the cause of action ; ^"^ or that a broker suing for commissions acted for both parties ; ^"^ or that there is another action pending which in- volves th-e issues or is inconsistent with the maintenance of the action in suit ; ^"^ or that the plaintiff has not the legal capacity to sue ; ^'"' or the diversion of the proceeds of an accommodation note; ^'"' or the defense of a want of consideration in an action upon a promissory note ; ^°^ or the defense of fraud in an action on contract ; ^"^ must in either of the cases mentioned plead the defense be debarred from proving it on the trial. Under the New York practice, as now conclusively settled, where an ac- tion is brought upon a contract which is declared void by the Statute of T'rauds unless in writing, the defendant, if he de- sires to avail himself of the protection of the statute, must take his objection by demurrer, if the defect appears upon the face of the complaint, or by answer if it does not so appear. If the objection is not taken in either form it will be. deemed to have been waived.^"' The portions of the so-called Statute of V. Foehry, 83 Hun 269; 31 N. Y. Supp. 931; Jacobs v. Day, 5 Misc. 410; 25 N. Y. Supp. 763. i9iEishel V. Weil, 31 Misc. 70; 63 N. Y. Supp. 178. 192 Fourth Nat. Bank v. Mahon, 38 App. Div. 198; 56 N. Y. Supp. 566; Coffin V. Grand Eapids Hydraulic Co., 18 N. Y. Supp. 782; 136 N. Y. 655. 193 sternback v. Friedman, 23 Misc. 173; 50 N. Y. Supp. 1025. 19* Rice V. Coutant, 38 App. Dir. 543; 56 N. Y. Supp. 351. 195 Burlew v. Hunter, 41 App. Div. 148 ; 58 N. Y. Supp. 453. i9«Horton v. Horton, 83 Hun 213; 31 N. Y. Supp. 588. 197 Bomvell v. Auld, 9 Misc. 65 ; 29 N. Y. Supp. 15. 198 James v. Work, 70 Hun 296; 24 N. Y. Supp. 149. 199 Coffin V. President, etc.. Grand Rapids Hydraulic Co., 136 N. Y. 655. 2ooLoewer's Gambrinus Brewery Co. v. Bachman, 18 N. Y. Supp. 138. 201 Eldridge v. Mather, 2 N. Y. 157. 202Aultman, Miller & Co. v. Hacker, 38 St. Rep. 724; 14 N. Y. Supp. 744. 203 Porter v. Wormser, 94 N. Y. 431, 450; Hamer v. Sidway, 124 N. Y. 376 The Answbe. Defenses which must be pleaded. Frauds that are waived unless pleaded relate to contracts which though previously capable of valid proof by parol evidence are declared to be void unless in writing/"* The rule as to the necessity of pleading this statute is not uniform in all the States. In some it is held that this defense must be pleaded to be available; ^"^ and in others it is held that where there is a denial of the contract in the answer the defense may be raised although not specially pleaded. ^°° In others it is said that the defendant must either plead the statute or object to the intro- duction of testimony at the trial.^"^ In others it is held that where the complaint is on the common counts only it is not 538; Matthews v. Matthews, 154 N. Y. 288; Sanger v. French, 157 N. Y. 213, 234; Wells v. Monihan, 129 N. Y. 161; Crane v. Powell, 139 N. Y. 379; Cozine v. Graham, 2 Paige 177; Vaupell v. Woodward, 2 Sandf. Ch. 143; Harris v. Knickerbaeker, 5 Wend. 638 ; Duffy v. O'Donavan, 46 N. Y. 226 ; Marston v. Sweet, 66 N. Y. 206; Myers v. Dorman, 34 Hun 115; Franklin Coal Co. V. Hicks, 46 App. Div. 441, 444; 61 N. Y. Supp. 875; Honsinger V. Mulford, 90 Hun 589; 157 N. Y. &74; Geneva Mineral Spring Co. v. Coursey, 45 App. Div. 268; 61 N. Y. Supp. 98; McHugh v. Harjes, 25 Misc. 294; 54 N. Y. Supp. 562; Irlbacker v. Roth, 25 App. Div. 290; 49 N. Y. Supp. 538; Bowdish v. Briggs, 5 App. Div. 594; Simis v. Wissel, 10 App. Div. 323. 204Dearing v. McKinnon Dash & Hardware Co., 33 App. Div. 31; 165 N. Y. 78. 20BGraffam v. Pierce, 143 Mass. 386; Lawrence v. Chase, 54 Me. 196; Farwell v. Tillson, 76 Me. 227 ; Bird v. Munroe, 66 Me. 346 ; Boston Duck Co. V. Dewey, 6 Oray 446 ; Angel v. Simpson, 85 Ala. 53 ; Carter v. Fischer, 28 So. (Ala.) 376; Gregory v. Farris, 56 S. W. (Tenn.) 1059; Smith v. Euohs, 54 S. W. (Tenn. Ch. App.) 161; Barnes v. Black Diamond Coal Co., 101 Tenn. 354; Sandford v. Davis, 181 HI. 570; Tift v. Wright & Weslosky Co., 113 Ga. 681; Baldwin v. Central Savings Bank, 67 Pac. (Colo. App.) 179; Suber v. Richards, 61 S. C. 393. But see Hillhouse v. Jennings, 60 S. C. 373. In Utah and West Virginia if the contract is ad- mitted, the defense must be specially pleaded. Abba v. Smyth, 59 Pac. 756 ; Barrett v. McAllister, 33 W. Va. 738. 206 Luton v. Badham, 127 N. C. 96 ; Williams-Hayward Shoe Co. v. Brooks, 9 Wyo. 424; Fontaine v. Bush (Minn.), 41 N. W. 465; Bean v. Lamprey (Minn.), 84 N. W. 1016; Porter v.' Citizens' Bank, 73 Mo. App. 513; Hillman v. Allen, 145 Mo. 638; Feeney v. Howard (Cal.), 21 Pac. 984. 207 Neuvirth v. Engler, 83 Mo. App. 420. The Answer. 377 Defenses which must be pleaded. necessary for the defendant to plead the statute and that he may avail himself of it under his general denial. ^°^ In ISTew York the defense of a foreign Statute of Frauds must be spe- cially pleaded.^"* It appears to be settled in New York by the general con- currence of authority 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. ^^° The rule proceeds upon the theory that parties may by mutual as- sent litigate their differences in a court of equity, where the assent of the defendant, if withheld, might induce the court to refrain from the exercise of its jurisdiction ; and, that jurisdic- tion existing over the general subject, the question of its ex- ercise in a given case cannot be raised unless the answer raises it."^^ But it has also been held that the trial court may, in its discretion, dismiss an equitable action on the ground that the plaintiff has an adequate remedy at law, although the defendant failed to interpose that defense, and consequently could not insist upon it as a matter of right, but that since legal and equi- 208 Harris v. Frank, 81 Cal. 280; Adams & Westlake Co. v. Westlake, 92 111. App. 616; Schotte v. Puscheck, 79 111. App. 31. 209Beldeu v. Wilkinson, 33 Misc. 659; 68 N. Y. Supp. 205. 210 Grandin v. Le Roy, 2 Paige 509; Le Roy v. Piatt, 4 Paige.77; Truscott V. King, 6 N. Y. 147; Cox v. James, 45 N. Y. 557; Pam v. Vilmer, 54 How. 235; Green v. Milbank, 3 Abb. N. C. 138; Town of Mentz v. Cook, 108 N. Y. 504; Ostrander v. Weber, 114 N. Y. 96, 102; Watts v. Adler, 130 N. Y. 646; Rochester & Kettle Falls Land Co. v. Roe, 8 App. Div. 360; Lough V. Outerbridge, 143 N. Y. 271; Center v. Weed, 63 Hun 560; Hollister v. -Stewart, 111 N. Y. 644, 659; Witherbee v. Meyer, 84 Hun 146; 32 N. Y. Supp. 537; Converse v. Sickles, 16 App. Div. 49; 44 N. Y. Supp. 1080. It has been held that this rule simply prevents the defendant from insisting on the defense as a matter of right where he has failed to plead it, and that the refusal of the trial court to dismiss the action upon the ground that such legal remedy exists cannot be urged as error on appeal. Metro- politan Elevated R. Co. v. Johnston, 84 Hun 83, 90; 32 N. Y. Supp. 39. 211 Town of Mentz v. Cook, 108 N. Y. 504. 378 The Aitswee. Defenses which must be pleaded. table remedies have been administered by the same court the cases are rare in which this discretion has been exercised.^'" It is unnecessary to allege by answer that the plaintiff has an adequate remedy at law where the existence of the legal remedy is apparent from tlae facts stated in the complaint. ^^'^ In that case the objection may be taken by demurrer/^'' and as the ground of demurrer would be either the objection to the juris- diction of the court or that the complaint does not state facts sufficient to constitute a cause of action, the failure to take the objection by demurrer or answer would not amount to a waiver and it might still be taken on the trial/^" unless the de- fendant has himself submitted his case to the equity side of the court for determination by a demand of affirmative equitable relief. ^^^ If the objection is neither taken by answer nor by motion on the trial for a dismissal of the complaint, it cannot be effectually urged upon appeal. ^^'' Where the defense is not that the plaintiff has an adequate remedy at law, but that he has no remedy in equity, the plea of an adequate remedy at law is neither necessary nor appropriate.^'"' The defense of usury must be pleaded if relied upon to defeat the plaintiff's recovery.^^^ So in an action to restrain the in- fringement of a trade-mark if the defendant relies upon the 212 Metropolitan Elevated Ry. Co. v. Johnston, 84 Hun 83, 90 ; 32 N. Y. Supp. 39. 213 Wheelock v. Noonan, 108 N. Y. 179; De Bussierre v. HoUaday, 4 Abb. N. C. Ill; 55 How. 210. 214 Metropolitan Elevated Ry. Co. v. Johnston, 84 Hun 83, 90. 215 N. Y. Code of Civil Pro., § 499 ; De Bussierre v. HoUaday, 4 Abb. N. C. Ill; 55 How. 210. 210 See Town of Mentz v. Cook, 108 N. Y. 504, 507; Chrisfield v. Mur- dock, 127 N. Y. 315, 320; Gage v. Lippman, 12 Misc. 93; 33 N. Y. Supp. 59. 217 Gushee v. City of New York, 42 App. Div. 37; 58 N. Y. Supp. 967. 2i8Skilton V. Payne, 18 Misc. 332; 42 N. Y. Supp. Ill; Hawes v. Dobbs, 137 N. Y. 465. 219 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. 321; Gould v. Horner, 12 Barb. 601; Watson v. Bailey, 2 Duer 509; Scott V. Johnson, 5 Bosw. 213, 224. The Answee. 3Y9 Defenses which must be pleaded. defense tliat the plaintiff is deceiving the public by false rep- resentations concerning the article manufactured and sold by him, such defense must be pleaded unless the facts and circum- stances appearing in the case are such as would authorize the court of its own motion to take notice of fraud and deceit on the part of the person seeking its protection. ^^" So municipal authority to obstruct a sidewalk cannot be proved unless plead- ed.'"^ In an action brought by an employee against a city for services the defense that there was no appropriation and that payment would be a violation of its charter must be pleaded to be available.^^^ So where it is sought to charge a stockholder with the debt of a corporation the fact that he was not a stock- holder within two years before the action was brought is a defense to be 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 P'rinciple, 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 pToved as a defense.^^' =20 Fleisehmann v. Fleisehmann, 7 App. Div. 280 ; 39 N. Y. Supp. 1002 ; Falk V. American West Indies Trading Co., 71 App. Div. 320. 221 Holroyd v. Sheridan, 53 App. Div. 14; 65 N. Y. Supp. 442; Cliflford v. Dam, 81 N. Y. 52; Irvine v. Wood, 51 N. Y. 224, 228. 222MoXulty V. City of New York, 168 N. Y. 117. 223 Castner v. Duryea, 16 App. Div. 249; 44 N. Y. Supp. 708. 224 Brazill v. Isham, 12 N. Y. 9. 225Krekeler v. Ritter, 62 N". Y. 374; Foulke v. Thalmessinger, 1 App. Div. 598; 37 N. Y. Supp. 563. 226 Seymour v. McKinstry, 106 N. Y. 230. 380 The Answer. Defenses which must be pleaded. In an action on a policy of insurance, the defense that it was a wager policjr,^^^ or that there was a breach of warranty ^^' should be 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. ^^^ In an action upon a life policy where the defense is forfeiture of the policy for non-payment of a premium, the fact of the service of the statutory notice to pay the premium must be pleaded to make proof of such notice admissible. ^^° And where an accident policy provides for the commencement of an action within six months from the receipt by the company of proofs of the injury, this provision must be pleaded to be available as a dfefense.^^^ 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 affirmative defense.^'^ A license from the plaintiff, relied on as a justification 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 ac- tion for trespass, on lands."* So in an action for slander cir- cumstances in mitigation must be pleaded to be admissible in evidence. ^'° The defense of a failure to perform a condition precedent is not available unless set up in the answer. ^'° Estoppels in pais need not be pleaded. ^^'^ And when the ex- istence of a fact is alleged in the complaint, it is unnecessary 227 Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y. 480; Valton V. Nat. Fund Life Ass. Co., 20 N. Y. 32. 228 Boos y. World Mut. Life Ins. Co., 4 Hun 133; 64 N. Y. 236. 220 Studwell V. Charter Oak Life Ins. Co., 17 Hun 602. 230 Fischer v. Metropolitan Life Ins. Co., 167 N. Y. 178. 231 Keeffe y. Nat. Accident Soc, 4 App. Div. 392 ; 38 N. Y. Supp. 854. 232 New Haven & Northampton Co. v. Quintard, 1 Sweeny 89 ; 37 How. 29; 6 Abb. N. S. 128. 233 Beaty v. Swarthout, 32 Barb. 293. 234 Haight V. Badgeley, 15 Barb. 499. 235 Willover v. Hill, 72 N. Y. 36. 238Kirtz V. Peck, 113 N. Y. 222. 237 Rogers v. King, 66 Barb. 495. The Answee. 381 Defenses which must be pleaded. to plead the same fact in the answer to enable a defendant to take advantage of it.^^^ 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 defendant, as the case may be, is not a corporation. The fact of corporate non-existence cannot be shown under a general denial of a complaint alleging the incorporation.^^" In some jurisdictions where a complaint upon a cause of ac- tion in equity shows upon its face that it is based upon a stale demand, an objection upon this ground may be taken by der murrer.''*'' But in I'J'ew York at least the objection to be effec- tual must be taken by answer.^*^ And, generally, where a defect which would be a ground for demurrer if it appeared on the face of the complaint, does not so appear, the objection must be taken by answer or it will be waived, with the exception of 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. ^^^ If, however, the defendant has demurred to the complaint or petition, and his demurrer has been over- ruled, by answering the plaintiff's pleading he will waive all objections thereto except to the jurisdiction of the subject matter and the failure to state any cause of action, ^*^ and will waive any error of the court in the decision of the demurrer. °** 238 Terry v. Busk, 40 App. Div. 419; 57 N. Y. Supp. 980. 239 N. Y. Code of Civil Pro., § 1776; Bengtson v. Thingvalla Steamship Co., 3 Civ. Pro. E. 263; Bank of Genesee v. Patchin Bank, 13 N. Y. 309; Eiley v. Metropolitan Street Ry. Co., 36 Misc. 789 ; 74__ N. Y. Supp. 873 ; T. A. Vulcan v. Myers. 34 St. Rep. 122. 2*oSpeidel v. Henrici, 120 U. S. 377; L. Ed. '718. 211 Zebley v. Farmers' Loan & Trust Co., 139 N. Y. 461; Sage v. Culver, 147 N. Y. 241. 242 N. Y. Code of Civil Pro., § 499; Cal. Code of Civil Pro., § 434; Wis. Rev. Stat., § 2654; Minn. Gen. Stat., 1894, § 5235; Colo. Civ. Code, §§ 50, 54, 55. 243 Mo. Rev. Stat., 1899, §602; Roberts v. Central Lead Co., 95 Mo. App. 581; Rutledge v. Tarr, 95 Mo. App. 265; Hoffman v. McCraeken, 168 Mo. 337. See Hopewell v. McGrew (Neb.), 70 N. W. 397. 244Stirlen v. Jewett, 165 111. 410; Foley v. Tipton Hotel Ass'n. (Iowa), 382 The Answer. Equitable defenses. § 11. Ec[uitable defenses.— Under the system of pleading and procedure generally introduced by the Code 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 equitable, ^^'^ and even where the action is brought 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 execute the judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident unmixed 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 71 N. W. 236; Cook ^'. Kittson, 68 Minn. 474; 71 N. W. 670; Lynch v Bechtel (Mont.), 48 Pac. 1112; Dandurand' v. Kankakee County, 196 111. 537; Palmer v. Caywood (Neb.), 89 N. W. 1034; Frum v. Keeney, 109 Iowa 393. 245 Code of Civil Pro., § 507. 2ie Dederick v. Hoysradt, 4 How. 350; Foot v. Sprague, 12 How. 355; Hunt V. Farmers' Loan & Trust Co., 8 How. 416; Hinman v. Judson, 13 Barb. 629; Sheehan v. Hamilton, 2 Keyes 304; Webster v. Bond, 9 Hun 437 ; Auburn City Bank v. Leonard, 20 How. 193. 217 Dobson V. Pearce, 12 N. Y. 156; Mandeville v. Reynolds, 68 N. Y. 528, 545; Sheehan v. Hamilton, 2 Keyes 304. 248Dobson V. Pearce, 12 N. Y. 156. 249 Fersuson v. Crawford, 70 N. Y. 253. The Answer. 38J Equitable defenses. and entitled to a conveyance thereof; ^^^ or he may set np that the land in question 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 indebted to him upon an in- dependent 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 per- formance on the part of the vendor.^^^ So in an action to re- cover damages for a breach of covenant against incumbrances, the defendant may show by way of defense that the incum- brance referred to was by mistake omitted to be excepted 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 reformation 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 250Crary v. Gorham, 12 N. Y. 266; Lamont v. Cheshire, 65 N. Y. 30, 42; Thurmau v. Anderson, 30 Barb. 621 ; Dodge v. Wellman, 1 Abb. Ct. App. Dec. 512; 43 How. 427; Carpenter v. Ottley, 2 Lans. 451. 251 Hoppough V. Struble, 60 N. Y. 430. 2B2Cavalli V. Allen, 57 N". Y. 508. And see Cythe v. La Fountain, 51 Barb. 186; Traphagen v. Traphagen, 40 Barb. 537. 253 Haire v. Baker, 5 N. Y. 357. 254 Pitcher v. Hennessey, 48 N. Y. 415. 255 Despard v. Walbridge, 15 N. Y. 374. 384 The Answer. Equitable defenses. security far 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 estab- lished, will constitute a complete equitable defense to the ac- tion.=" 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 anotiber suit, in the same or another court, between the same parties, where the relief sought in the latter suit may be obtained by a proper defense to the former one.^^' By putting in an equitable defense, the defendant does not convert a legal action into an equitable one, or change the plain- tiff's right to have his legal rights determined in a legal form. The Code simply allows an equitable defense to be set up in a legal action, to the same effect as if it were a strict legal defense.""" A cause of action cannot be defeated by a mere equity that is not in itself sufficient to found a cause of action upon.""^ At common law a contract under seal could not be dissolved by a new parol executory agreement although supported by a good and valuable consideration. But in equity tbe form of the new agreement is not regarded and under the system blend- ing the jurisdiction of law and equity and allowing equitable defenses in legal actions the common law rule has lost much 256 Webster v. Bond, 9 Hun 437. * 257 Safford v. Hynds, 39 Barb. 625. 258 Webster v. Bond, 9 Hun 437 ; Auburn City Bank v. Leonard, 20 How. 193. 259 Sheehan v. Hamilton, 2 Keyes 304 ; Auburn City Bank v. Leonard, 20 How. 193; Winfield v. Bacon, 24 Barb. 154; Savage v. Allen, 54 N. Y. 458; Mandeville v.* Reynolds, 68 N. Y. 528, 546. 260 Webster v. Bond, 9 Hun 437. 261 McCormick v. Sullivan, 71 Hun 333; 24 N. Y. Supp. 1117; Armstrong V. McKelvey, 104 N. Y. 179; Canaday v. Stizer, 55 N. Y. 452. Ths Answee. 385 Pleas in abatement and pleas in bar. of its importance and is practically superseded. Whatever formerly would have constituted a good ground in equity for restraining the enforcement of a covenant or decreeing its dis- charge, will now constitute a good equitable defense to an action on the covenant itself.''"'' § 12. Pleas in abatement and pleas in bar. — What was known 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 maintaining the action. Pleas in abatement were called dila- tory pleas, because 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 de- fendant pleaded in bar to the action, he could not afterward plead in abatement, unless 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.'" 262 McCreery v. Day, 119 N. Y. 1. 263 1 Chitt. PI. 445, 446, 469; Mayhew v. Robinson, 10 How. 162, 165. When the matter pleaded goes in denial of the right of recovery, it is in bar; but when it goes to defeat the present action, and does not show that the plaintiff is forever barred, it is in abatement. Alexander v. School Dis- trict (Vt.), 19 Atl. 995. The object of a dilatory plea is to obtain an early disposition of the question involved in it, in order to avoid the ex- pense and delay of a needless trial on the merits. Bassett v. Shepardson, 57 Mich. 428. 264Haight V. Holley, 3 Wend. 258; MeCartee v. Chambers, 6 Wend. 649. Under the Indiana Rev. Stat. 365, a plea in abatement cannot be allowed after an answer in bar. Brink v. Reid, 122 Ind. 257. And see Graham 386 The Answer. Pleas in abatement and pleas in bar. All this has been changed by the Code. That act contem- plates but one answer, which shall embrace matter in abatement as well as matter in bar/""^ and the defendant may now unite matter in 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 j action or suit abate. This is no longer necessary, as the Code does not require that the answer shall contain any prayer for any particular 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 whole case has been suV mitted to a jury, and a general verdict rendered. This is obviated by a direction to the jury to find separately iipon the several defenses.^'* In one respect the ISTew York Code discriminates between pleas in abatement and pleas in bar. Under that act, an answer involving the merits need not be verified unless the complaint is verified ; but a defense which does not involve the merits cannot be pleaded unless it is verified as required by that act; ""^ and an unverified dilatory plea may be treated as a nullity by V. McCarty, 69 Tex. 323. In some States the distinction between pleas in abatement and pleas in bar is no longer observed. See Grider v. Apperson, 32 Ark. 332. 2e5Mayhew v. Robinson, 10 How. 164; Colin v. Lehman, 93 Mo. 574; Mo- Intyre v. Calhoun, 27 Mo. App. 513. 266 Sweet V. Tuttle, 14 N. Y. 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, 21 N. Y. 399; Mayhew v. Robinson, 10 How. 162; Little v. Harrington, 71 Mo. 390. 207 Dawley ^'. Brown, 9 Hun 461. 208 Gardner v. Clark, 21 N. Y. 399. 209 Code of Civil Pro., § 513. The Answer. 387 Pleas in abatement and pleas in bar. the plaintiff provided he gives due 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 sub- stantial compliance with the rule and the adverse party could not have been misled. Thus, although the strict rale of plead- ing 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 sufficient."'' Under the old practice a defendant interposing a plea in abate- ment 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 defense of the non-joinder of a party plaintiff or defendant ; "" misnomer ; "^ the pendency of another action ; ^'^ and the like. A defense which does not suggest any infirmity in the plaintiff's 270 Code of Civil Pro., § 528. 271 Wright V. Wright, 54 N. Y. 437. 272 See Stiefel v. Berlin, 28 App. Div. 103, 106; 51 N. Y. Supp. 147; Mit- tendorf v. N. Y. & Harlem R. E,. Co., 58 App. Div. 260; 68 N. Y. Supp. 1094. 273 See Prosser v. Matthiessen, 26 Hun 527; 63 How. 157; Taylor v. Rich- ards, 9 Bosw. 676. 274 1 Chitt. PI. 463. 2T6 White V. Miller, 7 Hun 427 ; Wigand v. Siehel, 3 Keyes 120 ; 33 How. 174; Stiefel v. Berlin, 28 App. Div. 103, 106; 51 N. Y. Supp. 147; Mitten- dorf V. N. Y. & Harlem R. R. Co., 58 App. Div. 260, 261 ; 68 N. Y. Supp. 1094. 276 East V. Cain, 49 Mieh. 473. 277 Sweet V. Tuttle, 14 N. Y. 468. 388 The Answer. Defense of non-joinder of parties. 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 sub' ject of a plea in abatement, but which goes to the merits.^*^ § 13. 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 ob- jection 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 plaintiff, 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 common, and the defendant neglects to avail himself of the noh-joinder by a plea in abatement, he may still give evidence of the non-joinder on the trial in reduction of dam- ages. ''= 278Traver v. Eighth Ave. R. R. Co., 3 Keyes 497. When pleaded in abatement it should give the plaintiff a better writ by an allegation of the correct name. White v. Miller, 7 Hun 427. 2T9Sullings 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. 280 Wright V. Wright, 54 N. Y. 437. 281 Morningstar v. Cunningham, 110 Ind. 328. ■^82 See ante, p. 321; Garrett v. Wood, 13 App. Div. 8; Jones v. De Cour- sey, 12 App. Div. 164. 283 Mason v. Wells, 2 Hun 518; Wooster v. Chamberlain, 28 Barb. 602; Sweet V. Tuttle, 14 N. Y. 468. 284 Dickenson v. Vanderpoel, 2 Hun 626. 285 Zabriskie v. Smith, 13 N. Y. 322, 337; Abbe v. Clark, 31 Barb. 233. The Answee. 389 Defense of non-joinder of parties. The defense of the non- joinder of a dormant partner as co- defendant cannot be pleaded in abatement, ^*^ where the plaintiff had no notice of the partnership relation at the time of the transaction.^" Under the old practice, a defect of parties de- fendant was a matter which could be pleaded in abatement only and which could not be joined with a plea in bar. Under the present practice 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 the court. ^"' 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 defendant by a correct judgment. But if before the judg- ment is rendered, the one who ought to have been joined is dead, and the named plaintiffs fully - own and represent the cause of action, there can be no better writ, and all force and 286 Pinsehower t. Hanka, 18 Nev. 99. 287 Cookingham v. Lasher, 2 Keyes 454 ; Goggin v. O'Donnell, 62 111. 66. 288 Fowler v. Kennedy, 2 Abb. 351 ; Maxwell v. Pratt, 24 Hun 448 ; Wigand v. Siehel, 3 Keyes 120; 33 How. 174; Nicoll v. Fash, 59 Barb. 275, 287. 289Belden v. Curtis, 48 Conn. 32; Reynolds v. Hurst, 18 W. Va. 648; Furbish v. Robertson, 67 Me. 35; Levi v. Haverstick, 51 Ind. 236; Stiefel V. Berlin, 28 App. Div. 103, 106; 51 N. Y. Supp. 147. 290 Lefferts v. Silsby, 54 How. 193 ; Mittendorf v. N. Y. & Harlem R. R. Co., 58 App. Div. 260; 68 N. Y. Supp. 1094; Strong v. Sproul, 4 Daly 326. An allegation of facts which imply the continued existence of an omitted party may possibly take the place of a direct averment that such party is living, as has been intimated in a number of cases in thia State. Prosser V. Matthiessen, 26 Hun 527 ; 63 How. 157 ; Wooster v. Chamberlin, 28 Barb. 602; Taylor v. Richards, 9 Bosw. 676. But the omission of the direct aver- ment that the party is living, is within the jurisdiction of the court, and within reach of its process is an experiment of doubtful expediency. 390 The Answee. Former action pending — Former judgment. effect is gone from the plea. The fact which has happened gives to the defendant the full benefit of his plea, and on proof of that fact, the plea is defeated. ^'"^ § 14. Plea of a former action pending. — To sustain a plea of a former action pending it must appear to the court that tlie 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 com- menced,^"^ 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.^"" § 15. Plea of former judgment. — 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 231 Groot V. Agens, 107 N. Y. 633. ^n^Dawlejf v. Brown, 79 N. Y. 390; Douglass v. Ireland, 73 N. Y. 100; Keeler v. Brooklyn Elevated E. U. Co., 9 Abb. N. C. 166; Cordier v. Cor- dier, 20 How. 187 ; Kelsey v. Ward, 16 Abb. 98. An answer served in an action to foreclose a mortgage, which alleges the pendency of another action between the .same parties to recover the mortguge debt is demurrable unless it also alleges that the action which it pleads in bar was brought without leave of the court. Schieck v. Donohue, 77 App. Div. 321. 203 Porter v. Kingsbury, V7 N. Y. 164; Owens v. Loomis, 19 Hun 606; Bodge v. Cornelius, 168 N. Y. 242. 20-iHadden v. St. Louis, etc., R. R. Co., 57 How. 390; Bowne v. Joy, 9 .Johns. 221; Lorillard Fire Ins. Co. v. Meshural, 7 Rob. 308; Cook v. Litch- field, 5 Sandf. 330; Williams v. Ayrault, 31 Barb. 364; Osgood v. Maguire, 61 Barb. .54 ; Walsh v. Durkin, 12 Johns. 99 ; Ti'ubee v. Alden, 6 Hun 75 ; Burrows v. Miller, 5 How. 51; Mitchell v. Bunch, 2 Paige 606; Hecker v. Mitchell, 5 Abb. 453; Oneida County Bank v. Bonney, 101 N. Y. 173. 2or, Lewis %. Maloney, 12 Hun 207; Ratzer v. Ratzer, 2 Abb. N. C. 461; Groshon v. Lyon, 16 Barb. 461. 296Hollister v. Stewart, 111 N. Y. 644; James v. Work, 70 Hun 296; 24 N. Y. Supp. 149. The Answer. 391 Plea of former judgment. essential to the maintenance of the second action was in issue and determined in the first action adversely to the plaintiff.^*" A judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both, and it has no effect upon questions not involved in the first suit and which were not then open to in- quiry or the subject of litigation. ^°^ In order to bar the second action the circumstances must be such that the plaintiff might have 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 ques^ tion, 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 siubstantially 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 in- 297 Perry v. Dickei-son, 85 N. Y. 345. 298 Norton v. Huxley, 1.3 Gray 285; Marsh v. Masterton. 101 N. Y. 401. 29!) Stowell V. Chamberlain, 60 N. Y. 272; Marsh v. Masterton, 101 N. Y. 401. The plea of res adjudioata is not available to parties in an action un- less 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, have been competently adjudged. Beveridge -i . New York Elevated E. E. Co., 112 N. Y. 1. 300 Marsh v. Masterton, 101 N. Y. 401. It is only the material, relevant and necessary facts which are decided in an action that ai-e conclusively determined thereby. A judgment does not operate as an estoppel in a subsequent action between the parties as to immaterial and unessential facts, even though put in issue by the pleadings and directly decided. It is final as to such facts as are litigated and decided thereiii, which have such relation to the issue that their determination was necessary to the determination of that issue. Stannard v. Hubbell, 123 N. Y. 520; House V. Loekwood, 137 N. Y. 259; Lance v. Shaughnessy, 86 Hun 411; 33 N. Y. Supp. 515. 301 Stowell V. Chamberlain, 60 N. Y. 272; Marsh v. Masterton, 101 N.Y. 401. 392 The Answee. Plea of former judgment. volved in the suit is conclusiye in a second action, between the same parties or privies, depending on the same question, al- though the subject-matter of the second action be different/"^ 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, who have mutual or successive relationship to the same right or thing.'"* In order to establish an identity between the causes of action in the two suits, it is not necessary that the claim made in the first action embraced 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 judg- ment is an absolute bar to the second.'"'^ The rule as to the conclusive character of a judgment is the same whether the judgment is relied on as evidence of a fact in 302 Doty V. Brown, 4 N". Y. 71; Castle v. Noyes, 14 N. Y. 329; Smith v. Smith, 79 N. Y. 634; White v. Coatsworth, 6 N. Y. 137. 303 Demarest v. Darg, 32 N. Y. 281; 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. 304 Goddard v. Benson, 15 Abb. 191. 805 Peny v. Dickerson, 85 N. Y. 345. 300 Perry v. Dickerson, 85 N. Y. 345. 307 Stowell V. Chamberlain, 60 N. Y. 272; Miller v. Manice, 6 Hill 114. The Answee. 393 Plea of tender. 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, altbough 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 jurisdic- tion,'^' and should in some form aver the identity of the cause of action in the different suits,'^* and that the actions are be- tween the same parties or their privies. '^° § 16. 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.^^* 308 White V. Coatsworth, 6 N. Y. 138. 309Marston v. Sweet, 66 N. Y. 206; Miller v. White, 50 N. Y. 137, 144; Krekeler v. Hitter, 62 N. Y. 372; Foulke v. Thalmessinger, 1 App. Div. 598; Fritz V. Tompkins, 18 Misc. 514. 310 Derby v. Yale, 13 Hun 273; Lobdell v. Stowell, 37 How. 88; Brazill V. Isham, 12 N. Y. 9. 311 Derby v. Yale, 13 Hun 273. The judgment is the bar and not the preliminary determination of the court. Neither the verdict of a, jury nor the findings of a court in a prior action upon the precise point involved in a, subsequent action between the same parties constitute a bar mrless followed by judgment based thereon, or into which the verdict or finding entered. Springer v. Bien, 128 N. Y. 99; Lance v. Shaughnessy, 86 Hun 411; 33 N. Y. Supp. 515. .312 Mount v. Scholes, 120 111. 394. 3i3Moberly v. Peek, 67 Ala. 345; Turner v. Roby, 3 N. Y. 193. 3i4Moberly v. Peek, 67 Ala. 345; Phillips v. Berick, 16 Johns. 136; Secor V. Sturgis, 16 N. Y. 548. See Geisler v. Acosta, 9 N; Y. 227. 315 Goddard v. Benson, 15 Abb. 191. If the answer sets out the rendition of the judgment it need not set up any legal conclusions from that fact. Bracken v. Atlantic Trust Co., 36 App. Div. 67. 318 Des Arts v. Leggett, 16 N. Y. 582; Billings v. Vanderbeck, 23 Barb. 546. 394 The Answee. Plea of tender. 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 re- covery of interest and costs, but not the cause of action.^^' The plea of tender in such case should shovf or allege a valid tender and its amount,^^^ the refusal to accept, 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 amoimt due on a mortgage either at the law day or at any time thereafter before foreclosure, 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 mort- gage extinguishes the equitable cause of action of the mort- 317 Hills V. Place, 48 N. Y. .520; Kelly v. West, 4 Jones & Sp. 304; Knight V. Beach, 7 Abb. N. S. 241. See Locklin v. Moore, 57 N. Y. 360. In Cali- fornia, an obligation for the payment of money is extinguished by a due oflFer of payment if the amount is immediately deposited in the name of the creditor with some bank of deposit within that State, of good repute, and notice thereof is gi^'en the creditor. Cal. Civ, Code, § 1500. This statute prescribes merely a mode of extinguishing a debt and does not prevent a legal tender by offering to pay the amount due on a contract. Sayward v. Houghton, 119 Cal. 545. 318 Bothwell V. Millikan, 104 Ind. 162. ,319 Roosevelt v. Bull's Head Bank, 45 Barb. 579; Brooklyn Bank v. De Grauw, 23 Wend. 342, 345 ; Simpson v. French, 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. 310; Gray v. Angier, 62 Ga. 596; Dodge v. Fearey, 19 Hun 277; Wilson v. Doran, 110 N. Y. 101. It is provided by statute in Oklahoma that when the tender of money is alleged in any pleading it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if it is deposited at the trial. Stat. 1893, § 4009. 32oKortright v. Oady, 21 N. Y. 348; Frost v. Yonkers Savings Bank, 70 N. Y. 553, 558 ; Tuthill v. Morris, 81 N. Y. 94 ; Nelson v. Loder, 132 N. Y. 288; Schieck v. Donohue, 77 N. Y. 321. But such tender is of no avail unless pleaded. Sidenberg v. Ely, 90 N. Y. 257; 11 Abb. N. C. 354. The Answbe. 395 Plea of tender. gagee and leaves him oaly 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 lieu, it is not necessary to keep the tender good or to pay the money into court. '^^^ But where the defendant seeks any 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.^^* AVhere a person is bound to pay only on receiving a convey- ance, 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 jilain- tiff's demand, with the costs of the action to that time.^"" Such a tender does not avail the defendant unless the money is accepted or is paid into court, and notice thereof in writing served upon the jjlaintiff's attorney before the trial and within ten days after the tender.'*^' , Where the defendant has made a tender before suit, and has failed to give notice in his answer or otherwise of the vpayment of the money into court, the plaintiff may treat the answer as a 321 See Koitright v. Cady, 21 N. Y. 343; Breunieh v. Weselman, 100 N. Y. 609. 322 Tiffany v. St. John, 65 N. Y. 314. 323 Tiffany v. St. John, 65 N. Y. 314; Cass v. Higenbotham, 100 N. Y. 248. 324Tuthill V. Morris, 81 N. Y. 94; Breunieh v. Weselman, 100 N. Y. 609; Werner v. Tuch, 52 Hun 269; 127 N. Y. 217; Nelson v. Loder, 132 N. Y. 288; McNeil v. Sun & Evening Sun Bldg. Assn., 75 App. Div. 290; Sehieek v. Donohue, 77 App. Div. 321. 325 Wood V. Rabe, 20 Jones & Sp. 479. 326 Code of Civil Pro., § 731. 32T Code of Civil Pro., § 732; Wilson v. Doran, 110 N. Y. 101. 396 The Answee. Defense of usury. 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 the irregularity.'^' But the failure of the plaintiff to return an answer containing several defenses, and among thean the defense of tender before suit brought, or to otherwise raise the question before trial, is not a waiver of the plaintiff'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 commencement of an action for foreclosure and which does not allege the tender of the costs then accrued, sets up no defense, and admits the caiTse of action stated in the complaint to the amount tendered, and entitles the plaintiff to judgment on the pleadings.^''^ § 17. 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 defendant was required to aver what the usurious agree- ment was ; between whom it was made ; the amount of usurious interest that was agreed upon and received; and that the agreement was intentionally usurious and corrupt.^''' Under the present system of pleading, the terms of the usurious con- ass Platner v. Lehman, 26 Hun 374; Sheridan v. Smith, 2 Hill 538; Simp- son V. French, 25 How. 464. 329 Platner v. Lehman, 26 Hun 374 ; Wood v. Eabe, 20 Jones & Sp. 479. 330 Wilson V. Doran, 110 N. Y. 101. 331 Eaton V. Wells, 22 Hun 123 ; 82 N. Y. 576. 332 Fay V. Grimsteed, 10 Barb. 321; Gould v. Horner, 12 Barb. 601; Laux V. Gildersleeve, 23 App. Div. 352; 48 N. Y. Supp. 301; Haywood v. Jones, 10 Hun 500; 111. Rev. Stat., p. 615, eh. 74, § 7; Borrowers' and Investors' Bldg. Assn. V. Eklund, 190 111. 257 ; Alderton v. Conger, 78 111. App. 533 ; Baker V. Magrath (Ga.), 32 S. E. 370; Bird v. Kendall, 62 S. 0. 178; Texas Rev. Stat. 1895, Art. 3-107. 333 Manning v. Tyler, 21 N. Y. 567; Vroom v. Ditmas, 4 Paige 526; New Orleans Gas Co. v. Dudley, 8 Paige 452; Curtis v. Hasten, 11 Paige 15; Fay V. Grimsteed, 10 Barb. 321 ; Gould v. Homer, 12 Barb. 601. The Answeb. 397 Defense of usury. tract, 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 m.ake out on the face of the pleading that a corrupt and usurious contract has been entered into ; ^^'' 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 defenses than to others/'^ And although there may be some lack of precision and certainty in the answer, yet if it alleges the essential facts in such a manner that the plaintiff could not have been misled in respect to the defense intended, or as to the circumstances relied upon to support it, it will be held sufficient. ^^^ It is not necessary that a formal agreement, either oral or written, should be set forth in so many words. It is 334 Manning v. Tyler, 21 N. Y. 567 ; Nat. Bank of Metropolis v. Orcutt, 48 Barb. 256. 336 Western Transp., etc., Co. v. Kilderhouse, 87 N. Y. 430, 436; Long Island Bank v. Boynton, 105 N. Y. 656. 336 National Bank v. Lewis, 75 N. Y. 516 ; Laux v. Gildersleeve, 23 App. Div. 352, 355; 48 N. Y. Supp. 301; Myers v. Wheeler, 24 App. Div. 327, 329; 48 N. Y. Supp. 611. It is the intent to exact on the one hand and to pay on the other more than the allowed rate of interest that taints the con- tract, and the pleading should show all the facts constituting an actual corrupt agreement or facta from which such corrupt agreement may be inferred. Manning v. Tyler, 21 N. Y. 567; Chapuis v. Mathot, 91 Hun 565 ; 36 N. Y. Supp. 835 ; Ecklund v. Borrowers' and Investors' Bldg. Assn., 190 111. 257; Baker v. Magrath (Ga.), 32 S. E. 370. 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 cor- rupt intent. When these facts appear from the answer, nothing further is necessary to make it sufiSciently definite. National Bank of Metropolis V. Orcutt, 48 Barb. 256. 337 Lewis V. Barton, 106 N. Y. 70; National Bank v. Lewis, 75 N. Y. 516. 338 Maule V. Crawford, 14 Hun 193. 339 Lewis V. Barton, 106 N. Y. 70. 398 The Answer. Defense of usuiy. enough to allege the facts as they occurred, and if such facts justify the inference of a usurious contract, the answer will be held sufficient/*" It is not essential that the amount of interest received should be stated with absolute certainty ; ''*' and a variance between the proof and the allegation of the amount of usurious interest reserved, will not invalidate the defense, where there is no claim that the plaintiff 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 this must necessarily be inferred, it is sufficient/*^ ^^Tiere 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 governed by the laws of such State/*" The defense of usury should not be joined with a plea of tender, as the two defenses are utterly inconsistent, and although the latter defense be stricken out by amendment, it may still be used as an admission tending to negative the defense of usury. "'■" 340 Maule v. Crawford, 14 Hun 193; Merch. Exch. Nat. Bank v. Commer- cial Warehousing Co., 49 X. Y. 638. .•!4i ATjj^jojjal Bank v. Lewis. 75 N. Y. 516; Dagal v. Simmons, 23 N". Y. 491. ■'.laKatz V. Kuhu, 9 Daly 166. 343 Nat. Bank of Metropolis v. Orcutt, 48 Barb. 256. 344 Burrall v. Bowen, 21 How. 378. 340 Cutler V. Wright, 22 N. Y. 472; Curtis v. Masten, 11 Paige 15. 346 Mayer v. Louis, 12 Abb. N. S. 5. 34T Breunieh v. Weselman, 100 N. Y. 609. The Answee. 399 Discharge in bankruptcy. The defense of usury is personal, and the usurious contract is only avoidable by the borrower and those in privity with or claiming under him.'** The answer must therefore allege a loan, for if" there is no loan there can be no borrowing, and if there is no borrowing or borrower there can be no usury. '*' § 18. Discharge in bankruptcy.— A discharge in bankruptcy is not per se an extinguishment of a debt, and no court other than the court of bankruptcy is bound to take judicial notice of the discharge. It is however a release which may be plead- g^_35o rpjjg discharge must be pleaded to be available as a defense.^^^ 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 defendant to allege the facts which show that the court had jurisdiction 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 bankruptcy, and would be extinguished by a discharge, and was not one which was exempt from the operation of the bank- ruptcy statutes.'^* 348 Williams V. Tilt, 36 N. Y. 319, 325; Chapuis v. Mathot, 91 Hun 565; 36 N. Y. Supp. 835. 349Kitchel V. Schenek. 29 N. Y. 515; Forgotston v. McKeon, 14 App. Div. 342; 43 N. Y. Supp. 939. 850 Collins V. Me Walters, 35 Misc. 648 ; 72 N. Y. Supp. 203. 351 Revere Copper Co. v. Dimock, 90 K. Y. 33; Bank of Commerce v. Elliott, 109 Wis. 648. 352 Cromwell v. Burr, 59 How. 93; Laidley v. Cummings, 83 Ky. 606. It is not necessary to show that the plaintiff was a party to the bankruptcy proceedings and received notice thereof. The burden is on the plaintiff to attack the discharge and show some cause why the decree of the court is not effectual. Stevens v. King, 16 App. Div. 377 ; 44 N. Y. Supp. 893. 353 Cromwell v. Burr, 59 How. 93. 354 Hennequin v. Clews, 14 Jones & Sp. 330 ; 84 N. Y. 676. 400 The Answee. Statute of limitations. § 19. Statute of limitations. — In some States where the complaint or petition shows upon its face that the cause- of action therein set up is barred by the statute of limitations, the objection may be taken by demurrer. ^°° But where the complaint or petition does not show on its face that the claim sued on is barred by the statute the defense can be presented only by answer. ^^^ The defense will be waived if the objection ^is not taken either by demurrer or answer.^^' But under the Code of New York and of several of the other States, the de^ fense that a cause of action is barred by the statute of limita- tions can be taken only by answer.^"* There is an apparent exception where a statute gives a right of action unknown to the common law, provided the action is brought wiUiin the time limited thereby. In such cases the bringing of the action within such time is a coiidition of the right to sue at all, and if an action is brought after the expiration of the time limited objection may be raised at any time that the complaint does not state facts sufficient to constitute a cause of action. The^ case thus presented is not one where there is an unlimited right of action subject only to the statute of limitations. ^^^ 355 Johnson v. Robertson (Ky.), 45 S. W. 523; FuUerton v. Bailey, 17 Utah 85; 53 Pac. 1020; School District v. Hamilton County, 6 Kans. App. 861; Hunt v. Jetmore, 9 Kans. App. 333; People v. Strauss, 97 111. App. 47; Wis. Rev. Stat. 1898, § 2649, subd. 7; Motes v. Gila Val. G. & N. Ry. Co. (Ariz.), 68 Pac. 532. S56 Goring v. Fitzgerald (Iowa), 75 N. W. 358; Brandenburg y. McGuire (Ky.), 44 S. W. 96; Damon v. Deque, 17 Wash. 573; Osborn v. Portsmouth Nat. Bank, 61 Ohio St. 427; Pleasant v. Samuels, 114 Cal. 34; Hill's Am. Laws (Oregon), §§ 3, 67; Hawkins v. Donnerberg, 66 Pac. 691. 357Hobson V. Cummins (Neb.), 78 N. W. 295; Gilbert v. Hewetson, 79 Minn. 326 ; Cal. Code of Civil Pro., § 434 ; Walter v. Merced Academy Assn., 126 Cal. 582. 358 N. y. Code of Civil Pro., § 413; N. C. Code, § 138; Farrington v. Muchmore, 30 Misc. 218; 62 N. Y. Supp. 165; King v. Powell, 127 N. C. 10; S. C. Civ. Pro., § 94; Norton v. Kumpe (Ala.), 25 So. 841. 369 Daily v. N. Y., Ontario & Western Ry. Co., 26 Misc. 539, 540; The Harrisburgh, 119 U. S. 199, 214; 30 L. Ed. 358; Hill v. Supervisors, 119 K. Y. 344 ; Hamilton v. Royal Ins. Co., 156 N. Y. 327, 338 ; Colell v. Dela- ware, L. & W. R. R. Co., 80 App. Div. 342. The Answer. 401 Statute of limitations. With this apparent exception the statute must invariably be pleaded by the defendant in order to be available. This rule applies to an etxecutor or administrator as much as to. a/ living debtor.^'"' The only distinction h&bween the two eases is that the living debtor may waive the statute while an execu- tor may not. It is the latter's duty to plead the statute. If he violate that duty he will not be allowed on his accounting any sum paid upon a debt which at the time of payment was barred by the statute.^"^ Aji answer alleging that the plaintiff 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 com- mencement 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 similar form. In an action upon a promissory note an allegation in the answer that the cause of action did not accrue within six years before the commencement of the action is a good plea of the statute of limitations; ''^^ and it is no objection to the answer in such action that it alleges that eight ^^* or ten ^°° years, instead of six, have elapsed since the cause of action accrued. A plea of the ordinary six years' statute of limitations necessarily includes the statement that the cause of action did not accrue within a shorter period and is sufficient to raise the defense of a two years' limitation.^"" But a party who pleads a period of limitation shorter than the one applicable to the case waives the benefit of the longer and cor- ssoHayden v. Pierce, 144 N. Y. 517; Minzesheimer v. Bruns, 1 App. Div. 324; 37 N. Y. Supp. 261. 361 Butler V. Johnson, 111 N. Y. 212; Minzesheimer v. Bruns, 1 App. Div. 324; 37 N. Y. Supp. 261. 362 Bell V. Yates, 33 Barb. 627. 363 McConnell v. Spicker, 15 S. B. 98. 364 Camp V. Smith, 136 N. Y. 187. 365 Eeilly v. Sabater, 43 N. Y. Supp. 386 ; 26 Civ. Pro. R. 34. 366 Phelps V. Elliott, 35 Fed. Rep. 455. 402 The Answee. Statute of limitations. rect period/'^ An answer alleging facts showing adverse pos- session for twenty years will support a defense under a statute limiting the action to fifteen years. The courts will treat as immaterial the concluding averment that the action did not accrue until twenty years before its commencement.'"^ In California the defendant may either allege the facts con- stituting the defense of the statute of limitations, or he may omit the statement of facts showing the defense and State gen- erally that the cause of action is barred by the provisions of the particular section of the Code of Civil Procedure relied upon, giving the number of the section and of the subdivision thereof if it is so divided; but the pleader must adopt one of these modes of stating his defense and a general allegation that the cause of action is barred by Cal. Code Civ. Proc, pt. 2, tit. 2, Chap. 3, is insufficient.'"" In Montana the statute requires that the statiite of limitations shall be pleaded by the number of the section and of the subdivision thereof of the Code of Civil Procedure; and a statement that the action is barred by Montana Rev. Stat, Chap. 3, § 41, is insufficient.'^" In Kentucky the answer need not state when the cause of action accrued when that fact ap'pears from the petition. In that case it is sufficient to allege merely that the claim is barred by the lapse of time and the statute of limitations and that the defendant relies thereon as a bar to a t-ecovery."^ But in other cases an answer merely alleging that the legally ap- pointed time had elapsed before the commencement of the action without alleging what time had elapsed or any facts from which the court can determine it, is fatally defective.'^^ In Wisconsin no particular form is necessary in pleading the statute of limitations. If facts showing the expiration of 307 Downey v. Atchison, T. & S. F. R. Co., 60 Kans. 499. sesMeCray v. Humes, 116 Ind. 103. 309 See Cal. Code of Civil Pro., § 458 ; Manning v. Dallas, 73 Cal. 420. 370 Stewart v. Budd, 7 Mont. 573. •171 Lilly V. Farmers' Nat. Bank (Ky.), 56 S. W. 722. 3T2Templeton v. Sharp (Ky.), 9 S. W. 507. The Answee. 40 c Claim to lands — . Replevin, trover or trespass. the time limited for bringing tlie action are stated in the answer the defense is available although it is not stated that any particular statute is relied on/^^ But the defense is not avail- able unless the facts are stated on v^hich it is based. ''^■' And the defense when pleaded will be limited to the particular stat- ute to which it obviously refers."''' § 20. Answer in action for determination of claims to land. — A defendant in an action brought under the New York Code of Civil Procedure to compel the determination 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 plaintijBf and those from whom he derives his title; and he may also, either with or without such denial, set forth facts showing that he hasi 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 remainder, 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."^" § 21. Answer in replevin, trover or trespass. — An answer, in replevin, under the New York Code, may contain all the defenses which the defendant has, whether they are consistent or inconsistent. The defendant may by answer defend on the gTound 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, 3T3Euggles V. Fond du Lac County^ 63 Wis. 205; Meade v. Gilfoyle, 64 Wis. 18. 3T4 Smith v. Dragert, 60 Wis. 139. 375 Irvin V. Smith, 60 Wis. 175. 376 N. Y. Code of Civil Pro., § 1641. 377 N. y. Code of Civil Pro., § 1723. See GrifRn v. Long Island R. R. Co., 101 N. Y. 348; Stowell v. Otis, 71 N. Y. 36; ante, p. 369. 404: The Answee. In replevin, trover or trespass. at the time when the action was commenced or the chattel was replevied, the owner of the chattel or that it was then his prop- erty, is a sufficient statement of title, unless the defense rests upon a right of possession by virtue of a special property, 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 posses- sion of the chattel.^^' Where the defense is that the chattel sought to be recovered in the action was distrained doing dam- age, an allegation 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.^'" In an action of replevin, brought under the ISTew York Code, a general denial puts in issue the plaintiff's title as well as the wrongful detention of the property. Upon an issue so raised the defendant has the right to show title out of the plaintiff without connecting himself with it.^^" But in an action for conversion a defendant cannot under a general denial show title in a stranger to the suit without connecting himself with it.^*'- It is a general rule that in actions of trespass or trover an alien gation of title in a stranger, without an allegation connecting the defendant with such title, is no defense/'^ Whenever a plaintiff must prove title in order to maintain his action a gen- eral denial will be all that is necessary to enable the defendant 378 N. Y. Code of Civil Pro., § 1720. 3T9 N. Y. Code of Civil Pro., § 1724. 880 Jacob V. Haefelein, 60 App. Div. 533. 381 Vogel V. Banks, 60 App. Div. 459; 70 N. Y. Supp. 1010; Wheeler v. La-vvson, 103 N. Y. 40. 382 Stowell V. Otis, 71 N. Y.,36; Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 12 Wend. 30; King v. Orser, 4 Duer 431; Hoyt v. Van Alstyue, 15 Barb. 568; Gerber v. Monie, 56 Barb. 652; Stonebridge v. Perkins, 141 N. Y. 1, 5; Klinger v. Bondy, 36 Hun 601. The Answer. 405 In action for divorce or separation. to controvert this branch of the case or to put in issue the wrongful taking or detention of the property. But in an action of trespass or trover, although the plaintiff may allege both ownership and possession of the property alleged to have been wrongfully taken, he may recover on proof of possession only as against any person but the true owner, or a person connecting himself with the title of the true owner; and, therefore, 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 property as he did either by virtue of his ovm title or by virtue of the title of a third person to whose right the defendant has in some way succeeded. § 22. Answer in action for divorce or separation. — In New York the answer in an action for a divorce on the ground of adultery need not be verified, even though the complaint is verified.'*^ It may deny generally or specifically the allega- tions of the complaint, and may allege as a defense the consent of the plaintiff to the adultery charged, or a subsequent con- donation, 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 been guilty of adultery under such cir- cumstances as would entitle the defendant to a divorce.^** So in an action for a separation the defendant may set up in justification the misconduct of the plaintiff, and if that de- fense is established to the satisfaction of the court the defendant is entitled to judgment. ^^^ The rules of court permit the de- ass N. Y. Code of Civil Pro., § 1757. 38* See N. Y. Code of Civil Pro., § 1758; Smitli v. Smith, 4 Paige 432. Where there is an appearance and answer and condonation is relied upon it should be pleaded. Merrill v. Merrill, 41 App. Div. 347; 58 N. Y. Supp. 503; Smith v. Smith, 4 Paige 432. 3S5N. Y. Code of Civil Pro., § 1765; Palmer v. Palmer, 1 Sheld. 89; Doe V. Roe, 23 Hun 19; Hopper v. Hopper, 11 Paige 46, 48; Deisler v. Deisler, 59 App. Div. 207 ; 69 N. Y. Supp. 326. 406 The Answee. In action for divorce or separation. fendant in an action for divorce, separation or to declare the marriage contract void, to set up in his 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 husband 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 counter- claim.^^^ Thus in an action for an absolute divorce the defend- ant may set up the adultery of the plaintiff as a defense and as a ground for affirmative 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 person then living, and from whom she had never been divorced, whidi facts were unknown to the defendant.*"^ 386 Rule 74, Sup. Ct. 387 N. Y. Code of Civil Pro., § 1770; Waltermire v. Waltermire, 110 N. y. 183. 383 Anonymous, 17 Abb. 48. 389 Spahn V. Spahn, 12 Abb. N. C. 169; Israel v. Israel, 38 Misc. 335. 390 Roe V. Roe, 14 Hun 612; Smith v. Smith, 4 Paige 432; Merrill v. Mer- rill, 41 App. Div. 347; 58 N. Y. Supp. 503. 391 Clark V. Clark, 5 Hun 340. The fact of prior marriage must be al- leged and cannot be proven under a denial of the marriage. Vincent v. Vincent, 16 Daly 534; 17 N. Y. Supp. 497. The allegation of a prior mar- riage should be clear, positive and specific. Id. But while the prior marriage may be pleaded as a defense, a, defendant in an action for a, di- vorce or separation is not authorized to plead as a counterclaim a cause of action to annul the marriage. Taylor v. Taylor, 25 Misc. 566; 55 N. Y. Supp. 1052. The Answer. 407 By joint-debtor not summoned. 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 separa- tion/"^ 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 sup- plemental answer on obtaining leave of court.'"''' § 23. 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 re- stricted 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 ren- dered.^'^ The judgment is not conclusive as to the amount.^^* Under the old Code ^" the defendant could not plead the statute of limitations, unless such defense existed when the original action was commenced.'"' The practice is the same under the present Code.'"" Onlj such defenses as were authorized by the former practice can now be permitted. The answer as heretofore may be directed against the original cause of action or against the judgment recovered thereon. If against the original cause of action, the defense pleaded must have existed 392 See ante, p. 267. S93 N. Y. Code of Civil Pro., § 509. 394 Strong V. Strong, 28 How. 432; 3 Rob. 669, 719. 395 N. Y. Code of Civil Pro., § 1939. 396 Richardson v. Case, 3 Civ. Pro. R. 295. 397 N. Y. Code of Procedure, § 379. 398 Maples V. Mad^ey, 89 N. Y. 146 ; Gibson v. Van Derzee, 14 Abb. N. S. Ill; 47 How. 231; Broadway Bank v. Luflt, 51 How. 479. See Berlin v. Hall, 48 Barb. 442. 399 Kramer v. Schatzkin, 27 Misc. 206 ; 57 N. Y. Supp. 803. 408 The Answer. Alleging fraud in action on contract. when the action was instituted. If against the judgment, the plea must be either an objection to the judgment, a defense to the judgment, or a counterclaim to the judgment. As to the objections, they must go to the validity and binding eflScacy of the judgment; as to the defenses, they include such as payment, release and discharge in bankruptcy; and as to counterclaims, such as exist in favor of the defendant when served.*"" § 24. Alleging fraud to defeat action on contract. — A per- son defending an action on contract on the ground that he was induced to contract by reason of false and fraudulent represen- tations made to him by the plaintiff must allege in his answer all the false representations which he intends to prove ; *°^ that the representations were false ; that they were made with knowl- edge of their falsity and with intent. to deceive and defraud the defendant; that the defendant believed and relied upon such representations and was induced thereby to enter into the eon- tract; and that in consequence thereof he sustained damage.*"^ Fraud as a defense to an action on contract cannot be pleaded in general terms. The specific acts constituting it must be set forth.*"' 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 foreclose 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, biit will not 400 Kramer v. Sehatzkin, 27 Misc. 206 ; 57 N. Y. Supp. 803 ; Long v. Staf- ford, 103 N. Y. 274. 401 Reed v. Clark Cove Guano Co., 47 Hun 410. 402Kingsland v. Haines, 62 App. Div. 146; Eccardt v. Eisenhauer, 74 App. Div. 35; Farmers' Nat. Bank. v. St. Regis Paper Co., 77 App. Div. 558 ; Saxton v. Dodge, 57 Barb. 84 ; Dubois v. Hermance, 56 N. Y. 673 ; Lef- ler v. Field, 52-N. Y. 621. 403 Mills V. Collins, 67 Iowa 164 ; McMurray v. Gifford, 5 How. 14. The Answee. 409 In action of slander or libel. entitle the defendant to affirmative relief such as the cancella^ tion of the mortgage.*"* But the grantor of land cannot set up that the conveyance was made in fraud of creditors as a de- fense to an action of ejectment. *°° § 25. Answer in action of slander or libel. — A defendant in an action to recover damages 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 uttering or publishing the alleged defamatory matter.*"* But Ke cannot show the truth of the defamatory words without a plea in justification.*"' Where the complaint alleges two distinct defamatory charges the defendant may deny one and plead the truth in justification of the other.*"* To constitute a good answer to 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 vsdll show the plaintiff guilty of the offense imputed to him.*"" If the defamatory matter complained of consists of a charge that the plaintiff has been guilty of the commission of a crime and the defendant seeks to justify and show the truth of the charge, 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 *04 Chamberlain v. Barnes, 26 Barb. 160; Nellis v. Clark, 4 Hill 424. 105 Moseley v. Moseley, 15 N. Y. 334. •406 George v. Jennings, 4 Hun 66; Boot v. King, 7 Cow. 619; 4 Wend. 113; Baum v. Clause, 5 Hill 196; Mundy v. Wight, 26 Kans. 173; Castle V. Houston, 19 Kans. 417; McAtee v. Valandingham, 75 Mo. App. 45. *0T Padgett V. Sweeting, 65 Mo. Ad. 404. *08Waltenberg v. Bernhard, 26 Misc. 659; 56 N. Y. Supp. 396. 409Tilson V. Clark, 45 Barb. 178; Fry v. Bennett, 5 Sandf. 54; Hathorn V. Congress Spring Co., 44 Hun 608 ; Robinson v. Hatch, 55 How. 55 ; Knox V. Commercial Agency, 40 Hun 508; Sayles v. Wooden, 6 How. 84; Wach- ter V. Quenzer, 29 N. Y. 547; Ball v. Evening Post Pub. Co., 38 Hun 11; Maretzeek v. Cauldwell, 2 Bob. 715; 19 Abb. 35; Anibal v. Hunter, 6 How. 255; Williams v. McKee (Tenn.), 38 S. W. 730; Shanks v. Stumpf, 23 Misc. 264; 51 N. Y. Supp. 154; Ames v. Stockert (W. Va.), 34 S. E. 821. 410 The Answee. In action of slander or libel. an indictment would charge facts constituting a crime. *^° But this rule requires only a statement of the necessary facts as distinguished from the evidence of those facts ; *^^ and when the original charge is in itself specific, the rule does not require the defendant to further particularize in his plea.*^^ A plea of justification must be as broad as the chargp *^' imless the defamatory matter consists of several distinct charges in which case the defendant may justify as to one or all.*^* The defendant may prove mitigating cdrcumstanees notwith- standing that he has pleaded or attempted to prove a justifica- tion.*^^ Where the 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 if is pleaded. Whether a defense contains a justification must be determined by the language used in it, and it is unnecessary to name or character- ize that defense.*^" Matter pleaded in justification may also be pleaded in mitigation, but the two defenses should be sepa- rately stated,*^'' and the answer should expressly state that the iioMcKane v. Brooklyn Citizen, 53 Hun 132; Andrews v. Van Duser, 11 Johns. 38; Campbell v. Irwin (Ind.), 45 N. E. 810. *ii Ball V. Evening Post Pub. Co., 38 Hun 11. *i2 Van Wyek v. Guthrie, 4 Duer 268 ; 17 N". Y. 190 ; Kingsley v. Kings- ley, 79 Hun 569; 29 N. Y. Supp. 921. See Myers v. Longstaff (S. D.), 84 N. W. 233. *i3 Baldwin v. Genung, 70 App. Div. 271 ; Kingsley v. Kingsley, 79 Hun 569; 29 N. Y. Supp. 921; Wallace v. Homestead Co. (Iowa), 90 N. W. 835; 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; Loveland v. Hosmer, 8 How. 215; Jaycocks v. Ayres, 7 How. 215; \Yhitte- more v. Weiss, 33 Mich. 348; Palmer v. Smith, 21 Minn. 419; Trebby v. Transcript Pub. Co. (Minn.), 76 N. W. 961. *i4 Baldwin v. Genung, 70 App. Div. 271; Lanpher v. Clark, 149 N. Y. 472; Torrey v. Field, 10 Vt. 353. «ii N. Y. Code of Civil Pro., § 535; Spooner v. Keeler, 51 N. Y. 527; Bis- bey V. Shaw, 12 N. Y. 67; Klinck v. Colby, 46 N. Y. 427; Bush v. Prosser, 11 N. Y. 347; South Dakota Comp. Laws, § 4930; Ky. Civ. Code Prac, § 24; Cal. Code of Civil Proc, § 461. See ante, p. 31. *ioff must be fotmded on an existing demand in presenti and not one that might be claimed 473 N. Y. Code of Civil Pro., § 502, subd. 2. "i Dodge V. Ockerhausen, 22 N. Y. Supp. 25 ; Williams v. Brown, 2 Keyes 486; Binghampton Trust Co. v. Clark, 32 App. Div. 151; 52 N. Y. Supp. 941. I'sRoldan v. Power, 14 Misc. 480; 35 N. Y. Supp. 697. 4Te Mayo v. Davidge, 44 Hun 342 ; Blood v. Kane, 52 Hun 225 ; 6 N. Y. Supp. 353; Moody v. Steele, 3 St. Rep. 269; Roldan v. Power, 14 Misc. 430; 35 N. Y. Supp. 697. *TT Myers v. Davis, 22 N. Y. 489; Murray v. Deyo, 10 Hun 3. *78 Martin v. KunzmuUer, 37 N. Y. 396. 422 The Answer. Assigned demand as a counterclaim. in futuro."" And the pTinciple was well established that to give a right to compel a set-off where there had been an assign- ment of a demand, both the debts must have been due and pay- able at the same time and before a change in the ownership of either.*'" The same doctrine seems to have been recognized and applied in all the cases 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 transferee 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 counter- claim existing against the transferror before notice of the trans- fer, 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 demand which is transferred are regulated by special provision of law, nor does it vary the rights or liabilities of a party to a negotiable instrument which is transferred.**^ The Code also specifies the non-assignable claim or demands,*'^ and provides for the assignment of a cause of action to cancel or otherwise affect an instrument executed or an act done as security for a usurious loan or forbearance,*'^ and for the as- signment of a judgment, and the effect thereof.*'* The right 479 Martin v. Kunzmuller, 37 N. Y. 396. 480 Taylor v. Mayor, etc., of N. Y., 82 N. Y. 10; Patterson v. Patterson, 59 N. Y. 574; Jordan v. Nat. Shoe and Leather Bank, 74 N. Y. 467; Coffin V. McLean, 80 N. Y. 560; Hunger v. Albany City Nat. Banlc, 85 N. Y. 580, 586 ; Newcomb v. Alney, 96 N. Y. 308. 481 N. Y. Code of Civil Pro., § 1909. 482 " Any claim or demand can be transferred except in one of the fol- lowing 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 in- terest in real property, a grant of which, by the transferrer, 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. 483 N. Y. Code of Civil Pro., § 1911. 484 N. Y. Code of Civil Pro., § 1912. The Answer. 423 Counterclaims by trustees, etc. of defense as against an assignee, wliere it is founded in a seti- off, or oounterolaim as it is now defined, is wholly statutory, and the allegations in support of it must in eixpress terms bring such defense within the statute.*^^ The California Code provides as follows: " In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defense existing at the time of, or before, notice of the assignment; but this sec- tion does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good considera- tion, before maturity." **" In Montana it is provided by statute that an action by an assignee of a non-negotiable thing in action is without prejudice to any set-off existing at the time of, or before notice of, the assignment; and also that the indorsee of a non-negotiable written contract shall have all the rights of the assignor subject to all equities existing in favor of the maker at the time of the indorsement. !N"either of these statutes permit the set-off against the assignee of a demand against the assignor arising between the indorsement and notice thereof.*^' § 32. Counterclaim in action by trustee or plaintiff without interest. — There is in New York another exception to the gen- eral rule 'that a counterclaim set up by a defendant must be a cause of action 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 counter- claim, 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 plaintiff's demand, must be allowed as a 485 Willover.v. First Nat. Bank of Clean, 40 Hun 184. *86 Cal. Code of Civil Pro., § 368. 487 Stadler v. First Nat. Bank (Mont.), 56 Pae. 111. 424 The Answee. Counterclaims by executors, etc. counterclaim, if it might have been so allowed in an action brought by the person beneficially interested.*'* Where an action is brought by a guardian in socage as trustee for infant wards tiie defendant cannot present as a counterclaim a debt due to the defendant from the plaintiff in an individual capacity.*'" And claims against an executor or administrator individually cannot be offset against claims in his favor in a representative capacity as trustee for the es- tate.*"" Where the plaintiff is trustee for another, or where the ac- tion is in the name of the plaintiff who has no actual interest in the contract upon which it is founded, and the defendant seeks to counterclaim a demand against the person whom the plaintiff represents or for whose benefit the action is brought, he must allege in his counterclaim such facts as will bring it within the statute, and among the other necessary allegations, must allege that the plaintiff is trustee for the person against whom his demand exists or that the plaintiff has no interest in the contract upon which the action is founded.*"^ Where the parties to the action are corporations the defend- ant cannot set off a claim against an officer of the plaintiff cor- poration.*"^ § 33. Counterclaim in actions by executors and administra- tors. — In a preoeding section the right to interpose a counter- claim in an action brought against an executor or administrator has been noticed.*"^ The JSTew York Code provides that in an action brought by an executor or administrator in his rep- resentative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth 488 N. Y. Code of Civil Pro., § 502, subd. 3. 480 Gallagher v. Stevenson Brewing Co., 13 Misc. 40 ; 34 N. Y. Supp. 94. *90 Starke v. Myers, 24 Misc. 577 ; 53 N. Y. Supp. 650. *»i Willover v. First Nat. Bank of Clean, 40 Hun 184. i02 Cragin Mfg. Co. v. Geuder & Paeschke Mfg. Co., 85 111. App. 379. 4i>3 See ante, p. 417. The Awswee. 425 Counterclaims by executors, etc. 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. Ex- ecution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator.*''* Where an executor or administrator has sold, on credit, per- sonal 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 de^ fendant 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, although it existed at the time of such death.*'" It was held, in another case, that in an action brought against a bank by the personal representative of a deceased depositor to recover a deposit which was due and payable to the decedent in his life-time, the defendant 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 deceased, which did not become due until after his death.*'^ These decisions, though made under the Revised Statutes, are applicable in similar cases under the Code.*''^ 49* See N. Y. Code of Civil Pro., § 506. 495 Thompson v. Whitmarsh, 100 N. Y. 35. And generally causes of ac- tion whicli had accrued prior to the testator's death are not properly the subject of counterclaim in an action brought by the executor to recover upon a liability created thereafter. Root v. Taylor, 20 Johns. 137; Mer- cein V. Smith, 2 Hill 210; Merritt v. Seaman, 6 N. Y. 168; Patterson v. Patterson, 59 N. Y. 574; Thompson v. Whitmarsh, 100 N. Y. 35; Gross v. Gross, 26 Misc. 385; 56 N. Y. Supp. 219. 496 Patterson v. Patterson, 59 N. Y. 574. 497 Jordan v. Nat. Shoe and Leather Bank, 74 N. Y. 467. 498 Wakeman v. Everett, 41 Hun 278 ; Jaeger v. Bowery Bank, 8 Misc. 426 The Answer. Relation between counterclaim and plaintiflf's demand. In . an action by an executor to recover moneys due from the defendant to the testator at the time of his death, the de- fendant cannot set up as a counterclaim a conversion by the plaintiff of securities which the defendant had deposited with the plaintiff's testator.*"" It has been held in Iowa that where an administrator brings an action against a member of a copartnership, the defendant cannot set up as a counterclaim a debt due from the plaintiff's intestate to the copartnership, for the reason that the subject of the proposed counterclaim belongs to the partnership as a distinct entity and was not available to an individual part- ner.^"" In an action brought by an executor upon a promissory note the defendant may set off a debt due from the plaintiff indi- vidually, provided he alleges and can prove that the plaintiff ovsms the note in his individual character and not as executor.^"^ § 34. Relation between the counterclaim and plaintiff's cause of action. — The defendant may set up a cause of action on con- tract as a counterclaim in an action on contract, if it existed at the commencement of the action, and otherwise conforms to the requirements 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 counterclaim, besides con- forming to the other requirements of the Code, must either 150; 29 N. Y. Supp. 303; Peyman v. Bowery Bank, 14 App. Div. 432; 43 N. Y. Snpp. 826. *99 Wakeman v. Everett, 41 Hun 278. BOO Sullivan v. Nieoulin, 84 N. W. 978. 601 Lee V. Russell (Ky.), 38 S. W. 874. 502 N. Y. Code of Civil Pro., § 501, subd. 2; Parsons v. Sutton, 66 N. Y. 92; Cal. Code of Civ. Pro., § 438, subd. 2; Burns' Ind. Rev. Stat. 1894, § 351; Ohio Rev. St. 5075; Foley v. Scharmann, 29 Misc. Rep. 521; 61 N. Y. Supp. 969; Colo. Civ. Code, § 57, subd. 2; Davis v. Hurgren (Cal.), 57 Pac. 684; Orr v. Gerrold (Kans.), 57 Pac. 48. The Answee. 427 Relation between counterclaim and plaintiff's demand. arise out of the contract or transaction set forth in the com- plaint as the foundation of the plaintiff'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 piliantiff's claim, or is connected with the subject of the ac- tion.^"* Thus, in an action on a promissory note damages for the conversion by the holder of property pledged to him as security for the payment of the note may properly be pleaded as a counterclaim.^"^ It was formerly the rule, that in an action for a tort a coun- terclaim, 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 counterclaim, 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 com- plaint as thfe foundation of the plaintiff's claim, or whenever it is connected with the subject of the action. '*°° It is the policy of the law that the^ entire controversy should be wound 503 N. Y. Code of Civil Pro., § 501 ; Hinldey v. Troy & Albia E. R. Co., 42 Hun 281; Boreel v. Lanston, 90 N. Y. 29.3, 297; Edgerton v. Page, 20 N. Y. 281; Colo. Civil Code, § 57, subd. 1; Minn. Gen. Stat. 1894, § 5237; MeLane v. Kelly (Minn.), 75 N. W. 601; Neb. Code Civ. Pro., § 101. 504Lerehe v. Brasher, 37 Hun 385; Cass v. Higenbotam, 100 N. Y. 248; Xenia Branch Bank v. Lee, 2 Bosw. 694 ; 7 Abb. 372 ; Le Clare v. Thibault, 41 Oregon 601. It"is not necessary to the sufficiency of a counterclaim that it should be founded in or arise out of the contract set forth in the petition. It is suflScient if it arises out of the transaction set forth in the petition or is connected with the subject of the action. Wyman v. Herard, 9 Okl. 35. 605 Cass V. Higenbotam, 100 N. Y. 248. 506 Chamboret v. Cagney, 2 Sweeny 378; 10 Abb. N. S. 31; 41 How. 125; Xenia Branch Bank v. Lee, 2 Bosw. 694 ; 7 Abb. 372 ; Brown v. Buckingham, 21 How. 190; 11 Abb. 387; Carpenter v. Manhattan Life Ins. Co., 22 Hun 49; 93 N. Y. 552; Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226; Wyman v. Herard, 9 Okl. 35; Savage v. City of Buffalo, 50 App. Div. 136; 63 N. Y. Supp. 941 ; Nnman v. Wolf, 73 App. Div. 38. 428 The Answee. Relation between counterclaim and plaintiff's demand. up in one action, even where the complaint is in tort, if the counterclaim interposed either arose out of the transaction which is the foundation of the plaintiff's cause of action or is connected with it ; and it is the theory of the Code to authorize all connected causes of action, whether arising out of contracts or torts, to be litigated in the same action. ^"^ But no counter- claim 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 connected 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 com- mitted on him by the plaintiff -prior to the one described in the complaint; °^° but he may interpose as a counterclaim an as- sault and battery committed on him by the plaintiff during the affray out of which the plaintiff's cause of action arose. ^^^ On B07Ter Kuile v. Marsland, 81 Hun 423; 31 N. Y. Supp. 5; Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552; Smith v. Rowe, 49 App. Div. 582; 64 N. Y. Supp. 389; O'Brien v. Dwyer, 76 App. Div. 516. See Moore v. Rand, 60 N. Y. 208, 214. BosChamboret v. Cagney, 2 Sweeny 378; 10 Abb. N. S. 31; 41 How. 125; Smith V. Hall, 67 N. Y. 48 ; Pattison v. Richards, 22 Barb. 143 ; Donahue v. Henry, 4 E. D. Smith, 162 ; People v. Dennison, 84 N. Y. 272 ; Hinkley v. Troy & Albia R. R. Co., 42 Hun 281 ; Lehmair v. Griswold, 8 Jones & Sp. 100; Askins v. Hearns, 3 Abb. 184; Schnaderbeek v. Worth, 8 Abb. 37; Eckert v. Gallien, 24 Misc. 485 ; 53 N. Y. Supp. 879 ; D'Auxy v. Dupre, 47 App._ Div. 51 ; 62 N. Y. Supp. 244 ; Bernheimer v. Hartmayer, 50 App. Div. 316; 63 N. Y. Supp. 978. 609 People V. Dennison, 84 N. Y. 272. 610 Barhyte v. Hughes, 33 Barb. 320. 511 Murphy v. McQuade, 20 Misc. 671; 46 N. Y. Supp. 382; Deagan v. Weeks, 67 App. Div. 410; Pelton v. Powell (Wis.), 71 N. W. 887; Gutz- man v. Clancy, 114 Wis. 589. But see Prosser v. Carroll, 33 Misc. 428; 68 N". Y. Supp. 542; 9 N. Y. Ann. Cas. 242; Schnaderbeek v. Worth, 8 Abb. 37. It .has been held that a cause of action for slander uttered by the plain- tiff at a specified time or occasion cannot be pleaded as a counterclaim in an action for slander uttered by the defendant at the same time and place and relating to the same charge. Sheehan v. Pierce, 70 Hun 22; 23 N. Y. The Answer. 429 Relation between counterclaim and plaintiff's demand. the principle above stated the defendant in an action for tort cannot set up as a counterclaim the breach of a contract made long before the commission of the tort and having no connec- tion with the subject of the action."^'' So in an action for con- version the defendant cannot set up as a counterclaim an in- dependent demand on contract; ^^^ nor can the defendant in an action for a tort set up as a counterclaim a cause of action arising out of an independent tort of the plaintiff not con- nected with the subject of the action."^* But the mere fact that the plaintifE sues for a tort does not of itself preclude the defendant from setting up a tort as a counterclaim. 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 coun- terclaim 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, know- ing that the land was insufficient security for the payment of defendant's mortgage, and that the mortgagor was insolvent, wrongfully, fraudulently, and with intent to cheat the defend- ant and to impair the security of his mortgage, committed waste on the mortgaged premises by cutting said wood there- from to the defendant'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 plaintiff has wrongfully used it, and ask that the defendant suiting in a collision upon the highway the defendant was permitted to counterclaim his damages resulting from the alleged negligence of the plain- tiff causing the collision. Heigle v. Willis, 50 Hun 588. 612 Pattison v. Richards, 22 Barb. 143. 513 Chambers v. Lewis, 11 Abb. 210; Sehaefer v. Empire Lithographing Co., 28 App. Div. 469 ; 51 N. Y. Supp. 104. 61* Chamboret v. Cagney, 2 Sweeny 378; Askins v. Hearns, 3 Abb. 184; Barhyte v. Hughes, 33 Barb. 320; Rothschild v. Whitman, 132 N. Y. 472. 515 Carpenter v. Manhattan Life Ins. Co., 22 Hun 49 ; 93 N. Y. 552. 430 The Answer. Relation between counterclaim and plaintiff's demand. be restrained from such use and be required to pay damages for the infringement.^" So in an action to restrain the defend- ants 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 plaintiff 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 unlavyfuUy collected divers rents arising out of the trust property and converted the same to his own use and refused to account therefor, and may pray as affirmative relief for a judgment in his favor against the plaintiff for the rent so col- lected, 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 subsequent deed to the defendant, which was first recorded, the defendant may allege and prove as a counterclaim that the plaintiff's deed was fraudulently ob- tained 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."^" But it must be admitted that the connection between the coun- 610 Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226. BIT Grange v. Gilbert, 44 Hun 9. 518 O'Brien v. Garniss, 25 Hun 446. 619 Moody V. Moody, 16 Hun 189. 520 Harlock v. Le Baron, 1 Civ. Pro. R. 163. The Answbk. 431 Relation between counterclaim and plaintiff's demand. terelaim 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 com- plaint, or whether it is connected with the subject of the aption within the meaning of the Code. The subject of an action may be either property or a violated right. ^^^ In an action for con- version 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 subject of the action has been construed to mean the facts constituting the cause of action.^^* The requisite of connection of the defendant's cause of ac- tion with the subject of the plaintiff's action is not defined or restricted by the provisions of the Code. That act only re- 521 Glen & Hall Manuf. Co. v. Hall, 61 N. Y. 226. 522 Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552. See Marshall v. Friend, 35 Misc. 101. 523 Edgerton v. Page, 20 N. Y. 281 ; Drake v. Cockcroft, 10 How. 377. 524 Chamboret v. Cagney, 41 How. 125; 2 Sweeny 378; 10 Abb. N. S. 31; Lehmair v. Griswold, 8 Jones & Sp. 100; Rothschild v. Whitman, 132 N. Y. 472. 476; Hall v. Werney, 18 App. Div. 565; 46 N. Y. Supp. 33. See Ter Kuile V. Marsland, 81 Hun 420; Deagan v. Weeks, 67 App. Div. 410, 412. In an action either for malicious prosecution or false imprisonment, a counterclaim setting up a cause of action for fraud in the purchase of goods by the plaintiff, which was the ground of the prosecution and arrest, is unauthorized by the Code, as it neither arose out of the transaction set forth in the complaint as the foundation of the plaintiff's claim nor -nas connected with the subject of the action. Rothschild v. Whitman, 132 N. Y. 472. In an action of ejectment a cause of action for damages caused by a trespass by the plaintiff on lands of the defendant adjoining the lands in suit, does not arise out of the transaction set forth in the complaint within the meaning of the Code. Wigmore v. Buell, 116 Cal. 94. In an action for trespass on lands a counterclaim alleging the right to use the lands as a highway and claiming damages for the obstruction of the same by the plaintiff does not set up a cause of action arising out of the transac- tion set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action. Hall v. Werney, 18 App. Div. 565; 46 N. Y. Supp. 33. 432 The Ahswee. Relation between counterclaim and plaintiff's demand. quires some connection.'*^'' The connection may l>e 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 defend- ant'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 stand- ing as a litigant, the case comes within the class of counter- claims allowed by the Code. If the action is brought by a purchaser 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 discov- ery 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 demanding judgment for a spe- cific performance of the contract by the plaintiff, presents a proper 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 founda- tion of the plaintiff's claim should be properly pleaded."^ 025 Metropolitan Trust Co. v. Tonawanda R. R. Co., 43 Hun 521. 526 Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552. 527Moser v. Cochrane, 107 N. Y. 35. 528Hinldey v. Troy & Albia R. R. Co., 42 Hun 281. Facts should be pleaded showing Liiat the counterclaim gi-ew out of or was connected with the contract or transaction set up as the foundation of the plaintiff's claim. Brown v. Buckingham, 21 How. 190; 11 Abb. 387; Hall v. Werney, 18 App. Div. 565; 46 N. Y. Supp. 33; Green v. Parsons, 27 Week. Dig. 544; 14 St. Rep. 97. The AisrswER. 43 J Counterclaims in actions on contract. § 35. 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 ac- tion, and in other respects conforms to the requirements of the Code.'''' It is essential to a counterclaim that it exists in the hands of the defendants who set it up at the time of the commencement of the action. The rights of the parties become fixed ac- cording 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 counterclaim after he is sued, and if it does not appear from the answer 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 com- mencement of the action, the defendant brings a cross-action on contract against the plaintiff and recovers a judgment therein before the 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 equitable defense although the action is upon a purely common-law demand,'^* or it may con- sist of a cause of action for a tort if it arose out of the contract B29N. Y. Code of Civil Pro., § 501, subd. 2; Cal. Code of Civil Pro., § 438, subd. 2; Colo. Civ. Code, § 57; subd. 2; Wash. Code Proc, § 195, snbd. 2; and see ante, p. 414. 530 Mayo v. Davidge, 44 Hun 342; Kice v. O'Connor, 10 Abb. 362; Heiden- heimer v. Wilson, 31 Barb. 636; Van Valen v. Lapham, 5 Duer 689; Cham- bers v. Lewis, 11 Abb. 210; Conner v. Scott, 16 Wash. 371; Ewen v. Wilbor, 99 111. App. 132; Gurske v. Kelpin, 61 Neb. 517. 531 Badlam v. Springsteen, 41 Hun 160. 632Schubart v. Harteau, 34 Barb. 447; Sheaf v. Hastie, 16 Wash. 563. But this doctrine is not recognized in all the States. 533 Lignot V. Redding, 4 E. D. Smith 285. 534 Hieksville, etc., E. R. Co. v. Long Island R. R. Co., 48 Barb. 355; Cur- rie V. Cowles, 6 Bosw. 453. 434 The Answee. Coimterclaima in actions on contract. set forth in the complaint as the foundation of the plaintiff'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 tres- pass 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 action, and do not constitute 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 let- ting.^^^ But in such action the defendant may recoup damages sustained by breach of an implied covenant for quiet enjoy- ment,"'" or may counterclaim the damages which he has sus^ tained 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 re- pairs, and damages for the loss of part of the premises through want of repair ; "^ or damages sustained by reason of being de- prived, 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."* 635 Cass V. Higenbotam, 100 N. Y. 248; Xenia Branch Bank v. Lee, 2 Bosw. 694; 7 Abb. 372; Lerche v. Brasher, 37 Hun 385. 636HinkIey v. Troy & Albia R. R. Co., 42 Hun 281; Brown v. Bucking- ham, 21 How.' 190; 11 Abb. 387. 537Edgerton v. Page, 20 N. Y. 281; Boreel v. Lawton, 90 N. Y. 293; Mayor, etc., of N. Y. v. Mabie, 13 N. Y. 151; Drake v. Cockroft, 4 B. D. Smith 34; 10 How. 377; 1 Abb. 203. 638 Walker v. Shoemaker, 4 Hun 579. 530 Mayor, etc., of N. Y. v. Mabie, 13 N. Y. 151. But the defendant must show an actual e%iction, or a constructive eviction and abandonment of pos- session. Boreel v. Lawton, 90 N. Y. 293. 540 Walker v. Shoemaker, 4 Hun 579. 541 Cook v. Soule, 56 N. Y. 420. 642 Myers v. Burns, 35 N. Y. 269. 543 Morgan v. Smith, 5 Hun 220. 644 Staples V. Anderson, 3 Rob. 327. The Answee. 435 Counterclaims in actions on contract. So in an action to recover possession of land for non-payment of rent the defendant may set up as a counterclaim a partial evic- tion from an easement granted by the lease in lands other than those mentioned 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 vendee is not bound to rescind the contract on the discov- ery of a breach of the warranty, but may, if he so elects, use the articles and rely upon the warranty and enforce it by a direct action for dama-ges, or by way of counterclaim, or by way of recoupment when sued for the price. The rule is the same whether the goods are in existence at the time of the con- tract 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 moneys of the corporation unlawfully paid to and received by such officer.^*^ In an action for the price agi-eed to be paid for the manufacture of the material fur- nished by the defendant into an article of merchandise, the de- fendant may set up as a counterclaim a conversion of a part of the material by the plaintiff.''*' So in an action to recover a balance alleged to be due for work done under a written con- 545 Blair v. Claxton, 18 N. Y. 529. 546 Bruce v. Burr, 67 N. Y. 237. 6« Bounce 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, 52 N. Y. 416; Parks v. Morris Ax & Tool Co., 54 N. Y. 586; Gurney v. Atlantic, etc., Ey. Co., 58 N. Y. 358. See also Lemon v. Trull, 13 How. 248; War- ren V. Van Pelt, 4 E. D. Smith 202 ; Hopkins v. Lane, 2 Hun 38 ; 64 N. Y. 204; Walling v. Schwarzkopf, 7 Week. Dig. 439; Samson v. Freedman, 102 N. Y. 699. 548 Wood V. Mayor, 74 N. Y. 556. And see Donohue v. Mayor, 10 Hun 37. 549 Wadley v. Davis, 63 Barb. 500. 436 The Answer. Counterclaim in action of foreclosure. tract, 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 agreement.°^° In an action for work, labor and services performed for the defendant in cutting timber the defendant may counterclaim the damages he has sustained in consequence of a fire negligently set by the plaintiff and permitted to escape, contrary to the de- fendant's orders."''^ § 36. Counterclaim in action of foreclosure. — A party de- fendant in an action to foreclose a mortgage, against whom either a personal judgment or one which may transfer his estate in the land is sought, has a right to set up a counterclaim as a defense to the action if its subject-matter is such as renders it a proper matter of counterclaim under the general require- ments of the Code.'"^ 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 mort- gagor and the surety for any deficiency, the defendants may set up as a counterclaim a debt due from the plaintiff to the mortgagor."^^ An obligor in the bond secured by the mort- gage, 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 plaintiff at the time of the commence- ment of the action.^^* And where at the time of the execution of a purchase-money mortgage, and as a part of the same trans- action, a written agreement is entered into between the parties B50 Taylor v. Mayor, 83 N. Y. 625. 561 Branch v. Chappell, 119 N. C. 81. B52 Seligman v. Dudley, 14 Hun 186; Lathrop v. Godfrey, 3 Hun 739. 553 Bathgate v. Hasldn, 59 N. Y. 533. 554 Hunt V. Chapman, 51 N. Y. 555. The Answer. 43Y Counterclaim in action of foreclosure. containing covenants on the part of the mortgagee, the damages sustained, by the mortgagor from a breach of such covenants may be set up as a counterclaim in an action to foreclose the mortgage.'''^ In case an action is brought to foreclose a recorded mortgage against the mortgagor who is the owner of the land mortgaged, he may set up as a counterclaim that the mortgage is void for usury and is a cloud on his title and ask that it be can- celled.'^" In an action for the foreclosure of a purchase-money mort- gage in which judgment for deficiency is asked against the mortgagor, the defendant may set up as a counterclaim a cause of action for damages sustained by reason of a breach of a covenant of seizin contained in the conveyance to him by the plaintiff.'" A party to an action of foreclosure who has a lien upon or claim against the mortgaged premises subject to the mort- gage, but who owns no part of the mortgaged premises, and against whom no personal judgment for deficiency is demanded cannot set up a counterclaim consisting of an independent cause of action in his favor."* But where an action of foreclosure is brought against the administrator of the deceased mort- gagor by the administrator of the deceased assignee of the mortgage, a note held by the defendant's intestate against the plaintiff's intestate may be a proper counterclaim although there is no demand of judgment for a deficiency.^'"' 665 Sandford v. Travers, 40 N. Y. 140. 666 Equitable Life Assurance Soc. v. Cuyler, 12 Hun 247; 75 N. Y. 511; Myers v. Wheeler, 24 App. Div. 327; 48 N. Y. Supp. 611. 657Merritt v. Gouley, 58 Hun 372; 12 N. Y. Supp. 132. But see Mc- Conihe v. Fales, 107 N. Y. 404; Merchants' Nat. Bank v. Snyder, 52 App. Div. 606 ; 65 N. Y. Supp. 994. 558 Lipman v. J. A. I. Works, 128 N. Y. 58. 669 Thornton v. Moore, 26 Misc. 120. In the ease above cited the per- sonal estate of the deceased mortgagor was liable for any deficiency, and was also liable to subsequent purchasers whose title would be cut off by a sale. 438 The Aksweb. Counterclaims against co-defendants. Where a junior mortgagee has brought an action of fore- closure, making the senior mortgagee a party and praying judgment that the mortgaged premises be sold subject to the lien of the senior mortgage, or that the same be paid out of the proceeds of the sale, the senior mortgagee may answer, setting up as a counterclaim all the facts necessary to foreclose his mortgage and praying judgment of foreclosure and sale, and on the trial judgment may be rendered in accordance with the prayer of the answer.^"". And where the complaint charges that a defendant has or claims to have some interest in the mort- gaged premises, which interest, if any, accrued subsequently to that of the mortgage, the defendant may deny this allegation, and set out his claim, alleging priority to the plaintiff's mort- gage, and praying for such relief as shall be just and proper under the circumstances/*^ These matters will be further considered in the following section. § 37. Counterclaims against co-defendants, under the New York Code. — The Code provides that the court may determine the controversy as between the parties before it, where it can do so vnthout prejudice to the rights of others or by saving their rights.^"'^ It also provides that where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determina- tion must demand it in his answer and must at least twenty days before the trial serve a copy of his answer upon the attor- ney for each of the defendants to be ajBFected by the determina- tion, 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 SCO Metropolitan Trust Co. v. Tonawanda, etc., R. R. Co., 43 Hun 521 ; lOG N. Y. 673. And see Wade v. S^rever, 42 App. Div. 330; 59 N. Y. Supp. 76. 5«i Older V. Russell, 8 App. Div. 518; 40 N. Y. Supp. 892. 56 2 N. Y, Code of Civil Pro., § 452. The Answee. 439 Counterclaims against co-defendants. 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 parties on the same side, as between themselves ; and may grant to a defendant any affirmative relief to which he is entitled/"* ISTeither of these sections of the Code, nor any others, have been so far extended as to permit the defendants by their an- swers to add to the case a further cause of action disconnected from and independent of that stated and set forth in the com- plaint/"'^ They were intended to follow and preserve the pow- ers exercised by courts of equity in actions brought for their determination, as that was permitted and sanctioned by the la-w- and practice previously existing; and by that practice as well as by the language of these sections, the rights of the defend- ants 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 con- fers no new powers upon the courts acting in equity, but is sim- ply a regulation of practice.''"' Under the provision of sec- tion 274 of the Code of Procedure for the determination of the ultimate rights of the parties 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 663 N. Y. Code of Civil Pro., § 521. 664 N. Y. Code of Civil Pro., § 1204. See also Cal. Code of Civil Pro., § 578. 665 Smith V. Hilton, 50 Hun 236; Rafferty v. -Williams, 34 Hun 544; Lansing v. Hadsall, 26 Hun 619; Ste-wart v. Blatchley, 8 Misc. 472, 475; 29 N. Y. Supp. 547; Powers v. Savin, 64 Hun 560; 19 N. Y. Supp. 340. See Derham v. Lee, 87 N. Y. 599, 604. 666 Smith V. Hilton, 50 Hun 235. See Jones v. Grant, 10 Paige 348. 697 Albany City Savings Inst. v. Burdick, 87 N. Y. 40. 44:0 The Answer. Counterclaims and set-ofi's in equity. were properly the subject of an independent litigation between such defendants.'^"'* Where the complaint in an action to foreclose a mortgage alleges that two of the defendants hold prior mortgages upon the premises, 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.^"* § 38. Counterclaims and set-offs 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 peculiar equity, and under special circumstances, will enforce a set-off in cases not within the letter of the stair ute.'^" And further than this, in a proper case a court of equity will decree a set-off where such allowance is prohibited by the statute. Thus, although the statute provides that a set-off shall be allowed only where it consists of matter held by the defendant when the suit is commenced, this will not preclude an equitable set-off for money paid on behalf of the plaintiff's assignor after commencement of suit.''" But the power of courts of equity in the matter of enforcing set-offs 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 demand allowed is put beyond reasonable doubt."" 668 Kay V. Whittaker, 44 N. Y. 565. 509 Lansing v. Hadsall, 26 Hun 619. =70 Bathgate v. Haskin, 59 N. Y. 533 ; Lindsay v. Jackson, 2 Paige 580 ; .Jordan v. Nat. Shoe and Leather Bank, 74 N. Y. 467. 571 Eigenman v. Clark, 51 N. E. 725; 21 Ind. App. 129. ST2 Armstrong v. McKelvey, 39 Hun 213; 104 N. Y. 179. The Answer. 4-41 Counterclaims and set-offs in equity. At law a joint debt cannot be set off against a separate debt, or conversely, a separate debt against a joint debt, and equity will interpose only under circumstances in whicb it is necessary in order to save tbe claim of a party; and to do this the facts must be alleged which will entitle the party to equitable rer lief.^^^ And generally, in the absence of insolvency of the complainant, or something in the nature of the claim or situa- tion of the parties showing that justice would not otherwise be done, equity vn.ll follow the law and refuse to allow a claim as an equitable set-off where it could not be set-off at law."'* But where from the nature or the situation of the parties it is evident that justice cannot otherwise be done, equity will as a general rule set off cross-demands against each other. ^^° But a set-off will not be decreed where the equities of other parties are superior to those of the creditor claiming it.^'" Insolvency of a party against whom a set-off is demanded sometimes moves a court of equity to grant a set-off which would not be allowed at law.^^^ So non-residence of the plain- tiff may move the court to grant equitable relief by way of set-off, although the demand sought to be set off arose after the commencement of the action."' But the insolvency of 573 Perry v. Chester, 12 Abb. N. S. 131; Mynderse v. Snook, 1 Lans. 488; Lush v. Adams, 10 Civ. Pro. R. 60; Parker v. Turner, 8 N. Y. S. R. 500; McCulloch v. Vibbard, 51 Hun 227; Cummings v. Morris, 25 N. Y. 625; Howard v. Shores, 20 Cal. 277; Ingols v. Plimpton, 10 Colo. 535; Baker v. Kinsey, 41 Ohio St. 403-408; Spofford t. Rowan, 124 N. Y. 108, 113. 674 Wolff V. Jasspon (Mich.), 85 N. W. 260. 575 Acer V. Hotchkiss, 97 N. Y. 395, 409; Smith v. Felton, 43 N. Y. 419; Coffin V. McLean, 80 N. Y. 560; Gay v. Gay, 10 Paige 369; Knapp v. Burn- ham, 11 Paige 333. 576 Coffin V. McLean, 80 N. Y. 560. 577 Spofford V. Rowan, 124 N. Y. 108; Jordan v. Nat. Shoe and 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. 360; Acer v. Hotchkiss, 97 N". Y. 395, 410. See Bunting v. Cochran, 99 Va. 558. 678 Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 116; Forbes V. Cooper (Ky.), 11 S. W. 24. 442 The Answee. Mode of pleading a counterclaim. the plaintiff does not authorize the defendant to set up as an equitable set-off a claim purchased by him after the beginning of the suit with knowledge of the insolvency of the plaintiff.^'" The existence of an equitable counterclaim will not afford a ground for a stay of proceedings where the party against whom the counterclaim exists and against whose action the stay is asked, is not stated to be financially irresponsible.^*" § 39. 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 com- plaint in a cross-action; and the general rules governing the statement of a cause of action in a complaint apply to the state- ment of the facts constituting a counterclaim. The counter- claim must contain every allegation needed in a complaint founded upon the same cause of action. ^^^ A counterclaim can- not be established without pleading it.^^^ The same rule ap- plies to a set-off.^*' Where the right to a counterclaim depends wholly upon statute the defendant must not only plead a good cause of action in his favor against the plaintiff but must also allege facts bringing his demand within the provisions of the statute.^** If a demand is necessary to the cause of action atr tempted to be pleaded as a counterclaim, the demand must be alleged.'^*^ ISTo particular form of words is necessary to make a pleading a counterclaim if it clearly appears from the answer that it 5T9 Enter v. Quesse, 30 S. C. 126; Elliott v. Smith, 77 Hun 116, 119; Pond V. Harwood, 139 N. Y. Ill, 119. 680 Clark v. Vilas Nat. Bank, 22 App. Div. 605. esiDaggs v. Phcenix Nat. Bank (Ariz.), 53 Pac. 201; Kahrs v. Kahrs, 115 Ga. 288; Le Clare v. Thibault, 41 Oregon 601. 682 Union Mercantile Co. v. Jacobs, 20 Mont. 554. 683 JsTeosho City Water Co. v. City of Neosho, 136 Mo. 498; Lucas v. Wade (Fla.), 31 So. 231; Harrison v. State Banking, etc., Co., 15 S. D. 304. 684 Gurske v. Kelpin, 61 Neb. 517. 685 Ennis v. Eosa, 37 Misc. 160. The Answer. 443 Mode of pleading a counterclaim. was intended to set up a personal claim against the plaintiff. ^^^ 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.^" A party having an affirmative de- fense to an action by way of a counterclaim is bound to plead it in explicit terms and not leave it to inference.^'* The pleader should never characterize a counterclaim as a " defense " as he may thereby preclude himself from claiming the benefit of it as counterclaim ^^^ especially where the defendant claims any benefit from a failure to reply.^"" But characterizing the plead- ing as a defense is not necessarily fatal to the right to claim the benefit of, it as a counterclaim. Where the answer sets forth facts appropriate solely to a cause of action in favor of the de- fendant against the plaintiff and contains a demand of judg- ment appropriate to the cause of action so pleaded, it will be treated as a counterclaim and admitted by failure to reply although not specially denominated a counterclaim and in fact pleaded as a further and separate answer and defense.^"^ Where the defendant deems himself entitled to an affirmative judgment against the plaintiff by reason of a counterclaim in- terposed by him he must demand the judgment in his an- swer.''"- If he seeks to recover damages he should claim all he is entitled to recover, as a defendant is as much concluded by B86 Bates V. Eosekrans, 37 N. Y. 409; 4 Abb. N. S. 276; Cable Flax Mills V. Early, 72 App. Div. 213; 76 N. Y. Supp. 191; McCrea v. Hopper, 35 App. Div. 572; 55 N. Y. Supp. 136. 587 Bates V. Eosekrans, 37 N. Y. 409 ; 4 Abb. N. S. 276. 588 Rice V. Grange, 131 N. Y. 149. 680 Bates v. Eosekrans, 37 N. Y. 409; 4 Abb. N. S. 176; Simmons v. Kayser, 11 Jones & Sp. 131. See Acer v. Hotchkiss, 97 N. Y. 395; Van Brunt V. Day, 81 N. Y. 251; 8 Abb. N. C. 336; Wilder v. Boughton, 63 Barb. 547. 590 Equitable Life Ins. Co. v. Cuyler, 75 N. Y. 511; Cockerill v. Loonan, 36 Hun 353; Lafond v. Lassere, 26 Misc. 77; 56 N. Y. Supp. 459. 591 Metropolitan Trust Co. v. Tonawanda, etc., E. E. Co., 18 Abb. N. C. 368; McCrea v. Hopper, 35 App. Div. 572; 55 N. Y. Supp. 136. 592 N. Y. Code of Civil Pro., § 509; Shute v. Hamilton, 3 Daly 462; Montanye v. Montgomery, 19 N. Y. Supp. 655. 444 The Answee. Trial and judgment on counterclaim. 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 contract, and the counterclaim set up is an- other cause of action on contract, the answer should allege facts showing that the cause of action set up existed at the time the ac- tion was commenced.'*"* If the plaintiff's action and the defend- ant's counterclaim are not both causes of action on contract, the defendant should allege facts showing either that his counter- claim is a cause of action arising out of the contract or transac- tion set forth in the complaint as the foundation of the plaintiff's claim, or that it is connected with the subject of the action. °"^ Where the complaint is not verified and the answer sets up a counterclaim and also a defense by way of denial or avoidance, the defendant may verify the counterclaim only ^'"' and thus compel the plaintiff to either verify his reply,^"' or permit the defendant to apply to the court for judgment for want of a reply.'''' § 40. 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 plain- tiff's demand the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand the plaintiff must BusAnnis v. Upton, 66 Barb. 370. 684 See Mayo v. Davidge, 44 Hun 342; Rice v. O'Connor, 10 Abb. 362; Heidenheimer v. Wilson, 31 Barb. 636; Van Valen v. Lapham, 5 Duer 689; Chamber.? v. Lewis, 11 Abb. 210. 095 See ante, p. 432. 588 N. Y. Code of Civil Pro., § 527. 5orN. Y. Code of Civil Pro., § 523. 698 N. Y. Code of Civil Pro., § 515. 509 N. Y. Code of Civil Pro., § 974. The Answee. 445 Ti'ial and judgment on counterclaim. have judgment for the residue only. Where it exceeds the plaintiff's demand the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover from an- other person so much thereof as the judgment does not cancel.'*'"' In a case not above specified, where a counterclaim is estab- lished which entitles the defendant to an afBrmative judgment demanded in the answer judgment must be rendered for the defendant accordingly. °'"- Where the action is brought by an executor or administrator in his representative capacity and a demand against the de- cedent has been set up as a counterclaim and a balance found due the defendant, judgment therefor must be rendered against the plaintiff in his representative capacity. ""^ If one or more of the defendants has interposed an answer demanding the de- termination of the ultimate rights between himself and a co- defendant, and has served a copy of his answer upon the attor- ney for the co-defendant twenty days before the trial, the judgment may determine such rights and may grant to the de- fendant any affirmative relief to which he is entitled.""^ In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant by his answer does not deny the plaintiff's claim, but sets up a counter- claim amounting to less than the plaintiff's claim, the plaintiff upon iiling with the clerk an admission of the counterclaim may take judgment for the excess as upon a default for want of an answer. °°* SOON. Y. Code of Civil Pro., § 503. 6 01 N. Y. Code of Civil Pro., § 504. 602 N. Y. Code of Civil Pro., § 506. 603 N. Y. Code of Civil Pro., § 1204. 604 N. Y. Code of Civil Pro., § 512. 446 Demueeee to the Aistswee. Grouuda of demurrer to an answer. CHAPTER XII. Demueeee to the Answee. Section 1. When a demurrer to the answer is authorized. — Under the New York Code the plaintiff may demur to a coun- terclaim or a defense consisting 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 coimterclaim 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. That the defendant has not the legal capacity to recover upon the same. 3. That there is another action pending between the same parties for the same cause. 4. That the counterclaim is not of the character specified in section 501 of the Code. 5. That the counterclaim does not state facts sufficient to constitute a cause of action.^ The Code authorizes a demurrer for specific causes, and no pleading is demurrable unless it is subject to one or more of the objections specified in the section defining the grounds of de- 1N..Y. Code of Civil Pro^ § 494. In California a defendant may demur to the answer of the defendant or to one or more of the several defenses or counterclaims set up in the answer upon one or more of the following grounds : 1. That several causes of counterclaim have been improperly joined; 2. That the answer does not state facts sufBcient to constitute a defense or counterclaim; 3. That the answer is ambiguous, unintelligible, or uncertain. Cal. Code of Civil Pro., §§ 443, 444. 2N. y. Code of Civil Pro., § 495. Demukeee to the Answbb. 447 Demurrer ta answer containing denials. murrer.^ And, therefore, in an action of partition where one of the defendants by his answer controverts the title or interest of another defendant in the property sought to be partitioned, and serves such answer on his co-defendant in pursuance of section 1543 of the Code of Civil Procedure, the answer so served is not subject to demurrer for the reason that a demurrer in such case is not authorized by the statute.* § 2. Demurrer to an answer containing denials. — It is only where the answer contains new matter that a demurrer will lie. There can be no demurrer to a denial of the allegations of the complaint however defective it may be.^ The suiEcieney of a denial in an answer cannot be tested by demurrer." It has been held that a defense containing a general denial is not demurrable.' And while this rule of pleading is conceded, it has also been held that the proposition that a demurrer never lies to a pleading which contains denials to the complaint, is too broad; and that a demurrer may be well taken to a counter- claim containing denials where the effect of the denials is to negative the existence of any relation between the defendant and 'the plaintiff and to show that the cause of action relied upon as a counterclaim could not have arisen out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim and could not have been connected with the subject of the suit.* In such case the effect of the denials sDeWitt V. Swift, 3 How. 280; Marie v. Garrison, 83 N. Y. 14, 23; Stuart V. Blatchley, 77 Hun 425; 28 N. Y. Supp. 800. * Stuart V. Blatchley, 77 Hun 425 ; 28 N. Y. Supp. 800. 5 Lund V. Seaman's Savings Bank, 23 Hun 258; 37 Barb. 129; Rice V. O'Connor, 10 Abb. 362; Smith v. Greenin, 2 Sandf. 702; Maretzeck v. Cauldwell, 2 Eob. 715; 19 Abb. 35; Ketcham v. Zerega, 1 E. D. Smith 553; Coddington v. Union Trust Co., 36 Misc. 396; 73 N. Y. Supp. 710; Galbraith v. Daily, 37 Misc. 156; 74 N. Y. Supp. 837. e Dunlap v. Stewart, 75 N. Y. Supp. 1085. 'Fletcher v. Jones, 64 Hun 274; 19 N. Y. Supp. 47; Wintringham v. Whitney, 1 App. Div. 219; 37 N. Y. Supp. 188. - 8 Wintringham v. Whitney, 1 App. Div. 219; 37 N. Y. Supp. 188. 448 Demukeee to the Answer. Demurrer to answer containing denials. is to remove the defendant's pleading from the class of author- ized counterclaims ; and as the defendant has chosen to incor- porate them in his counterclaim he cannot successfully object to the consideration of the denials as a proper part thereof." Where denials are improperly incorporated in and pleaded with and as a part of matters set up as a defense to cause of action stated in the complaint, the remedy of the party ag- grieved by such improper mode of pleading is in the first in- stance by motion; for so long as the denials thus remain a de- murrer will not lie even though the other matter pleaded does not constitute a defense. '■° The denials and the matter pleaded as a defense must be considered as a whole and a demurrer will not lie to the part only consisting of new matter. ^^ After the pleading improperly containing denials mingled with matters pleaded as a defense has been corrected by motion, the plaintiff may then resort to his remedy by way of demurrer.^^ The fact that the matter pleaded as a defense could be proved under a general denial does not make such matter demur- rable.^' Where the answer sets up an affirmative defense in one count and denials in another, and a demurrer is interposed to the count containing the afiirmative defense only, the sufficiency in law of the defense so pleaded is to be determined by what appears therein. The allegations of the complaint not denied in the affirmative defense are for the purpose of deciding the demurrer to be deemed admitted. The affirmative defense is 9 Wintrlngham v. Whitney, 1 App. Div. 219. loUggla V. Brokaw, 77 App. Dlv. 310. iiKager v. Brenneman, 33 App. Div. 452; 54 N. Y. Supp. 94; Colvin V. Martin, 68 App. Div. 633; 74 N. Y. Supp. 11; Hollingsworth v. Spectator Co., 53 App. Div. 291; 66 N. Y. Supp. 1133; New Jersey Steel & Iron Co. V. Robinson, 60 App. Div. 69 ; Holmes v. Northern Pacific Ry. Co., 65 App. Div. 49. But see Carpenter v. Mergert, 39 Misc. 634; Green v. Brown, 22 Misc. 279; 49 N. Y. Supp. 163. 12 Stieffel V. Tolhurst, 55 App. Div. 532 ; 67 N. Y. Supp. 274. lastaten Island Midland R. R. Co. v. Hinchcliffe, 170 N. Y. 473; Kraus v. Agnew, 80 App. Div. 1. Demuekee to the Answer. 449 Demurrer for insufficiency. to be treated as a separate plea, and the defendant is not en- titled to have the benefit of denials made in another part of the answer unless repeated or incorporated by reference and made a part of the affirmative defense.^* § 3. Demurrer for insufficiency. — The provision of the Code of Civil Procedure/^ that the plaintiff may demur to a counter- claim 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 constitute a counterclaim or de- fense." ^^ 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 requirements of that act may be said to be insufficient. It has been suggested, though not determined, that a count in an an- swer which assumes to set up new matter in avoidance of the charge in the complaint, 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 de- murrer.^^ 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 partial de- fense, as required by section 508 of the Code, will be assumed, on demurrer, to have been pleaded as a complete defense, and 14 Douglass V. Phoenix Ins. Co., 138 N. Y. 209. IB N". Y. Code of Civil Pro., § 494. If N. Y. Code of Procedure, § 153. "N. Y. Code of Civil Pro., § 518. 18 Goodman v. Robb, 41 Hun 605, citing Lewis v. Kendall, 6 How. 59; Buddington v. Davis, 6 How. 401. To the contrary, see Taylor v. Eichards, 9 Bosw. 679. The only point necessarily decided in the Goodman case was that the sufficiency of a count of relevant matter could not be de- termined by motion. Uggla v. Brokaw, 77 App. Div. 310. 450 Demuebee to the Answee. For want of jurisdiction. will be held insufficient/" An answer which attempts to set up new matter as a defense, but which states no fact, but merely a conclusion of law, such as an allegation that the plaintiff is not the real party in interest, is insufficient in law upon its face, and demurrable.^" And generally, an answer which pro- fesses to set up new matter as a defense, but which does not state facts which constitute a defense, may be demurred to for insufficiency." In fact, a demurrer is the appropriate remedy by which to present to the court, for determination, the ques- tion 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 coimterclaim within the Code should be determined either by demurrer or by motion on the trial. ^ 23 8 4. Demurrer for want of jurisdiction. — 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 jurisdiction to hear and determine the cause of action so set up by the defendant if it had been made the subject of an independent action.^* But the objection that the court has no jurisdiction of the person of the defendant because there has been no proper service of a summons cannot be taken by demurrer.^'* 19 Thompson v. Halbert, 109 N. Y. 329; Matthews v. Beach, 5 Sandf. 256; 8 N. Y. 173; Ivy Courts Realty Co. v. Morton, 73 App. Div. 335. 20 White V. Drake, 3 Abb. N. C. 133; Hammond v. Earle, 58 How. 426. 21 Knox V. Commercial Agency, 40 Hun 509 ; Merrit v. Millard, 5 Bosw. 645; Fabricotti v. Launitz, 3 Sandf. 743. 22 Walter v. Fowler, 85 N. Y. 621; Hubbard v. Gorham, 38 Hun 162. 23 Walter v. Fowler, 85 N. Y. 621; Fettretch v. McKay, 47 N. Y. 426; 11 Abb. N. S. 453; Collins v. Suan, 7 Rob. 94; Westervelt v. Ackley, 62 N. Y. 505. 2* Cragin v. Lovell, 88 N. Y. 258. An equitable cause of action for an accounting is not available as a counterclaim in the City Court of New York. Meyer v. Chamberlyn, 62 N. Y. Supp. 431. 26 Bel den v. Wilkinson, 44 App. Div. 420; 7 N. Y. Ann. Cas. 48; 60 N. Y. Supp. 1083. Demueeek to the Answee. 451 To unauthorized counterclaim. § 5. That the counterclaim is not authorized by the Code. — 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 contract set forth in the complaint as the foundation of the plaintiff's claim, or that it is connected with the subject of the action.^" So a demurrer under this subdivi- sion is well taken where the action is on contract and the coun- terclaim is also on contract, and there is no allegation showing that the defendant's cause of action existed at the commence- ment of the action. ^^ So a demurrer to a counterclaim under this subdivision is well taken if, assuming that both the plaintiff and the defendant 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.^' § 6. Mode of taking the demurrer.— A demurrer to a de- fense or counterclaim taken under section 494 of the New York Code of Civil Procedure is sufficiently specific if it as- signs as a ground of demurrer that the defense or counterclaim is insufficient in law upon the face thereof.^" But where the demurrer is taken to a counterclaim upon which the defendant demands an affirmative judgment, and the demurrer is based upon the ground that it appears upon the face of the counter- claim, either that the court has not jurisdiction of the subject of the counterclaim, or that the defendant has not the legal capacity to recover upon the same, or that there is another ac- tion pending between the same parties, for the same cause, or 26 Bell V. Lesbini, 66 How. 385. See Brown v. Buckingham, 21 How 190; 11 Abb. 387. 27 Mayo V. Davidge, 44 Hun 342. 28 Grange v. Gilbert, 44 Hun 9. 29 See Otis V. Shants, 128 N. Y. 45. See Van Dyke v. Doherty 69 N W. (N. D.) 200; N. D. Rev. Code, § 5277. 452 Dbmueeee to the Answee. Mode of taking demurrer. 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 objections 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 com- plaint.^" The statutory requirement that a demurrer taken un- der section 945 of the New York Code of Civil Procedure must distinctly specify the objections to the counterclaim ap- plies only where the defendant demands affirmative judgment on his counterclaim and has no application where the defend- ant seeks to use his counterclaim for the purpose simply of extinguishing the claim of the plaintiff.'^ A demurrer to a counterclaim or a defense consisting of new matter on the ground that it is insufficient in law upon the face thereof, is practically the same thing as a demurrer imder section 495 of the Qode of Civil Procedure specifying the objection that the counterclaim does not state facts suffi- cient to constitute a cause of action. And although the counter- claim demurred to is one upon which the defendant demands an affirmative judgment, and although in strict practice the plaintiff should specify one or more of the objections mentioned in section 495 of that act, yet if the demurrer is taken upon the ground that the counterclaim is insufficient in law upon the face thereof, and the issue of law is argued and decided upon the assumption that the demurrer is sufficient in form without any objection being taken to the defect, the objection that the demurrer did not comply with the requirements of the statute as to specifying the objection to the counterclaim will be dis- regai'ded upon appeal.'^ The statute declares that the mode of specifying in the de- murrer the objections to a counterclaim demanding an affirma- 80 N. Y. Code of Civil Pro., § 496. See Ala. Code, § 2690. 31 Otis V. Shants, 128 N. Y. 45. S2 Wintringlnam v. Whitney, 1 App. Div. 219; 37 N. Y. Supp. 188. Dbmueeee to the Answer. 453 Mode of taking demurrer. tive judgment 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 chajoter.'^' An objection that a counterclaim is not of the character specified in section 501 of the Code of Civil Procedure dis- tinctly specifies the objection within the meaning of section 496 of that act.^° So the objection that the counterclaim does not state facts sufficient to constitute a cause of action must be regarded as distinctly specified within the meaning of the same section, as that mode of taking a similar objection to a com- plaint would be proper/* and must therefore be deemed a com- pliance with the requirements of the statute where the pleading demurred to is a counterclaim.'^ A demurrer to a counter- claim upon this ground should follow the language of the statute and not state that the counterclaim " does not state facts sufficient to constitute a good counterclaim." '* A demurrer upon the ground that the answer does not state facts sufficient to constitute a good answer raises no question.'' 33 N. Y. Code of Civil Pro., § 496. 34 See ante, p. 333. sBEckert v. Gallien, 40 App. Div. 525; 58 N. Y. Supp. 85; Grange V. Gilbert, 10 Civ. Pro. R. 98. But see Weeks v. O'Brien, 20 Misc. 48; 45 N. Y. Supp. 740. A counterclaim which alleges facts entitling the defendant to nominal damages only is not of the character specified in section 501 of the Code. Pecke v. Hydraulic Construction Co., 23 App. Div. 393. 36 N. Y. Code of Civil Pro., § 490. 37 N. Y. Code of Civil Pro., § 496. 38 Storrs & Harrison Co. v. Fusselman, 23 Ind. App. 293. 39Wintrode v. Renbarger, 50 N. E. 570; 150 Ind. 556; City of Tell City V. Bielefield, 20 Ind. App. 1 ; 49 N. E. 1090. The Revised Statutes of Indiana provide that the plaintiff may demur to an answer for want of facts to constitute a defense in the manner prescribed for demurring to a complaint. Burn's Rev. Stat. 1894, § 349; Rev. Stat. 1881, § 346. Under this statute a demurrer on the ground that the answer does not contain facts sufficient to constitute a defense to the complaint is sufficient. Pulse v. Osborn, 60 N. E. 374. But this would not be a good pleading under section 494 of the New York Code of Civil Procedure. MeCann v. Hazard, 36 Misc. 7; 72 N. Y. Supp. 45. 454 Dbmuebee to the Answee. Principles governing decision. A demiarrer must be directed to an entire cause of action or defense pleaded. It cannot be directed to a separate para- grapih of a pleading.*" If tbe several paragraphs of the answer are not numbered or stated as separate defenses, and the plead- ing, in form, contains but a single defense, the remedy of the plaintiff is to move to have the defenses separately stated and numbered, as in doubtful cases the answer will be construed as stating but a single defense.*^ Strictly speaking, a plaintiff demurring to several defenses contained in the same answer should interpose a separate de- murrer to each defense, as he cannot be said to have succeeded on his demurrer if it should chance to be sustained as to one defense and overruled as to the other. But even in that ease judgment may be ordered in his favor as to the demurrer to the count held defective, 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.*^ As a general rule a demurrer to an entire answer containing two counts, one of which is good and one of which is bad, will be overruled.** § 7. Principles governing the decision on demurrer. — Where new matter is set up in the answer and the answer is demurred to, all the allegations of the complaint are to be taken as true, and the" allegations of the complaint referred to in the answer *o Dexter v. Alfred, 46 St. Rep. 789; 19 N. Y. Supp. 770; Kager v. Brenneman, 33 App. Div. 452; 54 N. Y. Supp. 94; Hollingsworth v. Spectator Co., 53 App. Div. 291; New Jersey Steel & Iron Co. v. Robinson, 60 App. Div. 69. And see Bulst v. Salvo, 44 S. C. 143; Knoblaneh v. Fogglesong. 38 Minn. 459. 41 Kager v. Brenneman, 33 App. Div. 452; 54 N. Y. Supp. 94; New Jersey Steel & Iron Co. v.* Robinson, 60 App. Div. 69. See Stieglitz v. Belding, 20 Misc. 297; 44 N. Y. Supp. 1130. 42 Hollingshead v. Woodward, 35 Hun 410; Grange v. Gilbert, 44 Hun 9. 43 Ross V. Duffy, 12 St. Rep. 584. 4* See Vanhousen v. Broelil, 59 Neb. 48 ; MoUohan v. King, 58 Kans. 181; Florence v. Pattillo, 105 Ga. 577. Demueeee to the Answee. 455 Principles governing decision. are to be treated as incorporated in it; and if so read the an- swer does not set up a defense to the cause of action alleged in the complaint the demurrer, if taken upon the proper ground, must be sustained.*^ In determining the issues raised by demurrer each count of the answer demurred to will be considered separately, as if it stood alone, and must stand or fall according to the matter it contains. ""^ 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 de- fense, the question on demurrer 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 com- plaint upon the ground that the court has no jurisdiction, or upon he ground that the complaint does not state facts suffi.- cient 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 an- swer.*'* Any defense, however defective, is a sufficient answer to a complaint so radically insufficient as to call for no answer.^" A demurrer searches the whole record and relates back to the 45 Douglas V. Coonley, 156 N. Y. 521. 46 Hammond v. Earle, 58 How. 426 ; Baldwin v. United States Tel. Co., 54 Barb. 505; 6 Abb. N. S. 405; 1 Lans. 125; Ayres v. Covill, 18 Barb. 260; Spencer v. Babeock, 22 Barb. 326; Ayrault v. Chamberlain, 33 Barb. 229 ; ante, p. 345. 47 Thompson v. Hiilbert, 109 N. Y. 329. 48 N. Y. Code of Civil Pro., § 508. 49 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. 470; People V. Booth, 32 N. Y. 397; People v. Banker, 8 How. 258; Allen v. Malcolm, 12 Abb. N. S. 335; Harvey v. Brisbin, 16 St. Rep. 42; 50 Hun 376 ; Clay County v. Simonsen, 1 Dak. Ter. 403. 50 Strauss v. Trotter, 6 Misc. 77; 26 N. Y. Supp. 20; Morey v. Ford, 32 Hun 448; Allen v. Malcolm, 12 Abb. N. S. 335. 456 Demueeee to the Answer. Principles governing decision. murrer to the answer will be overruled.^^ In many of the other States, although not in all, this doctrine is recognized and en- forced.^^ Where the complaint contains two counts, and the defense demtirred to is general so that it applies to either, the demurrer will be examined upon the merits unless both counts of the complaint are defective ; hut if neither of the counts sets forth a cause of action, the sufficiency of the pleading demurred to cannot be considered.^^ 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 may be subject to a possible exception in case the allegations of the complaint attacked as insufiicient are expressly admitted in some part of the answer not demurred to ; ^* and to the limitation that when a defend- ant to whose pleading a demurrer has been interposed, 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 first fatally defective pleading, and if on the argument of the demurrer it appears that the complaint is insufficient the de- 51 Clark V. Poor, 73 Hun 143 ; 25 N. Y. Supp. 903 ; Metzger v. Carr, 79 Hun 258; 29 N. Y. Supp. 410; King v. Townshend, 78 Hun 380; 29 N. Y. Supp. 181; People v. Booth, 32 N. Y. 397; Village of Little Falls v. Cobb, 80 Hun 20; 29 N. Y. Supp. 855; Fleisher v. Farmers' Loan & Trust Co., 58 App. Div. 473; 69 N. Y. Supp. 437; Holmes v. Northern Pacific Ry. Co., 65 App. Div. 49; National Bank of Republic v. Thurber, 39 Misc. 13; Tuthill V. Citfy of New York, 29 Misc. 555; 61 N. Y. Supp. 968; Gross V. Gross, 56 N. Y. Supp. 70; 26 Misc. 385. 62 Western Assurance Co. v. Koontz, 17 Ind. App. 54; 46 N. E. 95; West Point Water-Power & Land Imp. Co. v. State, 49 Neb. 223 ; Knight v. Barnes, 7 N. D. 591; 75 N. W. 904; Johnson v. Wynne (Kan.), 67 Pae. 549; Scott V. State, 89 Ind. 368; Dorrell v. Hannah, 80 Ind. 497; Menifee V. Clark, 35 Ind. 304; West v. Bowen, 45 Miss. 347; Commonwealth v. Kttsburgh, etc., R. R. Co., 58 Pa. St. 26; Lockwood v. Bigelow, 11 Minn. 113; Wile v. Sweeney, 2 Duval 161; Leslie v. Harlow, 18 N. H. 518 ; Ward v. Stout, 32 HI. 399 ; Balcombe v. Northup, 9 Minn. 172 ; Lawe V. Hyde, 39 Wis. 345. 03 Baxter v. McDonnell, 154 N. Y. 432. 04 Reeves v. Bushby, 25 Misc. 226; 55 N. Y. Supp. 70; Village of Little Falls v. Cobb, 80 Hun 20; 29 N. Y. Supp. 855. The Eeply. 457 When a reply ia necessary. 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.^° Thus, where the plaintiff has demurred to the defendant's answer the latter cannot, on the argument of the demurrer, attack such allegations of the complaint as he has by his answer either admitted or denied.^* So upon de- murrer to the answer the complaint cannot be challenged for mere formal defects, but only for substantial insufHciency,"^ and a defect for which the complaint would be condemned on demurrer will be obviated by an allegation of the requisite fact in the answer."' § 8. Effect of omission to demur. — The failure to demure to a counterclaim or to specifically object thereto by answer is not a waiver of an objection to the counterclaim. The section of the Code providing for such waiver relates only to defects in the complaint "and a waiver by the defendant."" CHAPTER XIII. The Reply. Sectiow 1. When a reply is required to form an issue. — In the great majority of the States in which the reform system of pleading has been adopted, a reply is an authorized pleading, and indeed a necessary pleading where the plaintiff desires B5 Wheeler v. Curtis, 11 Wend. 654; Morey v. Ford, 32 Hun 448. BsMorey v. Ford, 32 Hun 446. 57 Strauss v. Trotter, 6 Misc. 77 ; 26 N. Y. Supp. 20. 58 Cohn V. Husson, 113 N. Y. 662; Haddow v. Luudy, 59 N. Y. 328; Pratt V. Hudson River R. R. Co., 21 N. Y. 305, 313; Bate v. Graham, 11 N. Y. 237 ;. Strauss v. Trotter, 6 Misc. 77 ; 26 N. Y. Supp. 20 ; Lyon v. Logan, 68 Texas 521; Henry v. Sneed, 99 Mo. 407. 58 Lipman v. Jackson Architectural Iron Works, 128 N. Y. 58 ; Dinan V. Coneys, 143 N. Y. 544; Sugden v. Magnolia Metal Co., 58 App. Div. 236; 68 N. Y. Supp. 809. 458 The Eeplt. When a. reply is necessary. to controvert a counterclaim set up in the defendant's answer, as in the absence of a reply the counterclaim will be deemed admitted.^ But a reply is not an authorized pleading Lq all such States. In California the only pleadings allowed on the part of the plaintiff are the complaint and the demurrer to the answer.^ But it is there provided that where the defendant has filed a cross-complaint seeking affirmative relief the parties upon whom it is served may demur or answer thereto as to the original complaint/ In no other case is a pleading in the nature of a reply recognized in that State.* Under the New York Code where the answer of the defend- ant contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim.^ So where an 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 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 ease of a counterclaim.^ In many of the States which have adopted the reformed system of plead- ing no reply is authorized or required, except when ordered IN. Y. Code of Civil Pro.,»§ 522; Utah Rev. Stat., § 2981; Dunham V. Travis, 25 Utah 65; Mo. Rev. Stat. 1899, §§ 607, 608; Mont. Code of Civ. Pro., §§ 720-723, 754; Huber Mfg. Co. v. Hunter, 87 Mo. App. 50. 2 Cal. Code of Civil Pro., § 422. The Code further provides that the statement of any new matter in the answer, in avoidance or con.stituting a, defense or counterclaim, must, on the trial, be deemed controverted by the opposite party. Cal. Code of Civil Pro., § 462. Under this system of pleading the plaintiff is not required to reply to any new matter or affirmative defense set up in the answer, but it Is deemed to be denied and may be met by any competent proof. Rankin v. Sisters of Mercy, 82 Cal. 88. 8 Cal. Code of Civil Pro., § 442. 4 Moore v. Copp, 119 Cal. 429. B N. Y. Code of Civil Pro., § 514. 6 N. Y. Code of Civil Pro., § 516. This proceeding by motion is not authorized in Arkansas, Minnesota or Wisconsin. 7 N. Y. Code of Civil Pro., §516. The Eeply. 459 When a reply is necessary. by the court, unless the answer sets up a counterclaim.* In other States a reply is required to all new matter in the answer whether pleaded in avoidance or by way of counterclaim." In ISTew York a defense by way of new matter not constitute ing a counterclaim is deemed controverted/" and the plaintiff, without pleading, may traverse or avoid it and is entitled to the benefit of every possible answer to it the same as if pleaded. FoT that purpose evidence admissible under the principles of either law or equity takes the place of pleading.^^ In that State no reply is required where the answer sets up new matter which is therein pleaded as a " defense," at least if there be any doubt whether a counterclaim was intended ; ^^ or where the new matter is not set up as a counterclaim and the defend- ant avers his intention to recoup his damages against any liability which might be proved against him ; ^^ or where the defense of set-off is pleaded ; ^* or where the answer sets up 8 This is the rule in New York, Arkansas, North Carolina, South Carolina, Minnesota, Montana, Indian Territory, Wisconsin. See Equitable Life Assurance Society v. Cuyler, 75 N. Y. 511; Devlin v. Bevins, 22 How. 290; Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Deering v. City of N. Y., 51 App. Div. 402; 64 N. Y. Supp. 606; Cockerill v. Loonam, 36 Hun 353; Lafond v. Lassere, 26 Misc. 77; 56 N. Y. Supp. 358; Walker v. American Central Ins. Co., 143 N. Y. 167; Farrell v. Amberg, 8 Misc. 220; 28 N. Y. Siipp. 564; McElwee Mfg. Co. v. Trowbridge, 68 Hun 28; 22 N. Y. Supp. 674; Babeock v. Ma.xwell, 21 Mont. 507; Egan V. Bissell, 54 S. C. 80; Cannon v. Davies, 33 Ark. 56; Watson v. Johnson, 33 Ark. 737; Ind. Terr. Ann. Stat. 1899, § 3248; Wis. Eev. Stat. 1878, § 2661; N. C. Code, 1883, § 248; S. C. Code of Civil Pro., § 170; Minn. Code, § 83. 9 Tliis is the rule in Indiana, Kansas, Missouri, Nebraska, Ohio and Oregon. 10 N. Y. Code of Civil Pro., § 522. 11 Arthur v. Homestead Eire Ins. Co., 78 N. Y. 462. "Bates V. Rosekrans, 37 N. Y. 409; 4 Abb. N. S. 276; Equitable Life Assurance Society v. Cuyler, 75 N. Y. 511; Simmons v. Kayser, 11 Jones & Sp. 131; Lafond v. Lassere, 26 Misc. 77; 56 N. Y. Supp. 459; Wood V. Gordon, 38 St. Rep. 455; 13 N. Y. Supp. 595; Morris, Tasker & Co. v. Chamberlin, 38 St. Rep. 476; 14 N. Y. Supp. 702. 13 Cockerill v. Loonam, 36 Hun 353 ; Farrell v. Amberg, 8 Misc. 220. 1* American Dock & Imp. Co. v. Staley, 8 Jones & Sp. 539; McElwee 460 The Reply. When a reply is necessary. payment as a counterclaim and demands judgment for costs; ^^ or where matter is pleaded as a partial defense/" In an ac- tion to recover possession of a chattel where the answer con- tains 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 property an allegation in the answer that the plaintiff saw the property in the possession of the defendants, and knowing that they were making and contemplated continu- ing repairs thereon, omitted to disclose his title thereto, and claiming that the plaintiff is thereby estopped from claiming the property except subject to the lien for repairs, needs no reply.^' So where one of several defendants alleges in his an- swer that he has acquired the interest of the plaintiff in the subject-matter of the action and asks judgment that he be de- clared the lawful ovmer thereof, and that the prayer of the complaint be granted for his benefit, no reply is required from the other defendants upon whom the answer has been served.^^ Where an action is brought for services rendered and the de- fendant has pleaded a settlement and discharge as a defense no reply is necessary.^" So no reply is necessary to an answer Mfg. Co. V. Trowbridge, 68 Hun 28; 52 St. "Rep. 64; 22 N. Y. Supp. 674; Hatzel V. Hoflfman House, 2 App. Div. 120; 37 N. Y. Supp. 598; Farrell V. Amberg, 8 Misc. 220; 28 N". Y. Supp. 564. 15 Burke v. Thorn, 44 Barb. 363; Farrell v. Amberg, 8 Misc. 220; 28 N. Y. Supp. 564. See also Scott v. Stockwell, 65 How. 249 ; Kirk v. Wood- bury County, 55 Iowa 190. i6Deering v. City of New York, 51 App. Div. 402; 64 N. Y. Supp. 606. 17 De Leyer v. Michaels, 5 Abb. 203. 18 Rogers v. King, 66 Barb. 495. 19 Havana City Ry. Co. v. Ceballos, 49 App. Div. 421; 63 N. Y. Supp. 422. It was held in this case that where one of several defendants has interposed a demurrer to the complaint which is sustained, another defendant is not entitled to judgment upon the pleadings against his co-defendants because of their failure to reply to a demand for affirmative relief set up in his answer served upon them. 20Maricle v. Brooks, 21 St. Rep. 534; 5 N. Y. Supp. 210. The Keplt. 461 Requisites of a reply. alleging that the plaintiff is not the real party in interest,"'- or setting up a release/' or a discharge 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 defendant's fraudulent repre- sentations 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 aflBrmative cause of action against the plaintiff which is barred by the statute of limitations, the stat- ute should be pleaded in reply."" In those States in which a reply is required to all new matter in the answer, whether pleaded by way of avoidance or counter- claim, many of the limitations stated above will have no ap- plication. § 2. Requisites 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.^^ 21 Johnson v. White, 6 Hun 587. 22Dambmaiin v. Schulting, 4 Hun 50. 23Argall V. Jacobs, 21 Hun 114; 87 N. Y. 110. 2'iFreund v. Paten, 10 Abb. N. C. 311. 25 Leslie v. Leslie, 11 Abb. N. S. 311. 2e Williams v. Willis, 15 Abb. N. S. 11; Clinton v. Eddy, 54 Barb. 54; 1 Lans. 61; Von Sachs v. Kretz, 10 Hun 95; 72 N. Y. 548. 27 N. Y. Code of Civil Pro., § 514. See Hill's Ann. Laws (Oregon), § 76; Cobbey v. Knapp, 23 Neb. 579. The plaintiff may deny all or a part of the counterclaim. Williams v. Williams, 14 Misc. 79; 35 N. Y. Supp. 263. 462 The Reply. Requisites of a reply. The Code authorizes the plaintiff to deny or to set forth new matter constituting a defense. It does not authorize the plain- tiff 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. The reply must set forth something more than the legal con- clusions of the pleader,'*" and should not repeat the averments of the complaint or petition.^^ At the same time the matter set up in the reply must not be inconsistent with the cause of action alleged in the prior pleading on the part of the plain- tiff.^^ Where the plaintiff sues upon a definite contract, which is in writing and made a part of the complaint, and alleges performance of this contract without alleging any alteration or modification in the specifications of the work to be done there- under, and the defendant answers, and by way of counterclaim seeks to recover damages for a failure so to perform the eon- tract, new matter in reply which seeks to change the contract sued on and to set forth an entirely different contract by alleg- ing "a modification thereof is clearly inconsistent with the com- plaint and the theory of the plaintiff's cause of action. The 28 Cohn V. Husson, G6 How. 150; Savage v. Aiken, 21 Neb. 605; Lillien- thal V. Hotaling Co., 15 Oregon, 371; Shaw v. Jones, 156 Ind. 60; Fitz- gerald V. Rightmeyer, 12 Misc. 186; 33 N. Y. Supp. 593; Eidlitz v. Rothschild, 87 Hun 243; 33 N. Y. Supp. 1047. 29 N. Y. Code of Civil Pro., § 517. 30 Teunis v. Barnes, 11 Colo. App. 196. aiWest V. West, 46 S. W. (Mo.) 139. 32 Wm. H. Frank Brewing Co. v. Hammersen, 22 App. Div. 475; 48 N. Y. Supp. 30. The Keplt. 463 Reply required by the court. plaintiff will not be permitted to amend his complaint by means of a reply."* While a reply should conform to all the requirements of the statutes and rules of pleading it is well to remember that a bad reply is good, enough for a bad answer."^ § 3. Reply 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 applica- tion "" 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 gi'anting 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 limitations.^" Whether a reply will be ordered or not necessarily depends upon the facts in each case, and no hard 33Eidlitz V. Rothschild, 87 Hun 243; 33 N. Y. Supp. 1047. 34 Manifold v. Jones, 117 Ind. 212; Haynes v. Cox, 118 Ind. 184. If the plaintiff seeks to controvert the facts stated in the defendant's counterclaim he should insert in his reply a denial In the form authorized by the Code ; for while a, reply stating that the defendant " alleges that he denies all and singular the allegations in said answer which sets up a counterclaim " may be held sufficient on demurrer, it is not favorably regarded by the courts. See Perry v. Levenson, 82 App. Div. 94. 85 N. Y. Code of Civil Pro., § 516. 36 McDonald v. Davis, 1 Law Bull. 20. 37 Adams v. Roberts, 62 How. 253. 38 Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. 207. 39 Poillon V. Lawrence, 11 Jones & Sp. 385. 40Hubbell v. Fowler, 1 Abb. N. 8. 1. 464 The Eeplt. Effect of failure to reply. and fast rule can be formulated applicable to all. Wliere the purpose of the motion is solely to avoid the necessity of taking testimony by commission in support of the defenses set up in the answer, the denial of the motion is proper.*^ It will not be granted when its only object is to relieve a defendant from the necessity of proving the facts which he has set up as a de- fense by way of avoidance.*^ But when a reply is necessary to prevent surprise and promote the interests of justice it should be ordered.*" § 4. Effect of a failure to reply. — If the plaintiff fails to re- ply or demur to a counterclaim contained in the answer, the defendant 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 prescribed in chapter eleventh of the Code where the plaintiff applies for judgment.** Each ma- terial allegation of nev? 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 counterclaim which does not fall within the Code definition of, a counterclaim, 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 him- self of the provisions of section 515 of the Code, above quoted.*' But the defendant cannot lay by until after the trial and then, iiToplltz V. Garrigues, 71 App. Div. 37. 42 Mercantile Nat. Bank v. Corn Exchange Bank, 73 Hun 78; 57 St. Rep. 134. 13 Toplitz V. Garrigues, 71 App. Div. 37. *4 N. Y. Code of Civil Pro., § 515. 15 N. Y. Code of Civil Pro., § 522 ; Clinton v. Eddy, 1 Lans. 61 ; 54 Barb. 54; Randolph v. Mayor, 53 How. 68. See ante, p. 457. lOMcKensie v. Farrell, 4 Bosw. 192; Spofford v. Rowan, 124 N. Y. 108. 17 Bridge v. Payson, 5 Sandf. 210. Demueeee to the Reply. 465 Grounds, scope and effect of the demurrer. on appeal, for the first time claim that his answer contains a counterclaim which is admitted by not being replied to.** CHAPTEE XIV. Demueeee to the Eeplt. Section 1. The remedy by demurrer, and its scope and effect. — The defendant may demur to the reply, or to a separate traverse to or avoidance of a defense or counterclaim contained in the reply, on the ground that it is insufficient in law upon the face thereof. '^ The general rules relating to a demurrer to an answer apply to a demurrer to a reply. Irrelevant matter in the reply can- not be reached by demurrer. The remedy is by motion.^ The word " insufficient " as used in section 493 of the Code 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 it is not clear from the language used in the reply whether the plaintiff intended to deny all of the allegations of the defendant's counterclaim or only a portion thereof, the remedy of the de- fendant is not by demurrer but by motion to make the language of the reply more definite and certain.^ If the reply sets up *8Muldoon V. Blackwell, 84 N. Y. 646. IN. Y. Code of avil Pro., § 493. 2 Ludington v. Slauson, 6 Jones & Sp. 81. 3 White V. Joy, 13 N. Y. 83, 90; Eidlitz v. Rothschild, 87 Hun 243; 33 N. Y. Supp. 1047. * Williams v. Williams, 14 Misc. 79; 35 N. Y. Supp. 263; Del Valle v. Navarro, 21 Abb. N. C. 136. 466 Demueeee to the Reply. Grounds, scope and eflfeet of the demurrer. several defenses to the defendant's counterclaim and the de- fendant demurs to the entire reply, his demurrer must be overruled if any distinct count of the reply is good, however bad the residue may be.^ Under the old practice before the Code a demurrer to a replication presented the record to the view of the court so that if the record showed one party ought to succeed it would be unnecessary to proceed to a trial of the facts." The same theory was retained by the Code of Procedure and by the present Code; and on the argument of the demurrer to the reply the plaintiff may assail the answer, and if it is radically defective jiidgment may be ordered for the plaintiff notwith- standing the defects demurred to.' The rule is that upon the hearing of the demurrer all previous pleadings may be exam- ined and judgment may be rendered against the party who com- mitted the first fault in pleading in matter of substance', whether that party be plaintiff or defendant.* And where on an appeal from an interlocutory judgTaent, entered upon an order overruling a demurrer to a reply, the judgment is re- versed, the fact that the answer is not free from defect may be considered in the allowance of the costs of the appeal." 5Gearon v. Sacks, 21 App. Div. 5; 47 N. Y. Supp. 264. Lipe V. Becker, 1 Denio 568; Mereein v. Smith, 2 Hill 210; Gelston V. Burr, 11 Johns. 482; Griswold v. National Ins. Co., 3 Cow. 96; People V. Byron, 3 Johns. Cas. 53. ^Halliday v. Noble, 1 Barb. 138; Balz v. Underbill, 19 Misc. 215; 44 N. Y. Supp. 419. By replying to a counterclaim the plaintiff 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. Goo; Livingston v. Muller, 8 N. Y. 283. sHenrigues v. Yale University, 28 App. Div. 354; 51 N. Y. Supp. 284. Croome v. Craig, 53 Hun 350; G N. Y, Supp. 136. Seevice and FiLiivTo OF Pleadings. 467 Time limited for service. CHAPTER XV. Service and Filing oi? Pleadings Undee the jSTew York Code. Section 1. Time of service of the 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 defendant at the time of the delivery of a copy of the sum- mons to him, either within or without the State, his attorney, at any time within twenty days after the service of the sum- mons 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 thereafter,' if the demand is served personally, or within forty days thereafter, if the demand is served by mail.* If, after such demand, 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 com- plaint.^ § 2. Time of service of the answer or demurrer. — A defend- ant, upon whom the plaintiff has served, with the summons, a copy of the complaint, must serve a copy of his demurrer or answer upon the plaintiff's attorney, before the expiration of the time within which the summons requires him to answer," 1 N. Y. Code of Civil Pro., § 419. 2N". Y. Code of Civil Pro., § 440. 3 N". Y. Code of Civil Pro., § 479. *N". Y. Code of Civil Pro., § 798. 5 N. Y. Code of Civil Pro., § 480. 6N. Y. Code of Civil Pro., § 422. 468 Service and Filing of Pleadings. Time limited for service. namely, within twenty days after the service of the summons, exclusive of the day of service.' A defendant, who has been arrested before 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 accordingly." The defendant cannot answer a complaint vsdth 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- clusive of the day of service, a notice of appearance, ^^ and a written demand of a copy of the complaint. The demand of a copy of the complaint may be incorporated into the notice of appearance.^^ The complaint must be served upon the defend- ant's attorney within twenty days after the service of the de- mand,^" or within forty days, if the demand was served by mail.^* Having thus served a copy of the complaint, the de- fendant, 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 com- plaint 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 vdthin or without the State, must be made within twenty days after the service of the sum- 7N. Y. Code of Civil Pro., § 418. 8 N. Y. Code of Civil Pro., § 551. ON. Y. Code of Civil Pro., § 566. 10 Phillips V. Prescott, 9 How. 430. 11 N. Y. Code of Civil Pro., § 421. 12 N. Y. Code of Civil Pro., § 479. 13 N. Y. Code of Civil Pro., § 479. 14 N. Y. Code of Civil Pro., § 798. 15 N. Y. Code of Civil Pro., § 520. 10 N. Y. Code of Civil Pro., § 798. Service and Filing of Pleadings. 469 Time limited for service. mons is complete.^^ For the purpose of reckoning the time within which the defendant must appear or answer, service hj puhlication is complete upon the day of the last publication, pursuant to the order; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed for publication.^^ 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 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 at- torney of each of the defendants to be affected by the determi- " N. Y. Code of Civil Pro., § 479. 18 N. Y. Code of Civil Pro., § 441. 19 N. Y. Code of Civil Pro., § 787. 20 N. Y. Code of Civil Pro., § 440. 21 Market Nat. Bank v. Pacific Nat. Bank, 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 Vech- ten, 6 How. 199; Kerner v. Leonard, 15 Abb. N. S. 06; Abrams v. Mitchell, 8 Abb. 123. 22 N. Y. Code of Civil Pro., § 479. 470 Sebvice and Filing of Pleadings. Extension of time to plead. 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.^'* § 3. Time of service 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 within 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, 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 gTanting 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 attorneys 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 wi-iting, subscribed by the party against whom the same shall be alleged, or by his attorney or coimsel.^^ ■ 23 N. y. Code of Civil Pro., § .T21. 24 N. y. Code of Civil Pro., § rrlO. 25 N. Y. Code of Civil Pro., § 798. 20 N. Y. Code of Civil Pro., § .516. 27 Braistod v. Johnson, 5 Sandf. 671. 28 Rnle 11, Supreme Ct. Service and Filing of Pleadings. 471 Extension of time to plead. 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 application has been made and denied, the party may ob- tain 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 commencement, 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 action. ^^ No notice of the application need be given to the adverse party, '"' unless the time to serve the plead- ing has been extended by stipulation or order for twenty days,^^ or unless the application is for an order extending the time to answer 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 on demand or at a particular time,^" in either of which cases notice of the application must be given. Where the application may be made ex parte, it 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 the county judge of the county where the action is triable or in which the attorney for the applicant resides,''^ and in case the action is pending in the County Court the application may be made to a justice of the Supreme Court."* If the application is made without notice to the adverse party the affidavit of the moving party must state whether any previous application has been made for an order extending the time to plead, and, if made, to what court or judge, and what order or decision was made thereon, and 29 N. Y. Code of Civil Pro., § 781. See Cal. Code of Civ. Pro., § 473. 30 Whitlock V. Curtis, 1 Code R. 96; Condon v. Church of St. Augu.stine, 14 Misc. 181; 35 N. Y. Supp. 382; Travis v. Travis, 48 Hun 343, 346. 31 Rule 24, Supreme Ct. 32 N. Y. Code of Civil Pro., § 1778. 33 N. Y. Code of Civil Pro., § 772. 3* N. Y. Code of Civil Pro., § 3.54. 472 Seevigb and Filing of Pleadings. Extension of time to plead. what new facts i£ any are claimed to be shown. ''^ ISTo order extending the defendant's time to answer or demur will be granted unless the party applying for such order shall present to the judge to whom the application is 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 state- ment 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 caiise of action set forth in the complaint, or to some part thereof. The affidavit must also state the cause of action and the relief demanded in the com- plaint, and whether any and what extension or extensions of time to answer or demur have been granted by the stipulation or order. Where any extension has been had the date of the issue vnll be the same as though the answer had been served when the time to answer first expired. When the time to serve any plead- ing has been extended by stipulation or order for twenty days no further time will be granted by order, except upon two days' notice to the adverse party of the application for such order.'" The Code provides that in' an action against a foreign or do- mestic corporation to recover damages for the non-payment of a promissory note, or other evidence of debt for the absolute paym.ent 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 does not apply to an action brought against a corporation as an indorser,*** or guarantor,^" nor to an action upon a policy of life or fire insurance payable only upon speci- 35 Rule 25, Sup. Ct. 80 Rule 24, Sup. Ct. 37 N. Y. Code of Civil Pro., § 1778. 38 Shorer v. T. P. & P. Co., 119 N. Y. 483. soCanavello v. Michael & Co., 31 Misc. 170; 63 N. Y. Supp. 967. Service and Filing of Pleadings. 473 Extension of time to plead. fied 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 corporar tions, including municipal corporations.*^ 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 application 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 afHdavit. 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 equivalent, it may be disregarded as if the order had been granted without an affidavit of any kind,*" though it has also been held that such 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 «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. Mtna, Fire Ins. Co., 2 Wend. 280. ^1 Bradley v. Albemarle F. Co., 2 Civ. Pro. R. 50. 42 Moran v. Long Island City, 101 N. Y. 439. *3 Hays V. Berryman, 6 Bosw. 679. 4* N. Y. Code of Civil Pro., § 782. 45Quinn V. Case, 2 Hilt. 467. 16 Ellis V. Van Ness, 14 How. 313; Graham v. Pinckney, 7 Rob. 147. Contra, Davenport v. Sniffen, 1 Barb. 223. 47 Campbell v. American Zylonite Co., 21 Jones & Sp. 131. 474 Seevice aitd Eiling of Pleadings. Mode of service. to answer, is sufficient to prevent the plaintiff from regularly entering 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 already existing, and not twenty days from the date of the stipulation or order/" By obtaining an extension of time to answer the defendant extends the time of the plaintiff to serve an amended com- plaintj^" and also waives irregularities in the complaint, "^^ admits that it is sufficient to require an answer or demurrer,°^ and supersedes a prior noticed motion to strike out portions of the complaint,^' unless he saves the right by a proper reservation or provision in the stipulation or order/* It has been held that under a stipulation or order extending the time to " answer " the defendant may serve a demurrer in- stead of an answer at any time within the extended period, "^^ and while it is possible that this is a correct statement of the practice, it is advisable for the defendant, in order to avoid all questions as to the intent and meaning of the consent or order, to expressly provide in it for an extension of time to demur. An order extending the time to answer, although irregular, will be operative if no appeal is taken or motion to vacate it is made.^" § 5. Mode of service. — All pleadings are served by copy,^^ and all copies served must be fairly and legibly written and 48 Schuhardt v. Roth, 10 Abb. 203. ■loPattison v. O'Connor, 23 Hun 307; 60 How. 141. 60 Albert Palmer Co. v. Shaw, 64 How. 80. Bi Garrison v. Carr, 34 How. 187; 3 Abb. N. S. 206; Hollister v. Living- ston, 9 How. 140. 52 Smith V. Piister, 39 Hun 147; Brooks v. Hanchett, 21 Week. Dig. 267; 36 Hun 70. e.? Marry v. Jones, 34 How. 238; BoT\Tnan v. Sheldon, 5 Sandf. 657. 54 Lackoy v. Vanderbilt, 10 How. 155. 65 Brodhead v. Brodhead, 4 How. 308. ooMoran v. Helf, 52 App. Div. 481 ; 65 N. Y. Supp. 113. 67 See N. Y. Code of Civil Pro., §§ 419, 479, 480, 520. Seevice and Filing oe Pleadings. 475 Mode of service. numbered 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 fac 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 cured 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-ofiice, by depositing the paper, properly inclosed in a post-paid wrapper, in the post-ofiice or in any post-ofiice box regularly maintained by the government of the United States and under the care of the post-ofiice of the party, or the attorney serving it, directed to the person to be served at the address, within the State, desig- nated 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 residence, or the place where he keeps an ofiice, according to the best information which can conveniently be obtained con- cerning the same. 58 Rule 19, Sup. Ct. ; N. Y. Corle of Civil Pro., § 796. 5» Trowbridge v. Didier, 4 Duer 448. 60 Graham v. MeCoun, 5 How. .3.53; Hughes v. Wood, 5 Duer 603. 61 N. Y. Codo of Civil Pro., § 479. 62 See N. Y. Code of Civil Pro., §§ 520, 799. 63 See N. Y. Code of Civil Pro., § 796. 476 Sjsevige and Filing of Pleadings. Mode of service. "2,. Upon an attorney, during iiis absence from his otfice, Dy leaving the paper with his partner or clerk therein, or with a person having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a con- spicuous 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 posti-office of that city."' Service by mail, when made in the manner prescribed by the Code, is complete when the pleading is deposited in the post- office, whether it reaches its destination or not."' The fact tiat 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 ser^nce by mail is good though the pleading be 64 N. Y. Code of Civil Pro., § 797. 05 N. Y. Code of Civil Pro., § 800. 00 N. Y. Code of Civil Pro., § 801. See Gillespie v. Satterlee, 18 Misc. 606; 42 N. Y. Supp. 463. 07 Miller v. Shall, 67 Barb. 446. osGaffney v. Bigelow, 3 Abb. N. C. 311, reversing 48 How. 475. Seevice and Filing of Pleadings. 477 Papers accompanying pleadings served. deposited in the post-ofEce 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 on the same day or by the first mail on the next.'" But this holding imposes a limitation upon service by mail not con- tained 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 pos1>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 au- thorizing 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 re- cover 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 69 Elliott V. Kennedy, 26 How. 422 ; Noble v. Trotter, 4 How. 322. '"> Green v. Howard, 14 Hun 434. This decision was made upon a mo- tion 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 mo- tion 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. A deposit in a mail box prior to the last regular trip for the collection of mail matter from the mail boxes is sufficient. Vernon v. Gillen Printing Co., 16 Misc. 507; 39 N. Y. Supp. 172. n Van Benthuysen v. Lyle, 8 How. 312. 72 Schenck v. McKie, 4 How. 246. 73 N. Y. Code of Civil Pro., § 440. 478 Seevice and Filing of Pleadings. Filing pleadings. unless the order is so served, the plaintifE 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 judg- ment is necessary. '^^ This provision applies to municipal cor- porations as well as 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 policy of life or fire insurance,'' nor to demands partly within and partly without the statute, such as a demand upon a promissor)- 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 coimty, 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 sum- mons 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 ad- verse 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 al- 74 N. y. Code of Civil Pro., § 1778. 76 Hutson V. Morrisania Steamship Co., 12 Abb. N. C. 278. T6 Moran v. Long Island City, 101 N. Y. 439. 77 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., 2 Wend. 280. 78 Bradley v. Albemarle F. Co., 2 Civ. Pro. P. 50. See ante, p. 472. 7» N. Y. Code of Civil Pro., § 986. 80 N. Y. Code of Civil Pro., § 824. Seevice ahd Filing of Pleadings. 479 Filing pleadings. most universally disregarded, and in practice, pleadings are seldom filed until incorporated in a judgment-roll, or used upon some application 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 corrected.*^ If the action is pending in the Supreme Court, the pleadings should be filed in the ofiice of the clerk of the county in which the action is triable. If the action is pending in any other court, 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 affidavit showing that the paper has not been filed, or upon a certificate of the clerk, under his hand and official seal, that he has made diligent examination in his office 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 application 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 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 plead- ing be filed within a time specified, or be deemed abandoned. Where a summons is served by publication, the summons, complaint 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 publication.*^ 81 Short V. May, 2 Sandf. 639. 8= N. Y. Code of Civil Pro., § 3343, subd. 4 ; Rule 2, Sup. Ct. In actions relating to real property where the filing of a. notice of the pendency of the acfion is important as a protection to the rights of the party, the filing of the complaint or answer before judgment may be necessary, as the notice cannot be filed before the filing of the complaint. See N. Y. Code of Civil Pro., §§ 1670, 1673, 1526, 1557, 1645, 646, 1631, 1632, 2751. 83 See N. Y. Code of Civil Pro., § 921. 84 See N. Y. Code of Civil Pro., § 772. 85 N. Y. Code of Civil Pro., § 442. 480 Amendment of Pleadings. Eight to amend of course. CHAPTEE XVI. Amendment of Pleadings of Couesb. Section 1. Eight to amend without leave of court. — Within twenty days after a pleading, or the answer, demurrer or reply 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 amend once of course is absolute.^ If a party notices his cause iN. Y. Code of Civil Pro., § 542. Under the California Code of Civil Procedure, section 472, any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before trial of the issue of law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. In Missouri a petition or answer may be amended by the proper party of course at any time before the answer or reply thereto is filed. Mo. Rev. Stat. 1899, § 661. The right to amend as of course, after the answer has been served, will be waived by an application for leave to amend. Tripp v. City of Yank- ton, 74 N. W. (S. D.) 447. The South Carolina Code allows one amendment of course, unless made for delay. See § 103. And see South Dakota Comp. Laws, § 4937. = Cooper V. Jones, 4 Sandf. 699 ; Frank v. Bush, 63 How. 282 ; 2 Civ. Pro. R. 250; Clifton v. Brown, 27 Hun 231; Griffin v. Cohen, 8 How. 451; Ross V. Dinsmore, 20 How. 328; 12 Abb. 4; Mussinan v. Hatton, 31 Abb. N. C. Amendment of Pleadings. 481 Eight to amend of course. for trial before the time allowed to his adversary to amend has expired, he does so at the peril of having his notice of trial go for nothing in ease of an amendment of the pleading by his ad- versary 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 ar- rives, he may try the cause, and if successful, perfect judgment. None of these proceedings will be prejudiced by a subsequent amendment of the answer even though made in the time pre- scribed 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 substi- tuted, 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- 254; 8 Misc. 95; 60 St. Rep. 159; 23 Civ. Pro. R. 400; 28 N. Y. Supp. 1006; Carpenter v. Adams, 34 Hun 429. 3 0strander v. Conkey, 20 Him 421; Washburn v. Herrick, 4 How. 15; Clifton V. Brown, 2 Civ. Pro. R. 44; 27 Hun 231. See Carpenter v. Adams, 34 Hun 429. * Plumb V. Whipples, 7 How. 411; Ostrander v. Conkey, 20 Hun 421. The words " without prejudice to proceedings already had " were not de- signed 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 proceeedings were to be upheld so far only that no prejudice to him should arise. Welch v. Preston, 58 How. 52. 5 Welch v. Preston, 58 How. 52. The service of an amended answer properly 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. 482 Amem'dmeh't of Pleadings. Eight to amend of course. tain,'' and if the amendment cures the defect complained of, the 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 ; * 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 pve- viously amended of course,^^ but not if he has so amended. The Code permits a party to amend his pleading but once without leave.^^ After a demurrer to the complaint has been overruled with leave to plead anew on payment of costs, and the defendant has availed himself of the leave granted and served an answer, he may within twenty days after such service serve an amended answer.^^ The same rights to amendment of pleadings exist in actions brought to compel the determination of claims to real property, 6 Spuyten Duyvill Rolling Mill Co. v. Williams, 13 Week. Dig. 280; 1 Civil Pro. R. 280. TRurrall v. Moore, 5 Duer 654; Frank v. Bush, 63 How. 2S2; 2 Civil Pro. R. 250. 8 Joroliman v. CoTien, 1 Duer 620. oKoss V. Dinsmore, 20 How. 328; 12 Abb. 4. 10 Ross V. Dinsmore, 20 How. 328; 12 Abb. 4. See also Cooper v. Jones, 4 Sandf. 699. 11 White V. Mayor, etc., of N. Y., 14 How. 495; 6 Duer 685; 5 Abb. 322. 12 White V. Mayor, etc., of N. Y., 14 How. 495; 6 Duer 685; 5 Abb. 322; Sands v. Calkins, 30 How. 1; Tripp v. City of Yankton, 74 N. W. (S. D.) 447. 13 Rodkinson v. Gantz, 26 Misc. 268 ; 56 N. Y. Supp. 480. Amendment of Pleadings. 483 Time in which to amend of course. as in other actions authorized by the Code." In any case it is irregular for the plaintiff to amend his complaint as to one de- fendant 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 argniment 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 de- fendant in pursuance of the conditions of an order gTanting 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 an- swer raising new issues.^' § 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, demurrer or reply thereto is served, or at any time before the period for answering it expires.^" An amended complaint cannot be served more than twenty days after the original, where the defendant has not answered or demurred ; ^^ and if the original complaint is served on several defendants 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 vdthin 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 1* Brown v. Leigh, 49 N. Y. 78 ; 12 Abb. N. S. 193. isFassett v. Tallmadge, 15 Abb. 205. 16 Clifton V. Brown, 27 Hun 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. 321. 18 Schwab V. Wehrle, 14 Week. Dig. 529. i»]Sr. Y. Code of Civil Pro., § 542. 20 Clark v. Humphrey, 2 Law Bull. 21. 21 George v. Grant, 56 How. 244. 484 Amendment of Pleadings. Nature and extent of amendments of course. 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 qualifica- tion, 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 defend- ant's time to amend it of course is limited to twenty days.^^ Where a defendant served with the summons and complaint does not appear in the action by attorney there is no authority for serving an amended pleading upon him except by order of the court.^" A complaint cannot be amended as of course under section 542 of the ISTew York Code of Civil Procedure within twenty days after service of the plaintiff's reply to the defendant's coun- terclaim. The obvious purport of that section of the Code is that a party may amend his pleading before or within twenty days after his opponent pleads to that pleading.^^ But the de- fendant may serve an amended answer within twenty days after the service of a reply to the counterclaim set up in the original § 3. Nature and extent of amendments as of course. — It was held in some of the earlier cases that the section of the Code of Procedure ^' for which section 542 of the present Code is a sub- stitute, gave only a right to amend and perfect what was previously set up in an imperfect manner, and that setting up 22 Seneca County Bank v. Garlinghouse, 4 How. 174. 23 See N. Y. Code of Civil Pro., § 798. 2* Washburn -f. Herrick, 4 How. 15; Evans v. Llchtenstein, 9 Abb. N. S. 141. 25 Toomey v. Andrews, 48 How. 332. 26 Durham v. Chapin, 13 App. Div. 94; 43 N. Y. Supp. 342. 2T Holm V. Appleby, 27 Miac. 49 ; 57 N. Y. Supp. 266. 28 Seaman v. McClosky, 25 Misc. 445 ; 53 N. Y. Supp. 554. 2» Code of Procedure, § 172. Ameistdment of Pleadings. 485 Nature and extent of amendments of course. 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 dovsm, and has ever since been adhered to, that the power to amend a pleading once of course is not confined to the amendment 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 de- murrable 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 iip by the amend- ment.'' There is no restriction as to the nature of the defense which may be set up by an amended answer. The idea that the de- fense of usury or of the statute of limitations was to be treated in this respect different from other defenses has long been ex- ploded, and the defense of the statute of limitations may now aoHollister v. Livingston, 9 How. 140; Field v. Morse, 8 How. 47; Dows V. Green, 3 How. 377. 31 Mason v. Whitely, 4 Dner 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. Kemond, 13 How. 272; Watson v. Eushmore, 15 Abb. 51. 32 Brown r. Leigh, 49 N. Y. 78; 12 Abb. N. S. 193; Divine v. Duncan, 52 How. 446; 2 Abb. N. C. 328; McQueen v. Babcock, 3 Keyes 428; Rob- ertson V. Bennett, 1 Abb. N. C. 476; Felix v. Van Slosten, 48 St. Rep. 791. 33 Brown v. Leigh, 49 N". Y. 78; 12 Abb. N. S. 193. 486 Amendment of Pleadings. Nature and extent of "amendments of course. be added by ameoidment/* or may be substituted for a counter^ claim. "^ After the defendant has answered, the plaintiff may amend his complaint, of course, without costs, by stating the place of trial to be in a different county from that specified in the com- plaint originally served.^" The 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 variance between the summons and complaint ; ^' but since the adoption of the present Code that objection is ob-' viated as there is now but one form of summons which 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 pre- vents 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 serv- ing an amended complaint bringing in new parties.*" Matters which have occurred since the original pleading was sei-ved should be brought before the court by a supplemental pleading, and not by amendment. Amendments to a pleading can only 34 McQueen v. Babcock, 13 Aljb. 268; 2i How. 229; 41 Barb. 337; 3 Keyes, 428; 3 Abb. Ct. App. Dec. 129. '!•'"• Wyman v. Remond, 18 How. 272. -" Stvvker v. New York Excb. Bank, 42 Barb. 511; 28 How. 20; Toll v. Mohawk Valley, etc., Ins. Co., 12 How. 79. In Rector v. Ridgewood Ice Co., 33 Hun 293, it was decided that where the summons and complaint name as the place of trial a county in which neither party resides, an amendment of the complaint, after den^nd, to the plaintiff'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. "Gclt/v. Hudson River R. R. Co., 6 How. 209. 38 Gray v. BroAvn, 15 How. 555. 30 Code of Civil Pro., § 418. ■10 Walkenshaw v. Pcrzcl, 32 How. 310; 7 Rob. 600; 5 Rob. 048; Follower V. Laughlin, 12 Abb. 105. ■11 Russell V. Spear, 5 How. 142. 42 Follower v. Lau"hlin, 12 Abb. 105. Amendment of Pleadings. 487 Nature and extent of amendments of course. relate properly to the time -when the original pleading was made and can only state facts in existence at that time.*^ It was decided in a numher of cases that at any time within twenty days after service of a demurrer to the complaint the de- fendant might amend his pleading by withdrawing the demurrer and serving an answer.** But it is now settled that the Code does not authorize a defendant who has demurred to the com- plaint, under the pretense of an amendment, and as a matter of right, to substitute an answer for the demurrer previously served and thus change the issue of law to one of fact. Such a change is not an amendment within the meaning of the provision of the Code allowing a party to amend his pleading once as of course.*'' 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 complaint by omitting the statement of the consideration, al- though the sole object of the amendment is to evade a demand by the defendant of a bill of particulars of the goods, wares and merchandise mentioned in the complaint.*' An amended answer which is the same in legal effect as the original answer, and-whieh 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 respects, is not an amendment of the complaint, and the *3 Hornfager v. Hornfager, 6 Hn\r. 13. Payments made after the com- mencement of the action and befoi'e answer may be set up by answer or by an amended answer. See Keeler v. "Van Wie, 49 How. 97; Eice v. Childs, 28 Hun 303; Bendit v. Anncsly, 27 How. 185; 42 Barb. 192. 4* Carpenter v. Adams, 34 Him 429; Adams & Lang v. West Shore, etc., E. E. Co., 65 How. 329; Eobertson v. Bennett, 1 Abb. N. C. 476; People V. Whitwell, 62 How. 383; Frank v. Bush, 63 How. 282; Betts v. Kridell, 20 AJjb. N. C. 1; Hoyt v. Shelp, 20 Abb. N. C. 10; Barnes v. Gibbons, 20 Abb. N. C. 10. *5 Smith V. Laird, 44 Hun 530 ; Wise v. Gessner, 47 Hun 306 ; Cashman V. Eeynolds, 123 N. Y. 138. *6 Smith V. Pfister, 39 Hun 147. « Snyder v. White, 6 How. 321. 48S Amenbmbnt of Pleadings. Effect of an amendment. 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 amend- ment of the answer calling for a new reply. ^^ § 4. Effect of an amendment. — 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 definite and cer- tain,"^ or for judgment 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 amendment of the complaint does not super- sede a motion previously noticed to compel the plaintiff to elect ■48 George v. McAvoy, 6 How. 200. 49 Howard v. Michigan South. R. E. Co., 5 How. 206. BoHinkley v. Troy & Albia R. E,. Co., 42 Hun 281, 284; Seneca County Bank v. Garlinghouse, 4 How. 174; Dann v. Balcer, 12 How. 521; Sands V. Calldns, 30 How, 1 ; Burrall v. Moore, 5 Duer 654 ; Kapp v. Barthan, 1 E. D. Smith 622; Lincoln Nat. Bank v. Butler, 14 Misc. 464; 36 N. Y. Supp. 1112; Stone v. Nix, 101 Ga. 290; Barnes v. Pelham, 18 Ind. App. 166; Long V. Hubbard, 6 Kans. App. 878; Hasty v. Bonness, 86 N. Y. (Minn.) 896; Penniman v. F. & W. Co., 133 N. Y. 442; Fogg v. Edwards, 20 Hun 90; Simmons Company v. Costcllo, 63 App. Div. 428; 71 N. Y. Supp. 577: Wilson v. Vick, 51 S. W. (Tex. Civ. App.) 45; Sengfelder v. Hill, 16 \Yash. 355; Colvin v. Shaw, 79 Hun 56. ci Ostrandcr v. Conkey, 20 Hun 421. See ante. pp. 481, 482. BsPader v. Bates, 66 How. 129; Welch v. Preston, 58 How. 52. 53Spuyten Duyvill Rolling Mill Co. v. Willi.ims, 13 Week. Dig. 280; 1 Civil Pro. R. 280. (54 Burrall v. Moore, 5 Duer 654 ; Frank v. Bush, 63 How. 282 ; Byrne v. Hegeman, 24 App. Div. 152; 48 N. Y. Supp. 788. cs Rector V. RiJgewood Ice Co., 38 I-Iun 293; Moulton v. Beecher, 1 Abb. N. C. 193; 52 How. 132. Amendment of Pleadings. 489 Effect of an amendment. 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 harmonious as to the effect of an amendment of a pleading on a pending motion, as in some cases a notice of motion is treated as a " pro- ceeding already had," which cannot be prejudiced by the amend- ment, 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 true doc- trine. There is a distinction between a proceeding commenced and a proceeding had. A proceeding to compel the correction of a defect in a pleading is not in any proper and legal sense prejudiced by an amendment which cures the defect. A pro- ceeding is prejudiced by something which deprives 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. ISTo costs are allowed by the Code for merely giving notice of mo- tion ; ^^ 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 re- view and decide a mere abstract question when no practical re- sult can follow its determination. If from any cause the ques- tion 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 ap 66 Pruden v. City of Lockport, 40 How. 46. 5T Williams v. Wilkinson, 5 How. 357. ssSee Welch v. Preston, 58 How. 52; Ostrander v. Conliey, 20 Hun 421; Plumb V. Whipples, 7 How. 411. Any motion made upon the original pleadings before service of the amended pleading, must necessarily fall. See Byrne v. Hegeman, 24 App. Div. 152, 154; 48 N. Y. Supp. 788. =» Stiles v: Fisher, 3 How. 51. 490 Amendment of Pleadings. Remedy for improper amendments. peal will be dismissed.""' It is not the province of the courts to decide abstract questions of law disconnected from the grant- ing of actual relief."^ This principle should deter a court of original jurisdiction from entertaining a motion for relief al- ready 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 conclu- siveness as an answer and no longer binds the party as a plead- ing, it nevertheless retains its character a.s an admission of the defendant, 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 purpose of delay, and that the adverse 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.''^ 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 delay, 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 Of People V. Common Council of Troy, 82 N. Y. 575. See also People v. Phillips, G7 N. Y. .58-2 ; People v. Walter, 68 N. Y'. 403. 01 Grow V. Garloek, 20 Hun .598. «= New York, etc,, Trans. Co. v. Hurd, 44 ITun 17 ; Foirg ■* . Edwards, 20 Hun 90; Pcnrss v. Coply, 10 N. Y. 93. 03 Code of Civil Pro., 5 r.4'2. 04 Ostrandcr v. Conkey, 20 Ilun 421 ; Frank v. Bush, G3 How. 282. Amendment of Pleadings. 491 Remedy for improper amendments. 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 serv- ing 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 application 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 application may be made at a Special Term, and if the case is brought within the provision of the statute, the pleading can be stricken out, and such terms imposed upon the party interpos- ing the fraudulent pleading as will prevent injury to the ad- verse party."^ 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 "5 Griffin v. Colien, 8 How. 451; Spencer v. Tooker, 21 How. 333. 1515 Rogers v. Eathbim, 8 How. 460. See Farrand v. Harbeson, 3 Duer 6.55; Vanderbilt v. Bleeker, 4 Abb. 289; Allen v. Compton, 8 How. 251. 6T Griffin v. Cohen, 8 How. 451. 492 Amendment on Motion Befoee Teial. Nature and extent of amendments allowed. that the moving party will thereby lose the benefit of a term for which the cause is or may be noticed. If it is necessai^ 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 will grant and argue the motion on the day appointed. § 6. Pleadings amended of course must be served and answered. — Where a pleading is amended of course in pursu- ance of section 542 of the Code of Civil Procedure, a copy there- of must be served upon the attorney for the adverse party. A failure 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 serv- ing pleadings has been pointed out.''" The effect of a default in pleading will be considered hereafter. CHAPTEE XVII. Amendment on Motion Before Trial. SectiOiN 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- 08 N". Y. Code of Civil Pro., § 780. See Rule 37, Sup. Ct. 60 N. Y. Code of Civil Pro., § 543. See Cal. Code of Civil Pro., § 472. TO Anlc, p. 476. Amendment on Motion Before Trial. 493 Nature and extent of amendments allowed. 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. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amend- ment or new pleading was allowed, and that the proceeding had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial. ^ 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 will work no especial hardship to the adverse party. The terms im- posed 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 re- strictions, it is always 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 the pleadings to the proofs already given,^ and an amendment of a pleading may be allowed, although its effect may be to change IN. Y. Code of Civil Pro., § 723. See Cal. Code of Civil Pro., § 473; South Carolina Code, § 194; Oregon Code, § 101. 2 Gilchrist v. Gilchrist's Executors, 44 How. 317. sElghmie v. Taylor, 39 Hun 360; Daguere v. Orser, 3 Ahb. 86; Ford V. Ford, 35 How. 321 ; 53 Barb. 525. See Byrnes v. Dunn 6 Week Dis 140. ■ ^' 494 Amendment on Motion Befoee Teial. Nature and extent of amendments allowed. 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 con- tract/ 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 unimportant, 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, allow an amendment 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 discrimination 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 4 Troy, etc., R. E. Co. v. Tlbbits, 11 How. 168; Beardsley v. Stover, 7 How. 294; Deyo v. Morss, 144 N. Y. 216; Thilemann v. Mayor of N. Y., 71 App. Div. 59.5; Rowland v. Kellogg, 20 Misc. 498: 57 N. Y. Supp. 893. liEighmie v. Taylor, 39 J-Iun 366; Bigelow v. Dunn, 53 Barb. 570; 36 How. 120; Hopf V. U. S. Baking Co., 48 St. Rep. 729; 21 N. Y. Supp. 539. Eighmie v. Taylor, 39 Hun 366 ; Hatch v. Central Nat. Banlc, 78 N. Y. 487. 'Quiniby v. Claflin, 27 Hun 611; Weston v. Worden, 19 Wend. 648; Wil- link V. Renwick, 22 Wend. 608; Williams v. Cooper, 1. Hill 637. 8 Davis V. New York, Lake Erie & Western R. R. Co., 110 N. Y". 646. oUtica Ins. Co. v. Scott, 6 Cow. 606; Jackson v. Murray, 1 Cow. 156; Halligan v. Golden, 1 Wend. 302; Jackson v. Variek, 2 Wend. 294; Beach V. Fulton Bank, 3 Wend. 573; Lovett v. Cowman, 6 Hill 223; Wolcott v. McEarlan, 6 Hill 227; Sagory v. New York & N. H. R. R. Co., 21 How. 455; McQueen v. Babcock, 21 How. 229; 13 Abb. 268; 3 Keyes 428; Bates V. Voorhies, 7 How. 234: Osgood v. Whittelsey, 20 How. 72; Clinton v. Eddy, 37 How. 23. Amejstdment on Motion Befoee Teiai,. 495 Nature and extent of amendments allowed. accord and satisfaction, payment, set-off, or any other legal or equitable 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 ; ^^ and it makes no difference as to the power 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 Coiirt 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 insert- ing therein appropriate allegations to charge a defendant with the payment of a deficiency.^* And the court may allow a de- fendant to amend his answer 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 ; ^^ and it is held that under this authority the court may allow the plaintiff to amend his sum- mons and complaint so as to change the cause of action from one against the defendant in a representative capacity, to one again-^t the defendant individually,^' or to change an action brought in loBarnett v. Meyer, 10 Hun 109; Union Nat. Bank of Troy v. Bassett, 3 Abb. N. S. 358; Sheldon v. Adams, 41 Barb. 54; Banic of Kinderhook v. Gifford, 40 How. 659; Gilchrist v. Gilchrist's Executors, 44 How. 317; Brown v. Mitchell, 12 How. 408. See Guttentag v. Whitney, 82 App. Div. 145. 11 Diamond v. Williamsburgh Ins. Co., 4 Daly 494. i2Eighmie v. Taylor, 39 Hun 366; Troy, etc., E. R. Co. v. Tibbits, 11 How. 168. 13 Ford V. Ford, 35 How. 321; 53 Barb. 525; Eighmie v. Taylor, 39 Hun 366; Travis v. Peabody Ins. Co., 28 W. Va. 583. 1* Bailey v. Lee, 14 Hun 524. 15 Mitchell T. Bunn, 2 Thomp. &; C. 486. 16 Code of Civil Pro., § 723. iTTighe V. Pope, 16 Hun 180. 496 Amendment on Motion Befoee Tkial. Nature and extent of amendments allowed. an individual capacity to one in a representative capacity/' The courts have permitted an amendment, substituting as de- fendant a new corporation, ■which had succeeded to the liability of a receiver, in place of the receiver,^" and an amendment sub- stituting 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 association, an objection to any of the proceedings cannot be taken, by a person properly made a defendant in the action, 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, 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 representative or successor." This provision applies also to actions against the members of an unincorporated associa- tion.'^ When a person who has sustained damages from a personal injury caused by the negligence of a municipal corporation has presented his claim to the corporation, stating the amount of isHaddow v. Haddow, 3 Thomp. &, C. 777. 10 Abbott V. Jewett, 35 Hun 603. 20 Fuller v. Webster Fire Ins. Co., 12 How. 293. 21 New York Monitor Milk Pan Co. v. Remington Works, 89 N. Y. 22. And see Sliaw v. Cock, 78 N. Y. 194; Bassett v. Fish, 75 N. Y. 303. 22 N. Y. Code of Civil Pro., § 1813. 23 N. Y. Code of Civil Pro., § 1924. Amkndme.nt on Motion Bei^oke Teial. 41)7 Motion for leave to amend. his damages, and has brought an action against the corporation to recover tliat 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 usual eight days' notice to the adverse party, unless the cir- cumstances of the case forbid the giving of the usual notice and make it necessary to resort to an order to show cause. When the time for a party to amend a pleading as of course has expired, and an application to the court is necessary, the moving party must show some good and sufficient ground for the exercise of the discretion of the court in his favor, and, ordinarily, he will not be permitted to set up matters of which he had full knowledge at the time of interposing the original pleading. ^^ But there are exceptional cases in which matters known before pleading may be set up by way of amendment on application at Special Term. Thus, where the application is made by the defendant for leave to amend his answer and it appears by the moving papers that the defendant's counsel had previously tried other cases for the defendant, in which the same questions were involved, in which it was decided that it was unnecessary for the defendant to plead certain facts, but that in the case at bar a different and opposite ruling has been made to the surprise of counsel, the fact that tlie omitted facts were known before the service of the answer is not a bar to an order amending the answer. ^° The application for leave to amend should be founded upon an affidavit or affidavits statingthe history of the action and some reasonable excuse for the defect in the pleading sought to be cor- 2* Reed v. Mayor, etc., of N. Y., 97 N. Y. 620. ==Coeks V. Eadford, 1.3 Abb. 207; Harrington v. Slade, 22 Barb. 161; Stedeker v. Bernard, 10 Daly 466; Mutual Loan Assn. v. Lesser, 81 ' Avv Div. 138. 26 Foerst v. Empire Life Ins. Co., 44 App, Div. 37; 60 N. Y. Supp. 393. 498 Amendment on Motion Befoee Teiajl. Motion for leave to amend. rected," and upon the original pleadings, and the proposed amended pleading.''* The material facts excusing the failure or negligence necessitating the amendment should be shown by the affidavit of the party, so far as the facts are within his knowledge, or an excuse for his failure to make the affidavit must be shown. The affidavit of the attorney cannot be accepted in lieu of the affidavit of the party. ^° But it is eminently proper for the at- torney to make an affidavit stating the history of the action as that is a matter peculiarly within his knowledge. If the amend- ment in any manner changes the parties to the action the notice of motion should be broad enough to include an amendment of the summons. The motion should be noticed with reasonable dili- gence, as gross laches is a ground for denying the motion,^" 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 customary where the moving party is a private individual. ^^ 2' Harrington v. Slade, 22 Barb, 161. See Bewley v. Equitable Life Ins. Co., 10 Week. Dig. 191. -8 Abbott V. Meinken, 48 App. Div. 109; 62 N. Y. Supp. 660; Nightengale V. Continental Life Ins. Co.. 2 Law Bull. 15; Stern v. Knapp, 20 Jones & Sp. 14. 2E>r)iehl V. Robinson, 35 Misc. 234; 71 N. Y. Supp, 752; Ryan v. Duffy, 54 App. Div, 199; 66 N. Y, Supp. 649; Tompkins v. Continental Nat. Bank, 71 App. Div. 330; Mutual Loan Assn. v. Lesser, 81 App. Div. 138; Rhodes V. Lew'in, 33 App, Div. 369; 54 N. Y. Supp. 106; Aborn v. Waite, 30 Misc. 317; 63 N. Y, Supp. -399; Phelan v. Eycroft, 27 Misc. 48; 57 N. Y. Supp. 251; Parkes v, aty of N. Y,, 59 N. Y. Supp. 286; 43 App. Div. 617. The bald statement that the moving party is at present without the State of New York and without the county of New York, without any statement as to the place where he is sojourning is insufficient to authorize the attorney to make the affidavit in his stead. Aborn v. Waite, 30 Misc. 317; 63 N. Y. Supp. 399. But where the proceedings in a prior litigation furnish the basis for the application, and the moving party is in foreign lands, an affi- davit made by the attorney for the party, and who conducted the prior litigation, should be received and considered on the motion. Everett v. Everett, 48 App. Div. 475; 62 N. Y. Supp, 1042. soGowdy V. Poullain, 2 Hun 218; Davis v. Garr, 7 How. 311. 11 Brooks V. New York, 12 Abb. N. 0. 350; Lanney v. Mayor, 14 Week. Dig. 140. Amendment on Motion Befoee Trial. 499 Decision and order. 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 injurious- ly affect the party. In all cases the party served should attend 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 resulting from the amendment. r § 3. The decision of the motion and the order thereon. — Although a party cannot claim an order permitting the amend- ment of his pleading as a matter of strict right, yet the gTant- ing or refusal to grant the order is not wholly a matter of disr cretion, and the power to allow amendments having been cour ferred upon the court for the sake of justice, its exercise may be compelled in a proper case.^' Ordinarily the court will grant the motion on a proper presen- tation of facts requiring it where the amendment will produce no delay and will not work any special hardship to the adverse party."* Laches in applying for leave to amend may be a ground for denying the motion if the delay has been unreason- able and is unexcused."^ But a delay from June to October, in- cluding as it does the summer vacation, can hardly be deemed so unreasonable as to require a denial of the motion.^" The fact that the amendment sought substantially changes the cause of action is no ground for a denial of an application, as the power of the Special Term on such application is not 32 Seaver v. Mayor, 7 Hun 331. 33 Tighe V. Pope, 16 Hun 180. See Tom Boy Gold Mines Co. v. Green (Colo. App.), 53 Pac. 845; Gage v. West, 62 Neb. 612. 31 Gilchrist v. Gilchrist's Executors, 44 How. 317. ssDiehl v. Robinson, 35 Misc. 231; 71 N. Y. Supp. 752. But not where no injury has resulted from the delay. Van Wickle v. Baron, 5 App. Div. 130; 39 N. Y. Supp. 85. 36 Everett v. Everett, 48 App. Div. 475; 62 N. Y. Supp. 1042. 500 Amendment on Motion Befoee Trial. Decision and order. limited by statute.''' An amendment will not be denied upon the ground that it will not cure the defect in the original plead- ing unless it clearly appears that if granted it could be of no possible avail to the party seeking it.''^ It is not the practice to determine the sufficiency of the proposed pleading on the mo- tion for leave to amend. ''^ But an application for leave to amend may be denied where the matter proposed to be set up by the amendment is immaterial, unnecessary, and not calculated to accomplish the object intended. While in such case the court might grant the motion, the refusal to do so is not error.*" The court will not refuse leave to amend merely because the affidavits read in opposition to the motion state that the alle- gations of the pi-oposed amended pleading are false, even though the affidavits preponderate strongly against the truth of the pleading.*^ But if the falsity of the proposed amended pleadr ing is obvious leave to amend should not be granted.*^ The power of the court to allow an amendment of the plead- ings so as to set up a cause of action barred by the statute of limitations in the place of the cause of action pleaded should be rarely exercised and only under circumstances showing that the moving party has pursued his rights with diligence and has without fault been placed in the dilemma.*^ Where an order has been made directing the defendant to serve a bill of particulars of the counter-claim set up in his answer, and he is unable to comply with the order and therefore will be prevented from giving evidence at the trial sustaining the STThilemann v. Mayor of New York, 71 App. Div. 595. 38 Everett v. Everett, 48 App. Div. 475; 62 N. Y. Supp. 1042; Campbell V. Campbell, 5 N. Y. Supp. 171; 23 Abb. N. C. 187. ID Paddock v. Barnett, 88 TTun 381; 34 N. Y. Supp. 834; Everett v. Ever- ett, 48 App. Div. 475; 02 N. Y. gupp. 1042. 40 Thorp V. Heyman, 16 Misc. 591 ; 38 N. Y. Supp. 742. 41 Hughes V. Heath, 9 Abb. N. S. 275. « Morel V. Garelly, 16 Abb. 269. 43 Esglewton v. Beach, 11 N. Y. Supp. 525; 128 N. Y. 592. Amendment on Motion Befoee Teial. 501 Tenna imposed on granting motion. counter-claim, the court may permit him to amend his answer by striking out the counter-claim.** 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 witliin which the amended pleading must be served. The order will grant leave to serve the proposed pleading- read by the moving party upon the trial, or such part thereof as is within the decision of the court. The court should not grant to the party an unlimited power to amend.'"' The moving party will be bound by the proposed amendment and cannot reg- ularly enter an order allowing him to amend his pleading " as he shall be advised." *" If the amended pleading is not in accord- ance with the permission of the court the remedy of the party upon whom it is served is by motion to strike it out.*' § 4. Terms imposed on granting leave to amend. — The ques- tion as to what terms are to be imposed upon granting leave to amend a pleading depends for its solution upon the circimi- 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 opportun- ity ; *" but when the litigation has proceeded without reference 4*Knauth v, Wertheim, 26 Abb. X. C. 369; 14 ^". Y. Siipp, 391. *5 Abbott V. Meinken, 48 App. Div. 109. ■K5 New V. Aland. 62 How. 185. *' Robertson v. Rockland Cemetery Improvement Co., .54 App. Div. 191. 48 Marsh v. McNair. 40 Hun 216; Alston v. Meeliaiiics' Mut. In^. Co., 1 How. 82. 40 Marsh v. McNair, 40 Hnn 216; Carrier v. Dellay, 3 How. 173. See Brown v. Babcock, 3 How. 305; Troy, etc., R. R. Co. v. Tibbits. 11 How. 502 Amendment on Motion Befoee Teial. Service of order and amended pleading. to the character of the pleadings, that fact is considered in the imposition of terms, and then suoh rule is not deemed the governing nor necessarily the guiding one for the discretion of the court. ^^ Costs of opposing the motion are almost invariably allowed in addition to the other terms V7hich may be imposed. § 5. Service of the order and amended pleading. — Wbere 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 demands, as against them, no other relief than that demanded in the complaint which they did not deem necessary to the protec- tion 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 complaint or with a copy of the order allowing the amendment."^ 168; Prindle v. Aldrich, 13 How. 466; McGrane v. Mayor, etc.. of N. Y., 19 How. 144; Eighmie v. Taylor, 39 Hun 366. so Marsh v. McNair, 40 Hun 216; Flowers' Executors v. Garr, 20 Wend. 668; Proctor's Adm'r v. Andrew, 1 Sandf. 70; Tooker v. Arnoux, 1 Law Bull. 54; Miller V. Carpenter, 79 App. Div. 130, 133. And see Thilemaun V. Mayor of New York, 71 App. Div. 595, 597; Lesser v. Gilbert Mfg. Co., 72 App. Div. 147. oiMcMurray v. McMurray, 60 Barb. 117. See People v. Woods, 2 Sandf. 653. s= \\eil V. Martin, 24 Hun 045. Amendment of Pleadings at the Trial. 50-i Conforming pleadings to the proofs. CHAPTER XVIII. Amendment of Pleadings at the Teial. [Section 1. Conforming the 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, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved ; and that in evei-y 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- iovta 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. 1 N. Y. Code of Civil Pro., § 723. And see Sand. & H. Ark. Dig., § 5760 ; North Carolina Code, § 273; Hill's Ann. Laws (Oregon), § 101; Carter V. Lothian, 133 Cal. 451 ; Cal. Code of Civil Pro., § 470 ; Firebaugh v. Bur- bank, 53 Pac. 560; 121 Cal. 186. 2Mahon v. Mayor, etc., of N. Y., 10 Misc. 664; 64 St. Rep. 301; 31 N. Y. Supp. 676; 1 N. Y. Ann. Cas. 361. 50-1: Amendment o¥ Pleadings at the Teial. Confoniiing' the pleadings to the proofs. A pleading cannot lawfully be amended in a material vesiject 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.^ But this does not mean that every amendment to conform to the proof must be made before the adverse party presents his evidence in the case. Where the plaintiff by obvious inadvertence has omitted from his complaint an allegation material to his case which would be fatal if the question of the insufficiency of the pleading had been presented by demurrer, yet, if instead of raising the question in that manner, the defendant postpones it until the case comes on for trial upon the issues of fact, he cannot complain if the court takes whatever available time it may need to make a proper disposition of it. The court in its discretion may direct the trial to proceed, after a motion upon one side to dismiss and upon the other to amend, until it is possessed of the case upon the merits and then permit the plaintiff to amend when the substantial rights of the defendant will not be injuriously affected thereby.* If the party seeking to avail himself of the other's defective pleading chooses to wait until the cause is moved for trial before he makes known his objection, the " fur- therance of justice " admits of even more than generous use of the power conferred upon the trial court to grant leave to amend,'' especially where the party whose pleading is at fault may be remediless should special or peculiar hardship result from a re- fusal to grant such leave." A request for leave to amend at the trial, if the proposed amendment is one which it is within its province to allow, is addressed to the discretion of the trial court.' But the discretion to permit an amendment and the -- Romeyn v. Sickles, 108 N. Y. 650. + National Bank of Deposit v. Rogers. 106 N. Y. 380. - Woolsey v. Rondout, 2 Keyes 60.3, 604; 4 Abb. Ct. App. Dee. 639. "Winch ^. Farmers' Loan & Trust Co.. 11 Misc. 390; 32 N. Y. Supp. 244, - Winch V. Fanners Loan & Trust Co.. 11 Jlisc. 390; 32 N. Y. Supp. 244: Johannessen v. Munroe, 84 Hun 504; 32 X. Y. Supp. 363; 66 St. Rep. 142; Laufcr i'. Boynton Furnace Co.. 84 lliin 311; 32 X. Y. Supp. 362. Amendment of Pleadings at the Teial. 505 Conforming the pleadings to tlie proofs. time and form of its exercise should be in the interests of jus- tice.** 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 complaint as to change an action of ejectment into an action to compel tlie defendant to purchase land at a price to be fixed by the court, or remove its road from the land, nor will the court permit the plaintiff to so change the cause of action by granting the relief asked for, upon the evidence, without amending the complaint.^" An amendment cannot be granted at the close of the testimony on the trial which will change the form and nature of the action from tort to assumpsit. ^^ So where the complaint for a conversion of per- sonal property contains an allegation waiving the tort, the court cannot allow an amendment at the trial striking out the waiver. ^^ A complaint for money had and received by the defendant for the plaintiff's use cannot be so amended on the trial as to allege an assignment of the claim to the plaintiff.^' s National Banlc of Deposit v. Rogers, 166 N. Y. 380. 9 Burns v. Walsh, 10 Misc. 699; 31 N. Y. Supp. 788; Zboynski v. Brook- lyn City E. E. Co., 10 Misc. 7; 30 N. Y. Supp. 540; Moniot v. Jackson, 40 Misc. 197; Cox v. Halloran, 64 App. Div. 550; 72 N. Y. Supp. 302; Mea V. Pierce, 63 Hun 400 ; 18 N. Y. Supp. 293 ; Benner v. Phojnix Towing Co., 80 Hun 412; 80 N. Y. Supp. 290; Block a. Third Ave. R. R. Co., 60 App. Div. 191; 69 N. Y. Supp. 1107; Gas-Light Co. v. Rome, W. & 0. E. R. Co., 51. Hun 119; Ford v. Ford, 35 How. 321; 53 Barb. 525; Joslyn v. Joslyn, 9 Hun 388; Dezengremel v. Dezengremel, 24 Hun 457; Graves v. Cameron, 9 Daly 152; Button v. Schuyler's Steam Tow-Boat Line, 40 Hun 422; Jewett V. Malott, 60 Kans. 509 ; Spies a . Lockwood, 40 App. Div. 296 ; 57 N. Y. Supp. 1023; Hallett v. Larcom (Idaho), 51 Pac. 108; Western Cor- nice & Mfg. Works V. Leavenworth ( Neb. ) , 76 N. ^^'. 23 ; Harrington v. Wilson (S. D.), 74 N. W. 1055. i» Gas-Light Co. v. Rome, W. & 0. R. R. Co., 51 Hun 119. iiRawson v. Wetmore, 39 Barb. 104; Baldwin v. Rood, 15 Civ. Pro. R. 56; 17 St. Rep. 517; Smith v. Smith, 4 App. Div. 227; 38 N. Y. Supp. 551. 12 Cushman v. Jewell, 7 Hun 525. 13 Decker v. Saltsman, 1 Hun 421. See Southwick v. First Nat. Bank. 84 N. Y. 420. But see O'Neill v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 138. 506 Amendment of Pleadings at the Teial. Conforming the pleadings to the proofs. So where the complaint seeks to charge the defendants as sureties, it cannot be so amended on the trial as to charge them as principals/* So where a complaint in replevin bases the plaintiff'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 com- plaint is for fraud, the plaintiff, on failing to prove the fraud, cannot have judgment on a contract disclosed by the evidence/** So where the plaintiff frames his complaint for the recovery 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 illustrations of the general rule that a plaintiff vsdll 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 al- lowed; if it would not, the amendment should not be ordered, as the Code gives no authority to the court to allow a plaintiff to introduce a new cause of action by amendment on the trial, or to set up a cause of action where none was stated in the original pleadings. ^^ If a party goes to trial under the allegations presented by his complaint, and failing to prove the cause of action therein al- leged, proves instead another cause of action against the defend- ant's objection, he cannot, after the proofs are all in, have his " Smith V. Stagg, 15 Jones & Sp. 514. 15 Hudson V. Swan, 83 N. Y. 552. 10 People V. Dennison, 84 N. Y. 272. 17 Vrooman v. Jackson, 6 Hun 326. 18 Davis V. New York, L. E. & W. R. U. Co., 110 N. Yj 646. 10 Wheeler v. Hall, 54 App. Div. 49; 66 N. Y. Supp. 257. Amendment oe Pleadings at the Trial. 507 Conforming the pleadings to the proofs. 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 alle- gations made against him.^" There are cases which have proceeded in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proofs without objection, in which an amendment 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 a trial has been had upon the real issue without objection, it will not disturb a recovery upon the ground that it was not embraced in the pleadings. ^'^ 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 =0 Romeyn v. Sickles, 108 N. Y. 650. 2iKnapp V. Simon, 96 N. Y. 284; Fallon v. Lawler, 102 N. Y. 228; Cow- ing V. Altman, 79 N. Y. 167. Parties may, if they so elect, depart from the strict issues made by the pleadings and try other questions relating to the merits of the controversy by consent or acquiescence. Farmers' Loan & Trust Co. v. Housatonic R. R. Co., 152 N. Y. 251, 254; Knicker- bocker V. Robinson, 83 App. Div. 614; Schoepflin v. Coffey, 162 N. Y. 12, 16. 22 Romeyn v. Sickles, 108 N. Y. 650; Southwick v. First Nat. Bank, 84 N. Y. 420; 61 How. 164; Gaspar v. Adams, 28 Barb. 441; Clark v. Post, 113 N. Y. 17; Bossert v. Poerschke, 51 App. Div. 381; 64 N. Y. Supp. 733; Rutty V. Consolidated Fruit Jar Co., 52 Hun 492 ; 6 N. Y. Supp. 23 ; Barnes V. Seligman, 55 Hun 339; 8 N. Y. Supp. 834. A motion after the close of the evidence to conform the pleadings to the proofs can never be granted where the admission of the evidence was promptly objected to when offered upon the ground that it did not tend to support the allegations of the pleadings. Charlton v. Rose, 24 App. Div. 485; 48 N. Y. Supp. 1073. It is otherwise where the sole objection to the evidence is that it is incompetent and immaterial. Id.; Urtz v. Singer Mfg. Co., 35 Hun 116. 508 Amendment of Pleadings at the Trial. Conforming the pleadings to the proofs. 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 he alleged in a complaint, where such an allegation may be necessary to a per- fect pleading, but is proved without objection, the complaint may be amended to conform to the proof, and may be so amend- ed where objection is made to proof of the demand.^* So where a plaintiff has brought an action to recover for services ren- dered under a contract 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 also some of the facts necessary 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 amend- ment of the pleadings so that a legal remedy might be had in the action ; and such an amendment will be in furtherance of jus- tice 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- -■' Reeder v. Snyer, 70 N. Y. 180. ^^'here the complaint charges that the defendant is a New York corporation ^\^\ea in fact it is a foreign corpora- tion, the court may permit the complaint to be amended on the trial. Stuart V. New York Herald Co., 73 App. Div. 459; 77 N. Y. Supp. 216. ^iFullerton v. Dal ton, 58 Barb. 2^0, 240; King i. Mackellar, 109 X. Y. 215. \A'here a claim in cither of two forms can be substantiated by the same facts it would be a miscarriage of justice to turn the plaintiff out of court after the proof is all in without objection, on the ground that- he had stated his claim one way and proved it in another way. Martin v. Home Bank, 160 N. Y. 190. -= Turnow v. Hoehstadtcr, 7 Hun 80. -'■■ Beck V. Allison, 56 N. Y. 366. Amendment of Pleadings at the Teial. 509 Conforming the pleadings to the proofa. 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 defendants 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 permitted 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 amend- ment of the complaint at the trial by enlarging the claim for damages so as to conform to the proofs ; ^^ or may allow the insertion of an allegation of special damages, where special dam- ages have been proved ; "" and it may, on a proper affidavit, and on such terms as may be just, allow an amendment of the com- plaint by striking out a credit given by mistake, and thereby increasing the balance claimed.^^ So 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 con- sideration of the note, to conform the pleading to a state of facts which the evidence has already disclosed may possibly exist. "^ So, an amendment may be allowed which changes 2T Bedford v. Terhune, 30 N. Y. 453. 28 Collyer v. CoUyer, 50 Hun 422. 2!) Johnson v. Brown, 57 Barb. 118; Knapp v. Roche, 5 Jones & Sp. 395; 62 N. Y. 614; Hamilton v. Third Ave. R. E. Co., 3 Jones & Sp. 118. 30 demons v. Davis, 4 Hun 260. 31 Price V. Brown, 112 N. Y. 677; 21 St. Rep. 573. 32 Vibbard v. Roderick, 51 Barb. 616. But see dissenting opinion, Smith, J., 51 Barb. 630. 510 Amendment oit Pleadings at the Trial. Conforming the pleadings to the proofs. 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 amend- ment is not to introduce a new cause of action or defense, but to complete and fill out a cause of action or defense which the party intended and endeavored to allege, and did defectively allege, but did not allege in fuU.^* 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 opening of the case, to amend his complaint by increasing the amount of the demand of judgment to the amount fixed by the policy."" A bill of particulars may be amended on the trial by striking out a credit given by mistake to the adverse party.^' Tn an action brought by a property holder against a city to recover damages sustained by reason of the construction of a viaduct, the court has power to permit the complaint to be amended by striking out a cause of action for damages to the fee and also for negligence, and to permit a cause of action for damages to the use and occupation to be more fully and amply stated. In the absence of any counterclaim the plaintiff has the right, with the consent of the court, at any time before the case is finally submitted to the jury, to withdraw from their consideration any or all of the causes of action alleged in the complaint."^ 33 Oregon Steamship Co. v. Otis, 27 Hun 452. 34 Smith V. Eathbun, 13 Hun 47. 36 Smith V. Eathbun, 13 Hun 47; Therasson v. Peterson, 22 How. 98. 30 Miaghan v. Hartford Fire Ins. Co., 24 Hun 58. 37 Case V. Pharis, 106 N. Y. 114. 38 Sauer v. Mayor, 44 App. Div. 305 ; 60 N. Y. Supp. 648. Amendment of Pleadings at the Telal. 511 Proceedings in case of variance. § 2. Proceedings in case of variance between the pleadings and the proofs. — A variance between the pleadings and the proofs given upon a trial is not a fatal defect under the present system of practice. ^^ Variances are either material or imma- terial. A variance is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has beeen mis- led must be proved to tbe satisfaction of the court.*" Variances are no longer to be determined upon tbe inconsistency between tbe pleadings and tbe evidence, but solely by proof, by affidavit or otherwise, that the party has been actually misled to bis 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 immater- ial 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 tbe fact to be found according to tbe evidence or may order an immediate amendment without costs.*^ Where the variance is immaterial, the court is not bound to order a written amend- ment, but may disregard the variance altogether,** or may direct 39Guenther v. Amsden, 16 pp. Div. 607; 44 N. Y. Supp. 982. 40 N. Y. Code of Civil Pro., § 539 ; Cal. Code of Civil Pro., § 469 ; Hill's Ann. Laws (Oregon), § 96; Moore v. Douglas, 132 Cal. 399; Rumbolz v. Bennett, 86 Mo. App. 174; Toy v. McHugh, 62 Neb. 820; Wyoming Rev. Stat. 1887, § 2642; Mo. Rev. Stat. 1889, § 2096; Ky. Civ. Code Pra<;., § 129; Ballinger's Ann. Codes and Stat. (Wash.), 4949; S. D. Comp. Laws, § 4934; Meldrum v. Kenefiek, 15 S. D. 370; People's Nat. Bank. v. Myres (Kans.), 69 Pae. 164. See Burns' Rev, St.it. (Ind,), 1894, §§ 394, 395; Spring V. Bowne, 89 Hun 10. iiCatlin V. Gunter, 11 N. Y. 368; Place v. Minster, 65 N. Y. 89, 104; Hauck V. Craighead, 4 Hun 561 ; Rumbolz v. Bennett, 86 Mo. App. 174. 42 N. Y. Code of Civil Pro., § 539. 43 N. Y. Code of Civil Pro., § 540; Hill's Ann. Laws (Oregon), § 97; Cal. Code of Civil Pro., § 470. 44 Craig V. Ward, 36 Barb, 377; Hauck v. Craighead, 4 Hun 561. 512 Amendment of Pleadings at the Trial. Proceedings in case of variance. 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 conformity 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.*^ Such 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 required, it may be made at the trial. It is better that unim- portant 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 accurate 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 afford him an opportunity 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 application 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.*' 15 Place V. Minster, 65 N. Y. 89, 104; Lettman v. Ritz, 3 Sandf. 734; De Peyster v. \^'TieeIer, 1 Sandf. 71D; Harmony v. Bingham, 1 Duer 209. 48 Thomas v. Nelson, 69 N. Y. 118. 47 Hauck V. Craighead, 4 Hun 561. 48 Bullock V. Bemis, 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. A referee has the same power to allow an amendment to the pleadings as the court has upon the trial, as distinguished from a Special Term for the hearing of motions ; and the only limitation upon this au- thority seems to be that the amendment shall not change substantially the Amendment of Pleadings at the Trial. 513 Proceedings in case of variance. 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 follow that the defendant is entitled to amend his answer where such amendment 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 in- troducing a new defense, and thus protect all possible rights of the defendant while allowing the trial to proceed ; or if the vari- ance is material and the defendant is taken by surprise, or misled to his prejudice in maintaining his defense on the merits, he can make the proper proof of that fact, and thereupon have a post^ ponement of the trial and obtain, on application to the court, the privilege of answering or demurring.^" On an 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 aji 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 on a trial before a referee a party is allowed to amend his pleading and is required to state the amendment orally in open court, it is not necessary that the party amending should cause of action or embrace a new one. Perry v. Levenson, 82 App. Div. 94. *9 Dunnigan v. Crummey, 44 Barb. 528. See Harriott v. Wells, 9 Bosw. 631. 50 Smith V. Eathbun, 13 Hun 47. 51 See ante, p. 492. 52 Ballou V. Parsons, 11 Hun 602. 514 Amendment of Pleadings at the Teial. Proceedings in case of variance. then and there formally serve the adverse party with a copy of the amended pleading. The amendment may be embodied in the minutes of the referee, or may be subsequently reduced to v^rriting by the amending party, and a copy furnished to the referee and counsel for the adverse party. An amendment al- loAved on the trial does not require to be served unless such service is made a condition of the allowance.^' But while it may not be necessary to serve the amended pleading upon the adverse party, yet where an amendment of a pleading is granted on the trial it should be written out and directed to be inserted in the pi'oper place in the pleading tri be amended, as otherwise, if an appeal should be taken from the judgment rendered in the action it would be impossible for the appellate court to determine what effect should be given to the amendment. "^^ Where the defendant asks and is granted leave to amend his answer to conform to the proofs, and no formal amendment is proposed or inserted in the answer, there will be nothing in the record to inform the appellate court of the nature, extent or maimer of the amendment, and upon the review the pleadings will be considered as they appear upon the record presented. °^ It is a familiar rule that where a cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised at the trial and no objec- tion made to that course, the successful party will be deemed to have recovered upon the facts shown, and not strictly upon his pleading. Wliere the trial has taken that course, without objection or question, the defendant will be deemed to have assented to, or at least waived the variance if any, and it will be too late on 63 Lane v. Hayward, .28 Hun 583. 54 Charlton v. Rose, 24 App. Div. 485; 48 N. Y. Supp. 1073. 56 Browne v. Stecher Lithographic Co., 24 App. Div, 480; 48 N. Y. Supp.' 1038. Where evidence, inadmissible under the pleadings, is properly ob- jected to, and the court offers to allow the examining party to amend, but no amendment is asked for or actually made, it is error to overrule the objection and admit the evidenee. La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380. Amendment of Pleadings at the Triai,. 515 Inserting material allegations. appeal to insist upon the objection that the plaintiff failed to malve out the particular cause of action stated in the complaint.^" As the statute requires that the party insisting that he has been .misled by a variance shall prove that fact, and the particu- lars 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 determined upon any inconsistency betv^een the pleadings and the proofs,"^' cases determining what variances are material or immaterial are of but little value as precedents. Each case must be determined upon the proofs presented. There piay be cases in which the pleadings themselves will siipply the neces- sary 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 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 sections of the Code relating to variance does not, therefore, apply to such a ease. A failure of proof as to one of the particulars upon which an action is based is not a failure to prove the cause of action in its entire scope and meaning, if, striking out that particular a cause of action remains upon other grounds stated."" § 3. Inserting allegations material to the case. — The New York Code provides that the court may upon the trial or at 56 Gillies V. Improvement Co., 147 N. Y. 420. =T See ante, p. 511. 68 Lyon V. Blossom, 4 Duer 318. 6!)N. Y. Code of Civil Pro., § 541; Cal. Code of Civil Pro., § 471; Hill's Ann. Laws (Oregon), § 98; Iowa Code, 1873, § 2688; Casey v. Donovan, 65 Mo. App. 521. 8i> Harden v. Dorthy, 12 App. Div. 188, 198; 42 N. Y. Supp. 834. 516 Amendment of Pleadings at the Tkial. Inserting material allegations. any other stage of the action, before or after judgment, in fur- therance 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 conforming the pleading or other proceeding to the facts proved."^ The power to amend by conforming the pleading to the facts proved has been considered."^ The power to amend a pleading as to parties will be the subject of the next section. The power of the court to amend a pleading by inserting an allegation material to the ease is limited only by the condition that the amendment shall be in furtherance of justice. It may be exercised upon the trial or at any other stage of the action before or after judgment. But the power granted is not so broad as to permit the plaintiff to so amend his complaint after the trial as to give a cause of action where none was set up in the original pleading."^ So much of the provision of the Code cited as allows the court to " 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," relates to the mere details of a cause of action set forth by the pleadings but which may in some re- spects present inaccuracies."* The complaint in an action for malicious prosecution, if it 81 N. Y. Code of Civil Pro., § 723; Cal. Code of Civil Pro., § 473; S. D. Comp. Laws, § 4938; S. C. Code Civil Pro., § 194; Wis. Rev. Stat., §§ 2830, 2831. «3 See ante, p. 503. 63 Wheeler v. Hall, 54 App. Div. 49 ; 66 N. Y. Supp. 257 ; Davis v. Mus- cogee Mfg. Qo. (Ga.), 32 S. E. 30; McCosker v. Hilton & Dodge Lumber Co., 110 Ga. 328. 64 Clements v. Beale, 53 App. Div. 416; 65 N. Y. Supp. 1093. Amendment oe Pleadings at the Teial. 517 Amendments as to parties. contains all the averments requisite to maintain the action except the averment that the prosecution is ended, may be amended on the trial so as to supply this omission. °^ A com- plaint may be amended on the trial by the insertion of an allega- tion of a demand where such an amendment 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 generally, where a defendant lies by until trial before objecting to the sufficiency of the complaint, it is a proper exercise of discretion in the court or referee to allow the necessary allegations to be supplied by amendment, where they do not amount to a new cause of action."* § 4. Amendment as to parties. — The New York Code pro- vides 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 the party. "^ While this provision of the Code gives the court power in a proper case to amend a pleading by striking out the name of a party it does not authorize the court on the motion of a de- fendant who at the commencement of the suit was a proper party, who has answered, and whose rights and claims should 65 Ames V. Rathbun, 55 Barb. 194; 37 How. 289. 66 King V. Mackellar, 109 N. Y. 215; Fullerton v. Dalton. 58 Barb. 236, 240. 67 Simmons v. Lyons, 55 N. Y. 671. 68 Woolsey v. Trustees of Eondout, 2 Keyes 603. Where the complaint in an action to rescind a contract for fraud contains only general allega- tions of the false representations by which the plaintiff was induced to enter into the contract, it may be amended by the trial court by setting out the representations made and their falsity. Jackson v. Foley, 53 App. Div. 97 ; 65 N. Y. Supp. 920. 69 N. Y. Code of Civil Pro., § 723. See ante, p. 503. 518 Amendment of Pleadings at the Tkial. Amendments as to parties. be determined in the action, to strike out the name of such defendant against the consent of the plaintiff who has brought him into court to have those rights fixed and determined."* So while this provision confers full authority for adding or striking out the name of a person as a party, or correcting a mistake in such name, it does not sanction an entire change of the 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, aud the action has been revived by his widow as executrix, if it appear from the evidence on the trial that the original plaintiff never had title to the property in controversy, and that the property belongs to the widow in her ovTi 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 Partnershij) Law of ISTew York requires 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 mem- bers of the partnership, and provides 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 number of the partnership; but 70 Rothschild v. Goldenberg, 5S App. Div. 203. TiBassett a. Fish, 75 N. Y. 303; New York State Monitor Milk Pan Association v. Remington Agricultural \Vorks, 89 N. Y. 22. 72 Chittenango Cotton Co. v. Stewart, 67 Barb. 423. 73 Davis V. Mayor, etc., of New York, 14 N. Y. 506. 74 Phillips V, Melville, 10 Hun 211. Amendment of Pleadings at the Trial. 519 Amendments as to parties. the pleading may be amended on the trial to conform to the proof in that respect without costs." In Colorado, under a provision of the Code similar to that in force in New York/" the court may allow an amendment of a complaint against a partnership, changing the action to one against the partners as individuals." And in Alabama it is permissible to amend the title of an action brought on a partnership claim by the individuals composing the firm, by adding after their individual names the words " as partners doing business," etc.'^ 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 cannot be taken, by a person properly made a defendant in the action, 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, 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 representative or successor.'' The same rale ap- plies to an action brought under section 1922 of the Code of Civil Procedure against the members of an association.^" Where an action was commenced by the service of the sum- mons upon the president of the " Union Eailway Company of the City of 'New York " but the process was directed to " The 75 General Laws, Ch. 51, § 35. -6 Colo. Civil Code, § 75. '^Durkee v. Conklin (Colo. App.), 57 Pac. 486. 78 Lister v. Vowell (Ala.), 25 So. 564. 79 N. Y. Code of Civil Pro., § 1813. 80 N. Y. Code of Civil Pro.. § 1924. 520 Amendment of Pleadings at the Teial. Power of a referee over amendments. Union Railway Company," the court has power to allow an amendment of the pleadings by inserting the corporate name of the defendant instead of the name originally used/^ Where a corporation defendant fails to plead the misnomer it is deemed to have waived the defect/^ Under the broad language of the Code it is difficult to define with exactness the limits beyond which the power of the court by way of amendment may not extend when it has once acquired jurisdiction of the parties. Where the right person has been served with process and appears, the court may exercise the power conferred in the most liberal way by permitting an amend- ment of the process or pleading in the name or names of the parties or in any other way required in furtherance of justice.'^ Thus, where an unincorporated association was sued as a cor- poration and the summons was served on its president, who appeared, an amendment was allowed changing the name of the defendant as designated to its correct name/* So where in an action of foreclosure the summons was served upon a person as the wife of one of the defendants, and the vsrife appeared in the action an amendment was allowed inserting her name.'° But the power conferred by the Code has never been extended by the cases to the length of holding that without the presence of a party in court, and without his having been duly served vnth process, the court, by an ex parte amendment, can acquire juris- diction over the party and thereafter proceed to a judgment which shall take away property.*' § 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 ; 81 City of New York v. Union R. Co., 31 Misc. 451; 64 N. Y. Supp. 483. 8= N. Y. Code of Civil Pro., § 1777. 83 Stuyvesant v. Weil, 41 App. Div. 551 ; 58 N. Y. Supp. 697. siMunzingcr v. Courier Company, 82 Hun 575; 31 N. Y. Supp. 737. 86 Weil V. Martin, 24 Hun 645. 80 Stuyvesant v. Weil, 41 App. Div. 551 ; 58 N. Y. Supp. 697. Amendment of Pleadings at the Teial. 621 Power of a, referee over amendments. 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 exclusive, and if tlie party chooses, and the referee adjourns the case, the motion to amend may be made at Special Term."^ But the 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 S7 N. Y. Code of Civil Pro., § 1018. ssKnapp v. Fowler, 26 Hun 200; Smith v. Eathbun, 75 N. Y. 122; Bul- lock V. Bemis, 40 Hun 623; Oregon Steamship Co. v. Otis, 59 How. 254; 27 Hun 452; Chapin v. Dobson, 78 N. Y. 74; Perry v. Levenson, 82 App. Div. 94. S9 Price v. Brown, 98 N. Y. 388; Reader v. Sayer, 70 N. Y. 180; Harris V. Turnbridge, 83 N. Y. 92; Spies v. Lockwood, 40 App. Div. 296; Perry v. Levenson, 82 App. Div. 94. 90 Button v. Schuyler's Steam Tow-Boat Line, 40 Hun 422 ; Bockes v. Lansing, 74 N. Y. 437; Quimby v. Claflin, 13 Week. Dig. 203; Riley v. Corwin, 17 Hun 597; Joslyn v. Joslyn, 9 Hun 388; Sinclair v. Neill, 1 Hun 80. 91 Bullock V. Bemis, 40 Hun 623; Wiley v. Brigham, 16 Hun 106; Hoch- stetter v. Isaacs, 14 Abb. N. S. 235. 02 linapp V. Fowler, 26 Hun 200. 52iJ Amendment of Pleadings at the Teial. Power to amend after trial. an amendment shall be allowed is commensurate with that of the court. The power to impose conditions on allowing an amendment 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 ref eree.°^ The power of a referee to allow an amendment is not limited to actions commenced by summons, but may be exercised on the reference of a disputed claim against-the estate of a decedent under section 2718 of the Code of Civil Procedure.^* CHAPTEK XIX. Amendment oe Pleadings aetee Teial oe on Appeal. SbctJIon 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, be- fore 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 83 Smith V. Eathbun, 75 N. Y. 122. s-tLounsbury v. Sherwood, 53 App. Div. 318. 1 See ante, p. 503. 3N. y. Code of Civil Pro., § 723. See Idaho Rev. Stat., § 4229; Ohio Bev. Stat., § 5114; South Carolina Code, § 194. In some States the statutes provide that amendments to pleadings may be made at any time before final juds'raent. 111. Rev. Stat., Ch. 110, § 23; Mo. Rev. Stat. 1889, § 657. The Missouri statutes prohibit the court -from allowing any amendment after verdict affecting prejudicially the rights of the adverse party. Mo. Rev. Stat. 1889, § 2100. It is held in California that after a nonsuit and judgment for defendant a denial of leave to amend the complaint is proper. Gilliam v. Brown, 126 Cal. 160. Power to amend after trial. discretion allow tlie party in fanlt to plead anew or amend, upon sucli terms as are just." In a court of record, where a verdict, report or decision has been rendered, the judgment cannot be stayed, nor can any judgment 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 other 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 his favor. 8. For omitting to allege any matter without proof of which the verdict, report, or decision ought not to have been rendered. 0. 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 tlie 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, ■I N. Y. Code of Civil Pro., § 497. 4-N. Y. Code of Civil Pro., § 721 . 524 Amendment oe Pleadings aetee Teial. Power to amend after trial. 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.^ 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.** These provisions of the Code confer upon the court ample powers in respect to the amendment of pleadings, or what amounts practically to the same thing, the disregard of an amendable defect in a pleading. These powers are liberally exercised. Thus, where a complaint in an action upon a promis- sory note merely alleged that the plaintiffs were the owners and holders of the note and set out the note, without alleging that it was executed by the defendant or that any sum was due them thereon, it was held that even if the complaint would have been held defective 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 sufficient 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 by 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, notwithstanding the fact that an objection has been taken at the trial on the account of the omission and overruled.* Such amendments are only made 5 N. Y. Code of Civil Pro., § 722. eN. Y. Code of Civil Pro., § 723. See Cal. Code of Civil Pro., § 475; Mansfield's Dig. (Ind. Ter.), 5083. T Colin V. Husson, 113 N. Y. 602. 8 Bate V. Grnham, 11 N. Y. 237; Pratt v. Hudson River E. R. Co., 21 Ambn^dment op Pleadings after Teial. 525 Power to amend after trial. in support of the judgment; and an amendment 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 trial of an action, after the plaintiff has opened his case, the complaint is dismissed on the ground that it does not state facts sufficient to constitute a cause of action, and the plaintiff, with- out 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 sufficiently states a cause of action." And where the de- fendant's counsel at the opening of the case has moved to dis- miss the complaint on the ground that it does not allege certain facts necessary to the cause of action, and on denial of his N. Y. 305, 313; Haddon v. Lundy, 59 N. Y. 320, 328. Where the com- plaint in an action for malicious prosecution contains no allegation of want of probable cause, and the evidence given on the trial on this branch of the case fails to establish such want satisfactorily, the Appellate Division on appeal from a judgment in favor of the plaintiff will not allow an amendment to conform the pleadings to the proofs given, or in such man- ner as to incorporate into the pleading the essential allegation of want of probable cause. Palmer v. Palmer, 8 App. Div. 331; 40 N. Y. Supp. 829. Where an amendment conforming the pleadings to the proofs otherwise would be proper it should not be made on appeal where a motion to dis- miss was made at the close of the evidence. Scheuer v. Eosenbaum, 33 Misc. 768; 67 N". Y. Supp. 936. oVolkening v. De Graaf, 81 N. Y. 268. See Hodges v. Friedheim, 25 App. Div. 608; 49 N. Y. Supp. 529. loTooker v. Arnoux, 76 N. Y. 397; Scofield v. Whitelegge, 49 N. Y. 259; 12 Abb. N. S. 320. And see Goodmn v. Wertheimer, 99 N. Y. 149. 11 Sheridan v. Jackson, 72 N. Y. 170. Where the plaintiff fails to prove the cause of action set up in his complaint, and the objection is raised upon the trial, and no amendment of the pleadings is asked for or ordered, a, judgment in the plaintiff's favor upon a cause of action entirely separate and distinct from that alleged, cannot be sustained on appeal ; nor, in such case, can the pleadings be made to conform to the proofs after the trial; and it is no answer to the objection that the defendant was probably not misled. Mitchell v. Miller, 25 Misc. 179; 54 N. Y. Supp. 180. 526 Amendment of Pleadings after Trial. Power to amend after trial. 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 ap'peal from a judgment for the plaintiff in an action on contract the General Term has power to amend the complaint so as to make is correspond with the actual facta of the contract as developed by the evidence.^' It was held in this State before the amendment of the Con- stitution transferring to the Appellate Division the appellate jurisdiction formerly exercised by the General Term of the Supreme Court, that where a complaint did not allege a de- mand, where a demand was necessary to a perfect statement of a cause of action, but the demand had been proven on the trial, an amendment of the complaint might be allowed inserting such allegation even on appeal to the General Term." It was also held that where the fact that the plaintiffs were infants appeared on the face of the complaint in an action of ejectment and no objection was taken to their want of capacity to maintain the action until the cause was taken to the General Term on appeal, an amendment would then be allowed if necessary to obviate and cure the defect.^'' A defect in the statement of the representative character of the plaintiff may be remedied by amendment on appeal." But where an action is brought against defendants as ex- ecutors and the complaint seeks to charge them in that ca- pacity only, no amendment can be allowed after trial amending the summons and complaint so as to charge the defendants individually, as the amendment would substitute a new and 12 Pope V. Terre Haute, etc., Co., 107 N. Y. 61 ; Tooker v. Arnoux, 76 N. Y. 397 ; Southwiek v. First Nat. Bank, 84 N. Y. 420. 13 Harris v. Turnbridge, 83 N. Y. 92 ; Nilsson v. De Haven, 47 App. Div. ,537 ; 62 N. Y. Supp. 506. 1* Tripp V. Pulver, 2 Hun 511. IB Bartholomew v. Lyon, 67 Barb. 86. i«Risley v. Wightman, 13 Hun 163. Amendment of Pleadings after Teial. 52 < Power to amend after trial. different cause of action which the defendants as individuals had had no opportunity to defend." And on the other hand the court cannot after trial so amend the summons and complaint in the action as to change the action from one against the de^ fendant personally to one against him in a representative ca- pacity.^^ The authority of an appellate court to direct an amendment of the pleadings obtains only in the cases in which an amend- ment could have been directed by the trial court ; ^^ and a trial court cannot grant an amendment where its effect will be to substitute new and entirely different causes of action for those pleaded.^" But issues other than those created by the pleadings may be litigated by consent of the parties, and where that has been done it is the province of the trial court to direct an amendment of the pleadings to conform to the proof; and if the amendment is omitted on the trial the appellate court, in that case may either direct it or deem the pleadings to be amended. ^^ But in the absence of a consent, express or implied, that issues outside the pleadings may be litigated, the rule requiring the recovery to be secundum allegata et probata ob- tains. ^^ Where special damages are proven on the trial but are not alleged in the complaint an appellate court will consider the complaint as amended by the addition of the necessary allega- tions.^^ And generally, although the complaint may not have covered the case proved, if the facts proved in the case establish "Van Cott V. Prentice, 104 N. Y. 45. 18 United Press v. Abell Co., 73 App. Div. 240. "Kicker v. Curtis, 10 Misc. 125; 30 N. Y. Supp. 940; Reeder v. Sayer, 70 N. Y. 180. 20 See ante, p. 505. 21 Fallon V. Lawler, 102 N. Y. 228 ; Knickerbocker v. Robinson, 83 App. Div. 614; Ricker v. Curtis, 10 Misc. 125; 30 N. Y. Supp. 940; Farmers' L. & T. Co. V. Housatonic R. R. Co., 152 N. Y. 251, 254. See ante, p. 507. Schoepflin v. Coffey, 162 N. Y. 12, 16. 22 Ricker v. Curtis, 10 Misc. 125. 23 Clemons v. Davis, 4 Hun 260. 528 Supplemental Pleadings. Nature and object of supplemental pleadings. a good cause of action, and the evidence was received without objection, the case on appeal may be disposed of as though the pleadings had been amended on the trial. ^^ So an amend- ment may be allowed in a proper case after the decision of an appeal and an order for a new trial. ^^ 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 subsequent date would render the record incongruous. But as it frequently happens that justice requires that facts occur- ring 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 in whole or in part occurring after tbe 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 sucb case a necessity.^ The same 24 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 Duer 182; Harrower v. Heath, 19 Barb. 331; Cady v. Allen, 22 Barb. 388; Smith v. Wetmore, 167 N. Y. 234. =5 Prindle v. Aldrieh, 13 How. 460 ; McGrane v. Mayor, 19 How. 144. 1 Hornf ager 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. Shel- don, 6 Duer 661; 4 Abb. 59; McCaslan v. Latimer, 17 S. C. 305; Merz V. Interior Conduit & Insulation Co., 20 Misc. 378 ; 46 N. Y. Supp. 243. 2 Hall V. Olney, 65 Barb. 27; Styles v. Fuller, 101 N. Y. 622; Bennett v. Lawrence, 71 App. Div. 413; Lytle v. Crawford, 69 App. Div. 273. The Supplemental Pleadings. 529 Nature and object of supplemental pleadings. 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, pro- vides 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, alleg- ing 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, determining the matters in con- troversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the ap- plication 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 pleadings." ^ A supplemental pleading is also proper where new parties are brought in on application of the plaintiff.* rights of parties to a legal action must be determined at the commence- ment of the action. Although an equitable defense to a legal action is allowable, it does not, when interposed, change the character of the action, nor authorize transactions subsequent to the commencement of the action to be shown, to aflfect the rights of the parties to the action as they ex- isted when it was commenced. Wisner v. Ocumpaugh, 71 N. Y. 113. 3 N. Y. Code of Civil Pro., § 544. The California Code provides that the plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint or answer alleging facts material to the case occur- ring after the former complaint or answer. Cal. Code of Civil Pro., § 464. And see S. C. Code, § 198; Conn. Practice Book, p. 15, § 8; Ind. Rev. Stat. 1894, § 402; Ind. Rev. Stat. 1881, § 399; Ind. Civil Code, § 138; Ballin- ger's Ann. Codes and Stat. (Wash.), § 4958. Before the Codes, material facts occurring after issue joined could be interposed by way of defense, in an action at law, by a plea puis darien continuance, or in a, suit in equity, by a supplemental answer or by a cross-bill. See Graham's Pr. 296; 2 Barb. Ch. Pr. 256; Story's Kq. PI., § 903; Blanc v. Blanc, 67 Hun 384. * N. Y. Code of Civil Pro., § 760. 530 Supplemental Pleadings. Supplemental complaint. § 2. Supplemental complaint. — According to the practice of the Court of Chancery, a supiplemental 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 tlie 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 property was involved, the new matter must be in respect to the same 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 prurehase 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 supplemental complaint is to present such facts material to the case, occurring after the making of the former complaint, as aid the original statement of a cause of action, or tend to vaiy 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 judgment-creditor's action, and such act is not performed or such event does not happen until after the action is commenced, the plaintiff cannot, 5 Story's Eq. PI., §§ 336, 339. Coop. Eq. 43. See Haddon v. Lundy, 59 N. Y. 320. TBerford v. N. Y. Iron Mine, 29 St. Rep. 207; 8 N. Y. Supp. 193; Con- tinental Construction Co. v. Vinal, 14 Civ. Pro. R. 293; 15 St. Rep. 968; Staunton v. Swann, 10 Civ. Pro. R. 12; Farmers' Loan & Trust Co. v. United States Tel. Co., 47 Hun 315; Wattaon v. Thibou, 17 Abb. 184; Smith V. Bach, 82 App. Div. 608. 8 Bostwick V. Menck, 4 Daly 68. Supplemental Pleadings. 531 Supplemental complaint. by supplemental complaint, incorporate such act or event into the case and recover upon a cause of action wliicli liad no exist- ence when the suit was brought." The original complaint can- not be helped out in substance by the statement in a supple- mental 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 conunencement of the action. ^^ Thus, in an action to recover for goods sold and delivered, the plaintiii cannot, by way of supplemental complaint, set up and recover for goods sold upon a term of credit expiring after the action was com- menced.^" So in an action for rent, installments falling due after the com men cement of the action cannot be brought in by supplemental complaint.^' The Code merely allows a supple^ mental pleading for the purpose of alleging facts occurring after the former pleading of the party, or of which he was ig-norant 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 the 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 different case." The " material facts " ' McCullough V. Colby, 4 Barb. 603. 10 Bostwick V. Menek, 4 Daly 68 ; McMahon v. Allen, 12 How. 39. "Bull V. Rothschild, 16 Civ. Pro. R. 356; 22 St. Rep'r 536; Holly v. Graf, 29 Hun 443; Muller v. Earle, 5 Jones & Sp. 388. 12 Holly V. Graf, 29 Hun 443. "Bull V. Rothschild, 16 Civ. Pro. R. 356; 22 St. Rep'r 536. 1* Holly V. Graf, 29 Hun 443. IB Tiffany v. Bowerman, 2 Hun 643; Wattson v. Thibou, 17 Abb. 184; Milner v. Milner, 2 Edw. 114; West v. Burns, 2 Law Bull. 55. 10 Wattson v. Thibou, 17 Abb. 184; Tiffany v. Bowerman, 2 Hun 643; Buchanan v. Comstoek, 57 Barb. 582; Smith v. Bach, 82 App. Div. 608. 532 Supplemental Pleadings. Supplemental complaint. referred to in section 544 of the New York Code of Civil Pro- cedure are facts connected with the cause of action asserted in the former pleading. They may be new matter, but canuot be a new cause of action; that is to say, an entirely independent right which had no previous existence and no connection what- ever with the pending suit. There must be a relation in fact between the original cause of action set out in the complaint and the new or other matter set up in the supplemental plead- ing.^^ Where an action has been brought for a limited divorce a supplemental complaint setting up acts of adultery committed since the commencement of the action is not permissible.^^ And the rule is the same where the action is for an absolute divorce.^' Where an action has been brought against a foreign corpora- tion 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 that such non-residents have subsequently assigned all their stock to a resident of this State, to enable him to enforce for their benefit the rights incident thereto, does not entitle the plaintiffs to have such assignee made a party plaintiff and to serve a supplemeaatal complaint, as it is not possible for the assignors by an assignment made after the dismissal of the complaint as to them, to revive the action and give to the assign- 17 Lindenheim v. K. Y. Elevated R. R. Co., 28 App. Div. 170 ; 50 N. Y. Supp. 886. 18 Robertson v. Robertson, 9 Week. Dig. 348 ; Hoffman v. Hoffman, 35 How. 384. isMorange v. Morange, 3 Law Bull. 30; Neiberg v. Neiberg, 31 Abb. N. C. 254; 8 Misc. 97; 60 St. Rep. 160; 28 N. Y. Supp. 1005; Halsted v. Halsted, 7 Misc. 23; 57 St. Rep. 79; 27 N. Y. Supp. 408; Milner v. Milner, 2 Edw. Ch. 114; Faas v. Faas, 57 App. Div. 611; 68 N. Y. Supp. 509; Campbell v. Campbell, 69 App. Div. 435. But in an action for a limited divorce the plaintiff was allowed to file a. supplemental complaint setting forth acts of cruel and inhuman treatment alleged to have been committed by the defendant since the commencement of the action to give color to and explain other matters put in issue by the plaintiff. Cornwall v. Corn- wall, 30 Hun 573. Tlie reasons assigned for this decision are not entirely satisfactory, but the decision is a part of the law of this State. Supplemental Pleadings. 533 Supplemental complaint. ment the retroactive effect of creating a right to enforce a cause of action which did not exist when the suit was commenced by them.^" So where an action is brought to restrain an elevated railroad company from using the street in front of the plaintiff's premises for the purposes of the railroad and to recover damages for past use, and where pending such action the -plaintiff has conveyed the premises to another and assigned to such other the claim for damages, who was thereupon substituted as plaintiff and granted leave to serve a supplemental complaint which set forth the succession to the ownership of the premises and the assignment of the claim for past damages, an application for leave to serve an amended supplemental complaint, setting forth tlie continuance of the use of the street by the defendant com- pany subsequent to the conveyance, should be denied, as it seeks to bring into the controversy a cause of action entirely new in no way connected with the right of the original plaintiff to an injunction, nor in any way associated with his cause of action for that relief. The effect of allowing the service of such amended supplemental complaint would be to change the whole nature of the action acquired by the substituted plaintiff from one triable by jury, to restore it as one in equity, and to bring a new suit into the old one upon a cause of action which did not exist when issue was joined in the original suit, every detail of which, so far as the substituted plaintiff was concerned, would be altogether extraneous of the right of the original plaintiff to institute the suit in the beginning. ^^ So where a plaintiff has commenced an action against a defendant individually to charge him vdth moneys received while acting as agent for a decedent, and during the pendency of such action letters testa- mentary are granted to the defendant upon the will of such decedent, the plaintiff will not be allowed to file a supplemental complaint alleging the granting of the letters testamentary to give him a right to recover which he did not possess when the 20 Ervin v. Oregon E. R. & Nav. Co., 28 Hun 269. 21 Lindenheim v. N. y. Elevated R. E. Co., 28 App. Div. 170. 534 Supplemental Pleadings. Supplemental complaint. action was commenced."^ But where letters of administration liave been granted to a plaintiff after the commencement of the action and that fact is brought before the court by a sup- plemental 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 entitled to at the outset, tO' the same extent as would be permissible if the new facts had been set up by way of supplemental complaint.^^ Where, after the commencement of an action, a third party becomes interested in the 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 plain- tiff Was induced by the defendant's fraud to convey to him, the plaintiff may be allowed to file a supplemental complaint de- manding 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 allowed to revive the action and file a supplemental complaint asking 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- mental complaint; ^^ and in an action on a contract, payable in installments, the plaintiff was allowed to allege that an in- stallment 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 22 McMahon v. Allen, 12 How. 39. 23 Haddon v. Lundy, 59 N. Y. 320. 24 Prouty V. Lake Shore, etc., R. R. Co., 85 N. Y. 272. 25 De Lisle v. Hunt, 36 Hun 620. 20 Corbin v. Knapp, 5 Hun 197. 27 Fincke v. Rourke, 20 Hun 264. This ease is in direct conflict mth Bull V. Rothschild, 16 Civ. Pro. R. 356, but seems to be in line with Mal- colm V. Allen, 49 N. Y. 448. Supplemental Pleadings. 535 Supplemental complaint. plaintiff is entitled under the original complaint, he may be allowed 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 com- plaint 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 plaintifl^s 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 defendants, and asking not only to restrain any further levy but also to have restitution made to the proper parties by the defendants 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 received tlie price thereof, the plaintiff may be granted leave to file a supplemental com- plaint 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 consideration.'^ In an action of quo warranto, the relator, after verdict and judg- es Hasbrouck V. Shuster, 4 Barb. 285; Candler v. Pettit, 1 Paige 168; Sage V. Mosher, 17 How. 367, 370; Latham v. Richards, 15 Hun 129, 131. 29 Gambling v. Haight, 5 Daly 152 ; 14 Abb. N. S. 398, note. 30 Latham v. Richards, 15 Hun 129. 31 Rosenthal v. Dessau, 11 Hun 49. Where a complaint stating a cause of action for money had and received contains allegations of certain pre- liminary facts which subsequently ripen into a cause of action in tort, the plaintiff cannot be permitted to serve a supplemental complaint fully stat- ing the cause of action for tort, as the effect of the pleading would be to set up a cause of action which had no existence when the original com- plaint was served, and no' relevancy to the cause of action for moneys had and received to the plaintiff's use, and to join in one pleading a cause of action on contract with one in tort. N. E. Waterworks Co. v. Farmers' L. & T. Co., 23 App. Div. 571. 536 Supplemental, Pleadings. Supplemental answer or reply. ment declaring him entitled to the office, may be permitted to file a supplemental complaint alleging that he has sustained damages in an amount specified by reason of the defendant'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. ISTotice to the person to be brought in is not necessary. '^ So where the plaintiff in an action to forer close 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 partner- ship property for the payment of the fiartnership debts, and an action has then been brought for a partnership accounting, and the assignee 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. — Under the provisions of section 544 of the ISTew York Code of Civil Procedure the court may, and in a proper case must, upon the application of either party, and 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 com- 32 People, ex rel. Swinburne, v. Nolan, 30 Hun 484. 33 Ebbets V. Martine, 19 Hun 294. 34 Robinson v. Brisbane, 7 Hun 180; 67 N. Y. 606. 315 Johnson v. Snyder, 7 How. .S95. Supplemental Pleadings. 537 Supplemental answer or reply. mencement of the action, determining the matters in controvei'sy, or a part thereof. Where a case is made coming within the terms of this statute, it is the practice to grant an order allowing a supplemental 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 judgment 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 lie original answer, where such recovery was since the joinder of issue ; *^ or the insolvency of the maker in an action for the conversion 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 judg- ment by default against their principal has been vacated.** It is said to be well settled that a supplemental answer cannot be allowed if it sets up a new cause of action or defense and that the new matter sought to be pleaded in this manner must be in addition to or continuation of the original matter alleged.*" The facts sought to be set up by the supplemental answer should 36 Lyon V. Isett, 11 Abb. N. S. 353; 2 Jones & Sp. 41; 42 How. 155. 37 Lyon V. Isett, 11 Abb. N. S. 353; 2 Jones & Sp. 41 ; 42 How. 155; Had- ley V. Boehm, 1 Hun 304 ; Stewart v. Isidor, 5 Abb. N. S. 68 ; Rosenfield v. Shebel, 1 Law Bull. 4; Core v. Ford, 1 Law Bull. 12. See Dorance v. Henderson, 92 N, Y. 406. 38 Matthews v. Chicopee Mfg. Co., 3 Rob. 711; Mitchell v. Allen, 25 Hun 543; Zaitz v. Metropolitan Street Ry. Co., 52 App. Div. 626; 65 N. Y. Supp. 395. 39 Brown v. Richardson, 7 Rob. 57. *o Strong V. Strong, 3 Rob. 669 ; 28 How. 432. See Blanc v. Blanc, 67 Hun 384. *i Hendricks v. Decker, 35 Barb. 298, 303. 42 Cothran v. Hanover Bank, 8 Jones & Sp. 401. 43 Gas-Works Co. v. Standard Gas-Light Co., 47 Hun 255. **Wittig V. Moltz, 13 Jones & Sp. 389. 45 Portunato v. The Mayor, 42 App. Div. 14 ; 58 N. Y. Supp. 683. 538 Supplemental Pleadings. Supplemental answer or reply. constitute a defense to the cause of action against the defendant who seeks to interpose it, although, perhaps, the granting of an order permitting a defendant to serve a supplemental answer setting up facts which would not constitute a defense may not be a -ground for reversal on appeal.*" The proposed supplemental answer should set up material facts which have occurred since the defendant put in his original answer, or of which he was then ignorant. An allegation by a defendant life insurance company to the effect that it neither had nor has any interest in the litigation except to pay the money in controversy to the proper claimant is not the averment of any new or newly ascerr tained fact.*' Where there has been a transfer of the plaintiff's interest after suit brought it is the proper practice to bring the matter to the attention of the court either by motion or supplemental pleading. The matter cannot properly be presented for the first time upon the trial of the action.** Where an action is brought against a railroad corporation to obtain a forfeiture of its charter the defendant corporation may be permitted to stt up by supplemental answer a statute passed since issue joined, and proceedings by the railroad commissioners thereunder, all of which the defendant claims as a waiver of the forfeiture.*" 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 46 Preservaline Mfg. Co. v. Selling, 75 App. Div. 474 ; 78 N. Y. Supp. 299. « Reynolds v. Aetna Life Ins. Co., 11 App. Div. 99; 42 N. Y. Supp. 1058. 48 McGean v. M. E. R. Co., 133 N. Y. 9. 49 People V. Ulster & Del. R. R. Co., 28 St. Rep. 19 ; 8 N. Y. Supp. 149. 60 Ormsbee v. Brown, 50 Barb. 436. Supplemental Pleadings. 539 Application for leave to serve. is a proper exercise of judicial discretion under all the cir- cumstances 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 adverse 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, vyhether 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 ; ^^ and upon an affidavit stating the prior proceedings in the action, and facts shov^ing that the facts sought to be set up in the supplemental pleading occurred since the moving party served his original pleading, or that he vsras ignorant of such facts vt^hen it was made,'^° and showing also that the moving party has used due diligence in making the application or a sufficient excuse why the motion was not made at the earliest opportunity, ana any other faqt tending to show a right to the favorable exercise of the discre- 61 See Holyoke v. Adams, 59 N. Y. 233; Garner v. Hannah, 6 Duer 262; Fleischmann v. Bennett, 79 N. Y. 579. 52 Lyon V. Isett, 2 Jones & Sp. 41; 42 How. 155; 11 Abb. N. S. 353; Gar- ner V. Hannah, 6 Duer 262. 53 See McGean v. M. E. E,. Co., 133 N. Y. 9, 14. 64 Newell V. Newell, 27 Misc. 117; 57 N. Y. Supp. 403; Noxon v. Glen, 2 St. Rep. 662; Stern v. Knapp, 8 Civ. Pro. R. 54; 20 Jones & Sp. 14; Diehl V. Beck, 61 App. Div. 570; 70 N. Y. Supp. 818. A failure to serve the proposed supplemental pleading with the motion papers is a ground for denial of the motion. lb. 55 See N. Y. Code of Civil Pro., § 544 ; McMahon v. Allen, 3 Abb. 89 ; Houghton V. Skinner, 5 How. 420; Reynolds v. Aetna Life Ins. Co., 11 App. Div. 99; 42 N. Y. Supp. 1058. 540 Supplemental Pleadings. Decision of the motion. tion of the court in respect to the relief sought or the-terms imposed. If the object of the motion is to bring in a new de- fendant 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 interpose his supplemental pleading in addition to or in place of the former pleading." If the defendant is the mov- ing party his motion papers should either contain an affidavit of merits or show that such affidavit has been served and filed.^' The affidavit as to the ignorance of the moving party at the time of serving the former pleading in respect to the matter calling for a suprplementa,l pleading, is properly made by a party, though where the moving party is a corporation the affidavit of the attorney for the party stating that facts alleged in the pro- posed supplemental pleading have come to his knowledge and to the knowledge of the party since the original pleading was served, and that none of them were known to him or to the party or to any of its officers when the original pleading was served, vsdll be a compliance with the statute. °° The motion papers should be served on the adverse party ex- cept that copies of pleadings which have already been served need not be served again. § 5. Decision of a motion for leave to file supplemental plead- ing. — As a general rule, a party has a right to set up by a sup- plemental 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 oo Ebbets v. Martine, 19 Hun 294. BT See N. Y. Code of Civil Pro., § 644. =8 See NowcH v. Newoll, 27 Misc. 117; 57 N. Y. Supp. 403. 00 Reynolds v. Aetna Life Ins. Co., 16 App. Div. 74; 44 N. Y. Supp. 691. Supplemental Pleadings. 541 Decision of the motion. 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 'New York 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 cas©."^ If the facts presented by the moving party make out a proper case for the granting of the relief sought, the provisions of the section above referred to ' will be regarded as mandatory."^ But, on the other hand, the relief will be denied whenever it appears that injustice would be worked by allowing the supplemental pleading to be served."" If -the case presented is one in which the court may properly exercise its discretion, an appellate court will not review the discretion exercised unless in a clear case of abuse. °* The dis- cretion must be exercised reasonably and not capriciously or willfully."^ The laches of the moving party may be a good ground for denying leave to serve a supplemental pleading, '''' though it «o Holyoke v. Adams, 59 N. Y. 233 ; Spears v. Mayor, etc., of N. Y., 72 N. Y. 442. 61 Fleischmann v. Bennett, 79 N. Y. 579; Medbury v. Swan, 46 N. Y. 200; Pollmann v. Livingston, 17 App. Div. 528; Bank of the Metropolis v. Liss- ner, 6 App. Div. 378 ; 40 N. Y. Supp. 201 ; O'Brien v. Metropolitan Street Ry. Co., 27 App. Div. 1 ; 50 N. Y. Supp. 159. 62 Patterson v. Hare, 74 Hun 269; 26 N. Y. Supp. 626. 63 Bank of Metropolis v. Lissner, 6 App. Div. 378; 40 N. Y. Supp. 201. 64 Patterson v. Hare, 74 Hun 269; 26 N. Y. Supp. 626. 65 Spears v. Mayor, etc., of N. Y., 72 N. Y. 442. 66 McDonald v. Davis, 12 Hun 95 ; Medbury v. Swan, 46 N. Y. 200 ; Bar- stow V. Hansen, 2 Hun 333 ; Spears v. Mayor, etc., of N. Y., 72 N. Y. 442, 542 Supplemental Pleadings. Decision of the motion. may not be fatal to the application 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 ; ^^ or, in a proper case, where the laches has done no harm except to impose upon the adverse party unneces- sary costs, the motion may be granted upon such terms as to payment of costs as vnll compensate the adverse party for any injury which may have resulted from the delay. '^^ The fact that both parties have noticed the cause for trial does not deprive the court of power to grant leave to file a supplemental answer.'" A motion to serve both an amended and supplemental com- plaint will be denied.'^ But it is no ground for denying a motion to file a supplemental complaint that the plaintifl: has mistalven the character of his pleading and that it is an amended instead of a supplemental pleading.^^ The application 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 relief 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 445 ; Morel v. Garelly, 10 Abb. 269 ; Haas v. Colton. 12 Misc. 308 ; 34 N. Y. Supp. 35; Abram French Co. v. Shapiro, 11 Misc. 633; 33 N. Y. Supp. 9. OT Hadley v. Boehni, 1 Hun 304. See Beckhoefer v. Huber, 1 City Ct. R. 234. 08 Drought V. Curtiss. 8 How. 56. Ordinarily courts allow amendments and supplemental pleadings where the matter sought to be set up presents a, determination of the questions involved ; and where a judgment is sought to be pleaded which determines the merits of the controversy, the relief should be allowed without hesitancy. Haas v. Colton, 12 Misc. 308. 09 Pollmann v. Livingston, 17 App. Div. 528. 70 Blanc v. Blanc, 67 Hun 384. n Oelberman v. N. Y. & Northern E. R. Co., 31 Abb. N. C. 256; 29 N. Y. Supp. 864; 61 St. Rep. 615. 72Frisbie v. Averell, 87 Hun 217; 53 N. Y. Supp. 1021. 73 Sage v. Mosher, 17 How. 367. 7*McMahon v. Allen, 3 Abb. 89; 1 Hilt. 103; Houghton v. Skinner, 5 How. 420. Supplemental Pleadings. 543 Decision of the motion. sought can be obtained by an amendment of the original plead- ing of the moving party.^^ Upon an application for leave to file a supplemental com- plaint the court should not be called upon to examine with care the question 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 suSiciency of the proposed answer is a matter of doubt, the court should not prejudge the matter on the motion but permit tire 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 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 de- pends upon a question of fact to be proved.*" But where it is clear, as a matter of law, that a judgment rendered in another action between tlie same parties cannot be a bar to a pending action, the court may deny a motion to set up such judgment 75 McMahon v. Allen, 3 Abb. 89. 78 Latham v. Richards, 15 Hun 129. 77 Mitchell V. Allen, 25 Hun 543. See Gas-Works Co. v. Standard Gas- Light Co., 47 Hun 255. 78 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; Reynolds v. Aetna Life Ins. Co., 16 App. Div. 74; 44 N. Y. Supp. 691; Conried v. Witmark, 73 App. Div. 185. A defendant should be allowed to plead a former judgment for what it may be worth. Dempsey v. Baldwin, 15 Misc. 455; 37 N. Y. Supp. 28. 79 Morel V. Garelly, 16 Abb. 269. 80 Bate V. Fellows, 4 Bosw. 639. 544 Supplemental Pleadings. Proceedings when the motion is granted. by way of supplemental answer.^^ Whether the allegations made in a proposed supplemental complaint are true or false, or whether they constitute an independent cause of action, ought not to be determined on affidavits and upon hearing the motion to serve such complaint.*^ Where the facts surrounding the ease leave the court any discretion to exercise, the court may properly refuse to allow a defendant 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 defendant.'* § 6. Proceedings when the motion is granted. — Where a party has obtained leave to serve a supplemental pleading, he should make the necessary copies and serve the same on the parties who were entitled to service of the former pleading with- in 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 supplemental pleading, a supplemental sum- si Ratzer v. Ratzer, 2 Abb. N. C. 461. And see Avery v. Starbuek, 16 Civ. Pro. E.. 396; 22 St. Rep. 430. If the proposed defense is manifestly frivo- lous or immaterial a denial of a motion to set it up by a supplemental an- swer is justified. Gerstein v. Fisher, 12 Misc. 211; 33 N. Y. Supp. 1120. If the facts proposed to be pleaded would not constitute a defense the defendant should not be allowed to plead it, but if leave is given it is not a ground for reversal. Perservaline Mfg. Co. v. Selling, 75 App. Div. 474. 82 Cornwall v. Cornwall, 30 Hun 573 ; Bell Telephone Co. v. Home Tele- phone Co., 52 App. Div. 13; 64 N. Y. Supp. 821; N. Y. Cent. & H. R. R. Co. V. Haffen, 23 App. Div. 377; 48 N. Y^Supp. 316; Reynolds v. Aetna Life Ins. Co., 16 App. Div. 74; 44 N. Y. Supp. 691. 83 Hoy t V. Sheldon, 6 Duer 661; 4 Abb. 59; Holyoke v. Adams, 59 N. Y. 233. 84 Sage V. Mosher, 17 Hun 367. 85 Robbins v. Wells, 26 How. 15; 18 Abb. 191. Supplemental Pleadings. 545 Proceedings when the motion is granted. mons must be issued to him, and he or any other party defendant may answer or demur to the 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 application 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 addition to the former pleading, and the supplemental pleading does not at- tempt 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 original complaint, for the purpose of supplementing 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 sup- plemental 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 ease presented by the original and supr plemental pleadings."^ se Ebbets v. Martine, 19 Hun 294. 87 Goddard v. Benson, 15 Abb. 191; Mitchell v. Allen, 25 Hun 543. S8 Code of Civil Pro., § 544. 89 Hayward v. Hood, 44 Hun 128. 90 Dann v. Baker, 12 How. 521. 91 Divine v. Duncan, 52 How. 446. 92 Code of Civil Pro., § 544. 546 Sham Answers oe Defenses. Power of the court to strike out. If leave to serve a supplemental pleading has been granted in an improper case the remedy is by appeal."' CHAPTER XXI. SiiAM Answers or Defenses. Section 1. Power of the court to strike out a sham answer. — The New York Code of Civil Procedure provides' generally that a sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just.^ This provision of the Code confers no new power upon the courts as the courts possessed it 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 sham, a verified an- swer consisting of a general denial of the material allegations of the complaint, although shown by afiidavits to be false.' This ruling is not based upon the ground that a false plea is not sham, but upon the ground that a party, making a demand swWetmore v. Trualow, 51 N. Y. 338; Harrington v. Slade, 22 Barb. 161 ; Fleischmann v. Bennett, 79 N. Y. 579. IN. Y. Code of Civil Pro., § 538. See Burns' Rev. Stat. (Ind.), 1894, § 385; Horner's Rev. Stat. (Ind.), 1897, § 382; Hill's Ann. Laws (Oregon), ? 75. 2 Wayland v. Tysen, 45 N. Y. 281 ; Manufacturers' Bank v. Hitchcock, 14 How. 406. 3 Wayland v. Tysen, 45 N. Y. 281 ; Thompson v. Erie Ry. Co., 45 N. Y. 468; Schmidt v. McCaffrey, 34 Misc. 693; 70 N. Y. Supp. 1011; Robertson V. Rockland Cemetery Improvement Co., 54 App. Div. 191; 66 N. Y. Supp. 1142; Blum v. Bruggemann, 58 App. Div. 377; 68 N. Y. Supp. 1065; Gardinier v. Eldred, 4 Misc. 505; 25 N. Y. Supp. 870; Fellows v. MuUer, 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; Claflin v. Jaroslauski, 64 Barb. 463 ; Law v. Mather, 9 Week. Dig. 38 ; Gross v. Bock, 11 St. Rep. 295; Gjerstadengen v. Hartzell (N. D.), 79 N. W. 872; Albany County Bank v. Rider, 74 Hun 349. Sham Answers oe Defenses. 547 Power of the court to strike out. against another through legal proceedings is required to show his right by common-law evidence, and that ex parte affidavits are not such evidence.* And it has been held that the court should deny an application to strike out a denial in an answer as sham, even where the defendant, on examination before trial has admitted the falsity of the answer."* It is well settled that an answer containiiig denials made upon information and belief cannot be stricken out as sham " even where the defendant was in a position to know the facts ' and presumably had sufficient Icnowledge to deny absolutely the allegations of the complaint if they were untrue.^ There have been certain qualifications engrafted upon this rule by some of the reported cases but they do not seem to be recognized by the later decisions." It has also been settled in this State that * Wayland v. Tysen, 45 N. Y. 281 ; Thonipson v. Erie Ry. Co., 45 N. Y. 468. 5 Sehultze v. Eodewald, 1 Abb. N. C. 365. But see Reynolds v. Craus, 16 N. Y. Supp. 792; 42 St. Rep. 624. 6 Colt V. Davis, 50 Hun 366 ; 3 N. Y. Supp. 354 ; Martin v. Erie Preserv- ing Co., 48 Hun 81; Gallagher v. Merrill, 13 App. Div. 182; 43 N. Y. Supp. 303; Neuberger v. Webb. 24 Hun 347. 7 Humble v. MeDonough, 5 Misc. 508; 25 N. Y. Supp. 965; Hopkins v. Meyer, 76 App. Div. 365. 8 Howe V. Elwell, 57 App. Div. 357; 67 N. Y. Supp. 1108; 9 N. Y. Ann. Cas. 166. = It has been held that where it clearly appears that there could not have been any information and belief a specific denial in that form would be stricken out as sham. Webb v. Foster, 45 N. Y. Supr. Ut. 311. But this is in direct opposition to another decision of the same court. Fellows V. Muller, 38 N. Y. Supr. Ct. 137. It has also been held that where it appeared that an answer, denying upon information and belief, was in fact false, either by affidavit or from the record itself, it will be stricken out as sham. Sherman v. Boehm, 15 Daly 42. And it has been held in an action for slander that the defendant must necessarily know whether he uttered the slanderous words, and that his denial on information and be- lief should be stricken out as sham. Pardi v. Conde, 27 Misc. 496; 58 N. Y. Supp. 410. But the decision followed an earlier case (Edwards v. Leuts, 8 How. 28), which has been overruled by later cases. Howe v. El- well, 57 App. Div. 357, 358. In another case the plaintiff in his reply denied upon information and belief a fact which he had alleged in his com- plaint and that his denial was struck out as sham. Cavanagh v. Oceanic 548 Sham Answers oe Defenses. Power of the court to strike out. where a material allegation in the complaint is put in issue by an answer containing a denial of knowledge or information suf- ficient to form a belief or an allegation of want of such knowl- edge or information, the answer cannot be stricken out as sham ^" even though the defendant presumably had sufficient knowledge to deny the allegation absolutely if it was untrue.^^ The same rule applies to an answer setting up a specific denial.^" Where a complaint alleges that the defendant has failed to do certain specified things and the answer denies that the defendant has failed to do the said things by specifically negativing each alle- gation 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/^ And whatever may have been the rule laid down in the earlier cases under the Code,^* the rule is now Steam Nav. Co., 33 St. Rep. 903; 19 Civ. Pro. E. 315; 11 N. Y. Supp. 547. It has also been held that an answer may be stricken out as sham when a denial upon information and belief has been shown false by record evidence. Roblin v. Long, 60 How. 200. And it has been held in other jurisdictions that an answer containing denials on information and belief of matters entirely made up of files and records in a case in which the defendant was a, party may be stricken out as sham and frivolous. First Nat. Bank v. Martin (Idaho), 55 Pac. 302. 10 Reese v. Walworth, 61 App. Div. 64; 69 N. Y. Supp. 1115; Ginnel v. Stayner, 71 App. Div. 540; 75 N. Y. Supp. 887; Alexander v. Aronson, 65 App. Div. 174; 72 N. Y. Supp. 640; Livi v. Einstein, 2 Misc. 177; 21 N. Y. Supp. 583 ; Mutual Life Ins. Co. v. Toplitz, 58 App. Div. 188 ; Roby v. Hal- lock, 5 Abb. N. C. 86 ; 55 How. 412 ; Grocers' Bank v. O'Rorke, 6 Hun 18 ; Robert Gere Bank v. Inman, 51 Hun 97; 115 N. Y. 650. 11 Nichols V. Corcoran, 38 Misc. 671; 78 N. Y. Supp. 242. 12 Robert Gere Bank v. Inman, 51 Hun 97; 115 N. Y. 650; Meurer v. Brinkman, 25 Misc. 12. 13 Mayor, etc., v. James, 17 Hun 588. But see Kay v. Churchill, 10 Abb. N. C. 83. 1* 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 allegation in the complaint might be stricken out as sham, although duly verified. The supposed decision in this case was followed in a number of cases. See Commonwealth Bank v. Pryor, II Abb. N. S. 227; Butterfield V. McCumber, 22 How. 150; Agawam Bank v. Egerton, 10 Bosw. 669; Fair- child V. Rushmore, 8 Bosw. 698; Lawrence v. Derby, 24 How. 133. See Sham Answers oe Defenses. 549 Power of the court to strike out. well settled that a general or specific denial which raises a material issue cannot be stricken out as sham if pleaded in a form permitted by the Code.^^ The court has no power to strike out a demurrer as sham ; ^^ and as a counterclaim is not a defense the same rule applies.^^ The courts have held that an affirmative answer or defense which raises a material issue, such as the defense of usury, payment and the like, 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.^^ On the other hand the courts have held that the power of the court to strike out as sham an affirmative answer or defense is limited to cases in which the answer is unverified and that the power also Manufacturers' 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 erroneous construction hadi been put upon the case of People ^ . MeCumbei-, and the rule that a verified answer setting up a general de- nial 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 fol- lowed in Minnesota. C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267; Stevens ^■. McMillin, 37 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 affirmative defense. Greenbaum v. Tur- rill, 57 Cal. 285. And an answer containing a denial of material allega- tions of the complaint cannot be stricken out as sham. Lybecker v. Mur- ray, 58 Cal. 186. This is the rule in South Carolina. Ransom v. Anderson, 9 S. C. 438. 15 See Robert Gere Bank v. Inman, 51 Hun 97, and eases cited; Winne V. Sickles, 9 How. 217. leKain v. Dickel, 46 How. 208. 17 Collins V. Suan, 7 Rob. 94 ; Fettretch v. McKay, 47 N. Y. 427 ; Baum's Castorine Co. v. Thomas, 92 Hun 1; 37 N. Y. Supp. 913; First Nat. Bank V. Slattery, 4 App. Div. 421 ; 38 N. Y. Supp. 859. IS Robert Gere Bank v. Inman, 51 Hun 97; 5 N. Y. Supp. 457; 115 N. Y. 650; Commercial Bank v. Spencer, 76 N. Y. 155; Kay v. Churchill, 20 Abb. N. C. 83; Bailey v. Lane, 21 How. 475; Barker v. Foster, 29 Minn. 166. See also Schnitzer v. Schaefer, 10 App. Div. 173; 41 N. Y. Supp. 908; Frey v. Sylvester, 24 Misc. 167; 53 N. Y. Supp. 527; First Nat. Bank V. Slattery, 4 App. Div.' 421 ; 38 N. Y. Supp. 859; Kay v. Whittaker, 44 N. Y. 565. 550 Sham Answers oe Defenses. What answers are sham. cannot or should not be exercised where the answer is verified.^" The cases upon this branch of the practice are neither harmo- nious nor consistent. Where the power is exercised either the entire answer or a separate defense must be stricken out. A part of an entire answer or of a separate defense cannot be stricken out as sham.^° § 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 autliorize the court to strike out an answer as sham it must be false in the sense of being a mere pretense, set up in bad faith and without color of fact.^" Prob- i^See Smith v. Homer, 15 Misc. 403; 36 N. Y. Supp. 1089; Farnsworth V. Halstead, 18 Civ. Pro. R. 227; Webb v. Foster, 13 Jones & Sp. 311; Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie Ey. Co., 45 N. Y. 468; Westervelt v. Morrelle, 26 Misc. 870; 56 N. Y. Supp. 377; Belsena Coal Mining Co. v. Liberty Dredging Co., 27 Misc. 191; 57 N. Y. Supp. 739; Barney v. King, 37 St. Eep. 533. 20Winslo\v V. Ferguson, 1 Lans. 436; Collins v. Coggill, 7 Rob. 81; Strong V. Sproul, 53 N. Y. 497, 498. 21 People V. McCumber, 18 N. Y. 315, 321; Thompson v. Erie Ry. Co., 45 N. Y. 468, 471; Fettreteh 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 ; Ostrom v. Bixby, 9 How. 57 ; McCarty v. O'Donnell, 7 Rob. 431 ; Clark V. Jeflfersonville, etc., R. R. Co., 44 Ind. 248; Winslow v. Ferguson, 1 Lans. 436; Reese v. Walworth, 61 App. Div. 64; 69 N. Y. Supp. 1115; Howe V. Elwell, 57 App. Div. 357; 67 N. Y. Supp. 1108. 22 Brown v. Jenison, 3 Sandf. 732 ; Hull v. Smith, 8 How. 149 ; Foren v. Dealey, 4 Oregon 92. 23 Benedict v. Tanner, 10 How. 455. 21 Roome v. Nicholson, 8 Abb. N. S. 343 ; 1 Sweeny 525 ; Morey v. Safe Deposit Co., 7 Abb. N. S. 199. 25 Kiefer v. Thomass, 6 Abb. N. S. 42 ; Hadden v. New York Silk Mfg. Co., 1 Daly 388; Albany County Bank v. Rider, 74 Hun 349; 26 N. Y. Supp. 492; Goodwin v. Thompson, 88 Hun 598; 34 N. Y. Supp. 769. Sham Answers oe Defenses. 551 Motion to strike out a sham answer. ably it would be sufficiently accurate to state that the element of falsity in fact and also the want of good faith must be present to authorize a court to strike out a pleading as sham. A plea of a former action pending has been struck out as sham where the former action had been discontinued since the an- swer was served."" And an answer was stricken out as sham where a similar plea was set up where the prior action had been regularly discontinued before the answer was served.^' And the power to strike out a defense as sham may be exercised where it is apparent that the object of the plea is merely to create delay, annoy the plaintiff, or trifle with the court. ^^ § 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- cumstances require haste, upon an order to show cause. The motion may be made at any time before trial,"'' though if the objection to the answer is not taken at the first opportunity it may be deemed a waiver of the defect. Thus where the de- fendant 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 afiidavits 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 up new matter."^ It is not enough to show by the mov- 28 Clark T. Clark, 7 Rob. 276. But see Douglass v. Stockwell, 21 Week. Dig. 256. 27 Hallett V. Hallett, 10 Misc. 304; 30 N. Y. Supp. 946. 28 Henry Huber Co. v. MeAllester, 1 Misc. 483; 21 N. Y. Supp. 767. 29 Milu V. Vose, 4 Sandf. 660. 30 Mussina v. Stillman, 13 Abb. 93. 31 See Garvey 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 552 Sham Answers oe Defenses. Motion to strike out a sham answer. ing papers that the answer was interposed in bad faith. ''^ The falsity of the answer must be made clearly to appear. To au- thorize 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 show 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 trath or falsity of the answer will not be determined by the court on the affidavit read on the motion, but the motion 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. ''^ To justify the court in grant- ing the motion there should appear some fact or facts outside of the affidavits showing or tending to show the falsity of the answer and indicating bad faith." Where a party sets up mat- 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 hefore ma- turity. The plaintiff moved to strike out the answer as sham, on affidavits showing that he was such bona fide indorsee, but not showing that there was no fraud in the inception of the note. The court denied the motion. If the plaintiff desires to test the sufficiency of a defense he should take hia objection by demurrer and not by motion to strike out. IngersoU v. Dixon, 49 St. Rep. 372; 20 N. Y. Supp. 810. 32 Morey v. Safe Deposit Co., 7 Abb. N. S. 199. '3 Morey v. Safe Deposit Co.. 7 Abb. N. S. 199; lioekwood v. Salhenger, 18 Abb. 136; Nichols v. Jones. 6 How. 355; Ostrom v. Bixby, 9 How. 57; Zimmerman v. Meyrowitz, 77 App. Div. 329. 3-1 See ante, pp. 550, 551. 35 Commissioners of Excise v. McCullough, 39 How. 37. 3c5Fosdick V. Graff, 22 How. 158; People v. McCumber, 18 N. Y. 315, 325; Munn v. Barnum, 12 How. .>63 ; 1 Abb. 281; City Bank v. Doll, 33 Minn. 507; Wright v. .Tewcll, 33 Minn. 505; Zimmei-man v. Meyrowitz, 77 App. Div. 329. 3T Albany County Bank v. Rider, 74 Hun 349; 20 N. Y. Supp. 492. Fbivolous Pleadih^gs. 553 Remedy for frivolous pleading. ters by allegations constituting, if true, a substantial defense, he cannot be compelled to have the issues or the truth of the matters so alleged determined on motion by affidavits.^" But where the plaintiff swears positively to the falsity of the state- ments in the answer, and the opposing affidavits do not legally tend to establish the defense,^" or where the falsity of l^e answer is shown by record evidence,*" it may not be error to strike out the answer as sham. § 4. Proceedings where answer is stricken out. — Where an answer is stricken out as sham the proper mode of obtaining judgment is to proceed as if no answer had been put in. If an application to the court is necessary in order to enter judgment as by default, such application should be made; and if no ap- plication 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. FEivoLOtrs 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 38 Goodwin v. Thompson, 88 Hun 598; 34 N. Y. Supp. 769. 39 Kay V. Whittaker, 44 N. Y. 565, 571. See Miller v. Hughes, 21 How. 442. 40 Roblin V. Long, 60 How. 200. 41 See r>e Forest v. Baker, 1 Abb. N. S. 34 ; 1 Rob. 700. «2 Strong V. Sproul, 53 N. Y. 497, 498. 554 Feivoloits Pleadings. Kemedy for frivolous pleading. thereupon, and judgment may be given accordingly. If the ap- plication is denied an appeal cannot be taken from the deter- mination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs as upon a motion 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 pro- ceed 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 motion for judgment may be made although the time to serve an amended pleading has not expired ; and if the party who served the defective plead- ing desires to amend he should assert his right upon the hear- ing.^ And the motion may be made although the cause is noticed for trial. ° 1 Code of Civil Pro., § 537. 2 Roblin V. Long, 60 How. 200. 3 1 Burrill's Pr. 180. 4 Decker v. Kitchen, 21 Hun 332. 5 Siriani v. Deutsch, 12 Misc. 213 ; 34 N. Y. Supp. 26; Reese v. Walworth, 61 App. Div. 64; 69 N. Y. Supp. 1115. 6 Strong V. Sproul, 53 N. Y. 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. 7 Ross V. Ross, 25 Hun 642 ; Burrall v. Moore, 5 Duer 654 ; Lee v. Jacob, 38 App. Div. 531 ; 56 N. Y. Supp. 645. 8 Oppermann v. Barr, Daily Reg. Apr. 28, 1884. And see Beebe v. Mar- vin, 17 Abb. 194. Frivolous Pleadings. 555 What pleadings are frivolous. Tlie remedy prescribed by the Code for a frivolous pleading is a summary application to a judge in or out of court for judg- ment. 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 pro- nounced frivolous and indicative of bad faith in the pleader upon a bare inspection. If any argument is required to show tliat the pleading is bad it is not frivolous.^" A frivolous answer is one which, if true, does not contain any 9 Strong V. Sproul, 53 N. Y. 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. 251; Reese v. Walworth, 61 App. Div. 64; 69 N. Y. Supp. 1115; Soper V. St. Regis Paper Co., 76 App. Div. 409. The theory of the Code is that there is in effect no answer at all and that therefore the plaintiff should have judgment as for a failure to answer. lb. 10 Strong v. Sproul, 53 X. Y. 497; Cook v. Warren, 88 N. Y. 37; Youngs V. Kent, 46 N. Y. 672; Joseph Dixon Crucible Co. > . 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. 262; Shearman v. N". Y. Cent. Jlills, 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. 334; Rob- bins V. Palmer, 5 Week. Dig. 537; Delano v. Duchart, 2 Law Bull. 29; Webb V. Van Zandt, 16 Abb. 190; Griffin v. Todd, 48 How. 15; Zimmerman V. Meyrowitz, 77 App. Div. 329; Henriques v. Trowbridge, 27 App. Div. 18; 50 N. Y. Supp. 108; Vlasto v. Varelopoulos, 73 App. Div. 145; 76 N. Y. Supp. 771 ; Dancel v. Goodyear Shoe Machinery Co., 67 App. Div. 498; 73 N. Y. Supp. 875; Barney v. King, 37 St. Rep. 533; 13 N. Y. Supp. 685; Hagadorn v. Village of Edgewater, 37 St. Rep. 542; 13 N. Y. Supp. 687; German Exchange Bank v. Kroder, 13 Misc. 192; 34 N. Y. Supp. 133; Bedlow V. Stillwell, 45 App. Div. 557; 61 N. Y. Supp. 371; Wait v. Get- man, 32 App. Div. 168 ; 52 N. Y. Supp. 965 ; Lloyd v. Ballantine, 20 Misc. 141; Exchange Fire Ins. Co. v. Norris, 74 Hun 527; 26 N. Y. Supp. 823. 556 FitivoLous Pleadings. What pleadings are frivolous. defense to any part of the plaintiff's cause of action." If any defense 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 an- swer may be bad on demurrer and so held, and yet not be frivo- lous 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 incontrovertibly by a bare statement of it without argument.^" v 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 con- flicting decisions, and practically furnishes but an indifferent test of the frivolousness of the pleading. It has been held in a number of cases that a denial upon information and belief is un- authorized and insufficient; " and under the rule above stated, a 11 Nichols V. Jones, 6 How. 355; Lefferts v. Snediker, 1 Abb. 41; Hull v. Smith, 8 How. 149; 1 Duer 649; Reese v. Walworth, 61 App. Div. 64; 69 N. Y. Supp. 1115. "Kelly V. Barnett, 16 How. 135. 13 Mung-er v. Shannon, 61 N. Y. 251 ; Robert Gere Bank v. Innian. 51 Hun 97. 1* Fairchild y. Ogdensburgh, etc., R. R. Co., 15 N. Y. 337. See Soper v. St. Regis Paper Co., 76 App. Div. 409; Hull a'. Smith, 8 How. 149; 1 Duer 649. 1= Wait V. Getman, 32 App. Div. 168 ; 52 N. Y. Supp. 965; Dancel v. Good- year Shoe Machinery Co., 67 App. Div. 498; 73 N. Y. Supp. 875; Bedlow V. Stillwell, 45 App. Div. 557; 61 N. Y. Supp. 371. 16 Youngs V. Kent, 46 N. Y. 672. "Swinburne v. Stoekwell, 58 How. 312; Collins v. Suan, 7 Rob. 623; People V. McCumber, 15 How. 186; 27 Barb. 632; Cramer v. Comstoek, 11 How. 486; Phelps v. Ferguson, 19 How. 143; 9 Abb. 206; Bank of Wilmington v. Barnes, 4 Abb. 226. isPralt Manuf. Co. v. Jordan Iron, etc., Co., 33 Hun 143, 544; Swin- burne V. Stoekwell, 58 How. 312; Powers v. Rome, etc., R. R. Co., 3 Hun 285, Feivolous Pleadings. 557 Motion for judgment. court would be bound, on the authority of those cases, to adjudge an answer frivolous which consisted wholly of such a denial, al- though numerous 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 jus- tice 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 defense as sham, a motion to strike out irrelevant, redundant or scandalous matter, and a motion for judgment on the re- mainder 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 motion for judgment on a frivolous pleading must be made,^° but if the motion is in part to strike out irrelevant, re- dundant or scandalous matter, that part of the motion must be noticed before demurring or answering the pleading and within 19 See ante, p. 355. 20 Lattimer v. N. Y. Metallic Spring Co., 9 Abb. 207, note. " ! 21 Code of Civil Pro., § 537. 22 Piatt & Washburn Refining Co. v. Hepworth, 13 Civ. Pro. E. 122 ; Dar- row V. Miller, 5 Jlo-w. 247; Dancel v. Goodyear Shoe Machinery Co., 67 App. Div. 498; 73 N. Y. Supp. 875. 23 Kay v. Whittaker, 44 N. Y. 565; People v. MeCumber, 18 N. Y. 315; Bailey v. Lane, 13 Abb. 354. 2^ Bailey v. Lane, 13 Abb. 354. 20 Darrow v. Miller, 5 Hovr. 247. 558 Feivolous Pleadings. Motion for judgment. twenty days from the service thereof.^" Judgment may be given upon a frivolous answer although the time to amend has not ex- pired. ^^ But the defendant may defeat the motion by serving an amended answer before the hearing. ^^ A plaintiff has a right to move for judgment notwithstanding the fact that for prudential reasons he has put in a reply to the answer.^" Under the old system of practice no argument was ever al- lowed on an application of this character. The court on inspec- tion 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 per- mitted.'"' 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, is a matter of practice that addresses itself very much to the discr&- tion of the court. It is for the court to adjudge, upon an inspec- tion of the answer, whether its validity shall be determined at once upon the reading, or after a more formal and deliberate con- sideration and in the ordinary and usual course of procedure. An order denying the motion affects no substantial right, as no right is involved. 'So appeal can be taken from the order, and the denial does not prejudice any of the subsequent proceed- ings of either party.^^ On the hearing of a motion for judgment on an answer as 20 Rule 22, Sup. Ct. 27 Ross V. Ross, 25 Hun 642; Lee v. Jacob, 38 App. Div. 531. 2« Burrall v. Moore, 5 Dner 654 ; Curtis v. Baldwin, 4 Sandf . 690. 29Soper V. St. Regis Paper Co., 76 App. Div. 409; Place v. Bleyl, 45 App. Div. 17. 30 Joseph Di.xon Crucible Co. v. N. Y. City Steel Works, 57 Barb. 447; 9 Abb. N. S. 195. 31 Kay v. Whittaker, 44 N. Y. 565. 32 Wilkin v. Raplee, 52 N. Y. 248 ; Dabney v. Greeley, 12 Abb. N. S. 191 ; Code of Civil Pro., § 537 ; People v. Clyde, 69 N. Y. 603, 604. Feivolous Pleadings. 559 Order for judgment. frivolous the defendant may attack the complaint, and if that pleading does not state a cause of action the motion will be de- nied irrespective of the sufficiency of the answer."^ It is doubt- ful if the plaintiff can avail himself of any averments in the answer he characterizes as frivolous to cure defects in his own pleading.''* It seems that a motion for judgment upon a reply as frivolous is not authorized where the reply is not voluntarily served by the plaintiff to prevent the defendant from taking judgment upon a counterclaim set up in his answer, but is interposed under an order of the court to enable it to ascertain how far the allegations of the answer are admitted by the plaintiff and to what extent the defendant must make proof on the trial. ^° § 4. The order, and proceedings thereunder. — The judge to whom the motion is made may make either an absolute or a conditional 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. ^° ISTo leave can 33 Van Alstyne v. Freday, 41 N. Y. 174; Munger v. Shannon, 61 N. Y. 251; Wilkin v. Raplee, 52 N. Y. 248; McMahon v. Lange, 25 App. Div. 11; 48 N. Y. Supp. 1000. 34 Wilkin V. Raplee, 52 N. Y. 248. See Henriques v. Trowbridge, 27 App. Div. 18. 35 Henriques v. Trowbridge, 27 App. Div. 18. In the case stated in the text it is not proper for the court on motion for judgment on the ground that the reply is frivolous to proceed to hear arguments as to whether, assuming the facts alleged in the answer to be true, it overthrows the complaint and entitles the defendant to judgment. lb. 36 Witherspoon v. Van Dolar, 15 How. 266; Fales v. Hicks, 12 How. 153. That an amendment may be allowed on terms, see Stedeker v. Bernard, 4 Law Bull. 31. That the judge has no power to allow an amendment of a pleading adjudged frivolous, see Shearman v. N. Y. Cent. Mills, 1 Abb. 187, 190. 560 Feivolotjs Pleadings. Order for judgment. be given to the defendant to amend when he has served no affi- davit of merits/^ The order for judgment, if made at cham- bers, may be without prejudice to the right of the defendant to move at Special Term on affidavits for leave to amend his an- swer, 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 record and is included in the judgment-roll. Costs as on a motion may be awarded on the application.*'' 37 Bank of Lowrille v. Edwards, 11 How. 216; Appleby v. Elkins, 2 Sandi. 673. 38 Marquisee v. Brigham, 12 How. 399. 39 Stedeker v. Bernard, 10 Daly 466. 40 It would seem that the practice should be the same as on the decision of a demurrer. *i See King v. Stafford, 5 How. 30; Witherhead v. Allen, 28 Barb. 661. *2N. Y. Code of Civil Pro., § 537. Striking out Ieeelevant, etc., Matter. 561 What matter is irrelevant. CHAPTER XXIII. Striking Out Irrelevant, Redundant or Scandalous Matter. Section 1. What matter is irrelevant, redundant or scandal- ous. — The jSTew York Code provides that iiTelevant, redundant or scandalous matter contained in a pleading may be stricken out upon the motion of a person aggrieved thereby.'^ This power is not a new one given by the Code but oue which the courts have always recognized as existing and which they ha\'e not been slow to exercise in a proper case.^ The Code provi- sion for striking out irrelevant matter does not contemplate the striking out of an entire cause of action or of an ontire defense for stating insufficient facts to constitute a cause of action or a defense, but only the striking out of irrelevaut matter stated in a good cause of action or defense. It does not perform the office of a demurrer.^ A pleading is irrelevant when it has no substantial relation to the controversy between the parties to the suit ; * and an irrel- evant allegation is one which has no substantial relation to the controversy between the parties to the suit and which cannot affect the decision of the court because it has no bearing upon the subject-matter of the controversy; or, in other words, an allegation which, if true, does not tend to constitute a cause of action or defense.^ By irrelevant or redundant matter con- iN. Y. Code of Civil Pro., § 545. See Hill's Ann. Lawa, (Oregon) 375. 2 Park & Sons Co. v. Nat. Druggists' Assn., .30 App. Div. 508 ; 5'2 N. Y. Supp. 475. But see Uggla v. Brokaw, 47 App. Div. 310. sCardeza v. Osborn, 32 Misc. 46; 65 N. Y. Supp. 450. * Seward v. INIiller, 6 How. 312; Struver v. Ocean Ins. Co., Abb. 23: 2 Hilt. 475 ; Goodman v. Robb, 41 Hun 605. "Park & Sons Co. v. Nat. Druggists' Assn.. 30 .\pp. Div. .iOP ; 52 N. Y. TiGii Striking out Ireelevant, etc., JMattee. Redundant matter. tained in a pleading is meant matter impertinently or unneces- sarily stated in stating a cause of action in the complaint, or the defense, or a defense in the answer." flatter which, if prop- erly pleaded, would tend to set forth a cause of action or a de- fense, does not become irrelevant because of defects in form.' The test 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.^ There may, however, be allegations in a complaint not essential to the state- ment of a cause of action, but material on the question of dam- ages ^ or costs " that will not be held irrelevant. Redundant and irrelevant are not equivalent terms. Matter which 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 conclu- sions 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 Supp. 475; Lee Bank v. Kitching, 11 Abb. 435; 7 Bosw. 664; Fabricotti V. Launitz, 3 Sandf. 743; Cahill v. Palmer, 17 Abb. 196; Jeffras v. McKillop & Sprague Co., 2 Hun 351 ; 48 How. 122. '• Fasnacht ^ . Stehn, 53 Barb. 650; 5 Abb. N. S. 338. rDoran v. Dinsmore, 33 Barb. 86; 20 How. 503; Struver v. Ocean Ins. Co., 9 Abb. 23; 2 Hilt. 475. ^Doran v. Dinsmore, 38 Barb. 86; 20 How. 503; Bradner v. Faulliner, 93 N. Y. 515; .Jeffras ,. McKillop & Sprague Co., 2 Hun 351; Walter v. Fowler, 85 K. Y. 621; Dunton r. Haserman, 18 App. Div. 146; 46 N. Y. Supp. 758. n Root V. Foster. 9 How. 37. See Molony v. Dows, 15 How. 261. 10 See Van Rensselaer v. Brice, 4 Paige 174 ; Warner v. Billings, 53 N". Y. Supp. 805; Howard v. Tiffany, 3 Sandf. 695. 11 Bowman v. Sheldon, 5 Sandf. 657; Clough v. Murray, 19 Abb. 97; Park & Sons Co. r. Nat. Druggists' Assn., 30 App. Div, 508; 52 y. Y. Supp. 475. !-• Clark V. Harwood, 8 How. 470. IS \Vooden v. Strew, 10 How. 48; Williams v. Hayes, 5 How. 470; Brown Steiking out Iebelevakt, etc., ^Matter. 56;J Motion to strike out. the evidence of them are synonymous.^* And it has been held in a number of cases that the needless repetitions of denials in an answer may be stricken out as redundant.^'* § 2. The motion to strike out irrelevant and redundant mat- ter. — 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 dajs from the service thereof.^" The service of an au.swor, after notice of the motion has been given, is a waiver of the motion.'' Noticing the cause for trial will have the same effect,^'' as will also obtaining an order for an extension of time to plead. ^" But a stipulation extending a defendant's time to answer and to make such application as he shotild be advised, includes a mo- tion to strike out a p'art of the complaint.'" The motion should be 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 pre- scribed 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 ])arts or V. Fish, 37 Misc. 367; 75 N. Y. Supp. 460; Sehroeder v. Post, 3 App. Div. 411; 38 N. Y. Supp. 677. 1* Davenport Glucose Mfg. Co. v. Taussig, 31 Hun 563. 15 Ileteher v. Jones, 64 Hun. 274; Stieffel v. Tolhurst, 55 App. Div. 532; Uggla V. Brolvaw, 77 App. Div. 310; State of South Dakota v. McChesney, 87 Hun 293. 10 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. 2,S7; Barber V. Bennett, 4 Sandf. 705. 17 Goch v. Marsh, 8 How. 439. 18 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. 20 Lackey v. Vanderbilt, 10 How. 155. 21 Ford V. Mattice, 14 How. 91; Stewart v. Forat, 15 Misc. 621; 37 N. Y. Supp. 215. =2 Roosa V. Saugerties, etc., Co., 8 How. 237; Barber v. Bennett, 4 Sandf. 705. Contra, Rogers v. Ratlibone, 6 How. 66. 564 Steiking out Ieeelevant, etc., Mattee. Decision of the motion. portions of the pleading which he seeks to have expunged as irrelevant or redundant/'' The motion may be combined vsrith 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 to be irrelevant and redundant, and what parts are deemed frivolous. ^^ On a motion for judg- ment 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 mo- tion 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 in-elevant answers and defenses,^' and it was held in a number of cases that where an answer alleged matter, either as a total or partial defense, palpably foreign, inapplicable and imper- tinent to the cause of action, or frivolous, it might be stricken out as irrelevant.-' It will be noticed that section 152 of the Code of Procedure authorized the striking out of sham and irrelevant answers and defenses, and thus authorized the striking out of an Piitire answer or an entire defense if it was clearly 23 Bltike V. Eldred, 18 How. 240; Benedict v. Dake, 6 How. 352; Bowman V. Sheldon, 5 Sandf. 657 ; Biyant v. Bryant, 2 Rob. 612. i'+Kay \. Wliittakev, 44 N. Y. 565; People v. McCumber, 18 X. Y. 315; Bailey v. Lane, 13 Abb. 354. 25 Bailey r. Lane, 13 Abb. 354. 26 Thompson v. Erie Ry. Co., 45 N. Y. 468. 2T Code of Procednre, § 152. =sLittlejohn v. Greeley, 22 How. 345; 13 Abb. 311; Harlow v. Hamilton, fl How. 475; Van Bensehotcn r. Yaplo. 13 TTow. 07; Lee Bank v. Kitching, SteiivINg out Irrelevant, etc., j\Iattei;. 565 Decision of the motion. either sham or irrelevant; while section 160 of the Code of Pro- cedure provided that if irrelevant or redundant matter was in- serted in a pleading it might he stricken out on motion l)v any person aggrieved therehy. These two remedies were distinct ; and it was held that under section 152 the court was not author- ized to strike out the whole or a part of an answer as re- dundant,"" nor a part of an entire answer or defense as sham ; that the whole must he struck out or none ; ^'' but if the whole answer, denial or separate defense was false or irrelevant the remedy was by motion to strike out under section 152. On the other hand, if an answer, denial or separate defense, otherwise good, was loaded with unnecessary or redundant matter, the remedy was by motion to have the matter expunged, under sec- tion 1 60. On such motion the court had no power to strike out the entire pleading.^^ It was said that section 160 of the Code of Procedure was intended as a substitute for exceptions for impertinence as allowed under the former chancery practice, and that a whole pleading was never struck out for imperti- nence.^^ It was this later provision of the former Code that was substantially adopted and re-enacted in the first paragraph of section 545 of the Code of Civil Procedure, providing that irrelevant, redundant or scandalous matter, contained in a plead- ing, may be stricken out on motion of a person aggrieved thereby, while, in the revision, section 152 of the former Code which authorized the striking out of sham and irrelevant answers and defenses, was changed by the corresponding section 538 of the present Code by the omission therefrom of the word " irrele- vant " ; and it has been held that under the present Code there is no authority for the striking out of an entire answer or de^ 11 Abb. 435; 7 Bosw. 664; Thompson v. Erie Ey. Co., 45 N. Y. 468, 476; Drake v. Cockroft, 1 Abb. 20.3. 29 Fasnaeht v. Stehn, 5 Abb. N. S. 338 ; 53 Barb. 650. 30 Winslow V. Ferguson, 1 Lans. 436. 3iBlaI.:e v. Eldred, 18 How. 240. 32 Blake v. Eldred, 18 How. 240; Bogardus v. Metropolitan Street R. Co., 62 App. Div. 376. riGf) Stbiking out Ikkelevant, etc., Matter. Decision of the motion. feiise as irrelevant or redundant.^^ On the other hand, it has recently been held or intimated that there should be and is a remedy by motion for striking out redundant matter, even in those eases where it embraces an entire count pleaded as a sepa- rate defense; and that recourse may and should be had to this remedy where there has been a departure from the usual prac- tice to the prejudice of the adverse party by unduly lengthening the pleading or otherwise confusing or obscuring the issues.^* It has also been intimated, if not decided, that where an answer sets up a general denial, and in a subsequent count alleges mat- ter which cotild be proved under a general denial, the latter count may be struck out on motion.''* So where a general de- nial is set up in an answer and is unnecessarily repeated in subsequent counts of the answer coupled with affirmative de- fenses, whereby the plaintiff's right to demur to the affirmative defenses is defeated, the plaintiff may have the redundant de- nials stricken out on motion.'" Motions to strike from pleadings matter claimed to be irrel- evant are addressed largely to the sound discretion of the court. It is not an absolute right of a party to have it stricken out in all cases. The power to strike out such matter should be used with reluctance and caution." And this is especially true where 33 Colt V. Davis, 50 Hun 366, 369 ; Goodman v. Robb, 41 Hun 605 ; Walter v. Fowler, 85 N. Y. 621; Cardeza v. Osborn, 32 Misc. 46; 65 N. Y. Supp. 450; Frank Brewing Co. v. Hammersen, '22 App. Div. 475; 48 N. Y. Supp. 30. An unauthorized pleading may be stricken out on motion re- gardless of section 545 of the Code. Frank Brewing Co. v. Hammersen, 22 App. Div. 475; Uggla v. Brokaw, 77 App. Div. 310; Eidlitz v. Rothschild, ST H\in 243; Fitzgerald v. Rightmeyer, 12 Slisc. 186. ■1+ Uggla V. Brokaw, 77 App. Div. 310; 79 N. Y. Supp. 244. ■■■■■' Staten Island M. R. R. Co. v. Hinchliffe, 170 N. Y. 473, 481. And see Kraus V. Agnew, 80 App. Div. 1. ■loBurkert v. Bennett, 35 Misc. 318; 71 N. Y. Supp. 144; Stieffel v. Tolhurst, 55 App. Div. 532; 67 N. Y. Supp. 247; 8 N. Y. Ann. Cas. 453; State of South Dakota v. McChesney, 37 Hun 293; Flechter v. Jones, 64 Hun 534. 3T Town of Essex v. N. Y. & Canada R. R. Co., 8 Hun 361 ; Bradstreet ,', Bradstreet Co.. 14 St. Rep. 260 : Baer v. Seymour, 12 St. Rep. 167 ; Finger Steikikg out Ikeelevaxt, etc., Mattes. 567 Decision of the motion. the pleading assailed is interposed in an action of an equitable nature.^* Ordinarily a person should be left free to frame his own pleadings so far as the rules of good pleading will permit, and the matter which is claimed to be irrelevant or redundant should be stricken out only where the moving party is actually aggTieved by it.'** Neither should that power be exercised in sitch a way as to make the pleading, which otherwise would be good, defective upon demurrer ; *" and, in every case where the court is called upon to examine the pleading for the jvurpose of striking out portions of it which are said to be irrelevant or re- dtmdant, the irrelevancy must be clear and the redundancy un- questioned before the portions complained of ^vill be eliminated from the pleading.*'- Where the defendant in an action for per- V. City of Kingston, 20 St. Rep. 702; Town of Dunkirlc v. L. S. & M. S. R. Co., 75 Hun 366; 27 N. Y. Supp. 105; Vogt v. Vogt, 86 App. Div. 437. asParIc & Sons Co. v. Nat. Druggists' Assn., 30 App. Div. 508; 52 N. Y. Supp. 475; Town of Dunkirk v. L. S. & M. S. E. R. Co., 75 Hun 366; 27 N. Y. Supp. 105; Mrst Presbyterian Church v. Kennedy, 72 App. Div. 82. 39 Hynds v. Griswold, 4 How. 69; Pacific Mail Steamship Co. v. Irwin, 67 Barb. 277; 4 Hun 671; Younger v. DufBe, 26 Hun 442; Stokes v. Star Co., 69 App. Div. 21 ; 74 N. Y. Supp. 528 ; Tradesmen's Nat. Bank v. U. S. Trust Co., 49 App. Div. 362, 366; 63 N. Y. Supp. 526; Park & Sons Co. V. Nat. Druggists' Assn., 30 App. Div. 508; 52 N. Y. Supp. 475; First Pres- . byterian Church v. Kennedy, 72 App. Div. 82 ; Howard v. Mobile Co. of America, 75 App. Div. 23; Vogt v. Vogt, 86 App. Div. 437. 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. 53; Isaac v. Velloman, 3 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 embarrass 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 ease. Williams v. Hayes, 5 How. 470; Rensselaer, etc., Plank Road Co. 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. 40 Park & Sons Co. v. Nat. Druggists' Assn., 30 App. Div. 508 ; 52 N. Y. Supp. 475. ■11 Park & Sons Co. v. Nat. Druggists' Assn., 30 App. Div. 508; 52 N. Y. Supp. 475; Bogardus v. Metropolitan Street R. Co., 62 App. Div. 376. r)68 Striking out Ieeelevant, etc., Matter. Decision of the motion. sonal injviries alleges in his answer that damages and injuries sustained by the plaintiff were due to the negligence of the plain- tiff and were not the result of any negligence on the part of the defendant, the afErmative allegation will not be stricken out as redundant.*" And where the matter embraced in the motion, though redundant, does not tend to seriously prejudice the mov- ing party or incumber the record, the court will not be inclined to strike it out.*'' And though there are allegations in a plead- ing whidi might properly be stricken out as irrelevant and re- dundant 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 party by the retention of the allegations." The court has no power on motion of one of several defendants to strike out allegations relating to himself because they are ir- relevant to an alleged cause of action against some other defend- ant; ''^ and although the allegations of the complaint are irrelevant and redundant as against one of several defendants, he cannot have such allegations stricken out on motion if they are material to the cause of action against the other defendants.*^ 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 against a party or a defense, or as to his lia- bility upon a given state of facts, can properly be raised only by deniTirrer to such pleading.*' When a pleading contains a 42 Bogardxis v. Metropolitan Street R. Co., 62 App. Div. 376. 43 Clark V. Harwood, 8 How. 470; Denithorne v. Denithorne, 15 How. 2.'i2; White V. Kldd, 4 How. 68. 44Lugar V. Byrnes, 15 Civ. Pro. R. 72. 45 Haggerty v. Andrews, 94 N. Y. 195. 46 Brown v. Fish, 76 App. Div. 329; Hoflfman v. Wight, 137 N. Y. 621. 47 Morgan v. Bennett, 44 App. Div. 323; 60 N. Y. Supp. 619; Kelly v. Ernest, 26 App. Div. 90; 49 N. Y. Supp. 896; Burkert v. Bennett, 35 Misc. 318; 71 N. Y. Supp. 144, Steiking out Ieeelevant, etc., Mattek. 569 Decision of the motion. semblance of a cause of action or defense its sufficiency cannot be determined upon a motion to strike it out as irrelevant or redundant.*'' The remedy applies where too much and not where too little has been alleged. ^Vhether 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. The remedy applies only to de- fenses.*" If the plaintiff has improperly joined tw(> causes of action the remedy is not by motion to strike out the allegations concerning one of them but by demurrer."^" Where there is any doubt as to the necessity of inserting the matter sought to be stricken out as irrelevant or redundant the motion must be denied.^^ When the effect of granting the mo- tion would be to strike out an entire pleading it should be de- nied. ^^ So the motion should be denied where it seeks to strike out of an answer 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 re- tain 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 *8 Walter v. Fowler, 85 N. Y. 621; Ha^gerty v. Andrews, 94 N. Y. 195; Hubbard v. Gorham, 38 Hun 162; Eaton v. Burnett, 16 Jones & Sp. 548. 49 Whitehall Lumber Co. v. Edmonds, 22 St. Rep. 199; Fettrecht v. Mc- Kay, 47 N. Y. 427 ; Collins v. Suan, 7 Rob. 94 ; Walt Abb. N.C. 105; Peart v. Peart, 15 St. Rep. 476: 48 Hun 79. 29 Brooks V. Hanchett, 36 Hun 70. ■•'0 Matter of Wadley, 29 Hun 12. 31 Code of Civil Pro., § 769. :'2 See Hopldns v. Hopkins, 28 Hun 436. 33 Code of Civil Pro., § 780. 3* Bryant v. Bryant, 2 Rob. 612; Benedict v. Dake, 6 How. 352; Rathbun V. Markham, 43 How. 271; Blako v. Eldred, 18 How. 240; Nineteenth Ward Bank v. Manhattan Ry. Co., 56 App. Div. 618; 67 N. Y. Supp. 598. 35 Spuytcn Duyvill Rolling Mill Co. v. Williams, 13 Week. Dig. 280. Default. 575 Failure to serve complaint on demand. Upon the hearing of the motion it should be entirely clear that the pleading is insufficient before the court should inter- fere; and unless sucb is plainly the case the relief demanded should be denied.^" Wo 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 plain- tiff to make his complaint more definite and certain by amend- ment, 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 pro- ceedings pending the appeal.*" CHAPTEE 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 36 People V. Tweed, 63 N. Y. 194 ; 60 How. 38. ■5' Hopkins v. Hopkins, 28 Hun 436. fs Hughes V. Chicago, etc., R. W. Co., l.S Jones & Sp. 114. 39 Peart v. Peart, 48 Hun 79. ■w Brinkerhoff v. Perry, 59 How, 155. 576 Default. Failure to serve complaint on demand. State, his attorney may, at any time within twenty days after the service of the summons is complete, sei-ve 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 plaintiff's attorney to serve his complaint within that time, the defendant 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 limited by statute. If after the notice of motion is served the plaintiff 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 oppose the motion upon the merits. If he is in default, he should proceed at once to relieve himself from the default either by stipulation with the defendant's attorney or by appli- cation to the coiirt for leave to serve his complaint \inder section 783 of the Code of Civil Procediire.'* 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 mo- tion, though in either case the plaintiff should give due notice of the motion or, if the case reqtiires 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 1 Code of Civil Pro., § 479. See Code of Civil Pro., § S22. 2 Code of Civil Pro., § 480. s As to the covmty in which the motion must be made, see Code of Civil Pro., § 769; Johnston v. Bryan, 5 Hov7. .355. * Baker v. Gurtiss, 7 How. 478. 5 See Baker v. Curtiss, 7 How. 478. '■' ^ifavtin V. Gould, 9 .Tones & f=!p. •'i44. Default. 577 Judgment on failure to answer. default 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 plaintiff to judgment, and the only question then to consider is the procedure 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 application to the court. Judgment may be taken with- out application to the court where the complaint sets forth one or more causes of action, each consisting of the breach of an ex- press contract to pay absolutely or upon a eontingency a sum or sums of money, fixed by the tenns of the contract, or capable of being ascertained therefrom by computation only ; or an ex- press or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered hj, to or for the use of the defendant or a third person ; and there- U]x>n demands judgment for a sum of money only. This in- cludes 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 demand has been reduced by payment, counterclaim, or other credit." In such an action, if the summons was personally served upon the defendant and a copy of the complaint or 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 default in pleading, the plaintiff may take judgment i>v default as follows : 1. If the defendant has made default in appearing the plain- tiff must file proof of the service of the summons, and of a co]>v of the complaint or the notice; and also proof by affidavit that 7 See Tillspaugh v. Diek, 8 How. 33. 8 Sfee Harrison v. Wood, 2 Duer 50. « Code of Civil Pro.. § 420. ])EFAU7/r. Judtniicnt on failure to answer. the defendant has not appeared, whereupon the clerk must enter iinal judgment in his favor. ^. If the defendant has seasonably appeared, hut has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance, or of the appearance only, and also proof by affidavit 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 plain- tiff must apply to the court for judgment.^" Proof of the personal service of the summons must be made by affidavit, except as follows: 1. If the .sci-vice was made by the sheriff, it may be proved by his certificate thereof. 2. If the defendant served is an adult, who has not been ju- dicially declared to be incompetent to manage his affairs, the service 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 coTinty, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine. A certificate, admission or affidavit of service of a summons, unist 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 otherwise 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 if'Code of Civil Pro., § 1212. 11 Codp nf r!ivil Pro.. § 4:U. Default. Judffnient ou failure to answer. served the same, and that he knew the person served t(j he the person mentioned^ and described in the summons as defendant therein ; and also to state in his affidavit, that lie left with de- fendant such copy, as well as delivered it to him. Xo sucli service shall be made by any person who is less than eighteen years of age. Special averments are also required in matri- monial actions, as vyill be hereafter noticed.^" Where final judgTnent may be entered by the clerk as almvc 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 judg-ment ; or at the plaintiff's oiJtion, 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 plaintiff by computing the sum due u])on 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 aux other cause of action stated in the complaint. If an instrument specified 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 writ- ing 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 verifica- tion is a nullity.^" 12 Rule 18, Sup. Ct. 13 Code of Civil Pro,, § 121.3. 14 Code of Civil Pro., § 1219. isDix V. Palmer, 5 How. 2.33; Southworth ■» . Curtis. 6 How. 271, i«Van Horn v, ^Montgomery, 5 How. 238. 580 Default. Motion for judgment. The judgment entered by the clerk cannot be more favorable to the plaintiff than that demanded in the complaint,^'^ nor can it be less favorable unless the plaintiff consents to take judg- ment for a smaller sum than he has demanded in his complaint. The clerk has no discretion in the matter. The defendant by his default 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 admis- sion and concession he cannot afterward withdraw it and move to modify the judgment by striking out interest claimed by the plaintiff in his complaint and computed by the clerk and in- cluded in the judgment. The only proper remedy of the de- fendant if illegally 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 judg-ment 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 be attacked by a direct motion founded upon the irregiilar- ity comjdained of.^" § ,3. Application to the court for judgment by default. — Where the summons was personally served upon the defendant witliin the State, and he has made default in appearing, or where tlio defendant has appeared, but has made default in pleading, and the case is not one where the clerk can enter final judg-ment as prescribed in sections 1212 and 1213 of the Code of Civil Prdfpdure, the plaintiff must apply to the court, or to a judge i7('ude iif Civil Pro., S 1207. 18 Billiard v. Sherwood. 85 N. Y. 253. i»Sre Koelifr v. Dawson, 15 Civ Pro. K. 417; 21 St. Rep. 160; 2'2 Abb. X. C. 7:j. Default. 581 Motion for judgment. or justice thereof out of court, for judgment. Upon the appli- cation 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 demanded, proof of service thereof upon the defendant's attor- ney ; and, in either case, proof by afiidavit of the default which entitles him to judgment. If one or more of the defendants have appeared, and one or more defendants have failed to ap- pear, then the application for judgment must he made to the court, unless the defendants who have appeared consent to tlie making of such application to a judge or justice out of court."" The court, or a judge or justice thereof, must thereupon ren- der the judgment to which the plaintiff is entitled. It, or they, 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, or them, to render the judgment, or to carry it into effect; or it, or they, may in its, or their, discretion, direct a reference, or a writ of inquirj-, for either purpose; except that where the action is brought to re- cover damages for a personal injury or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or a writ of inquiry is directed, the court, or a judge or justice thereof, may direct that the report or inquisi- tion be returned to the court, or a judge or justice thereof, for its, or their, further action ; or it, or they, may in its, or their, 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 accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application.^^ " Where the plaintiff in an action in the Supreme Court is entitled to judgment upon the failure of the defendant to answer the complaint, and the relief demanded requires appilication to 20 Code of Civil Pro., § 1214. -'IN. Y. Code of Civil Pro.. § 1215. '>y2 L) J-; FAULT. .Motion for judgment. be made to the court, such application may he made at auy Spe- cial Term in the district embracing the county in which the action is triable, or, except in the first district, in an adjoining (bounty ; such application, except in the first judicial district, may also be made at a Trial Term in the county in which the action is triable. When a reference or writ of inquiry shall be ordered the same shall be executed in the county in which the action is triable unless the court shall otherwise order. In the first judicial district, every motion or application for an order or judgment where notice is necessary, must be made to the Special Term for the hearing of motions, and where notice is not necessary, to the Special Term for the transaction of ex jMrie business, except where other provision is made by law, or the general or special rules of practice. In the county of Kings all such applications shall be made at the Special Term for the hearing of motions. Any order or judgment granted in violation of this provision shall be vacated by the Special Term at which the application should have been made, or by the Ap- pellate Division of the Supreme Court ; and no order or judg- ment granted in violation of this rule shall be entered by the clerk." " In an action against several defendants, where judgment can- not be taken without application to the court, in case one or more of the defendants come in and defend and the others make de- fault, proof against those in default may be taken at the same time, and upon the trial of the issues, and judgment may then ]ye rendered upon the whole case. Whether such proof shall then be taken or at a separate time is a matter of practice to be regitlatod by the court in which the action is pending.^' .V defendant who has appeared generally but who has made default in pleading is entitled to at least five days' notice of the time and place of an assessment by the clerk, and to at least -■2 Rule 26, Sup. Ct. ; Brush v. MuUany, 12 Abb. :U4. =-iLyon V. Yates, 01 N. Y. 661. See Catlin ^. Billings, ]:i How. '.11; 4 Abb. 248. Default 583 Motion for judgment. 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 notice of eight days."'' In a case where an application for judgment must be made to the court, the defendant may serve upon the plaintitt"s attornc) , at any time before the application for judgment, a written de- mand of notice of the execution of any reference (n- ^vl•it of in- quiry which may be granted upon the application. Such a de- marid 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 inquiry must be given to the defendant by service tliereof upoji the jDerson whose name is subscribed to the demand in the man- ner prescribed by the Code for the service of a paper upon an attorney 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 miti- gate damages, such as immediate provocation in an action of assault and battery, and the like."' This is especially author- ized by the Code.^" A defendant, by default in answering, in a case where judgment can only be taken on application to the 2* Code of Civil Pro., § 1219. See S;iltns v. Kip, 2 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, 02: Arkenburgh v. .Vrkenburgli, 14 App, Div. 367; 43 N. Y. Supp. 892. 25 Citizens' Savings Bank v. Bauer. 49 Hun 238. 26 Code of Civil Pre, § 1219. 27 Saltus V. Kipp, 12 How. 342; 2 Abb. 382; 5 Duer 646; Lane v. Gilbert. 9 How. 150; Gilbert v. Rounds, 14 How. 46. 2R Code of Civil Pro., § 536. j84: Default. Motion for judgment. court, admits only the facts pleaded, and not the legal conclu- sions of liability, or its extent.'" He merely admits that the plaintiff is entitled to such relief as the facts properly alleged authorize.^" Thus, a defendant 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 damages, he must prove the facts which will entitle him to recover them." This, of course, the plaintiff may establish on the execution of the writ of inquiry, by witnesses called for that purpose, and the defendant may call witnesses to prove facts in mitigation of damages as before stated. But the defendant cannot prove a partial defense.^^ If. a material witness is absent from the State, a co mm ission may be issued to take his testimony,''^ and the testimony 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 cannot be withdrawn without the express permission of the court; and the statute prohibits a subsequent application for judginent at a term held by another judge, except where the first application is so withdrawn, or where the directions given there- upon require an act to be done before judgment can be rendered, or where the fact of the former application is stated, and the proceedings thereupon and subsequent thereto are fully set forth 2!) Billiard v. Sherwood, 85 N. Y. 25:i ; Gilbert v. Rounds, 14 How. 46. 30 Argall V. Pitts, 78 N. Y. 239, 243. 31 Gilbert v. Rounds, 14 How. 46. 32 Ford V. David, 1 Bosw. 569, 598. :'3 Code of Civil Pro., § 888. SI Code of Civil Pro., § 911. 3t; Code of Civil Pro.. § 1218. Default. 5S5 Where defendant was not personally served. in the papers upon which the application is made.'"' A person making an application so forbidden, with knowledge of the pre- vious 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 stmamons 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 com- plete, the plaintiff may apply to the court, or a judge or justice thereof, for the judgment demanded in the complaint. Upon such application he must file proof that the service is complete, and proof by affidavit of the defendant's default. The court, or a judge or justice thereof, must require proof of the cause of action set forth in the complaint to be made either before such court or such judge or justice, or before a referee appointed for that purpose ; except that where the action is brought to recover dam- ages for a personal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry as prescribed in section 1215 of the Code of Civil Procedure. If the defend- ant is a non-resident, or a foreign corporation, the court, or a judge or justice to whom such application is made, must re^ quire the plaintiff, or his agent or attorney, to be examined on oath respecting any payments to the plaintiff, or to any one for his use, on account of his demand, and must render the judg- ment to which the plaintiff is entitled. But before rendering judgment, the court, or a judge or justice thereof, to whom the application is made, may, in any case, in its or their discretion, require the plaintiff to file an undertaking to abide the order of the court touching the restitution of any estate or effects 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 repre- 30 N. Y. Code of Civil Pro., § 777. 3' N. Y. Code of Civil Pro., § 778. r>86 Default. In action of foreclosure. seutativG applies and is admitteil to defend the action, and siio ceeds 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 eon- tract 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 judgment 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 affi- davit, 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 undertaking has been re- quired.^' § 5. Judgment on failure to answer in action to foreclose a mortgage. — If, in an action to foreclose a mortgage, the defend- ant fails to answer within the time allowed for that purpose, 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 incum- brancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels, if the •18 N. Y. Code of Civil Pro., § 1216. 39 N. Y. Code of Civil Pro., § 1217. Djskault. 5s7 In action of foreclosnre. whole amount secured hj the mortgage 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 judgiuent of foreclosure and sale. Wiere 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 readi- ness for trial as to all the defendants, may apply 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 judgmeut, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees ; and if so, he must prodttce 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 judg- ment must show by affidavit or by the certificate of the clerk of the county in which the mortgaged premises are sittiated, 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 law.*" "Rule 60, Sup. Ct. See Code of Civil Pro., § 1631. 588 Default. In matrimonial actions. § 0. Default in matrimonial actions. — Einal 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 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 mar- riage, or for a divorce, or for a separation, a final judgment can- not be rendered in favor of the plaintiff upon the defendant'^ default in appearing or pleading, unless the summons and a cojjy of the complaint were personally served upon the defend- ant, or the copy of the summons delivered to the defendant, upon personal service of the summons, or delivered to him without the State, or poiblished, pursuant to an order for that purpose, ob- tained 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 mar- riage " ; " Action for a divorce " ; or " Action for a separation " ; according to the article of tlie Code vmder 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 de- fendant 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 does not permit the entry of final judgment annulling a marriage, or divorcing the parties after dissolving a marriage in an action brought imder either article first or second of title one of chapter fifteen of that act until after the expiration of three months after the filing of the deci- sion of the court or report of the referee and provides for the entry of an interlocutory judgment on the filing of the decision or report, and prescribes in general terms the matters which «N. V. Code of Civil Pro., § 1753; Kule 76 Sup, Ct. Default. 589 Failure to reply. may be included therein and the manner in which it may be enforced.^^ The Code prescribes the manner in which proof of the service of a summons may be made in ordinary eases/^ 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 sheriif.** In actions for divorce, or to annul a man-iage, or for separate maintenance, the affidavit, in addition to the ordinary requirements, must state what knowledge the affiant had of the person served being the defendant, and proper person to be served, and how he ac- quired such knowledge^ The court may require the affiant to appear in court, or before the referee, if a reference be ordered, and be 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 like manner.*'^ Every such cause must be heard after the trial of the issue or upon the coming in of the jiroofs at a Special Term of the court, and no judgment in an action for divorce cnn 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 an- swer, the defendant may apply upon notice for judgment there-- upon, 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, 42 N Y. Code of Civil Pro., § 1774. See Rule 76 Sup. Ct. 43 N. Y. Code of Civil Pro., § 434. 44 Rule 18, Sup. Ct. See antr, p. .57S. 45 Rule 18, Sup. Ct. *<•> Rule 76, Sup. Ct. i-! ^^. Y. Code of Civil Pro., § 515. (DO Default. Relief friim default. the defendant proceeds to take judgment against the plaintiff on his counterclaim in substantially the same mannSr that he would take judgiuent on the same cause of action if set up in a com- plaint and admitted by failure to answer. lie mast make due ]3roof 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. § 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 rea- sons why the party should not receive such favor other than the mere delay in pleading. The Code provides that after the ex- piration 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 discre- tion, and upon such terms as justice requires, relieve the party from the consequences 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 continue 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 ex- cusable 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.'"' 48 N. Y. Code of Civil Pro., § 78.3. ■m N. Y. Code of Civil Pro., § 7S4. n; Spkciai, PEOCEEi)i.\(is. Application of the rules of pleading. action ; the joinder therein of two or more canses of action, and the demand of judgment thereupon/ The Code prescribes the mode of service of the writ '' and tlie time when and place where it should be made returnable.'' Wlien 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 wi'it was served may be punished upon the application of the people, or of the relator, for a contempt of court. ^^ The return to an alternative writ .of mandanuis must be an- nexed to a copy of the writ ; and must be filed, in the ofiiee of the clerk where it is returnable, within the time specified in the writ. The return to a peremptory writ of mandamus must be likewise annexed to a copy thereof; and must, before the expira- tion of the first day of the term at which it is returnable, be either delivered in open court, or filed in the office of the clerk of the county wherein the term is to be held.^^ The return to an alternative writ may either deny the facts 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, constitut- ing as many good reasons for not performing 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 verifi- cation to an answer, and to a counterclaim contained therein, apply to a return to an alternative writ of mandamus, showing ' N. Y. Code of Civil Pro., § 2076. 8 N. y. Code of Civil Pro., § 2071. 9 N. Y. Code of Civil Pro., § 2072. 10 N. Y. Code of Civil Pro., § 2073. 11 N. Y. Code of Civil Pro., § 2074. 12 People V. Commissioners of Highways, 11 How. 89. 13 People V. Supervisors of Ulster, 32 Barb. 473. 596 Pleadings in Special Pbocbedings. Application of the rules of pleading. cause against obeying the command of the writ. For the pur- pose of the application, each complete statement of facts, as- signing 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 wi'it, as constituting a sepa- rate grievance, and make a return to the remainder of the writ. A demurrer may be thus taken, in a case where a defendant may demur 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 form.^^ A person who has made a return to an alternative mandamus cannot be compelled to make a further return. The people or the relator may demur to the return, or to any complete state- ment of facts therein separately assigned as a cause of disobey- ing the command of the writ, on the ground that the same is insufiicient 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 1-1 N. Y. Code of Civil Pro., § 2077. 15 N. Y. Code of Civil Pro., § 2076. 10 N. Y. Code of Civil Pro., § 2078. 17 N. Y. Code of Civil Pro., § 2079. PLE^UjrsGS IN Special Peoceedi:s'gs. Application of tlie rules of pleading. verify either, and that neither can be amended without special application to the conrt, 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 ujion the attorney for the defendant within twenty days after the service of such a notice. Where the defendant demurs to the vrrit, 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 mandaimis cannot be quashed or set aside upon motion, for any matter involving the merits. A mo- tion to set aside such a -wi-it 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 temi whereat the -writ might have been granted.^" The question whether a mandamus is the proper remedy, and whether the relator had another legal remedy, involves the merits of the action, and cannot be con- sidered 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 demurrer. ^^ The proceedings upon a writ of mandamus granted at a Spe- cial Term, may be stayed, and the time for making a return, or for doing any other act thereupon, as prescribed in this ar- ticle, 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 a term of the Appellate Division, an order staying the proceedings, or enlarging the time to make a return, can be made only by a justice of the Appellate Division of the "N. Y. Code of Civil Pro., § 2080. 19 N. Y. Code of Civil Pro., § 2081. 2» N. Y. Code of Civil Pro., § 2075. =1 People V. Supervisors of Oswego, 50 Hun 105. 598 Pi.icADixGH ].\ Speciaj. Peoceedinos. Pleadings in surrogates' courts. same department ; and where notice has been given of an appli- cation for a mandamus at a tenn of the Appellate Division of the Supreme Court, or an order has been made to show cause at such term why a mandamus should not issue, a stay of pro- ceedings cannot be gTanted 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 teehnipal 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 de- mand 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 veriiied, and a copy thereof tO' be served upon any other person interested. A party who fails to comply with such a requirement may be treated as a party in default. Ex- cept 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 mitst be entered in the records of the court.'^ All petitions and answers in the Surrogate's Court of the county of Xew York are required by the rules of the court to be in ^vriting, unless it is otherwise expressly prescribed by statute, and to contain a plain and concise statement of the facts constituting the claim, objection or defense, and a demand of the decree, order, or relief to which the party supposes himself to be entitled, and that the petition and answer shall be veriiied. The provisions of sections 52.3, 52+, 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 verified, where 22 N. V. Code of Civil Pro.. § 2080. 23 N. Y. Code of Civil Pro., § '2.-):W. Pleadings in a Justice's Court. T)!)!) The authorized pleadings — Korni. they can be so applied in substance without regard to the form of the proceeding."* CHAPTEE XXVII. Pleadings in a Justice's Couet. Section 1. Pleadings authorized 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. The plaintiff's demurrer to one or more counterclaims stated in the answer.'^ An issue is raised by the sersdce of an answer to the ])laintiff's complaint,; and although the answer contains a counterclaim, a reply thereto is unnecessary and unauthorized. As ;i 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 contro- verted by the plaintiff, and it is competent for him to counter- vail it by evidence either in direct denial or of new matter by way of avoidance.^ § 2. Form of pleadings in Justices' Courts. — A pleading in a Justice's Court may be oral or written except where it is an answer 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 =■1 N". Y. Code of Civil Pre, § 2534. 1 N. Y. Code of Civil Pro., § 2935. 2 Hodges V. Hunt, 22 Barb. 150; \Yilcox v. Pahueter, 2 Hun 517. 3N". Y. Code of Civil Pro., §§ 2940, 2951. •tLaws of 1881, chap. 414. coo Pi.EAuiNGS ii\ A Justice's Couet. Form. pleading is not reqiiired to be in any particular form ; but it must be so expressed as to enable a person of common under- standing 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 uni- formly 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 sufficient 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 off.** The Code does not in terms re- quire that a pleading in a Justice's Court shall be entitled, nor that distinct causes of action 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 require- ments would, perhaps, be inconsistent 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 advantage to prepare and file written pleadings properly entitled, separately stating each dis- tinct cause of action or defense, containing an appropriate de- mand 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 subsequent to the join- der of issue. How these several causes of action or defenses shall be separately stated or distinguished is unimportant if the 5 N. Y. Code of Civil Pro., § 2940. 8 Bradner v. Howard, 75 N. Y. 417. 7 Evans v. Williams, 60 Barb. 34(3 ; Willard v. Bridge, 4 Barb. 361 ; Van Curen v. Switzer, 33 St. Rep. 733. sN. Y. Code of Civil Pro., § 2941. Pleadings iisr a Justice's Couet. 601 The complaint. mode adopted is such as will apprise the adverse 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 judg- ment 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 Jus- tice'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 de- mand 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 understanding to know what is intended.'^* It must show that the plaintiff has a good cause of action and not leave the defend- ant 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 understand the precise nature of the plaintiff'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 9 Hall V. McKeehnie, 22 Barb. 244. 10 N. Y. Code of Civil Pro., § 481. 11 N. Y. Code of Civil Pro., § 509. 12 N. Y. Code of Civil Pro., § 3068. 13 N. Y. Code of Civil Pro., § 2936. 14 N. Y. Code of Civil Pro., § 2940. 15 People V. Judges of Oneida C. P., 21 Wend. 20. icWillard v. Bridge, 4 Barb. 361. 602 Pj^eadings in a Justice's Couet. The complaint. factfi (.'Oiistitutiiig the eauso of action, and by " facts " must he understood the ultimate facts to be proved, as distinguished from the legal conclusions of the pleader or the evidence by which the facts are to be established." It is not enough to state the nature or object of the action vyithout stating the grounds of the action. A complaint " for the recovery of per- sonal property valued at $85," does not state a cause of action in replevin or othervcise.^'* If the plaintiff sues upon an assigned demand the complaint should allege th'e assignment of the demand to the plaintiff as well as tbe facts which must necessarily have been stated had the action been brought by the former owner of the demand. If the plaintiff is an infant suing by his guardian the complaint should allege the infancy and show by proper averments the due appointment of the guardian by the justice.^** If the plain- tiff sues a receiver the complaint should state the time and mode of the ap'pointjnent so that the adverse party may take issue on such facts. ^" And generally, a plaintiff suing in a representa- tive capacity must allege facts showing that he is vested with the representative character which he claims and that he has a cause of action in that representative capacity. In short, he must show a cause of action existing in him in the capacity in ^vhich 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 appropri- ate langiiage 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 judgment at the conclusion of a written complaint or by a IT See anir, pp. 35, 36. 18 Howe Sewing ilachine Co. v. Haupt, 7 Daly 108. loHulbert v. Young, 13 How. 41.S ; Stanley v. Cliappoll, 8 Cow. -235; fJranlman ^•. Thrall, 44 Barb. 173. 2" Dayton v. Connah, 18 How. 326. 21 Gould V. Gla.sR, 19 Barb. 170; Fowler \. "Westervelt, 40 Barb. 374; 17 Abb. .59. Pleadings in a Justice's Court. G03 Joinder of causes of action — VerificationT 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 ac- tion where they arise out of 1. The sa:tie transaction, or transactions connected with the same subject of action; or -1. Contract, express or implied; or ;!. Personal injuries, and injuries to property, or either. But it mtist appear upon the face of the complaint that all causes of action so united belong to one of the foregoing sub- divisions ; 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 ac- tion for which a defendant might be arrested is united with a cause of action for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judgTiient.'"'' § 5. Verified complaint under the act of 1881. — It is provided by statute that " in any action brought in any of the Justices' Courts in this State arising on contract for the recovery .of money only, or on an account, the plaintiff or his agent, at or before the time of the issuing of the summons, may make a written comiDlaint, 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 pi'ovided liy section .526 of the Code of Civil Procedure. Said summons and complaint shall be at- "- See anie, p. 601. 2-1 N, Y. Code of Civil Pro., § 2937. 60i Pleadings in a Justice's Coukt. Tlie answer. tached and shall be served u^toh the defendant by delivering to and leaving with him personally trne 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."'^ Enough should be alleged in the complaint to clearly entitle the plaintiff to a judgment in his favor in case no defense is in- terposed, as in case the defendant fails to put in a verified answer on the return of the summons he is deemed to have ad- mitted 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 de- fault ought to authorize and support the judgment so entered. But where the complaint and summons are served upon the de- fendant within the county, the omission to state the places of residence of the parties in the complaint does not authorize an appellate court to reverse a judgment, entered upon the defend- ant'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 justice 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 21 Laws of 1881, ch. 414, § 1. 26 See ante, p. 81. 36 Laws of 1881, Ch. 414, § 4. 27 Hoffman v. Barton, 47 Hun 409. Pleadings in a Justice's Court. 605 The answer. 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 matters 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 com- plaint 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 information thereof sufficient to form a be- lief. 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 plead- ing new matter in defense in a Justice's Court as in a court of record,^^ and a much greater necessity for pleading a counter- claim.^^ 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 de- fect of parties plaintiff appears in the complaint in a Justice's Coiirt, the defendant may take advantage of it upon a motion 28 N. Y. Code of Civil Pro., § 2938. -0 Dennison v. Carnahan, 1 E. D. Smith, 419: 30 Laws of 1881, Ch. 414, § 2. 31 As to the matters provable under a general denial, see ante, p. .366. 32 See ante, p. 372. 33 See N. Y. Code of Civil Pro., §§ 2947, 2948. 34Frazier v. Gibson, 15 Hun 37; Able v. Clark, 31 Barb. 238. 606 Pleadinoh i.\ a Justicis's Couet. Answer of title to lands. for a nonsuit; '^^ but tliis doctrine has been questioned in later decisions.^" The Code does not in terms require that a demand of jud<;- nient shall in any case form a part of an answer in an action he- fore a justice of the peace ; but it authorizes a defendant in action of replevin to demand judgment in his answer for a re- turn of the chattel replevied with or without damages for the taking, withholding or detention thereof, if he 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 ac- tions depend upon the sum for which he has demanded judg- ment 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 in question. — The defendant may, with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. Such an answer must be in writing, and it must be sig-ned by the defendant or his attorney or agent, and delivered to the justice. The justice must thereupon counter- sign the answer and deliver it to the plaintiff.^" The defendant must also deliver to the justice with the answer a written under- taking 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 defend- ■'■-. Rice V. Hollenbeck, 19 Barb. 664. ^0 Frazier v. Gibson, 15 Hun 37, 40. HT N. Y. Code of Civil Pro., § 2930. .18 N. V. Code of Civil Pro., § 3008. :-nN. Y. Code of Civil Pro., § 20.")1. Pleadings in a JusTicji's Couet. 607 Answer of title to lands. ant 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 ma}' be issued to enforce a final judgment in the action to be brought. If the defendant fails to comply with the undertaking the sureties are liable thereupon to an amount not exceeding $200.*" 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.*^ 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 de- fendant may maintain an action against the plaintiff to recover his costs before the justice.*' If the undertaking is not delivered to the justice he has juris- diction of the action and must proceed therein ; and the defend- ant is precluded in his defense from drawing the title in ques- tion.*^ The answer of title is a nullity unless the undertaking- is given,** and unless the undertaking conforms to the require- ments of the statute.*" If, however, it appears upon the trial from the plaintiff's own showing that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint with costs, and render judg- ment against the plaintiff accordingly.*" Where an action before the justice has been discontinued upon *o N. Y. Code of Civil Pro., § 2952. " N. Y. Code of Civil Pro., § 2953. 42 N. Y. Code of Civil Pro., § 2954. 43 N. Y. Code of Civil Pro., § 2955. 44 Little v. Denn, 34 N. Y. 452; 1 Keyes, 235; 34 How. 68, 45 Kohlbrenner v. Elsheimer. 19 Hun 88, 40 N. Y, Code of Civil Pro., § 2956. 608 Pleadings in a Justice's Cotjet. Answer of title to lands. 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, per- fect by such new allegations as are needed for that purpose, such as a new allegation that the defendant is a corporation. The re- striction does not go to matters of form; the test is, does the complaint or answer 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 property 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 undertaking, as prescribed in sections 2951 and 2952 of the Code, with respect to the cause or causes of action only in which title will so come in question ; and thereupon the justice must discontinue the action as to those causes only, the plaintiff may commence 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 tres- pass upon lands, if the defendant interposes an answer that 47 N. Y. Code of Civil Pro., § 2957; McNamara v. Bitely, 4 How. 44. 48 Fox V. Erie Preserving Co., 93 N. Y. 54; Wiggins v. Tallmadge, 7 How. 405; Tuthill v. Clark, 12 Wend. 207; People v. Albany Common Pleas. 19 Wend. 123. 40 Dorman v. Lang, 3 How. 59. BON. Y. Code of Civil Pro., § 2958. 01 Weeks v. Stroble, 36 How. 123 ; Hinds v. Page, 6 Abb. N. R. 5R. liz Smith v. Mitten, 13 How. 325. Pleadings in a Jtistice's Couet. 609 Counterclaims. 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 com- plaint, omitting all claim for damages for trespass upon that part" § S. Counterclaims in Justices' Courts. — The counterclaim which may be interposed in a Justice's Court must tend in some way to diminish or defeat the plaintiif'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 be- tween whom and the plaintiff a separate judgment may bo had in the action : 1. A cause of action arising out of the contract or transac- tion 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 subject to the further limitation, that sucli a counterclaim can- not be interposed unless it is of such a nature that a Justice's Court has jurisdiction of a cause of action foimded thereon ; ''■"' and the counterclaim specified in the second subdivision of such statement is also subject to the following rules : 1. If the action is founded upon a contract, which has been assigi:ed by the party thereto, other than a negotiable prom- issory note or bill of exchange, a demand existing against the party thereto, or an assigiiee of the contract, at the time of the assignment 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 plaintiff's demand, if it might have been as allowed against the party, or the assigiiee wlu'le the contract belonged to him. 53 Shull V. Green, 49 Barb. 311. " N. Y. Code of Civil Pro., §§ 501, 2945. '■■■' N. Y. Code of Civil Pro., § 2945. 010 L'L£Ai)ii\if.s IX A rj ustice's Couet. Counterclaims. -!. If the action is upon a negotiable promissory note or bill of exchange which has Ijoen 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 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. Li. 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 con- tract uf>on which it is fovmded, a demand against the plaintiff shall not be allowed as a counterclaim : but so much of a de- mand existing against a person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's de- mand, 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 provides that a counterclaim cannot be interposed unless it i? of such a nature that a Justice's Court has jurisdiction of an action founded thereon. ^^ These general provisions have been considered in another chapter.^' The limitation that the coun- terclaim must be of such a nature that a Justice's Court has jurisdiction of a cause of action founded thereon, is not a lim- itation upon the amount _oi the counterclaim, and a defendant compelled to come into a Justice's Court to make his defense may interpose such counterclaim as he has without reference to its amount.'^'' Section .50.'') of the Code provides that in an action against an executor or an administrator, or other person sued in a represent- r.o N. Y. Code of (Jivil Pre, § 502, S7N, Y, Code of Civil Pro., § 294."i. ■"■» Sf'o utile, p. 41 1. r.oHei.ulo v. \\\\\U. :M llim .")SS. Pleadings jx a Justice's C'ouj;t. 611 Effect of failure to plead eounterelaim, ative capacity, the defendant may set forth, as a countercLaiiii, a demand belonging to the decedent or otlier person Avhom lie represents, where the person so represented would have been entitled to set forth the same in an action against him.''" Sec- tion 506 of that act provides that in an action brought by an executor or administrator in his representative ca^iacity, a de- mand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counter- claim 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, judg-ment must be rendered thercfur against the plaintilf, in his representative capacity; but execution can be issued upon such judgment only in a case where it could be issued upon a judg- ment in an action against the exectttor or administrator. These sections are made applicable to a coitnterclaim in an action in a Justice's Court against a person sued in a repre- sentative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff 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 tmder 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 chapter."" § 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 plaintiff as a cwunterclaim to an action brought against him, or he may bring an independent action upon his demand against the plaintiff. This is true only to a limited extent in a Jus- eo See ante, p. 417. 01 N. Y. Code of Civil Pro., § 294G. '■- See ante, p, 417. 612 Ple^udia^gs in a Justice's Court. Judgment upon counterclaim. tice's Court. Where the defendant, in an action brought in a Justice's Court to recover damages upon or for a breach of con- tract, neglects to interpose a counterclaim consisting of a cause of action in his favor to recover damages for a like cause v^^hich might have been allowed to him upon the trial of the action, lie, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an ac- tion to recover the same or any part thereof."^ But the above prohibition does not extend to either of the following cases: 1. Where the amount of the counterclaim is $200 more than the judgment which the plaintiff recovers. 2. Where the counterclaim consists of a judgment rendered l)efore the commencement of the action in which it might have been interposed. o. Where the connterclaim consists of a claim for imliqui- dated damages. 4. Where the counterclaini consists of a claim upon which another action was pending at the time when the action was commenced. 5. ^Vhere the judgment is taken against the defendant with- out personal service of the summons upon him or an appearance l)v him." § 10. Judgment upon the counterclaini. — ^Where a counter- claim is established which equals the plaintiff's demand, the judgnuent must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgiuent for the residue only. Where it exceeds the plaintiff's demand, the defendant niust have judgment for the excess, or so much tlioreof 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 plaintiff, the justice must, at the election of the defendant, either, «3 N. Y. Code of Civil Pro., § 2947. OJ X Y. Oddo ..f Civil Pro.. § 2048. Pleadings in a Justice's Couet. CIS Deiuuners. 1. Set off so mucli of the counterclaim as is sufficient to sat- isfy the plaintiff's demand, and render judgment for the defend- ant for his costs, in which case the defendant may maintain an action for the residue ; or 3. Render a judgment of discontinuance with costs ; in which case the defendant may thereafter maintain an action for the whole. AVliere 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 ranch thereof as the judgment does not cancel '''^ Where, upon the trial of an action, the total amount of the -accounts of hoth parties, proved to the satisfaction of the jus- tice, exceeds $400, judgment of discontinuance must he rendered against the plaintiff, with costs. ""^ § 11. Demurrers in a Justice's Court. — The defendant nu\y demur to the complaint, or to one or more distinct causes of ac- tion separately stated therein, where it is not suiSciently explicit to be understood, or where it does not state facts sufficient to constitute a cause of action. The plaintiff may demur to one or more counterclaims stated in the answer, where it is not suffi- ciently explicit 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 plead- ing 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 ;[}er- mitting the verification of pleadings in Justices' Courts con- tains the same pTOvision.*^ Before the amendment of that act in 1889, it was held in a number of cases, that where a de- cs jSr. Y. Code of Civil Pro., § 2949. OCX. Y. Code of Civil Pro., § 2950. See White v. Place, 40 Hun 481. 67 N. Y. Code of Civil Pro., § 2939. 08 Laws of 1881, Cli. 414. as amended bv Cli. 472. Laws of 1889. 614 Pleadings in a Justice's Couet. Joinder of issue. fendant appeared on the return day of the summons and de- murred to the verified complaint, although the demurrer might be overruled and the defendant did not put in an answer, never- theless the plaintiff could not have judgment upon his complaint without proving his cause of action in the same manner as if the complaint was unverified. This was so held because the stat- ute, as it then read, permitted the plaintiff to take judgment upon the verified complaint without proving his cause of action, only " in case the defendant fails to answer or demur to said complaint," and if the defendant demurred, the condition upon which the plaintiff might take judgment without proof did not exist. "^ The amendment has removed the gi-ounds of these 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 parties 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 ajy 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 ad- journment can b© had, except when the defendant refuses or neglects to plead." When the defendant makes default in appearini;- or pleading uix)n 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 appears.'" If the defendant fails to appear and an- «o Thomas v. Jones, 47 Hun 81 ; Oulman v. Schmidt, 35 Hun 345. 70 N. Y. Code of Civil Pro., § 2893. 71 N. Y. Code of Civil Pro., § 2934. 72 N. Y. Code of Civil Pro.. § 20SS. Pleadings in a Justice's Couet. 615 Amendments. swer the plaintiff cannot recover without proving his case/^ un- less a verified complaint was served with the summons under the act of 1881. If such a complaint has been served and the de- fendant fails to answer it as provided in that act, at the return of the summons, he will be deemed to have admitted the allega- tions of the complaint as true, and the court, on filing the sum- mons and complaint and 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 expira- tion 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 plaintiff's complaint although the cause has been adjourned to a subsequent 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 retura day, but does appear on a day to which the cause lias been ad- journed for the convenience of the ]>laintiff, he c;nmot then inter- pose an answer as a matter nf right, Imt may as a favnr, if the justice, in his discretion, pennits it,'' and the triaMias not com- menced.''* The justice cannot open a judgment to let the de- fendant interpose a defense, whether the judgment was rendered on the return day or on a subse(iuent flay,'" unless some special statute confers the power. § 1,3. Amendments of pleadings in Justice's Court. — In a •Tustice's Court a variance between an allegation in a pleading 73 X. Y. Code of Civil- Pro., § 2891; Blair v. Bartlett, 7.5 N. Y. 1.50. 74 Laws of 1881, Cli. 414, § 4, as amended by Laws of 1889, Ch. 472, § 2. 7= Lowther v. Crummio, 8 Cow. 87; i'ickert v. Dexter, 12 Wend. 150. 'oLowtlier v. CVummie, 8 Cow. 87; Sweet v. Coon, 15 Johns. 80; Alwood V. Austin, 16 Johns. 180; Pickert v. Dexter, 12 Wend. 150. 7' Sammis v. Brico. 4 Denio 576; .Jenkins v. Brown, 21 Wend. 454; Mead V, Darragh, 1 Hilt. .396. 78Montford v. Hughes, .3 E. D. Smith ,591, 593; ilcail r. Darragh, 1 Hilt. 396. TO Alburtis v. MeCready, 2 E. D. Smith 39 ; Harden v. Wnodside,- 2 E. D. 616 Pleadings in a Justice's Court. Amendments. and the proof must be disregarded as immaterial unless the ('(.)urt is satisfied that the adverse party has been misled therein' to his prejudice.*"' The court must, upon application, allow a jjleading 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 tlie plaintiff to amend his complaint by changing it from one form of action to another, as from an action for- a fraudulent representation 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 which 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 c^se, or, where the amendment does not change substantially tlie claim or defense, by conforming the pleading or other proceed- ing to the facts proved,*"* applies to all courts, including a Jus- tice's Court. *^ The court may amend by striking out the names of one of two plaintiffs,'*''' or the names of persons improperly joined as defendants,*' or by striking out a cause of action of Smith, 37; People v, Delaware, etc.. 18 Wend. .558: Dauchy v. Brown, 41 Barb. 555. xo N. Y. Code of Civil Pro., § 2943. siN". Y. Code of Civil Pro., § 2944; Walsh v. Cornett, 17 Hun 27; Wood V. Shultis, 4 Hun 309. 82Bigelow V. Dunn, 53 Barb. 570; 30 How. 120. 83Bird,sall v. Fuller, 11 Hun 204; Gilmore v. Burnett, 20 Hun 514. 8iN. Y. Code of Civil Pro., § 723. 85 N. Y. Code of Civil Pro., § 3347, subd. 6; Lapham v. Rice, 55 N. Y. 472. 80 Lapham v. Eice, 5.") N. Y. 472. 87 Lowe v. Ronimell, 5 Daly 17. Pleadings in a Justice's Coukt. 617 Amendments. 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 may still be interposed by way of amendment to the answer."' There is but little discretion vested in a justice in resi>eet to allowing an amendment of a pleading where an amendment is l>ermitted by the Code and will promote substantial justice, as in such case the right to amend is absolute, 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 supplemental answer, setting up a payment made since the joinder of issue, the amendment may be allowed on terms, such as the payment 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 deci- sion of a demurrer, and it is made to appear to the satisfaction of the court, hj 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 in- creasing the demand for judgment to the extent of the jurisdic- 88 Bull V. Colton, 22 Barb. 94. sfBabcock v. Lipe, 1 Denio 139. 90 Smith V. Mitten, 13 How. 32.5; Leonard v. Foster, 7 Hun 464. siEyan v. Lewis, 3 Hun 429. 92 Price V. Peters, 15 Abb. 197. 93 Ryan v. Lewis, 3 Hun 429 ; Wood v. Shultis; 4 Hun 309 ; Walsh V. Cornett, 17 Hun 27. 94 Hall V. Olney, 65 Barb. 27. 95 N, Y. Code of Civil Pro., § 2944. 618 Pleadings in a Justice's Couet. .-Xiiii'iidiiiciits. tion of the a^jpellate court,"" or by adding a new cause of action, altliough by so doing the defense of the statute of limitations is avoided. The Code authorizes the exercise of this power in the furtlierance of justice, and the only limitations prescribed by the statute is that when the amendment is effected by conform- ing 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 Couaty Court, that court has the same power to grant any amendment 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, as being for a cause of action of which the court has jurisdiction, the Cnunty Court on an appeal upon the law may amend the complaint to conform to the facts proved."" The general principles govern- ing amendments of pleadings in courts of record apply to amend- ments in a Justice's Court and on an appeal from a judgment rendered therein. '■°° 00 Simpson v. Rome, Watertown, etc., R. R. Co., 48 Hun 113. '" Cramer v. Lovejoy, 41 Hun 581. 98 Simpson v. Rome, Watertown, etc., R. R. Co., 48 Hun 113. 99 Argersinger v. Levor, 7 N. Y. Supp. 923. See Hall v. McKechnie, 22 Barb. 244; Doughty v. Crozier, 9 Abb. 411. 100 Kee ante, p. 503. Appendix oi*' Fokais. 619 APPENDIX OF FORMS. COMPLAIXTS. ]<[o. 1. Complaint against maker of a promissory note. See antej p. l-'Ofi. SUPEEME COURT — County of William Hand, Plaintiff, agst. John Knox. Defendant. The plaiiitiiT in this action, complaining of tlie defendant, al- leges : That heretofore, and on the day of , 111 , the defend- ant ahove named, for value received, made and delivered to the plaintiff his promissory note in writing, of "which the following is a cof>y: (Here set out a copy of the note.) That no i>art of said note has been paid {if a payment has been hinfle, add, exceiit the snm of , which was paid on the day of , 19 .) That there is now diie and owing to the plain- tiff from the defendant, on said note, the sum of and interest thereon from the day of , 19 , which sum and interest the plaintiff claims, and demands judgment against the defend- ant therefor, together with his costs and disbursements in this action. ' JOHN K. JONES, Plaintiff's Attorney. (Office and Posi-office address.) •5-0 Appendix of Foems. No. 2. Verification by party. See antej-]). 94. C'miNTY OP ,, ss.: AVilliam Hand, being dul}- sworn, says that he is the plaintiff in tho above-entitled action ; and that the foregoing complaint is true 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 t(.i before me, this dajr of ,19 Akdeew White^ Notary PuJdic for county. No. 3. Complaint against maker of a promissory note. See ante, p. 297. SUPLvEME COURT — County of \Mlliam Hand, PlaintiflF, agst. John Knox, Defendant. The plaintiff in this action, complaining of the defendant, al- leges upon information and belief: That heretofore, and on, the day of , 19 , 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 plaintiff. That said promissory note, by the terms thereof, became due and payable on tho day of ,19 , but tlie same has not, nor has any part thereof, been paid. Wherefore the plaintiff demands judgment against the said Appendix of^ Eoems. 621 defendant for the sum of , and interest tkereon from the day of , 19 , besides his costs and disbursements in this action. JOHN K. JONES, Plaintiff's Attorney. (Office and Post-office Address.) JSTo. 4. Verification by attorney. See ante J p. 96. CouisrTY OF , ss.: John K. Jones, being duly sworn, says, that he is the attorney for the plaintiff in the above-entitled action, and that the fore- going complaint is true to his knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters he belives it to be true. That said action is founded upon a written instrument for the payment of money onlj, which is now in deponent's jjossession for collection ; and that said instrument is the ground of deponent's belief as to all matters not stated upon his knowledge. JOHjST K. JONES. Subscribed and sworn to before me, this day of ,19 Andrew White, Notary Public for county. No. 5. Verification by attorney — full form. County of , ss. : John K. Jones, being duly .sworn, says that he is the attorney for the plaintiff in the a,bove-entitled action, and that the fore- going comijlaint is time to his knowledge, except as to 'those matters therein stated to be alleged on information and belief, and as to those matters he believes them to be true. And de- ponent further says that said action is founded upon an instru- ment for the payment of money only which is now in deponent's possession for collection ; that the defendant, John Knox, in (i-!2 Appendix of Forms. cmu'ci'satiuii witli dopoiieiit, has admitted that he made said instrument and that it is still unpaid ; and that the said instru- ment and the said admissions of the defendant are the grounds of deponent's helief as to all matters not stated upon his knowl- edge. That the reason "why this \'eriiication is not made li\' the plaintiff is that the plaintiff' is absent from the county of , and State of ISTew York, and is now sojourning at the '.'ity of Denver, Colorado. JOHX K. JOISTES. Subscribed and sworn to bef(_)re me, ) this day of , 19 . A AxnEEW White, Noianj Public In and for County. No. G. Complaint against maker and indorser. See ante, p. 299. SUPEEME COURT — County of Hervey Peed, Plaintiff, John Knox and Henry Steel, Defend- ants. The above-named plaintiff, for a complaint against the above- named defendants, alleges upon information and belief: That heretofore, and on the day of ,19 ,_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 , ]!«?". T., three months after the date thereof, and then and there de- livered the- said note to the said Henry Steel. That the said Henry Steel afterward indorsed the said note, and the same was thereupon, and before it became due and pay- a1>le for value received, duly transferred to the plaintiff. That herelol'ore, and when the said promissory note by the terms thereof became due and payable, to-wit, on the day of ,19 , the same was presented at the said , where the Appendis of Toems. 62.J same was made payable, by a notary public, for ]Dayment, 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-paj'- ment and pro^test sei-^red upon the said defendant Henry Steel. That the plaintiif incurred an expense of cents for the fees of said notary, for said demand, protest and notice, which remains unpaid. That the above-named plaintiif is now the owner and holder of the said promissory note and that no part thereof has been paid. The plaintiff demands judgment against tlie said defendants for the sum of dollars and cents, and interest from the day of , 19 , besides the costs of this action. J. C. B., Plaintiff's Attorney. (Office and Post-office Address.) Wo. 1. Complaint in action by payee against an indorser. See antCj p. 300. (Title of the cause.) Complaining of the defendant, the plaintiff alleges : That heretofore, and on the day of , 19 , 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 delivered 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-"\vit, on the (lax of , 19 , the same was presented at the said , where the same ■was made jiayable, by a notary public, for payment, and pay- 6:^-i Appendix of Forms. ment 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-pay- ment and protest served upon the' said defendant. That no part of said note lias 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 19 , besides the costs of this action. (Signature and Address.) ¥0. 8. Complaint against guarantor of payment of a note. See aniCj p. 304. (Title of the cause.) Complaining of the defendant, the plaintiff alleges : That heretofore, and on the day of ,19 , at , X. Y., one made and delivered to the plaintiff his promissory note in writing, dated on that day, whereby, for value received, he ])romised 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 "^^Titing, of which the following is a copy: (Here insert n full copy of iJir guaranty.) That said note l>ecame due and payable on the day of ,19 , and that no part of said note has been paid. Wherefore the plaintiff demands judgment against the de- fendant for the sum of , and interest thereon from the day of ,19 , together with his costs and disbursements in this action. ( Signatiirc plaintiff's attorney and Office and Post-offire Address.) Appendix of Foems. 625 No. 9. Complaint upon a guaranty of collection of a note. See ante, p. 304. (Title of the cause.) Complaining of the defendant, the plaintiff alleges: That heretofore, and on the day of ,19 , at , N. Y., one made and delivered to the defendant herein his promis- sory note in writing, dated on that day, whereby the said , for value received, 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 , 19 , 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 instruinent containing iJie guaranty.) That said note became due and isayable on the day of , 19 ; that on that day payment of said note was demanded of the maker and payment refused, and that said note is still un- paid; that on the day of ,19 , the plaintiff commenced an action in the court, upon said note, against the maker thereof, for the recovery of the amount due the plaintiff thereon ; that on the day of , 19 , the plaintiff recovered a judgment against the defendant 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 ,19 , an execution against the property of said was duly issiied to the sheriff of the county of , where said resided ; and that before the commencement of this action the said execution was returned by said sheriff wholly imsatisfied. That said judginent still remains wholly Tinpaid and unsatisfied. Wherefore the plaintiff demands judgment against the de- fondant in this action for the sum of (tJif amount of the judg- ment against the matter) witli interest thereon from the day of , 19 , together with his costs in this action. J. C. B., Plaintiff's Attorney. (Office and Post-office Address.) CrJI'i Appk\1)IX of Forms. No. 10. Complaint against the drawer and indorser of a check. See ante, p. 302. SUPREME COURT — County of Matthew Carpenter, Plaintiff, agst. James Oir and Henry Deland, De- fendants. ( 'oiujjlaiiiiiig of tLe defendants, the plaintiff alleges npon information and belief: That on the day of , lit , at , I^T. Y., the defendant .Tames Oit, for valne received, made his check in writing, dated on that day, directed to the Bank of , X. Y., and therein- 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 jjlaintiff for value ; that thereafter, and on the day of , 19 , 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-pay- ment and protest was duly given to each of said defendants ; that the plaintiff incurred an expense of for the costs of such ]>rotest ; that the plaintiff is now the lawfttl 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 de- fendants for , with interest thereon from , and the costs of this action. J. C. B., Plaintiff's Attorney. (Office and Post-office Address.) No. 11. Complaint by payee of check against drawer. See (tiifc. p. 301. ■( Title of llic caii.sc.) Complaining of the defendant, the plaintiff alleges: That on tlic day nf ,10 , at , N". Y., the above-named Appendix or Forms. 627 defendant made his check in writing, dated on that day, directed to the Bank of , N. Y., and therel)y required said Ijank to pay to the plaintiff or order the snm of , and delivered the said check to the plaintiff for value. That thereujwn, and on the day of ,19 , the said cheek 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 plaintiif is the holder and owner of said check ; and that no part thereof has been paid. Wherefore the plaintiff demands judgment against the de- fendant for , with interest thereon froni the day of , 19 , and costs of this action. .T. C. B., Plaintiff's Altorney. (Addrrss.) Xo. 12. Complaint by payee against acceptor of a bill of exchange. See ante, p. 302. (Title of the cause.) The plaintiff, for a complaint against the defendant, alleges : That on the day of , 19 , at , N. Y., one made his certain bill of exchange in writing, dated on that day, and di- rected to the defendant above named, whereby he required the said defendant 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 ,19 , the defendant accepted said bill. That he has not paid the same, or any part thereof. Wherefore the plaintiff demands judgment against the de- fendant for , with interest thereon from the day of , 19 , and costs of this action. .T. C. B., Plaintiff's Attorncij. (A ddrrss. ) 628 Appendix of Forms. No. 13. Complaint for goods sold and delivered. (Title of the cause.) Complaining of the defendant, the plaintiff alleges : That heretofore, and between the day of and the day of ,19 , the plaintiff sold and delivered to the defendant certain goods, wares and merchandise, consisting of (state gen- erally the kind of goods sold) of the value of , no part of which sum has been paid. Wherefore the plaintiff demands judgment against the de- fendant for , with, interest ffom the day of ,19 , besides the costs of this action. ( Signattirc and address of plaintiff's attorney.) No. 14. Complaint for goods sold and delivered. (Title of tlve cause.) The plaintiff complains of the defendant, and alleges : That on the day of ,19 , at , IST. 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 ,19 , and that the defendant has not piaid for said goods, or any part thereof. Wlierefore the plaintiff demands judgment, etc. No. 15. Complaint for money loaned. (Title of the cause.) FiEST. The plaintiff complains of the defendant, and alleges : That on the day of ,19 , at , the plaintiff loaned to the defendant, at his request., the sum of , which the defendant Appendix of Foems. 629 promised to repay to the plaintiff, with interest, on or before the day of ,19 , and that the defendant has not repaid to the plaintiff said sum, or any part thereof. Second. And for another and further cause of action the plaintiif alleges: That on the day of ,19 , 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 defendant has not repaid the same, or any piart thereof. Wherefore the plaintiff demands judgment against the plain- tiff for the sum of , with interest on $ thereof, from the day of ,19 , and on $ thereof from the day of , 19 , and the costs of this action. PAUL BEOWX, Plaintiff's Attorney. (Address.) 'No. 16. Complaint against administrator for money loaned decedent. See Adams v. HoUey, 12 How. 326. SUPKEME COURT — County ot William H. Adams Mary K. Holley, as Administratrix of the goods, chattels and credits of John 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 ,19 , 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 ad- ministratrix of the estate of said deceased.* That the said intestate, at the time of his death, was indebted to the plaintiff 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 JTidgniient, etc. 630 Appendix of Forms. No. 17. Complaint against administrator for money had and received by intestate. See Adams v. Holley, 12 How. 326. (Title and commenceinent as in p-eceding form to the* ) That the said intestate, at the time of his death, was indebted to the plaintiff in the snm of for money had and received by said intestate to the use of the plaintiff, and that no part thereof has been paid to the plaintiff. Wherefore the plaintiff demands judgment, etc. ISTo. 18. Complaint against administrator for money paid. See Adams v. Holley, 12 How. 326. (Title and rouinwiireineiit as in Form No. 16 to the ".) That the said intestate, at the time of his death, was indebted to the plaintiff in the snm 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. 19. Complaint for money paid for defendant's use. (Title of lire cause.) The plaintiff eay and did pay for the use of the defendant and at his request said sum in satisfaction of said judgment. Wlierefore the plaintiff demands judgment against the de- fendant for the sum of , with intei"est thbi'eon from the day of ,19 , and the costs of this actioui. D. C. M., Plaintiff's Attorney. (Address.) Wo. 20. Complaint for services rendered for the defendant. See Earron v. Sherwood, IT I^. Y. 327. (Title of the cause.) The plaintiff complains of the defendant, and alleges : That the defendant is indebted to the plaintiff in the sum of for work, labor and services done and iTerforuied 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 ,19 , and the commencement of this action, in and about quarrying, dressing, preparing, deliver- ing and laying certain building stones used in and about the erection of defendant's dwelling in said city ; tliat the said work, labor and services were reasonably worth the sum of ; and 632 Appendix of Foems. 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 de- fendant for the sum of , besides the costs of this action. D. G. M., Plaintiff's Altorney. (Address.) Ko. 21. 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 ,19 , the plaintiff and de- fendant entered into a contract whereby the plaintiff agreed to work for the defendant for six months, commencing on the day of ,19 , and the defendant agreed to employ the plaintiff for that period and to pay him for his services at the rate of $-10 per month ; that the plaintiff entered upon the performance of said contract on said day of ,19 , and worked for the defendant until the day of , 19 , when the defendant, with- out just cause, discharged the plaintiff and refused to allow him to render further services 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 sustained damage in the sum of $240. Wherefore the plaintiff demands judgment against the de- fendant for the sum of $210 and the costs of this action. JAMES MAXWELL, Plaintiff's Attorney. (Address.) No. 22. Complaint for breach of contract for future employment. (Title of the cause.) The plaintiff complains of the defendant, and alleges: That on or about the day of ,19 , the parties to this Appendix of Forms. 633 action entered into a contract, whereby tlie plaintiff agreed to sell goods for the defendant as traveling salesman for the period of six months, to commence on the day of ,19 , and the defendant agreed to employ the plaintiff as such salesman for the term aforesaid, and to pay him for his services at the rate of one hundred dollars per month, and, also, to pay all the necessary expenses of the plaintiff during such employment. That on the said day of ,19 , thfe plaintiff presented him- self to the defendant for the purpose of entering upon the per- formance 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 refused to per- form the contract on his part and to permit the plaintiff tayable t" the plaintiff on the day iif , 19 , for the rent of said premises for the quarter com- mencing on the day of ,19 , and ending the day of , 19 , and is wholly unpaid. Wherefore the plaintiff demands judgment against the de- fendant for the sum of , with interest thereon from the day of ,19 , and the costs of this action. A. B., Plaintiff's Attorney. (Address.) No. 25. Complaint for use and occupation. (Title of the cause.) The plaintiif complains of the defendant, and alleges: That on the day of ,19 , the above-named defendant went into possession of certain premises owned by the plaintiff in the city of TJtica, 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 t(i occupy said premises with pilaintiff's ]>ermission from that day until the day of , 19 . That such use and occupation was reasonably worth the sum of . That the defendant has not paid any part thereof. Appendix of Foems. 635 Wherefore the plaintiff demands judgment against tlie de- fendant for the snm of , and the costs of this action. A. J. ISr., Plaintiff's Attorney. No. 26. Complaint in action for foreclosure of a mortgage. See nnh, p. 262. SUPREME COURT — C()i:kty of James McNab, Plaintiff, agst. Jolm Dorn, Mary Dorn, his wife. Henry Kingsland, Emily Kings- land, his wife, Ira Vanderpool, and Asa, Holland. Defendants. Tlie above-named plaintiff, for a complaint against the above- named defendants in this action, respectfnlly shows to this coiirt npon information and belief: FiEST. That the defendant John Dora, for the purpose of securing the payment to of the sum of dollars, with in- terest thereon, on or about the day of , 19 , executed and delivered to the said a bond bearing date on that day, sealed with lii.s seal, whereliy the said John Dorn did bind himself, his heirs, executors and administrators in the i>enalty of , upon condition that the .same should be void if the said John Dorn, his heirs, executors, or administrators, shoTild pay to the said , his executors, administrators or assig-ns, the said si^m of luoney first above mentioned, as follows : (Heir insert the condition of the hand as to payments.) That as collateral security for the payment of the said in- debtedness the said John Dora and the defendant Mary Dorn, his wife, on the same day executed, duly acknowledged and delivered to the said a mortgage, whereby they granted, bar- gained and sold tfi the said the following described premises, with the appurtenances thereto, that is to say: (Here insert a description of tlie mortgaged preini.'roll in said action was duly filed in the office of the clerk of the county of ; that an execution against the property of the defendant was issued upon said judgment to the sheriff of the county of , (where said defendant then resided, 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 was collected, omit the last allegation, and allege) that tlie said sheriff collected upon said execution thfe simi of and returned the same unsatisfied 038 Appendix of Fokms. as to the remainder, and that no part of said mortgage debt has been collected excejit the said sum of That the defendants Henry Kingsland, Emily Kingsland, Ira Vanderpnol and Asa Holland have or claim to have some in- terest in or lien \ipon the said mortgaged premises, or some part thereof, which, interest or lien, if any, has accrued subsequently to the lieu of the said mortgage. The plaintiff, therefore, demands that the defendants and all persons 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 amoimt due on said bond and mort- gage, 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 may be ad- judged to pay any deficiency which may remain after applyiiig all of said mone3's so applicable thereto ; and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable. (Sigvntiire and address of plaintiff's attorney.) ISTo. 27. Complaint in action for the partition of real estate. See ante, p. 253. (TUlr of the cause.) The complaint of the above-named plaintiff respectfully shows to the court : That on or about the day of ,19 , A. F., late of the town of , county of , died intestate, leaving him surviving the defendant 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 vson of said A. F., his onlv heirs at law. Appexdix of Forms. 639 That at the time of his death the said A. F. was seized in fee- simple and was in ]»ssession of the following desci'ibed real estate, namely: (here liifn'ii a description of (he lands sought to be partitioned.) That bv 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 tlie above-desc;ril>ed piroperty. That the defendant M. F., as tlie widow of said A. F., has a right of dower in, the above^desci'ibed premises, which has never been admeasi-tred. 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 defendanrt 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 husband in said property. That the defendant T. F. is seized in fee of an vmdivided 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, subject 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. That no lands other than those above described are owned by the parties to this action as tenants in common. The i^laintiff, therefore, prays that partition of the real prop- erty above mentioned and described may be made by and under the direction of this court between the parties to this action, according to their respective rights and interests therein, and that commissioners may be appointed liy the court for the pur- pose 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 owners 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 640 Appendix of Foems. 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., Pkdntiff's Attorney. (Address.) No. 28. Complaint in action to recover chattels wrongfully taken. See ante J p. 213. (Title of the cause.) The plaintiff complains of the defendant, and alleges : That on the day of , 19 , and at the time of the com- mencement of this action, the plaintiff vs^as the owner and en- titled to the immediate possession of the following chattels, namely: (Insert description of the property.) That on said day of , 19 , the defendant wrongfully took the above-described chattels from the plaintiff's jxissession, 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 de- fendant 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 deliv- ered 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., Plaintiff's Attorney. (Address.) No. 29. Complaint in action for conversion. See ante, p. 219. (Title of the cause.) The plaintiff complains of the defendant, and alleges : That on the day of , 19 , the plaintiff was the owner and in possession of the following described property, namely: Appendix of Foems. 641 (Insert description of the pvpertij.) And that said property was reasonably worth the sum of That on said day of , 19 , 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 de- fendant for the sum of , and the costs of this action. B. D. S., Plaintiff's Attorney. 1^0. 30. Complaint for malicious prosecution. See aniej p. 224. (Title of the cause.) The plaintiff' complains of the defendant, and alleges : That on or about the day of ,19 , 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 , 19 at , X. Y., committed the crime of petit larceny, by steal- ing from the defendant's place of business at aforesaid, a certain , the property of the defendant, of the value of $ That upon said complaint, the said justice issued his warrant for the arrest of this ]>laintiff, and that upon said warrant the )>laiutiff was arrested by a constable of said town and taken be- fore said magistrate, and was there arraigned and held to bail for his further appearance before said magistrate on the dav of , 19 . That on said day of , 19 , the plaintiff appeared be- fore said magistrate, then holding a Court of Special Sessions, and was then and there by said court tried for the offense of ])otit larceny charged in said complaint. That the defendant herein attended said trial with couusid 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 a.cquif.tal and discharge of the plaintiff herein. Tliat said char2:e of larcenv was whollv false and unfounded : 642 • Appendix of Foems. that the defendant herein made said charge and caused the ar- rest, imprisonment and prosecution of the plaintiif therefor, maliciously and without probable cause. That by reason of said malicious and unfounded criminal prosecution by this defendant the plaintiff has suffered great damage and has been caused great mental distress, loss of time, physical discomfort, and expense. (Add allegations of special damage.) ^Vherefore the plaintiff demands judgment, etc. ITo. 31. Complaint in action of interpleader. See ante, p. 287. SUPEEME COUET — County of John Henry Small, Plaintiff, agst. Robert Morss and Harriet Earl, as Administratrix of the goods, chai> tels and credits of John Earl, de- ceased. Defendants. The above-named plaintiff, for a complaint against the de- fendants in this action, alleges: That in the month of June, 1902, the plaintiff herein pur- chased of John Earl, at , IST. Y., certain goods, wares and merchandise 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 January, 1903. That said John Earl died on or about the l.^)th day of December, 1902. 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, pur]X)rting to have been executed by said Earl on the 4th day nf December, 1902, 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 Plarriet Earl also claims to be entitled to the pay- ment 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 Appendix of Foems.* 643 issued to her by the surrogate of the county of Fulton on the 9th (lay of January, 1903 ; 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, and is void. That each defendant in this action has demanded of the plaintiif payment of the said sum of four hundred and twenty dollars, and each defendant threatens to commence an action against 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 dis- position of the subject of such claims ; that he is justly indebted to one of the defendants in the said sum of four hundred and twenty dollars, and is ready to pay the same to the defendant lawfully entitled thereto, and does not bring this action by col- lusion with either; but that the plaintiff is ignorant of the re- spective rights of the defendants, and cannot determine, without hazard to himself, to which of them the said money rightfully belongs ; 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 main- taining any action against the plaintiff for the recovery of the sum claimed by them ; that the defendants be decreed to inter- plead and settle their respective rights ; and that the plaintiff recover his costs in this action. Y. Z., Plainiiff's Attorney. ANSWERS. ISTo. 32. Answer — general denial. See ante, p. 350. (Title of the cause.) The above-named defendant, for an answer to the plaintiff's complaint in this action, denies (upon information and belief) each and every allegation in said complaint contained. 0. D., Attorney for Defendant, ISTo. 432 street, Utica, N. Y. (If the complaint is verified, add verification to the amwer as follows:) O-t-l Appendix of Foems. County of Oneida, .ss. ; E. F., being duly sworn, says that he is the defendant in this action ; that the foregoing answer is true to his 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. E. F. Subscribed and sworn before me, this day of , 19 . D. W., Notary Public in and for Oneida Co., N. Y. So. 33. Specific denials. See cDilr, p. 3.")(). (TUlc of the cause.) The above-named defendant, for an answer to the plaintiff's complaint in this action, denies that he made the promissory note mentioned in said complaint, or that he delivered the same to the payee therein named ; and also denies that he has any knowl- edge or information sufficient to form a belief as to whether said note was at its maturity presented at the Bank for pay- uieut, I IV whether payment thercDf 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, m- whether the plaintiff is the holder and owner thereof, or any or all of said matters. (Signatinr and c((flaint 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 ,19 , 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 646 Appendix of Foems. the defendant took said cattle into his possession, kept them in a secure place, and detained them from the plaintiff until the day of , 19 , when they were taken from the defend- ant's possession by the sheriff of said county under and in obe- dience to a requisition to replevy issued to him on behalf of the plaintiff in this action. That the taking and detention in mak- ing the distress as aforesaid is the pretended wrongful taking and detention alleged in the plaintiff's complaint as constituting his cause of action. Second. And for a further answer to said complaint the de- fendant denies each and every allegation therein contained not hereinbefore expressly admitted. V. P., Defendant's Attorney, Angola, N. Y. (Add verification J if the complaint is verified.) No. 3Y. Answer of title in third person in action of trover. See ante J p. 404. (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 defend- ant alleges : That at the times mentioned in said complaint the defendant was the sheriff of the county of ; that the property men- tioned in said complaint and therein alleged to have been wrong- fully taken and converted by this defendant was, at the time of said alleged taking and conversion, the property of one Y. Z. That theretofore, and on the day of , 19 , 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 <)ffice of the clerk of the county of , where said de- fendant, Y. Z., then resided ; that an execution against the prop- erty of the said Y. Z. was on the day of , 19 , duly Appendix of Forms. 647 issued on said judgment to tlie 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 suffi- cient thereof could not be found, then out of the real property of said judgment-debtor; that on the day of , 19 , this defendant, as such sheriff, and under and in obedience to the re- quirements of said execution, levied upon certain personal prop- erty 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 tlie 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. F., Attorney for the Defendant. (Office address.) (Add verification, if the complaint is verified.) ^o. 38. Partial defense to action for assault and battery. See ante, p. 343. (Title of the cause.) FiEST. For a partial defense to the entire complaint in this action the defendant alleges: That at the time and place stated in said complaint this de^ fendant was engaged in a private conversation with one 0. P., upon business matters ; that the plaintiff, who was a total stranger to defendant and h.ad no connection with or interest in the negotiations then in progress, officiously and offensively in- terfered 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 language and in applying op- probrious 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 wound- ing and beating of the plaintiff set forth in the complaint, and all of the same. (Uy Appendix of FoKjrs. Second. For a further answer to said complaint the defend- ant denies each and every allegation in said complaint contained not hereinbefore expressly admitted. (Signaiare and office address.) JSTo. 39. Answer setting up an equitable defense in foreclosure. See ante, p. 382. (Tillc of the cause.) The above-named defendant f. 451. (Title of the cause.) FiEST. The plaintiif demurs to the counterclaim contained in the defendant's answer to the complaint in this action upon the following grounds appearing upon the face thereof, viz. : 1. That the court has not jurisdiction of the subject of said counterclaim ; and 2. That the counterclaim does not state facts sufficient tarticulars of the claim so alleged against him, and will be unable to prop'erly prepare (his answer to said complaint, or) for the trial of this action, unless the plaintiff shall be required to furnish deponent with a bill of particulars of said claim. (Jurat.) JOITT^ DODGE. ISTo. .55. Notice of motion for a bill of particulars. See anie . p. Kll. (Title of the cause.)- Sik: — ■ Take notice, that u))on the affidavit of the defendant John Dodge, with a copy whereof you arc herewith sewed, and Appendix of Foems. G5D upon the complaint heretofore served in this action, this court M'ill be moved at the next Special Term thereof, to be held at the in the of , on the day of , 19 , 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 de- fendant'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 plaintiff), or for such other or further order or relief as the court may grant in the premises (with costs of tliis motion). Dated the day of , I'J . Yours, etc., TWIST & DODGE, Defendant's Attorneys. ^0. 411 street, Buffalo, X. Y. To Geoec+e Towne, Esq., Plaintiff's Attorney. No. 56. Order for a bill of particulars. See ante, p. 138. At a Special Term of the Supreme Court, held at the in the of , on the day of ,19 Present — ^ Hon. , Justice. SUPEEME COURT. William Skinner agst. John Dodge. On reading and filing the affidavit of John Dodge, the com- plaint in this action, and the notice of this motion, with proof of due service thereof upon the plaintiff's attorney, and after hearing Twist & Dodge, the attorneys for the defendant, in sup- port of the motion, and George Towne, Esq., attorney for the plaintiff, in opposition thereto, it is Ordeeed, that the plaintiff deliver to the defendant's attor- ney, within (twenty) days from the entry of this order and notice thereof, a bill of the particulars of the plaintiff's claim (duly verified), stating the (Ke7-e insert the matters as to irhirh the defendant desires a more particular siatevient). C60 Appendix of Foems. No. 57. Petition for a discovery of books, etc. SUPEEME COURT. Harvey Hoyt agst. Byron Kaymond. To the Supreme Court of the State of New Tork : 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 the day of , 19 , and that the time to an- swer said complaint will expire on the day of , 19 . That your petitioner is the owner of lands situated near the village of in the county of , through which flows a stream which has long been used by the petitioner and his grant- ors to furnish 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 plaintiff is the owner and in possession of lands lying along said stream above the lands of your petitioner ; and has broiight 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 Rudd 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 -Tune, 1870, the said Rudd 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 Rudd, his heirs and assigns, of the right to back water upon 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 l)cing rebuilt by your petitioner ; that afterward, the said Elijah Appendix of Foems. 661 Davis conveyed to the plaintiff the lands so p'urchased b}' him of said Kudd, by a deed containing, after a description of the land conveyed, the following clause, viz. : " Subject, however, to all rights of flowage reserved by Reuben Kudd in and by a eon- ^-eyance of the above-described premises bearing date the 3d day of June, 1870." That after the conveyance of said lands by Rudd to Davis as above stated, and on the 1st day of January, 1879, the said E.udd sold and conveyed the remainder of his land to your petitioner by a deed containing, in addition to the usual words of convey- ance and at the end of the description of the property conveyed, the following clause, viz. : " Together with all and singular the rights and privileges to back water upon 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 Sd 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 rebuild, restore and maintain said dam as it was for- merly 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, ex- tent and limit of such right ; that the particular information which he requires is contained in the deed from Reuben Rudd to Elijah Davis; and that the petitioner cannot obtain such in- formation 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 Reuben 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 wa? 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 , IST. 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 662 Appendix of Forms. ]>etitioiiei' 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 Trial Term is appointed to be held on the day of , 19 . Wherefore your pietitioner prays tliat an order be granted by this court requiring the plaintiff to produce said deed from Reu- ben Rudd to Elijah Davis, and allow your petitioner to inspect the samie, and to take a copy tliereof, and to that end that all other 2>roceedings in the action on the part of the plaintiff be in the meantime stayed, and that your petitioner have such other or further order or relief as to the court may seem just and proper in the premises. Dated this day of ,19 BYROlSr RAYMOND. State of Skw Yoek, ) Lounty of , \ Byron Raymond, being duly sworn, says, that he is the peti- tioner mentioned in and who subscribed the foregoing petition ; that said petition is true of his own knowledge, except as to the matters therein stated to be allegecj on infomaation and belief, and as to those matters he believes it to be true. BYROIST RAYilOAi^D. Subscribed and sworn to before me, ^ this day of , 19 . \ .ToHN McCatiij,, Notary Public. county. Xo. 5S. Order to show cause why an inspection should not be granted. At a Special Tei-m of the Sujireme Court, held at the , in the of , on the day of ,19 . Present — Plon. , Justice. SUPREME COURT. Harvey Hoyt agst. Byron Raymond. On reading and filing the petition of the defendant, Byron Appendix oi? Fokmh. 603 Raymond, bearing date the day of , 19 , and on motion of , Esq., attorney for said petitioner, it is Oedebed, 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 J\me, 1870, conveying certain lands 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 a])pointed to be held at the , in the of , on the day of ,19 , at the open- ing of the court, why the prayer of said petition should not be granted. And it is further ordered, that a copy of this (irder and of said petition be served upon the plaintiff's attorney on or before the day of , 19 And it is further ordered, that all proceedings on the part of the plaintiff be stayed until the hearing of said application. Xo. 59. Order for an inspection on return of order to show cause. (Title and caption as in preceding form.) An order having heretofore and on the day of , 19 , been granted in this action upon the jietition of the defendant therein, bearing date the day of , 19 , 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 Tune, 1870, or in default thereof, to show cause before this court at this term why the prayer of said ]>et.ition should not be granted. Xow upon the return of said order to show cause, and after reading and filing the same and the petition upon which it was granted (and proof of due service of a co]>y of said order and petition u]X)n the plaintiff's attorney on the day of 19 ), and upon also reading and filing the affidavit of the plaintiff verified on the day of , 19 , and after hearing of coimsel for the defendant in supjwrt of the application, and of counsel for the plaintiff in opposition thereto, and no sufficient cause having been shoAvn why the ]irayei- of said petition should not be granted, it is 664 Appendix of Fokms. Oedeeed, that, the plaintiff in this acition produce at the office of , defendant's attorney, in the of , ~N. Y., on the day of ,19 , at o'clock in the noon of that day, a certain deed, executed by Reuben Rudd 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 attor- ney, 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 tJiereof as relates to a reservation 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 , 19 ; that said order shall operate as a stay of all other proceedings 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 mo- tion 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. 563. (Title of the (xmse.) 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 ,19 , 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. : First. The last paragraph of the first defense in said answer reading as follows : (Quote tlie matter desired to he stricken out.) Second. (Specify in. some convenient manner all other mat- ter desired to be stricken out.) Dated , 19 . Yours, etc., A. B., Plainiiff's Attorney. To C. D., Esq., Defendant's Attorney. (Address.) Appendix of Forms. 665 No. 61. Order striking out irrelevant matter. See ante, p. 570. (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 after hearing A. B., of counsel for the plaintiff, in support of the motion, and C. D., of counsel for the defendant, in opposi- tion thereto, it is Oedejred, that the foUowirfg parts of the answer of the de- fendant in this action be stricken out as iiTelevant, viz. : (Here specify the parts eliminated.) And it is further ordered, that the defendant pay to the plain- tiff $10 costs of this motion. 'No. 62. Notice of motion to make answer more definite and certain. See ante, p. 574. (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 he held at the , in the of , on the day of ,19 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order requiring the defendant to make his ansvsrer more definite and certain by amendment in the following particulars, viz. : (Here point out the parts of the pleading deemed too indefinite and uncertain) or such other or further relief as the plaintiff may be entitled to in the premises, with costs of motion. Dated ,19 . Yours, etfi9. (Caption and title of cause as in form No. 56. J On reading and filing the pleadings heretofore served in this action, the notice of this application (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 opposition thereto), it is Oedeibed, adjudged and deteemined. That the answer (or demurrer, or reply) to the complaint (or answer) in this action is frivolous; that the plaintiff (or defendant) is entitled to judgment (here state the judgment to he entered), with $10 costs of this application ; and that judgment be entered accord- ingly. No. 69. Judge's order for judgment on a frivolous pleading. (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. YO. Notice of motion to strike out reply as unauthorized. See ante, p. 465. (Title of the cause.) SiE : — Take notice, that upon the pleadings heretofore served in this action, a motion will be made at a Special Term of this eourti, to be held at the in the of , on the day of ,19 , at the opening of the court, or as soon thereafter as coimsel can be heard, for an order striking out the reply of Appendix of Toems. 669 the plaintiff to the counterclaim set up in the defendant's an- SAS^r, 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 contained 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. 1^0. 71. Order striking out a reply as unauthorized. (Caption and title of cause as in form No. 66.) On reading and filing the pleadings in this action, and upon motion of C. D., attorney for the defendant therein, and after hearing A. B., attorney for the plaintiff, in support of the motion, it is Oedeeed, That the reply of the plaintiff to the counterclaim contained in the defendant's answer be and is hereby stricken out as unauthorized by the Code of Civil Procediire, with $10 costs of motion to be paid by the plaintiff to the defendant. No. 72. Notice of election to treat answer as a nullity for defective veri- ication. See ante^ p. 100. (Title of the cause.) SiE : — ■ Take notice, that the plaintiff elects to treat the with- in (or annexed) copy of the defendant's answer as a nullity, and returns the same to you for the reason that the copy of the verification thereof is insnfiicient in the following particu- lars, namely: (Here point out the defects complained of.) (Date.) Yours, etc., A. B., Plaintiff's Attorney. To C. D., Esq., Defendant's Attorney. 670 Appendix of Forms. No. 73. Notice of application for leave to file supplemental answer. See anfp, p. 539. SUPREME COURT. John Odell agst. Leonard Ihinn. Sir: — Take notice, that on the complaint and answer here- tofore ser^'ed in, this action, the affidavit of the defendant herein, a copj^ of which is heremth ser^'ed, and upon the pro- posed supplemental ansAver, a copy of which is also herewith served upon you, an application, will he made to this court at a Special Term thereof, to be held at the in the of , on th-e da.y of , 19 , at the opening of the court, or as soon, thereafter as counsel can be heard, for an order granting leave to the defendant to sen^e 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 sen'ed, and as a bar to the cause of action stated in the complaint, the recovery by this defendant of a judgment against the plain- tiff herein, before , Esq., a justice of the peace of the town of and county of , on the day of , for dol- lars 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 ,19 . C. D., Defendant's Attorney. (Address.) To , Esq., Plaintiff's Attorney. Wo. 7-4. Affidavit to obtain leave to file supplemental answer. See ante, p. ,539. SUPREME COURT. Jolin Odell agst. Leonard Dunn. County of , ss.: Leonard Dunn, being duly sworn, says, that he is the de- Appendix of Forms. 671 fendant in the above-entitled aotion,, tliat said action is brought to recover $10,000 as damiages for the alleged negligent and imskillful treatment of the plaintiff by the defendant as a l>hysioian, 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 ,19 ; that on the day of ,19 , deponent appeared in said action by , as his attorney, and served an ansvsrer to said coinplaint, d\ily verified, -vvhereby deponent admitted tliat he was at the times stated in the complaint a physician and surgeon, prac- ticing as such at , N. Y. ; that as such physician and surgeon he was employed by the plaintiff to aittend and treat him for the ailments from which he Was then suffering, and did treat him therefor for five weeks, and nndert^ook and agreed to use and exercise in such employment all reasonable and ordinary care and skill ; and also alleged that deponent did use and ex- ercise in siich ennployment such care and skill and denied each and every otlier allegation in said complaint contained. And deponent further says, that since the sendee of said answer upon the plaintiff, and on the day of ,19 , de- ponent commenced an action against the plaintiff herein before , Esq., a justice of the peace of the tOAvn of , coimty of , to recover from the p)laintiff herein the siun of dollars, for the services rendered by deponent as such johysician and surgeon in attending upon and treating the jjlaintiff lierein for the aihnents and under the employment mentioned in the com- plaint herin; that tlie plaintiff in this action appeared in the action before said justice upon the return day of the sum- mons and joined issue therein, and procured an adjournment of tlie trial thereof until the day of ,19 ; that on said day of ,19 , said action was tried before said justice, and a judgment was on that, day duly rendered in said action 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 jurisdich tion of said action,; that no appeal has been taken from the judgment rendered therein; and that said judgment is un- reversed. And this deponent further says, that he desires to set forth the recovery of said judgmetit before said justice as a bar to 672 Appendix op Foems. this action by way of a supplemental answer to the complaint herein, and in addition to the answer heretofore served. LEONARD DUNN. Subscribed and sworn to before/ me, this day of , 19 . I Maetiit p. Kincaid, Notary Pvhlic, county. No. 75. Order granting leave to serve supplemental answer. See ante, p. 541. At a Special Term of the Supreme Court held at the the of , on th© day of ,19 : Present, Hon. , Justice. SUPREME COURT. Jolm Odell agst. Leonard Dunn. On reading and filing the complaint and answer heretofore served in this aotion, the affidavit of Leonard Dunn, the de- fendant, in support of said motion, and , of counsel for the ant's proposed supplemental answer, the affidavits of John Odell and Henry Hart, and after hearing , of counsel for the de- fendant, in support of said motioui, and , of counsel for the plaintiff, in opposition thereto, it is Oedeeee*^ That leave be and is hereby granted to the de- fendant to serve upon the plaintiff within ten days from the date of this order, the supplemental answer read upon this motion on payment to the plaintiff of $10 costs of this motion (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 with- out costs to either party as against tlae other). And it is further ordered, that unless said answer (and stipulation) shall be sei-ved 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 de- fendant. Appendix of Forms. C73 No. 76. Supplemental answer setting up judgment in bar. See ante, p. 390. SUPREME COURT. John Odell agst. Leonard Dunn. Tlie above-named defendant for a siipiplemental answer. to the complaint in this action, and for a, fiutlier defense to the cause of action therein stated, alleges : That at the times hereinafter mentioned the parties to this action resided in the town of , coimty of , in this State. That on the day of , 19 , an. action in which the de- fendant herein was plaintiff, and the plaintiff herein was de- fendant, 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 tlierein, 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 ren- dered by him, as physician and surgeon, for the defendant there- in, and at his request, in attending and treating said defendant for certiain injuries from which he was suffering, between the day of , 19 , and the day of , 19 , and alleging that said services were reasonably worth the sum of dollars, and demanding judgment therefor. The defendant for an an- swer to said complaint denied each and every allegation thereof. That said action was tliereupon by consent of parties adjourned by said justice to the day of ,19 , upon which day it was brought to trial before the justice upon the issues raised by said pleadings, and such proceedings were duly had that on the day of ,19 , said justice duly rendered judgment in favor of the plaintiff and against the defendant in said action for $ damages, and $ costs, which judgment re- mains in full force, an.d is unreversed. That the senaces stated in the complaint filed with the jus- tice and for which judgment was rendered in favor of the plaintiff in that action as above stated, are the same services 674 Appendix of Forms. 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 tire damage for which he seeks to recover in. this action ; and this defendant alleges that all the issues involved in this action were conclusively deteitnined and adjudicated in his favor by the judgment ren- dered in said action before said justice. G. D., -Defendaivt's Attorney. (Address.) iS^o. 77. Notice of motion for leave to amend the complaint. See aniej p. 497. (Title of the cause.) SiE : — Take notice, that on the pleadings heretofore served in this action, and upon the affidavit of , and the proposed amended complaint, copies of wliich are herewith served, an ajiplieation will be made to the court at a Special Term thereof to lie held at tire , in the of , on the day of , 19 , at the o]>ening of the court, or as soon thereafter as coun- sel can be heaa'd for an order permitting the plaintiff to amend his crim,])laiiit in this action (by inserting therein a statement of the facts iieccssarY to charge the defendant, Y. Z., with the p-a^nnent of any deficiencv 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 ha-^'C such other or further relief as may be just. (Dale.) Yours, etc., A. B., Allorney for the Plaintiff. T. 583. (Title of the cause.) SiE : — Talce notice, that , Esq., tlie referee duly appointed by an order of this court made in the above-entitled action on the day of ,19 (with a copy whereof you are herewith served, to (stale the object of the reference), will attend at the office of , in the of on the day of , 1904, at o'clock in the noon, and will then and there execute said order and (taJce the proof, or account, or make the computation, or assessment) as in said order directed. Dated this day of , 19 . Yours, etc., A. B., Plaintiff's Attorney. To C. D., Attorney (or Agent) for Defendant. (Address.) Appendix of Forms. dSo Xo. 93. Notice of motion to open default and allow defendant to answer. See ante, p. 590. {Title of the cause.) SiE : — Take notice, tliat on the smixmons and complaint here- tofore served in tliis action, and on the affidavits of and , and the proposed answer of the defendant, with copies of which you are herewith served, an aipplication will he made to this court, at a Special Term thereof, to he held at the in the of , on the day of ,19 , at the opening of the court, or as soon thereafter as counsel can be heard, for an order set- ting aside the judgment 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 furtlirr relief as may be just. Dated this day of , 19 . Yoiu's, etc, C. D., Defendant's Attorney. (Office address.) To A. B., Esq., Plaintiff's Attorney. Xo. 91. Order opening default and allowing defendant to answer. Sec antCj p. 590. (Caiiiion and title of the cause as in form No. 56.) On reading and filing {specify all papers read on. the motion), after hearing C. D., of counsel for the defendant, in support of the motion, and A. B., of coiiusel for the plaintiff, in opposi- tion thereto, it is Oedeeed, That the judgment for $ , entered by the plain- tiff against the defendant in this action, on the day of , 19 , in the clerk's office of the county of , upon default of the defendant to answer the com]ilaint herein, be vacated and set aside, and the defendant be allowed to serve an answer to said complaint, and to defend tliis action, on payment to the plain- tiff of $ , costs included in said judgment, and $ , costs of this motion, witliin daj-s from the date of this order. 684 Appendix of Foems. No. 95. Affidavit of defendant's failure to appear. {Title of the cause.) County of , ss. . A. B., being duly sworn, says, tliat he is the attorney for the plaintiff in the above-entitled action, and that the defendant has not appeared therein. (Jurat.) (Signature.) No. 96. Judgment by clerk on failure of defendant to appear. See ante^ p. 580. SUPEEME COURT. Harvey P. McElwain agst. William H. Henderson. Judgment ,19 , at h. m. M. The summons, with a copy of the complaint in this action, having been personally served on the defendant, William H. Henderson, more than twenty days pi-evious hereto, exclusive of the day of service, and the defendant not having appeared therein. Now on motion of , plaintiff's attorney, it is hereby ad- judged that the plaintiff, Harvey P. MoElwain, recover of the defendant, William H. Henderson, the sima of dollars and cents, with dollars and cents, costs and disbursements, amounting in all to dollars and cents, and have execu- tiion therefor. , Clerl: Appendix of Forms. 685 PLEADINGS IN JUSTICE'S COUET. No. 9Y. Complaint in Justice's Court. See ante, p. 601. IN JUSTICE'S COUET — Befoee , Esq., Justice. James H. Perkins agst. Theodore Hoffman. The plaintiff complains of the defendant, and alleges : That at the time of the conmien cement of this action the plain- tiff was a resident of the town of , county of That on, the day of , 19 , at (in said county), the plaintiff 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 suitahle for a lady to ride, and was free from all defects, and sound. That at the time of said wa,rranty 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 f aots above stated, the plaintiff has sus- tained damage in the sum of $ Wherefore the plaintiff demands judgment against the de*- fendant for $ , and his costs in this action. 08G Appendix of Foems. No. 98. Answer of accord and satisfaction, in Justice's Court. See 'iide, p. 60.''>. m JUSTICE'S COURT — Befoeb , Esq., Justice. James H. Perkins agst. Theodore Hoffman. For an answer to the complaint in this action, tiie defendant alleges : That on the day of ,19 , defendant sold a horse to the plaintiff for $ ; and that aftenvard, and before the com- mencement of tliis 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 th.e defendant $ as damages for the breach of said warranty. That defendant thereupon paid to the plaintiff and the plain- tiff received from the defendant $ in full satisfaction and discharge of his claim for damages sustained by reason of such alleged breach <:if warranty. That the claim so satisfied and discharged is the same claim upon which the plaintiff seeks to recover in this action. :NTo. 99. Demurrer in a Justice's Court. See ante, p. 613. (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 (oj-, upon the ground that it is not sufficiently ex])licit to be understood.) INDEX TO APPENDIX OF FORMS. Account, Page. Demand of copy account 657 Copy account furnished on demand C.37 Verification of account GoT Affidavit, Of service of summons and complaint 654 Of service of summons and complaint in divorce 655 To obtain extension of time to answer 656 To obtain order for bill of particulars 658 To obtain leave to file supplemental answer C70 On application for leave to amend complaint 675 On motion to strike out amended answer ! . . 670 Of failure to serve summons after demand 679 Of failure to file summons and complaint 680 Of defendant's failure to appear 684 Answers, General denial 64o Specific denials 644 Statute of limitations 644 Payment 645 In replevin — cattle distrained doing damage 645 In trover — title in third person 646 Assault and battery — partial defense 647 In foreclosure — equitable defense 648 Former recovery and counterclaim 649 Supplemental answer — judf,Tnent in bar 673 Accord and satisfaction — Justice's Court 686 Bill of Particulars, Affidavit to obtain order for 658 Notice of motion for 658 Order for 659 Complaint, Against maker of a promissory note 619. 620 Against maker and indorser of a, promissory note 622 By payee against an indorser 623 Against a guarantor of payment of a. note 624 Upon a guaranty of collection of a note 625 68Y 688 Index to Appendix of Forms. Complaint — (Continued). Page. Against drawer and indorser of check 626 By payee of clieek against drawer 626 By payee against acceptor of bill of exchange 627 For goods sold and delivered 628 For money loaned 628 Against administrator for money loaned decedent 629 Against administrator for money had and received by intestate . . 630 Against administrator for money paid 630 For money paid for defendant's use 030 For services rendered 631 For wrongful discharge of servant 632 For breach of contract for futui'e employment 632 Upon an account stated 633 For rent 634 For use and occupation 634 For foreclosure of mortgage on lands 635 For partition of lands 638 To recover chattels wrongfully taken 640 In action for conversion 640 For malicious prosecution 641 In action of interpleader 642 In Justice's Court 685 Demand, Of copy complaint, and notice of appearance 654 Of copy account 657 Of judgment in replevin — defendant's notice 681 Of notice of execution of reference or writ of inquiry C82 Demurrer, Want of jurisdiction — another action pending — no cause of action stated 652 Misjoinder of parties plaintiff 652 Defect of parties defendant 653 To counterclaim or defense 653 To reply 653 In Justice's Court 686 Judgment, By clerk on failure of defendant to appear 684 Notice, Of appcaiance and demand of copy complaint 6."i4 Of motion for bill of particulars 058 Of motion to strike out irrelevant matter 664 Of motion to make answer more definite and certain 665 Of motion to strike out answer as sham 666 Of motion at Rporial Term for judgment on frivolous pleading. . . . 667 Of application to Jxidge for judgment on frivolous pleading 667 Index to Appendix of Foems. 689 Notice — (Continued). Page. Of motion to strike out reply as unauthorized 668 Of election to treat answer as a nullity for defective verification . . 669 Of application for leave to file supplemental answer 670 Of motion for leave to amend complaint 074 Of motion to strike out amended answer 676 Of motion for dismissal of complaint for non-service 678 Of defendant's demand for judgment in replevin 681 Of application to the court for judgment on default 681 Of execution of order of reference, etc 682 Of motion to open default and allow defendant to answer 683 Order, Extending time to answer 6.56 For bill of particulars tiTiO To show cause why an inspection should not be granted 662 For an inspection on return of order to show cause 663 Striking out irrelevant matter 065 Requiring answer to be made definite and certain 666 Striking out answer as sham 667 For judgment on a frivolous pleading 068 Striking out reply as unauthorized 669 Granting leave to serve supplemental answer 672 Granting leave to amend complaint 675 Striking out amended answer 677 Denying motion to strike out amended answer 678 Dismissing complaint for non-service 679 Requiring filing of summons and complaint 680 Opening default and allowing defendant to answer 683 Petition, For discovery of books, etc 660 Reply, To a counterclaim 651 Verification, Of complaint — by party 620 Of complaint — by attorney 021 Of answer 044 Of counterclaim 051 Of reply ' 651 Of copy account 057, 658 (lElSEBAL INDEX. Abatement, Page. Pleas in abatement before the Code 3S5, 389 Distinguished from plea in bar 385 Joinder of plea in abatement with plea in bar 385, 380, 389 Direction to jui-y to find separately upon the pleas 386 Pleas in abatement under the Code 386 Demand of judgment not necessary to the plea 386 Plea in abatement must be verified 85,386 Matter in abatement must be strictly pleaded 387 What defenses may be pleaded in abatement 387, 388 Non-Joinder of parties as a defense 387 How pleaded 387, 389 EfTect of failure to plead non-joinder 388 Plea of former action pending 387, 390 Abuse of Process, Alleging all the facts in a single count 76. 77 Complaint in action for abuse of legal process 226 When the action lies 220 Allegations of malice 220. 227 Acceptance, Allegation of acceptance includes authority to accept 49, 303 Need not be alleged to have been in writing 302 General allegation of acceptance sufficient 302 Promise to accept as an equivalent to acceptance 302 Acceptor, Complaint in action against acceptor of bill or check 302 Accord and Satisfaction, Defense must be pleaded 374 Account, Where pleaded in same manner as instrument for payment of money ,66. 69 How pleaded in other States 69 How pleaded in a justice's court luider the New York Code 600 Items of account need not be set forth 69 When a, party is entitled to a copy account 69. 117 Compelling delivery of a copy account (i9. 117 Demand of a copy account pleaded by adverse party 117. 11 S How and when made 118 691 692 General Index. Account — ( Continued ) . Page. Proceedings in compliance Avitli the demand 119 Requisites of the copy served on demand 119 Subscription verification, indorsement, etc 119 Need not state items of payments or offsets 119 Service 120 Proceedings on failure to comply with demand for copy account. . 120 Precluding party from giving evidence of the account 120 The motion, the order, and its terms 121 Proceeding where a defective copy account has been served 121 Motion to compel a f\irther account 121 Order directing a further account 122 Proceedings if the order is disregarded 122 Copy accoimt served forms no part of the complaint 118 Account Stated, Complaint in action upon an account stated 210 Facts insufficient to support the action 210, 211 Retention of a claim by an executor without objection 211 What may be shown luider a general denial in action on 369 Necessity of pleading it as a. defense 374, 375 Compelling deliveiy of copy account in action on 118 Bill of particulars may be ordered in action on 126 Accounting, Identity of causes of action for an accounting 318 Act of God, JIust be pleaded as an excuse for non-performance 380 Action Pending, When defense of former suit pending must be pleaded 375, 390 Pleading another action pending under the former system 387 What must be shown to sustain the plea 390 Another action pending as a ground of demurrer 310,, 311, 317 Objection must be specified as a ground of demurrer 317 Objection must appear on face of the complaint or petition.. 317 Court in which the former action is pending 317 Meaning of the word " action " 317 Action must be pending between the same parties 317 Cause of action in each suit must be the same 318 Administrator, Joinder of claims held as administrator with other claims 166 Joinder of causes of aclion against fidministrators 168 Complaints by or against administrators 171 Title of complaint should show representative diaracter . . . . 171 Allegations showing representative character 171 Statement as to the issuing of letters of administration 171 Statement of the cause of action 173 Construction of the conipLiint ] 73 Gexeual Ikdex. 693 Administrator — ( Continued ) . Page. Complaint in action for negligent killing of intestate 246 Want of capacity of foreiyn administrator to sue 316, 317 Counterclaims in actions bj' administrator 4i4 Counterclaims in actions against admini^tral(l^s 417 Judgment on counterclaim in action by ailministrator 445 Admission, Effect of a demurrer as an admission of facts 340 Omission to dciiv as an admission of facts pleaded 87, 348 Fact admitted by failure to deny cannot be eontiadicted 348 Failure to deny admits only facts well pleaded 'Md Only material allegations admitted b>- failure to deny o4!l Counterclaim is admitted by failure to replj' 458 Unauthorized counterclaim not admitted by failure to reply .... 404 Original pleading as an admission after amendment 490 Effect of failure to answer as an admission of a claim 580 Of validity of a claim by failure to object to it 210, 211 By pleading in form of a negative pregnant 350 Adultery, Allegations of adulteiy in actions for divorqe 268, 407 Answer denying adultery need not be verified 40.") Setting up plaintiff's adulteiy as a defense 406 Adverse Possession, Cannot be shown in ejectment under a general denial 374 Affidavit, Word " affidavit " includes a, verified pleading 82 Excusing omission of verification 88 Who may make the affidavit verifying a pleading 88 When agent or attorney may make affidavit of verification 91 Of verification by the party 94 Of verification by agent or attorney 96 Of verification by guardian 99 Of verification by officer of a corporation 99 Of failure to serve copy account on demand 121 On motion for a bill of particulars 134 On motion for extension of time to answer 47 1 On motion to compel filing of pleadings 479 On motion for leave to amend 497 On motion for leave to file supplemental pleading 539 On motion to strike out answer as sham 551 Not permissible on motion for judgment on frivolous pleading. . . . 557 Opposing motion to strike out matter as irrelevant, etc 504 Not required on motion to strike out irrelevant matter 563 On motion to dismiss complaint for non-service 576 Of service of summons and of defendant's default 577, 581 On motion for judgment in foreclosure 587 Of service of the summons in matrimonial actions 588 694 (JEXEKAl, [XDEX. Agent, Page. Alleging acts done liy agent as done b\' his principal liO, 178 Verification of 'opy account l)y agent US Verification of pleadings by an agent 88, 91 Form of verification by an agent 96 Showing revocation of agent's authority under a general denial . . 368 Defense that broker acted for both parties must be pleaded 375 Double employment must be pleaded as defense in action by agent. 375 Set off of demand against agent in suit by principal 419 Alteration, When alteration of bill or note must be specifically pleaded 374 Ambiguity, Construction of ambiguous pleadings '. . 104 States in which ambiguity is a ground of demurrer 211 Amendment, After decision of a. demuirer .....' 22.338 To defeat motion for bill of particulars 138, 487. 500 Of bill of particulars 141 Of pleadings once as of course 480 Right to amend without leave of court 480 How far the right is absolute 480 Time within which a party may amend as of course. .480, 483, 484 Service of amended pleading after notice of trial 481 Service of amended complaint after notice of motion 481 Effect of amendment on motions noticed 481, 482. 488 After demurrer 482 Can be but one amendment without leave of court 482 In action to determine claims to real property 4.S2 Cannot amend complaint as to one defendant without notice to the other 483 Waiver of ripht to amend as of course 483 Xature and extent of amendments as of course 484 Setting up new causes of action or new defenses. . . .484. 4S.'i Amendment causing misjoinder of causes of action 485 Xo restriction as to nature of defense added by amend- ment -IS."! Changing place of trial by amendment of complaint. . . . 486 ' Changing prayer for relief by amendment 486 Adding or striking out parties 486 Matters occurring since original pleading was served. . . . 486 Substitution of answer for demurrer 487 Answer changed only as to form and phraseology 487 Adding verification to unverified pleading 487 Omitting demurrer improperly joined with answer 488 Effect of an amendment as of course 488 .\mended pleading supersedes the original 488 General Index. 695 Amendment — ( Continued ) . Page. How far amendment defeats notice of trial or motion 481, 482, 488, 489 Original pleading as evidence 490 Remedy for improper amendments 490 Where the amendment is for delay only 490 Motion to strike out pleading improperly amended .. 490, 491 Service of pleadings amended as of course 492 On motion before trial 492 Nature and extent of amendments allowed on motion 492 Statutory limitation upon power of Special Term 49.3 Defenses which may be added by amendment 494, 495 Inherent power of the Special Term to allow amendments . . . 495 Amendments as to parties 495, 496 Increasing demand for judgment 496, 497 The motion for leave to amend 497 The decision of the motion and the order thereon 499 How far the order is discretionary 499 Effect of laches in moving for leave to amend 499 Useless amendments 500 Falsity of the proposed amended pleading 500 Setting up cause of action barred by statute 500 Where bill of particulars of counterclaim has been ordered 500 Form, contents, and entry of the order 501 Amendment limited by the order 501 Terms imposed on granting leave to amend 501 Service of the order and amended pleading 502 Of pleadings at the trial 503 Conforming pleadings to the proofs 503 Extent of the amendment authorized 503, 504, 505 Stage of the trial at which the application may be made 504, 506, 507, 510 New cause of action or new defense cannot be added on the trial 505. 507 Nature of the action cannot be changed on the trial. . . .505, 50G Amendments wliich cannot be permitted at the trial. .. .505, 506 Test to determine whether amendment sets up new cause of action 506 Illustrations of amendments to conform pleadings to proofs 507, 508, 509 Proceedings in ease of variance between pleadings and proofs. 511 Material and immaterial variances 511, 515 Amendment where variance is immaterial 511 When no actual amendment is required 511, 512 When an actual amendment may be required 513, 514 696 General Index. Amendment — ( Continued ) . Page. Right of one party to amend after amendment by the other 513 Oral statement of amendment or trial before a referee.. 513 SerA'iee of amended pleading 514 Proof that party has been misled by the variance. . . .511, 515 Insertion of allegations material to the ease 515 Amendment on the trial as to parties 517, 520 Extent of the power of the court to strike out u party. . 517 In actions against members of a limited partnership. . . . 518 In actions against stockholders of corporations, etc 519 Misnomer 519 Power of a referee to amend pleadings on the trial 520 Of pleadings after trial or on appeal 522 Power to amend pleadings after trial 522 Defects which will not impair or affect the judgment 523 Nature of the amendments allowed upon appeal . 524, 525, 526, 527 Of supplemental pleadings 545 Of pleadings in justice's court 615 On appeal to the County Court 617 Answer, Contents of an answer under requirements of the Code 17, 342 Must contain a denial, defense or coimterelaim 343 Maj' contain both denial, defense and counterclaiin 433 Inconsistent defenses may be set up 56, 343 Legal or equitable defenses may be set up 343 Separately stating and numbering defenses 343 Partial defenses may be pleaded under the Code 30, 343 Not permitted at common law 30 How stated under the Code 30, 343, 345 What constitutes a partial defense 30, 344, 345 Sufficiency not determined by strict rules 344 Demand of judgment in an answer 346 When no demand of judgment is necessary 346 When the answer must contain a demand of judgment 346 When relief not demanded in the answer may be awarded .... 347 Demand of judgment as against a co-defendant 347 By notice, in replevin 347 Omission to deny as an admission of facts pleaded 348 Fact admitted by failure to deny cannot be contradicted or varied 348 Rule applies to material facts impliedly pleaded 349 Failure to deny immaterial allegation not an admission .... 349 Form and sufficiency of general or specific denials 350 Requisites of a valid denial 358 Rule in California, Utah, Montana and Connecticut. .. .350, 351 Rule under the New York Code 351 General Index. 697 Answer — ( Continued ) . Page. General and specific denial of the same allegation .'i51 May be specific denial as to part, and general denial as to residue 351 Phraseology of general or specific denials 351 Common form of general denial 352 How far qualifying words are permissible 352, 353, 354 Denials of allegations contained between specified folios . . 354 Denial of a numbered paragraph 354 Where defendant has no personal knowledge, but has information 355 Negative pregiiant is in effect an admission 356 Denials following strictly the language of the complaint. . . . 357 Denial of a series of allegations nrust be disjunctive 358 Denials upon information and belief 358 The rule in Colorado 359 The rule in California 359 By one member of a firm having the means of information . . 359 Where the allegations denied are matters of public record. . . . 359 Denials of knowledge or information sufficient to form a belief. . 360 The correct form of such denial 361, 362 Not absolutely essential to f pllow precise words of statute . . 362 Not authorized in all courts 363 Of matters contained in public records 363, 364 Of matters presumptively within defendant's knowledge 363 Pleading other matters in connection with denials 364 Denials as " defenses " 365 Effect of mingling denials with matters of defense 365, 366 Improper to plead as defenses matters embraced in general denial 366 What may be shown under a general denial 366 Facts tending to controvert material allegations of complaint 366 Impeaching validity of contract as against public policy .... 368 In action for goods sold and delivered 368 In action upon an account stated 369 In ejectment 369 In replevin 369 In actions of trespass or trover 369, 370, 371 Controverting extent of damages alleged 370 In action for slander 370 In action for seduction 371 In action for unlawful seizure of goods 371 In action for partition 371 In action for services 371 Showing title out of the plaintiff under general denial 369, 370, 371, 404 Defenses which must be pleaded to be available 372 698 General Index. Answer — ( Continued ) . Page. Defense which confesses and avoids must be pleaded 372 New matter must be pleaded 373 Payment in whole or in part 373 Former action pending 373, 375 Statute of limitations 373 Adverse possession 374 Ultra vires 374 Invalidity of contract in suit 374 Alteration of bill or note 374 Former adjudication 374 Defect of parties plaintiff 374 Misjoinder of plaintiffs 374 Want of consideration of sealed instrument or note 374. 37.5 Accord and satisfaction ' 374 Account stated and payment of a balance 374, 375 Plaintiff not the real party in interest 375 Duress 375 Want of jurisdiction of foreign court 375 Right of way by prescription 375 Release 375 Double employment by broker suing for commissions 375 Want of legal capacity to sue 375 Fraud 375 Statute of frauds 375,376 Adequate remedy at law as a defense in equity 377, 378 Usury 378 In action for infringement of trade mark 378, 379 Municipal authority to do the act complained of 379 In action by employee against city 379 Award 379 Former adjudication 3 1 9 In action by vendor to enforce his lien 379 In action upon a policy of insurance 380 Act of God 380 License 380 Mitigating circumstances in action fof slander 380 Failure to perform condition precedent 380 Estoppels in pais need not be pleaded 380 Denial of corporate existence 381 Equitable defenses 382 In action upon a judgment 3S2 In ejectment 382, 383, 384 In action for breach of covenant against incumbrances 382 Mutual mistake in contract sued on 383 Deed absolute on its face was intended as a. mortgage 383 Equitable defense as available as a legal one 384 Generai. Index. 699 Answer — { Continued ) . Page. Effect of setting up a legal defense 384 The equity set up must be sufficient as a cause of action. . . . :i84 New parol agreement as a defense to contract under seal 384 Pleas in abatement and in bar 3S."i Distinction between pleas in abatement and in hny 385 Could not be joined under old practice 385 ilay be joined under the Code 386 Xo demand of relief necessary .iSO Plea in abatement should be verified 380 Mode of alleging matter in abatement 387 \\'hat matters must be pleaded 387 Defense of non-joinder of parties 388 How pleaded 389 Plea of former action pending 387, 390 Plea of former judgment 390 Facts necessary to sustain the defense 390, 391, 392 Defense must be pleaded 303. Manner of pleading the defense 393 Plea of tender 393 Usury as a defense 396 How pleaded 396, 397, 398 Should not be joined with a plea of tender ; 308 Defense is personal to the borrower and those in privity with him 399 Discharge in bankruptcy as a defense 399 ilust be pleaded 399 How pleaded 399 Statute of limitations as a defense 400 Xccessify of pleading the statute 400, 401 How pleaded 401 Rule in California, Montana, Kentucky and Wi'iconsin. . . . 402 In action for determination of claims to land 403 In replevin, trover or trespass > 403 Showing title out of plaintiff 369. 370, 371, 403 Statement of title in replevin 403, 404 Alleging title in a stranger in trespass or trover 404 In action for divorce or separation 405 In New York answer in action for alisolute divorce may be uiivei ified 405 Defenses permissible in action for .absolute divorce 405, 400 Defenses in action for a separation 405, 406 Mode of alleging misconduct on ])art of the plaintiff 407 In action against joint-debtor not served wiLh summons 407 Defenses available 407, 408 Alleging fraud to defeat action on contract 408 Mode of alleging the plaintiff's fraud 408 '00 Geneeal Index. 'Answer — (Continued). Page. In action of slander or libel 409 PIe;iding truth of cliarge in justification 409 Requisites of an answer in justification 409, 410 Justification under the old system of pleading 31 Pleading matter in mitigation 31, 344, 410, 411 Allegation of privilege 411 Distinction between a defense and counterclaim 411 New matter 412 Counterclaim 411 Nature and scope of a counterclaim 411, 412 Characterizing the matter pleaded as a " defense " 412, 443 Failure to describe the matter pleaded as a counterclaim 413 General requisites of a counterclaim under New York Code . . 414 Requisites of a counterclaim under the California Code 414 Must be a cavise of action in favor of the defendant 41.5 In action against a surety alone 41.5 In action between sureties for contribution 413 In action against accommodation indorser 416 In action against guarantor alone 416 In action against both principal and surety 416 Demands held by defendant jointly with third person. . . . 416 In actions against defendants jointly and severally liable. 416 lu actions against partners 417 Where the defendant is sued in a representative capacity. . . . 417 Must be a cause of action against the plaintiff 418 In actions brought by several plaintiffs 418 In an action by a member of a firm on individual demand 418 In action by a firm 419 In actions upon assigned demands 419 On assigned contracts other than bills and notes 419 In actions on assigned negotiable paper 420, 421 Effect of assignment before maturity of demand 421 Provision of the Code as to the transfer of demands .... 422 In action by assignee imder California Code 423 In action by assignee of non-negotiable demand in Mon- tana 423 In action by trustee or plaintiff without interest 423 In actions by executors or administrators 424 Relation between covmterclaim and plaintiff's demand 426 Contract as a counterclaim in action on contract 426 When cause of action for tort may be pleaded as a counterclaim 437 What may be pleaded as a counterclaim in action for tort 428 Alleging facts showing right to relief by injunction .... 429 Counterclaims connected with subject of action 427, 430 What is meant by " subject of the action " 431 General Index. 101 Answer — ( Continued ) . Page. Connection between counterclaim and subject of action.. 431 In actions on contract 433 Must be owned by defendant at commencement of action. 433 May be for liquidated or unliquidated damages 433 Kature of the defendant's demand 433, 434 In action for rent 434 In action for breach of contract to deliver goods 435 Alleging breach of warranty in action for purchase price. 435 In action for salary of municipal officer 435 In action for services 435, 436 In action of foreclosure 436 Against co-defendants 438 Counterclaims and set-oflfs in equity 440 Mode of pleading a counterclaim 442 Demand of relief 443 Mode of trial, and judgment on counterclaims 444 Verification of the answer 85 Of counterclaim only 444 When compulsory 84 When optional 85 When excused 85 By whom verified 88 By agent or attorney 01 Form of verification by party 04 Form of verification by agent or attorney 90 Form of verification by guardian 09 Form of verification by officer of corporation 99 Remedy for defective verification 100 Folioing the answer ■. , 73 Subscription and indorsement . ; 74 Service of the answer 467 Time of service 467 Extension of time to answer 470 Mode of service 474 Papers to accompany pleading served 477 Filing the answer 478 Construction of the answer 102-117 Amendment of the answer once of course 480 After demurrer to the answer 482 Answer can be amended only once as of course 482 Waiver of right to amend 483 Time in which defendant may amend as of course 483 Nature and extent of the amendment permissible 484 No restriction as to the nature of the defense set up 485 Defendant cannot substitute answer for demurrer 487 Amendment which does not change legal effect of answer .... 487 702 Geneeai, Ixdex. Answer — (L'oiilinued) . Page. KfFcct of the aniendinent of the answer 488 Remedy for improper amendment as of course 490 Service of answer amended as of course 492 Amendment of the answer on motion before trial 492 Nature and extent of the amendment allowed on motion 492 Chaii^jing ground of defense or adding new defenses, .493, 494, 495 The motion for leave to amend 497 The decision of the motion and order thereon 499 Terms on grantin;;' leave to amend 501 Service of the order and amended pleading 502 Amendment of the answer at the trial 503 Conforming the answer to the proofs 503 Limitation of the power to amend the answer at the trial. . . . 507 Proceedings in case of variance 511 Power of referee to allow an amendment 520 Amendment of answer after trial or on appeal 522 Supplemental answer 529, 536 What may be set up by way of supplemental answer 536 What cannot be set up by supplemental answer 537 Requisites of the supplemental answer, 537 Application for leave to serve supplemental answer 539 Decision of the application 540 Proceedings where the motion is granted 544 Sham answers or defenses 546 Power of the court to strike out sham answer or defense 546 Denial cannot be stricken out as sham 546 Counterclaim cannot be stricken out as sham 549 Striking out affirmative defenses 549 What answers are sham 550 Motion to strike out a sham answer 551 Opposing the motion 552 Decision of the motion 552, 565 Proceedings where the answer is stricken out 553 Frivolous answers 553 Remedy for frivolous pleading 553 Wliat answers are frivolous 555 Motion for judgment on a frivolous answer 557 Defeating the motion for judgment by amendment 558 Attackinj^- the complaint 559 Decision of the motion 558, 559 Order for judgment and proceedings thereunder 559 Striking out irreleviint, redundant or scandalous matter 561 Entire answer cannot be stricken out 565 Striking out matter provable under .i general denial 566 Striking out repel itions of denials 566 Di'icreliini of Ihe cciiui on motimi 5(5(5 General Index. 703 Answer — ( Continued ) . Page. Powei- to strike out matter exercised witli caution 566 Questions not considered on the motion 568 When the motion should be denied 569 Order where the motion is granted 570 Motion to compel defendant to make his answer definite and certain 570 When this remedy is proper 571, 572 When this remedy cannot be resorted to 571, 572 When the remedy is by motion for bill of particulars 571 Time of making the motion 573 Place of making the motion 574 Opposing the motion 574 Decision of the motion 575 Proceedings where the order is granted 575 Judgment on failure to answer 577 Relief from default 590 Return to an alternative writ of mandamus 595 In surrogates' courts 598 In justice's court 599, 604 Contents and nature of the answer 604, 605 Requisite? of answer to a verified complaint 605 Denials authorized 605 Defenses which must be pleaded 605 Demand of judgment 606 Answer that title to land will come in question 606 Counterclaims in justices' courts 609 Effect of a failure to plead a counterclaim 611 Judgment upon the counterclaim 612 Time of interposing the answer 614 Amendment of the answer 615 Amendment of the answer on appeal 617, 618 Appeal, Amendment of pleadings on appeal 522, 617, 618 Appearance, Notice of appearance and demand of copy complaint 577 Argumentativeness, In a pleading, no ground for demurrer 325 Assault and Battery, Joinder of cause of action for assault and battery with others. . 158, 161 Intent to injure the plaintiff not essential to right of action 203 Complaint in action for assault and battery 211 Damages on defendant's default 584 Evidence in mitigation of damages on default 584 Assessment, Of damages on default 581 TOi General Index. Assignee, Page. Complaint by assignee of insurance policy 293 Assignment, Counterclaims in actions upon assigned demands 419 609 Setting up assignment by amendment on the trial 595 Setting up assignment by supplemental complaint 532 Complaint upon an assigned demand gQ2 Associations, Complaints by or against associations 277 Misjoinder of defendants in actions against stockholders 496 Attorney, When verification of a pleading may be by the attorney 91 Form of verification by attorney gg Counterclaim in action by attorney for services 43O Service of pleadings on attorney for adverse party 467, 475 Award, Alleging award upon a cause of action, as a bar 379 Bankruptcy, Discharge in bankruptcy must be pleaded to be available as a defense 399 How pleaded 399 No reply necessary to answer setting up discharge 461 Reply may be ordered in such case 463 Discharge may be set up by supplemental answer 537 Bar, Judgment for part of single cause of action bars the remainder. . 151 Judgment for distinct causes arising out of single contract. .151, 152 Judgment must be pleaded to be available as a bar 379 Distinction between pleas in abatement and pleas in bar 385 Joinder of pleas in abatement with pleas in bar 385, 386, 389 Plea of former judgment 390-393 Belief, Denials upon information and belief 358 Verification upon information and belief 94 When attorney verifying must state grounds of belief 96, 97, 98 Guardian verifying need not state grounds of belief 99 Bill of Exchange, Complaint on bill of exchange 301 Counterclaim in action upon bill of exchange 420, 610 Bill of Particulars, Nature, senpe and office of a bill of particul.irs 122-124 Is not a pleading or part of the ple.idings 123 Not intended to disclose evidence or state groimds of recovery... 123 Is not the proper remedy for indefiniteness and uncertainty 123 Actions in which a bill of particulars raav be ordered 124 General Index. 705 Bill of Particulars — ( Continued ) . Page. Power to order, not dependent on the form of the action 126 Defendant may be required to furnish bill 127 When defendant will not be required to 'furnish a bill 127, 128 Requiring particulars of damages claimed 128 Comparative knowledge of the parties as affecting the remedy. . . . 130 Not ordered where party moving is in possession of the facts 130, 131 Knowledge of facts by moving party 131 Where application is to enable defendant to answer 131, 133 In actions for personal injuries 132 Application for the order 134 Application should be made to the court 134 Should be made upon notice 134 The moving papers 134, 135 Time of applying for the order 136 Opposing the application 137 Form and contents of the order 138 Form and contents of the bill of particulars 139 Proceedings where no bill is furnished 139 Proceedings where the bill furnished is defective or evasive 140 Amendment of the bill 141 Effect of the hill in restricting proofs of party serving it 141 Variances between the bill and the proofs 142 Breach of Contract, How pleaded 194 Capacity to Sue, Statement of facts showing capacity to sue 171 In complaints by executors and administrators 171 In actions by receivers 174 In complaints by guardians 176 Alleging leave to sue 180 Demurrer to complaint for want of capacity to sue 315 Want of capacity to sue must be pleaded 375 Causes of Action, Necessity of pleading 34, 35 Separating and numbering 75 Statement of, in the complaint . '. 143, 148 What constitutes a single cause of action 148 Single cause of action cannot be divided 151 Joinder of causes of action 152 Causes of action which cannot be joined 169 Demurrer for misjoinder of causes of action 322 For failure to state a cause of action 324 Adding new cause of action by amendment. . . .484, 485, 493, 505, 507 New cause of action cannot be set up by supplemental complaint. . 531 VOe General Ikdex. Certainty, Page. In allegations as to time, place and value 52 Bill of particulars not the appropriate remedy for uncertainty. . . . 123 Remedy for uncertainty is by motion 570 Demurrer not the propei- remedy for uncertainty 32.5 Proceedings to require pleadings to be made definite and certain . . 570 Certificate, Of clerk that pleadings have not been filed 479 Of sheriff of service of summons . . 578 Check, Complaint on :i cheek 301 Claim to Lands, Complaint in action to determine claim to lands 260 Demand of judgment in such action 261 Answer in such action 403 Amendment of pleadings in such action 482 Co-defendants, Determination of controversies between co-defendants 438 Service of answer on co-defendant 438 Controversy between defendants cannot delay judgment 438 Cannot set up independent controversies between themselves 439 Counterclaims against co-defendants 438 Verification of pleadings by co-defendants 89, 90 Committee, Alleging leave to sue committee of lunatic 181 Complaint, CSee Pleadings.) The first pleading on the part of the plaintiff 15, 143 Is styled a, petition in many States 15, 143 General requisites of a complaint or petition 15, 143 Title of the action 143, 144 Name of court 143 Place of trial 143, 144 Names of the parties 144 Fictitious name for unknown defendants 145 Where the action is by or against a person in representative capacity 146 In action brought by infant by his guardian 147 Statement of the cause of action 148 Facts should be pleaded and not evidence of the facts 35 Facts should be pleaded and not conclusions of law 37 Possible defenses should not be anticipated 45 Facts which the law implies need not be alleged 48 Matters judicially noticed need not be pleaded 50 Pleading performance of conditions precedent 59 Allegations of jurisdictional matters 63 Pleading an instrument for the payment of money only 66 General Index. 707 Complaint — (Continued). Page- Setting- up a cause of action on an account 60 Separating and numbering causes of action 75 Single cause of action cannot be divided 151 \\'hat constitutes a single cause of action 148 Joinder of causes of action 152 Code provisions of tlie various States 152-156 Claims arising out of the same transaction 156 Claims arising out of transactions connected with subject of action 156 Causes of action joined must afTect all parties 162 Demands held in both an individual and representative capacity 166 Causes of action upon claims against trustees 167 Joinder of causes of action against executors, etc 16S Causes of action which cannot be joined 169 Demurrer lies for misjoinder of causes of action 322 In action by or against executors, etc 171 The title of the complaint 146 Allegations showing representative character 171 Alleging a cause of action in favor of plaintiff as executor, etc 173 Construction of the complaint as to character in which suit is brought 172 In action by or against a receiver 174 Alleging appointment 174 Statement of cause of action in favor of persons represented. . 175 Statement of facts showing right of action in plaintiff. . .175, 176 Alleging leave of court to sue 176 In actions by guardians • 176 Title 147 Alleging appointment 176 In actions by or against corporations or associations 177 Statement of fact of corporate existence 177 Statement of cause of action against a corporation 178 Statement of a cause of action by or against a bank 178 In action by officer of an association 170 In action brought by foreign corporation 170 Alleging leave to sue 176, 180 In action upon obligation secured by mortgage 180 In action against a receiver 176. 1 8(1 In action against committee of lunatic, etc 181 In action upon a judgment for a sum of money only 181 In action upon official bonds 181. ISi In actions on contract generally 18l! Mode of pleading a contract 182, 18:'> 708 Geneeal Index. Complaint — (Continued). Page. W'aiA'er of special contract and complaint upon implied eon- tract 182, 183 Allegation of implied promise or facts implying a promise . . . 183 Statement of the contract 183 Allegations as to consideration 185 Alleging performance of conditions 59, 186 Alleging a demand 192 Alleging a breach 194 Allegations of damage . . . : 196 Allegations of damage in actions of tort 197 Allegations of wrongful intent 201 Demand of judgment or relief 203 What judgment should be demanded 203 Improper demand of judgment and its effect 204-209 In action to compel determination of claim to lands 209 In replevin 209, 210 In actions triable by the court 210 In action for cutting or injuring trees, etc 210 The essential allegations in particular actions 210 In action on an account stated 210 In action for assault and battery 211 In replevin 213 In action of trover or conversion 219 In action for malicious prosecution 224 In action for abuse of legal process 226 In action for false imprisonment 227 In action for a, conspiracy 228 In action for fraud or deceit 229 In action for libel or slander 233 In action for slander of title 240 In action for seduction 240 In ordinary actions for negligence 243 In actions for negligence causing death 246 In ejectment 250 In partition 253 In action for dower 257 In action against claimant for dower 258 In action to compel determination of a claim to real property 260 In action to foreclose a mortgage 262 In action for reformation of a written instrument 265 In action for absolute divorce 267 In action for a limited divorce or separation 269 In judgment creditor's action under the New York Code.... 271 In judgment creditor's action to set aside fraudulent con- veyance / 274 [n creditor's action under New York statutes 279 Geneu.vl T.\dex. 709 Complaint — (Continued). Page. In action to reacli surplus income of trust property 281 In action by creditor of corporation against a stockholder .... 283 In action of interpleader 287 In action by judgment creditor against defendants not sum- moned 290 In action on a, policy of insurance 291 In action for the rescission of a contract 294 In action against maker of a note 296 In action against an indorser 299 In action on a bill of exchange or check 301 In action upon a guaranty 303 In action to recover for services 304 In action for specific performance 306 Requirements of the Code as to writing or printing 72 Policing 73 Subscription and indorsement 74 Verification , , 81 When optional with the plaintiff 81 By whom verified 88 When by agent or attorney 91 Form of verification by plaintiff 94 Form of verification by agent or attorney 96 Form of verification by guardian 99 Form of verification by officer of corporation 99 Defective verification 100 Service of the complaint 467 Time of service 467 Demand of service by defendant 468 Extension of time of service 470 Mode of service 474 Filing the complaint 478 Construction of the complaint 102 When liberally construed 102 What is meant by liberal construction 103 Rules of construction 104, 105, 109 When construed against the pleader 106 On demurrer 107 On the trial 108 As to the nature of the action 110 Amendment of the complaint once of course 480 Right to amend without leave of court 480 Time mthin which to amend as of course 480, 485 Nature and extent of the amendment 484 Effect of an amendment 488 Remedy for improper amendments 490 Service of amended complaint 492 TIO General Index. Complaint — (C'lmliiuied) . Page. Ameiidnient of the complaint on motion before trial 492 Nature and extent of amendments allowed 492 jMotion for leave to amend 497 Decision of the motion and order thereon 499 Terms imposed 501 Service of the order and amended complaint 502 Amendment of the complaint at the trial 503 Conforming the complaint to the proofs 503 Nature of the amendment permissible 504, 505, 509 Test to determine whether a new cause of action is set up . . . 506 When the application to amend may be made 510 Variance between complaint and proofs 511 Inserting allegations material to the ease 515 Amendment as to parties 517 By referee 520 Amendment of complaint after trial or on appeal 522 Power to amend complaint after trial 522 Supplemental complaint 530 Under the old Chancery practice 530 Under the Code 530 Province of the supplemental complaint 530 What facts cannot be set up by supplemental complaint 531 What facts may be set up by such complaint 531, 534 Application for leave to serve supplemental complaint 539 Decision of the motion 540 Proceedings where the motion is gi'anted 544 Dismissal of complaint for failure to serve on demand 575 In a justice's court 599 Jlay be oral or written 599 Must be entered in docket-book or filed 599 On an account 600 Requisites of the complaint 601 Upon assigned demand 602 By infant suing by guardian 602 By public officer 602 Demand of relief 602 Joinder of causes of action 603 Verified complaint 603 Amendment of the complaint 615 Conciseness, Required in statement of facts in all pleadings 54 Redundant matter may be stricken out 55, 561 Stating facts growing nut of one transaction in several counts. ... 55 Repeating allegations oi- referring (o matters in another count. . . 56 CrliXEEAL IniuoX. Yll Conclusions, Page. Conclusions of law should not be pleaded 37 Statutory exceptions to the rule 38 What are conclusions of law 39 Facts specifically alleged prevail over conclusions 109 Conditions, Pleading performance of conditions precedent 59, 61, 186, 187 \\'lien party not bound to allege performance 59, 60 Jlode of pleading performance 60, 62, 63, 189 Mutual conditions 187 Construction of covenants 187 \Ahen performance of conditions must be alleged 186 Excuse for non-performance 189 In contracts for sale of real estate 191 Alleging performance in action on insurance policy 291 Failure to perform condition precedent should be pleaded 380 Confession and Avoidance, Defense which confesses and avoids must be pleaded 372 Consideration, Allegation that contract is void for want of, states a conclusion. . . 42 When and how a consideration should be alleged 185, 186 When the consideration need not be alleged 186 Want of consideration may be shown under a general denial 367 \^'ant of consideration in action on sealed instrument should be pleaded 374 Want of consideration must be pleaded in action on note 375 Consistency, Causes of action united in a complaint must be consistent 56 New matter in reply must be consistent with complaint 56 Defenses set up may be inconsistent 56, 57 Rule in Missouri 57 What causes of action are not consistent with each other 57 Cause of action for equitable relief and count on common law demand 57 Assuming validity of contract in one count and invalidity in another 57 Count for breach of contract and count for statutory penalty, 58 Claim of ownership and claim of lien for purchase-money .... 58 Count based on affirmance of contract and another on rescis- sion 58 Denial in one count of what is affirmed in another 58 Causes of action requiring different modes of trial 57 Causes requiring different forms of judgment and final process 58 Remedy for joinder of inconsistent causes of action 58 When inconsistent averments are permissible from necessity. ... 58 712' General Index. Consistency — ( Continued ) . Page. Demand of judgment should be eonsistent with allegations of complaint 204 Conspiracy, Bill of particulars in action for conspiracy 126 Complaint in action for conspiracy 228 Construction, Pleadings must be liberally construed 102 Rule relates to matters of form rather than of substance .... 5, 103 Rule does not authorize recovery on facts not pleaded 104 Construction as to the sense in which words were used 104 Must be according to what is said and not what was intended, 105 Sustaining a pleading on implications 105 Court will not assume a fact not averred 105 Facts substantially though imperfectly alleged, sufficient. . . . 105 Technical objections not encouraged 105 Pleading must be taken as an entirety 105 When a pleading is to be construed against the pleader 106 Rule as to pleadings of doubtful meaning 106 Whether answer sets up a defense or counterclaim 106 Where the nature of the action is uncertain 106 Where the pleading is ambiguous as to place 107 Qualification of the rule 107 Construction of the pleading after judgment 107 On demurrer 107 On demurrer to complaint for insufficiency 107, 324 When the complaint will be held sufficient 107, 325 Facts alleged and not conclusions will control 108 Where the complaint states a cause of action and a defense 108 Where complaint contains several counts or the answer sev- eral defenses 108 On the trial 108 Where question of sufficiency is raised by motion to dimiss. . . 108 Greater liberality in construction than on demurrer 108, 109 Only incurable defects are fatal 109 Facts specifically alleged prevail over general statements 109 Averment of legal conclusion does not avail as against admitted fact 110 Statement of the law applicable to the facts does not conclude either party 110 Conclusions unsupported by facts will be disregarded 110 As to the nature of the action 5, 110 Complaint determines nature of the action 110 Whether complaint alleges cause of action on contract or in tort Ill, 112 Geneka]. Ta'dex. 713 Construction — ( Continued ) . Page. Pleading will be construed according to its entire scope and effect Ill Disregard of unnecessary allegations Ill, 112 When the complaint will be construed as on contract. . . .112, 113 When the complaint will be construed to allege a, tort 113 In case of doubt, demand of relief may be resorted to 113 Allegations of fraudulent representations not controlling 113, 114 Whether action is based on breach of warranty or fraud 114 Effect of failure to allege that damages have accrued 114 As to the nature of the defense 115 Whether matter is set up as a, defense or counterclaim. . . .106, 115 Characterization of the pleading by the defendant 115 Construction in case of doubt 115, 116 Failure of defendant to characterize defenses set up 116 Paragraphs in the answer not treated as separate defenses . . . 116 Construing answer as setting up a partial defense or other- wise 116, 117 Of denials in a pleading 352, 356 Of a will, counterclaim in action for construction 430 Contract, Statement of facts to secure order of arrest in actions on cont- tract -. 32, 33 Construction of complaint as whether on contract or in tort. . .110—114 Proper mode of alleging a contract made by an agent 43, 44 Alleging contract made with a corporation 178 Not necessary to allege in the complaint that a contract was in writing 45, 184 Allegation that a contract for the sale of land was made implies a writing 49 Necessary allegations in action on contract prohibited by State law 53,185 Pleading performance of conditions precedent in actions on con- tract 59, 186 Pleading an instrument for payment of money only 66 Joinder of causes of action on contract 153-156 Of a cause of action on contract with cause of action in tort, 159 Mode of pleading a contract 182 Waiver of the contract and suit on a quantum meruit 182 Alleging a promise 183 Complaint must show a contract made 183 Annexing copy to complaint 183 Necessary allegations if the copy contract is ambiguous, 184 Not necessary to allege contract was in writing 45, 184 Not always necessary to set out entire contract 184 Statement of the terms of the contract 184 Allegations where the contract has been modified or changed 184 714 Genkrai- Index. Contract — (Contiimod). Page. Allegations of time, place, quantity or value 185 Allegations as to consideration 185 Alli'<;ini; a demand 192 Alleging the breach of the contract 194 Mode of alleging a breach of contract 195 Allegations of damage - 196 When a contract gives but a single cause of action 148 Essential allegations in actions relating to contracts 262 In action of foreclosure 262 In action to reform a written instrument 265 In action on policy of insurance 291 In action for rescission of contract 294 In action on promissory note 296 In action on contract of indorsement 299 In action on bill of exchange or check 301 In action on contract of guaranty 303 In action on contract for services 304 In actions for specific performance 306 Alleging fraud to defeat action on contract 408 Counterclaims in actions on contract 414 Contributory Negligence, Absence of, need not be alleged in complaint for negligence 45 Allegation of, in reply in action on contract does not change nature of action 110 Conversion, Construction of complaint iinnecessarily alleging conversion. .111, 112 \Mien complaint states a cause of action on contract and not for conversion Ill, 112 When the complaint alleges a cause of action for conversion 113 Bill of particulars in action for conversion 125 Joinder of claims against carrier for conversion and for overpay- ment of freight 161 Joinder of cause of action for conversion with claim arising on contract 161 Complain in action of trover or conversion 219 Allegation showing title or right to possession 219 Description of the property 220 Alleging the time of the conversion 220 Manner of alleging the act of conversion 220 What facts narrated will allege a conversion 221 Demand of the property converted and refusal to return .... 222 When unnecessary to prove a demand and refusal 222, 223 Alleging demand and refusal 36, 223 Allegation of damage 223, 224 Allegation of value ■! . 224 G 1'. N E RAT . r:< : n-;x . 71 "> Conversion — ( Continued ) . Page. Issue raised by a general denial 369, 370 Alleging title out of the plaintiff 369, 370, 371, 404 Proof of payment, undei' general denial in action for conversion of a note 373 Pleading conversion of collateral security in action on a note. . . . 427 Counterclaims in actions for conversion 429 Copy, Pleadings served hy copy 474 Copy account and proceedings to obtain it 69, 117 Corporation, Ofllcer of domestic corporation may verify its pleadings 88 Agent or attorney of foreign corporation may verify pleading. .89, 91 Form of verification by officer of a corporation 99 ]\Iode of alleging acts of a corporation 43, 178 Defense of ulira vires need not be anticipated in complaint on contract of 46 By-laws of a municipal corporation must be pleaded 51 Complaints by or against corporations 177 Alleging that the plaintiff or defendant is a corporation. ... 177 Statement whether a foreign or domestic corporation 177 .\(t under which corporation was created need not be stated 177 Averments of corporate acts 43, 178 ;,^_ Non-compliance with statutory requirements a matter of defense 179 Leave of court to bring action to annul charter of a corporation 181 Action by or against corporation to determine claim to lands. . . . 260 Complaint by creditor of corporation against stockholder 285 Action against person interfering with property of insolvent cor- poration 279 Extension of time to plead in actions on note, etc 472 Order to be served with answTr or demurrer in action on cor- porate note, etc 477 Amendment substituting corporation for receiver or receiver for corporation 495, 496 Objection to misjoinder of defendants in action against stock- holders 519 Amendment to cure misnomer 519, 520 Amendment increasing damages in action against municipal cor- poration 496 Applications by municipal corporation for leave to amend. . . .498, 499 Set-ofi' of claim against officer of plaintiff corporation 424 Counterclaim, Code substitute for a cross-bill 28 Separating and numbering defenses and counterclaims 75 Defendant may confine verification of answer to counterclaim. ... 83 ^Yhen action will be construed as setting up a defense only. . .106, 115 T16 General Index. Counterclaim — ( Continued ) . Page. Defendant must plead counterclaim in explicit terms 115 No particular formula required to designate a counterclaim 11.5 Defendant generally bound by the name he gives his pleading 115, 116, 413 Characterization by defendant not conclusive 115 New matter may be separately pleaded as both defense and counterclaim 116 Rule of construction in doubtful cases 115, 116 Distinction between defense and counterclaim 411 Usury as a counterclaim as well as a defense 412 Embraces set-off and recoupment and is broader than either 412 General requisites of a counterclaim imder the New York Code. . . . 414 Requisites of counterclaim in California and other States 414 Must be a cause of action in favor of defendant 415 Demand in favor of principal not available to sureties sued alone 415 In action between sureties for contribution 415 Breach of warranty not available to indorser of , note for purchase price . .■ 416 Demand in favor of principal in action against guarantor only 416 lu actions against both principal and surety 416 Joint demand not available in action upon individual liability 416 In action upon a joint and several liability 416 In actions against partners 417 By persons sued in a representative capacity 417 Provision of the New York Code 417 Individual claim of executor in action against estate 417 Claim in favor of executor in action against him individually 417 Must be cause of action against the plaintiff 418 Demands against some, but not all of the plaintiffs 418 Where the action is by two plaintiffs on demand owned by one 418 Setting up demand against a firm in action by one member . . 418 Setting up claim against one partner in action against firm 419 Setting off claim against agent in action by principal 419 In actions upon assigned demands 419 Code provisions 419, 422, 423 Counterclaims allowable in such actions 419, 420 Claims not due until after the assignment to plaintiff 420 421, 422 In action upon negotiable note or bill of exchange 420, 421 In action by trustee or plaintiff without interest 423 In action by guardian in socage as trustee for infants 424 Claims against an executor individually against claims held as trustee 424 In actions by executors and administrators 424 Provision of tlie New York Code 424 In action to recover purchase price of goods sold by executor 425 General Index. 717 Counterclaim — ( Continued ) . Page. In action by executor on cause of action arising after death of testator 425 Conversion by the plaintiff of securities deposited with testa- tor 426 Debt due from testator to firm in action against member of firm 426 In action by executor on note 426 Relation between counterclaim and plaintiff's cause of action. . . . 426 When a cause of action in tort may be set up in action on contl-act 427 When a counterclaim can be pleaded in an action in tort. . . . 428 In an action to obtain construction of a will 430 Setting up waste by plaintiff in action for conversion 429 In action to restrain violation of trade mark 429 In action to restrain diversion of water 430 In action to set aside deed as a cloud on title 430 In an action by attorney for services 430 What is meant by " subject of the action " 431 The requisite connection of the counterclaim with subject of action 431 Pleading facts showing relation of counterclaim to cause of action 432 In actions on contract 433 ilust have existed in defendant's hands at commencement of action 433 May be for liquidated or unliquidated damages 433 May be an equitable defense to common law demand 433 \\'hen it may consist of a cause of action in tort 433, 434 In action for rent 434 In action for breach of contract of sale 435 In action by assignee of salary of municipal officer 435 In action for work, labor and services 435, -436 In action of foreclosure 436 Against a co-defendant 438 Set-off and counterclaims in equity 440 Mode of pleading a counterclaim 442 Mode of trial, and judgment on counterclaims 444 Demurrer to counterclaim 446 For insufficiency 449 For want of jurisdiction 450 That the counterclaim is not authorized by the Code 451 Mode of taking the demurrer 451 Principles governing decision of the demurrer 454 Effect of omission to demur 457 Reply to counterclaim 457, 458 Requisites of the reply 461 718 Gknjleai. l>;i)r,x. Counterclaim — ( < oiitiniicd ) . Page. Effect of failure to reply 464 Cnnnot lie stricken out as sham 549 Court may allow defendant to amend by setting up counterclaim 495 In justice's court 609 Requisites of a counterclaim in a justice's court 609 Causes of action which may be pleaded as counterclaims.... 609 Limitation of the rif,'ht to plead a counterclaim 609 In action on assigned demand 609 In actions upon negotiable instrument 610 In action by trustee or plaintill: without interest 610 Limitation as to jurisdiction of the justice 609, 610 In actions against executors, etc , 610, 611 Mode of pleading the counterclaim 611 Effect of failure to plead the counterclaim 611 Judgment upon the counterclaim 612 Counts. Statement of cause of action in sever.il counts to avoid variance. . r)5 Repetition in one count of matters alleged in another 56, 78, 79 Separately stating and numbering counts 75, 77 Alleging continuing injury in a single count 75, 70. 77 Common practice as to statement of several counts 77, 78 Reference from one count to another 78 Each count must he complete in itself 78 Demurrer to an entire complaint containing one good count 330 Covenant, Alleging a. breach of covenant 195 Creditor, Making creditor a defendant in partition 257 Complaint in judgment creditor's action under New York Code. . . 271 To set aside fraudulent conveyance 274 In cieditor's aclion under New York statutes 279 In action to reach surplus income of trust property 281 In action by creditor of corporation against stockholder 283 In action against stockholder of banking corporation 286, 287 In actions against joint debtors not summoned 290 Criminal Conversation, Bill of particulars may be ordered in action 12.") Cross-action, When necessary under the Code 29 Cross-bill, Under the old system of pleadings 26 Substitute for cross bill under (he Code 28 Cross-complaint, Under ilic California Code 27 Gexe:;al I^-dex. 719 Cross-petition, '^^S'^- Under the Code of some States 27 Damages, Failure to allege damage considered in construing ambiguous pleading 114 Requiring bill of particulars of damages claimed 128 Allegations of damage in actions on contract 196 Some damage must be alleged to authorize recovery of general damages 196 General damage need not be specifically pleaded 106 Special damages must be definitely stated 196, 197 \Miat damages are general 197 What damages are special 197 Loss of profits are special . 196 Allegations of damage in actions of tort 197 Necessity of allegation of damage in action in tort 197 General damages need not be specifically alleged 197 Special damages must be particularly stated 197 In action for malicious prosecution 224, 225 In action for slander 198, 199, 200 In action for slander of title to lands 199, 240 In action for libel 199 In action for false imprisonment 228 In action by private citizen against public officer 201 In action for negligence causing death 201 Effect of alleging special damages only 201 Recovery of damages for injury to property in replevin 218 Allegation of damage in action for conversion 223 In action for conspiracy 229 In action for fraud 230 In actions for slander or libel 198, 199, 200, 239 In actions for negligence generally 246 In actions for negligence causing death 249 In ejectment 251 Alleging matters in mitigation of damages 343 There can be no mitigation of compensatory damages 344 Showing under general denial that plaintiff has not sustained damage claimed 370 Evidence in reduction of damages under a general denial. . . 370, 371 Amendment on the trial enlarging claim for damages 509 Setting up damages in supplemental complaint 534 Assessment of damages on failure to answer 581 Proof by defendant of matter in mitigation 583, 584 Death, Complaint in action for neglisenee causing deatli 246 Deceit, Complaint in action for fraud or deceit 229 720 Gbneeal Inbex. Default, Page. Extent to which relief may be granted on default 204 In service of complaint after demand 575 Motion to dismiss for non-service 576 Judgment on failure to answer without application to the court . . 577 In what actions the clerk may enter judgment by default. 577, 580 Proof of default and entry of judgment by the clerk 577 Proof of service of the summons 578 Determination of the amount of judgment 579, 580 Where the complaint is verified 579 Where the complaint is unverified 579 Notice of assessment by the clerk 579 Judgment by default on application to the court 580 When application must be made to the court for judgment . . . 580 Proceedings on such application 581 Where the application should be made 582 Where there are several defendants and some defend 582 Notice of application to the court for judgment 582, 583 Demand of notice of execution of reference or writ of inquiry. 583 Notice pursuant to demand 583 Proof by defendant in mitigation of damages 583, 584 What the defendant admits by default 583, 584 Against an infant 584 Application cannot be withdrawn without leave 584 Proceedings on default of defendant not personally served 585 Judgment on failure to answer in foreclosure 586 In matrimonial actions 588 Failure to reply, and proceedings thereon 589 Relief from default 590 In action for divorce 591 Opening of n default rests in discretion of the court 592 The application for an order opening default 592 In action pending before a justice of the peace 614 Where a verified complaint accompanied the summons 604 Defendants, Proceedings to determine ultimate rights of defendants 28, 438 Designating unknown defendants 145 All defendants must be affected by causes of action joined 162 Misjoinder of defendants as a ground of demurrer 319 Non-joinder of defendants as a ground of demurrer 320 Defense of non-joinder of defendants 388 Demurrer for want of jurisdiction of defendant 313 Counterclaims against co-defendants 438 Defenses, Defendant may set all the defenses which he has 343 Defenses must he separately stated and numbered 75, 343 Partial defenses 30, 343 General T^n)Ex. 721 Defenses — ( Continued ) . Page. Anticipating possible defenses 45 Inconsistent defenses 343 Wliat defenses must be pleaded to be available 372 Equitable defenses 382 Of non-joinder of parties 388 Distinction between defense and eounterelaim 411 Effect of characterizing a. counterclaim as a defense 115, 413 Amending pleading by adding new defense 495 Classification of defenses by the courts 365 Denial as a defense 365 Deficiency, Amendment of complaint in foreclosure to charge defendant with payment of 495 Demand, Of judgment in the complaint 203 How far the demand of relief affects the judgment. . .9, 10, 11, 204 Should be consistent with the allegations of the complaint. 204, 208 What relief may be demanded 207, 208 Alternative demand of relief 209 Of general relief 209 In action for specific performance 308 In action to compel determination of claim to lands 209 In action to foreclose a mortgage 265 Of damages in replevin 209 In action of interpleader 288 Of interlocutory judgment 210 Of treble damages 210 Demurrer for improper demand of relief 326 Of judgment in the answer, when required 346 Of judgment on a counterclaim 346, 443 Of determination of rights as against co-defendants 347 Of relief in complaint in justice's court 602 Of copy complaint 575 Of copy account 117 Of change of place of trial 478 Of notice of execution of a refei-ence or ^i-rit of inquiry 583 Alleging a demand in an action on contract 192 In action against an indorser 192 In action against a depositary 193 In action to recover back money paid under mistake 103 In action to recover money on contract payable in chattels. . . 198 Mode of alleging the demand 103 Alleging a demand in action of replevin 215, 216, 217 In action for conversion 222, 223 Allegation of a refusal equivalent to allegation of demand and re- fusal 49 Y22 Gexeeal Index. Demurrer. Page. Under the common-law system 12 Under the old chancery practice 14 General and special demurrers under the former system 16, 333 Under the Codes of the several states 15, 16 Right to serve both answer and demurrer 16 Object and effect of a demurrer 17 Demurrer to answer 19, 20 Demurrer to reply 21 Issue of law raised by demurrer 23 Construction of pleadings on demurrer 107 To the complaint 309 When a defendant may both answer and demur 16, 309 To the whole complaint or to one or more separate causes of action 309 One defendant may answer while others demur 510 Grounds of demurrer as given by the Codes 310, 311 Grounds enumerated by the Code are exclusive 311 Objection not appearing on face of complaint no ground for demurrer 312 Objection which can be taken by demurrer must be so taken. . 312 When objections appear on the face of the complaint 312, 313 For want of jurisdiction of the person 313, 314 For want of jurisdiction of the subject-matter 314 Joinder of cause of which court has jurisdiction with others 314 Jurisdiction of cause of action against demurring party sufficient 314 The question of residence as affecting jurisdiction 315 I'or want of capacity to sue 31.5 ^^'here the complaint shows want of capacity 316 This objection must be assigned as the ground of demurrer 316 Distinction between want of capacity to sue and want of cause of action 316 When demurrer on this ground is proper 316 (Objection that another action is pending between the parties. . 317 Meaning of the word " action " as used in the statute. . . . 317 Action must be pending in court of same State 317 Must be pending between the same parties 317 Cause of action in each suit must be the same 318 For mi.sjoinder of parties 318, 319 Misjoinder of parties plaintiff 318, 319 Jlisjoinder of parties defendant 319 For defect of pari ios 320 When this ground of demurrer is available 320 I'ointing out the defect by the denuirrcr 320, 321 Gexeeal Index. 733 D emurrer — ( Continued ) . Page. For non-joinder of defendants 'ii\ Effect of faihire to demur as a waiver 321 For misjoinder of causes of action 322 Failure to separately state causes which may be joined.. 322 Stating in a single count causes which cannot be joined. . 322 Sta,tement of a single cause of action in several counts. . . 323 Where no cause of action is alleged there is no misjoinder. 323 Joint or several demurrer by several defendants 323 Mode of stating the objection 323 Where no cause of action is stated 324 When demurrer on this ground does not lie 324, 32.5 For improper demand of relief 326-330 Whether the demurrer should be to the entire complaint or to part 330 General demurrer to complaint containing one good count. 330 Does not lie to part of a, count 331 Where any good ground of recovery is alleged 331 Does not run to the summons, title or demand of relief. . . 331 Facts not alleged not considered 331 The proper party or parties to demur 332 Form of the demurrer 333 When the demurrer must point out specifically the defect. 334 For misjoinder of parties or causes of action 335 Using the language of the statute 335, 336 Useless to assign ground not authorized by the Code 336 Stating untenable ground unavailing though good ground exists 336 Effect of omission to demur as u waiver 336, 337 Decision of the demurrer and proceedings thereupon 337 Effect of the demurrer as an admission of facts 340 To the answer 446 When a demurrer to the answer is authorized 446 Lies only to new matter 447 Cannot be taken to denials 447 Where denials are improperly pleaded with other matter. 448 To matter pleaded as a, defense but provalile under general denial 448 Denial in one count does not aid another defective count. 448 For insufficiency 449 For want of jurisdiction 450 That the counterclaim demurred to is unauthorized 451 Mode of taking the demurrer 451-453 When the objections must be distinctly pointed out. .451, 452 Cannot be taken to less than entire cause of action or defense 4.j4 Y24 General Index. Demurrer — (Continued). Page. \\'hen plaintiff should move to have defenses separately stated ( 454 When separate demurrers should be interposed to each defense 454 Principles governing the decision on demurrer 454 Allegations of complaint are to be taken as true 454 Considering allegations of complaint in connection with answer 454, 455 Each count demurred to considered separately 455 To partial defense " 455 Attacking the complaint on the argument 455, 456, 457 Any defense sufficient to bad complaint 455 Effect of omission to demur to the answer 457 To the reply 465 When authorized 465 When remedy is by motion instead of demurrer 465 To entire reply containing a good count 466 Assailing the answer on the argument 466 Service of the demurrer 467-478 Time of service of demurrer to complaint 467 Of demurrer to answer 470 Extension of time to answer or demur 470-474 Amendment after demurrer 482 To supplemental pleading 545 Cannot be stricken out as sham 549 Frivolous demurrers 553 To writ of mandamus 596 To return to writ of mandamus 596 In a justice's court 613 Denials, Cannot be stricken out as sham 546 Omission to deny as an admission of facts pleaded 348 How far properly called a " defense " 365 Narrative of facts inconsistent with complaint not a denial 348 Facts admitted by failure to deny cannot be contradicted 348 Only material allegations admitted by failure to deny 349 (Jmitting denial to secure affirmative of issue 350 Form and sufficiency of general or specific denials 350 Requirements of Codes of various States 350, 351 Cannot be both general and specific denial of same matter. . . . 351 Kepetition of a general denial in different counts improper. . . 351 Specific denial of part and general denial of residue 351 Xo particular form proscribed 351 Common form of general denial 352 Um' of qualifj'ing words tolerated but not commended.. 352, 353, 354, 355 GkXERAI. l.XI.KX. Y25 Denials — ( Continued ) . Page. Denial of allegations contained within certain folio-^ 354 Denial may be upon information and lielief :l.'i.) Denial taking form of a negative pregnant is improper 3o6 Upon information and belief 35o, o.'iS When proper . 355. 35S Provisions of Codes of the several States 359 Of matters of public record 359 Of knowledge or information sufficient to form a belief 360 Proper form of this species of denial 361, 362 Omission of any part of statutory formula is fatal 'iCrZ In courts not of record 363 Of facts presumptively within defendant's knowledge .... 363, 3li4 Of facts shown by public records 364 Pleading other matters in connection with denials 364 What may be shown under a general denial 366 Defenses which cannot be proved under a general denial 37- Depositary, Alleging a demand in action against a depositary 193 Description, Of lands sought to be recovered in ejectment 251 In partition 253 In action for dower 257 In action against claimant of dower 259 In action to determine claim to lands 261 In action of foreclosure 265 Dilatory Pleas, Not favored, and must be strictly pleaded 355, 387 Under the old system of pleading 385 Must be verified . 386 Discharge, In bankruptcy must be pleaded 399 How pleaded 399 Xot necessary to reply to answer setting up discharge 461 Reply to answer setting up discharge may be ordered 463 May be set up by supplemental answer 537 Dismissal, Of action for failure to serve copy account 122 Of complaint for non-service . 576 Divorce, Bill of particulars seldom ordered in action for divorce 125 Causes of action for an absolute divorce and for separation cannot be joined 170 Complaint in action for an absolute divorce 267 Complaint in an action for a separation 269 Answer in action for divorce or separation 405 726 Gbnbeal Index. Divorce — ( Continued ) . Page. Reply to countcr-tliargcs of iuhilteiy 461 Supplemental complaint in action for a divorce 537 Default in matrimonial actions 588 Opening default in such actions 591 Dower, Complaint in action for dower 257 Complaint in action against claimant of dower 258 Reply compelled in action for dower 463 Duress, iluat be pleaded as a defense 375 Ejectment, Bill of particulars may be ordered in ejectment 12.5 Complaint in ejectment 250 Demurrer for want of capacity of infant to maintain the action.. 316 Pendencjr of another action as a ground of demurrer 318 \\'hat may be shown vmder a general denial 369 Defense of adverse possession must be pleaded 374 Equitable defense 382, 383, 384 Conveyance in fraud of creditors not a. defense 409 Amendment to conform pleading to proofs 506 Amendment on appeal where plaintitt's are infants 526 Equitable Defenses, May be pleaded in any action 382, 384 What are equitable defenses 382, 385 In action on a judgment 382 In ejectment 382, 383 In action for breach of covenant against incumbrances 383 That absolute deed was intended as a, mortgage 383 Are as eflfectual as legai defenses 384 ilodification of contract under seal by parol agreement 384 Pleading equitable defense does not change nature of action 384 Equity, The pleadi^jgs under the former practice in equity 13 Blending of law and equity, effect of 6-11 Latitude allowed in pleading where equitable relief is sought. ... 55 Defense that an adequate remedy at law exists 377 Counterclaims and set-offs in equity 440 Estoppel, In pais need not be pleaded 380 Former judgment, when it operates as an estoppel 391 Evidence, Should not be pleaded 35 Excluding evidence for failure to serve copy account 120 Excluding evidence for failure to serve bill of particulars 140 Admissible under a general denial 366 Conforming pleadings to proofs 503 Gexeea:i. Txdex. 727 Exception, Page. Pleading an exception in a statute 47 Excuse, Pleading oxi-use for non-peifonnanee of conditions 59, 186 Execution, Complaint in action for abuse of legal process 226 Alleging issuing- and return, in creditor's action, . . 273, 276, 278, 279 Alleging issuing and return, in action against stockholder 284 Alleging issuing and return, in action against guarantor 304 Executor, Stating representative character in complaint 146 Joinder of demands held in an individual and representative ca- pacity 166 Joinder of causes of action against executors 168 Complaints by or against executors 171 Complaint by, in action for negligence causing death of testator . . 246 Demurrer for want of capacity to sue 316 Counterclaim in action against executor 417 In action by executor 424 Judgment on counterclaim in action by executor 445 Extension, Of time to plead 470 Facts, Must be pleaded and not evidence or conclusions 35, 37 What are facts and what are conclusions of law 39 May be stated according to their legal effect 42 False Imprisonment, Malice and want of probable cause will not give right of action . . 202 Complaint in action for false imprisonment 227 May be joined with action for malicious prosecution 161 False Representations, Of agent may be alleged as made by principal 43 Allegation of, in actions of fraud and deceit 230 Allegation of false statements in application for insurance 380 Fictions, In pleading, how far abolished by the Code 24 Filing, Of pleadings 478 Fire Insurance, Complaint on policy of fire insurance 291 Defenses which must be pleaded to be available 880 Folioing, Requirements as to folioing pleadings 73 Copy account , 119 ^'2S General Index. Foreclosure, Pwe. Complaint in action to foreclose a mortgage ; 262 Allegation as to prior action to recover debt secured 180 Allegation of breach of condition of the bond 194 Assignee of mortgage may foreclose regardless of motive in taking title 202 Tender of the amount due on the mortgage 394 Counterclaim in action of foreclosure 436 Controversies between co-defendants 440 Judgment on failure to answer 586 Amendment of complaint so as to charge defendant with deficiency 495 Former Action Pending, Tlie plea of u, former action pending 390 Former Judgment, Plea of a former judgment 390 Fraud, Use of word " fraud " or " fraudulent " not necessary to character- ize action 44 Disregarding allegations of fraud in construing pleadings Ill, 113 Determining whether complaint alleges fraud or contract 113, 114 Bill of particulars in action to recover damages 125 Joinder of cause of action for fraud with one.ior breach of war- ranty 159 Intent to deceive an essential element of fraud 203 Complaint in action for fraud or deceit ....'. 229 As a ground for reforming a contract 265 Allegations of fraud in actions for reformation 266 Creditor's action to set aside fravidulent conveyance 274 Rescission of contract for fraud 294 Complaint in action to rescind 294 Alleging fraud to defeat action on contract 408 Counterclaim that deed in action to remove cloud on title is fraudulent 430 Counterclaim for damages from, in action for lent 434 Pleading statute of frauds as a defense 375 Fraudulent Conveyance, Complaint by judgment creditor to set aside 274 Parties to such action 163, 275 Requisite allegations 275, 279 Action under the Real Property Law 279 Action under the Personal Pi'operty Law 280 Complaint in such actions 281 Fraudulent Representations, Statement of, in actions for fraud or deceit 230 Statement of, in answer setting up fraud as a defense 408 General Ixdex. 729 Frivolous Pleadings, Page. Remedy for frivolovis pleading 553 Motion for judgment 553, 554 Cannot be stricken out on motion 554 Remedy is given only where entire pleading is frivolous .... 555 What pleadings are frivolous 555 Frivolous answer 349, 350, 555, 556 Answer may be bad on demurrer and not frivolous 556 Eflfect of a decision in point 556 Motion for judgment on frivolous pleading 553, 554, 557 Motion papers 557 Application to the court or a judge of the court 557 Affidavits cannot be used on the motion 557 Several motions may be united in one notice 557 Time of making the motion 557 Effect of service of amended answer 558 Argument not allowed on the motion 558 Denial of the motion affects no substantial right 558 Wo appeal lies from order denying the motion 558 Defendant may attack complaint 558, 559 Upon a reply, as frivolous 559 The order and proceedings thereunder > 559 General Denial, Form and sufficiency of general denials 350 Upon information and belief 358 Of knowledge or information sufficient to form a belief 360 What may be shown under a general denial 366 Pleading other matter in connection with 364 Needless repetition of denials may be stricken out 563 Goods Sold, Evidence under general denial in action for goods sold 368 Counterclaim in action by purchaser 435 Guarantor, Liability of person indorsing non-negotiable note 301 Complaint against guarantor 303 Upon guaranty of payment 304 Upon guaranty of collection 304 Guardian, Form of verification by guardian 99 General answer of infant by guardian need not be verified 99 Title of the complaint in actions by guardian 147 Complaints by guardians 176 Hypothetical Pleading, Not admissible under the Code 51 730 Genebai> Index. Implied Averments, Pase- That which the law implies need not be alleged 48 Examples of implied averments 49 'Whatever is necessarily implied is u. part of a pleading 49 Facts impliedly averred may be traversed 49, 50 Implied Promise, How alleged 44, 183 Income, Complaint in action to reach surplus income of trust property. . 281 Incorporation, How alleged 177 Indefiniteness, Bill of particulars not the appropriate remedy for indefiniteness 123 Not a ground for demurrer 325, 570 Remedy for indefiniteness by motion to make definite and certain. 570 Degree of definiteness required in a pleading 52 Defect must appear on the face of the pleading 572 Want of definiteness and certainty in a counterclaim 573 Time and mode of making the motion 573 Time 573 Place 574 Motion papers 574 Opposing motion 574 Decision of the motion 575 Proceedings under the order 575 Indorser, Time when notice of dishonor was given, material 52 Statement of conditions precedent in action against 61 Essential allegations in complaint against indorser .... 52, 61, 67, 299 Indorsement, Of pleadings 75 Of copy account 119 Complaint on a contract of indorsement 299 Infant, Title of the cause in actions by infants 147 Complaint by guardian ad litem' 176 Allegations in partition where infants are interested 256 Action to compel determination of claim to lands by or against infant 260 Complaint where such action is brought by infant 262 Allegation in foreclosure where some of defendants are infants .... 264 Demurrer for want of capacity to sue in ejectment 316 Judgment by default in action against infant 584 Ge^'ekal Index. 731 Information and Belief, Page. i<'acts within personal knowledge may be alleged upon 80 Denial niaj' be stated to be on 80, 358 Rule under Codes of other States 359 Denial of knowledge or information sufficient to form a belief .... 360 Wlien grounds of belief need not be stated in verification 97, 99 AMien grounds of belief should be stated in verification 98, 100 Injunction, To restrain violation of trade-mark and for damages 208 Counterclaim for injunction in action tor violation of trade-mark. 429 Insolvency, Of ii parly as a ground in equity for a set-off 441 Insurance, Complaint on n policy of insurance 291 Defense of illegality or breach of warranty must be pleaded 380 Allegations of false statements in the application 380 Alleging statutory notice to pay premium 380 Alleging failure to commence action in due season 380 Intent, When allegations of wrongful intent are necessary 201 Exercise of a legal right unalfected by the motive actuating it. . . . 201 Act which is lawful if done with good intent, not actionable be- cause of bad intent 201 Criminal prosecution instituted with probable cause but ma- liciously 202 Jlalicious motives in causing arrest gives no action for false im- prisonment 202 Taking assignment and foreclosing mortgage through malicious motives 202 Bad motive in insisting upon a legal right, imimportant 202 Malice may mal^e lawful act actionable in some States 202, 203 False representations made without fraudulent intent 203 Mode of alleging an intent to deceive 203 When allegation of malice essential in action for slander 203 Wrongful intent not essential to support an action of trover 203 Wrongful intent in action for an assault 203 Interlocutory Judgment, On decision of a demurrer 338 Entry in accordance with decision 339 Demand of, in the complaint 210 Interpleader, Complaint in action of interpleader 287 Inuendo, Office of an inuendo in action of slander or libel 237 When not needed 231? When necessary 23S '''32 General Index. Irrelevancy, Page. Irrelevant matter in the reply cannot lie reached by demurrer 40.') Remedy for irrelevancy is by motion to strike out 5.5, 405, 5(il \\hen a pleading is irrelevant 5(51. When an allegation is irrelevant 561 \\'hat is meant by irrelevant matter in a pleading 501. 562 Test of relevancy 562 Distinction between redundant and irrelevant matter 562 ilotion to strike out irrelevant matter 563 Motion papers 563 Combining other motions with motion to strike out 564 Opposing the motion 564 Principles governing the decision of the motion 564 Authority to strike out an entire answer or defense 265, 266 Granting relief discretionary and not a matter of right 566 Exercise of the power by the court 566, 567, 568 Questions not considered in the motion 568 When the remedy is by demurrer and not by motion 568, 569 Denial in cases of doubt 569 The order 570 Issue, \A'hen an issue of law or fact arises on the pleadings 22 Time of joining issue in justice's court 614 Joinder, Provisions of Codes and Statutes as to joinder of causes of action. . 152 The New York Code of Proeedvu-e 153 Tire Indiana Statute 154 The Iowa Statute 154 The New York Code of Civil Procedure 155 The California Code of Civil Procedure 155 Of claims arising out of the same transaction, etc 156 Meaning of the term " same transaction " 157 Time not important in determining identity of transactions. . . 158 Causes of action arising at the same time, but not out of same transaction 158 \'\'hen the causes of action are not consistent with each other. 159 Where some of the causes of action are on contract and some in tort 159, 161 Joining claim for injunction with claim for damages 160 Meaning of the term " subject of action," 160 Causes of action which may be joined 161 Statement of facts necessary to authorize the joinder 162 The causes of action joined must affect all the parties 162 The test of proper joinder 163 All parties need not be affected in equal degrees 162, 163 In actions by judgment creditors 163 When causes of action cannot be joined 163. 164, 165, 166 (jeneeal Ixdex. Y33 Joinder — (Continued). Page. In equitable actions 165 Of demands held in both an individual and representative capacity. 166 Of causes of action upon claims against trustees 167 Of causes of action against surviving partner 168 Of causes of action against executors, etc 168 Causes of action wlijch cannot be joined 169 Inconsistent causes 170 Meaning of the phrase " consistent with each other " 170 Causes which do not affect all the parties 162, 171 Causes requiring different places of trial 171 Demurrer for misjoinder of causes of action 322 For misjoinder of parties 318 For non-joinder of parties 319 Of denials, defenses and counterclaims in the same answer 343 Of other matters in connection with denials 364 Of legal and equitable defenses 382 Of pleas in bar and pleas in abatement 385 Defense of non-joinder of parties 388 Joint-debtor, Complaint in action against joint debtor not summoned 290 Answer of joint-debtor in such action 407 Judicial Notice, Matters judicially noticed need not be pleaded 50 Judgment, On default cannot be more favorable than the demand of relief. . 10, 204 Leave to sue on =1 judgment 61, 181 Pleading jurisdictional facts in action on a judgment 64 Demand of judgment in the complaint 203 For part of a demand, when it prevents recovery of residue 151 Alleging recovery of judgment in judgment-creditor's action 273 In action against stockholder 284 Demand of judgment in the answer, when necessary 364 Defense in action upon a judgment 375, 382 Plea of former judgment 390 On a counterclaim 444 On demurrer 338 Motion for judgment on a frivolous pleading 557 On failure to answer 577 Entry of judgment by the clerk without application to court. . 577 On application to the court 580 In foreclosure 586 In matrimonial actions 588 On failure to reply 589 Opening judgment taken by default 590 On failure to answer a verified pleading in justice's court 603 On a counterclaim in a, justice's court 612 '^34 GEJ>fEEAL IkdEX. Judgment-creditor, Page. Complaint in judgment-creditor's action under New York Code.. 271 In action to set aside fraudulent conveyance 274 Under the New York statutes 279 In action to reach surplus income of trust property 281 In action against stockholder of a corporation 283 In actions against defendants not summoned 290 Jurisdiction, Pleading jurisdictional matters 63 Not necessary in actions brought in court of general jurisdic- tion 63, 6.5 Of courts of inferior jurisdiction 64, 65 In action upon j udgment rendered by courts not of record . . 64, 65 Alleging residence of parties 65, 315, 604 Demurrer to complaint for want of jurisdiction 313 Want of jurisdiction of subject-matter 313, 314 Want of jurisdiction of the person of the defendant 314 Joinder of causes of action, want of jurisdiction as to one or more 314 Defense of want of jurisdiction of foreign court must be pleaded . . 375 Alleging jurisdiction of court to render judgment pleaded in bar . . 393 Attacking complaint for want of jurisdiction of court, on demurrer to answer 455 Of matter set up as a counterclaim in justice's court 609, 610 Limitation is as to the nature and not as to amount 610 Justice's Court, Pleadings authorized in a justice's court 599 Form of the pleadings 599, 600 Demand of judgment 601 Complaint 601 G-eneral requirements 601 On assigned demands 602 By plaintiff suing in a representative capacity 602 By public oflScer 602 Demand of relief 602 Joinder of -causes of action 603 Verified complaint in justice's court 603 The answer 604 Requisites of an answer to a verified complaint 605 Matters provable under a general denial 605 New matter as a defense 605 Taking objection of noii-joinder of parties 605 Demand of judgment 606 Answer that title to land will come in question 606, 608 May be interposed at any time before trial 608 Defendant's undertaking 606 Disconlinuance 607 Geneiial Index. 735 Justice's Court — (Continued). Page. Failure to deliver undertaking 607 Proceedings in the higher court 608 Answer may be amended if defectively pleaded 608 Counterclaims in justice's court 609 Requisites of the counterclaim 609 When the action is on an assigned demand 609 When the action is on a note or bill 610 When tlie action is by a trustee or person without interest. 610 Limitation as to nature but not as to amount 610 In actions against executor or administrator 610, 611 Mode of pleading the counterclaim 611 Effect of a failure to plead a. counterclaim 611, 612 Judgment upon the counterclaim 612 Demurrers in justice's court 61.3 Time of joining issue 614 Proceedings on default 614, 615 Amendments of pleadings in a justice's court 615 On appeal to County Court 617, 618 Justification, Plea of justification in action of slander or libel before the Code. . 31 Danger of interposing the plea under the old system 31 Under the present provisions of the Code 31, 409 Must be pleaded . .' 409 Requisites of a, good answer of justification 409, 410 Matter pleaded in justification may be pleaded in mitigation.... 410 Labor, (See Services.) Laches, A ground for denying motion for leave to amend 498, 499 A ground for denying motion" for leave to serve supplemental pleading 541 Law, Blending of law and equity 6 Issue of law raised by demurrer 17, 22, 23 Conclusions of law should not be pleaded 37 ^^'hat are conclusions of law 39 Pleading foreign laws 70 Leave to Sue, When it must be alleged to show a cause of action 180 Legitimacy, Questioning the legitimacj' of children in action for divorce 269 Libel, Pleadings in action of libel before the Code 30 Statement of facts applying defamatory matter to plaintifi'. . 30 Plea of justification before the Code 31 Pleadings in action of libel under the Code 30, 31 736- Gexeeal Index. Libel — ( Continued ) . Page. Joinder of causes of action in the complaint 155, 158 Allegation of pecuniary loss 199 Allegation of special damage 199 Complaint in action for libel 233 Proving mitigating circumstances 344, 411 Pleading truth in justification 31, 409 Requisites of a, plea in justification 409, 410 Pleading matter in mitigation 344, 410 Setting up subsequent libel by supplemental complaint 534 Bill of particulars of special damage 128, 129 License, Must be pleaded to be available as a defense 380 Lien, Alleging lien of creditor in complaint for partition 257 Limitation of Actions, Of action for negligence causing death 246 Of action against a stockholder 283, 284 Pleading statute as a defense 373 Amendment setting up the statute 494 Amendment permitting the setting up of a cause barred by the statute 500 Xot necessary to anticipate the defense in plaintiff's pleading. ... 45 Limited Partnership, Sign required showing names of partners 518 Variance as to the number and names of partners 518 Mail, Service of pleadings by mail 476 Time of service of pleading when prior pleading was served by mail 468, 470_ Malice, An essential allegation in action for malicious prosecution .. 202, 224 Should be alleged as a fact 224 Xot evidence of want of probable cause 202 May aggravate damage, but does not give action for false impris- onment 202, 227 In taking assignment of mortgage and foreclosing it, immaterial. 202 When necessary to be alleged in action of slander 203 Allegation and proof in action for assault and battery 212 Allegation of malice in action for libel 235 Malicious Prosecution, Complaint in action for malicious prosecution 224 Malice an essential allegation 202, 224 Should be alleged as a fact 224 Want of probable cau-e must be alleged and proved 202, 224 Malice not evidence of want of probable cause 202 Genekal T,\iii;x. 737 Malicious Prosecution — ( Continued ) . Page. Termination of prosecution in favor of plaintiff 225 Alleging special damage 225 Joinder of other causes of action with 161 Mandamus, Oral pleadings abolished by the Code 5!)4 Code rules of pleading applied to proceedings for mandamus .... 594 Writ, return and demurrer deemed pleadings in an action 594 Writ considered as a complaint 494 Statement of facts in the writ 594 Filing return 595 Contents and requisites of the return 595 Demurrer to the writ 59fi Time of serving demurrer to the writ 597 Demurrer to the return 596 Time of serving demurrer 597 ^Vllcn an issue of fact arises 596 Notice of filing return 597 Motion to set aside or quash the writ ':■ 597 Staying proceedings 597 Enlarging time to make the return 597 Misjoinder, Demurrer to complaint for misjoinder of parties 318 For misjoinder of causes of action. 322 Complaint cannot be so amended as to create misjoinder 4S5 In action against stockholders 496 Mitigation, Matter tending to mitigate damages a partial defense 30, 343 Pi'oof of mitigating circumstances in action of slander or libel 31, 344, 411 Proof of mitigation on default 344, 584 Extends to exemplary or punitive damages only 344 Mortgage, Alleging default in performance of conditions of the bond . . 194, 262 Complaint in action to foreclose a mortgage 262 Instrument in form of absolute deed may be shown a mortgage.. 383 Eflfect of tender of the amount due 394, 396 Counterclaims in actions of foreclosure 436 Judgment by default in action of foreelosuve 586 Motion, To compel party to receive pleading returned for defective verifi- cation 102 To preclude a party from giving evidence of an account 120 To compel service of a further account 121 For ii, bill of particulars 134 For a further bill of particulars 140 'i';]8 Gexeral Index. Motion — ( Continued ) . Page- For extension of time to plead 471 To compel filing of a pleading 479 To strike out a pleading amended for purpose of delay 490 For lea\'e to amend a pleading before trial 497 For leave to file a supplemental pleading 539 To strike out a sham answer 551 For judgment on. u frivolous pleading 557 To strike out irrelevant or redundant matter 563 To make a pleading more definite and certain , 573 Application to the coui-t for judgment by default 580 In action to foreclose a mortgage 586 In matrimonial actions 588 For judgment for failure to reply 589 For relet from default 590 Municipal Corporation, Presentation of claims before suit against 62 Amendment of complaint in action against, for personal injuries. . 496 Laches in applying for leave to amend 498 Stringent rules of practice not applied to municipal corporations . . 499 Pleading by-laws of municipal corporations 50, 70 Mode of pleading a municipal ordinance 71 Names, Statement of names of parties in title of the action 114 Desig-nation of defendant whose name is unknown 145 Amendment of a (ileading as to the name of party 495, 517 Negative Pregnant, Treated as an admission 356 Negligence, Statement in one count of all the defendant's negligent acts 77 Bill of particulars in action for 1'25. 132. 133 Complaint in ordinary actions for negligence 243 Complaint in actions for negligence camsing death 246 New Matter, Not constituting a counterclaim deemed controverted 20, 459 In reply must be consistent with complaint 461 Meaning of the phrase " new matter constituting a defense " 412 Non-joinder, Demurrer to complaint for defect of parties 320 Defense of non-joinder of parties 388 How pleaded 389 Waiver of the defen.se 388 Non-payment, .Must be allcjird in iutiims for breach of contract to pay money.. 194 General Index. 73!) Notice, Page- Of election to treat verification as .i nullity 101, 3S7 Of motion to exclude evidence of an account 121 Of jiaymeiit of money into court 3!)5 Of appearance and demand of copy of the complaint 468 Of trial defeated by amendment of pleading 480, 4S1, 4S8 Of motion for leave to amend 497 Of motion for leave to file a supplemental pleading 539 Of motion for judgment on a pleading as frivolous 5.57 Of motion to strike out irrele\ant or redundant matter 563 Of motion to make more definite and certain 574 Of time and place of assessment by clerk on default 579 Of time and place of application to court for judgment 583 Of time and place of execution of reference or writ of inquiry 583 Of filing return to writ of mandamus 597 Nuisance, When answer to complaint in action to restrain, may be unverified 87 Numbering, Separating and numbering causes of action and defenses.....:.. 75 Xumbering the several paragraphs of a single cause of action. improper 77 Order, For a bill of particulars 138 On failure to furnish a, bill of particulars 139. 140 For it further bill of particulars 140 Precluding a party from proving his account 120. 121 Order directing service of a further account 122 Requiring plaintifl' to reply 463 Extending time to plead 47.3 Service of order for service of summons without the State 477 To accompany answer in action against corporation on note. etc. . 477 That pleadings be filed 479 Granting j^arty leave to amend his pleading 499 Service of the order 502 For judgment on frivolous pleading 559 Striking out irrelevant or redundant matter 570 That pleading be made definite and certain 574 Ownership, Of a promissory note, sufficiency of allegation 296 Alleging ownership in replevin 214 In trover 220 In ejectment 252 In action for determination of claim to lands 201 Partial Defenses, Could not be pleaded at common-law 30 Under the Code 30, 343 740 General Index. Partial Defenses — ( Continued ) . Page. How pleaded 343, 410, 411 flatter tending to mitigate or reduce damages 343, 344 Construction of the answer 116, 449, 455 Parties, Cross-action to brini;' in new parties 29 When excused from verifying a pleading 85 Verification by one of scA'cral parties 89 When all must join in the verification 90 Form of verification by a party 94 Statement of names of parties in the title of the action 144 Alleging representative character of a party 146 Causes of action joined must affect all parties 162 In partition 254 In action to compel determination of claim to real property .... 260 Alleging interest of defendants in foreclosure 263 Demurrer to complaint for misjoinder of parties 318, 334 Demurrer to complaint for non-joinder of parties 320, 332 — — Amendment of complaint as to parties 486, 492, 495, 517, 616 Supplemental pleading where now parties are brought in 529 To bring in new parties 536 Defenft of non-joinder of parties 388 Partition, Complaint in partition under the New York Code 253 Parties 254, 257 Controverting- title of co-defendants 347 Proof of unprobated will under a general denial of intestacy.... 371 Partnership, Misjoindci- of dormant partner 389 Counterehiim in action by a member of the firm 418, 419 Counterclaim in action by the firm 419 Posting names of members of a, limited partnership 518 Mistake in such names 518 Relation of surviving partner to the partnership property 167 Joinder of causes of action against surviving partner 168 Payment, ,— Xon-|jnyment must be alleged in action on contract for payment of money 46, 194' Items of payment need not be stated in copy account 119 Bill of particulars of payments by an agent 128 Alleging non-paj'ment in foreclosure 262, 263 When proof of payment may be shown under a general denial.. 367 When payment must be pleaded 373 Setting up payment by supplemental answer or reply 537, 538 Gea'kijal Tmikx. 741 Penalty, Page. ('omplaiut for statutory penalty need not negative defense 47 Omission of verification of answer in action for 86 Joinder of causes of action in actions for a penalty 155, 159 Performance, Excuse for failuie to fully perform need not be alleged in action on 'jiiuiitinii ineniil 46 Pleading performance of conditions precedent 59, 186 Excuse for non-performance cannot' be shown under allegation of 59 When party is not bound to aver performance or readiness to per- form 60 Mode of alleging performance 00, 189, 190 Of mutual covenants 187 \\'hen perfoi'mauce or excuse for non-performance must be alleged 186, 187, 188, 305, 300 When tender of performance must be alleged 188 What excuses performance 189 Alleging offer to perform in action on contract for sale of land. . . . 191 Rule in equitEX. Pleading — (C'lnitinued) . Page. Distinction between forms of action under the Ck)de 3 Abandonment of former names of actions 4 Matters of substance nnafl'ccted by the Code 5 Blending of law and equity 6 Uniform procedure and rules of pleading in legal and equitable actions 7 Essential distinctions between law and equity remain 8 , Eig'ht to legal or equitable relief under the pleadings 9 The pleadings at law or in equity before the Code 11 The pleadings authorized ]>y the Codes of the several States 15 When an issue of law or fact aiises on the pleadings 22 Truth, as a requisite of Code pleading 24 Cross-complaint, cross-petition, or cross-bill 26 Cross-complaint under the California Code 27 Substitutes under New York Code for former cross-bill 28 Answer in the nature of a cross-petition under practice in Nebraska 29 Cross-action under the New York Code 29 Partial defenses authorized by the Code 30 New rules in relation to actions of libel or slander 30 Substitution of motions in place of special demurrers 32 Allegations to show right to provisional remedy 32 Tendency towards uniformity in all actions and all courts 33 General rules of pleading 33 Nature, object and necessity of pleadings 33 Pleadings and an issue essential under every system 34 Proof without allegation 34 Every material fact hould be pleaded 35 What are material allegations 35 Facts should he pleaded and not evidence of facts 35 Only the ultimate facts should be pleaded 36 Aliening acts of agent as acts of principal 36, 43 ]'"acts should be plcailed and not conclusions of law 37 fJI'iM't of a denial or failure to deny a conclusion of law 37 Statutory exceptions to the general rule 38 What are facts and what are conclusions of law 39 Foreign laws should be pleaded as facts 40 Stating facts according to their legal effect 42 -\lleging facts from which ultimate fact results 36, 43 Alleging a conversion or facts establishing it 36, 44 Implying promise from facts alleged 44 Anticipating jiossible defenses, not necessary 45 Anticipating and avoiding statute of limitations 45 Negativing existence of contributory negligence 45 Anticipating defense of statute of frauds 46 Allegations of non-payment 46 Excusing failure to fully perform 46 Gk.xkuai, Iniikx. 743 Pleading — ( Continued ) . Page Xc^^'ativing e>cco|itions or |ll■ovi^n^^ in .1 statute 47 Anticipating defense of infancy or coverture 48 Striking out matters alleged in anticipation of a defense. . 48 Tliat wliicli tlie law implies need not be alleged 48 Direct allegation of a fact which the law implies 48 Facts impliedly averred 49, 50 Matters judicially noticed need not be pleaded 50 Hypothetical jileading prohibited 51 Certainly as to time, place and value 52 Conciseness in pleading 54 Where equitable relief is sought 55 Stating cause of action in several counts 55 Repeating the same allegations in different counts 5ri Consistency in pleading 56 Required only iu complaint and reply imdei- New York Code 56 Inconsistent defenses may lie rmited 57 ^Miat causes of action are or are not consistent 57, 58 Remedy for joinder of inconsistent causes of action 58 How far inconsistent averments aie permissible 58 Performance of conditions precedent uuist be pleaded 59 Excusing non-performance 59 Mode of alleging performance under the Code 60, 186 Pleading due jjerformance limited to contracts 60 Pleading performance of conditions in action against indorser 61 Pleading request or demand when a condition precedent. . 61 Alleging performance of statutory conditions in Minne- sota 62 Alleging leave to sue 61 Alleging expiration of time 61, 62 Alleging' presentation of claim against ,1 cit}' 62 Alleging performance of conditions in policy of insurance, 63 Pleading jurisdictional matters 63 In courts of general jurisdiction 63 Where jurisdiction depends upon citizenship 64 Where jurisdiction depends upon residence 64 In actions upon judgment of an inferior court 64, 65 In action upon judgment of court of general jurisdiction, 65 Judgments of courts of other States 65 Effect of failure to allege jurisdictional fact of residence. 65 Pleading an instrument for the payment of money only 66 Effect of setting forth a copy of the instrument 66, 67 In action to charge indorser 67 In action brought by an assignee 67 In an action on a policy of insurance 67 Pleading — ( Continued ) . Page. Where the instruniont is written in a foreign language.. 67 Pleader not obliged to adopt the statutory form 67, 68 Effect of setting out u copy under California Code 68 Effect of failure to file copy instrument in Indiana 68 .\<'('Ount, how pleaded under the Code 69 Pleading statutes and ordinances 70 When and how a statute should be pleaded 70 Mode of pleading a municipal ordinance 71 Public and private statutes distinguished 71 Formal rules of pleading under the Code 72 Requirement as to writing or printing 72 Requirement as to folioing 73 Requirement as to subscription and indorsement 74 Separating and numbering causes of action or defenses. ....... 75 Mode of separately stating causes of action 77 Separately stating and numbering defenses, etc. . .■ 78 References from one count to another 78 Repeating in one count matter alleged in another 79 Forms of allegations or denials in verified pleadings 79 Allegations upon information and belief 80 Verification of pleadings 81 When verilication is optional 81 When ii pleading must be verified 82, 83, 84 When a verification is convenient and advisable 82 When the answer may be unverified 83 Verification of counterclaim only 83 Defective verification 83 \Vhen the answer or reply to a verified pleading may be im- verified 85 By wliom pleadings may be verified 88 When the veiification may be by agent or attorney 91 Eorm of verification by a party 94 Form of verification by agent or attoiney 96 Form of veiification by a guardian ad litem 99 Form of verification by an officer of a corporation 99 Remedy for defective verification 100 (.'onstnulion of pleadings 102 When a pleading is to be liberally construed 102 • When a pleading is to be construed against the pleader 106 Construction on dcmuri cr 107 Construction on the trial 108 Facts specifically alleged prevail over general statements.... 109 Constiuction as to the nature of the action 110 Consi ruction as to the nature of the defense 115 Copy account 117 Bill of particulars 122 Gejnteeai. Tniiex. 74-5 Pleading — ( Continued ) . Page. Complaint or petition I43 Essential allegations in particular actions 210 Demuirer to the complaint 309 The answer 342 Demurrer to the answer 446 The reply 457 Demurrer to the reply 465 Service and filing of pleadings under the New York Code 467 Amendment of pleadings 480 As of course 480 On motion before trial 492 At the trial 503 After trial or on appeal 522 Supplemental pleadings 528 Sham answers or defenses 546 Frivolous pleadings 553 Striking out irrelevant, redundant or scandalous matter 561 Indefinite and uncertain pleadings 570 Default in pleading 575 Application of the rules of pleading to special proceedings 594 In Justices' courts \ 599 Possession, Alleging right to possession in replevin 213 In trover 219, 220 In ejectment 250 In partition 254, 255 In action to compel determination of claim to real property. . 261 Presentment, Of note for payment must be alleged in action against indorser . . 299 Principal and Agent, Alleging contract as made by principal though made by agent. .36, 44 Alleging acts of agent of corporation as acts of the corporation . . 43 Alleging fraud of agent as fraud of principal 43 Alleging sale and delivery to principal where purchase was by agent 43 In action by principal on oral contract made by agent 44 Counterclaim in action by principal against purchaser from agent. 419 Principal and Surety, Counterclaim in actions against sureties only 415 In action between sureties for contribution 415 In action against both principal and surety 416 Privileged Communication, How alleged as a defense in action for slander 411 746 General Index. Probable Cause, Page. Existence of probable cause justifies criuiinal prosecution. .. ,201, 202 Both malice and want of probable cause must be alleged 202 Want of, cannot be inferred from malice 202 Want of, \yU\ not give party arrested action for false imprison- ment 202 Profits, Damages from loss of profits are special and anust be alleged as such 196 Promise, How alleged 44, 183 In action on account stated 210 Unconditional written promise to accept a bill equivalent to ac- ceptance 302 Alleging a promise without averring its breach, insufficient 194 Promissory Note, Pleading instrument for the payment of money only 66 Complaint against the maker 296, 302 Complaint afiainst an indorser 299, 302 Complaint against maker and indorser 67 Complaint against a, guarantor 304 Verification of complaint by agent or attorney 89, 91, 96 Order to accompany answer in action on note of corporation 477 Separate actions on notes given in settlement of a demand 150 Not necessary to allege a, consideration 185 Alleging u demand of payment before suit 192 Evidence under general denial in action for conversion of 378 Defense of alteration of note, when to be specifically pleaded 374 Defense of usury 398 Counterclaim in action against accommodation indorser 416 Counterclaim in action brought by assignee 420, 421 Complaint against indorser of non-negotiable note 301 Complaint by person not a party to the note 67 Proofs, Conforming pleadings to proofs 503 Protest, Time of notice material 52 How pleaded 61, 299, 300 Excuse for want of notice cannot be shown under allegation of notice 300, Provisional Remedy, Statement of facts in complaint authorizing provisional remedy. 32, 33 EITcct of supplemental pleading on provisional remedy 545 Use of vei'ified complaint as an affidavit on application for 82 Genkkai. Ixdex. 747 Publication, Page. Order for iniblioatioii of suimiKins must be toundcil on verified romplaiiil S2 \Vlieu serviee by pulilieation is complete 469 Time to answer after service by publication 469 Filing summons, complaint and order for publication 470 Proceedings on default where service was by publication 585 Alleging the publication of a libel 235 Supplemental complaint stating subsequent publication 534 Public Officer, \'criiication of pleading when public officer is a party 88 Public Policy, When necessary to plead that a contract is against 368 \Yhen invalidity may be shown un
sig-nment to plaintifl' after suit has no retroactive effect. . . . 532 To bring in third party as a defendant 534 .Adding demand of damages in action to recover a life estate. . 534 Alleging publication of libel after commencement of action.. 534 .\lleging maturity of installments after suit commenced 534 Alleging facts subsequently occurring varying relief 534 In action to foreclose mechanic's lien 535 In action by ta.xpayers 535 In action to enforce right of stoppage in transitu 535 In action of cjno irarninto 535 To liring in a defendant after decree and sale in foreclosure . . 536 ^Miere phiintiff has died since action commenced 536 To bring in trustee in place of deceased assignee 536 Supplemental answer or leply 536 Cases in which supplemental answer is authorized 536 ilatters which defendant may be allowed to set up 537, 538 New cause of action or defense cannot be set up 537 Matter scl up must be in addition to or continuation of orig- inal 537 Transfer of the plaintiff's intei'est 538 In action fn olitain forfeiture of charter of corporation 538 Setting up by supplemental reply, paj'ment of counterclaim . . 538 Application for leave to file 539 Jlotion papers 539, 540 Decision of the motion 540 Discretion of the court 541 Tjaches of the moving party 541 When motion will be denied 542 Insuftieieney of the proposed pleading not passed upon 543 Truth of allegations not determined upon affidavits 544 Terms imposed on granting leave to serve 544 Proceedings \\'here leave is granted 544 ,\mendment of supplemental pleading 545 Answer or demurrer to supplemental complaint 545 Supplemental summons where new defendant is brought in 544 754 Geneeal Index. Supplemental Summons, Page. Where a new defendant is brought in by supplemental pleading. . 544 Surety, Counterclaims in actions against surety only 415 In actions between sureties for contribution 415 In actions against both principal and surety 416 Surviving Partner, Stands in relation of trustee to estate of deceased partner 167 Takes legal title to partnership property 168 Is liable to creditor for firm debts 168 Joinder of causes of action against him 168 Of firm having a lunatic member 168 Taxpayer's Action, Supplemental complaint in action to restrain tax levy 535 Tenants in Common, Requisite allegations in action of partition by 254 Tender, Plea of tender 393 Where payment is to be made in specific articles 393 Where a person owes a debt payable in money 394 To extinguish lien of mortgage 394 Of amount due on an execution 395 Where a person is bound to pay on receipt of conveyance 395 After suit brought 395 Keeping tender good ' 395 Paj-ment of money into court 395 Cannot be joined with defense of usury 398 Time, Certainty in allegations as to time 52 Of demand of copy account 118 Of service of tlie complaint 467 Of service of answer or demurrer 467 Of service of reply or demurrer to answer 470 Extension of time to plead 470 In which to amend as of course 480 Of moving to strike out a sham answer 551 Of notice of motion for judgment on frivolous pleading 553 Of moving to strike out irrelevant or redundant matter 563 Of moving to make pleading definite and certain 573 Of joining issue in a justice's court 614 Not important in determining identity of transactions 158 Title, Of the complaint or petition 143, 144 Indorsement of the pleadings with title of the cause 74 Statement of title of the plaintiff in replevin 214 Alleging title in trover or conversion 219 Geisteeal Index. 755 Title — ( Continued ) . Page. Alleging title in ejectment 251 In action to determine claims to real property 260, 201 Complaint in action for slander of title 240 Showing title out of the plaintiff under general denial 369, 370, 371, 404 Alleging title of defendant or third person in replevin 403 Alleging title in a stranger as u. defense to trespass or trover .... 404 Tort, Complaint determines whether action is on contract or in tort 110 Joinder of causes of action in contract and in tort 15S Allegations of damage in actions of tort 197 Allegations of bad motive or wrongful intent 201 Proof under a general denial in actions of tort 369-372 Counterclaim in actions in tort 427 Amendments changing nature of the action 493, 494, 505 Trade-mark, Counterclaim in action to restrain violation of 429 Treble Damages, Demand of judgment for treble damages 210 Trespass, Bill of particulars in action for trespass 125 Alleging title in a stranger 369, 371 Answer in action for trespass 403 Trover, Answer in action of trover 403 Answer of title in a stranger 369 Complaint in trover 219 Wrongful intent on part of defendant not essential to action 203 Counterclaim in action of trover 429 Allegations of damage 197 Trustees, Joinder of causes of action upon claims against 167 Complaint in action to foreclose mortgage executed by 264 Counterclaim in action by trustee 423 Truth, As a requisite of Code pleading 24 Uncertainty, Remedy for uncertainty in a pleading 570 Undertaking, On appeal, necessary allegation in complaint on 61 On entry of judgment by default 585 On answer of title to land in a justice's court 606 Use and Occupation, Amendment of complaint to permit recovery for rent 509 756 Gbneeal Index. Usury, Page- When pleaded as a counterclaim and when as a defense 412 May be set up by amendment of answer 485, 494 When defense should be accompanied by a denial 350 Defense must be pleaded 378, 396 Manner of alleging the defense 396 Defense is personal to the borrower or his privies 399 Value, Certainty in allegations as to value 52 Variance, Material and immaterial variances 511 Proceedings in ease of variance between pleadings and proofs 511 Venue, Changing venue by amending complaint 486 Verification, , Of pleading's 81 \Vhen optional with plaintiff 81 Complaint must be verified when summons is served by publication 82 Verified pleading may be used as an affidavit 82 Injunction granted in California only where complaint is verified. . 83 When optional with defendant 83 Of counterclaim only 83 Defectively verified pleading may be treated as unverified 83 Service of copy without a verification 84 When a pleading must be verified 84 When the answer or reply to a verified pleading may be unverified 85 \^'hat excuses want of verification 85 By whom pleadings may be verified 88 Parties united in interest 89 Partners 89 Parties not united in interest 90 JIaker and indorser 90 Husband and wife 90 By one of several co-defendants 90 By agent or attorney 91 Form of verification by a partj' 94 By agent or attorney gg By a guardian ad litem 99 By an officer of a corporation 99 Remedy for defective verification 100 Of a oojiy account Hg Of a bill of particulars I39 Of pleadings in a, justice's court 603 General Index. 757 Warranty, Page. When a doubtful pleading will be construed as alleging warranty 114 Joinder of causes of action for breach of warranty and for fraud. . 159 Alleging breach of warranty as a counterclaim 435 Waste, On mortgaged premises, may be pleaded as a counterclaim 429 Will, Counterclaim in action for construction 430 Proof of unprobated will luider general denial . . '. 371