\J3C> NEW YORK UNIVERSITY SCHOOL Or LA^ • LIBRARY • OJorttfU ICam ^rl^anl Hibratg '^^*ni1llilMiii&«W.^V!,/"l< wie of civil 3 1924 022 788 404 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022788404 CASES UNDER THE ew /ork Code of Civil Procedure SELECTED BY EDWIN D. '^BB Associate Pfofcssor of Law in New York Univefsity Law School L. J. TOMPKINS, Publisher 32 Waverly Place, New York 113^^(^01 By I^slie J. ToijpRiNs PREFACE. That a practical knowledge of the New York Code of Civil Procedure cannot be obtained by the study of the code alone or merely with incidental references to cases is made too plain for argument by the multitude of cases reported every year in which the only or chief question litigated by attorneys who must be presumed to have read the rele- vant provisions of the code is as to the application of some section of that statute. The student must .acquaint himself, at least to some extent, with the evolution of the various important provisions and with the attitude the courts have taken toward the innovations sought to be made by the legislature. This can be done only by the study of reported cases. The chief difficulty in preparing a set of cases for such study is to keep it down to workable size. Accordingly only those cases have been selected which it is believed will serve to prevent misconception of the code provision, either by throwing light upon its history or by showing its actual application by the courts to situations in which doubt might arise as to its precise meaning, and, as a rule, only those parts of the opinions which relate to the point under con- sideration have been included. The cases follow the lines of the course so successfully given for many years in New York University Law School. The departures are mainly by way of amplification. [iii] X^5SJi CONTENTS OF VOLUME I. CHAPTER I. SUMMONS. V PAGE. 1. Jurisdiction 3 Akin V. Albany N. R. Co., 14 How. Pr. 337 3 2. Form. . . . , 4 Hull V. Canandaigna E. L. & R. Co., 55 App. Div. 419 5 Peaselee v. Haberstro, 15 Blatchf . 472 8 Barnard v. Heydrick, 49 Barb. 62 9 3. Names of parties 13 Grant v. Birdsall, 16 J. & S. 427 13 / Bannerman v. Quackenbush, 11 Daly 529 14 Anderson v. Horn, 23 Abb. N. C. 475 15 / Smith V. Jackson, 20 Abb. N. C. 422 16 Stuyvesant v. Weil, 167 N. Y. 421 19 4. Notices to be served in certain eases 22 Farmers, etc., Bk. v. Stringer, 75 App. Div. 122 22 Peo. ex rel. Martin v. Walters, 15 Abb. N. C. 461 25 a. Foi-ms of notices 26 5. Service. a. Personal. i. Who may serve 26 Meyers v. Overton, 2 Abb. Pr. 344 26 ii. Service on Sunday. Scott S. M. Co. V. Dancel, 63 App. Div. 172. 27 iii.~ On infant. Ingersoll v. Mangam, 84 N. Y. 622 29 iv. On lunatic. Grant v. Humbert, 114 App. Div. 462 31 V. Manner of service. Correll v. Granget, 12 Misc. 209 34 Olson V. MeConihe, 54 Misc. 48 35 Bulkley v. Bulkley, 6 Abb. Pr. 307 36 vi. Privileged persons. Baker v. Wales, 3 J. & S. 403 38 Person v. Grier, 66 N. Y. 124 40 Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377 41 vii. On domestic corporation. Barrett v. A. T. & T. Co., 138 N. Y. 491 45 [V] ii VI CONTENTS. 5. Service — Continued. a. Personal — Continued. viii. On foreign corporation. page. Grant v. Cananea V. C. Co., 189 N. Y. 241. . . 46 Vitolo V. Bee Pub. Co., 6C App. Div. 582 52 ix. Proof of. , Randall v. Randall, 29 Misc. 423 55 b. Substituted service 56 Cont. Nat. Bk. v. Thurber, 74 Hun 632 56 e. Service by publication 60 Pennoyer v. Neff, 95 U. S. 714 60 Bryan v. Univ. Pub. Co., 112 N. Y. 382. 64 Everett v. Everett, 22 App. Div. 473 68 j Foster v. Elec. Heat Reg. Co., 16 Misc. 147 70 ! ^ Evans v. Weinstein, 124 App. Div. 317 72 Orr v. Currie, 14 Misc. 74 70 Phinney v. Brosehell, 19 Hun 116 80 ■ Ludden v. Degener, 14 App. Div. 397 81 Market Nat. Bk. v. Pac. Nat. Bk., 89 N. Y. 397 82 Pink V. Wallach, 109 App. Div. 718 84^ 6. Appearance ~~ST' Littauer v. Stern, 177 N. Y. 234 87 Reed v. Chilson, 142 N. Y. 152 '. 90 Vilas V. P. & M. R. Co., 123 N. Y. 440 _ 93 Parkhurst v. Rochester L. M. Co., 65 Hun 489 ' 96 CHAPTER II. PARTIES TO ACTIONS. 1. Who should be made parties 99 Lewis V. Gdn. F. & L. Assur. Co., 181 N. Y. 392 99 Lawrence v. McKelvey, 80 App. Div. 514 102 2. One suing on behalf of others 108 McKenzie v. L'Amoureux, 11 Barb. 516 108 MacArdell v. Olcott, 62 App. Div. 127 112 3. Real party in interest 116 Sheridan v. Mayor, 68 N. Y. 30 118 Allen V. Brown, 44 N. Y. 228 119 Field V. Mayor, 6 N. Y. 179 120 Dickenson v. Tysen, 125 App. Div. 735 124 Meinhardt v. Excelsior B. Co., 98 App. Div. 308 128 4. Necessity of joining all parties to be affected 131 Osterhoudt v. Bd. of Supervisors, 98 N. Y. 239 131 Bauer v. Dewey, 166 N. Y. 402 131 McCabe v. Goodfellow, 133 N. Y. 89 137 Gittleman v. Feltman, 191 N. Y. 205 '. 141 CONTENTS. Vll PAGE. Persons liable on same written instrument 145 Carman v. Plass, 23 N. Y. 286 145 Poor persons 147 Feier v. Third Av. R. Co., 9 App. Div. 607 147 Weinstein v. Frank, 56 App. Div. 275 150 Infant parties 152 Rima v. Rossie I. Wks., 120 N. Y. 433 152 Wileman v. Met. St. R. Co., 80 App. Div. 53 155 Parish v. Parish, 175 N. Y. 181 157 Byrnes v. Byrnes, 109 App. Div. 535 159 CHAPTER III. PLEADINGS. Complaint .^. .161-218 a. Forms abolished. '^ Stevens v. Mayor, 84 N. Y. 296. 161 Linden v. Hepburn, 3 Sandf. 668 '. . . 164 Ross V. Mather, 51 N. Y. 108 169 b. Facts, not conclusions of law. Schofield v. Whitelegge, 49 N. Y. 259 173 Sheridan v. Jackson, 72 N. Y. 170 176 Van Leuven v. Lyke, 1 N. Y. 515 178 c. Facts, not evidence. Tiiayer v. Gile, 42 N. Y. 268 180 Rogers v. Milwaukee, 13 Wis. 682 183 d. Words, legal or popular meaning. Cook v. Warren, 88 N. Y. 37 184 e. Jurisdiction, how pleaded. Hunt V. Duteher, 13 How. Pr. 538 188 f. Performance of condition precedent. Clemens' V. Amer. Fire Ins. Co., 70 App. Div. 435.. 190 g. Instrument_fQ£, payment of money only. Tooker v. 'Arnoux, 76 N. Y. 397 193 h, Slander. .. '■■' Diasv. Short, 16 How. Pr. 322 196 i. Pleading " counts." Blank v. Hartshorn, 37 Hun 101 198 j. Indivisible causes of action. , Secor V. Sturgis, 16 N. Y. 548 201 k. Election between inconsistent theories. ' Rodermund V. Clark, 46 N. Y. 354 208 1. Joinder of causes of action. • Barkley v. Williams, 30 Misc. 687 211 Drexel v. Hollander, 112 App. Div. 25 215 u Vlll CONTENTS. PAGE. 2. Demurrer 218-235 Marie v. Garrison, 83 N. Y. 14 218 Moore v. Monell, 27 Misc. 235 21P People V. Banker, 8 How. Pr. 258 221 Seeor v. Pendleton, 47 Hun 281 222 De Puy V. Strong, 37 N. Y. 372 22-1 Seamans v. Barentsen, 180 N. Y.- 333 227 Pierson v. McCurdy, 61 How. Pr. 134 230 Weeks v. O'Brien, 141 N. Y. 200 233 3. Answer 236-287 a. Denials and defences 236-72 Clark,v. Dillon, 97 N. Y. 371 • 236 West V. Amer. Ex. Bk., 44 Barb. 175 242 Kirschbaum v. Eschmann, 205 N. Y. 127 245 Steinbaek v. Diepenbroek, 52 App. Div. 437 250 Baker v. Bailey, 16 Barb. 54 251 Field V. Knapp, 108 N. Y. 87 254 Conkling v. Weatherwax, 181 N. Y. 258 257 Linton v. Unexcelled P. Co., 124 N. Y. 533 265 Wendling v. Pierce, 27 App. Div. 517 268 T|i njapaon v.J felbert, 109 N. Y. 329 270 b. Countemfm^^ 273-87^ Pierson v. Safford, 30 Hun 521. 273 Mayo V. Davidge, 8 St. Rep. 844^ 275 ""^Carpenter v. Manhattan L. I. Co., 93 N. Y. 552 277 ['Mich. Svgs. Bk. v. Millar, 110 AppT Div. 670 279 •—-Hopkins v. Lane, 87 N. Y. 501 283 sAtwater v. Spader, 12 St. Rep. 506 284 '^^^v.^; Thompson v. Whitmarsh, 100 N. Y. 35 285 4. Re^y 288-90 MeCrea v. Hopper, 35 App Div. 572 288 Guinsburg v. Joseph, 141 App. Div. 472 289 5. Verification k iyU-^UlT High Rock Knitting Co. v. Bronner, 18 Misc. 627 290 , V / Diqarquet v. Fairehild, 49 Hun 471 295 "^ Anderson v. Doty, 33 Him 238 297 Rogers v. Decker, 131 N. Y. 490 299 6. Gejieral provisions 301-32 ■jd a. Serving answer on co-defendant. / 1 N. Y. L. Ins. Co. v. Cuthbert, 87 Hun 339 301 b. Affidavit of merits. State Bk. v. Gill, 23 Hun 406 302 / Tuska V. Heller, 140 App. Div. 323 304 CONTENTS. IX 6. General provisions — Continued. e. Sham pleadings. page. Wayland v. Tysen, 45 N. Y. 281 306 d. Frivolous pleadings. Eoelildnd v. Perlman, 123 App. Div. 808 310 e. Irrelevant and scandalous matter. Kavanaugh v. Com. Trust Co., 181 N. Y. 121 312 Hilton V. Carr, 40 App. Div. 490 314 f. Indeflniteness. Post V. Blazewitz, 13 App. Div. 124 317 g. Bill of particulars. Ball V. The Evening Post, 38 Hun 11 319 ■ Higenbotam v. Green, 25 Hun 214 325 Goddard v. Pardee Med. Co., 52 Hun 85 328 ^ Gross V. Clark, 87 N. Y. 272.. . 330 7. Aiaended and supplemental pleadings 333-46 Clifton V. Brown, 27 Hun 231 333 Deyo V. Morss, 144 N. Y. 216 336 Hatch V. Central Nat. Bk, 78 N. Y. 487 338 Horowitz V. Goodman, 112 App. Div. 13 341 CHAPTER IV. STATUTE OF LIMITATIONS. L- 1. Nature 347-58 Campbell v. Holt, 115 U. S. 620 347 Hulbert v. Clark, 128 N. Y. 295 353 2. In equitable actions 359 Butler V. Johnson, 111 N. Y. 204 359 Exkorn v. Exkorn, 1 App. Div. 124 363 Mills V. Mills, 115 N. Y. 80 364 3. Payment by one joint debtor 367-71 Hoover v. Hubbard, 202 N. Y. 289 367 Crow V. Gleason, 141 N. Y. 489 370 4. Disabilities 371-74 Messinger v. Foster, 115 App. Div. 689 371 5. ^bsence and uon-residence of defendant 374-79 V Conn. Trust & S. D. Co. v. Wead, 172 N. Y. 497 ^ 374 6. Mutual account 380-86 Green v. Disbrow, 79 N. Y. 1 3S0 Table of Code sections 387-92 Forms ' 393-94 Index 421-29 CASES UNDER CODE CIVIL PROCEDURE. CHAPTER I. SUMMONS. 1. Jurisdiction. Code Civ. Pro., §§ 416, 3333-8. AKIN V. ALBANY N. R. CO. i 14 How. Pr. 337. I Actio^^or specific performance originally commenced against the Albany Northern Eailroad Company as sole defendant. Subsequently the plaintiff upon due notice ob- tained an order that Chauncey Willard, John L. Schoolcraft, and Andrew White, who had been appointed receivers of the company, be added as parties defendants, and that the pleadings and proceedings be amended by adding said re- ceivers as parties and that plaintiff have liberty to amend his complaint by inserting therein the necessary allegations to connect the said parties defendants with the cause of action set forth in the complaint. The receivers were not served with a copy of the order nor with the summons or complaint, but without further notice the plaintiff took judgment against all the defendants by default. Defend- ants moved to set aside the judgtnent for irregularity. Harris, Justice: " Civil actions, in the courts of record of this state, shall be commenced by the service of a sum- mons." This is~l;lie mandate of the Legislature; and I know of no other mode of bringing a party int« court against his will. Until served with process, the court has no jurisdiction over him and yet, in this case, we have three persons made defendants in an action, and that action brought to trial, and final judgment rendered against them, without service of process, or any other notice except that an application would be made for leave to sue them. [3] 4 SUMMONS. The record of the judgment presents the anomaly of arj suit commenced against one defendant, a complaint against the same defendant, and then a final judgment against three persons who are strangers to the pleadings: their names appear for the first time in the judgment. It needs b to state the facts to show that the proceedings cannot b' upheld. Nor was the plaintiff in a situation to proceed "to trial upon the issue already joined. Having obtained leave to amend the complaint, he was required to serve a copy of the amended complaint upon all the defendants. The effect of amending was, to strike out the issue that had been joined. It was the right of the defendant, who had alre^y answered, to put in a new answer to the amended complaint. See section 1693 and eases herein under " Provisional Remedies.'' 2. Form of Summons. §§ 417-8. -Summons. To the above-named defendant: You AEE HEBEBY SUMMONED to auswcr the complaiut in this action, and to serve a copy of your answer on the plain- tiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken HULL, V. CANANDAIGUA, ETC. CO. 5 against you by default for the relief demanded in the com- plaint. Dated, , 19 . . > Plaintiff's Attort^y. Office and Post-Office Address No HULL V. CANANDAIGUA E. L. & R. CO., DEFOREST A. WILCOX AND WALTER D. WILCOX. 55 App. Div. 419. FoKECLOsuKE. The two defendants, Wilcox, were judg- ment creditors of the defendant company. The copy sum- mons servgd^on defendant, Walter D. Wilcox, di d/io t con- tain the pame^of the at torn ey who commene^ii^tlie action of forecloSTire, t hough the office and oost-offiro address were correctly stated . The original summons/was properly sub- scribed by the attorney for plaintiff, and this, with the com- plaint and proper notice of the pendency of the action was duly filed. . The copy summons served on said Wilcox was attached to a copy of the complaint which had indorsed upon it the name and p«ist-office address of the attorney for the plaintiff, After judgment for plaintiff, Walter D. Wilcox moved to vacate the judgment upon the above grounds. Spking, j. * * * There is no real merit in this applica- tion. The defense of the father and son were identical. Their interests were joint, and a fair trial has been had upon the issues raised by the father. The only question, therefore, is whether the omission of the name of the at- torney for the plaintiff upon the copy of summons served wa s a mere irresrulari tv. or rendered the process void. If the omission did not vitiate the summons m toto, the appli- cation can be considered on its merits, otherwise not. As SUMMONS. Alderson, in his work on Judicial Writs and Process, puts it (at § 72, p. 128) : " We submit as the true and broad rule governing the subject, that defects in a writ that do* not render it void are amendable J and that imperfectionsr which so affect the writ as to entirely destroy its validity are not susceptible of amendment. In brief, process that is voidable only is amendable, but void process is not." In Osborn v. McCloskey (55 How. Pr. 345), the summons ^ failed to state the county in which the plaintiff desired the trial, and Mr. Justice Daniels, without an opinion, held that the Code provision (§ 417) was mandatory, and set aside the summons. Later, Wallace v. Dimmick (24 Hun, 635) was decided by the General Term of the first department, and the same justice wrote the opinion of the court. The same defect existed as in the case before referred to. The court did not in terms overrule the pijeceding case, but held that the omission was an irregularity and subject to amendment which, in effect, is in contravention of the doctrine that the defect renders the process a nullity. In Wiggins v. Richmond (58 How. Pr. 376), the summons omitted to specify the office, post-office address or street number of the plaintiff's attorney, and the notice of no personal claim accompanying the summons contained no reference thereto. The court held that section 417 of the Code of Civil Procedure was not mandatory, and that the ' summons was amendable. In Thomson v. Tilden (24 Misc. . Eep. 513), it was held that the omission from the summons of the name of the county in which the trial was desired was not a fundamental error, but an irregularity. See also Yates v. Blodgett (8 How. Pr. 278). In Gribbon v. Preel (93 N. Y. 93), a summons issued out of the Marine Court of the City of New York stated the time in which the defendant was required to answer as six days instead of ten, as provided in section 3165, subdivision 2, Code of HULL V. CANANDAIGUA, ETC. CO. 7 Civil Procedure. The Court of Appeals held this was an irregularity merely, saying (at p. 96) : " But the summons was not an absolute nullity. The insertion of six days in- stead of ten was an irregularity merely. The defect could have been waived by the general appeara nce of the de- fendant, or consent, express or implied. The judgment entered by default after the service of such a summons would not have been absolutely void, but simply irregular " or erroneous, to be corrected by motion or by appeal." The obvious aim of the Code provision permitting amend- ments " in furtherance of justice " (Code Civ. Proc, § 723), is to relegate this authority to the courts as to every process or pleading. Section 721 enumerates a great variety of defects covering nearly every conceivable case, which are cured by a verdict or decision. Section 722, after providing for an amendment in each of these specified defects, adds, " and any other of like nature, not being against the right and justice of the matter, * * * must * * * be supplied and the proceedings amended," and a further enlargement of the power of the court is given in the suc- ceeding section. The trend of the authorities, apide from the cases cited, ^ is to give full scope to these pactions and to treat every defect in the summons or pleading as an irregularity and hence subject to control and correction by the courts. (Clapp V. Graves, 26 N. Y. 418; Sears v. Sears, 9 Civ. Proc. 432 ; McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176.) The summons is the notice required to bring the defend- ant into court. Whatever information he could have gathered from the process in the present case he was ap- ^ prised of by the indorsement on the complaint which was annexed to the summons ; together they made a substantial compliance with the Code requirement so that the defend- ant was not misled by the omission in the summons, and that is the test in the determination of a question of this character. a SUMMONS. PEASELEE V. HABERSTRO. 15 BiiATCHF. 472. "Wallace, Circiiit Judge. The motion to set aside the summons in this action must be granted, upon the ground that the summons was not signed by the clerk or under the seal of the court. Section 911 of the Revised Statutes of the United States prescribes, that " all writs and proc- esses issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the Clerk thereof. ' ' This provision is not inconsistent with, and, therefore, is not repealed by, the sub- sequent act of Congress, now embodied in section 914 of the Revised Statutes, which enacts, that " the practice, plead- ings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding' existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held. ' ' Giving due effect to the latter act, the practice, and forms and modes of proceeding, in the courts of the United States, in common-law actions, is to conform to, and be regulated by, that of the State courts, when there is no statute of the United States prescribing different practice or forms or modes of procedure. When the statutes of the United States are silent, the practice of the State courts will prevail, but, when those statutes speak, they are con- trolling. If the summons in this case had been signed by the clerk, it could be amended as regards the seal. As it is, there is no summons in the nature of process known to this court. The summons is set aside. BAENAED V. HEYDEICK. 9 BARNARD v. HEYDRICK. 49 Barb. 62. LoTT, J. This is an application on behalf of a purchaser of mortgaged premises sold under a judgment of foreclos- ure and sale, to be discharged from his purchase, on the following grounds : 1. That the summons is not subscribed- by the plaintiff, or his attorney. * * * The first objection is based on the fact, appearing by the judgment-roll, that the names of the plaintiff's attorneys are 'pr inted at the end of thcsummons forming part of tlie roll. This, rt is claimed, is not a compliance with the re- quirements of the Code, which provides that " the summons shall be s ubscri bed by the plaintiff, or his attorney," and shall require the defendant to ' ' serve a copy of his answer on the person whose name is subscribed to the summons. ' ' It then becomes necessary to determine whether a sum- mons, issued by an attorney, with his name printed at the end thereof, is subscribed by him, within the meaning of that provision. * * * Previous to the adoption of the Code, it was provided by the Eevised Statutes (2 E. S. 278, § 9), that all writs and process issued out of any court of record should, before the delivery of same to any officer to be executed ' ' be sub- scribed or indorsed with the name of the attorney, solicitor or other person," by whom the same was issued; and yet, in the same title, at p. 283, § 70, it is declared that '' if any attorney, or solicitor, shall knowingly permit any person, not being his general law partner, or a clerk in his office, to sue out any process, or to prosecute or defend any action in his name, such attorney, or solicitor, and every person who shall so use the name of any attorney, or solicitor, shall severally forfeit to the person against whom such process shall have been sued out, or such' action prosecuted or de- fended, the sum of $50." 10 SUMMONS. This last provision is still in fo rce, and by exempting the general law partner, and the clerk of an attorney, from the penalty imposed from using his name in issuing process and prosecuting and defending actions, it is clearly implied that it may be so used by them, by his permission and authority. Although the Eevised Statutes provide that the process " shall be subscribed or indorsed with the name of the at- torney, solicitor or other person," issuing the same, and the requirement of the Code, is that the summons shall be subscribed by the pla intitf or his a ttorney, the difference in the phraseology does not, in my opinion, justify the con- clusion that a difference in p^a^tice was intended. It will be observed that the use, by a clerk, of the attor- ney's name, appears to be authorized under the provisions above referred to, in actions in which the attorney himself has no interest or connection, and it has, I believe, been the , general practice of attorneys, to allow a clerk in their office to sign their name to process issued by them. The authority given to the clerk by the attorney, in such a case, makes it his act, and he is responsible therefor to the court and the party proceeded against, and I have found no case where the practice has been called in question. There certainly appears no reason, in principle, why it should not be per- mitted. There are many instruments which the law requires to be subscribed or signed by the party to be bound thereby, and yet a subscription^ or signature, by him personally, is not necessary. Thus, the statute regulating the execution of wills, after expressly providing that every will " shall be subscribed by the testator," recognizes the signing of his name by another person as a compliance with that provi- sion, by la subsequent requirement that ' ' every person who shall sign the testator's name to any will, by his direction, shall write his own name as a witness to the will;" and it was distinctly decided in Eobins v. Coryell (27 Barb. 556) BAKNAED V. IIEYDKICK. ir after a full and careful examination of the question, that the writing of the testator's name to a will, by another per- son, in his presence and by his direction, is a subscription by him, within the meaning of that statute. * * * So the statute of frauds requiring certain agreements to be in writing and to be signed or subscribed by the party to be charged therewith, is satisfied by the signature or subscrip- tion of the name of such party thereto, by another person duly authorized to make it. ^ If such is the rule applicable to statutes in the case of wills and other written instruments requiring the subscrip- tion of parties, I am unable to discover any reason why a different construction should be given to that in relation to legal process. The views thus presented lead us to the conclusion that a subscription of the name of an attorney issuing a sum-v- mons is not required to be made by himself personally, but -that it may be made by another with his authority; and , assuming this to be correct, it seems to follow that a name , may be printed, as a substitute for his written signature. * * * It is a common practice for a person who is unable to write his name to make his mark; and the making of such mark is held to be a good signing or subscription, within the requirements of the law, by a testator, to a will. * * * It appears also to be settled that where a person is in the habit of using documents with his name printed thereon, this will be his signature, within the meaning of the statute of frauds. * * * There are also many cases where printing is substituted for writing, in instruments which under our statute are required to be in writing. It is the general practice for deeds, or conveyances of real estate, and bills of sale of personal property, to be printed ; and it is very common to use printed agreements for the sale of both real 12 SUMMONS. and personal estate, and their validity is conceded ; yet the statute declares that all conveyances of land, and all con- tracts for the sale of lands, or a note or memorandnm thereof, shall be in writing, subscribed, by the party by whom the conveyance or sale is made, and also makes it necessary for a note or memorandmn of every contract for a sale of goods, when the price thereof is $50 or more, to be in writing, except in cases of part payment of the purchase money, or delivery of part of the goods. Assuming, then that such instruments, when printed, are * ' in writing, ' ' within the requirements of these provisions of the statute, is there ,any good reason why printing an at- torney's name may not be permitted, as and for his sig- nature to a summons or other legal process? In this con- nection I will refer to the fact that the Code provides for the service of a summons on a defendant by delivering a copy thereof, without the necessity of showing him the original (§ 134), and also authorizes a copy to be inserted in the judgment-roll (§ 281). This appears to me a material fact in determining the question now under consideration. It is by the service of the summons that the action is com- menced, and jurisdiction over the party is acquired ; and if the service of a printed copy (for there is nothing to pro- hibit such a copy), is sufficient for that purpose, and such a copy may properly form a part of the judgment-roll, there is no valid reason for requiring the paper spoken of, and denominated the summons (but which may never be filed, but be forever kept in the pigeon holes of an attorney's desk) to be subscribed with the written name of the attor- ney, and for holding a printed subscription to be a nullity. The name of the attorney issuing the summons is as effectually disclosed when it is printed, as if it were written ; and his responsibility to the defendant and to the court, in either case, is the same. It would be necessary in any pro- ceeding against him, to show that he was in fact the attor- GRAFT V. EIBDSALL. 13 ney issuing the process ; and although there might be more difficulty in making that proof when his name was printed than there would be if it were written by himself, or by another with his authority, that difficulty exists in all cases of agency, is not sufficient, on the ground of public policy, or of any inconvenience to suitors, to require a different or a more stringent rule in the case of legal process than in any other case affecting the private rights of individuals. The different considerations above presented, lead me to the conclusion that the summons in this case was subscribed, within the requirements of the Code. 3. Names of Parties. i/ GRANT V. BIRDSALL. 16 J. & S. 427. Feeedman, J. This is an appeal from an order entered in April, 1882, refusing to vacate the judgment entered in this action against the d efendant for want of an answ er, April 4, 1863, for $349.10, and dn-fecting the defendant to ap- pear on a certain day and submit to an examination con- cerning his property, pursuant to an order made October 13, 1881. The motion to vacate the judgment was made after a lapse of eighteen years, upon the ground thatjniliB summons__and complai nt th e-chrlstian najn es' o f both the plaintiff anddefendant had been designated only by thejr iidtiaTIetters., It was not denied that the moving defendant was the proper party, nor was it denied that he had been served with the summons and complaint. Moreover, it ap- peared that the defendant, who is a lawyer, had adopted " W. T. Birdsall " as his name in indorsing the note upon which he was sued ; that in 1875 he bad appeared in obedi- 14 SUMMONS. ence to an order made in proceedings supplementary to execution; had obtained and signed several adjournments; and that the last of the adjournments had been obtained in consequence of his promise to pay the judgment. Nor was there any question as to the identity of the plaintiff. Under these circumstances there were no merits in the motion, unless the defect complained of is a jurisdictional one. In my judgment ji_ consti tuted a mere irregularity, which ha s beenjwaiyed. But even without a waiver, the court belo w would have b een bound, under our system o f practice in civil actions and proc eedings, to disregard i t as not aifect- ^ing a substan tj^alright, though a d ifferent rule may prev ail as to indictments. Order affirmed. See also Gottlieb v. Alton Grain Co., 87 App. Div. 380, wLere judgment was upheld in which defendant was designated as " W. B. Gottleib;" BANNERMAN v. QUACKENBUSH. 11 Dalt, 529. Daly, C. J. The court had j urisdiction to allow th e wordsJ^^_&_ Son " to be stri cken from the tijjjj^andjj^jjirect that^thfi_nam£.Abxaha,m._Quaekeiibush be inserted instead. The action was brought against the defendants as co- partners; and where that is the case the Code provides, § ^1932. that if the ^summ ons is served upon one or more but not upon all the de fendants, the plaintif f may pro - ceed a gainst the d e fendant or def endants served, unlessjtlie court sha ll otherwise d irect; and if he recovers, may taka. final judgment aga inst all th e defe ndants jointly indebted; upon which judgment, the execution issues in form against all the defendants, §§ 1934, 1935, — but__is not enforced a^ainaLa.-de£6n4antj who has no t_been.^SfirEexLwitluibe- sum- mons, except that-it can be collected out of property jointly^ owned by him with a defendant who has been served. / ANDERSON V. HORN. 15 The answer in this action is by J. E. Quackenbush, one of the partners, from which it may be assumed that he was the only one served in the action; and the amendment ap- pears to have been made for the purpose of having the name of both partners inserted in the summons and com- plaint, instead of J. E. Quackenbush & Son, as it was in the summons and complaint; which amendment may be made under section 451 ; and which, in fact, the court, under the Code, must, when the true name becomes known, order to be made, upon such notice and such terms as it may pre- scribe. The cases to which counsel for the appellants refer, are . cases whe re a new defendant is sought to be brought in, merelylby an amendment, w hich^ can be done only by the servic e upon him of a supplemental summons ; or, in other words, where defendants are attempted to be added without the service of process, by simply amending the pleadings ; which cannot be done. Such was not the nature of the amendment here. It ^id not a nd^ could not a,utharig€H-an individual judgnwjit_a^ainsL Abraham Quackenbush, • the jnTt ^^errniii the action being one that could_iie-eollected fo nTv~dut of property jointly owned by him and ^the-paxtae i" "IwhoJta^ jbeen served. ANDERSON v. HORN. 23 Abb. N. C. 475. Motion to vacate judgment. De fendant, sued_ as_John Horn, serve d an answer under t he name of John A^Horan. TWdayHater^ialntiffTeto thart-tirere-'WasTio''action pending between^plaintrff and JohrrXTlor£mrarnd~enifir£aij^ . TJcAdam, Ch. J. A defendant ought to be sued in the surname of his ancestors, and the christian name given to him in baptism, (Bank of Havana v. Magee, 20 N. Y. 355, 16 SUMMONS. 363). If the defendant is known by two names he may be sued by either, or that by which he is generally known, though not his real name, or if the real name be unknown he may be sued by a fictitious name, adding a description identifying the person intended (Code Civ. Proc, § 451), such as " The man in command of ship Hornet." (Pindor V. Black, 4 How. Pr. 95.) This liberality in practice fails, however, to prevent the ever recurring confusion caused by misnaming the defendant, an error which becomes more difficult to repair as the proceedings advance. The plain- tiff charges that the defendant engaged board under the name of " John Howard," and that his correct name is " John Horn," and by this name the defendant was sued. He undertook to defend in the name of " John A. Horan," which he claims to be his correct cognomen. His plea was returned. It is not a case of mis-spelling or of idems sonans, but of misnomer or nothing. The court must firs^ ascertain the defendant's true name or his alias dictus before it can undertake to decide whether he has been cor- rectly proceeded against or not. When the facts are set- tled there will be no trouble in correctly applying the law. The parties must appear in court for oral examination on June 11, at 2 p. m. On the conclusion of examination the application will be decided. See Code, § 1015. Where part of defendant's name is known, the summons should contain as much of the name as is known, supple- mented by a fictitious first or last name, as the case may require, andl a brief description tending to identify defendant. See Weil v. Martin, 24 Hun, 645. SMITH V. JACKSON. 20 Abb. N. C. 422. McAdam, Ch. J. There_arejtwo^Ja,cksMiSi_^' Morris J." and " Meyer., ' ' The plain tiff_intended_ia sue and serve proces s upon "M orris J.," a n d claims that he has been SMITH V. JACKSON. 17 properly__served therewitli. ]\C gyer Jacksonjslaimstliat processjwjj^geLirgadjipoii hi m, that he tlie reup on^ em p foyed attQraey^3nd_Je|eMedjinj^^ . son sued as Morris J. Jackspn," and all the papers emanat- ing from his attorneys are so entitled. It is apparent throughout that Solomon, Kantrowitz & Esherg were ap- pearing for " Meyer " Jackson, and not for " Morris J." Jackson. If Mey er Jackson wa s^jaot-th^-pariv-i-ntmided to be sued, the plaintiff was jundex-na-znore-ohligatioii-io accepTlhe answerTendered, than if the process had been served~upon~Jx5hLar'Smith, and he had appeared and de- fended under the title of " John Smith sued as Morris J. Jackson. ' ' There is no law or practice that permits a stranger, be- cause erroneously served with process intended for some- ,one else, to come into the record and defend upon the merits ,by alleging that he (the stranger) does not owe the debt or duty charged, when it is obvious that no one intended to allege he did. The stranger cannot force the plaintiff to accept such a plea, nor can he in any manner prejudice the real defendant intended to be — but not — served. The plaintiff, however, voluntarily accepted^ the^ plea tendej::ed by t he straiigei^ and^weiitTo trial upon^it. ^Th© trial judge declined to consider the question whether the process~was properly served,^ahddirectedr judgment against Morris 17 Jackson, who did not appear^ This practice is witEout warrant or precedent. If no^ process was serv ed < u^jon^orris J., an appearance and answer by Meyer Jack- son sued as Morris J. Jackson, gaveTJie^courtTio^jurisdic- tion to award such a judgment; and even if Morris J.^as served, an interloper could not mulct him in the costs of a trial, if he determined to suffer judgment by default. In either event the court at Trial Term was without-jurisdic- ~iieii,_aiidjUiejud jarment di rected th ereat is coram non judice an d V£>i d> The plaintiff should have declined to receive 18 SUMMONS. such a plea f rom a stranger, or by moving to set it aside as irregular, have tested its propriety. It is not to be inferred from this that the practice of the other side has been any better. Meyer Jackson, if not suffi- ciently informed by the process, might have ascertained upon inquiry that he was not the person intended to have been sued, and in case of serious doubt could have ascer- tained to a certainty by a motion to set aside the service. Upon such a motion the plaintiff would either have to dis- avow the service on Meyer Jackson as her debtor, or amend by inserting his true name, so as to commit her to an elec- tion to hold him. * * * The action isjnriwJKgfnrp. thft o.miri on a. mntirni made by Morris JTTack&oa-to^ va-cate- the judgm^nty^nd -it-must be disposed of according to legal princi ples in a mann er calcu- latedTolBring order out of chaos. If process was person- ally served upoiOIorrisTTJackson, the plamtiftTs entitled to eUter judgment agalhst^im aSTby_default;-for-he-has not appeared ih^tTie action and has failed to answer. The judgment in suchTcase must be entered by the clerk (Code Oiv. Proc, § 1212), if process has not been served upon Mor- ris J. Jackson, the attempt to commence the action has proved abortive, and plaintiff must begin de novJxi Jt_i,s fiyid2™^^tal that the want qf^jurisd ietion may^always be set up against_ajudgment, and if its absence is proved the judgment must be annulled, as the record of a court is never conclusive on the existence of a jurisdictional fact (Craig V. Town of Andes, 93 N. Y., at p. 411). j It follows that the jud gment d irected against Morris J. /Jackson at the trial term, on the answer interposed by ^ Meyer Jackson, is not only irregular but void for want of jurisdiction in the court to make such direction, and it '- "will be vacated, but, under the circumstances, without costs, \and the plea interposed by Meyer Jackson will be declared unauthorized by the practice and the service thereof set STUYVESANT V. WEIL. 19 aside. Meyer Jackson has joined in the present applica- tion, and may, therefore, be lawfully concluded by the ad- judication thereof. STUYVESANT v. WEIL. 167 N. Y. 421. Paekee, Ch. J. This action is brought on th e equ ity side of the court t p compel the defendant to c onvey the title of cer tain prem ises_toJhe_2lain tiff in pursuance of the terms of_ a wri tten contrac t , or, if unable to con vgv^ajnarketable title, that h e be decr eed -to return a partial payment made by the plaintiff. T he trial court held that ttie title was marketableand decreed^ pecific performance. . TheJ2ppel^ la te Division rea ch£d-^-CQBt,¥arry-cmtcl^ifAfm-j«id^RO reverggri t he judgm ent. The defendant's title comes through a foreclosure of a mortgage while Mary J . iStockton^wa s tJie~ ow nerii f th^fge, but in the s ummons and complaint, both of whiet-we-re-duly ser ved upon her, she was cajled_ Emma J . Stockton. Later, the^. attjomey-JxuL-t he plain tiif ;,jwithout notice to Mary J. S1^kton^i3MainM_an_iit:d.eiL_amendin^th summons aiid c omplaint so as to correctly state her given name, in pur- suaiuie_of— th.e-auih«rity— confexxed^^i^^SficUp 723 of the Code,, of -iCivil Procedure, which provides that the court may, " before or after judgment, in furtherance of justice, * * * 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." Th e contention th atJhe_courtJiad no power to amend the summons and compkint^^prgyidedIb;OM-PjdexJs fqundedjipon the claim that the court h ad no t^acquired 3urisdictioiroflif en dant"Stockto ii b the p^rsonaLseHicfi- ofjhe summons _aiid_complaint-JipQnLAex_,because_pf^ the error therein in respect to her given jiame._But we cannot 20 SUMMONS. J^ oneur -n-ith a view tliat insists upon it that any error-ap- pearing in a summons in the name of a defendant prevents the court from acquiring jurisdiction of such defendant, notwithstanding he was fully apprised, when servioe-^of fhe summons was made upfln-liim, that he was the party intended to be name_d. therein- and affected thereby: a view direct!}' antagonistic to both„ the letter and the spirit of secEons 721 and 723 of the Code, the first of which de- clares that a judgment of a court of record shall not ' ' be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings : " * * * 9. For a mistake in the name of a party or other person * * * where the correct name * *^ * has been once rightly stated, in any of the pleadings or other proceedings," while the latter section provides for correcting a mistake in the name of a party as it appears , in the summons, which, of course, presupposes, in case of prior service, that jurisdiction has already been acquired. The object of the summons' is to apprise the party defend- ant that the plaintiff therein seeks a judgment against him _ so that he may take such steps as may seem advisable to protect his interests, and in order to assure its coming to his attention the statute requires personal service of the summons to be made when it is possible to do so. It may happen, as_in_tliis ease, Ihat the defendant's name is~nol correctly st ated in the summons, and^ juclTcase it isjjie ~3uty^~of the court, when properly moved,_ to determine - whether^liotTOtEitanding the error, the defendant was fairly apprised whether he was the party the action was in^nded to ■aifect7"ani}'if' the answer of the court bejff t]i^ affirmative, its deterinination must be that the cour4; ac- quired jurisdictian,. In our judgment the facts disclosed by this record permit only one answer to the question. Was Mary J. Stockton fairly apprised by the summons and com- STUYVESANT V. WEIL. 21 plaint served upon her that the object of the action was to « foreclose a mortgage upon the premises owned by her? viz., that she was. That being so, it follows that it wasjhe duty of thejcourt, whe n applied to, to hold that jurisdiction had been acq uired and thereupon_ to grant s jich jjnendments in furtherance of justice as the statute authorized. That is pfeciselyThe course of procedure taken in the foreclosure action. After the summons had been personally served upon Mrs. Stockton more than twenty days the fact that there was an error in her given name, as it appeared in the summons, and of what that error consisted was brought to the attention of the court, which thereupon decided to amend the summons and complaint so that the defendant's name should correctly appear in every paper entitled in the action. The decision expressed necessarily involved a decision not expressed, but nevertheless made, that the court had acquired jurisdiction of the defendant in the action, and hence it follows that the court could and should have made the order amending the summons and complaint so as to state defendant's given name properly. The decision was correctly made, a nd it follow s neces- sari ly that thejurchaseiTaTIhe foreclosure sale .acquired a marketable title. — WeTia^velToTaliuded to the decisions of the several Spe- cial and General Terms which the Appellate Division felt called upon to follow. Their foundations were laid long before sections 721 and 723 of the Code came into existence as marking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality, and hence a discussion of them can serve no useful purpose. The order of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed. In Holman v. Goslin, 63 App. Div. 204, Alfred R. Goslin had been served with a copy of a summons, in which his name was stated as Alfred R. Joslin. An order setting aside a judgment taken on default 22 SUMMONS. by reason of the irregularity was reversed, it not appearing that de- fendant had been misled. If the name given in the complaint differs from that given in the summons, it is the complaint which is irregular. The complaint is in legal contemplation a subsequent step in the pi-oeedure and must be consistent with the summons. See Tuttle v. Smith, 14 How. Pr. 395, and § 418, note. Bliss Ann. Code. 4. Notices to be Served with Summons in Certain Oases. §§ 419-20, 423, 1774, 1897. FARMERS', ETC., BANK v. STRINGER. 75 App. Div. 127. ApPKvn_frmn an nrrlpr rlpnyin g defend ant's motJOH^to s e,t aside the service of the su m mons an d for leave to with- draw his notic e of a pp earance . Per Curiam: In this action a summons in the ordinary jorm was ser vedji pon the defendant A g eneral unticeTo f retainer was ^servedand dem an d for copy of the com plajnt. Th e complaint was thereafte r served, by which defendan t was claimed to be liable under se ction 12 of chapter 40 of, the Laws of 1848i_ Thereafter this motion was made. Upon the hearing of the motion, pl aintiff's attor ney made affidavit that af ter the service of the summons he had a tal lfwrth defendant, in which the defendant was inforn Ee3~' of the nature of the_actiQ.n. The learned justice at Special Term denied the motion, and in his memorandum handed down with the decision, he said : ' ' This motion, however, is ad dressed to the discretion of the Court, asking jorjaer- mission to withdraw the defenda nt^notice_o f appea rance. I do not see How th'e defendant is to be b enefited , or aided, byIauclTTeltefr~T'hg"mot^n ^?astrtherefore, be denied, wit,b_ $10 costs ; buFwTthleave to this defendant to renew the same on papers which may disclose the real object of the motion and of the relief sought." The motion was not FAEMEBS', ETC., BANK V. STEINGER. 23 renewed, but this appeal was taken from the order made. Upon the argument of the appeal, the appellant's attor- ney, stated frankly that if this motion be granted, the Statute of Limitations has now run against the claim and the granting of the motion will result in defeating the plain- tiff's right of recovery. It is true that this motion is a technical one in view of the information the defendant had before service of the notice of retainer, but, on the other hand, it may be noted that the action is a technical one. That the action is one purely for a penalty has been held in Gadsden v. Wood- ward (103 N. Y. 244), in which Judge Eapallo said of a similar action: ''This action is brought against the de- fendant to recover a debt due by a manufacturing corpora- tion of which he was a trustee and he is sought to be made liable therefor on the ground that he failed to make the annual report required by the general manufacturing law. The action is not to recover a debt which he owes, but to impose upon him, as a penalty for his default, the payment of the debt of the corporation. We have repeatedly held that such an action is an action for a penalty or forfeiture. * * * 'The liability sought to be enforced against the defendant does not arise out of any contract obligation but is imposed by the statute as a penalty for disobedience of its requirement. * * * This action is not founded on any debt owing by the defendant. The debts owing by the company are made the measure (of) the penalty." In. determining whether a technical rule shall be applied to defeat a technical right, it may be well to have in mind further that this laV has now been modified. The Legisla- ture has recognized its harshness and as the law now stands this defendant wouy not be liable upon the cause of action stated in the complaint. * * * We are of the opinion that the defendant has not by his general appearance waived his right to claim the benefit of section 1897 of the Code of Civil Procedure. 24 SUMMONS. He was summoned to appear in court by a valid legal process. To that summons he was bound to respond or be subjected to liability for judgment upon any cause of ac- tion plaintiff might plead, and upon which judgment might be taken upon his default. Defendant was not authorized 'to appear specially and make his motion to set aside the •summons, because, until the nature of the action was fixed by the complaint, the action was not one for a penalty, and plaintiff might at any time have served a complaint setting up any cause of action other than the one of which he orally notified defendant. We approve of the remarks of Chief Justice Sedgwick, in the case of Delisser v. N. Y., N. H. & 'H. E. E. Co. (39 N. Y. St. Eep. 242). In that case Judge Sedgwick says: " The only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only evidence of what is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, or, if it be properly made, change it." Compelled then to appear and demand a copy of the com- plaint in order to determine conclusively what was the object of the action, it would seem to us a legal anomaly to hold that by that appearance he has waived the benefit of a statute to which he is otherwise entitled. It may be that the object of the statute was to give notice to the de- fendant of the nature of the action. If it be held that with such knowledge the defendant has not been prejudiced by failure to comply with the statute, a motion to set aside the summons could never be made because such motion must be based upon such knowledge. It may be that the object of the statute is to prevent a judgment by default upon such a cause of action without notice in the summons of the nature of the action. If so, however, the Legislature has chosen its own method of accomplishing that object. By section 1774 of the Code, a similar purpose is indi- PEOPLE EX. EEL. MARTIN V. WALTEES. 25 cated in an action for divorce, but it is there provided, not that the summons must contain the notice of the action, but that judgment by default shall not be entered upon such a cause of action unless the summons does contain that notice. In an action for a penalty, however', by section 1897, the form of the summons is specified which gives jurisdiction to the court of that action. When the com- plaint is served which gives character to the action, then and not till then, is the summons legally characterized as insufficient to give jurisdiction. This event happening after a notice of retainer should not be held to be waived by the defendant's prior general appearance in the action. Section 1897 does not apply to a case where treble damages are given by statute. Layton v. McConnell, 61 App. Div. 447. PEOPLE EX REL. MARTIN v. WALTERS. 15 Abb. N. C. 461. From opinion of Westbeook, J. "It cannot be denied that there are grave questions to be passed upon by a court which has power to review the judgment rendered against the relator. The return of the constable upon the summons did not show that the copy thereof delivered to the defend- ant (a copy summons must now be delivered to make the service of summons valid, Code Civ. Proc. § 2878), was in- dorsed as the statute required (§ 1897). Formerly when the indorsement was required to be made upon the summons itself, it might possibly be argued that the indorsement was a part of the summons, and therefore proof of the service of the summons itself, upon which the indorsement ap- peared, was proof of the service of the notice as well. The argument, however, is inapplicable to the present statute. The indorsement now forms no part of the summons and need not appear thereon, but it must appear on the copy 26 SUMMONS. delivered to the defendant as a notice for what cause he is sued. It consequently follows that proof of the service of the summons only, cannot, and does not, show that the copy • delivered contained an indorsement required to be upon such copy and not upon the original process. Forms of notices. § 419. Take notice that upon your default judgment will be taken against you for $ , with interest from , Plffi's Atty. § 423. Take notice. The object of this action is to foreclose a mort- gage upon real [or personal] property in the city of , de- scribed as follows : No personal claim is made against you. , Plff's Atty. § 1774. The appropriate one of the following statements must legibly appear upon the face of the summons: Action for divorce. Action for a separation. Action to annul a marriage. § 1897. According to the provisions of section . . ., chapter ..., Laws of 19... And see Schoonmaker y. Brooks, 24 Hun, 553. 5. Service of Summons, a. Personal. §§ 425-34. MEYERS V. OVEETON. 2 Abb. Pr. 344. Ingeaham, F., J. The summons and complaint in this cause were served by the plaintiff upon the defendant. The defendant did not appear therein, and a judgment by de- fault was -entered against him on ah affidavit of service made by the plaintiff. The defendant moved to set aside the judgment on an affidavit in which he admitted the service of the papers, and upon the ground that the plaintiff could not serve the SCOTT S. M. CO. V. DANCEL. 27 process. The motion was denied and the defendant now appeals to the General Term. The defendant contends that the court had no jurisdic- tion in consequence of the defective service, and, there- fore, the judgment is void. If this view is correct, the ap- peal should be sustained. I do not consider the law so to he. This court had jurisdiction both of the subject-matter and the person, and the mode of service has nothing to do with the question of jurisdiction, where the proceedings are in a court of general jurisdiction. The irregularity arises not from the want of service, but from the mode of making it. In such a case, a defendant should appear and make the objection and move to set aside the proceedings. If he neglect to do so, he is to be deemed to have waived the objection. In an action by a common informer the summons can be served only by an officer authorized by law to collect an execution issued out of the same court. Code, § 1895. SCOTT S. M. CO. V. DANCEL. 63 App. Div. 172. McLaughlin, J. This is an appeal from an order direct- ing the plaintiff's attorneys to accept an alleged answer. The summons and complaint were served on Sunday, Feb- ruary 10, 1901. Four days later another summons and complaint were served, in which relief was asked upon sub- stantially the same ground as that stated in the complaint first served. On the 2d of March following, the defendant's attorney served an answer to the complaint in each action, and on the 4th of March the plaintiff's attorneys returned the answer to the complaint first served, on the ground that that service was null and void. Thereafter a motion was made by the defendant to compel the plaintiff's at- torneys to accept the answer. The motion was granted and the plaintiff has' appealed. 28 SUMMONS. The order appealed from must be reversed. At common law Sunday is dies non juridicus. Process in a civil action can neither be issued, served, or a return made on that day. A judgment cannot be entered on Sunday, and if entered it is void. Service of process on Sunday, in a civil action, except certain cases, is expressly prohibited by statute. Thus, section 268' of the Penal Codes provides : "All service of legal process of any kind whatever upon the first day of the week is prohibited, except in case of breach of peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service is especially au- thorized by statute. Service of any process upon said day, except as herein permitted, is absolutely void for any and every purpose whatever." * Here service of the summons and complaint was a nullity. ' It was absolutely void, and the plaintiff could not have obtained a judgment upon such service had the defendant neglected or refused to appear. Had a judgment been entered it would have been void upon its face. It would have been coram non judice. The proof of service would/ have disclosed the fact that the service was made on the 10th of Feibruary, and the court would have taken judicial notice that the 10th of February was Sunday, There was, therefore, no occasion or necessity for the ' defendant to interpose an answer, because the plaintiff could not have acquired anything by reason of such service or taken any advantage of the defendant in case of his non-appearance or failure to serve an answer to the complaint. In addition to this, it appeared. that intermediate service of the firs,^ summons and complaint and the second one the defendant's attorney was informed of the fact that the service having been made on Sunday it was void and would be so treated, unless the defendant would consent to voluntarily appear, which the attorney refused to do, on the ground of the want INGEKSOLL V. MANGAM. 29 of authority, and wlien the answer was served it was im- mediately returned upon the ground that "10th day of February having been a Sunday, process served on that day was absolutely void and had no effect whatever. ' ' It follows, therefore, that the order appealed from must be reversed. * Now Penal Law, § 2148. See also Penal Law, § 2150. For exceptions to the rule above stated see Code Civ. Proc, § 6 and § 2015. Service of sumnaans- vipon any holiday is good. Slater v. Jackson, 25 Misc. 783. INGERSOLL v. MANGAM. 84 N". Y. 622. Andbbws, J. The purchaser objects to the title on the ground that the summons was not served on the infant, William Manga^ The action was for the foreclosure of a mortgage executed by the father of the infant, who died be- fore the commencement of the action. The infant is under fourteen years of age and had an interest in the mortgaged premises, and resided, when the action was commenced, with his mother in New Jersey. The summons was person- ally served on the mother in this State, and after such service, upon her application, she was, by an order of the court, appointed guardian ad litem of the infant defendant, and appeared and put in a general answer as such guardian;- The summons was not served on the infant, either person- ally or by publication, and if such service was necessary to give the court jurisdiction to render judgment foreclosing and barring the infant's interest in the premises, the title is defective and the purchaser should not be compelled to complete his purchase. The Code enacts that a civil action is commenced by the service of a summons (§ 416). Where the defendant is an infant under fourteen years of age, it is declared, that 30 SUMMONS. personal service must be made by delivering a copy of the summons within this State to the infant, and also to his father, mother, or guardian, or if there is none within the State, to a person having the care or control of him, or with whom he resides, or in whose service he is employed (§ 426). Service on the infant alone, or on the father, mother, guardian or other person mentioned alone, does not con- stitute a personal service within the statute. Service upon both must concur to answer its requirement. There was, therefore, no personal service of the summons in this case, and there was no attempt to serve by publication. The Code also provides that a voluntary general appear- ance of the defendant is equivalent to personal service of the summons (§ 424). It is claimed that the appear- ance by the guardian ad litem was a voluntary appearance /by the infant within this section. An infant must appear by guardian (§ 471) ; but a guardian can only be regularly appointed for an infant defendant after service of the sum- mons personally or 'by the substituted mode (in certain specified cases), as prescribed. This is clearly implied by the language of the section last cited. It provides that the guardian is to be appointed upon the application of the in- fant, if he is of the age of fourteen years and upwards, and applies within twenty days after personal service of the summons, or after sernce thereof is complete, if made in the other mode prescribed; or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. The application in both eases is to be made after the personal or substituted service of the summons has been made. The order for the appointment of the guardian ad litem in this case authorized the guardian appointed to appear and de- fend the action in behalf of the infant ; but the difficulty is, that the order was unauthorized, because the court had no jurisdiotion over the infant or to appoint a guardian ad GRANT V. HUMBERT. 31 litem when the order was made, by reason of the fact that the infant had not been brought in and the action had not been commenced against him by the service of the summons, which is the statutory mode by which the court acquires jurisdiction of the person or property of an infant. The appearance by the guardian was not, therefore, an appear- ance by the infant, and was not within section 424. The in- fant was incapable of consenting to such appearance, and the guardian could not consent to the exercise of jurisdic- tion over him by an appearance not preceded by the service of process. * * * Infants are deemed to be wards of the court, and wthen brought in by service of process the court will look after and protect their interest. But the court must first acquire jurisdiction before they are boimd by its judgment. * * * It is no answer to the objection that the statute has not been complied with in respect to the mode of service, that the infant is of such tender years that he would have derived no benefit from the service if made ; or that it would have been competent for the legisla- ture to have provided that service upon the parent or guardian should stand as service upon the infant. The statute has prescribed how jurisdiction shall be acquired, and courts cannot dispense with its observance. GRANT V. HUMBERT. 114 App. Div. 462. Appeal from an order enjoining plaintiff from proceed- ing with this action. . Laughlin, J. The action is brought on a/promissory notejfor $1,500, alleged to have been made by tl/e defendant, payable to the order of the plaintiff. /At the time of the commencement of the action the de- fendant was an inmate of Bloomingdale Asylum, but no SUMMONS. committee of his person or property had been appointed, j Before commencing the action an application was made in behalf of the plaintiff to one of the justices of the Supreme Court, evidently with a view to complying with the regula- tion of the State Lunacy Commission precluding service on an inmate of a State hospital for the insane without an order of a judge of a court of record for leave to serve the defendant. Leave was granted and service was made upon the 25th day of November, 1905. On the 8th day of Decem- ber thereafter, by an order of the Supreme Court, the de- fendant was duly adjudged incompetent, and Susan Hum- bert was duly appointed committee of his person and prop- erty. She qualified, and a commission was duly issued to her on the 12th day of December. On the 13th day of De- cember, Messrs. Bowers and Sands, attorneys, served a formal notice of appearance, stating that the defendant, " an incompetent person, by Susan Humbert, committee of his person and property," appeared in the action; and thereafte'r the defendant, by his committee, served an answer setting forth that he had been judicially declared incompetent and the appointment of the committee, and putting in issue all of the allegations of the complaint, and setting up as a separate defense that the note was made without consideration. * * * i-f leave of the court to bring the action was necessary, I think the order permitting service of the summons cannot be construed as 'Such. leave. It' was not so intended, and it was not made by the oour'tl The theory urged by~ttre respondent to sustain the order is that the action cannot be maintained without leave of the court. That contention is not sustained by the authorities. Incompetency neither suspends the running of the statute of limitations on claims against the incompetent nor does it deprive the court of jurisdiction or bar a claimant from in- stituting an action or proceeding against an incompetent ift, GRANT V. HUMBERT. 33 person and prosecuting the same to judgment and enforcing satisfaction thereof by execution. If the action had not been commenced until after the inquisition and the appointment of the committee, the service of the summons upon the de- fendant or his committee without leave of the court might have been set aside by the court, or the prosecution of the action enjoined; and the plaintiff would also be subject to punishment for contempt, because although the title to the property remains in the lunatic, the court, "by the committee, takes unto itself the custody, care and management of the property for the purpose of preserving it from waste or destruction, and providing for the payment of his debts and the maintenance of himself and family, and the education of his children, and it will brook no interference with the prop- erty or with the committee, who is its officer or bailiff. TThe court, which by its committee takes possession of the prop- erty of the incompetent person, is clothed with full au- thority to pay all just claims against the incompetent to the extent of his estate, and to determine the validity of claims by reference, if the facts are disputed.J This summary remedy is favored by the courts, and is adopted in all cases unless s'ome 'special facts or circumstances exist which render it necessary or appropriate that the claimant should be permitted by the court to maintain an action for the pur- pose of having his claim or the extent thereof (adjudged. /The established practice with respect to the enforcement^ of claims against an incompetent person for whom a com- mittee has been appointed, is to present a petition to tlid. court, praying that the claim be allowed and paid« or, in th6| alternative, that leave be granted to sue thereom) * * *. It was competent for the court on the motion for a stay to have denied the stay and granted leave to the plaintiff to prosecute his action to judgment; and this, we think, should have been done. It follows that the order should be reversed and leave 3 34 SUMMONS. granted to plaintiff to prosecute his action to final judg- ment. ( If the person has been officially declared a lunatic and a com- mittee appointed to look after his interests, then the service should be made upon the committee; but the lunatic should also be served unless it would be injurious to him or dangerous to make the service, in which latter ease the Code authorizes the judge to make an order dispensing with such personal service^ As a general rule, however, all disqualified persons should be served personally as well as the party or parties having control of them, or with whofn they reside, or by whom they are employed, etc. iWhen the proposed defendant is believed to be of doubtful intelligence, 'an affidavit should be presented to the judge showing the grounds for such belief, and stating that, although he has not been officially declared insane, it is desired to protect his interests, adding a request that the court name some person to accept service and look after the welfare of the defendant in the suit. It is well, in all suspicious cases, to use this prac- tice, else if the defendant is declared insane pending the action, the decree will relate back to the service of the summons, and it will be necessary to begin all over again. See sections 427, 428 ; Amer. Mtg. Co. v. Dewey, 106 App. Div. 389. A convict under sentence for a felony cannot sue but may be sued. Davis V. Duffle, 4 Abb. N. S. 478. >■ CORRELL V. GRANGET. 12 Misc. 209. Motion to set aside service of summons and complaint as irregular. GiLDEESLEEVE, J. It seems to me that the preponderance of evidence shows that the service of the summons and com- plaint was irregular. Defendant presents the affidavit of a disinterested eye witness, in addition to her own, bating that a stranger came into the room in which defendant happened to be at the time, and, without asking for defend- ant by name nor stating the nature of the papers, deposited them in a chair and directly afterward departed, without offering to deliver them into defendant's hands. This was not a good service. The papers should have been handed OLSON V. MCCONIHE. 35 to defendant, and, if she refused to take tliem, the server should have informed defendant of the nature of the papers and of his purpose to make service of them, and then he should have laid them down at any appropriate place in the presence of the defendant. Where it appeared that defendant was evading service, throw- ing- the summons upon the floor several feet from defendant, and telling him what it was, was held proper service in Wright v. Bennett, 30 Abb. N. C. 65, note. OLSON V. McCONIHE, 54 Misc. 48. Motion to set aside the service of the summons and com- plaint upon affidavits showing that a female process server called at the servants' entrance of defendant's residence, rang the bell and the defendant's cook on opening the door was told by this process server that she would like to see " Kate " meaning one of the upstairs maids; the cook in- vited the stranger into the house and asked her to sit down in the kitchen, and she would send for her. While the cook was telephoning upstairs for Kate the process server ran up the back stairs and rushed through the pantry, brushing aside the butler, and ran into the defendant's dining-room, where the defendant and her family were dining, and threw upon the dining-room table a summons and complaint en- closed in an envelope. ^tdLiEAjJldJ. It is uncontradicted that the person who depots to the service of the summons herein was admitted at the servants' entrance to the house where defendant re- sided and asked to see one " Kate," presumably and ap- parently not this defendant. Such admission, under the circumstances, might not be said to carry the freedom of the house or to warrant forcible access to the dining-room up- stairs for the purpose of service of process. Entry there 36 SUMMONS. and in the manner described was wrongful and the service improper. Mason v. Libbey, 1 Abb. N. C. 354. Application to set service aside granted, with ten dollars costs. Anderson v. Abeel, 96 App. Div. 370. In Matter of McGarren, 112 App. Div. 503, defendant being offered a copy of the summons upon the street refused to take it, thrust it away and allowed it to fall to the sidewalk, where it was left by the process server. Held good service. BULKLEY V. BULKLEY. 6 Abb. Pr. 307. Motion to set aside judgment in an action for divorce on the ground of an irregular or fraudulent service of sum- mons. It appeared that on Oct. 6, 1856, defendant, with plain- tiff's consent left the City of New York, on board the S. 8. Illinois, to pay a visit to her moth-er, then living in Califor- nia. The plaintiff accompanied her to the steamship, and spent the last hour before its departure in apparently friendly and affectionate conversation with her on board. At the moment of bidding her farewell, a clerk accompany- ing plaintiff handed the defendant a package consisting of a small tin box, closed, covered with paper and the paper sealed. At the same time plaintiff informed defendant that the box contained a present for her mother and also a note for herself. After the defendant had passed Sandy Hook and was out at sea, her curiosity induced her to unseal and open the package. Upon opening the tin box she discov,ered therein a summons directed to herself as defendant and in which her husband was plaintiff filled out in the handwriting of her husband and signed by himself as his own attorney, containing the usual notice to her that an action was thereby commenced in the Supreme Court; and that the complaint would be filed in the clerk's office in Saratoga county; and that if she failed to put in an answer in twenty days, the BULKLEY V. BULKLEY. 37 plaintiff would apply to the court for the relief demanded in the complaint. The box contained no present to her mother. Defendant had not with her the necessary pecun- iary means to obtain her passage back from Aspinwall, the first stopping place of the vessel. She went on to California and returned to New York in January, 1857. Thereupon this motion was made. From opinion of Pottek, J. If the summons in this ease was not legally served, the court have never had juris- diction of the party defendant; and in such case all pro- ceedings based upon the pretended service is void, and the judgment or decree without force or effect. * * * The summons is a proceeding which both gives, and limits the defendant to, a period of time in which to appear in the action to defend it. Its first undoubted office is to give to the defendant a certain authentic and fair notice that an action has been commenced ; and next, to notify him of that reasonable time which the statute has afforded as an oppor- tunity for preparation of his defense ; or in other words, a time to advise and consult with counsel and friends as to the nature, propriety and character of the defense to be inter- posed, if a defense is intended. When a defendant, by reason of such a notice, has been fairly brought into court, he is entitled, by virtue of the other provisions of law (in cases that may require it), to apply to the court for any additional time that may be necessary to make preparation for the defense. These are the commonest rights which the spirit of the statute, as well as the fair demands of justice, allows to every citizen, in order to place him in a condition to have a fair and impartial trial ; and, if desired, a trial by the jury of the country. Any trick or device, which de- prives the defendant of these just and reasonable provi- sions, is a fraud upon the spirit and intent of the statute, and upon the rights of the party. In cases where a wife is a party to an action for divorce against her husband, she is permitted, by other equally just and wise provisions of law. 38 SUMMONS. a time and opportunity to apply to the court for an allow- ance (in discretion) for alimony, to be furnished and sup- plied by her husband during the pendency of the suit, and also that she be supplied with all reasonable and necessary means to employ counsel, and to defray all other expenses of defending her just rights, her character and her fame. What one of these ordinary legal rights, can it be said, was allowed to this defendant in this case? What one of those rights could she have obtained by an effort that she could have made, after the service or pretended service of this summons? Not one. * * * It is entirely immaterial, then, whether this package was received by the defendant from the hands of her husband, or from the hands of his clerk, so far as that act imparted to her any knowledge of what was intended to be effected by it. * * * Divesting this act, if we may — if we can — of all fraudulent intent, or fraudulent representations, taking the view we have of the office of a summons and the rights of the parties afterwards, can this court, sitting here to dis- pense equal justice, hold that the unknown possession of a summons thus disguised — thus enveloped — thus conceal- ing from the party the very knowledge which it was the in- tent of the law should be communicated — constitutes it a good service within the spirit of the statute? Such a hold- ing would not only bring a reproach upon the administra- tion of justice, but would be an impeachment of the uni- versal dictates of common sense. Motion granted. BAKER V. WALES, ^ 3 J. & S. 403. '", i Motion to set aside 'service of summons. Sedgwick, J. The facts seem to be that the plaintiif s kept in their office parcels of summons with places left blank for BAKER V. WALES. 39 defendants' names, and amounts to be claimed. The infer- ence is, that if a business interview were not satisfactory, service of summons would follow, after the blanks had been filled up. On January nineteenth, one of the plaintiffs wrote to de- fendant, who lived in Connecticut, to come to New York to settle the claim in dispute, and to answer by return mail whether he would come. He did not answer until the. twenty- sixth, and did not come until the thirtieth. Then he had an unsuccessful negotiation with plaintiff's clerk, who served •him with the summons in this case, after he had filled in the defendant's name. This summons was dated twentieth January, the day 'after the plaintiff 's letter to defendant to come to New York. There would be no doubt in the case, if it were not for the plaintiff's affidavits that the letter was written and the in- terview sought for the purpose of settlement, solely. But there is a conclusion consistent with this to be drawn from all the facts ; that is, that irrespective of a particular interest in this particular case, there was a general purpose to have interviews with business customers, who went there only for business purposes, and then the clerk, having blank summons in reserve, to serve them if the customer did not come to terms — so the clerk would be instructed. Under this general system of business, it would be only necessary for the plaintiffs to write a letter solely for the purpose of settlement in a particular case, and the clerk would serve the summons under the general instruction. Nevertheless, the result would be that a defendant would be deceived, and the deceit would be used for the purpose of effecting a service. Motion granted with $10 costs. 40 SUMMONS. PERSON V. GRIER. 66 N. Y. 124. Appeal from an order of the General Term of tlie Su- preme Court affirming an order of the Special Term setting aside a service of the summons upon defendant Grier. Allen, J. ^ is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home_^Upon principle as well as upon authority their immunity from the service of process for the commencement of civil ac- tions against them is absolute eundo, morando et redeundo. u This rule is especially applicable in all its force to suitors and witnesses from foreign States, attending upon the courts of this State j In some instances witnesses and suitors, residents of the State, have only been discharged from arrest upon filing common bail; but the service of process upon nonresident witnesses and suitors has been absolutely set aside, thus giving color to a distinction between the two classes in respect to their immunity. Whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and the courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. Witnesses might be deterred, and parties prevented from attending, and delays might ensue or injustice be done. In Norris v. Beach (2 J. R. 294), /the defendant, a resident of the State of Connecticut, attending in this State to prove a will, was held exempt from the service of a capias and discharged absolutely from the arrest. The like relief was granted in Sanf ord v. Chase (3 Cow. 381), and the defendant, a resident of Massachu- setts, arrested upon civil process while attending as a wit- ness before arbitrators, was discharged absolutely without filing common bail, the court saying : ' ' The privilege of a NETOGEAPH MFG. CO. V. SCKUGHAM. 41 ■witness should be absolute." * * * This court, in Van Lieuw V. Johnson (decided in March, 1871, but not re- ported), substantially adjudged that a summons could not be served upon a defendant, a nonresident of the State, while attending a court in this State, as a party. Four of the judges taking part in that decision were of the opinion that neither a party nor a witness attending a court in this State from a foreign state could be served with summons for the commencement of an action. The order denying an application to set aside the summons in that case was affirmed upon the ground that the party had lost his priv- ilege by remaining within the State an unreasonable and unnecessary time after the close of the trial upon which he had attended. Church, Ch. J., and Folger, J., dissented from this result, being of the opinion that the privilege had not been lost. The authorities, as well as the principle upon which the privilege rests, clearly lead to an affirmance of the order. The defendant Grier attended in this State, in good faith, as a witness, and the summons was served upon him while he was so attending and during the contin- uance of freedom from arrest. The courts will not take jurisdiction of a party whose rights are thus invaded. It would be, in effect, and for all practical purposes, a with- drawal of the shield and protection which the law uniformly gives to witness; if a party coming from a foreign state could be served with process and an action commenced against him, the judgment in which would conclude him in all jurisdictions and could be enforced by action every- where. The order must be affirmed. NETOGRAPH MFG. CO. v. SCRUGHAM. 197 N. T. 377. Weekee, J. The defendant, a resident of the state of Ohio, came into this State voluntarily in April, 1907. Wliile 42 SUMMONS. here he attended a legislative hearing in the ^ty of Al- bany. At that time he was arrested on a warrant, issued by a magistrate in the City of New York, charging him with the crime of conspiracy. He was taken to the City of New York where he gave bail for his appearance pending the examination. The examination resulted in his being held, and he subsequently gave bail to appear and answer the charge in whatever court it might be prosecuted. In June, 1907, an indictment was found against him for conspiracy, and again he gave bail for his appearance at the trial. He returned to Ohio, and when the indictment was brought on for trial in the Court of General Sessions in the City of New York in March, 1909, he appeared and submitted him- self to the jurisdiction of the court. His only purpose in com- ing into this State was to attend his trial upon the charge of conspiracy. A Uumber of days were occupied in the trial, which resulted in the defendant's acquittal late in the afternoon of March 26, 1909. He remained in the City of New York until the following day, partly because he could not get a sleeping car berth on any train leaving the city on the night of his acquittal, and partly for the purpose of consulting his counsel about other indictments against him which had not yet been moved for trial. * * * At about 9 'clock in the morning of the day after the defend- ant 's acquittal he was served at his hotel with the summons and complaint in this action. There is no connection be- tween the criminal charge upon which the defendant was tried and acquitted, and this civil suit for goods sold and delivered, which, for aught that appears, is brought in good faith. The learned court at Special Term held, and we shall assume, that defendant's stay in New York after his ac- quittal was for a proper purpose and not unreasonable in doiration. These are the circumstances which give rise to this controversy on which the learned Appellate Division has certified to us the question : "Is the service of the NETOGEAPH MFG. CO. V. SCEUGHAM. 43 summons and complaint upon the defendant * * * George E. Scrugham lawful? * * * por present pur- poses it is enough to say that from the earliest times it has been the policy of the common law that witnesses should be produced for oral examination, and that parties should have full opportunity to be present and heard when their cases are tried. It is in furtherance of that policy and the due administration of justice that suitors and witnesses from abroad are privileged from liability to other criminal and civil prosecution, eundo, morando, et redeundo. It is not a natural right, but la privilege which had its origin in the necessity for protecting courts from interruption and delay, and witnesses or parties from the temptation to disobey the process of the courts. " It has always been held to ex- tend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its author- ity and dignity and in order to promote the due and efficient administration of justice " (Parker v. Marco, 136 N. Y. 585, 589, * * *. It is not only not a natural right but it is in derogation of the common natural right which every creditor has to collect his debt by subjecting his debtor to due process of law in any jurisdiction where he may find him. The privilege should, therefore, not be extended be- yond the reason of the rule upon which it is founded. Since the obvious reason of the rule is to encourage voluntary at- tendance upon courts and to .expedite the administration of justice, that reason fails when a suitor or witness is brought into the jurisdiction of a court while under arrest or other compulsion of law. Such a suitor or witness does nothing to encourage or promote voluntary submission to judicial proceedings. He comes because he cannot do other- wise. That seems to be the basis for the exception to the 44 SUMMONS, general rule of privilege which is illustrated in cases where persons are brought into the jurisdiction of a court under extradition from other states or foreign countries. The privilege is held not to exist in such cases. From time im- memorial it has been the law that persons actually in cus- , tody under criminal process are not exempt from service j of process in civil suits. j This brings us to the concrete question whether there is/ any difference, so far as this question of privilege is con-j cerned, between a person actually in custody and one who i$ at large under bail. The question is not free from difficulty, but we incline to the view that a person who is charged with or convicted of crime and is at large on bail, is construc- tively in the custody of the law. He is not in actual con- finement, it is true, but he is in the custody of his bondsmen, who, by giving bail for him, have been constituted his jail- ors. " When bail is given, the principle is regarded as de- livered into the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge ; and if that cannot be done at once, they may imprison him imtil it can be done. They may exercise their rights in person or by agent. They may pursue him into another state ; may arrest him on the Sabbath ; and, if neces- sary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner." (Taylor v. Taintor, 83 U. S. 366, 371.) This concise and authoritative exposition of the law of bail leaves little to be said as to the status of a principal under a criminal bail bond. * * * Under such circum- stances he cannot be said to be free to come at will, and when he submits himself to the directions of the courts hav- ing cognizance of the charge against him, he does not act voluntarily, but under compulsion of law. * * * Question certified answered in the affirmative. BAEEETT V. A. T. & T. CO. 45 BARRETT v. A. T. & T. CO. 138 N. Y. 4C;1. Gray, J. The defendant seeks to set aside the service of the summons in this action, for having been made upon its general superintendent. It is a domestic_corporatioii, and, under section 431 of the Code, such a service, if not made upon the president, secretary, cashier, treasurer or a di- rector, might be made upon its managing ageni„ It ap- peared from the affidavits, read on behalf of the defendant company, that the person served was the general superin- tendent of the "work of operating the lines of the company. It was said of him that he was given that title " to distin- guish him from, superintendents of divisions of its lines, and from superintendents of other departments of the business." There was a sufficiently broad agency, or delegation of power, to constitute him a managing agent of the company. The design of the statute was to secure notice of the commencement of a suit to the corporation, and it is very apparent, from the description in the statute of the persons upon whom service might be made, that the legislature intended to facilitate such service, and only re- quired that the person to be served should sustain such responsible and representative relations to the corporation, as would be comprehended in the term " managing agent." This language would exclude persons holding such subordi- nate, or clerical positions as impose no responsibility upon them; but, plainly, would include a person holding so re- sponsible and representative an office as did the general superintendent of this company. For manner of service upon the city of New York, see § 431, subd. 1; upon any other city, § 431, subd. 2; upon an unincorporated as- sociation, §§ 1919, 1921. N. Y. Bd. of Underwriters v. Whipple & Co., 36 App. Div. 49. Service of summons upon a former officer of the corporation is not sufficient. Ervin v. Oregon S. N. Co., 22 Hun, 598. 46 SUMMONS. GRANT V. CANANEA C. C. CO. 189 N. Y. 241. Haight, J. The Appellate Division, in allowing an ap- peal to this court, certified the following question : ' ' Upon the facts appearing upon this application, did the Supreme Court of this State acquire jurisdiction of the Cananea Con- solidated Copper Company, Sociedad Anoniw.Oj, in this action." * * * We are not now concerned with the question as to whether the complaint states a cause of action, for the motion to set aside the service of the summons was based upon the grounds that the Cananea company was a Mexi- can corporation which did not carry on business or main- tain an office or possess property within this State, and did not have any officer, agent or employee authorized to ac- cept service of papers, and that the service made was in violation of the first section of the Fourteenth Amendment of the Constitution of the United States, and consequently did not give our courts jurisdiction. The provision of the Constitution referred to is that which prohibits the de- priving of any person of property without due process of law. If the defendant Cananea company is here to such an extent that we may acquire jurisdiction of it by the service of a summons, then our courts may determine as to the rights of the company in so far as it has property here over which the courts may acquire jurisdiction. If it has property or profits arising from the mining of ores in the hands of the Grreene consolidation corporation which in equity belongs to our own citizens, they may apply to the courts, either State or Federal, to recover that which" belongs to them, and such application is the due process of law which the Constitution recognizes and requires. Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be main- GRANT V. CANANEA. 47 tained by a resident of the State for any cause of action, and section 432, subdivision 1, provides that personal serv- ice of a summons upon a foreign corporation may be made within the State by the delivering of a copy thereof to its president, vice-president, treasurer or secretary. The serv- ice made herein strictly conforms to the requirements of the Code, and thereby operates to give our courts juris- diction to hear and determine the claims of the parties and award the proper judgment, upon which process may issue to reach any property of the judgment creditor that may be within this State and subject to our jurisdiction (Pope V. Terre Haute Car & Mfg. Co., 87 N. Y. 137; Atl. & Pac. Tel. Co. v. Bait. & 0. E. E. Co., 87 N. Y. 355). But it is contended that the provisions of the Code are violative of the provision of the Constitution of the United States, already referred to. This we cannot admit. The great business and commercial transactions of our citizens are now largely conducted through corporations, and no rea- son is apparent why foreign corporations should be treated differently from foreign individuals. If our citizens have claims against such corporations or individuals, who can be found here within our jurisdiction, they should be per- mitted to apply to the courts for relief rather than be com- pelled to follow their debtors into foreign jurisdiction. It must be borne in mind that the provisions of the Co^e alluded to have reference to actions brought by residents of the State and not to actions brought by nonresidents or foreign corporations. The provision with reference to bringing such actions is very different. It is as follows: "An action against a foreign corporation may be main- tained by another foreign corporation, or by a nonresi- dent, in one of the following cases only: (1) Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to property situated within the State, at the time of the making thereof. 48 SUMMONS. (2) Wliere it is brought to recover real property situated within the State or a chattel, which is replevied within the State. (3) Where the cause of action arose within the State except where the object of the action is to affect the title to real property situated without the State." (Code Civ. Proc, § 1780.) Here we have specific limitations to the cases in which such actions may be brought which relate to causes of actions arising within the State for the breach of contracts made within the State, and to property situ- ated within the State, which do not apply to actions by residents or domestic corporations. These provisions are violative of no provision of the Federal Constitution to which our attention has been called, nor do they conflict with the Federal authorities upon the subject. It is contended that the defendant, the Cananea company, had not designated or authorized any person to accept service upon the company in this State. \^ery true, it had not ; but under the provisions of the Code such designation is not necessary, provided the head officers of the corpora- tion are here and can be served, such as the president, vice-president, treasurer or secretary. Section 432, sub- division 2, of the Code contains provisions with reference to the designating of persons by corporations in this State upon whom service of process may be made. These pro- visions are only important when there is no president, vice-president, treasurer or secretary here. Under the third subdivision of the section further provision is made for cases where no designation has been made, and when neither of the officers above specified can be found within the State, then service may be made upon a cashier, a .(director, or a managing agent of the company if the corpo- / ration has property within the State or the cause of action /arose therein. It will thus be seen that the Legislature has proceeded with much care in framing these provisions, carefully safeguarding the rights of foreign corporations GRANT V. CANANEA. 49 as well as those of our own citizens. While the first sub- division of the section is exceedingly broad and authorizes the personal service of the summons upon the head officers of a corporation, specifically naming the president, vice- president, treasurer or secretary, the third subdivision, which authorizes the service upon the director, cashier or managing agent, is limited to cases only in which the cor- poration has property within the State or the cause of action arose therein. It must be conceded that in so far as the service of process is concerned, the decisions of our own court are not in entire accord with those of the Supreme Court of the United States. In Pope v. Terre Haute Car & Mfg. Co. (su'pra) it was held that when the action was brought by a resident of this State, the service of a summons upon the president of a foreign corporation while temporarily in this State was valid, even though the corporation had no office, transacted no business and had no property within the State. In the-,£ase of Goldey v. Morning News (156 U. S. 518), it was held that in sucTTa case'nie~servrc"e'Was not good. While we regret the difference in the views of the two courts, we recognize the fact that arguments may be presented in support of either position. It may be un- just to a corporation to be compelled to go into a foreign State to litigate actions when its president was served while traveling through the State upon other business. On the other hand, individuals so traveling may be served, and if a citizen has a cause of action against such a corpo- ration, it would be equally unjust to compel him to go into a foreign State to litigate his claim. In view of the fact that in recent years we have had many corporations or- ganized in other States for the purpose of taking over the profits and proceeds of other corporations and distribut- ing the same, whose officers and owners reside within our own State, the question of service of process upon such 4 50 SUMMONS. corporations has become one of importance. While we entertain the view that our statute upon the subject fur- nishes the safer and wiser rule to follow, we shall in this ease recognize and attempt to follow the rule laid down by the Federal court. In the case of Conley v. Mathieson Alkali Works (190 U. S. 406), the plaintiff, a resident of this State, brought an action in the State court against the defendant, a Virginia corporation. The record, how- ever, does not show that the cause of action arose in this State. The defendant had designated no agent upon whom service could be made in this State, and none of its head offi- cers were present within the State. It was doing no busi- ness and had no property within the State. Service was made upon a director who resided here. It was held that the service was not good. This decision was in accord with the provisions of the Code to which we have referred, for, under it, service can only be made upon a director where there is no designation of a person upon whom service could be made and where the officers of the corporation cannot be found within the State, in cases where the cor- poration has property within the State, or the cause of action arose therein. In the case of Lumbermen's Insur- ance Co. V. Meyer (197 U. S. 407), Meyer being the plain- tiff below, it was held that, to obtain jurisdiction in New York, personal service of the summons upon the corpora- tion must be made in the manner designated by section 432 of the Code of Civil Procedure of that State, and if the corporation has no property in the State and service cannot be made on the president, vice-president, treasurer or secretary, and no person has been designated, such serv- ice can only be made on a director or person specified in subdivision 3 of that section, in case the cause of action arose within the State. The loss having occurred in that State, the service upon a director was good. In the case of Brush Creek Coal & M. Co. v. Morgan-Gardner Elec. Co. GEANT V. CANANEA. 51 (136 Fed. 505), the defendant was an Illinois corpora- tion and the plaintiff a Missouri company. The defend- ant's general manager was in Wyoming on business, and when returning passed through Kansas City, Mo., at which place he stopped off to confer with the plaintiff's presi- dent, with reference to the adjustments of their differences. While there the plaintiff's president caused to be served upon him, as an officer of the defendant, a summons in the action. The service was held good. Amidon, J., in deliver- ing the opinion of the court, says: " If the officer served was a general officer of the corporation, then the extent of the business transacted by him in this State is of no im- portance in determining the question as to whether he is of an official rank such as to make him properly representa- tive of the company. The precise question under considera- tion was before the Circuit Court for the Northern Dis- trict of Illinois in the case of Houston v. Filer & Stowell Co. (85 Fed. 757), and it was there held that, when the manager of a corporation goes into another State on the busi- ness of the corporation, service of summons against the corporation in a suit relating to that business may be made on him there, although the corporation does not transact business in the State so as to make it an inhabitant thereof. In my judgment the opinion in this case is a cor- 1 reet exposition of the law. Any individual may be served in any State where he is found without regard to the place of his residence. A corporation is entitled to no greater exemption. ' ' We have already stated the facts under which the service was made in this case. As we have seen, Greene was the president of the Cananea company, owning or controlling all the stock of the company. He had caused to be organized the Greene Consolidated Corporation as a holding company, to which he had transferred the principal part of the Cananea stock. He was also the president and owner, or 52 SUMMONS. controller, of all of the stock of the Greene Consolidated Company. Its office was located in New York city, where Greene resided and conducted its business, which included the management and control of the business of the Cananea company. It appears to us that, under the facts appearing in this case, the service was valid, not only under the de- cisions of our court, but under those of the Federal court as well. Question certified answ;ered in the affirmative. y VITOLO V. BEE PUBLISHING CO. 66 App. Div. 582. Hatch, J. The action was brought to recover damages for an alleged libel, published in the State of Ohio, where the defendant's paper is printed, and in the State of New York by the sale of the paper containing the article here. - The defendant is a foreign corporation, organized under the laws of the State of Ohio, and engaged in the publica- tion of a newspaper styled the Toledo Bee, and having its chief office and place of business in the city of Toledo in that State. The attempted service of summons upon the defendant consisted in the delivery of a copy of the summons and com- plaint to one Henry Bright, at his office in the Tribune building, in New York city, where he conducted a newspaper advertising agency, and in the course of his business solicits advertisements for a number of newspapers, one of which is the defendant. It is claimed by the plaintiff and denied by the defendant, that said Henry Bright was, at the time of the service, a managing agent of the defendant, and that, therefore, service upon him as such agent was sufficient to confer jurisdiction upon the court. After the service the defendant appeared specially for that purpose and made VITOLO V. BEE. 53 this motion to set aside the attempted service, which was denied, .and from the order denying the motion this appeal is brought. (The opinion here quotes section 432, Code Civ. Proc.) ' * * It is contended by the defendant. First, that ' I the person upon whom the attempted service was made herein was not a " managing agent " of the compajiy within the meaning of the statute; and, Second, that if he were, iWr-1EfDCHESTBK L. M. CO. 97 In Burckle v. Eekhart (3 N. Y. 133), Gardner, J., says, at page 137 : " T ^jurisdiction of courts is co n ferred by ^aw, and in no case by cons ent ^of part ies. Wlien jurisdic- tion of the subject and of the person is required as a pre- requisite to judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court by a voluntary appearance. He may dispense wit]a the service of process as he may waive any other personal privilege; but when the defendant is in court as a party, the law gives jurisdic- tion of the person without regard to the question whether his appearance was voluntary or by compulsion. This is necessary to give jurisdiction of the cause, not of the per- son. * * * The residence of a defendant within the limits of the circuit * * * is a jurisdictional fact which must exist before the court can act at all, either by issuing proc- ess or accepting the appearance of the defendant. It is necessary to give jurisdiction of the cause, not of the per- son. In such cases there can be no waiver." (See also Heenan v. N. Y., W. S. & B. Ey. Co., 34 Hun, 602; Davids- burgh V. Knickerbocker Life Ins. Co., 90 N. Y. 526.) In the latter case Danf orth, J., says : ' ' There are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who volun- tarily submits to its decision; but where the State pre- scribes conditions under which a court may act, those con- ditions cannot be dispensed with by litigants." Still more must it be impossible for litigants to dispense with the rule which prohibits the court to act at all in a given case. The cases cited by counsel for the plaintiff were actions in the Supreme Court, whose jurisdiction of the action was unquestioned, and consent gave jurisdiction of the particular defendant. 7 SUMMONS. I The County Court has no .jurisdict ir'Ti ^^ tl"? r^-^-^fif^ "f 'action in this case, because it has no .lurisdietion of an y ca use of acti onjTi any ca.sp against a foreign corporation . The objection which, in this case, appears on the face of the complaint is fatal not only to the judgment appealed from, but to the action. The judgment must be reversed and the complaint dis- missed. See also Weidman v. Sibley, 16 App. Div. 616. CHAPTER II. PARTIES. 1. Who should be made parties. Code Civ. Proc, §§ 446-57, 1814^5, Pers. Prop. Law, § 41. LEWIS V. GUARDIAN" F. & L. ASSUR. CO. 181 N. Y. 392. CuLLEN", Ch. J. The action is ■on a fire insurance policy, the plaintiff being the assignee^of the owner of the insured premises, and the defendant MacPherson"the assignVe^bf the mortgagee. ) The policy insured the mortgagor, loss, if any, payable to the mortgagee "as his interest may ap- pear." The plaintiff's assi gnor i s a corporatiorTorganizjed under the laws of this state andtEe^irfeintiiLiLimafiif a resident and citizen of the stated The defendant MacPher- son and his assignor "are residentj_of_theJDominion of Can- ada, the defendanj; insurance company an English corpora- tion, and the contract of insurance was made in Montreal, Canada. The complaint, after making the usual statements requisite in an action on a fire insurance policy, alleged that the mortgagee refused to join with the plaintiffT.n the institution of the action, and tha t, therefore, he was m ade a party defendant theretoj The insurance company an- swered alleging a breach of the conditions of the policy in that other insurance had been effected on the property pre- vious to the issue of the policy, which additional insurance was not noted or indorsed thereon. ] The defendant Mac- Pherson answered, substantially repeating the allegations of the complaint and asking judgment against his co-defend- ant that he be paid out of the insurance moneys the amount [99] 100 PARTIES. due on his mortgage. At the close of the evidence the trial court dismissed the complaint and the claim of the defendant MacPherson. Judgment was entered on this direction and that judgment was reversed by the Appellate Division and a new trial granted. From the order granting a new trial an appeal has been taken to this court. * * * It is strenuously contended b y the appellant tha t the mortgagee was not a necessary or pro per party defendant in the action, and that his claim was properly dismissed by the trial court, even if it be assumed that the plaintiff established the validity of the policy. It is admitted that under the authority of Winne v. Niagara Fire Insurance Company (91 N. Y. 185) a joint action may be maintained on a fire insurance policy by mortgagor and mortgagee. But it is urged the case is not an authority for the proposi- tion that when the mortgagee re fused to join as plainti ff he can, under sections 446 and 448 of the Cod^-ef-Civil P rocedure, be made a party d e fenda nt. Section 448 pro- vides that where parties are united in interest they m ust join as plaintiffs, and if any refuses to do so he m ust be made a party def endantf) As I understand i t, the contenti on of the appellant is that either the mortgagor or the mort- gagee may sue s eparately (I suppose each to the extent of his own interest in the policy), and that neither is nor can b e affected bv the resul t_ii£-t ho other 'a -adlon , and that hence neither, within the meaning of the Code, has any interest in the subject of the action brought by the other. "We think this propositiofi cahhot be sustained. There is but a single contract between the parties by which one party is indemnified against loss but the insurance money is to be paid not to him, but to his appointee for his benefit. (Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391.) Under such a contract the interests of the mortgagor and the mortgagee are not separate and distinct, but the interest of the mortgagor is co-extensive with the whole amount" LEWIS v/VEENC35.^S- p. & l. aSSUB. CO. [o/^ lOl ' ^ V N 946 A payable under the policy. He is interested not only in ^y-^j obtaining the surplus above the amount necessary to -tlis- 1^^/ charge the mortgagee's claim but in seeing that his debt to the mortgagee or the lien on his property held by the mortgagee is satisfied or reduced by the application of the insurance moneys. In 4hij -state a mortgagee to whom, by the policy, the loss is payable, may maintain an action in his own name and recover the whole amount payable under the policy; but in such case he recovers and holds the ex- cess above his own claim as trustee for the mortgagor. (Cone V. Niagara Fire Ins. Co., 60 N. Y. 619.) . But it does not at all follow that the mortgagor could sue in his own name on the policy holding the whole pr part of the recov- ery as trustee for the mortgagee, or that each can maintain a separate action for his own interest. On the contrary, the right of the mortgaged to recover the entire sum pay- able is inconsistent with the right of the mortgagor to maintain a separate action for his part of the loss. If the interest of the mortgagor extends, as we have seen, to the whole insurance moneys, he is entitled to maintain an action co-extensive with his interest, Granting the right of the mortgagor to maintain such an action it is clear that to the action the mortgagee must be a party, for pay- ment by the terms of the policy is first to be made to him to the extent -of_ his interest. This was so held in Ennis v. Harmony Fire Insurance Company (3 Bosworth, 516) nearly half a century ago. The case has never been over- ruled or criticized and is cited by this court as authority in Winne y. Niagara Fire Insurance Company (supra). If the mortgage had been satisfied, a different rule might pre- vail and the mortgagor sue in his own name. But while the mortgage is outstanding the mortgagee is a necessary party to the mortgagor 's afetion. These views also dispose of the claim that because the defendants, the mortgagee and insurance company, are non- 102 residents and the contract was made without the state, our courts have no jurisdiction over the mortgagee's claim. This position might be well founded if the claims of the mortgagor and mortgagee were several and distinct. But as the mortgagor 's interest pervades the whole recovery his right to maintain an action in the courts of the state can- not be impaired by the non-residence of the mortgagee. The order appealed from should be affirmed, and judg- ment absolute rendered for plaintiff and for defendant Mac- Pherson on the stipulation, with costs. If several persons join as plaintiffs they must appear by the same attorney. Jones v. Conlon, 48 Misc. 172. The Code has not changed the common law rule that tenants in common y must join in actions to recover for injuries toTSe realty (De Puy v. / Strong, see herein p. 224) or in ejectment (Hasbrouck v. Bunce, 62 N. Y. 475; see also § 1501). Separate ovs'ners of different parcels of real prop- \ erty charged to be injured or threatened with injury by the same or con- j current wrongful acts may join in one action against one or more wrong- / doers to abate the nuisance and for an injunction to prevent its continu-/ ance ^uLi^o^ to^r.ec.ove i>4h£-4ania^'es .su ffered b y each. Burghen v. Erie E. Co., 123 App. Div. 204; GiilespievTrorrest^ 18 llun, 110, 112. LAWRENCE v. McKELVEY. 80 App. Div. 514.^ Woodward, J. The plaintiffs allege that during all of the times hereinafter mentioned the plaintiff Jam£S V. Lawrence was, and now is,* the sole surviving partufi^of the firm of Lawrence Brothers, and that the plaintiff Law- rence Brothers, Incorporated, is a domestic corporation located at and having its principal place of business in the City of Yonkers ; that prior to the 29th day of July, 1901, the plaintiff James V. Lawrence was and for many years past has been engaged in business individually and as sole surviving partner of the firm of Lawrence Brothers at Yonkers, N. Y., as a wholesale and retail dealer in lumber. LAWRENCE V. MCKELVEV. 103 etc., and as such had created and built up and was the owner of a business and property of the value of a large sum of money, and largely in excess of all hisjust debts and liabilities, and as the owner and proprietor of said business was well and favorably known to the community and trade throiighout the United States, and enjoyed and possessed a high business rating and exceptional credit for integrity and financial responsibility ; that on the date above mentioned, for value received, the plaintiff James V. Law- rence, individually_and as , sole surviving partne r of the firm of Lawrence Brothers, sold and transferred to the plaintiff corporation, Lawrence Brothers, Incorporated ( which corporation had„be^jduly formed for the purpose of taking up and carrying:, on said business, and ofjwhich corporatio n the j)laintiff James V JLawreiic,e,jsa,s and still is the president), all the assets, property and good will of said business by him at that time_owned and pos'sessed, as such surviving partner, all of which were of the.jzalue of a very large sum of money and largely in excess of all outstanding debts and liabilities, and in part pay- ment for such property received from said La wren ce Broth- ers. Incorporated, certain shares _of the capital^ stock of said corporation and as further consideration for said transfer to it, said corporation, Lawrence Broth- ers, Incorporated, expressly assumed and obligated it- self to pay and discharge all outstanding debts and obligations at that time owed' by the firm of Lawrence- Brothers or by the said James V. Lawrence as sole surviv- ing partner thereof aforesaid. The complaint further al- leges that the property so transferred far exceeded the debts which the new corporation promised to pay, and that the stock received by James V. Lawrence was of great value, etc. It also 'alleges that in Sept ember, 1901, thes e defendants, without any^ probable cause therefor, and wrongfully and unlawfully, and with the willful and mali- 104 PASTIES. eious intent of injuring the plaintiff James V. Lawrence and the corporation Lawrence Brother^TlEcbfporated, of which he was president and in which he had large and valuable property interests, instigated, procured, devised, brought and commenced certain judicial proceedings in the United States District Court for the Southern District of New York in involuntary bankruptcy against the_ pl aintiffs in this action, and caused the process of said court to be issued and served therein. The complaint then alleges a conspir- acy on the part of the defendants to make use of bankrupt^ proceedings to injure the plaintiffs; alleges various illegal acts and proceedings in furtherance of the alleged con- spiracy, and the final disposition of the bankruptcy pfo"- ceedings in favor of the plaintiffs. It then alleges that ihl plaintiffs have suffered special damages by reason of tto prosecution of the bankruptcy proceedings, and demand; judgment for the sum of $75,000. The defendants appear separately and demur to the com- plaint, assigning as grounds of the demurrer (a) mi sjoin der of parties pl aintiff, (b) misjoinder of causes of act ion^and (c) that the complaint does not state facts sufficient to constitute a cause of action; but upon the argument reli- ance was placed principally upon the first ground stated, and the learned court at Specm_Term^has_juatai£ed the demurrers. The plaintiffs appeal. — Section 446 of the Code of Civil Procedure provides: "All persons having an interest in the subject of the action, and in- obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act. ' ' The question here presented is whether the plainti ffs jn this action have such ajjjiiterftstin the sub ject nf thi s action, and in obtaining the .iudg ment_a s is r'.nntPTnpl atprl b y the C odg_provision_eited."- The bankruptcy proceeding ^as directed against the plaintiff James V. Lawrence, on the ground that he had committed an act of insolvency in \ LAWRENCE V. MCKELVEY. 105 disposing of all his property with the intent to hinder, delay and defraud his creditors, and while the plea,dings are some- what involved, it is difficult to understand how the -plain- tiff Lawrence Brothers, Incorporated, could have been in- volved in the bankruptcy proceedings, except incidentally. But it is conceded that the plaintiff James V. Lawrence had disposed of all t)f his property to the plaintiff Lawrence Brothers, Licorporated, taking the stock of the latter, and its promise to pay his debts, in consideration of the transfer, so that he had no property except such as was represented by the stock of Lawrence Brothers, Incorporated. He could not, therefore, have been injured in his property, except as that was involved in the corporation, and he cannot recover damages apart from those which are suffered by the cor- poration as a whole in a personal action against these de- fendants. If the plaintiff James V. Lawrence suffered any injuries at the hands of these defendants, they were such as resulted to his feelings and his business reputation while the damages of the plaintiff Lawrence Brothers, Incorpo- rated, must have been those of a business character, relating to the property which had been transferred by James V. Lawrence. In other words, while the cause of action in both cases arose out of the alleged malicious prosecution of bankruptcy proceedings against James V. Lawrence, there arp neres garily t,^" se parate and disti nct causes of aetionj_assuming that the Lawrence Brothers, Incorporated, ihave a cause of action. Dne of these is for the damages rfesulting personally tn James V. Lawrence, and the other is for such da mages as Lawrence Brothers, Incorporated, may have suffered by reason of tEisljiterf erence with the ir, business andproperty. James V. Lawrence has no lega l | interest in the~ju dgnl§nt which the Jiawren ce Broth ers. In^ finfpnrateH^Ti ay "rec over ;-4t'is only the entity created by law into a body corporate which has an interest in that judgment, and the fact that the plaintiff James V. Lawrence 106 PABTIES. is the president of such, corporation and the principal stock- holder is of no importance ; he is not a person interested in the action and in obtaining the judgment. (Havana City Eailway Co. v. Ceballos, 49 App. Div. 263, 268.) In the cited case the court say: "To bring a person within the provision of this section (446) it must appear that he has some interest, legal or equitable, in the particular property TVhich la the subject offhe action, or m the enforcement of the ca use of action which is sough Fto be enforced , ^^ anj the court expressly holds that stockholders of a corporation do not occupy this relation to the corporation. The case is only confusing when considered in the light of the intimate relations between James V. Lawrence and Lawrence Brothers, Incorporated. If we say that James V. Lawrence sold all of his property to a private corporation, taking in' payment certain shares of the stock of such corporation, and then remember that a bankruptcy proceeding was in- stituted against Mr. Lawrence, that it was finally brought to a determination favorable to Mr. Lawrence, and that an action was instituted against the defendants for maliciously instituting such proceedings against Mr. Lawrence, it will be seen that the latter has no interest in the subject of the action or in obtaining the judgment, in so far as the corpora- tion is concerned, although he may have an indirect interest in the matter as the owner of the stock of the corporation; In a like manner t he corporation ca iuhave-^b o legal intere st in the judgment to be procur ed_ for a tnrt commit t^^ ^gnirf^t o"ne~of~its stoc kholders:, t here is not joint relation of the parties, and the mere fact that the damage results to both parties by means of the same wrongful act -on the part of the defendants does not justify a joint demand on the part of these plaintiffs for a common judgment. In Bradley v. Bradley (165 N.Y. 183), where the plaintiffs were father V and son, bringing an action to set aside a contract of sale | which defendant induced both plaintiffs to make of all the/ LAWEBKCE V. MCKELVEY. O a/^ 107 shares of capital stock held separately by each, by a fraud ingeniously contrived to mislead both plaintiffs, who acted concurrently in handling their possessions, the court, while, holding the complaint good, say: "This case is near the border line. If this complaint were at common law for the recovery of money, the demurrer would, no doubt, be well taken, since neither plaintiff had any pecuniary interest in the stock of the other, and has no interest in the damages sustained by the other. " So in this case, which is an action to recover money, the plaintiffs have no common interest in the damages; James V. Lawrence has no legal interest in any judgment which the corporation of Lawrence Brothers might recover, while the corporation has no legal interest in the damages which James V. Lawrence might be granted upon a trial. Under such circumstances, there is no justifi- cation for the joinl^p of plaintiffs. In the case of Loomis v. Brown (16 Barb. 325), relied upon by the appellants, the defendants had executed an undertaking, running to the plaintiffs Loomis, Kirby and Gunn, to the effect that the plaintiffs in an action for an injunction would pay the said Loomis, Kirby and Gunn, ' ' such damages not exceeding $2,500 as they might sustain by reason of the injunction, if the court should finally decide that the plaintiffs were not entitled thereto," and the court very properly held that as the covenant was joint the cove- nantees might sue jointly. There was some discussion and some general language which would seem to support the contention of the appellants that the language there used is controlling in the present case. It was true that all of the plaintiffs in that action were not damaged alike, but they were all interested in the joint covenant to indemnify them against loss by reason of the injunction, and it was proper that they should dispose of the matter in one action. But here the plaintiffs, as we have seen, are not jointly inter- ested ; their interests are separate and distinct, and neither 108 V PARTIES, \ party can liave any legal interest in the judgment whicii may be recovered by the other, and this is the test of whether the plaintiffs are properly joined; they must have an interest in the subject of the action and in obtaining the judgment demanded, and the mere fact that an individual is the principal stockholder in a corporation does not oper- ate to give the corporation and the individual ali'joint in- terest in an action against these defendants for mali«uslv prosecuting a bankruptcy proceeding against Jar^s^w Lawrence. " The interlocutory judgment appealed from should be affirmed, with costs. 2. One suing on behalf of others. Code Civ, Proc, § 448. Mckenzie v. l'amoureux. Demueeeb. The plaintiffs stated in their complaint, that the action was brought as well on their own acco unt as on account of the other lega tees of M ary McKay, deceaseds They set forth the will, from which it appea red that t hey, together with Margaret Heinselman, Eliza Mcintosh and Mary, wife of John Norton, were entitled to_legaci©Sr-3Jld___ that the estate of the testatrix, real and perso nal, charge- able, as they alleged, with the payment of those_legacieSj_ was given and devised to Elizabeth, Caroline, Jane and Hallowell Matilda, daughters of the late Lachlane Stewart^ These three residuary legatees and devisees, together with James L'Amoureux, administrator of the estate with the will annexed, were defendants in the suit. It was alleged that the personal estate was insufficient to pay the legacies. The plaintiffs demanded judgment that the will be e§ialj=__ lished, that an account might be taken of the personal estate, MCKENZIE V. l'aMOUKEUX. 109 and also of the debts, legacies, and funeral expenses of the testatrix; that the real estate might be sold, andjjiat-the proceeds, together with the personal estate, might beap.- plied in due course of administration in payment of _the debts and legacies^ To this complaint the defendants, who were residuary legatees, demurred, stating several grojm ds of demurrer, and among others that there was a dfifee-tof parties, plaintiff or defendants, in not making Margaret Heinselman, Eliza Mcintosh and Mary Norton, TEree of the legatees named in the will, and interested^ in the matters sought to be brought in question, and involved in this action, parties, either plaintiffs or defendants, and also t hat th e _joinder of mor e than one, an d less than t he whole of such legatees w as either a __defective_j )r impr oper goindter of plaintiffaJji-this-aetion. The cause havin^fcen argued before Mr. Justice "Wright, upon the issue of law so joined, and the demurrer having been sustained, the plaintiff appealed from the decision. By the Court, Haebis, J. The learned judge who decided this cause at the special term, admitted that_asJJi£upra(?,t.i ce existed at the time of the adoption of th e Code, this_acti on. might properly have been br ough t by the plai ntiffs on b e-\ half of themselves an d the other legatees who were not made -^ '^arties^The authorities to which he has ref erred, show | tSaTo^ legatee mmj^ sue on behalfjof- liimself and all the 1 rest, and that all might avail themselves lof the benefit of the'decre^ (Brown v. Rickets, 3 Johns. Ch. 553 ; Thompson V. Brown, 4 id. 619. See also Ross v. Crary, 1 Paige, 416 ; Hallett V. Hallett, 2 id. 15. Cooper's Eq. PL 39, 40.) But he came to the conclusion that this rule had been changed by the Code, and that now all persons who are necessary parties to a complete determination of the questions in- ' volved in the action, must be brought before the court either as plaintiffs or defendants. Upon this ground the demurrer , was sustained. 110 PARTIES. In this conclusion I cannot concur. So far was the_legis- lature from intending any change in the rule on this subject, that in making the great changes contemplated by the adop- tion of the Code, it was careful to preserve this convenient practice of the court of chancery. The Code commissionexs— had reported a section, copied substantially from one of the rules of the Supreme Court of the United States, providing that those who are united in interest must be joined as plaintiffs or defendants, except that, if the consent of any one who should have been joined as plain- tiff, cannot be obtained, he may be made a defendant, t^he reason thereof being stated in the complairft'^^ This too was the practice in the court of chancery. The legislature adopted the provision thus rep orted, b ut added to the"~SW7^ tion as follows: "And when the question is one of a com- mon or general interest of many u^|ons; or when the parties are very numerous and it ma^je impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole^x ('Code, § ii9).~This was also in accordance with the then existing practice of courts of equity. The legislature seems to have appre- hended that, by adopting the rule reported by the commis- sioners, it might be understood to have rejected the kindred rules embraced in the latter clause of the section. To pre- vent this misapprehension the latter clause was added^hus retaining in the new practice the saiw rules by which to determine whether the proper parties were before the court, which then prevailed in the court of chancery. The section in question requires that, except in a specified case, all who are united in interest shall be joijied,_aspar- _ties; and then declares that when the action involves a. question of common or general interest to several p^aHie^, or when, though united in interest, the parties are_very numerous and it is impracticable to bring them all before the court, then one or more may sue or defend for alL This MCKENZIE V. l'aMOUREUX. Ill I understand to be the clear and obvious import of the sec- tion. The distinction between parties who_are "united in w^eres^'^-and_ those who have "a. common or general inter^^^ est" in the question, is aptly illustrated in this very case. By the will the testatrix gave to the children of her deceased sister Jane Ferguson a legacy of $400; jThe plaintiffs, James Ferguson, Elizabeth Ferguson and George Ferguson are those children. They are jointly, not severally, entitled to the legacy. ~> Like three partners, suing for a debt due to them as partners, they are "united in interest," and must be joined as parties. But the plaintiffs, Isabella^JIcKenzie and Barbara McKenzie are each entitled to a separate' legacy. They have a common interest in establisMng^the | will and having a fund provided for the payment of the legacies, but they are not unit ed in interest with each other or the other legatees-^ So also in the case of the three leg a- tees who are not made parties. The error into which my learned associate has fallen arises from his failure accurately to distinguish between the two classes of cases in which it is allowable for one or more parties to suej'or the benefit of others as well as themselves. He has evidently understood the statute to allow a suit to be brought in this form, when the question is one of common or general interest, and where, in such a case, the parties are very numerous and it is impracticable to bring them all before the court. Accordingly he says, "this is not a case in which the parties are very numerous, ' ' nor would it be "impracticable to bring them all before the court." " There are but three persons whose interest in the subject matter of the action is identical with the plaintiffs. These are not joined as plaintiffs, nor is there any reason assigned why they are not." I have already shown, I think, that when the question involved is one of " common or general interest," the action may be brought by one or more for the benefit of all who have such common or general interest, 112 PAETIES. without showing that the parties are very numerous, or that it would be impracticable to bring them ^11 before the court. This latter provision applies indiscriminately to all actions, whether they involve questions of common interest or not, I think the judgment should be reversed, and that the plaintiffs sh'ould have judgment upon the demurrer, with liberty to the defendants to answer upon payment of costs. MacARDELL v. OLCOTT, 62 App. Div. 127. Laughlin, J. This action was commenced on the 20th day of August, 1891, by Cornelius MacArdell, a stockholder of the Houston and Texas Central Eailway Company, in behalf of himself and all other stockholders of said company similarly situated, who might come in and contribute to the expense thereof^ The purpos^ of the action, briefly stated, is to obtain a decree that large -tracts of land in the State of Texas purchased by defendants Olcott" and Downs, re- spectively, on the foreclosure of mortgages executed Iby said railway company, be deemed held by them in trust for said company and that they be compelled to -account therefor; that said defendants and the three trust companies, also defendants, and the Houston Central Railroad Company and the Southern Pacific Company account for their trans- actions concerning these lands since such purchase, and convey the' lands to said Houston-Texas "Company ; that a receiver be appointed pendente lite, and that an injunction issue to prevent defendants from further incumbering said lands; that three several trust deeds, each dated April 1, 1900, between defendant Olcott and the Southern Pacific Company and each of the trust companies respectivelji given to secure three several issues of bonds by the HoustoA and Texas Central Railroad Company, the reorganization MACAEDELL V. OLCOTT. 113 company after the foreclosure, be declared illegal and void and a cloud on the title of the Houston and^T^xas Railway Company, free from^ the lien of said bonds. The.-^ayment of the three issues of bonds was guaranteed by the Southern Pacific Company. The basis of the action is an alleged conspiracy between the officers and principal stockholders of the Houston and Texas Eailway Company, Olcott, Downs and others, by which, through collusion, the decree in foreclosure was un- necessarily and illegally consented to for the purpose of injuring the plaintiff and other stockholders. The petitioner and appellant owns 900 shares of stock of the Houston and Texas Eailway Company of the par value of $100 each. He and other stockholders of said last- named company on the 23rd day of December, 1889, filed a bill in equity in the United States court in Texas wherein the decree of foreclosure was granted, to have the same vacated on account of the conspiracy which is the basis of this action, and prayed that they might be permitted to come in and defend said foreclosure suit, and for other relief. , ^ x An affidavit was read in opposition^o this motion, show- ing that the complaint, a copy of which was annexed in the suit in the United States court, was dismissed, and that on appeal to the Circuit Court of Appeals the dismissal was affirmed, and a further appeal to the United States Su- preme Court was dismissed on November 13, 1893. (Carey V. Houston & Texas Central Railway Company, 150 U. S. 170.) The respondents contend that the former suit in equity in the United States court is a bar to petitioner's obtaining any relief in this action. This position is un- tenable. The suit is not now pending, and it does not ap- pear that it was decided upon the merits. 8 114 PARTIES. The Statute of Limitations is also interposed as a bar to petitioner's being admitted as a party plaintiff to this action. It clearly appears from the petitioner's bill in equity in the United States court that he was familiar with all the material facts upon which it is sought to obtain relief in this action, more than ten years before applying to be made a party plaintiff herein. Before he made such application this action had been pending for nearly ten years without having been brought to trial. No explanation has been offered as to why the application was thus delayed, nor is any fact stated or suggested indicating any change in the attitude of the plaintiff with reference to the conduct of this action which renders it essential that petitioner be ad- mitted to protect his rights. Section 448 of the Code of Civil Procedure which author- izes one person to sue on behalf of himself and others similarly situated where they are interested in common, is a re-enactment of section 119 of the Code of Procedure, and in substantially the same language. Under the Code of Procedure it was held and declared to be the rule in equity that parties for whom the action was brought, but who were not named as plaintiffs, obtained no vested right until the entry of an interlocutory judgment, whereupon, by an order of the court, they were required to come in and prove their claims, and in default thereof, in the absence of fraud, they were forever barred from participating in the fund sought to be reached by the judgment. Until interlocutory judg- ment the parties named as plaintiffs had exclusive control of the suit and might settle or discontinue the same at will, and the defendant might, upon adjusting the plaintiff's claims and paying their costs, have the complaint dismissed. The reason for this rule was that until entry of judgment each other party was at liberty to bring an individual suit, but that upon the rendition of judgment in one it inured to MACAEDBLL V. OLOOTT. 115 the benefit of all, and the prosecution of all other suits would then be stayed. (Mattison v. Demarest, 1 Eobt. 717 ; Derby V. Yale, 13 Hun, 273 ; Kerr v. Blodgett et ah, 48 N. Y. 62 ; Travis v. Myers, 67 id. 542.) Section 452 of the Code of Civil Procedure, providing that " where a person, not a party to the action, has an interest in the subject thereof or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint de- mands relief, and makes application to the courts to be made a party, it must direct him to be brought in by the proper amendment," is partly new and partly a re-enact- ment of the 2d sentence of section 122 of the Code of Pro- cedure, which provided for making a person interested in an action for the recovery of real or personal property a party on his application. Since the enactment of the Code of Civil Procedure it has been stated to be the law, without the question having been directly involved, that in a rep- resentative suit like this a party having an interest in com- ^ mon with the plaintiff, who is willing to contribute to the expense of the litigation, is entitled, upon application duly made, to be permitted to join with the plaintiff. (Brincker- hoff et al. V. Bostwick et al., 99 N. Y. 194 ; Hirshfeld v. Fitz- gerald, 157 id. 166.) It was also held in the Brinckerhoff Case (supra) that the bringing of the action in time stops the running of the Statute of Limitations against the parties who are not named as plaintiffs but who are affected in common with plaintiff and for whose benefit the action is brought. But admitting, without deciding the question, that if this suit be prosecuted to judgment by the plaintiff, the petitioner will be entitled to share in the recovery, it by no means follows that he has an absolute right to be admitted as a party plaintiff after acquiescing in the conduct of the litigation by the plaintiff who brought it for nearly ten 116 PARTIES. years, until the Statute of Limitations had run against his bringing an independent action for the same relief. If, in an action brought in this form under section 448 of the Code of Civil Procedure, an interested party has an absolute right to come in and be joined as a party plaintiff, we may with propriety limit such right to his making an application while his claim is valid and enforcible by an independent suit. If the contention of appellant were to prevail, he would have the same right to be admitted as a party plain- tiff to this action fifty years hence, if it were then pending. The Code provisions should not be so construed as to estab- lish that doctrine. The order should be affirmed, with ten dollars costs and disbursements to each respondent appearing separately. 3. Real party in interest. Code Civ. Pro. § 449. SHERIDAN V. MAYOR. 68 N. Y. 30. Appeal from judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of defendant, entered upon a verdict. Church, Ch. J. The only question submitted to the jury was whether the plaintiff was the real party in interest. A written assignment, properly executed and acknowledged before a proper officer, was produced in terms transferring absolutely for a valuable consideration the demand in suit from Morgan Jones to the plaintiff, and proof was made of the delivery thereof by the former to the latter. As to these facts there was no dispute, nor could there be any dispute SHERIDAN V. MAYOR. 117 that the plaintiff held the legal title to the demand. The learned judge submitted the question to the jury in this language : "If you believe from the evidence that the real party in interest in this suit is Morgan Jones and that this is a sham transaction, then I think the plaintiff should be defeated in the action. ' ' Precisely what the learned judge meant by a sham trans- action, as applied to the transfer of the demand, is not very apparent, but I infer from this and other parts of the charge that he intended to charge, that although a legal title to the claim was transferred to the plaintiff and the assignment was valid as against the assignor, yet if the jury believed that the transaction was colorable, that is, that by any private or implied understand- ing the transfer was not intended as bona fide, or an actual and real sale of the demand as between the parties, the plaintiff could not recover. In this, with great respect, I think the learned judge erred. A plaintiff is the real party in interest under the Code, if he has a valid transfer as against the assignor, and holds the legal title to the demand. Thr rlrfrnrlmit hnn "mT-lp"-fi1 interest to in- quire further. A payment to, or recovery by, an assignee occupying this position, is a protection to the defendant against any claim that can be made by the assignor. In this case, from the undisputed facts, the defendant would be pro-i tected if it paid to the assignee or if a recovery was had' against it by him. No question was made and none sub- mitted to the jury as to the execution or delivery of the assignment, and conceding that the circumstances were such as to justify the jury in finding that it was colorable as between the parties, yet that would constitute no de- fence on the ground that the plaintiff was not the real party in interest. Such an inquiry might become material if the rights of creditors were involved, or upon the right of inter- posing some defence or counter-claim against the assignor. 118 PAETIES. Nor is it of any moment that no consideration was paid for the demand by the assignee. The assignor could give the demand to the plaintiff, or sell it to him for an inadequate consideration, or without any consideration. It is enough if the plaintiff has the legal title to the demand, and the de- fendant would be protected in a payment or recovery by the assignee. It is not a case of mala fide possession which the defendant can avail itself of, as if a thief should bring an action upon a promissory note which he had stolen. These views are well settled by authority. (44 N. Y. 231 ; 61 id. 614; 27 Barb. 178; 38 id. 579; 29 N. Y. 554; 15 Wend. G40.) As before remarked, there was no question as to the making and delivery of the assignment, and the remarks of the learned judges at General Term, therefore, as to when and under what circumstances a jury is or is not jus- tified in finding contrary to the evidence of one or more witnesses, has no application to the question involved in this case, viz. : the bona fides as between assignor and assignee of the transfer. Suppose after the trial of this action the assignor had commenced an action. The defend- ant, by proving the making and delivery of the assignment to the plaintiff, could have defeated the action on the ground that he was not the party in interest, and I apprehend he would not have been permitted to show that the transfer was not as between them an actual bona fide sale, and the result might be that, although the defendant justly owed the debt, it would avoid liability because no one had a right to prosecute. The Code never anticipated such a result. Judgment reversed. One to whom commercial paper has been indorsed and who holds it as an agent for the purpose of collection only, cannot maintain an action thereon in his own name. Iselin v. Rowlands, 30 Hun, 488. Where a chose in action has been assigned as collateral security either the assignor or the assignee may enforce it by action in his own name; but the other is a necessary party. Ridgway v. Bacon, 72 Hun, 211. ALLEN V. BEOWN. 119 ALLEN V. BROWN. 44 N. Y. 228. Appeal from an order at General Term affirming a judg- ment for plaintiff entered upon tlie report of a referee. Cook, Carey, Clark and Allen having similar claims against Brown, Cook, Carey and Clark assigned to Allen who commenced this action. No consideration was in fact paid by plaintiff upon the assignment to him. Hunt, C. The appellant insists that the assignment from Cook, Clark and Carey to the plaintiff, conveyed no title upon which his suit could be brought. This point is based upon the evidence given by Mr. Cook, when he testi- fies "Allen paid me nothing, and I agreed with him that I would take care of the case, and if he got beat it should not trouble or cost him anything." I am of the opinion, that the assignment is sufficient to sustain this action. The Code abolishes the distinction between actions at law and suits in equity, and between the forms of such actions. (Section 69.) It is also provided, in section 111, that every action must be prosecuted in the name of the real party in. interest, except as otherwise provided in section 113. The latter section provides that an executor, administrator, trustee of an express trust, may sue in his own name. These provisions are intended to abolish the common-law -rule, which prohibited an action at law otherwise than in the name of the original obligee or covenantee, although he had transferred all his interest in the bond or covenant to another. It accomplishes fully that object, although others than the assignee may have an ultimate beneficial interest in the recovery. In a case like the present, the whole title passes to the assignee, and he is legally the real party in interest, although others may have a claim upon him for a 120 PAETIES. portion of the proceeds. The specific claim, and all of it belongs to him. Even if he be liable to another as a debtor upon his contract for the collection he may thus make, it does not alter the case. The title to the specific claim is his. (Durgin v. Ireland, 4 Kernan, 322; Williams v. Brown, 2 Keyes, 486, and case cited ; Paddon v. Williams, 1 Robt. R., 340;S. C. 2 Ab. R., N. S. 88.) Judgment affirmed. FIELD V. CITY OF NEW YORK. ^.,^ 6 N. Y. 179. Appeal from the general term of the Supreme Court, in the first district, where a decree, made by the late assistant vice-chancellor Lynch, dismissing the complainant's bill, with costs, had been reversed, and a decree made in favor of the plaintiff. This was a bill in equity filed by Field, the complainant, in the late court of chancery, against the Mayor, Aldermen and Commonalty of the City of New York, and Jared W. Bell, to enforce the payment of a claim against the city, assigned by Bell to John Garread, and by him to the plaintiff. The bill set forth that on the 14th of March, 1842, Jared W. Bell being engaged in printing for the mayor, aldermen and commonalty of the city of New York, and having various contracts with them, executed, under his hand and seal, for a valuable consideration, and delivered to. John Garread, an assignment of all bills that might become due to him for job-printing, paper or stationery, done or fur- nished the corporation of the city of New York, to the amount of $1500, after two certain assignments should be paid or satisfied, viz., one for $1500, made to Thomas Lloyd and Joseph Hopkins, and one to William A. Coit for $300. FIELD V. CITY OF NEW YOEK. 121 That on the 28th day of April 1842, Garread, for a valuable consideration, assigned to the plaintiff the said assign- ment, as security for certain specific demands, and after- wards, in December of the same year, released to the com- plainant his entire interest therein. That on the 30th of April 1842, the plaintiff gave notice to the said mayor, aldermen and commonalty, of the two assignments first above mentioned, requesting them to settle the matters with him, and no one else; and at the same time, lodged a copy of said instruments in the office of the comptroller of the city. That Bell, after the assign- ment to Garread, was engaged in job-printing for the said corporation, and furnished them a large amount of paper and stationery, and that a large sum became due to him therefor, which the said mayor, aldermen and commonalty paid to the said Bell, without notice to the plaintiff, or re- gard to his rights, although they were informed thereof. That the two assignments to Lloyd & Hopkins, and to William A. Coit, had been satisfied, and that a large sum became due for such job-printing, paper and stationery, ap- plicable to the assignment to the plaintiff. That he had applied to the said mayor, aldermen and commonalty to ac- count with him therefor, and pay the same to him, which they refused to do. That Bell had been insolvent ever since the assignment to Garread was made. The bill prayed that an account might be taken of the said job-printing, paper and stationery, and of all sums due therefor, and that the said mayor, aldermen and commonalty might be directed to pay the same to the plaintiff, to the extent of satisfying the said sum of $1500, with interest from March 14th, 1842. The principal facts charged in the bill were proved. It did not appear that any of the printing done or stationery furnished by Bell after March 14, 1842, was done or fur- nished pursuant to any contract existing at tha^ate. 122 PARTIES. Welles, J. By the assignment from Bell to Garread, of March 14th, 1842, it was intended to transfer to and vest in the latter, the right and interest of the former in and to all the bills which might thereafter become due to him, from the corporation of the city of New York, for job-printing, paper or stationery, done or furnished by Bell, either be- fore or after the date of the assignment, to the amount of $1500; subject to the two prior assignments, to Lloyd & Hopkins, and to Coit. By the assignment from Garread to the respondent of April 28th, and the release from the former to the latter, of December 27th, 1842, the latter ac- quired all the right and interest of the former in the first assignment. The case shows, that at the time of the commencement of the suit in the court of chancery, bills of the description mentioned had become due from the corporation to Bell, to an amount more than 'sufficient to satisfy all three of the assignments. These bills -appear to have accrued, and most of the services and materials upon which they arose, appear to have been rendered and delivered, after the date of the assignment from Bell to Garread. One of the questions presented by this appeal, is, whether the court of chancery had jurisdiction to decree payment by the corporation of the city of New York, to the respondent, of his claim. That it had such jurisdiction seems to be in accordance with reason, and the theory of equity juris- prudence. 1. The assignment of Bell to Garread was valid and operative as an agreement, by which Garread and his assigns became entitled to receive payment of the bills in question, when the same should become due, to the amount indicated in the assignment, subject to the two prior assign- ments. It did not operate as an assignment in praesenti of the choses in action, because they were not in existence, but remained in possibility merely. A possibility, however, FIELD V. CITY OF NEW YORK. 123 which, the parties to the agreement expected would, and which afterwards did, in fact, ripen into an actual reality; upon which, by force of the agreement, an equitable title to the benefit of the bills thus mature and due, became vested in the respondent, as assignee of Garread. (Story's Eq. Jur. Sees. 1040, 1040b, 1055 ; Mitchell v. Winslow, 2 Story's Eep. 630; Langton v. Horton, 1 Hare 549.) It is contended by the counsel for the appellants, that the assignment of Bell to Garread did not pass any interest which was the subject of an assignment, for the reason, that there was no contract, at the time, between Bell and the corporation of the City, by which the latter was under any binding obligation to furnish the former with job-print- ing, or to purchase of him paper or stationery; and that, therefore, the interest was of too uncertain and fleeting a character to pass by assignment. There was indeed no present, actual, potential existence of the thing to which the assignment or grant related, and, therefore, it could not, and did not, operate, eo instanti, to pass the claim which was expected thereafter to accrue to Bell against the cor- poration; but it did, nevertheless, create an equity, which would seize upon those claims as they should arise, and would continue so to operate until the object of the agreement was accomplished. On this principle, an assignment of freight to be earned in future, will be upheld, and enforced against the party from whom it becomes due. (Story's Eq. Jur. Sec. 1055, and authorities there cited ; Langton v. Horton, and Mitchell and Winslow, supra ; Story on Bailments Sec. 294.) Whatever doubts may have existed heretofore on this subject, the better opinion, I think, now is, that cour ts_of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold 124 PARTIES. them. Authorities may be found, which seem to incline the other way, but which, upon examination, will be found to have been overruled, or to have turned upon the question of public policy. Decree affirmed. DICKINSON V. TYSEN. 125 App. Div. 735. McLaughlin, J.: The complaint alleged that the de- fendant employed one Quimby and one Mudgett to sell cer- tain real estate on Staten Island for $120,000 ; that in pur- suance of such employment they procured a purchaser (one Brooks) at the price named, and a contract was entered into between him and the defendant — $4,000 of the purchase price being then paid; that at the time of the execution of the contract it was agreed between the defendant and Brooks that title was to be taken in the name of one ^ones for Brooks' benefit; that Jones subseqtiently took title; that in consideration of procuring such purchaser the de- fendant agreed to pay to Quimby and Mudgett a commission of five per cent of the purchase price, or $6,000 — to be divided between them, share and share alike — $600 of which sum was to be paid at the time of the execution of the contract and the balance of $5,400 when the deed was executed ; that ' ' no part of said sum of six thousand dollars ($6,000) has been paid by the defendant to the said Quimby and Mudgett excepting the sum of six hundred dollars ($600), and that there is now due and owing from the de- fendant to the said Quimby and Mudgett the sum of five thousand four hundred dollars ($5,400), with interest;" that prior to the commencement of the action Quimby and Mudgett (^uly assigned to the plaintiff part of their right, title and interest in the commissions for making such sale, the former to the extent of $1,350 and the latter to the ex- tent of $2,250. The judgment demanded is for $3,600, with interest. DICKINSON V. TYSEN. 125 The defendant demurred to the complaint upon the ground (1) that it did not state facts sufficient to constitute a cause of action; and (2) that it appears upon the face thereof that there is a defect of parties, in that Quimby and Mudgett, mentioned and referred to therein, are not joined as parties plaintiff or defendant. The demurrer was overruled and defendant appeals. [ The rule seems to be well established by a long line of Authorities that there can be but one action for a single breach of contract. * * * The rule in equity is different. There an assignee of part of a claim may maintain an action to enforce the same (Field V. Mayor, etc., of N. Y., 6 N. Y. 179 ; Risley v. Phenix Bank of the City of New York, 83 id. 318; Chambers v. Lancaster, 160 id. 342), and if a complete determination of the controversy cannot be had without the presence of other parties, then the court must direct them to be brought in. (Code of Civ. Pro. § 452.) In- an action at law for a money judgment only, however, the court has no such power. It cannot in such case compel the bringing in of additional parties. (Chapman v. Forbes, 123 N. Y. 532; Bauer v. Dewey, 166 id. 402; Long v. Burke, 105 App. Div. 457; Horan v. Bruning, 116 id. 482.) * * * In the case now before us the defendant, according to the allegations of the complaint, agreed to pay the commission claimed. This was a single, indivisible obligation, to en- force which only one action at law can be maintained. Quimby and Mudgett, had they brought an action, could not have split up their claim. They would have had to recover in the action brought all to which they were legally entitled. The recovery in one action would have been a bar to a re- covery in another. This, I take it, no one will dispute. It seems to me illogical, therefore, to say that they can do by assignment what the court would not permit them to do by action; in other words, that they can do through a third / 126 PARTIES. party what tliey could not themselves do. The claim might be assigned as a whole and an action maintained thereon, but if only a part be assigned, then when an action is brought to enforce that part, defendant has a legal right to insist that all the parties who have an interest in the claim shall be made parties to the action, to the end that the one action may determine the rights of all. It appears upon the face of the complaint that each of the plaintiff's assignors has retained an interest in the original claim and a final and complete determination of defendant's liability to pay cannot be ascertained without their presence in the action. There is, therefore, a defect of parties and this was properly raised by demurrer. Unless it had been thus raised it would have been waived. (Code Civ. Proc. §§ 488, 499; FaWcett v. City of New York, 112 App. Div. 155.) That there is a defect of parties seems to me necessarily to follow when the obligation which the defendant originally assumed is considered. He promised to pay, if the allegations of the complaint be true, $5,400 when the deed was executed. It was a separate, distinct and indivisible promise, and implied that but one action should be brought to enforce it. The persons to whom the promise was made might assign to another the right to enforce the same, either in whole or in part, but they could not give to their assignee more than they themselves had, which was the right to enforce the promise in a single action against the objection of the debtor. If they could it is not difficult to see that by assignments upwards of one hun- dred actions might be maintained in the Supreme Court in which the costs, if a recovery were had, would largely ex- ceed the amount of the original claim. This is a situation which the law will not tolerate, inasmuch as defendant never contracted with reference to it. If the foregoing views be correct, then it follows that the demurrer should have been sustained, on the ground that there is a defect of parties. DICKINSON V. TYSEN. 127 I am also of tlie opinion that the demurrer should have been sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It cer- tainly does not if it be read literally because the allegation is that ' ' there is now due and owing from the defendant to the said Quimby and Mudgett the sum of five thousand four hundred dollars ($5,400)." This, of course, negatives the allegation that there is anything due the plaintiff, and if it be assumed, as claimed in respondent's brief, that this is a mere clerical error and the words " on the said contract " should be substituted in place of the words " to . the said Quimby and Mudgett," I still think the complaint is de- fective because it fails to allege non-payment. The Code of Civil Procedure, section 481, provides that a complaint must contain a plain and concise statement of the facts con- stituting the cause of action. Under this provision what- ever facts are essential to be proved to entitle the plaintiff to recover upon the trial must be set out in the complaint. Upon a contract for the payment of money non-payment is a fact which constitutes the breach of the contract and is the essence of the cause of action, and being such, within the provision of the Code, that fact must be alleged in the complaint. It is suggested that inasmuch as payment is always an affirmative defense which must be pleaded in order to be available, it necessarily follows that non-pay- ment need not be alleged. This does not follow. The reason why non-payment must be pleaded is clearly set forth in the opinion in Lent v. New York & Massachusetts R. Co. (130 N. Y. 504). Judgment reversed and demurrer sustained. 128 PARTIES. MEINHARDT v. EXCELSIOR BREWING CO. 98 App. Div. 308. WooDWAED, J. : The judgment appealed from was ren- dered upon tlie following agreed statement of facts : " The plaintiff and his wife were jointly the proprietors of a liquor business, which was furnished with beer by de- fendant. Defendant refused to deliver any more beer to the place, unless security for payment of bills was given. In consequence thereof, on July 24th, 1902, plaintiff paid to defendant the sum of one hundred dollars, taken out of the business as security for payment of beer bills. The defend- ant at that time believed plaintiff to be sole owner of the business, and plaintiff did not inform it that he and his wife owned jointly the one hundred dollars deposit fund, as well as the business. The defendant delivered to plaintiff a receipt for the sum, which is on file with the papers in this action, marked Plaintiff's Exhibit 2. Nothing is due to de- fendant for beer, which is chargeable against the sum de- posited. The money was demanded by plaintiff from de- fendant on December 11th, 1902, but was not returned to him, and is still in defendant's possession. Plaintiff's wife is now a resident of the City of New York. ' ' The receipt, " Plaintiff's Exhibit 2," referred to in the statement of facts, is as follows: " New York, July 24, 1902. " Eeceived from Henry Meinhardt one hundred dollars as guarantee for beer. " 100.00/100. THE EXCELSIOR BREWING CO." Judgment was rendered dismissing the complaint, on the ground that there was a defect of parties plaintiff, in that the action was not brought by both the plaintiff and his wife; and from that judgment the piaintiff appeals to this court. mei:nhakdt v. excelsior bkewing CO, 129 Section 449 of the Code of Civil Procedure provides: *' Every action must be prosecuted in the name of the real") party in interest, except that * * * a trustee of an ex- press trust * * * may sue without joining with him •. the person for whose benefit the action is prosecuted. A [' person with whom or inwhose name a contract is made for ' the benefit of another is a trustee of an express trust, within I the meaning of this section. ' ' ' -"' It is admitted that the plaintiff and his wife were part- ners in the business from which the fund was taken, and were jointly the owners of that fund at the time it was de- posited with the defendant. The " real party in interest " was, therefore, the partnership, and the action should have been brought by both the plaintiff and his wife, as partners, unless the contractual relations of the plaintiff and the de- fendant are within one of the exceptions mentioned in sec- tion 449 of the Code of Civil Procedure. It is contended on the part of the plaintiff that he was the trustee of an express trust in respect to the fund sought to be recovered, in that the defendant's contract to return the fund was made with him and in his name for the bene- fit of the partnership, and this contention seems to find ample support when the literal wording of section 449 of - the Code of Civil Procedure is applied to the transaction between the parties. The part of section 449 of the Code of Civil Procedure relating to trustees of express trusts is substantially the same as sections 111 and 113 of the Code of Procedure. In contrasting that part of those sections, it was said in Consider ant v. Brisbane (22 N. Y. 389) : " It is intended, manifestly, to embrace, not only formal trusts, declared by deed inter partes, but all cases in which a person, acting in behalf of a third party, enters into a written, express contract with another, either in his individual name, with- out description, or in his own name, expressly in trust for, 9 130 PARTIES. or on behalf of, or for the benefit of, another, by whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name a con- tract is made for the benefit of another." The receipt given by the defendant to the plaintiff plainly indicates the agreement between the parties that the fund would be returned by the defendant when it no longer had a right to hold it "as guarantee for beer." This was a contract both ' ' with ' ' the plaintiff and in his name for the benefit of the partnership. The plaintiff deposited the fund with the defendant as agent and representative of the partnership, doing the busi- ness in his own name and not disclosing his representative capacity to the defendant. As between the plaintiff and defendant, the defendant's liability was to the plaintiff, and the contract with the defendant was the plaintiff's contract. (Weed V. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394.) Payment of a judgment recovered by the plaintiff would fully protect the defendant from the claims of third persons, and this is the test whether the plaintiff is the real party in interest. (St. James Co. v. Security Trust and Life Ins. Co., 82 App. Div. 242.) The case of Secor v. Keller (4 Duer, 416) has not been overlooked. This case, decided in the New York Superior Court, holds that even a dormant partner is a necessary party plaintiff, where the trans^action constituting the subject-matter of the action was with and in the name of an ostensible partner. This case has not been cited as an authority in later cases, and its soundness has been questioned by text writers. It is not controlling here, and is not in harmony with the weight of authority. Judgment reversed and new trial ordered. In Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430, defendant undertooli to pay the assured, his executors and administrators, the sum of $3,000, ninety days after due notice and proof of death of the assured, $2,000 of said sum being for the express benefit of Jane, his wife, and $1,000 for Agnes, his mother. Held, that the action was properly brought by Jane Greenfield, the wife, in her representative capacity as adminis- tratrix of the assured, she being the trustee of an express trust under the terms of the policy. OSTEEHOUDT V. BD. OF SUPERVISOBS. 131 4. Necessity of Joining All Persons to be Affected. OSTEBHOUDT v. BD. OF SUPERVISORS. 98 N. Y. 239. Appeal from a judgment of tlie General Term of the Supreme Court, third department, May, 1882, affirming a judgment, rendered upon the report of a referee, in favor of the plaintiffs. Andeews, J. There is a defect of parties fatal to the judgment. The action was brought under the provisions of chapter 161 of the Laws of 1872, as amended by chapter 526 of the Laws of 1879, by the plaintiffs, as j^ax. payers of the town of Kingston, against the board of supervisors of Ulster county and the town auditors of the town, to vacate certain audits of town accounts, made by the board of town auditors at its annual meeting in November, 1879, in favor of a large number of individuals, amounting in the aggre- gate to the sum of $17,120.09, and to restrain the board of supervisors from levying upon the town a tax for their payment, on the ground that such audits were " illegal, in- equitable, unjust, false and fraudulent." The judgment grants the relief demanded in the complaint, and vacates the audits and restrains the supervisors from levying a tax for their payment. The individuals in whose favor the audits were made were not made parties in the first instance, nor were they brought in at any stage of the action. The only defendants are the board of supervisors and the town auditors. The question of defect of parties was not raised by demurrer or answer. The point, however, was taken at the commence-— ment of the trial and was overruled. The defendants, by omitting to take the objection by demurrer or answer, are 132 PARTIES. " deemed to have waived it." (Code of Civ. Pro., § 499.) But the rule which prevailed in courts of equity, that the court would not proceed to a decree until all necessary parties were before the court, has been preserved by the Code. Section 452 provides : ' ' The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought j.n." Construing sections 452 and 499 together, their mean- ing is that a defendant, by omitting to take the objection that there is a defect of parties by demurrer or answer, waives on his part any objection to the granting of relief on that ground, but when the granting of relief against him would prejudice the rights of others, and their rights can- not be saved by the judgment and the controversy cannot be completely determined without their presence, the court must direct them to be made parties before proceeding ■'to judgment. When a defendant is sued alone upon a joint contract, if he omits to set up the non- joinder of his co- contractor by demurrer or answer, judgment may pass against him alone, because judgment against one joint- contractor will not prejudice the other, but may relieve him from liability. The other branch of the rule would be illustrated by an equitable action brought for the cancella- tion of a mortgage, executed to two persons as mortgagees, in which only one of the mortgagees was made defendant. The court could not proceed to a decree for the plaintiff without the presence of the other mortgagee. The distinc- tion is between those who are necessary parties and those who are proper parties merely. / When persons who are necessary parties are not joined, the court will not proceed until they are brought in. It will not render a fruitless judgment, nor will it undertake to decide a single right in OSTEEHOUDT V. BD. OF SUPEEVISOBS. 133 the absence of persons who are entitled to be beard in re- spect to it, and who may be prejudiced by the decision. It was the practice in chancery to permit the objection for defect of parties to be taken by demurrer or answer, or at the hearing. (Story's Eq. PL, § 75 ; Van Epps v. Van Deu- sen, 4 Paige, 64.) Under the Code the court is bound to take the objection when a proper case is presented. It seems very plain that the persons in whose favor the audits were made were necessary parties. The judgment vacates the audits and restrains their collection in the usual course. They are necessarily prejudiced. Indeed they are parties primarily interested. They are deprived of the benefit of the adjudication of the board of audit, and if they should undertake to compel the board of supervisors to levy a tax for the payment of the claims, they would be met by the judgment in this case vacating the audits and restraining the collection. Their rights, and such rights as the defendants have, depend upon a single controversy, whether the claims were legal charges against the town and were legally audited by the town board. Neither the town auditors, nor the board of supervisors, represented the claimants in any legal sense. Their interests are not iden- tical, and the doctrine of virtual representation is not ap- plicable. The enumeration in the act of 1872, of " the i officers, agents, commissioners, or other persons acting for or in behalf of any county, town, or municipal corporation," as the persons against whom an action may be brought, does not dispense with the necessity of joining all other persons who ■will be directly affected by the judgment and are necessary parties to the complete determination of the controversy. The action is, we think, fatally defective on this ground, and, without passing upon the merits, the judgment should be reversed, without costs in this court. 134 PAKTIES. BAUER V. DEWEY. 166 N. y. 402. Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made De- cember 7, 1900, affirming an order of Special Term grant- ing an application of John H. Delack to intervene, and directing the plaintiff to make him a party defendant and to serve a supplemental summons and complaint. The action was brought by the plaintiff as assignee of a claim of C. H. Diamond to recover twenty -five hundred dol- lars, the amount agreed upon between the defendant and Diamond as compensation for the latter 's service as a real estate broker. Soon after the commencement of the action J. H. Delack made a motion to intervene, alleging in his affidavit that he was entitled to one-half of the commissions owing by the defendant for such services. He also set out in his moving affidavits that he had made a memorandum by which he agreed to accept two hundred and twenty dol- lars for his interest in the claim, but that such agreement was induced by false and fraudulent representations upon the part of Diamond as to the amount of the commission to be paid by the defendant, and that under the agreement be- tween himself and Diamond he was to have one-half of the commissions as against Dewey, amounting to the sum of twelve hundred and fifty dollars. He further alleged that the transfer of the claim against the defendant was by assignment first to Diamond's wife and by her to tL^- plain- tiff ; that the purpose of such assignment was to cheat and defeat Delack in the collection of his share of such com- missions, and that it was fraudulent and void. Diamond made an affidavit, which was read in opposition to the motion, denying any fraud or false representations, and also denying that Delack was entitled to any portion BAUER V. DEWEY. 135 of the commissions except the sum of one hundred and ten dollars, and that that amount was paid in full satisfaction of any claim he had in that behalf. Upon these papers the Special Term granted an order permitting Delack to intervene, directing that ' he should be brought in as a party defendant and that a supplemental summons and complaint should be served upon him. That order was appealed from and affirmed by the Appellate Division by a divided court. Subsequently a motion was made to allow an appeal to this court, which was granted and the following questions were certified : "1. Has the Supreme Court power to com- pel the plaintiff, in an action in which a money judgment only is sought, and in which the title to specific property is not involved, to bring in as a defendant a third party on his own application, and to order a supplemental sum- mons and complaint served upon him? 2. Has Delack, the petitioner herein, such an interest in the subject of this action as entitles him, on his own application, to be brought in as a party defendant by the proper amendment, under the provisions of section 452 of the Code of Civil Proced- ure?" Martin, J. The last question certified is not a question of law which this court can determine. There is a conflict in the affidavits as to the facts relating to the transaction out of which the debt of the defendant arose. Whether DeJack had any interest in it was a question of fact to be determined by the Special Term upon the affidavits sub- mitter. With that we cannot deal. The only question before this court is whether, under section 452 of the Code of Civil Procedure, the Supreme Court had authority to compel the plaintiff to bring in as a defendant a third party upon his own application where only a money judgment is sought and no specific property is involved. The provision of the Code relied upon is as 136 PARTIES. follows: "And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. ' ' The purpose of this action was to recover a debt of the defendant to the plaintiff. The title to no real, specific or tangible j^ersonal property was involved. The claim of Delack was that by virtue of an agreement between himself and the plaintiff's assignor, he was entitled to one-half of the defendant's debt. Under these circumstances can it be said that Delack was so far interested in the subject of this action as to entitle him to be made a party upon his own application? If the principles stated in the opinion in Chapman v. Forbes (123 N. Y. 532) are still the law, that case is conclusive authority against the construction adopted by the courts below. It is, however, insisted that the doctrine of that case, so far as it relates to the question here presented, has been overruled, or at least modified to an extent which renders it inapplicable by the cases of Rosenberg v. Salomon (144 N. Y. 92) and Hilton Bridge Construction Co. v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 390, 396). In the Rosenberg case the title to specific per- sonal property was involved, which the plaintiff brought replevin to recover. The action was against the sheriff who had taken the property by virtue of an execution. It was there held that the judgment debtors had such an in- terest in the property as to authorize the court to allow them to come in and defend. The Hilton Bridge Company case was to foreclose a mechanic's lien, and it was held that it was an action in equity, and, consequently, unde Y the doc- trine of the Chapman case, section^452 conferred upon the court authority to bring in a third person upon his own application. MCCABB V. GOODFELLOW. 137 While it must be admitted tliat there were statements in the opinions in these cases which, if given full effect, might perhaps be regarded as a -modification of the decision in the Chapman case, still, when we consider only the questions decided in those cases, they are not in conflict with the doc- trine of that case. Moreover, it is evident that the court had no intention of overruling or modifying it, or to hold otherwise than that in an action at law, where the plaintiff seeks a money judgment only, he cannot be compelled to bring in parties other than those he has chosen. This case very well illustrates the effect of permitting parties to in- tervene in such actions. If Delack were permitted to become a party to the action, other issues than those involved be- tween the plaintiff and the defendant would be presented. Instead of its being an action merely to determine whether the defendant was indebted to the plaintiff, and if so, the amount, it would be transformed into an action involving not only that issue, but the fraud of the plaintiff's assignor and in effect constitute an action to set aside a receipt or paper signed by Delack. We are of the opinion that section 452 furnishes no authority for such an order. The order should be reversed, with costs ; the first ques- tion certified answered in the negative, and the second, not being a question of law, sboulS' not be answered. McCABE V. GOODFELLOW. 133 N. Y. 89. Appeal from judgment of the General Term of the Su- preme Court in the fourth judicial department, entered upon an order made July 7, 1891, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This action was brought to recover for services alleged to have been rendered by plaintiff, as attorney for the Law 138 PABTIES. and Order League of the town of Kirkland, of which de- fendant was treasurer. Maynakd, J. This action must be upheld, if at all, under section 1919 of the Code of Civil Procedure, which provides that an action may be maintained against the president or treasurer of an unincorporated association consisting of seven or more persons, upon any cause of action for which the plaintiff might maintain such an action against all the associates by reason of their liability therefor, either jointly or severally. Under the subsequent sections of the Code (1921, 1922), the judgment recovered does not bind the property of the officer, and the execution issued must require the sheriff to satisfy it out of any personal property belonging to the association or owned jointly or in common by all the members thereof, but must omit any direction respecting real property. Where such an action has been brought, another action for the same cause shall not be brought against the members of the association until the return unsatisfied, wholly or in part, of an execution upon a judgment against the officer. The plaintiff, however, is not bound to sue the officer, for section 1923 provides that he may, in the first instance, bring his action against all the members of the association. It will thus be seen that the right to maintain the action against the officer is conferred upon the plaintiff for his convenience and in order that he may more speedily reach the personal property of the association for the satisfaction of any judgment which he may recover. But the plaintiff cannot, in any case, maintain such an action against the officer, unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the as- sociates by reason of their liability therefor, either jointly or severally. This, therefore, is the test to be applied in the present case. The plaintiff must allege and prove, and MCCABE V. GOODFELLOW. 139 the court must find that all the members of the association were liable, either jointly or severally, to pay the plaintiff the amount of his claim, or the judgment in this action can- not stand. The defendant was the treasurer of a Law and Order League, an association organized in and for the town of Kirkland, Oneida county, in December, 1886. It eventually consisted of two hundred and seventy members, of whom the plaintiff was one. It was formed pursuant to a resolu- tion adopted at a public meeting of citizens, which declared that they voluntarily associated themselves together for the purpose of forming such a league, the object of which should be to give their personal and united influence, and, if need be, their material aid to assist the town and village officers in enforcing the excise and corporate laws. A constitution was at the same time adopted, to which each member sub- scribed his name, which stated that the object of the league should be to unite, as far as possible, all the orderly and law-abiding citizens of the town in giving moral support and aid in all proper ways to the village and town officers while in the discharge of their official duties, and to see that they were faithful in enforcing all village and town laws, and especially those intended to regulate the traffic in in- toxicating drinks; and that the members of the league should consist, first, of all the members of the special or central committee composed of three persons appointed by each church and temperance society in the town and three members appointed by the league itself and, second, of all other persons willing to pledge themselves individually by signing the constitution, that they will give personal or material aid when needed to make effective the object of the league. * * * The plaintiff, who is an attorney, sues for services ren- dered, as he alleges, in the prosecution of actions for pen- alties and in other legal proceedings brought and instituted 140 PARTIES. by the association and under an employment by them. The referee has found that the league, through its officers, duly authorized agents and committees, retained him to perform these services and to bring these actions, and that his serv- ices were of the value of $1,850, including necessary dis- bursements; that he has received on account thereof $175, leaving $1,680 due and payable, for which judgment is ordered. * * * Granting that the members of the league had knowledge of the plaintiff's employment by their president, or by the general or executive committee and of the rendition of these services and ratified and approved of his retainer, it does not follow that they became personally obligated to pay them. The record, we think, very clearly shows that they had no reason to suppose that the committee so employed the plain- tiff upon their individual credit. On the contrary it fairly appears that they expected that his compensation, as well as the other expenses incurred by the officers and committees, were to be met by the funds voluntarily contributed for that purpose and placed at the disposal of the committees and that they did not intend there should be any debts con- tracted in excess of those funds. The plaintiff, as a member of the organization, must have so understood it. His conversations with the president and the letters put in evidence upon the subject, all refer to the moneys subscribed or contributed, as affording the means out of which he was to be paid. Having, therefore, failed to establish the liability of his associates for the debt, upon which he brought his suit, the plaintiff was not entitled to recover. Judgment reversed. A member of a joint stock association may maintain an action against the treasurer of the association in his representative capacity. Saltsman v. Schults, 14 Hun, 256. In Burtis v. Cleveland, 61 Hun, 98, plaintiff in- GITTLEMAN V. FELTMAN. 141 dividually and as executrix of Elizabeth Cleveland was permitted to bring an action for the foreclosure of a mortgage in which plaintiff as adminis- tratrix of James G. Cleveland, the deceased mortgagor, was a party defend- ant, on the ground that though a person cannot sue himself at common law, in equity this technicality does not stand in the way of justice, and the court will see to it that the accident of plaintiff's several eapacites in no way sacrifices justice. Schnaier v. Schmidt, 13 N. Y. Supp. 728, aff'd 128 N. Y. 683, was an action by one firm against another firm. Schmidt was a member of both firms and having refused to join as plaintiff it was held that the action might be maintained by the other partners as plaintiffs by naming Schmidt as a defendant only and alleging the facts of his common membership and refusal to join as plaintiff. GITTLEMAN v. EELTMAN. 191 N. Y. 205. Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial de- partment, entered November 26, 1907, which affirmed an order of Special Term granting a motion for leave to amend the summons and complaint by bringing in an additional party defendant. Haight, J. This action was originally brought against Charles L. and Alfred Feltman, to recover damages for a personal injury, alleged to have been received by reason of the negligence of the defendants. The order appealed from permitted the plaintiff to bring in as an additional defend- ant the Surf Amusement Company, a corporation, which it is claimed was a joint tort feasor with the other defendants, and with them liable for the damages sustained by the plain- tiff. It is the contention of the appellants that the court had no power to make such an order in an action of this character. The Appellate Divisions of the state appear to be in conflict upon the question. (Heffern v. Hunt, 8 App. Div. 585; Schun v. Brooklyn H. R. E. Co., 82 App. Div. 560; Goldstein v. Shapiro, 85 App. Div. 83 ; Horan v. Bruning, 116 App. Div. 482; Haskell v. Moran, 118 App. Div. 810.) 142 PARTIES. The provisions of the Code of Civil Procedure bearing upon the question are as follows : Section 452. ' ' The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights ; but where a complete determination of the controversy can- not be had without the presence of other parties, the court must direct them to be brought in. And where a persoii, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in ^eal property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. ' ' Section 723. " 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 add- ing 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," etc. The rule of the common law that a statute in derogation of the common law must be strictly construed does not ap- ply to the provisions of the Code of Civil Procedure. (§ 3345.) We are, therefore, called upon to give to the pro- _ visions referred to a fair and reasonable construction in accordance with the evident intent of the legislature. Un- doubtedly the first subdivision of section 452, as originally enacted in section 122 of the Code of Procedure, had refer- ence and pertained to equity actions ; but when the legisla- ture subsequently added the second subdivision to the sec- tion permitting a person, not a party, who has an interest in the subject of the action, or in real property, the title to which may be affected by the judgment, to make application GITTLEMAN V. FELTMAN. 143 to be made a party and to be brought in by a proper amend- ment, it evidently intended, at least so far as that sub- division of the section was concerned, to apply to actions at law as well as in equity. This was expressly held in Eos- enberg v. Salomon (144 N. Y. 92), but inasmuch as this provision of the Code pertains to the application of persons to be brought in and made parties to the action, it does not apply to the case which we have under consideration. We must, therefore, look to the provisions of section 723 for the purpose of determining the rights of the parties in this case. It will be observed that the provisions are very broad and cover precisely the question presented. "The court may at any stage of the action, in furtherance of justice, on such terms as it deems just, amend any process or pleading by adding or striking out the name of a person as a party. There is nothing in the provisions of this section that we are able to discover, from a careful reading of its pro- visions, which indicates any legislative intent that its pro- visions should be limited to equity actions. It is rather apparent that they pertain to all actions, whether at law or in equity, in which such an amendment would be in the i " furtherance of justice." Itis quite true that an order should not be made permitti^ the striking out of a sole party and the substituting of another party in his place, for the effect would be to terminate the original action and bring a new one. (N. Y. State M. Milk Pan Assn. v. Rem- ington Agr. Works, 89 N. Y. 22.) But in cases where an action may properly be brought against two or more de- fendants, who were claimed to be jointly liable, or jointly and severally liable upon the claim of the plaintiff, whether it be upon a contract or a tort, we see no reason why the provisions of the Code referred to do not apply to such a case, or why such persons in a proper case may not, in the discretion of the court, be brought in and made parties to the action upon such terms as it deems just. Of course, a 144 PARTIES. person should not be permitted to be brought in as a party defendant, who has no connection with the other defend- ants, with reference to the matter in controversy, for that would but render the complaint demurrable. The true test, doubtless, is as to whether the person could have been joined as a party at the commencement of the action, and whether the plaintiff has given a satisfactory excuse for his failure so to do. The only exception that now occurs to us is, in cases where the rights of the parties have changed after the bringing of the action by subsequent transactions, in which case the provisions of the Code with reference to supplemental amendments and pleadings would apply. The questions certified in this case are : First. " Should the motion of the plaintiff to bring in the Surf Amusement Company as a party defendant herein have been granted?" Second. " Has the Supreme Court, upon the motion of the plaintiff, in an action to recover damages for personal injuries resulting from negligence, the power to bring in as defendant a party not named as a defendant at the time of the commencement of the action, against the objections of the defendants originally named and of the proposed new defendant?" The granting of a motion of this character rests in the sound discretion of the court. It may grant, in the further- ance of justice, on such terms as it deems just. The juris- diction of this court is limited to the review of questions of law, and it, therefore, cannot review the discretion of the Special Term or Appellate Division. We, therefore, have no power to answer the first question certified. The sec- ond question, however, is as to the power of the Supreme Court to grant the motion, which calls for an interpreta- tion of the provisions of the Code referred to. With refer- ence to this question we have the power to determine the same, and we think that it should be answered in tlie affirm- ative, and the order appealed from affirmed, with costs. CARMAN V. PLASS. 145 5. Persons Liable on Same Written Instrument. Code Civ. Proc, §§ 454-5. CARMAN V. PLASS. 23 N. Y. 286. The action was commenced in the City Court of Brook- lyn, where the plaintiff complained against the defendant, Plass, as the lessee for years of certain premises, claiming to recover $116.66, being arrears of rent due and payable March 1, 1859. The lease was averred to be by indenture between the plaintiff, of the first part, the defendant Plass, of the second part, and the defendant Mix, of the third part, executed under the respective hands and seals of the par- ties, whereby Plass convenanted to pay the rent required; and it was alleged that the defendant Mix, by the same m- denture, did, ' ' in consideration of the premises, and of the sum of one dollar, guarantee unto the plaintiff the payment of the aforesaid rent and the faithful performance of the covenants in the said lease contained." The complaint further set forth that Plass had made default in the pay- ment of rent, and that the plaintiff had notified Mix thereof, and that both defendants had failed to comply, etc. There was a general demand of judgment against both defendants. The defendants demurred, on the ground that no cause of action against the defendants jointly was set forth in the complaint, "~~~ ~ The City Court gave judgment in favor of the defend- ants; but it was reversed on appeal at a general term of the Supreme Court, and judgment was rendered in favor of the plaintiff. The defendants appealed to this court Dbnio, J. This case comes precisely within the language of section 120 of the Code of Procedure, which provides that .10 146 PARTIES. ' ' persons severally liable upon the same obligation or in- strument, including the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff." I see no reason to doubt that it is likewise within the meaning and intention of the enactment. It relates expressly to several, and not to joint liabilities. The latter did not require the aid of a special provision; for a plurality of joint con- tractors always could be, and generally were required to be, sued together; and provision was made in the act con- cerning joint debtors, for omitting to serve process on all, if the creditor should so elect. But, though this were other- wise, the provision in question relates, in terms, to cases where a plurality of persons contract several obligations in the same instrument. That was the case here. It may be said that the cause of action is not, in this case, precisely the same against both the defendants. The lessee engaged to pay the rent unconditionally, and the surety was under no obligation until the principal had made default. But, after such default, each of them was liable for the same precise amount absolutely^ They were, therefore, within the language which speaks of persons severally liable upon the same instrument. If this were otherwise doubtful, the reference to suits upon bills of exchange and promissory notes makes it entirely certain that the present case was one of those in the contemplation of the authors of the section. The parties to such paper are included in the provision. The indorsee of a bill or note, and the drawer of an ac- cepted bill, are only liable contingently, and after being charged upon a default of the maker or acceptor. They were included in the scope of the enactment, because, though, in a general sense, parties to the paper on which their names are placed, they are not parties to the obliga- tion, or instrument, in the same strict sense as the surety in the case under consideration. No doubt, a pretty radical FEIEE V. THIED AVE. E. CO. 147 innovation upon the common-law system of pleading was made when, by the act of 1832 (p. 489, § 1), the several obli- gations of parties to a bill or note were allowed to be en- forced in a single action. But this had become familiar law when the Code was written, and it seems then to have been considered that the principle might be usefully extended to eases like the present ; and the section referred to appears to me to have been framed for that purpose. I am not able to entertain any doubt respecting the correctness of the judgment of the Supreme Court. In the cases from 11 How- ard's Practice Reports, 218, and from 10 Barbour, 638, to which we have been referred, the separate undertaking of the surety was contained in a different instrument, and it was held that he could not be joined as a defendant in an action against the principal. It was assumed by the court that, in a case like the present, where both parties were bound by the same instrument, the statute would apply. Judgment affirmed. On an insurance policy wherein several underwriters become liable sev- erally for the full amount section 454 allows them to be joined as defend- ants (Isear v. Daynes, 1 App. Div. 557) but where they are bound '' each one for his own part only of the whole amount herein assured " they become severally liable each for his own part only and they are not all liable upon the " same written instrument " but only upon similar causes of action (Straus v. Hoadley, 23 App. Div. 360):- 6. Poor Persons. Code Civ. Pro., § 458-67. FEIER V. THIED AVE. E. CO. 9 App. Div. 607. Appeal by the plaintiff, Augusta Feier, an infant, by Harry Levy, her guardian ad litem, from an order of the Suprf^me Court, made at the New York Special Term and entered in the office of the clerk of the county of New York \ 148 PARTIES. on the letli day of April, 1896, denying her motion for leave to sue as a poor person. The petition upon which the application was made was as follows : ' ' I. That she is an infant over the age of fourteen years, to wit, nineteen years of age. " II. That she appears by Harry Levy, her guardian ad litem herein. " III. That the parents of your petitioner reside in Europe, and that your petitioner is employed as a domestic by the said Harry Levy, her guardian ad litem, and that he is not related to her. " IV. That this action was commenced on or about the 21:th day of February, 1896, by the service of a summons on the defendant. That thereafter the said defendant ap- peared herein by Messrs. Hoadly, Lauterbach & Johnson, its attorneys and the complaint herein was served on said defendant's attorneys on or about March 10, 1896, and de- fendant's answer was served on the plaintiff's attorneys on or about March 20, 1896. The said action was brought by jovlV petitioner to recover the sum of $5,000, because of the injuries received by the plaintiff by reason of the negligence of the defendant and his servants^, said negligence consist- ing in the defendant's careless and negligent management of one of its cars, thereby causing this plaintiff to sustain severe injuries, and perhaps permanently incapacitate her, and that said injuries were caused without any negligence on the part of this plaintiff. " V. That the plaintiff is nineteen years of age, and is not worth the sum of $100, besides wearing apparel, and the subject-matter of this action; that, in fact, your petitioner has no means whatever. " ^"I. That your petitioner is informed by her counsel, Messrs. Wahle & Stone, and verily believes, that a motion has been made herein to compel your petitioner's guardian FEIEK V. THIED AVE. E. CO. 149 ad litem to file security for costs, and said motion is return- able in this court on or about the 14th day of April, 1896. ' ' VII. That your petitioner 's guardian, Harry Levy, is in the cigar business, and, as already stated, is not related to her, and while deponent believes that he is a competent person and has the best interest of your petitioner at heart, your petitioner sees no method of compensating him, in the event that she should not succeed in this action ; and in view of the fact that she works for the said Harry Levy as a domestic at a salary of $15 per month, your petitioner will be unable to furnish the security demanded, and will be unable to conduct this action if any bond is required from her guardian, in accordance with the motion which has been made herein." Baeeett, J. The plaintiff's papers are in strict accord- ance with the provisions of sections 458 and 459 of the Code of Civil Procedure. She could say no more to invoke judicial action than she has said in these papers. No more could well be said. The defendant filed no affidavits in opposition. If, there- fore, her motion was properly denied, it is difficult to con- ceive of a case where an infant pauper may avail herself of the law which was expressly enacted for the benefit of her class. Prior to the amendment of 1891 there was a conflict of judicial opinion with regard to the right of infant paupers to sue as poor persons. In some cases it was held that where an infant sues by guardian ad litem, security for costs being a statutory right, the court had no power to destroy it by allowing the guardian to sue as a poor person. These cases were subsequently overruled. But it was to settle these and all other questions upon the subject, that the amendment of 1891 was enacted. That amendment con- sisted of the insertion in section 458 of the words " whether an adult or infant," and of the provision in section 459, 150 PARTIES. that where the applicant is an infant under the age of four- teen years, the petition must be verified by his guardian ap- pointed in the action. Now, as an infant, whether under or over fourteen years of age, cannot apply until a guardian ad litem is appointed (Matter of Byrne, 1 Edw. Ch. 41 ; Glasberg v. Dry Dock, E. B. & B. E. R. Co., 12 Civ. Proc. Bep. 50, per Patterson, J.), and as such guardian ad litem must, under the General Rules of Practice, be a competent and responsible person, the statute is practically abrogated if the competency and responsibility of the guardian constitute a complete answer to the applicatioru The infant here- says, without a word of denial, that she has no means whatever ; that she has a good cause of action against the defendant; and that she is a hired domestic in her guardian's service. What was the court's answer? It was this — • though you are an infant pauper you shall not have th-^ benefit of the statute because you have a re- sponsible guardian. This responsible guardian you had to secure before you commenced your action. Having secured him you are no longer within the statute, or rather it is no abuse of discretion to deny your petition. This reasoning seems to be practically to nullify the amendment and to leave infant paupers in quite as unfortunate a position as they were in before the Legislature sought to help them. The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion for leave to sue in forma pauperis granted. MAX WEINSTEIN, an Infant, by SAMUEL WEINSTEIN, his Guard- ian Ad Litem, Respondent, v. MOE FRANK, Defendant, and NICH- OLAS SCHNEPP, Appellant. 56 App. Dn-. 275. '^. Appeal by the defendant, Nicholas Schnepp, from an order of the Supreme Court, made at the New York Special weijststein v. frank. 151 Term and entered in tlie office of the clerk of the county of New York on the 11th day of October, 1900, vacating an order which required the plaintiff to give security for costs, and granting leave to tha plaintiff to sue as a poor person. Per Curiam: It does not seem that a proper case was made out for granting an order for leave to sue as a poor . person. The granting of the order is discretionary, and is intended to permit persons to bring suit who would be with- out remedy if they were to be compelled to pay the ordinary disbursements of an action because on account of poverty they would be unable to meet the same, (it is not every person who does not own $100 of property that is entitled! to the order, but only those who otherwise would be unable to prosecute their action, \[f the rule which has obtained in the granting of the order to sue as a poor person in this action was followed, then every infant would be entitled, as a matter of right, to the order. In order to entitle the party to this order it must appear that the petitioner is so situated that he will be unable to present his case to the court unless the order is granted. This is evident from the ' fact that the court is required to assign an attorney and counsel to prosecute the action, who must act without com- pensation. The recovery of the infant cannot be charged with any of the expenses of the action or its prosecution. This provison seems to have been thought a safeguard against the prosecution of speculative claims under the shelter of these orders. In order to make this provision^ effective it should also be made to appear that the guardian of the infant or the poor person is fully aware of the con- dition of the order as to compensation, and that nothing is to be paid as compensation to attorney or counsel ; that all such services are to be rendered gratuitously. Furthermore, the papers upon which the order was granted are deficient in not showing to the court that the 152 PAETIES. petitioner had a good cause of action. Mere advice of counsel, althougli a certificate of counsel to that effect is required, is entirely insufficient for the purpose. The 'court must, among other things, be satisfied that the ap- plicant has a good cause of action. The court can only be satisfied of this fact when the applicant sets forth facts upon which it may base its satisfaction. The mere opinion of an attorney is no evidence upon which the court can arrive at a conclusion. The order appealed from, so far as it allows the plaintiff to sue as a poor person, should be reversed, without costs, and the motion denied. Downs V. Farley, 18 Abb. N. C. 464. Infant Parties. §§ 468-77, 1218, 1283, 1290-1, 1535, 1744, Gen. Rule 49, 50 and 51. RIMA V. R. I. "WORKS. 120 N. Y. 433. Appeal, from the judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made January 10, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed two orders, one denying a motion for a new trial and the other appointing a special guardian of the plaintiff. This was an action to recover damages for personal in- juries sustained by the plaintiff through the alleged negligence of the defendant. Vann, J. The trial of this action was commenced on the 23d of September, 1886, and during its progress it ap- peared by the cross-examination of the plaintiff that he was EIMA V. E. I. WORKS. 153 an infant, and tliat lie would not be twenty-one years of age until the third of the following month. The defendant was ignorant of this fact on the 16th of June, 1886, when the action was commenced, and did not hear of it until two days before the commencement of the trial. At the close of the evidence a motion was made for a nonsuit upon the ground, among others, that the plaintiff, although under age, was prosecuting the action without a guardian ad litem, where- upon an application was made to the court for the appoint- ment of a guardian nunc pro tunc. The application was granted, and before the case was submitted to the jury, an order was entered in the minutes of the court, which, after reciting the substance of the affidavit upon which it was founded, appointed a guardian ad litem " for said infant plaintiff for the purposes of this action," and provided ' ' that all pleadings herein be amended accordingly. ' ' It was further directed that the order " be and hereby is en- tered as of a date previous to the service of the summons herein." The defendant insists that the court had no power to make said order and that the motion to nonsuit should have been granted. The question is also raised by a direct appeal from the order as made. The Code of Civil Procedure -provides that where an in- fant has a right of action, he is entitled to maintain an action thereon; that the same shall not be deferred or de- layed on account of his infancy, but that before a summons is issued in his name, a competent and responsible person, who shall be responsible for the costs, must be appointed to appear as his guardian for the purpose of the action. (§§ 468, 469.) The corresponding section of the Code of Procedure provided that " when an infant is a party he must appear by guardian." (§ 115.) These sections had their origin in the Eevised Statutes, which declared that when an infant had a right of action to recover real property or the possession thereof, or to recover any debt 154 PARTIES. or damages, he should be entitled to maintain a suit thereon, and that the same should not be deferred or delayed on account of such infant not being of full age, but required that a competent and responsible person should be " ap- pointed to appear as next friend for such infant " before any process should be issued in his name. (2 E. S. (3d ed.) 542, §§ 1, 2.) Thus it appears that for many years a statute, mandatory in form, has required the appointment of a guardian or next friend before process could be issued in the name of an infant plaintiff. The decisions, under these statutes, have held, almost without exception, that the omission to appoint a special representative of the infant was an irregularity only, and that it did not affect the juris- diction of the court. Thus, in Fellows v. Niver (18 Wend. 563, 564), which arose while the Eevised Statutes were in force, the court said: "It is a question of regularity merely, not, as defendant's counsel 'supposes, a question of jurisdiction. ' ' In Eutter v. Puckhofer (9 Bosw. 638), decided under the Code of Procedure, it was declared that ' ' the learned judge who granted the motion erred in deciding that this was a jurisdictional question. The court had jurisdiction of the parties and of the subject of the action, and the omission, therefore, to procure- the appointment of a guardian was an irregularity, which might be cured or waived. " * * * We think that it should now be regarded as settled that the failure to appoint a guardian ad litem for an infant plaintiff affects the regularity of procedure, but not the jurisdiction of the court. This seems to have been the theory of the legislature in enacting title one of chapter eight of the Code of Civil Procedure, entitled " Mistakes, omissions, defects and irregularities." This article pro- vides that where a verdict has been rendered, the judgment shall not be stayed, impaired or affected by reason of " the appearance, by attorney, of an infant party," if the verdict WILEMAN V. MET. ST. E. CO. 155 or judgment is in his favor, and confers ample power upon courts of record to afford relief against irregularities of every nature, unless it should be contrary to the right and justice of the matter or should alter the issue between the parties. (Code Civ. Pro., §§ 721-725.) The order complained of was, therefore, within the sound discretion of the court, and we think that, under the" cir- cumstances, the power conferred by the statute was dis- creetly exercised. Judgment and orders affirmed. But see Ingersoll v. Mangam, p. 29, supra. Though an action may be brought for an infant by his general guardian, it is the theory of the Code and the general practice to bring the action in the name of the infant by his guardian ad litem. See Van Zandt v. Grant, 175 N. Y. 150. WILEMAN V. MET. ST. R. CO. 80 App. Div. 53. McLaughlin, J. There is no dispute as to the facts in- volved in this appeal. They are, so far as the same are material, as follows : The plaintiff, through her guardian ad litem, brought this action to recover damages for per- sonal injuries alleged to have been sustained through the negligence of the defendant. ■ She recovered a judgment for a substantial amount, which^was affirmed on appeal to this court. Thereafter, the guardian ad litem, through her at- torney, asked the defendant to pay the amount of the judg- ment which it was ready and offered to do, provided the guardian ad litem would file the security required by sec- tion 474 of the Code of Civil Procedure, and rule 41 of the General Rules of Practice. This the attorney refused to do, notwithstanding he admitted no such security had been filed, and he immediately issued an execution upon the judgment to the sheriff of New York county. The defend- 156 PARTIES. ant thereupon made a motion to vacate and set aside tlie execution, or for leave to pay the money into court. The motion was denied, and from that order defendant appeals. I am of the opinion that this order should bo reversed. Section 474 of the Code of Civil Procedure provides that " except in a case where it is otherwise specially prescribed by law, a guardian appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, * * •* until he has given suf- ficient security approved by a judge of the court, or a county judge, to account for and apply the same under the direction of the court." And to the same effect is rule 51 of the General Eules of Practice. Here, it is conceded that the guardian ad litem had not given the security required by law, and that fact was known to the defendant when it was asked to pay the judgment. She was not, therefore, authorized to receive the amount of, or to satisfy the judgment, and a payment of it would not have protected the defendant. (Wuesthoff v. Germania Life Ins. Co., 107 N. Y. 580; Clambacher v. Neuman, 28 Abb. N. C. 156.) An attorney has no more authority or power than his client. Here, the guardian ad litem being prohibited from receiving the amount of the judgment, her attorney was also" prohibited from receiving it, and this seems to be conceded. Both of them being unauthorized to receive the amount of the judgment, it seems to me to necessarily follow, under the provision of the Code re- ferred to, that neither of them could take a single step towards enforcing the collection of the judgment, either by execution or otherwise, until the security had been given as provided in that section. The power to act at all in this respect depended upon the security given. This was a necessary prerequisite to the exercise of any power whatever. Order reversed and motion granted. PAEISH V. PAEISH. 157 PARISH V. PARISH. 175 N. Y. 181. Appeal from an order of the Appellate Division which reversed an order of Special Term denying the applica- tion of the purchaser at a partition sale to be relieved from his purchase. CuLLEN, J. The order of the Appellate Division is ap- pealable to this court. This has been so held in three re- cent cases. (Holme v. Stewart, 155 N. Y. 695 ; Kingsland v. Fuller, 157 N. Y. 507; Merges v. Eingler, 158 N. Y. 701.) An application to compel a purchaser to take title and that of a purchaser to be relieved from his bid are regarded as special proceedings. Wheitjhe^pplications involve q^ues- tions of fact or the exercise of discretion, the determina- tion of such questions cannot be reviewed here; but -when they present solely guestions_ of law their examination is open to this court j * * * In the case before us the application was made in an action for a partition of certain real property which came to the parties through the will of their ancestor, Daniel Parish. A number of the defendants were infants. Guardians ad litem were appointed for these infants either on their application or on that of their parents, in no in- stance on the application of the plaintiff. An interlocutory judgment was rendered declaring the interest and title of the parties and directing a sale of the premises. The sale was had at which the respondent became the purchaser and final judgment was entfered in the action confirming the sale. The respondent raised two objections to the title, on the strength of which he asked to be relieved from his pur- chase. First, that certain of the guardians ad litem were appointed in violation of rule 49 of the Supreme Court, which provides that " no person shall be appointed guardian ad litem " who is " connected in business with the attorney or counsel of the adverse party. " * * * 158 PAETIES. It appears by the opinion rendered that the first was the ground on which the decision of the court below proceeded. It may be assumed that as to certain of the guardians, the affidavits show that their appointments were made in viola- tion of the rule, and it may also be conceded that the proper interpretation of those rules should largely rest in the judg- ment of that court by which they were formulated. Hence, had the court below on a direct application to vacate the .orders appointing those guardians, or on an appeal from those orders, set the appointments. aside, we should in no way have interfered with their determination. But the question presented on this application is of an entirely dif- ferent character. It is how far the title of a purchaser is affected by the erroneous action of the trial court in misin- terpreting or failing to comply with the rules of the court in the appointment of a guardian ad lit^m where the proceed- ings on their face appear to be entirely regular. Doubtless it was the duty of the trial court to appoint as guardian for each of the infants "a person competent to protect his in- terests and not connected with the attorney or counsel for the adverse party. But who was to determine these facts and qualifications 1 Plainly, the court to whom the applica- tion was made. The order of the court appointing the guardians ad litem recites that it satisfactorily appears to the court that the person appointed had no interest adverse to that of the infant defendants and that he was not in business with the attorney or counsel for the plaintiffs or any adverse party. If the court erred in this determination it did not deprive the court of jurisdiction or render the judgment voidable, but, like any other error, was to be cor- rected only by direct attack, that is to say, by appeal or by motion to set the order aside. The parties are also con- cluded by the final judgment which confirmed the sale. Two recent decisions of this court we think are decisive of the question that has been discussed. In Corbin v. Baker (167 N. Y. 128) a trustee became the purchaser at a partition BYBNES V. BYRNES. 159 sale. It was held that the final judgment confirming the sale precluded the title of the purchaser from being subse- quently impeached on the ground of his fiduciary relations to the infant parties. In Sproule v. Davies (171 N. Y. 277) the judgment, in violation of the statute prescribing that such sale should be made by the sheriff of the county, di- rected the execution of a foreclosure sale by a referee therein named. It was held that this irregularity did not affect the title of the purchaser and he was required to complete his purchase. The order of the Appellate Division should be reversed and that of the Special Term affirmed. BYRNES V. BYRNES. 109 App. Div. 535. McLaughlin, J. The parties hereto were married in 1902, and this action was brought to procure a judgment of separation. The answer set up a counterclaim and asked for the same relief as that demanded in the complaint. The issues were sent to a referee to hear and determine, who, after a trial, had found in favor of the defendant and upon his re- port, on the 13th of November, 1903, a final judgment of separation was entered. At the time the judgment was en- tered the plaintiff was under twenty-one years of age, and a guardian ad litem had not been appointed for her in the action. Upon this ground, on the 14th of April, 1905, by an order to show cause, she moved to vacate the judgment. The motion was g. anted and defendant has appealed. The material ficts upon which the plaintiff based her motion to have the judgment vacated were not denied, viz., that she was bo'n on the 5th of January, 1883; that the judgment was eatered November 13, 1903 ; that she did not become twenty- one years of age until the 5th of January, 1904, and that the motion to vacate was made April 14, 1905. 160 PAETIES. Tlie appellant contends that the failure to have a guardian ad litem appointed was, at most, an irregularity, and, therefore, inasmuch as the respondent did not move within one j^ear after she became twenty-one years of age, the judgment could not, under section 1282 of the Code of Civil Procedure, be set aside. I am of the opinion that it was more than an irregularity. It was an "error in fact not arising upon the trial" (Maynard v. Downer, 13 Wend. 575; Camp v. Bennett, 16 id. 48; Arnold v. Sandford, 14 Johns. 417; Peek v. Coler, 20 Hun, 534), and, therefore, under sections 1283 and 1290 of the Code of Civil Procedure, a motion to vacate the judg- ment could be made at any time within two years from the date of its entry. Sections 1290 and 1291 of the Code of Civil Procedure provide that if the person against whom the judgment is rendered is within the age of twenty-one years at the time of its entry, the time of such disability is not counted as a part of the time limited for the commencement of the pro- ceeding for relief, except that such disability can in no case extend the time beyond five years or more than one year after such disability ceases. Relief from judgments taken against minors for errors of fact not arising upon the trial must be applied for within one year after the minor reaches his majority, provided the two year's limitation has then expired. (Matter of Tilden, 98 N. Y. 434, 443.) Here the motion to vacate the judgment was made within two years from the time of its entry, and within the time prescribed in the sections of the Code ci'i'ed. This being so, there was nothing for the court to do but grant the motion. The application is only to vacate the judgment, and, there- fore, we do not decide the effect of vacatin,: the judgment or the infancy of the plaintiff upon the other proceedings had in the action. Order affirmed. i , ' \ : • CHAPTER III. PLEADING. 1. Complaint. Code Civ. Pro., §§ 22, 478-481, 519-520, 530-536, 1207, 1775. Gen. Rule 19. STEVENS V. THE MAYOR. 84 N. Y. 296. Danfoeth, J. The names of actions no longer exist, but we retain in fact the action at law and the suit in equity. The pleader need not declare that his complaint is in either ; it is only necessary that it should contain facts constitut- ing a cause of action, and if these facts are such as at the common law his client would have been entitled to judg- ment, he will, under the Code, obtain it. If on the other hand they establish a title to some equitable interposition or aid from the court, it will be given by judgment in the -same manner as it would formerly have been granted by decree. So the complaint may be framed with a double aspect (Wheelock v. Lee, 74 N. Y. 500) ; but in every case the judgment sought must be warranted by the facts stated. For as was said in Dobson v. Pearce (12 N. Y. 156), " the question is, ought the plaintiff to recover," or as in Crary V. Groodman (Id. 266), " whether according to the whole law of the land applicable to the case the plaintiff makes out the right which he seeks to establish? " It is only when he fails in doing this that he can be treated as one making a false clamor. But, notwithstanding the liberality of the law which permits this construction, the plaintiff can have no relief that is not ' ' consistent with the case made by his 11 [161] 162 PLEADING. complaint and embraced witMn the; issue." (Code, § 275.) He must, therefore, establish his allegations, and if they warrant legal relief only, he cannot have equitable relief upon the evidence. He must bring his case within the allegations as well as within the proof. And, notwithstand- ing the very learned and extended arguments advanced upon this appeal, we think the case must be decided upon the application of these rules. First, it is quite evident that the plaintiff at the outset, and before commencing his action, conceived himself entitled to damages and nothing else. For in compliance with the statute in that respect he gave notice of his claim to the Comptroller and demanded ' ' payment of the sum of $200,000 as damages for the fraud- ulent obtaining and using of the deed or release," men- tioned in the .complaint. This being refused and action commenced, the allegations in the complaint are to the same effect. They describe the property conveyed by the deed and characterizing the application for it as fraudulent, de- clare that at that time the defendant was informed the prop- erty belonged to Miner ; that he was ignorant thereof, and that the defendant fraudulently and with intent to deceive and defraud the plaintiff out of his aforesaid property fraudulently kept concealed from the plaintiff ' ' the fact of the opening of Seventy-eighth street, and also the fact of the closing of " a certain other street (both material to his title) ; that at the same time it falsely informed and repre- sented to him that he had some slight claim to the said street, but that it was a mere equitable claim and of no value; that misled, deceived and induced by such fraudu- lent concealment, and such false and fraudulent statements and misrepresentations as to the said property, his interest therein and the value thereof, and believing the same to be true and relying thereon, and without consideration, he executed and delivered to the defendant the said deed or release; that his interest so conveyed was worth $200,000, and for that sum judgment is demanded. If these allega- STEVENS V. THE MAYOR. 163 tions were admitted to be true, or the defendant failed to answer, the plaintiff would be entitled to recover, and the only proceedings consequent on such admission would be an assessment of damages. But so far from that, the defend- ant answered and by denial took issue upon the averments. For the trial of the issues so formed a jury was the ap- propriate tribunal, and we find that it was resorted to. Ex- cept by consent of both parties it must have been again sought; but such consent was given and we have now be- fore us the proceedings upon a trial before a referee. His decision is to be treated like the verdict of a jury, and upon every issue he has found in favor of the defendant. He finds there was no fraud practiced, no fraudulent con- trivance or concealment, no fraudulent intent on the part of the defendant or its agents. Besides this, actual good faith is established. The whole assumed cause of action is, therefore, taken away. Indeed it is shown to have had no existence. * * * In view of the appellant's position, that the case presented matters of equitable cognizance, it may be not improper to state that it seems to us far from clear that the circum- stances are such as to require the strictness of the common law to be abated, or that upon pleadings, however framed, the plaintiff could recover. There was actual possession of the land by other parties, and as it now seems, equities affecting the conscience of the intestate, if they did not the title, and these circumstances may have led to that prompt and almost eager compliance with the defendant's applica- tion, which is now relied upon as the result of fraud or imbecility. But without regard to such considerations and upon the ground before stated, we think that the appeal is not sustained, and that the judgment should be affirmed. Bush V. Prosser, 11 N. Y. 351. Prom opinion: "Two objects of reference were made prominent in the changes made in the forms of pleading by the Code. One was the introduction of verity into the plead- ings, by providing, in effect, that parties, in their allegations, should have the same regard to truth that prevails between members of society, in 164 PLEADING. their daily eommunieations with each other: that they should not, will- ingly, and certainly not, by compulsion, spread a falsehood upon the record; that a defendant should not be driven, or permitted even, falsely to allege a full defense, to the end that he might prove a partial defense. Another was, that the pleadings should inform the court and the adverse party of the facts alleged in support or defense of the action, and to which evidence was to be given; and hence common counts, general is- sues and all fictitious pleadings, were abolished. One alleged objection to the old forms of pleading was, that the record did not necessarily dis- close the true questions of fact at issue, and which were to be tried." LINDEN V. HEPBURN. 3 Sandf. 668. This case came before tlie court on two appeals taken by the defendants, one from an order at chambers granting a motion for an injunction, the other from a judgment at the Special Term overruling a demurrer to the complaint. The complaint made the following ease. James H. Eoose- velt leased to A. and F. Eoux, the houses and lots, 478 and 480 Broadway, in the city of New York, for eight years from May 1, 1845. The lease provided, that if the rent should be unpaid, or default be made in any of the lessee's covenants, the lessor might re-enter. The lease was de- clared to be on the express condition, that the premises were to be occupied and used only as a dwelling and cabinet- maker's shop and warerooms, except that the basements on Broadway might be let to trades not noisy, but not for billiards, tenpins, etc.; that no persons, furniture, etc., should be placed or go on the roofs of the Broadway houses ; that no projecting signs should be put up, nor any awnings or posts ; and that no alteration should be made in the build- ings without the lessor's written consent. In March, 1848, A. and F. Eoux transferred the lease to the plaintiffs, who in the same month demised to the defendant "West, for five years from May 1, 1848, the whole of 480 Broadway, except the front basement and a room ad- joining it, subject to all the covenants and conditions con- LINDEN V. HEPBUBN. 165 tained in the original lease. West covenanted to observe and fulfill the same, and his lease contained a provision that the plaintiffs might re-enter if any default should be made in any of the covenants therein contained. The rent was payable by West to the plaintiff. West entered, and is in possession of part of the tenement so underlet and Hep- burn and Wills are in possession of the residue, under West. West and the other defendants, have broken the cove- nants of the lease and conditions in all the four particulars before mentioned. They are using the premises for the re- tailing of liquors, etc., have kept furniture on the roof, put up projecting signs, and made unauthorized alterations in the buildings. By reason of which the lease to West has become forfeited, and the plaintiffs are entitled to re-enter. The complaint prayed for judgment to that effect, and that the defendants might be removed from the premises and the plaintiffs put in possession. And that the defend- ants might be enjoined from using the premises in the man- ner complained of, and from violating the covenants and conditions in Eoosevelt's lease. The plaintiffs moved for an injunction, which was granted, after argument, so far as to restrain several of the inhibited uses of the premises. The defendants demurred to the complaint, and the court, at Special Term, overruled the demurrer. By the Court. Sandpoed, J. The only ground presented by the demurrer which required any serious consideration, is that no right of entry exists in the plaintiffs; that the lease executed by them to West, operated as an assignment of the original lease, pro tanto, and there being no rever- sionary interest in the plaintiffs, they cannot recover. Whatever the effect of this lease might be, as between West and the original lessor of the demised premises, we have no doubt that as betweeji West and the plaintiffs, it is to be regarded as a sublease, and not as an assignment of the original term. The right to re-enter was reserved to 166 PLEADING. the plaintiffs, and tMs suffices to enable them to enter for breach of the conditions, although there be no reversion remaining in them. (Doe ex dem. Freeman v. Bateman, 2 B. & Al. 168.) And see Kearney v. Post, 1 Sandf. 105; affd. on appeal, 2 Comst. 394. The judgment for the plaintiffs on the demurrer, must be affirmed, with costs. On the appeal from the order granting the injunction, a different question arises. The complaint, aftet setting forth the violations of covenants and conditions for which the plaintiffs seek to recover, prays for a judgment of for- feiture of the term of years, that the defendants be for that cause dispossessed, and that the plaintiff be put into possession of the premises. It then prays for an injunction, to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors and in other modes prohibited by the covenants in the lease. The forfeiture and re-entry prayed, are the relief here- tofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The eject- ment brought to effect a re-entry for breaches of the con- dition in a lease, has always been regarded in the law as a hard action, one strictissimi juris; and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us, would never have been thought of under the sys- tem of remedies in force prior to the Code of Procedure. Equity abhors forfeitures, and always relieves against them when possible to do so; and no man would have ventured, under that system, to ask her for one of her most benign remedies, while in the same breath he demanded from her a vigorous forfeiture of his opponent's estate in the subject of the controversy. LINDEN V. HEPBXJEN. 167 Does the Code of Procedure make any change in this respect? Can a plaintiff, under the Code, ask for equitable relief, and in the same suit, demand a forfeiture? We are clear, that the Code has not altered the rule. It has abolished the distinction between legal and equitable rem- edies; but it has not changed the inherent difference be- tween legal and equitable relief. Under the Code, the proper relief, whether legal or equitable, will be admin- istered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary sbef ore to attain the one form, and a bill in equity to reach the other. A suit for specific performance is one of that description. But we think inconsistent relief can be no more asked now than it could be under the old system. A vendor cannot now exhibit a complaint, demanding pay- ment of an instalment of purchase-money in arrear, and also a forfeiture of the contract of sale and restoration of possession ; even if the contract expressly provided for such payment and forfeiture. There can be no better illustration of our meaning than this very case. The forfeiture of the term, is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a re-entry and possession ; or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either. He cannot do both at once. " He that seeks equity, must do equity," is a maxim which lies at the foundation of equity jurisprudence ; and it is not at all affected by any change of remedies. We imagine that a much broader effect has been claimed for the violation of the distinction between legal and equitable rem- edies, than was ever intended by the Legislature. The first section of the Code, shows what was intended by the word remedies. It is limited to actions and special proceedings, 168 PLEADING. and tlie declared object of the preamble to the Code, is, simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to sub- stitute the one for the other, in any case. Those modes of relief, the judgment or the decree, to which a party upon a certain state of facts, was entitled, were fixed by the law of the land. No inference or deduction from a statute, noth- ing short of a positive enactment by the Legislature could change them. The Code contains no such enactment, and ■we repeat that we do not perceive in it any countenance for an inference or deduction to that effect. The chapter of the Code relative to injunctions, in our judgment, does not affect the question. It substitutes an order for the writ heretofore used, and it defines the cases in which it may be granted, the latter being the same sub- stantially as were established in our court of chancery. It does not profess to create a new remedy. On the contrary it recognizes the injunction as an existing provisional rem- edy, provides the order in place of the writ, and regulates the mode of granting it. Its character as a mode of equi- table relief is not at all altered or impaired. Our conclusion is, that the plaintiffs had no right to an injunction, while they demanded a forfeiture of the lease. As the case made by the complaint would entitle them to an injunction if their relief had been limited to that remedy together with damages, we will permit the injunction to stand, on their stipulating not to take judgment for a for- feiture or delivery of possession of the premises. And they may amend their complaint so as to ask for damages. Unless they thus stipulate, the order for the injunction must be reversed. ROSS V. MAXHEK. 169 ROSS V. MATHEE. 51 N. Y. 108. Appeal from judgment of the General Term of the Su- preme Court in the seventh judicial district, in favor of pl aintiff, e ntered upon an order denying motion for a new trial, and directing judgment upon verdict. The action "was brought to recover damages upon sale of a horse. The summons in this case stated that the plaintiff would apply to the court for the relief demanded in the complaint. The complaint alleged in substance the sale of a horse by the defendant to the plaintiff, which was lame in one hind leg; that on the sale the defendant warranted, and falsely and fraudulently represented, that the lameness resulted from an injury to his foot ; that it was in his foot, and no- where else; when his foot grew out that he would be well, and that he had only been lame for two weeks ; that the plaintiff, relying upon this warranty and representations, and believing them to be true, purchased and paid for the horse. It was further alleged that at the time of this war- ranty, and false and fraudulent representations, the horse was not lame in his foot, but in his gambrel joint, which had been for more than two weeks badly diseased, and from which his lameness originated, which the plaintiff, at the time of the sale and of making such warranty and repre- sentations, well knew; that the horse was of little value ; and that by means of the premises the . defendant falsely and fraudulently deceived him in the sale of the horse to the damage of $500 ; and he demanded judgment for $500 and costs. The answer admitted the sale of the horse and the pay- ment of the price, and denied all the other allegations of the complaint. On the trial the plaintiff stated that he expected to prove a warranty only ; that he did not expect to prove any false 170 PLEADING. or fraudulent representations, or that the defendant in- tended to deceive or did knowingly or fraudulently deceive the plaintiff, and that he should only claim to recover dam- ages for a breach of the contract of warranty. -^ The defendant then moved that the plaintiff be nonsuited, on the ground that the cause of action stated in the com- plaint is for fraud and deceit, and not for breach of a con- tract of warranty, i The judge denied this motion and the defendant excepted. A cause of action upon a warranty was then proven, but no evidence was given tending to prove fraud or any intention to deceive. tChe defendant then renewed his motion for a nonstiit upon the grounds before stated, which was denied, and he excepted. Excep- tions were ordered to be heard at first instance at Genelral Term. Hunt, C. The complaint contains all the elements of a complaint for a fraud. It must be held to be such unless the distinction between the two forms of action is at an end. While it contains all that is necessary to authorize a re-! covery upon a contract, it contains much more. These ad- ditional allegations are so important and are stated in a manner so logical and orderly, that they determine the char- acter of the action. In addition to what is necessary to sus- tain an action upon contract, the complaint alleges : 1. That the defendant " fraudulently represented " that the lame- ness arose from an injury to his foot, and was temporary only. 2. That the plaintiff relied upon the warranty not only, but upon said representations, and believing them to be true, made the purchase. 3. That at the time of the war- ranty not only, but of the false and fraudulent representa- tions, the horse was lame in his gambrel joint and not in his foot. 4. That at the time of making the false and fraudulent representations, the defendant well knew that the lameness was not in the hind foot, but was in the gambrel joint, which had been diseased for more than two BOSS V. MATHEE. 171 weeks, whicli was also well known to the defendant. 5. That by means of the premises, the defendant falsely and fraud- ulently deceived the plaintiff in the sale of the horse, to his damage of $500. No allegations conld have been inserted which would have more clearly constituted a case of fraud. That there was a warranty as well as representations, or that both are alleged to have existed, does not alter the case. Fraud may be based upon a warranty or upon representations, or upon both together. They may exist severally or together, and either or bothjnay be the subject of fraud, and of an action for damages for fraud. If the plaintiff had been able to establish a fraud in the sale, I cannot doubt that he would have been permitted to prove it under this complaint. I do not see upon what ground an objection could have been made to it. So if the allegations of the complaint had been positively stated and had been verified, an order to hold to bail must have been granted upon an application made to the proper office. (Code, §§ 179, 188.) I do not find any authorities in the courts of this State, which sustain the position that this complaint may be con- sidered as an action for a breach of warranty. None of the cases cited by the respondent's counsel are to that effect. In Moore v. Noble (53 Barb. 425), the complaint alleged that the defendant falsely and fraudulently represented the horse to be of a certain value and guaranteed him to be sound and free from disease. The court held it to be an action for a fraud, and that to entitle the plaintiff to re- cover he must prove the scienter. (See also Marshall v. Gray, 57 Barb. 414; McGovern v. Payn, 32 id. 83.) Walter v. Bennett (16 N. Y. 250) and Belknap v. Sealey (14 id. 147) are hardly authorities on the question of whether the complaint in this action is in tort or assumpsit. 172 PLEADING. They are authorities on the proposition that where the com- plaint is for a tort, the plaintiff establishing a case in as- sumpsit merely cannot recover. The precedent in 2 Chitty's Pleading (679, 8th Am. ed., from 6th Lond. ed.) and the case of Williamson v. Allison (2 East, 446), are chiefly relied on by the respondent. The precedent cited in Chitty, which is for ' ' a false warranty of a horse," does not sustain the claim. It omits the import- ant allegation that the seller well knew the representation to be untrue. The precedent also at page 279, " on a war- ranty of a horse to be sound," omits the same allegation. Both of these precedents contain the allegation used in all the old forms of assumpsit, that the defendant not regard- ing his promise, fraudulently intending to injure the plain- tiff, craftily and subtly deceived the plaintiff. The case of Williamson v. Allison is nearer to the point. The court hold that where all the allegations are made which are necessary to sustain an action in tort, if ^a war- ranty is also alleged, the tort may be disregarded and a recovery had in assumpsit. Dowdny v. Mortimer, cited in the same authority, held that the scienter must be proved, and in that case no express warranty was alleged. In my opinion, this case is not in accordance with the authorities and practice of this State, and should not prevail. The view of this pleading which I have taken is in ac- cordance with our improved system of pleading, abolishing all prior forms and requiring the party to make a " state- ment of the facts constituting the cause of action." (Code, 142.) In the present case the plaintiff made a statement of facts which did not constitute his cause of action. The Code never intended that a party who had failed in the perform- ance of a contract merely, should be sued for a fraud, or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct, and SCHOFIELD V. WHITELEGGE. 173 there can be no recovery as for a breach of contract, where a fraud is the basis of the complaint. jSee authorities {supra). Connaughty v. Nichols (42 N. Y. 83) is the only authority cited to the contrary, and it does not sustain that position. The judgment should therefore be reversed and new trial granted, costs to abide event. For example of a bad complaint intermingling allegations appropriate to three causes of action see Ross v. Pizer, 132 App. Div. 696. SCHOFIELD V. WHITELEGGE. 49 N. Y. 259. Appeal from judgment of the General Term of the ior Court in the city of New York, afl&rming a judg- In favor of defendant entered upon the decision of the at circuit dismissing plaintiff's complaint, and also affirming an order denying a motion for a new trial. The action was for the recovery of personal property. The complaint alleged that defendant had become possessed and wrongfully detained from plaintiff a piano of the value of $400, and demanded a return thereof, etc. The answer denied the possession of any property belonging to plain- tiff, and denied the wrongful detention and plaintiff 's own- . ership of the piano. Upon the trial, before the case was opened, defendant moved for a dismissal of the complaint upon the ground that it did not state facts sufficient to con- stitute a cause of action, which motion was granted, FoLGEB, J. The complaint in this action does not in terms, show any right or title in^^^he plaintiff upon which the former action of replevin would lie. That action could be maintained only by one who had the general or a special property in the thing taken or detained. That property must have been averred in the declaration, or it would not have sufficed the plaintiff's purpose. The chapter of the Code of Procedure, of ' ' The Claim and Delivery of Per- 174 PLEADING. sonal Property," was intended to supply the provisional relief wMch was theretofore obtained in the action of replevin. (See Commissioner's Eeport p. 169.) There was no intention to change the requisites to maintain the action. There was no change made. Indeed the Code as reported expressly required an affidavit from the plaintiff, where a delivery was to be made, that he was the owner of the property, or lawfully entitled to the possession thereof by virtue of a special property therein. Nor is it less necessary now than then, for the plaintiff to aver the facts which constitute his, cause of action. He must allege the facts, and not the evidence ; he must allege facts, and not conclusions of law. The plaintiff here alleges that the defendant wrongfully detains from him the chattel in question. If indeed that be true, then it must be that the plaintiff has a general or special property in the chattel, and the right of immediate possession. But unless he has that general or special property and right of immediate posses- sion, it cannot be true that it is wrongfully detained from him. The last, the wrongful detention, grows from the first, the property and the right of possession. The last is the conclusion. The first is the fact, upon which that conclusion is based. It is the fact which in pleading must be alleged. AMN^laere facts are stated in a pleading which militate with a f onclusion of law therein stated, the statement of facts will prevail. And is not the statement of a conclusion of law, without a fact averred to sustain it, an immaterial state- ment? A^U^ The plaintiff says that the defendant wrongfully detains from him the piano. The fact involved in that statement is that he detains it. Granted then, that he detains it. Why is it wrongful? Because the plaintiff is the owner by gen- eral or special right of property, and entitled to the im- mediate possession. But these are the facts which are to be shown. They have not been a^-erj^^d. How then can they be shown? .^CHOFIELD V. WHITELEGGE. 175 The plaintiff claims, however, that the averment in the answer denying detention, and denying ownership in the plaintiff, puts in issue those facts, and that the defect in the complaint is cured by that averment. He cites Bate v. Graham (11 N. Y. 237). But there the allegation in the answer was the affirmation of the very fact which it was objected, the complaint should have averred. There the omission from the complaint was of an allegation that the defendant maintained that a certain assignment of an in- solvent debtor was not fraudulent. The answer of the de- fendant made the very averment which was omitted from the complaint ; and the omission of which was the ground of the defendant's objection to the complaint. The court well held that the complaint might have been amended ; for both parties at the trial were mainlining the same fact. Here, however, the parties do not.^^ to n^intain the .same factf and that which the answer ^mrs is the "direct opposition or that which the plaintiff must establish to recover. Would the plaintiff take the averment of the answer into his com- ■plaint as a part of itj allegation? Then he would allege that .he is not the owner of the property, and that the defendant has not detained it from him. And then his complaint would show hina without cause of action.'<:2:::^^\^^^ '^- _ The same Wttsiderations are applicable to the lack of tlie averment of a demand and refusal; if the plaintiff's case is to depend upon a wrongful detention, without a wrongs ful taking in the first instance. The case of Levin v. Eussell (42 N. Y. 251) is cited by appellant. There are two facts which make it inapplicable here. There was in it no motion to dismiss the complaint for its insufficiency ; and proof was made at the trial without objection of facts making a cause of action. Again: The complaint did allege that the property was that of the plain- tiff. This does not appear in the report of the case in 42 N. Y. 251; and from the statement there one would think 176 PLEADING. that the complaint was without an allegation of the plain- tiff's ownership. On referring to the printed case, as it is found in the series of bound volumes of cases in this court in the State Library, the averment reads thus : ' ' The fol- lowing goods and chattels of the plaintiff." This is in exact accordance with the precedent for a declaration in replevin. The judgment should be afifirmed, with costs to the respondent. See Code, §§ 1720, 1721, for requirements as to pleading in replevin. SHEEIDAN V. JACKSON. 72 N. Y. 170. Eabl, J. On the trial of this action, after plaintiff had opened his case, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. He did not ask for leave to amend his com- plaint, but he excepted to the decision and appealed to the General Term, and then to this court, insisting all the time that his complaint was sufficient. Under such circumstances the complaint must be treated here as if it had been de- murred to, and the sole question to be considered here is whether it sufficiently states a cause of action ? It alleges that plaintiff " was, on the 19th day of. Novem- ber, 1856, entitled to the possession of, and the rents, issues and profits thereof, and has been since and still is entitled to the same," of seventy -five lots of land in the city of Brook- lyn, describing them ; that on or about the 26th day of Janu- arj', 1870, an action was begun in the Supreme Court be- tween the defendants Jackson as plaintiffs and the other defendants, excepting Cameron, as defendants, and that the parties to that action claimed as between each other some interest in these premises or the rents or profits thereof; that afterwards in that action defendant Cameron was ap- pointed receiver of the rents, issues and profits of the said SHERIDAN V. JACKSON. 177 premises; that subsequently rents and profits amounting to a large sum arising from the said premises came into his hands, and that plaintiff had demanded from him the rents and profits so received by him, and had been refused ; and then the plaintiff demanded relief, that the defendant Cameron account for all moneys received by him in the action in which he was appointed receiver; that he be re- strained from " paying over to any person or persons, or making any disposition of the said moneys," so received, or afterwards to be received by him ; ' ' that he be required to pay the said moneys into court, " or to the plaintiff, or to a receiver to be appointed in the action ; that such order be made as is just ; that a judgment and decree be made adjudg- ing and requiring the said moneys to be paid to the plain- tiff. No relief or judgment was demanded against any of the defendants but the receiver Cameron. The complaint does not allege any facts showing that the plaintiff was entitled to the rents and profits. It does not allege that he owned or ever possessed the premises, or that he owned the rents. The allegation that he was entitled to the possession of the land and to the rents and profits, is a mere allegation of a conclusion of law. The facts should have been alleged from which such a conclusion of law could have been drawn. (Pattison v. Adams, 7 Hill, 126; Scofield V. Whitelegge, 49 N. Y. 259.) There is a further defect. The complaint does not show any right in the plaintiff to intervene in the litigation be- tween the defendants. There is no allegation that any of the parties to that action claimed anything therein in hostility to him, or showing that he could in any way be damaged by that litigation, or bound by anything done or adjudicated therein. What right had he then to come into court and seek to take or control the moneys which they, in a litigation between themselves, had placed in the hands of a receiver to be disposed of in that action? 12 178 PLEADING. There is, therefore, abundant reason for holding that the complaint did not state facts sufficient to constitute a cause of action. For particular phrases held to be conclusions of law and, therefore, bad as pleadings, see Bliss' Ann. Code, § 481. VAN LEUVEN v. LYKE. 1 N. Y. 515. Jewbtt, C. J. It is alleged in the plaintiff's declara- tion ' ' that on the 27th day of November, 1844, at &c. the de- fendants were the owners of a certain sow and pigs, which sow and pigs, to wit, on the day and year aforesaid, to wit, at the place aforesaid, bit, damaged and mutilated and mangled a certain cow and calf of the plaintiff, so that said cow and calf both died, to the plaintiff's damage $50." To which the defendants pleaded for general issue. There was evidence given on the trial, .sufficient to warrant the jury in finding that the plaintiff's cow and calf were de- stroyed by the defendants ' sow and pigs in the manner set forth in the declaration, upon the land of the plaintiff, where the sow and pigs were at the time of committing the said injury. But there is no allegation in the declaration, or evidence given on the trial, that swine possess natural propensities which lead them, instinctively, to attack or destroy animals in the condition of the plaintiff's cow -nd calf. Nor is there any allegation or evidence that the de- fendants previously knew or had notice that their swine were accustomed to do such or similar mischief, or that the swine broke and entered the plaintiff's close and there com- mitted the mischief complained of. It is a well settled principle that in all cases where an action of trespass or case is brought for mischief done to the person or personal property of another by animals mansuetae naturae, such as horses, oxen, cows, sheep, swine, VAN LEUVEN V. LYKE. 179 and the like, the owner must be sho:ma_to have had notice f of their viciousness before he can be chargedJoecauseTuch i animals are not by natm^?~fiercB-Tjr-da^n§erous, and such \ notice must be alleged in the declaration ; but as to animals \ ferae naturae, such as lions, tigers, and the like, the person who keeps them is liable for any damage they may do with- out notice, on the ground that by nature such animals are fierce and dangerous. But this rule does not apply where L the michief is done by such animals while committing a( trespass upon the close of another. The common law holds a man answerable not only for his own trespass, but also for that of his domestic animals ; and as it is the natural and notorious propensity of many of such animals, such as horses, oxen, sheep, swine, and the like, to rove, the owner is bound at his peril to confine them on his own land, and if they escape and commit a trespass on the lands of another, unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass quare clausum fregit, though he had no notice in fact of such propensity. (3 Bl. Com. 211; 1 Chit. PL 70.) And where the owner of such animals does not con- fine them on his own land, and they escape and commit a trespass on the lands of another, without the fault of the latter, the law deems the owner himself a trespasser for having permitted his animals to break into the enclosure of tke, former under such circumstances. And in declaring against the defendant in an action for such trespass, it is competent for the plaintiff to allege the breaking and en- tering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff, and, upon proof of the allegation, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that the defendant had notice that his animals had been accustomed to do such 180 PLEADING. or similar mischief. The breaking and entering the close in such action is the substantive allegation, and the rest is laid as a matter of aggravation only. But in the ^case under consideration, there is no allega- tion, charging the defendants ' swine -with doing any act for which the law holds the defendants accountable to the plain- tiff without alleging and proving a scienter. Had the plain- tiff stated in his declaration such ground of liability, or had charged that the swine broke and entered his -close and there committed the mischief complained of, and sustained his declaration by evidence, I am of opinion that he would have been entitled to recover all the damages thus sustained ; but as he has not stated in his declaration either ground of liability, the defendants ought not to be deemed to have waived the objection by not making it specifically before the justice. I think the judgment should be affirmed. THAYER V. GILE. 42 Hun, 268. The complaint states, in substance, that on and after October 1, 1885, the plaintiff was a tenant in common with the defendant in some forty or fifty tons of hay, which were then in the possession of plaintiff in the buildings on defend- ant's farm; that the defendant subsequently fed up and used up some portion of said hay ; that on or about March 17, 1886, plaintiff asked for a division and for the one-half of the remaining portion of said hay, and the ' ' defendant refused to make such division, and refused the possession of any portion of said hay to plaintiff, and then and there claimed that the plaintiff had no interest in said hay, and that he, defendant, was the entire and absolute owner of said hay, and otherwise converted the same to his own use to the damage of plaintiff in the sum of three hundred dol- THAYEK V. GILE. 181 lars." The defendant demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. Landon, J. This complaint is very crudely drawn. It is redundant in statement of immaterial matters, and it lacks definiteness and certainty with respect to material matters. Nevertheless, it states in substance : that on the 17th of March, 1886, the plaintiff, as tenant in common with the de- fendant, was in possession of a quantity of hay (what was remaining of forty tons), which the defendant then wholly converted to his own use, to plaintiff's damage, etc. How large a quantity, what share the plaintiff owned, and its value, are left uncertain. Still, since the defendant converted it all, he converted the plaintiff 's share, and thus injure her to the extent of its value. There is an imma- terial allegation of a demand of one-half, but that is not an allegation that the plaintiff owned one-half; also of a division, but the plaintiff could take her own share without demand of the defendant. The material allegation is, the defendant's conversion. It is still good pleading to state facts according to their legal effect, unless the pleader so narrates the facts as to show that he has mistaken their legal effect, which is not quite the case here. Thus, it was not necessary for the plain- tiff to allege the details from which her tenancy in com- mon, or possession, or the conversion by the defendant would follow as their legal effect. These details are rather in the nature of the evidence, to be adduced upon the trial to support those three allegations. A complaintNmust contain a plain and concise statement of the facts. No statement can be plainer or more concise than the statement that the defendant converted the plain- tiff's hay. If the plaintiff gave a narrative of all the acts performed by the defendant in order to accomplish this conversion, it might be far from plain whether any con- 182 PLEADING. version was in fact aceomplislied. The details of the transaction may very much obscure the fact of conversion. Since the share of the plaintiff is not stated, it may be, that in order to establish conversion, the plaintiff will have to prove the loss, sale or destruction of the entire hay., (Lobdell V. Stowell, 51 N. Y. 70; Osborn v. Schenk, 83 id. 201 ; Dear v. Reed, 37 Hun, 594.) By using the word " con- verted ' ' the plaintiff has concisely condensed in a single word the notice to the defendant that whatever it may be necessary to prove she intends to prove it. It is objected that the allegation of conversion is a con- clusion of law and not of fact. Ordinarily, the narration of a transaction, whether by stating all the details of it or by stating these 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. Thus, A lent B a dollar is the fact, B owes A a dollar is the law. A converted B 's hay is a fact ; B 's liability to A, the law. But from a given state of facts the law will pro- nounce that A converted B 's hay. Is the statement of the conversion, therefore, the statement of a conclusion of law ? It is rather the statement of a fact, ascertained by the rules of law. From the facts given, the law presumes the'; fact required, but the presumption is only a rule of evi-\ dence, and, by the application of that rule, the fact required 1 is determined. The rule of evidence, by which the fact is sought is found, is not the fact itself.^ The rule is the in- strument or help through which the fact sought is dis- covered. If the rule is called a conclusion of law, then by means of the conclusion of law, the conclusion of fact is established. Judgment reversed, with costs of appeal and of court below. The defendant may have usual leave to answer. ROGERS V. THE CITY OP MILWAUKEE. 183 ROGERS V. THE CITY OF MILWAUKEE. 13 Wis. 682. By tlie Court, Paine, J. This action was brought to. re- strain the execution of certain tax deeds upon certificates of sales of the plaintiff's lands for taxes. The defendant demurred to ihe complaint as not stating facts sufficient to constitute a cause of action, and the demurrer wa s s us- tained, from which order this appeal was taken. It is undoubtedly true that a large part of the complaint is not good pleading. The plaintiff relied on an absence of preliminary proceedings, essential to the validity of the tax sales. But instead of averring either of his own knowl- edge or upon information and belief that such proceedings were not had, he only averred that he had searched in the proper offices for the evidence that they were had, and failed to find it. The only issue that could be made upon such allegations would be whether he had searched and found the evidence or not, which would be entirely immaterial. But while such was the character of a large part of the complaint, we think that there was one defect averred with sufficient directness to save the complaint from being de- murrable. It avers that the street commissioners were bound by law to give reasonable and timely notice, in order that the owners and occupants of lots on said street might do said work, and the plaintiff, on information and belief, denies that any such notice was given, etc. The giving of such notice was undoubtedly essential to the validity of the contracts on which the certificates were issued, and there- fore to the validity of the sales. And the want of such notice is positively alleged on information and belief. This seems to us sufficient to make out a cause -of action, and the order sustaining the demurrer must be reversed, with costs, and the cause remanded for further proceedings. 184 PLEADING. COOK V. WARREN. 88 N. Y. 37. The complaint alleged " that the defendant Thomas D. Hammond, on the 8th day of December, in the year ISffT at Mayville, N. Y., made his promissory note in writing, dated that day, whereby, by_t he nam e of T. D. Hamroond, six months after date, for value received, he p romise cijo pay to_W. P.JWhiteside, or_^rdsr, six hmidred_doUars^j|. thJbanking office of Gifford & Co., with interest, and that the same was duly indorsed by the said defendants_White- side and Warren, and that said Hammond then and there delivered the same to the said plaintiff. That when the said note became due, the same was duly presented at said banking office, the place where the same was made payable, for payment, and payment thereof then and there duly de- manded, which was refused; wh ereupon_ the..s_aid_nQte„ was , then and there duly protested for nonpayment; of all of which the said Hammond had due notice." — - The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action against the indorsers. Finch, J. We do not think this demurrer was frivolous. To justify an order which so determines, or a judgment founded upon such decision, the demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere in- spection, and indicates that its interposition was in bad faith. If any argument is required to show that the de- murrer is bad it is not frivolous. In this case the argument has not even satisfied us that the demurrer was not good. The complaint was on a promissory note, of which Ham- mond was maker, and Whiteside and Warren were indors- ers. The complaint alleges the making of the note, the in- dorsement thereof, and its delivery by the maker to> the COOK V. WABREN. 185 plaintiff, its due presentation for payment, demand and refusal thereof, and then adds, ' ' Whereupon the said note ■was then and there duly protested for nonpayment ; of all of which the said Hammond had notice. ' ' Here there was not only no express averment that notice of protest for non- payment was given to the indorsers, but the averment that such notice was given to the maker tends to exclude the idea of an intention to aver a notice given also to the indorsers. It is claimed that the allegation that the note was " duly prMested^forjoonpaymfiiit, "-was itself a sufficient allegation of-Jiotic e to the indoxsers. The only authority for this doctrine, as applied to a pleading, appears to be a decision at Genera;l Term ("Woodbury v. Sackrider, 2 Abb. Pr. 402) which was itself founded upon Coddington v. Davis, de- cided in this court. (1 Comst. 186.) The question in the latter case was not one of pleading, but upon the construction of a letter waiving protest. Reading the letter in the light of the surrounding circumstances, it was very proper to give broad and popular signification to its terms. Upon the same principle it is easy also to say that a statement in the notice sent, that the note had been protested for nonpayment, was sufficient to include payment duly demanded and refused, since such protest implies the previous demand and re- fusal. But these cases do not settle the rule of pleading, nor directly support the doctrine advanced in the single case which is brought to our notice, and which holds a pleading like tliis sufficient. That case, resting upon no pertinent authority, must be tested by sound principles applicable to the question. Thus tested, it is not easily justified. We ought not to encourage loose or ambiguous plead- ing. The complaint is required to state, plainly and concisely, the facts constituting a cause of action. The pleader may not aver a legal conclusion as an equivalent for the group of separate facts from which it is an inference. The allegations should be such, and so stated, as to permit 186 PLEADING. a distinct traverse and evolve a definite issue. Although pleadings are to be construed liberally, that does not neces- sarily 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 or modified by an inaccurate popular use. Such use is apt to be shifting and variable; adequate for ordinary purposes, but not so stable or precise as to safely crowd out and take the place of legal definitions which furnish a more accurate and un- varying standard. These suggestions all tend toward a conclusion that this demurrer was well taken, and the com- plaint defective as alleged. By the common law, and__bj] statutory definition, a protest is one thing, and notice of its to the indorsers is quite another; and a note may be pro-( tested without notice of such protest being given to the.inr dorsers. The one act does not necessarily assume or imply'^ the other. Where the same word has different meanings, one the result of judicial or statutory definition, and the other founded simply upon an inaccurate popular use, the latter can only be adopted in construing a pleading whei^e it plainly appears from other averments or the whole tenor of the paper that such was the sense in which it was employed. It is not intended to deny or question the doctrine of Allen V. Patterson (7 N. Y. 476), that under the liberal rule con- struction established by the Code, a word capable of two different meanings should have a reasonable construction, and be so construed as rather to support than defeat the pleading. That is true as a general rule where the use of the word in dispute is purely ambiguous, but where it has a fixed legal meaning, and other parts of the complaint indi- cate that it is used in that sense, and there is nothing from which an intention to use it in a different or popular sense can be fairly implied, there is no such ambiguity as requires an arbitrary choice of meanings to support the pleading, and the sense plainly intended must prevail. Where a contrary COOK V. WAEEEN. 187 rule ■would end it might be difficult to foresee. It would in- troduce doubt and ambiguity in the room of certainty and precision, and make a pleading lose its utility as a means of accurately evolving an issue to be tried. It is plain that the pleader in the present case did not himself understand that his averment of due protest covered all the facts necessary to fix the indorsers, for he alleged every one of those facts, separately and in detail, except the last. The indorsementi of the note, its maturity and due presentment, the demand, of payment and refusal, the protest for nonpayment, audi the unnecessary allegation of service of notice of nonpay-i ment on the maker, were all stated; everything in fact ex-j cept the one remaining circumstance of notice to the \ indorsers. It is better to adhere to definite and fixed standards in pleading, and as far as possible to encourage so much of system and accuracy as is consistent with the liberal rule of the Code ; and thus to require such a plain statement of the facts as will be unambiguous, present issues clearly, enable them to be distinctly and plainly traversed, and avoid legal conclusions as a substitute for a whole group of issuable facts. We think it is the better opinion in this case that the complaint was insufficient, and the demurrer well taken. At common law a man was presumed to have made the most favorable statements possible for himself and any ambiguity was construed against the pleader. This is the rule under the Code as to matters of substance unless taking the least favorable construction would make the pleading entirely insufficient. See Clark v. Dillon, 97 N. Y. 370. In construing a pleading neither the summons nor the verification may be resorted to. See Niekerson v. Canton Marble Co., 35 App. Div. 111. A verified pleading must be so construed as to render all its parts har- monious. Pyle V. Harrington, 4 Abb. Pr. 425. 188 PLEADING. HUNT V. DUTCHER. 13 How. Pr. 538. Demueeee. Action upon a justice's judgment. _ The complaint states the recovery of the judgment as fol- lows : That the plaintiif s, in the month of May, 1850, com- menced an action in a justice 's court against the defendant, before Ichabod Thurston, Esq., who was a justice of the peace, and had full authority and jurisdiction over both the person of the defendant and the subject-matter of the action, to try the same, and that such proceedings were thereupon had that on the 4th of May, in said year 1850, judgment was entered in said action by said justice in favor of the plain- tiffs, and against the said defendant for the sum of $43.60 damages, $1.12 costs, and that said judgment still remains in full force and effect — not reversed or annulled, or set aside; neither has the same been paid or satisfied, and de- manded judgment for the amount of the judgment and interest. To this complaint the defendant demurs : for that it does not state facts sufficient to constitute a cause of action, and specifies also : L.That there is no allegation of fact in said complaint of personal service of process on the defendant, or other fact showing that the justice ever acquired jurisdiction of the person of the defendant. 2, That there is no allegation that the justice acquired jurisdiction of the subject-matter of the said action, or that the judgment had been or was duly given or made. E. Daewin Smith, Justice. A justice's court is a court of special and limited jurisdiction. In pleading the judgment of such a court, it is necessary at common law to show that the court had jurisdiction of the subject-matter and of the person of the defendant. (3 Com. 193; Turner v. Eoby, 7 Hill, 37.) HUNT V. DXJTCHEE. 189 The complaint in this case does not show that the justice had either jurisdiction of the person or subject-matter, ex- cept by way of mere allegation, which is clearly insufficient. It does not show what the cause of action was, that the court may see that it was within the jurisdiction of the justice, and does not show either the service of process upon the defendant, or that he appeared before the justice. The demurrer is clearly well taken, unless the Code helps the plaintiff out of the difficulty. Section 161 of the Code* is as follows : "In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or deter- mination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction." The plaintiff has not used the language of this section. He says, in the complaint, that such proceedings were had before the justice that "judgment w&^_ entered in said action. ' ' This is clearly not equivalent to the words that such judgment has been or was " duly given or made." It may not be necessary, and probably is not, to use in the pleading the precise language of the statute, but words to the same effect and substance must be used. (7 Barb. 84.) To say that a judgment is entered, is merely to allege the single fact of the entry of the judgment, without including an averment that it was properly or lawfully done. All this is embraced in the language of the Code, that the judg- ment was " duly given or made." The word entered, or perfected, may be equivalent to the word made, or given; but the word duly is most essential. It can hardly be dis- pensed with and satisfy the terms of the statute. I can imagine no single word that will supply its place. The * Code Civ. Proc, § 532. 190 PLEADING. allegation that the judgment was entered, would be proved by simple evidence of the actual rendition of a judgment. But the allegation that the judgment was '' duly given, or made," could only be proved by establishing, on the trial, the facts conferring jurisdiction upon the justice, and show- ing that the judgment was, in all respects, lawfully and regularly obtained, or rendered. The statute gives a short and simple form of pleading a judgment; and it is safest, if not indispensable, that the statute language be adopted and used when the party seeks to avail himself of this provision of the Code, instead of following the common-law forms in such cases. The demurrer is well taken, and judgment must be given for the defendant thereon, with leave to the plaintiff to amend, on payment of costs. Held in Halstead v. Black, 17 Abb. Pr. 227, to apply to foreign judg- ments. CLEMENS V. AMERICAN EIRE INS. CO. 70 App. Div. 435. Williams, j. * * * The action was brought upon a policy of insurance to recover for the loss of household furniture destroyed by fire. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The particular points made were : First. That there was no sufficient allegation of the rendering of proofs of loss to the defendant pursuant to the terms of the policy. Second. That there was no allegation that sixty days had elapsed after the proofs of loss were received by the defendant before the action was commenced. These were conditions precedent to a right to recover in the action. There was no specific allegation as to rendering proofs of loss, except that the plaintiff filed a complete inventory CLEMENS V. AMERICAN PIEE INS. CO. 191 of the property destroyed and injured, with the quantity and cost of each article and the amount claimed thereon, which inventory ever since had been and still was in the possession of the defendant. The policy, a copy of which was annexed to the com- plaint, specified in detail what the proofs of loss should contain, and the inventory alleged failed very materially to comply with the provision of the policy. It failed to furnish anything like the amount of information required by the specifications as to the proofs of loss. If it had been alleged that this inventory »was rendered as the proofs of loss, and that it had been received and retained by the defendant without objection and that the defendant had required no further or other proofs of loss to be furnished, it might have been sufficient ; but the allegation of the com- plaint fell far short of this. It was manifestly insufficient as a specific allegation of performance of this condition precedent to the right to recover. Nor was this defect cured by the general allegation under section 533, Code of Civil Procedure, which provides : "In pleading the per- formance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state generally that he or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance. ' ' The word c^wZ^was omitted from the complaint, and there was, therefore, a failure to comply with the section quoted, and plaintiff was entitled to no benefit thereunder. 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. * * * There was no allegation in the complaint that sixty days had elapsed since the proofs of loss were received by the defendant before the action was commenced. Such an al- 192 PLEADING. legation was necessary. (Porter v. Kingsbury, 5 Hun, 598; 71 N. Y. 588; Eeining v. City of Buffalo, 102 id. 312.) In the first case it was held that a complaint in an action upon an undertaking upon appeal given pursuant to section 348 of the old Code, which failed to allege service of notice on the adverse party of the entry ■ of the order or judg- ment affirming the judgment appealed from, ten days be- fore the commencement of the action, was defective; that the notice was a condition precedent to the commencement of the action, and in the absence of the allegation the com- plaint did not state a cause of action. The Code prohibited the commencement of the action until ten days after the service of the notice. In the other case it was held necessary to allege in the complaint, in an action against the city for a tort, the pres- entation of the claim to the common council and the expira- tion of forty days thereafter, before the commencement of the action; that the provision of the charter requiring such presentation of claim and prohibiting the bringing of the action until forty days had elapsed created a condition precedent. The court there said, in referring to Porter v. Kingsbury: " There the act required to be performed, constituted no part of the cause of action, but was pro- vided, as in this case, to shield the parties liable from cost and trouble, in case of their willingness to pay the claim without suit after notice given. It is immaterial whether a condition be imposed in the statute giving a right of ac- * tion, or be provided by contract, or exists by force of some principle of common or statute law, the complaint must, by the settled rules of pleading, state every fact essential to the cause of action, as well as those necessary to give the court jurisdiction to entertain the particular proceeding." In the case we are considering it was specifically pro- vided by the policy that the loss should not become payable until sixty days after proofs of loss were received by the TOOKER V. AKNOUX. 193 company, and that no suit should be sustainable upon any claim until after full compliance with all requirements in the policy. The rule laid down in the case cited is applicable to this case. The views here expressed lead to the conclusion that the judgment should be affirmed, with costs. Note. — " It is quite well established that where a specific act is to be done by the plaintiff, or any number of acts by way of condition prece- dent, he must show in pleading precisely what he has done by way of performing them. 1 Chit. PI. 278, ed. of 1838. Id. 282. If a deed is to be given, or money to be paid, or services to be performed, he must either aver in so many words, that the deed has been given, the payment made, or work done ; or that each by name was tendered and refused, with such circumstances as are materiaMn point of law to raise the corre- sponding obligation. * ** '"'^This enables the court to see whether the defendants be in fault; and presents matter on which he can take a definite issue. The allegation of performing everything, or offering to perform everything, involves in itself many possible acts of performance, and invites an issue on all of them. It cannot be seen on what the parties go down to trial." Glover v. Tuck, 24 Wend. 160. f^boigfiHfv. ARNOUX. 76 N. Y. 397. The facts alleged in the complaint were as follows: "First. — That on or about the 25th day of July, 1872, at the city of New York, James Watson made and delivered to the plaintiff for value his certain draft or order, in the words and figures following : " Ne^ York, July 25, 1872. "William Henry Arnoux: " Dear Sir. — Please pay to William T. Tooker the sum of five hundred and fifty-six (556) dollars, out of the money to be realized from the sale of the houses on the north side of 46th Street, city of New York, and known as Nos. 305, 307 and 309 East 46th Street. 13 "JAMES WATSON." 194 PLEADING. " Second. — That thereafter, and on or about said day, the plaintiff presented said draft or order to said Arnonx, who thereupon for value duly accepted the same. / ' ' Third.— That on the 6th day of -August, 1872, said Arnoux paid on account thereof one hundred dollars, and there is now due on said draft or order, from the defend- ant, the sum of four hundred and fifty-six dollars, with interest from said 25th day of July, 1872. ' ' ^ And a judgment was asked for that amount. The answer admitted the acceptance of the order, the payment of $100, but denied that there was any money realized from the sale of the houses, or that there was due plaintiff the sum claimed. At the beginning of the trial, defendant's counsel moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied, and said counsel duly excepted. Plaintiff of- fered evidence of the sale of the houses specified in the order. This was objected to by defendant's counsel on the ground that this was not averred in the complaint. No application was made for the amendment of the complaint. , The court directed a verdict for plaintiff, which was ren- \dered accordingly. Eapallo, J. At the opening of the trial the defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied and exception taken. The reason as- signed was that the defendant should have demurred. This position is in conflict with section 148 of the Code and with many decisions of tMs court. If the complaint was bad in substance the objection was available on the trial and the motion to dismiss should have been granted. (Schofield V. Whitelegge, 49 N. Y. 259; Coffin v. Reynolds, 37 id. 640; Emery v. Pease, 20 id. 62.) TOOKER V. AENOUX. 195 We think the complaint was clearly bad. The sale of the houses mentioned in the order and the receipt of money from such sale were conditions precedent to the defend- ant's liability on his acceptance, and those facts should have been averred. In the' absence of such averments no in- debtedness on his part to the plaintiff appeared. (Hunger V. Shannon, 61 N. Y. 251, 260.) ^ The denial in the answer of the receipt of any such moneys did not supplement the complaint in this respect. In Bate v. Graham (11 N. Y. 237), the answer contained an affirmative allegation of the fact which the complaint should have averred, but in Schofield v. Whitelegge, as in the pres- ent case the answer contained a denial of the essential fact, and it was held that such denial did not cure the defect in the complaint. The complaint in the present case cannot be sustained by virtue of section 162 of the Code,* which provided that in an action upon an instrument for the payment of money only, it should be sufficient to set forth a copy of the instrument and allege the amount due thereon. It was decided by this court in Conkling v. Gandall (1 Keyes, 231), that section 162 was not applicable where the liability of the defendant was conditional, and depended upon facts outside of the instrument; that in such case the facts must be averred. The objection to the complaint was not waived upon the trial. The defendant not only took the objection of the in- sufficiency of the complaint before any evidence was taken, but when the plaintiff offered evidence of the fact that the houses had been sold, he objected to such evidence on the ground that the fact had not been alleged in pleading. We see no ground upon which this case can be distin- guished from the numerous cases in which it has been de- * Code Civ. Proc, § 534. A mortgage, a check or an insurance policy cannot be pleaded in the short form provided by this section. Judd v. Smith, 3 Hun, 190. 196 PLEADING. cided that a party may upon the trial lawfully demand a dismissal of the complaint on the ground that it does not state facts sufficient to constitute a cause of action. ■ — The court below, at General Term, conceded that if the trial judge had granted the motion to dismiss it would have been bound to sustain his actiony The necessary conse- quence of this concession is that in denying the motion the trial judge erred. It was not a question of discretion, but of legal right, whether the complaint should be dismissed, and if it would not have been error to grant the motion, it was error to deny it. It is true that an amendment of the_ complaint might have been allowed in the court below, but no amendment was made or asked for, and the objection to the complaint having been taken in due season and ovei>- ruled, the correctness of the ruling must be tested by the^ complaint as it stood, and not as it might have been changed by amendment. The judgment must be reversed and a new trial ordered, costs to abide the event. BIAS V. SHORT. 16 How. Pb. 322. By the Court. Emott, J. If the words uttered by the defendant, imputed to the plaintifL feloniously receiving stolen goods, with3_guilty knowledge of the theft, they are actionable per se. Whether they did so, was a proper ques- tion for the jury under proper instructions, and upon a suitable state of pleadings. I see no objection to the in- structions on this point given in the court below. The main question is, whether the complaint was so defective as not to state any cause of action in the uttering these words? The rule is, that words are to be taken in the sense in which they are generally used, and would be naturally understood. ' When the words require a knowledge of extrinsic facts, BIAS V. SHOET. 197 either to show their meaning or their applicability to the plaintiff, the rule formerly was, that all such facts must be both averred in pleading and proved. The only change made by the Code in this respect, is to dispense with such aver- ments of extrinsic facts, showing the applicability of the slander to the plaintiff. It is still necessary as itjormerly was, to aver and prove any facts necessary to explain the meaning of the word used. It is also necessary, of course, to allege that the words were spoken of and concerning the plaintiff. In the case at bar the complaint contains a colloquium, alleging that the slanderous words were spoken of the plain- tiff, and there cannot be said to be any extrinsic facts which if proved would aid in understanding or explaining the words. The most which can be contended for the defend- ant is, that the words stated in the complaint and proved by the witnesses, do not distinctly imply a charge of re- ceiving goods knowing them to he stolen, so that the com- plaint merely stating their publication concerning the plaintiff, in the language of Baron Alexander, in Hall v. Blandy (1 Younge & Jer. 488), might spread one entire and distinctly slanderous charge on the record. Obviously, however, aU that was needed to make this complaint full and perfect, even to such a requirement, was an innuendo stating the meaning of these words to be a charge of guilty reception of stolen property. If the objection had been taken by demurrer, perhaps it might have been fatal; but I think when such an objection is first taken at the trial, and then the question of the meaning of the words is fairly left to the jury, and they find them slanderous, we ought not after the verdict to interfere. This strikes me as being very clear, because the innuendo for which the objection calls, if it had been in its proper place in the complaint, would not have required or admitted any evidence to sus- tain it. 198 PLEADING. Where the objection taken at the trial is for the want of a material averment, which the plaintiff must prove in order to sustain his action, unless the judge permits an amendment on the spot, the objection is as fatal as it would be on demurrer. But it is well settled in our courts, that the meaning of the words used by the defendant cannot be proved by the opinions of witnesses, or their statement as to how they understood them. Although the meaning of the words and their application are questions for the jury on the evidence, yet it must be upon proper evidence, that is, upon proof of facts only. The words alleged here, are not cant or slang phrases, or words used in a sense peculiar to any class of people, and, therefore, requiring an averment of their cant meaning, or the sense in which any classes of persons used them. There was nothing, therefore, in which this complaint is deficient, which would have permitted any additional evidence, and there was no evidence admitted on the trial, which required any addi- tional statements in the complaint to justify it. A judgment should not be reversed under such circumstances, after a verdict, for the want of a merely formal averment in the pleading. The verdict aids the defect, even if the want of such averment would have been good cause of demurrer. Justification is a complete defense; mitigation is a partial c'efense and must be so pleaded. §§ 508, 535. BLANK V. HARTSHORN. 37 Hun, 101. Appeal from an order of the Steuben Special Term, requiring the plaintiff to elect on which of the three counts in the complaint he will proceed to trial, etc. Smith, P. J. The first count alleges that from about 1st of May, 1884, to 1st January, 1885, the plaintiff pastured,- fed and took care of, and furnished hay and other [ BLANK V. HABTSHOEN. 199 feed f or, fift^-two .kead of cattle belonging to the defend- ants, at the defendants' request, and that such pasturing, etc., was reasonably worth $600. The second count alleges that the plaintiff pastured a like number of cattle belonging to the defendants, under a special agreement made between the plaintiff and the defendants about 1st May, 1884, by the terms of which the defendants agreed to take said cattle to the city of New York and sell them on or before 1st October, 1884, and after deducting the purchase-price of the cattle and the cost of transportation, to pay the plaintiff two- fifths of the remainder of the proceeds of the sale. The third count alleges a like agreement made between the de- fendants and one Peters, and that Peters had assigned his cause of action thereunder to the plaintiff. The order appealed from requires the plaintiff to elect on which count he will go to trial, and to amend his com- plaint accordingly, and upon failure to elect, orders the complaint tO' be stricken out. Except in one particular, hereinafter mentioned, the three counts relate to the same transaction. On that ground the respondents ' counsel contends that the pleading violates the mandate of the Code, that the complaint must contain '' a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition." (Sec- tion 481, subd. 2.) But there may be more than one cause of action arising out of the same transaction, and if the several causes of action are such as may be united under section 484, their joinder does not necessarily vitiate the complaint. Where it can be seen that the statement of each cause of action is probably needful in order to prevent a failure of justice, in consequence of a variance between the pleading and proof, we think such statement, provided it be plain and concise, should not be regarded as " unneces- sary repetition " within the meaning of the Code. Thus, in an action for labor and services alleged to have been per- 200 PLEADING. formed under a special contract at an agreed price, if it ap- pears that, from the circumstances of the case, it is doubt- ful whether the alleged contract can be satisfactorily es- tablished, we think the spirit of the Code does not prevent the adding of a count for the same labor and services upon a quantmnjneruit. In the present case the first count is of / that nature and it embraces a period from the 1st of Octo-' ber, 1884, to 1st of January, 1885, not covered by the special agreement as set out in the other two counts. Upon these grounds we think the first and second counts may be per- mitted to stand. As to the necessity of the third count the plaintiff, in his affidavit used on the motion, avers that the farm on which he pastured the cattle was rented by Peters for the plaintiff's use; that the contract with the defendants set out in the complaint was first negotiated and talked over by Peters and the defendants when the plaintiff was not present, and that it will probably be a question on the trial whether the plaintiff can claim under the contract, as the undisclosed principal of Peters, or as his assignee. In these circumstances we think the third count also should be al- lowed to stand to enable the plaintiff to present the several lines of proof upon which he relies. ~ By this disposition of the matter the defendants cannot be harmed, except in being deprived of the opportunity of nonsuiting the plaintiff for a variance in proof, or of driving him to a motion for leave to amend. A special ob- ject of the Code is to remove all such meshes and pitfalls from the path of litigants. The defendants may interpose f as many defenses as they have to each cause of action, in the same manner and with the same effect as if such cause ' of action stood alone. These views are in harmony with the cases of Longprey V. Yates (31 Hun, 432), decided in the old fourth depart- ment, and the authorities there cited. In Velie v. Insurance h- SECOE V. STUKGIS. 201 Company (65 How. Pr. 1), Westbrook, J., speaking of the different grounds of recovery presented by the two counts in that case, said: " If either or both are tried, the proof upon each ground of recovery stated may be close and conflicting. A jury of twelve men may be divided in opin- ion as to which one is established, while all may unite, some for one reason and some for another, in the conclusion that the plaintiff is entitled to recover. ' ' And the Court of Ap- peals has held in a recent case, that " it is not necessary that a jury in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence; if the conclusion may be justified upon either of two in- terpretations of the evidence, the verdict cannot be im- peached by showing that part of the jury proceeded upon one interpretation and a part upon the other. (Murray v. Ins. Co., 96 N. Y. 614.) We think the order should be reversed and motion de- nied, with $10 costs and disbursements. SECOR V. STUEGIS. 16 N. Y. 548. The business of ship^capenters was carried on in one part of a building, under the direction of two of the partners in a firm, and the business of ship chandlers in another part of the same building, under the direction of the third part- ner. Separate books of account were kept by different clerks in the two branches of business, and the pa,rtners con- fined themselves respectively to the management of one of the branches, without personally taking part in the other. "Work was done and materials furnished from the carpentry branch in the repairing and equipping a brig, upon the order of her captain, to the amount of $139, and imme- diately thereafter goods and articles of ship-chandlery were 202 pleadi:ng. furnished to the same brig, and on the order of the same captain, at different times through a period of a month, amounting to $521. The firm brought an action in the United States District Court for the collection of the former amount and recov- ered a judgment which the owner of the brig paid. The firm also attached the brig in a separate action on the claim of $521. The owners of the brig gave the bond in suit to procure the release of the vessel and as a defense to the action upon the bond pleaded the prior judgment in bar. Plaintiffs had judgment below. Steong, J. It is not controverted that the account, the amount of which is sought to be recovered in this action, was due to the plaintiffs, and a lien on the vessel, at the time of the application for the attachment, and also at the time of the execution of the bond on which this action is founded; but it is insisted that the said account, and the account for which judgment was recovered in the District Court of the United States, together, constituted a single cause of action, and that the judgment for part of it is a bar to a recovery in this action for the residue. The answer does not, in express terms, allege that the cause of action in the suit in the District Court was the same as that in the present suit, but it was treated in the reply as contain- ing substantially that allegation, and must, therefore, be so regarded by the court. It was essential, in order to present the question raised, that the identity of the cause of action in the different suits should, in some form, be averred in the answer. (3 Chit. PL 928, 929; Philips v. Berick, 16 Johns. 137, 140.) The principle is settled beyond dispute that a judgment- concludes the rights of the parties in respect to the cause of action stated in the pleadings on which it is rendered, whether the suit embraces the whole or only part of the demand constituting the cause of action. It results from SECOK V. STUKGIS. 203 this principle, and the rule is fully established, that an en- tire claim, arising either upon a contract or from a wrong, cannot be divided, and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abate- ment of the others, and a judgment upon the merits in either will be available as a bar in the other suits. (Farring- ton V. PajTie, 15 Johns. 432 ; Smith v. Jones, Id. 229 ; Philips V. Berick, 16 id. 137 ; Miller v. Covert, 1 Wend. 487 ; Guern- sey V. Carver, 8 id. 492; Stevens v. Lockwood, 13 id. 644; Colvin V. Corwin, 15 id. 557; Bendernagle v. Cocks, 19 id. 207, and cases there cited.) But it is entire claims only which cannot be divided within this rule, those which are single and indivisible in their nature. The cause of action in the different suits must be the same. The rule does not prevent, nor is there any principle which precludes, the prosecution of several actions upon several causes of ac- tion. The holder of several promissory notes may maintain an action on 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 upon separately. It makes no difference that the causes of action 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, ex- cept that in proper cases, for the prevention of vexation and oppression, the court will enforce a consolidation of the actions. It is not, as will be seen by the cases, always easy to de- termine whether separate items of claim constitute a single or separate cause of action: and this difficulty, connected with neglect, in some instances, of proper attention to the principle of the rule under consideration, has led to some loose expressions and confusion in the books on this subject. Farrington v. Payne was a plain case of an indivisible cause 204 PLEADING. of action. A bed and bed quilts were taken at the same time and by the same act, and a recovery in trover for the quilts was held to be a bar to a recovery in trover for the bed. In Smith v. Jones, actions were brought for goods sold and delivered, the plaintiff, in one, claiming to recover for one barrel of potatoes, and in the other for two barrels of the same article, all sold at the same time. The court held that the demand could not be divided into separate suits. This was also a plain case of one cause of action. Miller v. Covert, in which the same rule was applied, was a case of a sale of hay, under a contract, delivered in parcels. The demand was held to be entire and indivisible. In Guernsey v. Carver, the plaintiff declared on a book account consisting of items of merchandise delivered be- tween the 20th of July and the 27th of August, 1828, amount- ing to $2.35. The defendant pleaded a former suit for the same identical cause and causes of action. It was proved in the Common Pleas that the plaintiff had an account against the defendant, consisting of twenty different ar- ticles of merchandise, delivered on fourteen different days between the 4th of June and the 27th of August, 1828, amounting to between $5 and $6 ; that he commenced a suit against the defendant, and exhibited an account of items delivered between the 1st of June and the 19th of July, 1828, amounting to $2.74; that the defendant pleaded a tender in such suit, and obtained judgment for costs. The plaintiff then sued for the balance of such account, viz., for items delivered between the twentieth of July and the twenty-seventh of August. The Common Pleas decided that on a running account, where no special contract was made at the commencement of the account, and where items have been delivered on such account at different time's, without any intermediate agreement, each separate delivery formed a separate and distinct cause of action, and th'at separate suits might be maintained on each separate delivery; and the plaintiff recovered judgment. On appeal to the Su- SECOB V. STUEGIS. 205 preme Court the judgment was reversed. Tlie court, by Nelson, J., after stating that it was settled in that court that if a plaintiff bring an action for part only of an entire and indivisible demand, the judgment in that action is a con- clusive bar to a subsequent suit for another part of the same demand, says: " This case comes within the reason and spirit of that principle. The whole account being due when the first suit was brought, it should be viewed in the light of an entire demand, incapable of division, for the purpose of prosecution. The law abhors a multiplicity of suits. According to the doctrine of the court below, a suit might be sustained, after the whole became due, on each separate item delivered, and if any division of the account is allowable it must no doubt be carried to that extent. Such a doctrine would encourage intolerable oppression upon debtors, and be a just reproach upon the law. The only just and safe rule is to compel the plaintiff, on an ac- count like the present, to include the whole of it due in a single suit." The reasoning of the learned justice would ! make every account consisting of different items, the whole of which is due, an entire demand incapable of division for the purpose of prosecution irrespective of every other con- sideration. It excludes the idea that it is necessary the claims should have arisen out of a single transaction, or be connected together by contract. This, in my opinion, is carrying the doctrine in question far beyond its just limits. 'Stevens v. Lockwood was a case similar to the last, and decided upon similar views. These cases may have been rightly decided, but I cannot assent to all the reasons given for the decisions. In Colvin v. Corwin, two suits were brought for lottery tickets sold the defendant. On the trial of the first the defendant admitted he had bought the tickets alleged to have been sold to him, and judgment was rendered for the plaintiff. The judgment was set up as a bar in the sec- ond suit, and on the trial it appeared that the tickets 206 PLEADING. claimed in the suits were delivered to tlie defendant by two different agents of the plaintiff, at different ofi&ces occupied by them, at different times, and it was held by the Supreme Court that the previous judgment was a bar to a recovery. It is manifest that this decision rests on no sound prin- ciple, and is not law. A plainer case of distinct independent causes of action could hardly be presented. Bendernagle v. Cocks was an action for breaches of cer- tain covenants contained in an indenture of lease. A plea in abatement was interposed of an action pending upon the same lease for the alleged breach by the defendant of cove- nants therein. It is stated in the reporter's note that all the causes of action had accrued at, the time of the bring- ing of the first action. The plaintiff replied that the cove- nants, for the breach of which the first suit was brought, were other, distinct and different from the covenants for the breach of which the second suit was brought. The de- fendant demurred, and the Common Pleas overruled the demurrer, but the Supreme Court reversed the judgment. Cowen, J., who delivered the opinion of the feourt, reviews and comments upon many of the cases, after which he makes the following observations: " I admit that the rule does not extend to several and distinct trespasses or other wrongs, nor, as we have seen, to distinct contracts. "It goes against several actioiis for the same wrong, and against several actions on the same contract. All damages accru- ing from a single wrong, though at different times, make but one cause of action, and all debts or demands . already due by the same contract make one entire cause of action. Each comes under the familiar rule that if a pSrty will sue and recover for a portion, he shall be barred of the residue. Proof of that fact would sustain the common issue pre- sented in Bagot v. Williams, that the plaintiff had before impleaded the defendant, and recovered for the same identi- cal cause of action, ' ' etc. The true distinction between demands or rights of ac- SECOE V. STUEGIS. 207 tion wMch are single and entire, and those wMch are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of differ- ent acts or contracts. Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however nu- merous the items of wrong or damage may be; in respect to contracts, express or implied, each contract affords one _and only one cause of action. The case of a contract con- taining several stipulations to be performed at different times is no exception; although an action may be main- tained upon 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 con- tract. Where there is an account for goo,ds sold, or labor performed, where money has been lent to 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 sepa- rate rights of action exist, will, in each case, 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 run- ning account, it may be fairly implied that it is in pur- suance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties. But there must be either an express contract, or the circumstances must be such as to raise an implied contract, embracing all the items, to make them, where they arise at different times, a single or entire Remand or cause of action. Applying this test to the present case, it is very clear that the two accounts did not constitute an entire claim, but, 208 PLEADING. on the contrary, that they were several and formed two several causes of action. The business of the plaintiffs consisted of two branches, which were designed to be and were kept entirely distinct, in each of which one of the ac- counts was made, and an arrangement was entered into under which one of the accounts arose anterior to the open- ing of the other account. Here was no express contract connecting the two accounts ; and the facts, instead of war- ranting the presumption of such a contract, show that sepa- rate agreements only, one in regard to each account, were intended. *4& ^ ^ jf. ^ ^ J^ ^ '7V W 'TV TT TP ^n* TT 't' Judgment affirmed. See also Goldberg v. Eastern Brewing Co., 136 App. Div. 692. In Perry v. Dickson, 85 N. Y. 345, plaintiff having been wrongfully dis- charged recovered damages therefor in a Justice's Court. In a subsequent action to recover wages due at the time of his discharge it was held that the former action was not a bar to the action for wages. Where tenant from year to year held over several years, held, in Kennedy v. City of New York (196 N. Y. 19), that each year a new contract arose and the landlord might bring a separate action for each year's accrued rent. RODEEMUND v. CLARK. 46 N. Y. 354. CoNVEEsioN. Clark & Ward being joint owners of a ves- sel, Clark sold the entire vessel to Malcohn. Ward for- bade the sale and took possession of the vessel., Malcolm sued to recover possession and the vessel was seized by the sheriff. Ward gave a counter-bond and the vessel was redelivered to him. Afterward Malcolm, claiming the ves- sel, libelled her as owner in the United States District Court, obtained a judgment in that proceeding by default, and the marshal delivered the vessel to him. Ward then assigned to plaintiff all his interest in the vessel and all causes of action against Clark for selling her. Plaintiff, then brought this action and recovered in the court below. RODEEMUND V. CLAEK. 209 FoLGEE, J, It must be taken as one of the facts in this case, that there was an absolute sale, of one equal undivided half of the sloop, by the defendant to John W. Ward, and that Ward became the unconditional owner of that one-half. The referee has so found, and there is testimony to sustain the finding. When then, the defendant sold the whole of the sloop to Malcolm, ignoring the rights in her of Ward, his act author- ized Ward to sue for a conversion of the property, and this, although the sloop was not put beyond the reach of Ward. (21 Wend. 72.) Ward then had two courses, either of which he might pursue. He could sue the defendant for the conversion, or he could assert his right of possession, by keeping a per- manent possession, or regaining possession if it was inter- rupted. (Id.) The effectually taking of either of these two courses, precluded him from taking the other. If he actually insisted on keeping the possession of the vessel, and refusing to recognize the sale by the defendant, he could not sue the defendant for the conversion. There does not seem to be any doubt that he did so insist. At the time of the sale by the defendant to Malcolm, the sloop was fast in the ice, and in the actual possession as much of one tenant in common as of the other. As soon as she was free from the ice, Ward took actual possession of her, and con- tinued it until legal proceedings were taken by Malcolm, for the delivery of the sloop to him. Ward still insisted upon the ownership of an interest in the sloop, and upon retaining the possession of her, by requiring a return of the possession of her to him by the sheriff. It is not per- ceived, how Malcolm could have obtained the possession of the sloop to the exclusion of Ward, if the last named had persisted in his defense to that action, and so had retained the possession, the right to which he had asserted. The defendant could pass to Malcolm no greater right in her 14 210 PLEADING. than lie liad himself, and that was to an equal undivided half. So far Ward had elected his course and had succeeded in it, and the proceedings of Malcolm had been ineffectual to dispossess him. Ward had taken his position. He had chosen to assert, and to act upon the assertion, that the defendant had no right to sell the whole of the sloop, and that his attempt to do so had not divested, and should not divest, the interest of Ward in her. In our judgment he had then gone so far, as that he could not afterward entirely change his position, and that neither he nor the plaintiff, his assignee, recognizing the act of the defendant as having worked the destruction of his half of the sloop, could yield to the claim of Malcolm, asserted in the action in the United States court, submit to the seizure in the behalf of Malcolm of the vessel in that action, and then have a right of action against the defendant for the conversion. The mode Ward had first chosen had, until then, been effectual to preserve to him his property and the possession of it. And when that was interfered with by Malcolm, in his suit in the United States court, it was the duty of Ward and the plaintiff not to abandon the property, but to per- sist in a defense of his right. / Where there exists an election between inconsistent rem- / edies, the party is confined to the remedy which he first '\^ prefers and adopts. The remedies are not concurrent, and 1 the choice between them being once made, the right to fol- ' low the other is forever gone. (Morris v. Eexford, 18 N. Y. ] 552.) Any decisive act of the party, with knowledge of his I rights and of the fact, determines his election in the case j of conflicting and inconsistent remedies. * * * Judgment reversed. See also Conrow v. Little, 115 N. Y. 387. At common law a mortgagee liolding a bond and mortgage had to elect between the remedy at law on the bond and the remedy in equity on the mortgage. But see Code, §§ 1628-1630. BAKKLEY V. WILLIAMS. 211 BARKLEY v. WILLIAMS. 30 Misc. 687. Demubeeb. HiscocK, J. Defendants' demurrer is upon the ground that plaintiff has united in his complaint two causes of ac- tion which cannot be so united, viz. : One cause of action upon contract and another one based upon section 71, Code, for wilful misconduct by the defendants as attorneys in the prosecution of an action. Plaintiff seeks to recover damages for the alleged short- comings of defendants in prosecuting an action for him. Two causes of action are not separately stated in his com- plaint. It is perfectly well settled, however, that the failure to so state them does not prevent demurrer upon the grounds here urged if in fact two causes of action are set forth and improperly united. No question has been made by plaintiff upon the argu- ment but that two causes of action are alleged. I think none could well be. There is no dispute but that one of these is based upon section 71, Code, already referred to, and which in substance amongst other things provides that an attorney who wilfully delays his client 's cause with a view to his gain shall forfeit treble damages. A dispute arises whether the other cause of action is upon contract for the failure of defendants to properly conduct the action. This view is urged by defendants. Plaintiff's counsel, upon the other hand, insists that it is in tort for the negligent and improper conduct of defendants. Inasmuch as the determi- nation of this question may have some bearing upon the disposition of the main issue I will consider it briefly. This cause of action which is stated first alleges a dis- tinct and affirmative agreement and undertaking upon the part of the defendants to commence, prosecute and conduct 212 PLEADING. the action in question in a proper, skillful, etc., manner. It then alleges that they acted in a negligent, unskillful and improper manner. The word " negligent " may not have been an especially appropriate word for the pleader to use, but there can be no doubt that the clause last quoted was intended by him to set forth a breach of the contract just before alleged. Thus we have plaintiff basing this cause of action upon a specific express agreement and contract. He does not for the basis of his complaint rely upon any implied contract even, or upon those obligations and duties which the law imposed upon defendants when they were retained as attorneys. JThere seems to me no doubt but that he states a cause of action on contract instead of for negligence and tort. I Tort ' ' denotes an injury inflicted otherwise than by a mere breach of contract," and negli- gence is the inadvertent failure to use ordinary care in observing or performing a noncontractual duty implied by law. Am. & Eng. Ency. of Law (1st ed.). If I am right in the foregoing conclusion we have plaintiff attempting to gather into one complaint a cause of action upon contract and another one to recover a statutory for- feiture or penalty. An examination of section 484, providing what causes of action may be united in one complaint (in view of the defini- tion given of the terms " personal injuries " and " injuries to personal property " occurring in that section, by Code, section 3343, subdivisions 9 and 10) makes it clear that these two causes of action can be united, if at all, only under subdivision 9 of said section 484. That subdivision allows the joinder of two causes of ac- tion brought to recover "^pon claims arising out of the same transaction, or transactions connected with the same subject of action," provided it appears upon the face of the complaint that they do both belong to such subdivision and are consistent with each otherN BAEKLEY V. WILLIAMS. 213 It does not appear upon the face of the complaint that the two claims made by plaintiff arose ,out of the same transaction. One claim arose out of the alleged wilful delay by defendants, and the other out of their alleged im- proper and unskillful conduct. The transaction made up of the acts constituting wilful misconduct would not neces- sarily be the same as that constituting negligence or unskill- fulness. In fact, it naturally would not be, and the com- plaint contains no allegation that it was the same. This attempted union of causes of action must, therefore, seek support upon the theory that they arise out of " transac- tions connected with the same subject of action." The courts have so many times criticized the uncertainty of the language just quoted and labored to define its mean- ing, that it is probably not desirable that I should at length attempt to do either. N. Y. & N. H. E. R. Co. v. Schuyler, 17 N. Y. 592, 604. A text writer who has considered the subject most care- fully and analytically concludes that this last provision was not intended to apply to actions at law at all, but only to those in equity. Pom. Code (3d ed.), § 475. It is at least established beyond much doubt that its con- struction and application are to be largely measured by ex- pediency and the circumstances of each case rather than by any inflexible rule. "Wiles v. Suydam, 64 N. Y. 173, 177. I am impressed that it should not be so interpreted as to allow plaintiff to unite in one complaint the causes of action which he has sought to. Their nature is essentially and entirely different, and this is so even though the first one should be regarded, as urged by plaintiff's counsel, to be for negligence instead of upon contract. One is based upon a statute ; the other upon a failure to discharge a legal obligation. One seeks to recover a statutory penalty or forfeiture; the other mere damages. The line of proof which would sustain one would not establish the other. 214 PLEADING. They are inconsistent and in that respect conflict with the requirements of the Code. One implies and alleges wilful, intentional commission of acts for which when established a triple liability is imposed here and a criminal liability elsewhere. Penal Code, § 148. The other cause of action is based upon and legally charges an inadvertent omission to meet an express con- tract or discharge an implied duty. Definition of negli- gence. Am. & Eng. Ency. of Law. The methods by which judgment upon one cause of ac- tion could be enforced would be different from those ap- plicable to the other cause of action, if I am correct that it is upon contract. It would be utterly impracticable to try them together. While for wilful delay plaintiff would be entitled to treble damages, it would be the duty of the jury to find only single damages, leaving the same so found to be increased by the court. Code, § 1184. Assuming that a verdict should be found for plaintiff, how is any one, plaintiff, defendants, or court, to know whether it is for damages arising from a breach of duty, express or implied, to be enforced by an ordinary judg- ment and execution, or for a tort criminal in its nature, to be multiplied by three and enforced if necessary by a body execution. Without further discussion of this point it seems to me that the demurrer should be sustained both upon reason and upon the authorities. Wiles v. Suydani, supra; Sweet V. Ingerson, 12 How. Pr. 331; Anderson v. Hill, 53 Barb. 238, 246. The main contention of plaintiff 's counsel upon this argu- ment could not be considered because the demurrer did not specifically refer to such element. It is true that under section 490 defendants were compelled to specifically point out the defects relied upon. But I think they have suffi- ciently done this. The demurrer states in substance that DEEXEL V. HOLLANDER. 215 plaintiff lias united a cause of action for breach of contract and one for treble damages under section 71 ; that this ap- pears upon the face of the complaint, and that such union is improper. Section 484 prescribed the test by which to decide whether plaintiff's practice has been proper or im- proper. Defendants are entitled to show, I think, in sup- port of their claim that the causes of action cannot be united under that section, first, because they do not both come within any one subdivision, and secondly, because they are inconsistent. Eeferring to the causes of action and charg- ing that the attempt to unite them was improper, I do not think it was necessary for the defendants to further say that it was improper because they did not both come within any one class, and because they were inconsistent. The demurrer is sustained. If A assaults B and at the same instant slanders him, B cannot join the causes of action under subdivision 9 of section 484. Defendant may either demur or move to compel plaintiff to separately state and number such causes of action. See Paul v. Ford, 117 App. Div. 151. For cases where causes of action have been properly joined under this subdivision, see 1 Rumsey's Prac. (2d ed.) 411-414. DREXEL V. HOLLANDER. 112 App. Div. 25. McLaughlin, J. The defendants appeal from an inter- locutory judgment overruling their demurrer to the com- plaint upon the ground that the causes of action alleged are inconsistent and have been improperly joined. The material facts alleged, and admitted by the demurrer, are that a written contracfwas entered into between the parties by which the defendants agreed to sell, and the plaintiff to purchase, an automobile for $8,500 — $5,500 to be paid in cash and the balance by the delivery to the de- fendants of the second-hand automobile at a valuation of $3,000 ; that the plaintiff performed on his part by paying 216 PLEADING. the amount of cash stipulated and delivering the old auto- mobile; that thereafter the defendants were unable to de- liver the new automobile, and the contract, by mutual arrangement, was rescinded, and defendants returned to the plaintiff the $5,500 cash paid by him, but neglected and refused to return the old automobile. The first cause of action set out in the complaint sets forth the transaction between the parties, the rescission of the agreement, a demand for the return of the old automo- bile and the defendants ' refusal, and that they ' ' wrongfully converted the same to their own use " to plaintiff's damage of $3,000. In the second cause of action substantially the same facts are pleaded, except as to the demand of the old machine, defendants ' refusal to return and its wrongful con- version, and alleges an agreement by the defendants, in consideration of the cancellation of the original contract, to return to the plaintiff the purchase-money paid, viz., $8,500, no part of which had been repaid except the sum of $5,500, and judgment is demanded for the balance. The appellants contend that the two causes of action pleaded are inconsistent, and are, therefore, improperly joined. "Whether or not this contention be sound depends upon the construction to be put upon section 484 of the Code of Civil Procedure. The first cause of action being in tort and the second on contract, they do not fall within either of the first eight subdivisions of this section and can- not be joined under those subdivisions. If properly joined it is because they come within the provisions of subdivision 9 of the section, which provides that causes of action may be united if they arise " upon claims arising out of the same transaction, or transactions connected with the same subject of action and not included within one of the fore- going subdivisions of this section. ' ' The section, however, further provides as follows : ' ' But it must appear, upon the face of the complaint, that all the causes of action so DKEXBL V. HOLLANDER. 217 united belong to one of the foregoing subdivisions of this section ; that they are consistent with each other. ' ' It may be assumed, as contended in the opinion of Mr. Justice Ingraham, that the facts pleaded show the two causes of action arise out of the same transaction, but are they " consistent with each other "? To this inquiry it seems to me there can be but one answer. The first cause of action proceeds upon the theory that the title to the auto- mobile was in the plaintiff, and that the defendants wrong- fully deprived him of it by converting the same to their own use. The second cause of action proceeds upon the theory that the title to the automobile was, by agreement, in the defendants. The causes of action are not only inconsistent, but con- tradictory. The proof to establish one would destroy the other. For conversion plaintiff would have to prove that at the time the conversion took place he either had the title or was entitled, by reason of a special property therein, to possession. To recover under the second cause of action plaintiff would have to prove a breach of contract ; that the title to the automobile was in defendants, they having pur- chased it from him at the agreed price of $3,000. The measure of damage in one case would be the value of the automobile at the time the conversion took place, which might be more or less than $3,000, while in the other case the measure of damage would be the amount which the de- fendants agreed to pay or apply on the purchase-price of the new machine. It is difficult to see how these two causes of action could be tried together, unless the court received evidence first as to one and then as to the other, and if such trial were had it is equally, if not more, difficult to imagine how the trial court could properly submit the subject to the jury. The truth is, the nature of the two actions is essentially different. The facts to establish the liability are unlike; 218 PLEADING. the measure of damage is different, and the defense is dif- ferent. For these reasons we think that the interlocutory judg- ment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend on payment of costs in this court and in the court below. A cause of action for libel cannot be joined with one for slander.' Nor k : may different persons speaking the same defamatory words be joined as i defendants in one action in slander. Where plaintiff suffers personal injuries and damage to property by . , the same negligent act of defendant two causes of action arise which | \ may be joined. Mclnerney v. Main, 82 App. Div. 543. A cause of action held by or against defendant individually cannot be joined with one by or against him in a representative capacity. Wiles v. Suydam, 64 N. Y. 173. 2. Demurrer. Code Civ. Proc, §§ 487-499, 520, 964. MARIE V. GARRISON, 83 N. Y. 14. Andeews, J. * * * A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts al- leged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and pre- cision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by rea- sonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred. * * * The remedy for indefiniteness is not by demurrer, but by motion. (Code, § 546; Seeley v. Engell, 13 N. Y. 542.) " Indefiniteness," says Chitty, " is in gen- eral only matter of form. " (1 Chitty's PI, 717.) The rule MOOEE V. CflARLES E. MONELL CO. ET Al,. 219 by whicli, under the Code the sufficiency of a complaint is to be determined is stated by Denio, J., in Zabriskie v. Smith (13 N. Y. 330). He says: " It is sufficient that the requisite allegations can be fairly gathered from all the averments in the complaint, though the statement of them may be argumentative, and the complaint deficient in tech- nical language." A demurrer is in legal effect " a declaration that the party will go no further because his adversary has shown nothing against him." Webb V. Vanderbilt, 39 N. Y. Super. 4. Even after a demurrer has been overruled it is a conclusive admission of all the material facts in the pleading demurred to for all the purposes of the action until it is withdrawn by consent or order. Nat. Con. Co. v. Hudson R. W. P. Co., 110 App, Div. 133. But a demurrer does not admit the construction put upon a contract or statute by the pleading demurred to, nor the correctness of inferences drawn from facts admitted or alleged, nor conclusions of law, nor imma- terial allegations, but only the truth of such facts as were properly stated therein. See Bogardus v. N. Y. Life Ins. Co., 101 N. Y. p. 336, where the contract alleged in the complaint was held to be admitted by a demurrer, but not plaintiff's construction of the contract, although that was also alleged in the complaint; and Angel v. Van Schaick, 30 St. Rep. 714, where the answer set up a statute of Pennsylvania and then construed it and a demurrer was held to admit the statute but not defendant's con- struction of it. The demurrer does not admit what the court can judicially notice to be untrue. It admits liquidated damages, but not unliquidated damages. MOORE v. CHARLES E. MONELL CO.!et::al. 27 Misc. 235. Demueeee by defendants to the complaint. Teuax, J. The complaint alleges that the defendants executed! the agreement annexed to the complaint. That agreement contains a provision to the effect that the de- fendant corporation mil make a note, payable on demand to the order of plaintiffs' intestate, for the sum of $14,471.17, with interest, and that after having been in- dorsed by the party of the second part it will deliver it to 220 PLEADING. the party of the first part, the plaintiffs' intestate, and that the party of the second part will indorse the said note so made as aforesaid, and will deliver the same to the said party of the first part. The complaint further shows that pursuant to said agreement the defendant cor- poration duly executed and delivered their promissory note in writing and sets forth in full a copy of said note with the words, " endorsed, Charles E. Monell." Perhaps this is not a very artistic way of alleging that said note was indorsed by said Monell, but I am of the opinion that the allegation that the note was so indorsed is in effect con- tained in the complaint. " To sustain a demurrer to a complaint," the Court of Appeals said, in Marie v. Garrison (83 'N^ Y. 14), " it is not sufficient that facts are imperfectly or informally averred, or that it lacks definiteness and precision, or that the ma- terial facts are argumentatively averred ; it will be deemed to allege what can by reasonable and fair intendment be implied from the allegations." I am, therefore, of the opinion that, by virtue of section 114 of the act in relation to negotiable instruments (Laws of 1897, chap. 612), the defendant Monnell became liable to the payee as indorser.l The demurrer interposed is joint in form, by both the defendants. It is well settled that if a complaint states a cause of action against either defendant, such a demurrer must be overruled. The defendant Monell, however, contends that the com- plaint shows that the note set forth in it is ultra vires as against the defendant corporation, and that, therefore, he is not liable as an indorser. If the making of the note is an act which the corporation had no power to do, still such act was not in itself illegal, and having been authorized by all the stockholders of the corporation it becomes a valid act of the corporation and binding upon it. Kent v. Quick Silver Mining Co., 78 N. Y. 186. PEOPLE V. BANKER. 22l "A bank," says the Court of Appeals, in the case last cited, " has no authority from the State to engage in benevolent enterprises ; and a subscription, though formally made, for a charitable object would be out of its powers ; but it would not be otherwise an illegal act; yet if every stockholder did expressly assent to such an application of the corporate funds, though it would still be in one sense ultra vires, no wrong would be done, no public interest harmed ; and no stockholder could object, or claim that there was an infringement of his rights, and have redress or pro- tection. Such an act, though beyond the power given by the charter, unless expressly prohibited, if confirmed by the stockholders could not be avoided by any of them to the harm of third persons. ' ' It seems to me that these words are peculiarly applicable to this case. Demurrer overruled. PEOPLE V. BANKER. 8 How. PR. 258. From opinion of Hareis, J., page 261. '' But the defendant claims the right to have the com- plaint also examined, and if that shall be found defective, to have judgment in his favor upon the demurrer. * * * It was expressly declared by the 148th section [Code of Pro.J that all objections to the complaint which had not been taken by demurrer or answer, except only those which involved the jurisdiction of the court, and the sufficiency of the cause of action, should be deemed to have been waived by the defendant. Of course, the objections so waived could not be made available upon the demurrer to the answer. If therefore it is allowable to attack the complaint at all, it is 222 PLEADING. only to show that the court has not jurisdiction of the action, or that it states no cause of action. ' ' Baxter v. McDonnell, 154 N. Y. 436; Henriques v. Yale, 28 App. Div. 354. Demurrer must be to the whole of a cause of action or defense. Holmes V. Northern Pacific R. Co., 65 App. Div. 49. If to a complaint containing separate causes of action it will be over- ruled if any one of the causes of action is suffioEnt. Hale v. Omaha Nat. Bk., 49 N. Y. 626. So to an answer containing separate defenses. SECOR V. PENDLETON. 47 Hun, 281. Appeal from an interlocutory judgment sustaining a demurrer to plaintiff's complaint. *# *** ** ** Daniels, J. The demurrer was served to the plaintiff's complaint upon two grounds, the first being the objection that there was a defect of parties plaintiff in the action, and the other that the complaint did not state facts sufficient to constitute a cause of action. The second objection was directed in part to the insufficiency of the averment that the plaintiff had been appointed administrator of the estate of the intestate by any tribunal having authority to make the appointment in this State. What the complaint alleged upon this subject was that " letters of administration were duly issued and granted unto plaintiff, who is in fact alone entitled to the possession of and has sole power as ad- ministrator, etc., to collect the assets and liquidate the busi- ness affairs of said firms. ' ' It was not stated in the com- plaint that the intestate died leaving property in this State, or that letters of administration had been issued upon his estate by any surrogate having that authority within this State. But the right of the plaintiff to maintain the action SECOK V. PENDLETON. 223 was left to rest wholly upon the allegation that letters had been duly issued and granted to him. To maintain the sufficiency of this allegation, reference has been made to sec- tion 532 of the Code of Civil Procedure. But this section can be attended with no such effect. For to bring the allegation within its provision that the judgment or decree relied upon was duly rendered or given, it should be made to appear that it was done in a proceeding before some court or judicial tribunal. As much as that is required, to main- tain the force and effect of letters of administration, by section 2591 of the same Code. * * * It was an essential fact upon which the right of the plain- tiff to maintain the action depended, and it should have been averred to disclose and maintain that right. But it will not result from this defect in the statement of the plaintiff's authority to sue, as the representative of this estate, that the judgment can be sustained, for the de- murrer was not framed in such a form as to take advantage of it. It was not a deficiency in the statement of the cause of action, but it was a failure on the part of the plaintiff to show that he had legal capacity to sue ; and the demurrer, to be effectual, should have been in that form according to subdivision 2 of section 495 of the Code of Civil Procedure. As it was framed it did not disclose the existence of any legal capacity on the part of the plaintiff to maintain the action. In Sheldon v. Hoy (11 How. 11) the objection was raised by the statement in the demurrer that it did not appear that the plaintiff was the administrator of the goods, chattels and credits of the deceased intestate, which, though not in the language of the Code, was substantially an assertion of the objection that the plaintiff was without legal capacity to sue. * * * But in Hafner, etc.. Company v. Grumme* it was con- sidered and held by Mr. Justice Bradley that a demurrer to the complaint, as failing to state facts sufficient to constitute *10 Civ. Pro. 176. 224 PLEADING. a cause of action, will not raise this objection under this other section of the Code. The complaint, together with the agreement annexed to and formis^H^ part of it, did disclose a cause of action in favor of the plaintiff as administrator. * * * By failing to present the objection, by the demurrer, that the plaintiff had not the legal capacity to recover the demand, the objection has been waived. (Code of Civil Pro- cedure, § 499.) And that waiver will permit the plaintiff, as administrator, to maintain this action, notwithstanding the defective averment of his appointment to act as such. ***** * # Judgment reversed. The absence of the allegation required by § 1775 is not a demurrable defect. But see Gen. Corpn. Law, § 15, and Welsbach Co. v. Norwich Gas & El. Co., 96 App. Div. 52. DE PUY V. STRONG. 37 N. Y. 372. The complaint averred that the plaintiffs were the owners of certain undivided interests in the lands in ques- tion, and that the defendants had trespassed thereon. The defendants demurred, on the ground of the nonjoinder of the other tenants in common. The demurrer, however, was overruled, with leave to answer, upon terms. The defend- ants then put in an answer, insisting, among other things, upon the nonjoinder of necessary parties plaintiff. At the first trial of the cause, the plaintiffs had a verdict for $30 damages ; but the judgment was reversed at general term and a new trial awarded, on the ground that tenants in common could not sever in an action of trespass for an injury to the lands held by them in common. And on a sec- ond trial, the plaintiffs were nonsuited on the same ground. DEPTJY V. STRONG. 225 The judgment of nonsuit was sustained at general term, and a motion for a new trial denied ; whereupon the plain- tiffs appealed to this court. FxjLLEKTON, J. (after stating the case). It must be con- ceded that, before the Code, the rule in this State was that tenants in common must join in actions to recover for in- juries to the realty. (Austin v. Hall, 13 Johns. 286 ; Low v. Mumf ord, 14 id. 426 ; Decker v. Livingston, 15 id. 479 ; Hill V. Gibbs, 5 Hill 56 note.) This rule has not been altered by the Code. The only change it has made is in the mode of tak- ing advantage of a defect of parties. Under the old system, the only remedy was by plea in abatement, and if that were not interposed, a tenant in common could still recover. The defendant could show on the trial that there were others interested in the claim, not by way of bar, but to limit the plaintiff's recovery to his aliquot part of the damages sus- tained. Now, the defendant may have his remedy by demurrer, if the defect appear on the face of the complaint, or by answer, if it does not. The only question in this case, as I view it, is whether, when the defect of parties appears on the face of the com- plaint, the defendant can omit to demur, and take advan- tage of it by answer, and this point seems to be well settled by authority. (Denison v. Denison, 9 How. Pr. 247; Osgood V. Whittlesey, 10 Abb. Pr. 134; Ingraham v. Baldwin, 12 Barb. 18; Baggott v. Boulger, 2 Duer 169; Zabriskie v. Smith, 13 N. Y. 336.) In this last case, Judge Denio, in discussing the question, remarks: "A dilatory de- fense, which a plea in abatement is considered to be, is not favored, but he that is entitled to avail himself of it, must interpose it promptly, according to the estab- lished forms. Here the facts were fully disclosed by the complaint, and the defendant could have demurred. The authority to object by way of answer is, in terms, limited to cases where the fact does not appear in the prior 15 226 PLEADING. pleading. When, therefore, the last section (§ 148), which I have quoted, declares, that if the objection is not taken by demurrer or answer, it shall be considered as waived, it means, that if it be not taken by demurrer, when that mode is proper, or by answer, in cases where that is the appropri- ' ate method, it is waived. This construction will give full effect to all the language, and will, besides, compel the de- fendant to take his ground with the promptness inculcated by the rule of pleading to which I have referred." This question was again considered in this court, in Merritt v. Walsh (32 N. Y. 690), and Zabriskie v. Smith was there cited as settling the rule. The question is, therefore, no longer open for consideration. Where a demurrer can be interposed, for a defect of parties, the defendant is con- fined to that remedy alone, and it is only where evidence is necessary to make the defect apparent, that an answer to that point is permitted. The complaint in this action distinctly alleges that each of the plaintiffs is the owner in fee of a specified fractional part of the lands on which the trespasses were committed, the sum of which parts is much less than the whole of the lands; thereby admitting that there were other parties jointly interested with the plaintiffs in the claim sought to be recovered, and thus bringing the case directly within the rule established. The defendants were, therefore, right, in the first instance, in interposing a demurrer to the com- plaint, and when it was overruled, they should have cor- rected the error by an appeal. Having omitted to do so, they have acquiesced in the judgment, and are concluded by it. If the merits of that decision were before us in this controversy, we should correct the error, but they are not, and the case stands precisely as if no demurrer had ever been interposed. That being so, and holding that the ques- tion could not be raised by answer, the plaintiffs were at liberty to recover their aliquot proportion of the damage SEAMANS V. BAKENTSEN. 227 proved on the trial. The judgment of the General and Special Terms should be reversed, and a new trial granted, costs to abide the event. But see Osterhoudt v. Supervisors, 98 N. Y. 239, 243. Under the Code the court is bound to take the objection, even on appeal, when a proper ease is presented. City Eq. Co. v. Elm Park Realty Co., 135 App. Div. 856, SEAMANS V. BARENTSEN. 180 N. Y. 333. Ctjllen, Ch. J. Plaintiff declared on an oral contract made in the latter part of March, 1900, whereby the de- fendant for a term of one year commencing on the 1st day of April, 1900, agreed to purchase the milk produced on the plaintiff's farm at a specified price, and claimed to recover damages for breach of said agreement. The de- fendant answered making a general denial and pleading spe- cially the Statute of Frauds. When the case was brought on for trial the defendant moved for judgment on the plead- ings on the ground that the agreement declared upon was void under the Statute of Frauds. The motion was denied and an exception duly taken. When evidence was offered to prove the contract the defendant again objected that a contract not to be performed within a year must be estab- lished by written proof. Over defendant's objection and exception the evidence was admitted. The case was sub- mitted to the jury on the disputed questions of fact, and a verdict rendered for the plaintiff. The judgment entered on that verdict was affirmed by the Appellate Division, and an appeal taken from such afifirmance to this court. The judgment below cannot be sustained. The contract on which the plaintiff has recovered was unquestionably void under the Statute of Frauds. Its invalidity not only appeared on the face of the complaint, but was expressly pleaded in the defendant's answer. The motion for judg- ment on the pleadings and the objection to the admission 228 PLEADING. of the plaintiff's testimony sufficiently raised the question of the invalidity of the contract. The learned Appellate Division seems to have affirmed the judgment of the Trial Term on the ground that as the invalidity of the contract appeared on the face of the complaint the defendant's ob- jection to it could be taken by demurrer only, and was waived by the answer. This position is untenable. Section 488 of the Code of Civil Procedure specifies eight different causes of demurrer. It is entirely clear that the objection to the complaint in this action falls within the eighth clause, to wit : ' ' That the complaint does not state facts siifficient to constitute a cause of action." This the learned counsel for the respondent conceded on the argu- ment. By section 498 of the Code, when any grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer. By section 499 an objection taken neither by demurrer nor answer is deemed to have been waived, except the objection that the complaint does not state facts sufficient to constitute a cause of action. The objection taken by the appellant at the opening of the trial was, therefore, taken in due time, and his motion for judgment on the pleadings should have been granted, for by pleading the Statute of Frauds in his answer his condition could not be worse than if he had not set it up at all. The learned court below justified its disposition of the case by our decision in Crane v. Powell (139 N. Y. 379). There it was held that a complaint not showing whether the contract declared on was oral or written, the Statute of Frauds to be available to defendant must be pleaded. That decision does not touch the point presented by this appeal. There is, however, to be found in the opinion this sentence: "When the defect in the plaintiff's cause of action appears on the face of the complaint, the defense must be interposed by demurrer." " Must " in the opin- SEAMANS V. BAEENTSEN. 229 ion should be " may." Whether the text as it appears in the reports is a typographical error, a mistake of the copy^ ist or a slip of the learned judge writing the opinion, is immaterial. If the last be the fact, it was merely obite?', for the point was not in any way involved in the case, and we could not decide away the express provision of the Code. From opinion of Cullen, J., in Braner v. Oceanic Steam Navigation Co., 178 N. Y. 339, 343 : " * * * We think the alleged agreement which was not to be per- formed within the term of one year was void under the Statute of Frauds. It is urged that the defendant is not in a position to raise this objec- tion, the statute not havitig been pleaded. Ever since the decision in Crane v. Powell (139 N. Y. 379) the law has been settled in this state, whatever uncertainty there may have been on the subject before, that to avail himself of the defense of the Statute of Frauds the defendant must in a proper case plead the statute. It is to be borne in mind, however, that in the ease now before us the plaintiff declared on a written contract and ' the statute concerns oral contracts only ; written contracts, of what- ever nature, are untouched by its provisions.' (Browne on Frauds, § 344a.) It is difficult to see how the defendant could plead that a written contract was not reduced to writing nor any note or memorandum thereof made in writing. If it be possible for such a plea to be true, it can be true only in the sense that it charges that the written contract was not made at all. This, however, the defendant has sufficiently pleaded, for it has specifically denied the allegation of the complaint that a written contract was exe- cuted. Proof by the plaintiff of an oral contract instead of a written con- tract did not constitute any such variance as required the court on the trial to dismiss the complaint. It did not change the cause of action, and if necessary the court could have amended the complaint to conform to the facts proved. But the extension of such a favor to the plaintiff could not in any respect deprive the defendant of its rights. Therefore, when the oral contract was proved either in lieu or in support of the written one declared on in the complaint, the defendant could properly raise the objection of the statute by a motion to dismiss or for the direc- tion of a verdict." 230 PLEADING. PIERSON V. McCURDY. 61 How. Pr. 134. Laweence, J. I am of the opinion that the demurrer interposed by the defendant cannot be sustained. The demurrer is upon three grounds : First. That there is a defect of parties defendant. Second. That two causes of action have been improperly united, to wit, a cause of action as for a conspiracy by the defendant, and a cause of action on contract by the defendant to account as trus- tee. Third. That the complaint does not state facts suffi- cient to constitute a cause of action. As to the last ground of demurrer, the defendant cannot prevail, unless it is apparent from an examination of the complaint, taking all its allegations to be true, that no cause of action whatever is stated. And the fact that the plain- tiff may in his complaint have demanded relief to which he is not entitled, or may have misconceived the nature of the judgment which the court should pronounce upon the facts set forth in his complaint, does not make the complaint bad upon demurrer, if those facts entitle him to any judgment or any relief. This has been so often held that it seems hardly necessary to cite authorities. * * * Without reciting in detail the allegation in the complaint in his case, I deem it sufficient to say that it appears to me that enough facts are stated to show that the plaintiff is entitled to some relief against the defendant. It is alleged in substance that, knowing that the stock of the company in which he was a trustee was greatly impaired and de- preciated in value, he became a party to a transaction by which he knowingly and illegally received the trust funds of the Mutual Protection Company in payment for that stock, and that with such knowledge he disbursed the money thus received to himself and others in payment for such stock. That he also received $25,000 for his services in PIEESON V. MCCUEDY. 231 acting in the capacity of stakeholder of the moneys and stock pending the consummation of the agreement between the parties, and also paid to the president of the Widows and Orphans ' Company $10,000, in pursuance of the agree- ment alleged in the complaint. In other words, the facts stated in the complaint, in my opinion, show a fraudulent conspiracy or scheme on the part of the defendant and the others referred to in the complaint to obtain the trust moneys of the Mutual Protection Company by means of a sale to the latter which he knew to be illegal. * * * He was bound to know under the law of the State that the Mutual Protective. Company was prohibited from in- vesting its funds in the stock of the Widows and Orphans ' Company, the market value of that stock being far below par. And I agree with the counsel for the plaintiff that the extravagant price paid for the stock, independently of all other considerations, raises a presumption of fraud which would be alone sufficient to sustain the complaint. It follows, therefore, that the demurrer on the ground that the complaint does not state facts sufficient to consti- tute a cause of action must be overruled. Is there a defect of parties defendant for the reason that the others who are alleged to have been engaged in a scheme in pursuance of which the defendant received and disbursed the moneys mentioned in the complaint are not made parties defendant in this action? I think not. If my theory of the complaint is sound, the parties who joined with the defendant in the alleged fraud were joint tort feasors with the defendant, and severally as well as jointly liable to the plaintiff as the receiver of the Mutual Pro- tection Company, and it is at the option of the plaintiff to sue any one, all, or such number of the tort feasors as he may choose. * * * Nor does the fact that equitable relief is demanded by the plaintiff affect the question as to parties. As already / 232 PLEADING. stated, the nature of the relief demanded does not affect the plaintiff's right to maintain this action, if in any con- ceivable point of view a cause of action against the defend- ant is disclosed by the facts set forth in the complaint. Be- sides, the rule in this respect as to wrongdoers is the same in equity as at law. * * * The objection that two causes of action have been im- properly united I do not regard as well founded. But one cause of action is stated in the complaint, to wit, the alleged acts or scheme to which the defendant was a party, and by means of which he knowingly and illegally became pos- sessed of the trust property of the Mutual Protection Com- pany. The moneys came to him impressed with the trust for which they had been set apart, and he is sought to be held liable for his illegal diversion of them from the pur- poses of that trust, and for his unlawful appropriation of them to his own use and to the use of others. The demurrer to the complaint is overruled and leave given to the defendant to answer over upon payment of costs. Code, § 488. Subd. 1. Eefers to persons or corporations not amenable to the court, not to irregularity in service of process. Ogdensburg, etc., R. Co. v. Ver- mont, etc., R. Co., 16 Abb. N. S. 249. Subd. 2. Applies to cases where the court has no authority to decide the kind of controversy that plaintiff brings, Dodge v. Colby, 108 N. Y. 445; and where the complaint in an inferior court does not disclose a fact essential to give the court jurisdiction, e. g., in a county court where the complaint does not allege that defendant resides in the county. Gilbert V. York, 111 N. Y. 544. Subd. 3. See Secor v. Pendleton, supra. But where complaint does not disclose the fact that plaintiff sues in a representative capacity, a de- murrer will not raise the objection. See also Irving Nat. Bank v. Corbett, 10 Abb. N. C. 85. Subd. 4. The other action must be pending in the court of this State. Oneida Co. Bank v. Bonney, 101 N. Y. 173. Subd. 5. Berney v. Drexel, 33 Hun, 419, where one of the plaintiffs did not, so far as it appeared by the complaint, have any interest in the cause of action. N. Y. & N. H. R. Co. v. Schuyler, 17 N. Y. 592*. WEEKS V. o'beien. 233 Subd. 6. e. g. Failure to join all the partners in an action on a part- nership liability, or all the parties to a joint contract in an action thereon, where it appears that demurrant is prejudiced by the nonjoinder. Bauer V. Piatt, 72 Hun, 326, 332. The demurrer must identify the persons improperly omitted. Anderton v. Wolf, 41 Hun, 571. Subd. 7. See section 484, and O'Connor v. Virginia P. & P. Co., 184 N. Y. 46, where a demurrer on this ground was permitted and sustained after a motion to compel plaintiff to separately state and number his two causes of action, had been denied at Special Term upon the ground that there was but one cause of action. Subd. 8. See § 1207. " The preponderance of authority seems to be to the effect that on a demurrer for insufficiency the inquiry is whether plaintiff would be entitled to a judgment for any relief by default. Ac- cordingly, 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 complaint fails to state a good cause of action at law, it is demurrable, even though the facts would afford ground for equitable relief; and it is likewise held that where all the allegations of the complaint are for equitable relief, and equitable relief only is demanded, if a good cause of action in equity be not alleged., the complaint is demurrable, even though the facts stated ehow that the plaintiff has a cause of action at law. (Cody v. First Nat. Bank, 63 App. Div. 199; Swart v. Boughton, 35 Hun, 281; Kelly v. Downing, 42 N. Y. 71) ;" Black v. Vanderbilt, 70 App. Div. 24. "WEEKS V. O'BRIEN. 141 N. Y. 200. Per Curiam. The complaint was dismissed on tlie ground that it contained no averment that the architect un- reasonably withheld his certificate of the completion of the building. The complaint was defective in this respect. By the true construction of the building contract the procuring by the plaintiff of the certificate of the architect that the building had been completed, was a condition precedent to his right to recover under the contract the last installment of $6,158, for which this action is brought. To meet this condition and to show a right of action it should have been averred in the complaint, either generally or specially, that the conditions precedent had been performed, or if the plain- tiff relied upon a matter excusing him from procuring the 234 PLEADING. certificate, the facts should have been stated. The com- plaint neither averred that the certificate had been procured nor that it was unreasonably withheld. A copy of the con- tract containing the provision as to the architect's certifi- cate was annexed to the complaint. The action was upon the contract and the complainant alleged performance by the plaintiff and that the building had been substantially completed according to its terms. The contract made the architect 's certificate the evidence of that fact, and the plain- tiff could not recover upon an allegation of performance, upon proving that the building had in fact been completed, without procuring the architect's certificate, or showing that it had been unreasonably refused, or that the defendant had waived its production. A defendant is authorized to raise the objection that the complaint does not state facts sufficient to constitute a cause of action on the trial, although the objection has not been taken either by demurrer or answer. (Code, § 499.) At the conclusion of the plaintiff's evidence the defendant's counsel moved to dismiss the complaint on the ground that under the contract the certificate of the architect was a con- dition precedent. The counsel for the plaintiff asked to go to the jury upon the question of unreasonable refusal of the architect to give the certificate. The court in answer said that there is no such issue, and referred to the fact that there was no allegation upon the subject in the complaint. The complaint set out the contract, its performance by the plaintiff, the amount unpaid, and demanded judgment there- for. The answer denied the complaint and set up as a counterclaim in substance that the plaintiff had not com- pleted the building, but after he had commenced the work abandoned it before completion, and that the defendant, after giving due notice to the plaintiff, proceeded under the fourth section of the contract to complete the building ac- cording to the specifications, and did complete it, at a cost WEEKS V. o'beien. 235 of $2,904.58, and also that the defendant had sustained dam- ages by reason of delay, in a sum stated, and these several sums he demanded should be allowed as a set-off or counter- claim against the demand of the plaintiff. On the trial the plaintiff proved the contract and pro- ceeded to give evidence in detail of what he had done under it. It was claimed by the defendant that the plaintiff had not complied with the contract in several respects, but the principal ground of objection was that the plaintiff had not complied with the contract in respect to the floor of the basement. The plaintiff insisted that he had complied with the contract in that respect, and proof was given as to a demand upon the architect for a certificate, which was refused. It is claimed that no question having been raised until the conclusion of the plaintiff's evidence as to the sufficiency of the complaint upon the point of the architect's certificate, and the trial having proceeded upon the issue whether the work had been actually completed, without objection, it was then too late to raise the question of the sufficiency of the complaint in that respect. The court might very well have permitted an amendment, but no application to amend was made, and we think it was not too late to raise the objection at the conclusion of the plaintiff's case. At least it was in the discretion of the court to entertain it at that stage of the trial. A decision upon a demurrer may now be obtained by either party by moving for judgment on the pleadings. §§ 547, 976. 236 PLEADING. 3. ANSW^ER. a. Denials and Defenses. Code Civ. Pro., §§ 500, 507-508, 522, 538, 1776-8. CLARK V. DILLON. 97 N. Y. 371. Appeal, from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made June 5, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover damages for alleged negligence. The complaint alleged in substance that defendants caused an excavation to be made in a public street in the city of New York, and left the same uncovered without any protection or guard; that, in consequence, plaintiff's wife, while passing along said street in the night-time, without any fault or negligence on her part, fell into the pit so excavated and was injured. The answer was as follows : " The defendants answer the complaint herein as follows : " I. That the alleged injuries charged in said complaint, as having resulted to Letitia A.. Clark, therein named, were brought about, caused and contributed to by the said Letitia A. Clark. " II. That prior to the cordmencement of this action the said Letitia A. Clark commenced an action in this court against these defendants to recover the sum of $50,000 for alleged injuries resulting to her from the accident referred to in the complaint, pending which action . the pl'aintiff promised and agreed to and with these defendants, that if CLARK V, DILLOIT. 237 these defendants would compromise and settle said claim and suit of said Letitia A. Clark that he, the plaintiff, would waive any claim he might have against these defendants, growing out of the said accident, whereupon and in pur- suance of said promise and agreement on the part of the plaintiff and before the commencement of this action, to-wit : On or about the first day of June, 1877, these defendants compromised and settled said claim of said Letitia A. Clark, and laid out and expended large sums of money in procur- ing said settlement and compromise. ' ' III. They admit the copartnership of the defendants with Milton A. Clyde, and the subsequent death of said Clyde, and they deny each and every other allegation in said complaint contained, not hereinbefore specifically ad- mitted, nua]rged or denied. ' ' RuGEK, Ch. J. A defendant desiring to controvert the allegations of a complaint may do so either by a general or specific denial. An omission to do this in one form or the other is equivalent to an admission of the truth of the facts alleged and not controverted. Such denials are not required to be of any particular form or to be couched in any special phraseology, but they must be expressed in language .that conveys to the mind of the reader a clear understanding of the facts they are^ntended to put in issue. It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader, but this rule has been so far modified by the Code as now to require them to be liberally , con- strued with a view to substantial justice between the parties. This modification has, however, been held to ex- tend only to matters of form and not to apply to the funda- mental requisites of a cause of action. (Spear v. Downing, 34 Barb. 522; Cruger v. Hudson E. R. E. Co., 12 N. Y. 190; Bunge v. Koop, 48 id. 225.) A construction of doubtful or uncertain allegations in a pleading, which enables a party by thus pleading to throw upon his adversary the hazard of 238 PLEADING. correctly interpreting their meaning, is no more allowable now than formerly; and when a pleading is susceptible of two meanings, that shall be taken which is i^ost unfavorable to the pleader. (Bates v. Rosekrans, 23 How. Pr. 98.) It is in the nature of things that a party who is required to frame his issues for the information of his adversary, and the court, must be responsible for any failure to ex- press his meaning clearly and unmistakably. While it is competent for a party to move to make the pleadings of his adversary more definite and certain, yet, inasmuch as it is the primary duty of the party pleading to present a clear and unequivocal statement of his allegations, the onus of having them made so cannot be cast upon his adversary by his own fault in failing to perform his duty. It is objected in this case on the part of the appellant, that there is no proof that the defendants created the ex- cavation which was the cause of the injury sued for, or that the place where the same occurred was a public street. At the Circuit, as also at the General Term, this objection was disposed of upon the ground that the facts necessary to make out the cause of action in the respect mentioned, were admitted by the answer. No question is made but that the complaint states a good cause of action against the defendant, in respect to the cause of the injury complained of; and the inquiry now is, wh'ether the facts stated in the complaint have been suf-' ficiently denied by the answer to put the plaintiff to their proof. That pleading contained three defenses separately stated, the first of which substantially alleged that the injuries charged in the complaint were caused, brought about and contributed to by the injured party. Second. That before the commencement of this action the defendants fully settled and compromised the said claim with the plaintiff. CLARK V. DILLON. 239 Third. A denial of each and every other allegation in said complaint contained not hereinbefore specifically ' ' ad- mitted, qualified or denied." The first defense in the answer undoubtedly constitutes a qualification of every fact stated in the complaint with ref- erence to the manner in which the accident occurred, and in effect affirms the truth of all the facts alleged, except that of want of contributory negligence, and alleges that the action is unsustainable by reason of such negligence. The second contains facts formerly known as being a plea of confession and avoidance and is predicated upon the assumption of the truth of the facts stated in the complaint, but seeks to avoid them by a defense arising out of the sub- sequent conduct of the parties ; and the third was intended as a general denial of such facts in the complaint as had not been before specifically admitted, qualified or denied. The first defense put in issue the question of contributory negligence, and imposed upon the plaintiff the burden of proving that the accident occurred without negligence on the part of the person injured, and that was the only fact put in issue by that defense, the other allegations being im- pliedly admitted. The fact alleged, however, constituted a good defense to the entire cause of action, and if made out by proof must have resulted in a verdict for the defendants. A good defense to the cause of action stated in the com- plaint was also alleged in the second count of the answer ; and in respect to both of these counts the answer was suf- ficient in matter and form to preclude a successful demurrer or motion to strike them out as frivolous. The question arises over the effect to be ascribed to the alleged general denial. It was said in the case of Calhoun v. Hallen (25 Hun, 155), that an answer denying each and every allegation set forth in the complaint, except as herein " admitted, qualified or explained," contains an authorized form of denial, and should not be stricken out as frivolous. 240 PLEADING. This form of answer has sometimes been criticised as throwing upon the opposite party the necessity of first de- termining the legei question as to how far the facts stated, may properly be said to qualify or explain others, before the pleader can know what facts are admitted or denied by the pleading. Without, however, attempting to determine whether an answer denying only such facts as are not ad- mitted, qualified or denied by previous allegations in the, answer, under the rule established by the Code requiring- facts in plain and concise language alone to be stated, is good pleading or not, it is sufficient to say in this case that the material allegations of the complaint are expressly ex- cepted by the terms in which it is expressed from the opera- tion of the general denial pleaded. The allegation by the defendant that the injuries de-^ scribed in the complaint did not occur in the manner and form therein alleged, but impliedly did occur in another manner which was described in a way to exempt the de- fendant from liability therefor, was a most important and essential qualification of all of the facts alleged in the complaint. It cannot be reasonably said that the fact that the party injured contributed to his own injury is not a qualifica- tion of the allegation in the complaint that the defendants ' conduct in digging a pit in a public highway and leaving it unguarded was the sole cause of the injury. The allega- tions which are denied by this answer are those only which are not qualified by its previous statements. Of what fact stated in the complaint can it be legally said that they are not qualified by this answer ? The allegation in the complaint that the injury occurred without the fault or negligence of the plaintiff, is substan- tially denied by the first count of the answer which affirm- atively alleges the reverse of this to be true — but while this allegation constitutes a denial of that fact, it also operates CLARK V. DILLON. 241 as a qualification of every other fact going to make out the cause of action. The test which has frequently been ap- plied to discover the true meaning of a pleading will clearly illustrate the effect of this attempted denial. Suppose the defendants were indicted for perjury, upon the ground that they had verified an answer which falsely denied that the defendants were the creators of the excavation which caused the injury in question, could any clause in this answer be pointed out which proved such a denial! It certainly cannot be successfully claimed that a clause which expressly ex- cepted from its operation all allegations in the complaint, qualified by previous statements in the answer, was in- tended to deny such allegations as were qualified. We think that siieh an indictment could not be sustained upon the pleading in this case. Judgment affirmed. See Griffin v. L. I. R. R. Co., 101 N. Y. 348, holding sufficient au answer whicli denied " each and every allegation of the complaint not hereinbefore admitted or controverted," where the pleadings showed clearly which allegations were intended to be denied thereby. The proper remedy against an answer that does not plainly point out the allegations of the complaint to which the denials are directed is a motion to have the answer made more definite and certain. Thompson v. Wittkop, 184 N. Y. 117; Lyth V. Green, 21 App. Div. 300. Denial by reference to the folios of the complaint is bad. (Same case.) So is a denial of " each and every material allegation " of the complaint. Mattison v. Smith, 1 Robt. 706. Defendant "says he denies," held good. Jones v. Ludlum, 74 N. Y. 61. Designating the allegations denied by reference to the paragraphs of the complaint is the usual practice. Curran v. Arp, 141 App. Div. 659; Electrical Ace. Co., 194 N. Y. 473. Though not expressly provided for in the Code it was decided in Ben- nett V. Leeds Mfg. Co., 110 N. Y. 150, that sections 500, 524 and 526 when read together permit a general or specific denial to be upon informa- tion and belief. 16 242 PLEADING. WEST V. AMERICAN EXCHANGE BANK. 44 Baeb. 175. Appeal from a judgment entered at the circuit on a trial before the court without a jury. The complaint alleged that the plaintiff, on the 29th day of May, 1861, was the owner of a certain promissory note ; that on that day he employed the defendant to collect the same; and that the defendant did collect it, but had failed to pay over the proceeds, although often requested to do so. The answer denied none of these allegations, but set up new matter, viz: that the defendant was collecting agent in the city of New York for the Medina Bank, and as such received and held the note in question until its maturity, when the proceeds were re- ceived by it as such agent. And that afterwards, and be- fore the 1st of July, 1861, it paid the same to the said Medina Bank. The court found the following facts : That on the 29th day of May, 1861, the plaintiff was the owner of a note made by one West, and payable in the city of New York, for $535, to mature on the 1st and 4th of June. That on the day first named, he deposited the note for collection, in the Medina Bank, Orleans county, indorsed in blank. That, at this time, the Medina Bank was indebted to the defendant, for over drafts, to an amount largely exceeding the amount of said note. That on the day named and being so indebted, the Medina Bank forwarded the note to the defendant, with directions ' ' To collect said note, and credit said Medina Bank with the proceeds." 'That on the 4th day of June the note was collected, and the proceeds credited in the books of the American Exchange Bank to the account of the Medina Bank, which account then showed the indebtedness of the latter bank to the defendant to be $3,273.37. That the Medina Bank failed and suspended business, on the evening of the 4th of June, 1861, and on the 7th the de- fendant was notified of said failure. That after the 29th "WEST V. AMERICAN EXCHANGE BANK. 243 day of May the defendant continued to pay the drafts of the Medina Bank. That the defendant, at the time of receiving the note, from the Medina Bank, and until the time of col- lecting and crediting the proceeds thereof, as above stated, had no notice or knowledge that the note belonged to the plaintiff, or that the same was not the property of the Medina Bank, and the proceeds thereof were credited by the defendant to the Medina Bank in good faith, in the ordinary course of business between them. That prior to the said 29th day of May, 1861, it had been agreed between the president of the Medina Bank and the defendant that all paper sent for collection by said Medina Bank should be held by the defendant as collateral security for any balance of account owing by the latter to the defendant. That on or about the 1st day of March, 1863, the plaintiff demanded the proceeds of said note, of the defendant, and the latter refused to pay the same to him. And the judge found as a conclusion of law, that the de- fendant was not indebted to the plaintiff for the proceeds of said note, and that he was entitled to judgmentjdismiss- ing the complaint, with costs! Ffom~lSs judgment the plaintiff appealed. By the Court, James C. Smith, j. * * * The defendants also contend that theplaintiff_cafl.imt^ maintain^his action, for the reaioiT that their bank was_ fEe'agent of the^Medina Bankin respe^cttojhe collection of the note, and owed no duty to the plaintiff. But the plead- ings admit the reverseof this to be the fact. The complaint expressly alleges that ' ' the pl aintiff employed the defend - an t to coUect the notej which the defendant und eitflak-io do;" and this allegation is not denied by the answer. The ^Eost that can be claimed by tne deiendants is tfeat-the answer contains a version of the transaction which is in some respects inconsistent with the allegation in the com- plaint; but that does not amount to a denial. (Wood v. Whiting, 21 Barb. 190.) It has been said that an allegation 244 PLEADING. "wliicli, if imcontroverted, is to be taken as true, should be direct and positive; one which at most merely implies an inference that such is or will be claimed to be the fact should not be construed as a material allegation. (Per Bosworth, J. Oechs v. Cook, 3 Duer 161.) The correct- ness of these observations when applied to an affirmative allegation, or an allegation of new matter, cannot be ques- tioned. The like remarks are equally applicable to an allegation in an answer by which it is attempted to deny a material allegation in a complaint, or, in other words, ' ' to join issue." A denial may be gene ra l or specific, at. the opt ion of themeader. but in either case i t miint br dir^rt and unequivocal. If it merely implies that the allegation IS controverted, or justifies an inference that such is or will be claimed to be its effect, it will not be construed as a denial. Tested by this rule, the answer before us does not deny the allegation referred to, contained in the complaint, and that allegation being uncontroverted is to be taken as true, for the purpose of the action. This being the require- ment of the statute, (Code, § 168*) the fact thus admit ted by the ple adings cannot be contradict fid-og-A^^iedr^y evi- j jence; and as th " ju'^^'^^^t nf t he court bplnw isj ^rmt.rary t o such f act^ is erroneoug The judgment sEould be reversed, and a new trial ordered, with costs to abide the event. * Code Civ. Proe., § 522. rieiseham v. Stern, 90 N. Y. 110. In Emery v. Baltz (94 N. Y. 408), which was an action against a surety on the bond based upon an alleged failure of Hack to account for money collected by him for plain- tiff, the answer was in these words, viz. : " The defendants aver that they have no knowledge or information sufficient to form a belief as to whether or not said Hack was at the time of the commencement of this action indebted to the said plaintiff in the sum mentioned in the com- plaint, or in any other sum, and therefore deny the same." Held, " This was merely a denial of a legal conclusion, and put in issue no fact alleged." For an aflSrmative allegation in an answer which is equivalent to a denial of an inconsistent allegation in the complaint, see Cilley v. Preferred Acci. Ins. Co., 109 App. Div. 394, aff'd 187 N. Y. 517. KIESCHBAUM V. ESCHMANN. 245 KIRSCHBAUM v. ESCHMANN. 205 N. Y. 127. Weknee, J. The question presented on this appeal is whether the defendant's answer raises any issues which the defendant has the right to have submitted to the jury. At Trial Term the plaintiffs moved for judgment upon the pleadings and their motion was granted. The defendant asked to go to the jury upon the issues which he claimed were raised by his answer, and this motion was denied. Upon the exceptions taken to these rulings the defendant took an appeal to the Appellate Division, where the de- cision of the Trial Term was affirmed. Concretely stated/ the question is whether the answer, either in its denials o affirmative allegations, raises any issues or presents an; defenses to the plaintiff's complaint. The plaintiffs ' first criticism of the answer is based upon its opening declaration. It begins as follows: "The de- fendant * * * for an answer to the amended complaint herein states: 1. That the defendant herein denies that he has any knowledge or information sufficient to form a belief as to the allegations contained in paragraph ' 1 ' of the amended complaint herein." The point of the criticism is that the defendant, instead of denying, " states that he denies," and it is argued that this form of pleading is not authorized. * * * The question is not new, and it was formerly the subject of much controversy, but the practice was finally settled by this court in Jones v. Ludlum (74 N. Y. 61). In that case it was held that in a reply to a counterclaim the plaintiff's allegation " he_saxshedenies, " &c., was t he eq uivalent of an allegation that ' ' he denies. ' ' There is no distinction between that case and tliecase at bar. * * * - It may b e-stretcfaing""5ven the liberal con- structipn enjoined by the Code to hold that either form 246 PLEADING. represents good pleading, but the question is decided and further discussion would be profitless. The secon d o bjecti on to the answer is based on the form of the denials " of knowledge or information sufficient to form a belief." It is to be observed that these denials of knowledge, &c., are not addressed to any specific allegation of any of the paragraphs of the complaint, nor to each and every allegation thereof, but "to the allegations contained" in such and such paragraph. None of these paragraphs in the complaint has less than two allegations of fact, and one contains as many as ten. Some of these allegations in the complaint relate to matters of which the defendant must have such personal knowledge that he could not honestly deny knowledge or information sufficient to form a belief. Others refer to matters of which he may be presumed to have knowledge and then there may be others as to which he can truthfully plead ignorance. This answer ignores all these distinctions. We think this is not good pleading. * * * The answer should b e so de finit e and certain i n its alle gations that the pleaders' adversary should not be lef t in doubt as to what is admitted, what is de nied, and wha t is covered by denials of knowledge or information sufficient to form a b elief. Ti nder the form of denial employed by the defendant it would be difficult, if not impossible, to convict him of perjury if it should transpire that some of his denials of knowledge, &c., were false, for he could meet the charge by saying that his denials referred only to matters of which he had in fact no knowledge or information. The illustration can be made more plain by taking a closer view of some parts of the answer. The defendant has denied, for instance, knowledge or information sufficient to form a belief as to the averments of the complaint charging that pursuant to the underwrit- ing agreement the defendant received certain shares of com- mon stock which he accepted and retained, and that a notice KIESCHBAUM V. ESCHMANN. 247 was served upon Mm demanding payment, which the de- fendant refused to make. This seems to be a matter of which the defendant must have had knowledge, and with reference to which we think he could not honestly deny knowledge or information sufficient to form a belief. Then there are other matters, such as the execution and the con- tents of the agreements upon which the defend^ant is sought to be held liable, and the organization and existence of the United Educational Company. Some of these things are at least presumptively within the knowledge of the defend- ant, and if that should prove to be so he could not stand upon denials of knowledge or inf orm£t.tion sufficient to form a belief. Then finally there are such matters as the death of the plaintiffs ' testator, the appointment and qualification of the plaintiffs as executors, &c., of which the defendant may be utterly ignorant, and as to which he may deny knowl- edge or information so as to put the plaintiffs to their proofs. Thus the whole discussion may be summarized in the statement that the defendant 's answer is clearly bad in part and presumptively bad in other parts, and technidally within the rules of good pleading in a few particulars. The courts below evidently concluded that these latter features of the answer were so few and unimportant that no real and substantial issues were presented. Although this disposition of the case may seem to work no injustice between these parties, it sanctions a practice which we think is wrong as regards denials of knowledge or information of matters which are only presumptively within the knowledge of the pleader, or of any other matter which, although imperfectly, indefinitely or inartificially pleaded so as to be insufficient in form, may be corrected under the order of the court, upon a motion to have the pleading made more definite and certain, or to strike out parts thereof as false or sham . It is clearly proper, for in- stance, to grant judgment upon the pleadings when the only 248 PLEADING. d enials in an answer are deni als of knowledge or inf orma- tion sufficient to form a "belief with respect to matters which are unmistak ably within the k nowledge of th e defendant who interposes such an answer . In such a case it is of no practical importancewhether there is a motion before trial to strike out the answer as sham, or frivolous, or whether a motion is made at the trial for judgment on the pleadings, because the result in either case will be the same. The re- cent case of Dahlstrom v. G-emunder (198 N. Y. 449, 454) is an excellent illustration of the rule that judgment may be given upon the pleadings where a denial of knowledge or information is palpably untrue. There the action was upon an alleged breach of warranty. One of the defenses was to the effect that a prior litigation for the same cause had re- sulted in a judgment which had been paid and satisfied. To this plea in bar the plaintiff was required to serve a reply, and his reply was that he had no knowledge or information sufficient to form a belief as to the payment and satisfaction of the judgment. This was held not to be a sufficient or honest denial. " It is quite incredible, ' ' said Judge Hiscock in that case, ' ' that plaintiff should have had no knowledge concerning the termination of his lawsuit, and equally in- conceivable that after the lapse of two years he should neither have received nor sought information on this sub- ject. * * * Under such circumstances it was not per- mitted to him to make a bald and unexplained denial of any knowledge or information." ThisfnT-m of dpnial^ in sTinff^ is never permi ssible to traverse an allegation of a fac t "w Eich must be within the personal knowledge of the r)er- son who i s called upon to admit or deny, and whe njtjs nsp^l in such circumstances it may be stricken out on motion as sha m, or it may be disregarded at the trial (Pomerov's Remedies, &c., sec. 641). We think a different rule applies, however, where this form of denial is used to meet allegations of fact which are KIESCHBAUM V. BSCHMANN. 249 only presumptively within the knowledge of the person making the denial; or where the defect in the pleading is such that the court may, upon proper terms and conditions, permit it to be changed or amended. In such cases it is obviously the correct practice for the party who attacks the pleading to make the proper motion before the trial, as the attacked pleader then has the opportunity to establish his good faith, if he can, and to prove that he cannot honestly go further than to deny knowledge or information, or make his pleading more definite and certain than it is. A single familiar instance will serve to illustrate this point. When an action is brought against a corporation or copartnership the complaint usually charges many things which are pre- sumptively within the knowledge of the officers or the part- ners, and yet their own knowledge may have been derived wholly from their agents, employees or from third persons under circumstances which render it impossible to make a positive averment. In such case the person who verifies an answer that is challenged should have an opportunity to meet the presumption of knowledge which the law raises against him, and this can only be done on a motion before trial where the pleader can defend his pleading with affida- vits showing the circumstances which justify its lack of greater certainty and definiteness. This is the practice approved in Thompson v. Wittkop (184 N. Y. 117), where it was held that although a denial of all the allegations contained in specified folios of a com- plaint, " except as hereinafter admitted " is not good plead- ing, yet the denials should not be treated as a nullity so as to deprive the defendant of his right to trial or to amend ; and that in such a case the proper remedy is by a motion to have the answer made more specific and certain. So in the case at bar, the defendant has presented denials of knowledge or information which are bad in form because 250 PLEADING. they are neither general nor specific, and which relate to matters only presumptively within the pleader's knowledge. As to these the judgment should not be sustained for the reason that the plaintiff should make his motion before trial. Judgment reversed. STEINBACK v. DIEPENBEOCK. 52 App. Div. 437. Ingbaham, J. The action was brought to recover upon an undertaking given on an appeal to the Court of Appeals, a copy of which is annexed to the complaint, the complaint alleging the facts necessary to entitle the plaintiff to re- cover. The defendant interposed an answer which admits all of the allegations of the complaint, except the 3d and 4th paragraphs thereof. As to such paragraphs it con- tains the following allegations : ' ' Second. He has no infor- mation sufficient to form a belief as to the allegations con- tained in the Third and Fourth paragraphs of the com- plaint." This allegation is insufficient to put at issue any allegation of the complaint. By section 500 of the Code of Civil Procedure it is provided that the answer must cont ain "A general or specific denial of each material^ alle gation oTlhejijQaaplai nt controverted by the defenda nt or of any kno wledge ))r information thereof sufficient to form a be- liefj' This allegation in the answer does not comply with 5ctioj3rtJf the"ODdfi. There is no statement as to the de- fendant's knowledge^^nd the allegation is, therefore, not sufficienVtc^lut-atissue the allegations of the complaint referred to. In Hidden v. Godfrey, 88 App. Div. 496, " Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs I, II," etc., was held sufficient, the court saying : " We think, however, that the weight of authority as well as reason, is in favcr of BAKEE V. BAILEY. 251 requiring not a literal but a reasonably strict compliance with the terms of this section of the Code." But see Jurgens v. Wiehmann, 124 App. Div. 531. This form of denial is frivolous where the allegation involves a personal transaction with defendant or matters of public record. Preston v. Cunes, 140 App. Div. 144; City of New York v. Matthews, 180 N. Y. 41, 47. BAKER V. BAILEY. 16 Barb. 54. This was an appeal by the defendant from a judgment rendered against him at a special term, upon the verdict of a jury. The action was brought by the plaintiffs, as ad- ministrators of Ashbel S. Baker, deceased, to recover dam- ages of the defendant for causing the d.eath of their in- testate by a wrongful assault upon him. The verdict was for $500. The substance of the pleadings, and of the ma- terial facts, is set forth in the opinion of the court. By the Court, Geidley, J. The first exception on which the defendant relies arises out of the exclusion of certain testimony offered by the defendant,^ on the trial. After the plaintiff had given evidence tending to show that the de- fendant committed the injury which resulted in the death of the deceased, the counsel of the defendant offered to prove that some other person than Bailey committed the in- jury in question. This evidence was excluded by the court, as inadmissible under the answer. A brief reference to the pleadings may aid us in determin- ing whether this ruling was right. The complaint averred that on or about the 18th day of December, 1849, at the town of Marcellus in the county of Onondaga, the defendant wrongfully made an assault on the said Ashbel S. Baker, and with great force and violence seized him, &c., &c., by means of which he became sick, and died on the 25th day of December, 1849, by reason of the injuries inflicted on him by the defendant. The defendant in his answer denied 252 PLEADING. " that on or about the 18th day of December, 1849, at the town of Marcellus, or at any other place, he wrongfully made an assault," &c., &c. " or, that on or about the 25th day of December, 1849, the said Ashbel died of the injuries , so inflicted upon him by the defendant. ' ' Now this is a clear case of a negative pregnant. Time and place are imma- terial; (Gould's PI. p. 318, s. 25; p. 321, s. 32;) and the plaintiff could have proved the commission of the injury on any other day than that stated in the complaint. The de- fendant has denied that he made the assault, and that the deceased died of the injury committed, on the particular days stated in the complaint ; leaving the answer pregnant with the affirmative admission that he made the assault, and that the deceased died thereof, on other days than those mentioned in the complaint. Such is the legal construction of the pleading. The pleader says that he did not make an assault on the deceased, on the day mentioned in the com- plaint, and the legal construction of this pleading is, that he did, on some other day. (See Gould's PL 320, s. 30.) As a general rule no issue can be joined on a negative pregnant, because the affirmative implication, to which it is open, de- stroys the effect of the denial or traverse. Thus if the de- fendant plead in bar a release, made since the date of the writ, and the plaintiff replies non est factum since the date of the writ, the replication is a negative pregnant. For it admits, by implication, a release made before the writ, and which is as effectual a bar to the action as one made after- wards. There were two' ways in which the defendant might have pleaded, if he had desired to put in issue "the fact of his doing the act. He might have negatived any other assault, on a different day, as he did the place, by saying he did not assault the deceased on that day or any other; or he might have denied the assault in modo et forma, which does not put time in issue. (Gould's PL 318, s. 25.) Now an issue involving a negative pregnant is aided after verdict. BAKER V. BAILEY. 253 But by the common law, the plaintiff having recovered here the verdict would be final; but if the defendant had re- covered there would have been a new trial, on the ground that the merits had not been tried. (See Gould's PI. 322, s. 34.) But the question presented here is whether the proof offered was admissible under the pleadings, within the principles of the code of procedure. By section 149 of that instrument it is provided that ' ' in respect to each allega- tion of the complaint controverted by the defendant the answer shall contain a general or specific denial thereof; or a denial thereof according to his information and belief ; or any knowledge thereof, sufficient to form a belief. ' ' And by section 168 it is enacted ' ' that every material allegation of the complaint, not specifically controverted by the answer, &c. shall for the purposes of the action be taken as true. ' ' Now it has been shown that the legal construction of the answer is, a denial that the act was done or that the death occurred, on the day charged; but an admission, by implication, that the act was done on some other day; and that the death occurred on some other day than that charged in the complaint. And the rule as to admitting evidence must be such as would have been applied if the pleading had admitted in terms that the defendant seized the de- ceased and inflicted injuries on him of which he died; but that this was all done on another day than that charged in the complaint. It is very plain that under these pleadings no evidence can be admitted that the act was done by an- other, when it is admitted on the record that he did it himself. Objection to a negative pregnant is waived unless raised before trial by, jmotion to make more definite and certain (Armstrong v. Danaliy, 75 Him, '405), or for judgment on the pleadings on the ground that the answer is; frivolous. Stone v. Auerbach, 133 App. Div. 75. 254 PLEADING. FIELD V. KNAPP. 108 N. Y. 87. Eael, J. This action was brought to recover against the defendant the sum of $8,000 and upwards on an account stated. The plaintiff does not in her complaint allege any - dealings between her and the defendant, or that any account - in fact existed between her and him ; but she simply alleges, in the most meagre way, that an account was stated between ' her and him, and that upon such statement a balance of. $8,206.29 was found to be due to her. The answer is a, general denial. The case was tried before a referee, and in his report he does not find that there had ever been any . dealings between the plaintiff and the defendant, but he. simply finds as alleged in the complaint that an account- was stated between her and him, and that the balance claimed was found to be due to her. Upon the trial of the ' action the plaintiff made no direct proof of any actual deal- ings between her and the defendant, or that she ever had any transactions with him, or that she at any time ' paid him any money. She presented an account which was ■ headed as f oUows : ' ' Mrs. F. L. Field. In account with . E. M. Knapp, 76 Broad street," and upon that account the . balance claimed by her appeared to be due. It does not ap- * pear how that account came into her possession, nor, if, sent to her, why it was sent to her. A witness called by her • testified that she placed the account in his hands; that he' took it to the defendant and requested him to pay the balance; that the defendant acknowledged it to be correct, ' but stated that he could not pay it then and requested him- to tell plaintiff 's husband to come and see him and he would ' try and fix it up some way with him; that he would pay it as soon as he could. This witness further testified that he ' called upon the defendant a second time and asked him for' . the balance due upon the account, and that he again ac- FIELD V. KNAPP. 255 knowledged that the account was correct, and stated that he would give a check in settlement of it, provided the plain- tiff would deduct from the balance appearing to be due upon the account, as presented, the amount due to the defendant • upon accounts standing in the names of C. C. Field and John ' R. Field, the former being her husband's brother and the . latter being her son. This evidence was sufficient prima ■ facie to establish the plaintiff's allegation of an account - stated. She accepted the account and agreed to it as cor- rect, and when it was presented to the defendant the evi- ' dence tended to show that he agreed to pay it ; and thus it " could be inferred that he acknowledged that the balance ' appearing to be due upon the account was correct. The ' account itself furnished prima facie evidence of speculative ' dealings between the plaintiff and defendant out of which ' the account grew. The defendant was called as a witness on his own behalf » and substantially denied the facts testified to by the plain- tiff's witness. He further testified that he never had any business transactions with the plaintiff; that he was not " indebted to her in any sum whatever ; that he did not know in whose handwriting the account produced by her was; that an account was kept on his books in the plaintiff' 's • name which was opened at the request of C. H. Field, her - husband, who stated at the time that he did not wish his own name on the books, as he did not want his partner to •. know anything about it; that his dealings and transac- tions which entered into the account were mostly with the plaintiff's husband, and once in a while with her son; that he never received any instruction from her as to any of the transactions; that her husband, when he opened the account, told him to put down his name as F. L. Field, and two other accounts were opened by him, one in his brother 's name and one in his son's name ; that he stated he would be responsible for all the accounts; that he, defendant, never 256 PLEADING. paid any money to the plaintiff; that he did not know at the time the account was opened, who F. L. Field was and did not learn that it was the plaintiff until nearly; the close of the husihess entered in the account; that her husband said when he opened the account that if there was any loss on the accounts standing in the names of F. L. Field, J. R. Field or C. C. Field, he would be responsible for it. He was then asked these questions: " State whether or not you ever received any money from F. L. Field direct? " A. " No, sir." Q. " State what conversation, if any, you had with Mr. Charles H. Field as to paying any accounts or transactions in the name of F. L. Field? " This question, was objected to. * * * * * * Thereafter the defendant was, as a witness, asked by his counsel * * * the following questions, which were excluded under plaintiff's objections: * * * Q. " State whether Mr. Field told you that the business was his and the transactions were to be for him; that he was to furnish the money and receive the profits, but he wanted it in the name of F. L. Field, in order that he might be able to say to his partner that his name was not upon your books? " * * * All of these questions seem to have been excluded upon the theory that they were inadmissible under the answer. But under his general denial, the defendant had the right to give any evidence which would show that there was actually no account between him and the plaintiff, and that he had no dealings at any time with her, because if there were no accounts, and no dealings between them, then there was nothing upon which an account could be stated; and' he had the right to give any evidence tending to show that, no account had been stated. It was competent for the de- fendant to show that, although this account stood upon his- books in the name of the plaintiff, it was actually the ac- count of her husband, and that her name on the books CONKLING V. WEATHBBWAX. 257 represented him ; that all the dealings were with him ; that the defendant incurred no responsibility whatever to the plaintiff, and that his actual indebtedness was to her hus- band for the balance due upon the three accounts, which really constituted but one account. * * * Judgment reversed. Under a general denial defendant may controvert by evidence every- thing whieli the plaintiff is bound to prove in the first instance to make out his cause of action. Milbank v. Jones, 141 N. Y. 340. In an action on contract, a different contract (Miller v. Ins. Co., 1 Abb. N. C, and note), or urge that the contract is void as against public policy, where plaintiff's proof discloses the facts showing it. Auerbaeh v. Curie, 119 App. Div. 175. In conversion for wrongful detention, title in a third - person, jjriffln v. L. X— R.~&~ClQt.. 101 N. Y. 348. In an action for goods sold and delivered, that a third party was the purchaser. Newton v. Lee, 139 N. Y. 332, 336. In negligence, that the act of a third party caused the damage (Roemer v. Striker, 142 N. Y. 134) or that plaintiff was not free from contributory negligence (Durst v. Brooklyn H. R. Co., 33 Misc. 124) except where the action is brought under the Employers' Liability Act (§ 202-a). Assumption of the risk by plaintiff must be pleaded by defendant, Scheyer v. Quinn, 77 App. Div. 624, and proved by him, Dowd V. N. Y., 0. & W. R. R. Co., 170 N. Y. 459. In Durst v. Brooklyn H. R. Co. (supra), a demurrer to a separate defense consisting solely of the allegation of contributory negligence was sustained. CONKLING V. WEATHERWAX. 181 N. Y. 258. CULLEN, Ch. J. * * * I dissent, however, from the doctrine that the burden of proof rested upon the plaintiff to establish the non-payment of an obligation for the payment of money. While it is necessary thart-the complaint should allege the breach of such an obligation, to wit, a failure to pay the money owing thereon (Lent v. N. Y. & Mass. Ey. Co., 130 N. Y. 504; Krower v. Eeynolds, 99 N. Y. 245, 249), it seems the settled law of the state that, except where the complaint declares generally on an indebtedness, a general denial does not put 17 258 PLEADING. in issue the allegation of non-payment, but to admit proof of payment the defendant must plead payment. (McKyring V. Bull, 16 N. Y. 297 : Quin v. Lloyd, 41 N. Y. 349.) It may be that the fact that payment must be affirmatively pleaded does not conclusively establish that the burden of proof is necessarily upon the defendant to establish his plea, though the general rule is that the issue is to be proved by the party who asserts the affirmative. (1 Phillips on Ev. (Cowen and Hill) sec. 810.) I frankly concede that it is somewhat illogical that the plaintiff should be obliged to allege non-payment and yet the defendant be required to affirmatively prove payment, but it is equally illogical to require the plaintiff to prove non-payment when a general denial does not put that allegation in issue, and the defend- ant is required to plead payment. I shall, therefore, re- frain from attempting to deduce the answer to the ques- tion, on which party the burden of proof rests, from any rule as to pleading as such answer would be necessarily illogical. I shall confine myself to the decisions of the courts of this state on the exact point on which party the burden rests. In an action on a contract for the payment of money, where the issue was payment, I have never known the jury to be instructed other than that the burden of proof was on the party alleging payment to prove that fact, and I think such has been the almost universal view taken by the courts. In fact, the doctrine has been so generally accepted that usually it has been assumed with- out discussion. In McKyring v. Bull {supra) Judge Selden said that payment, like a release, accord and satisfaction, arbitration, etc., was new matter constituting a defense, thus classifying payment with a release, as to the proof of which, unquestionably, the burden rests on the party plead- ing it. Lerche v. Brasher (104 N. Y. 157) was an action against an administrator to recover for services rendered to the deceased in his lifetime. On the trial the plaintiff CONKLING V. WEATHEKWAX. 259 was permitted to testify that he had not been paid for his services by the deceased. It was held that the admission of tliis testimony was erroneous as the plaintiff was in- competent to testify to a personal transaction with the de- ceased, but it was further held to be harmless as the plain- tiff was not required to prove the negative, and that pay- ment was an affirmative defense the burden of establish- ing which rested upon the defendant, in support of which no evidence had been given. This seems the only case in this court in exact point. The decisions, however, in the lower courts are numerous. In Claflin v. New York Stand- ard "Watch Co.- (7 Misc. Rep. 668), which was an action on a promissory note, defense payment, it was held by the General Term of the late Court of Common Pleas of the city of New York that the defendant was properly allowed to open and close the case because payment was an affirma- tive defense, the burden of proving which rested upon it. In this connecttiion there may be noted the case of Mead V. Shea (92 N. Y. 122). The first cause of action was on , two promissory notes, to which the defendant pleaded pay- ment; the second for goods sold, to which the defendant pleaded a general denial. When the evidence was closed the trial court held that the cause of action for goods sold was not sufficiently established to warrant its submission to the jury, and the case went to the jury on the issue of pay- ment of the notes. Prior to the close of the testimony the counsel for the defendant asked the court to rule that it had the afifirmative of the issue, which the court denied. On appeal it was contended that the refusal of the triaJ court to award the defendant the closing address to the jury was error. This court overruled the claim, holding that the defendant's application should have been made at the close of the case ; that when it was made there was an issue of fact on which the plaintiff held the affirmative, and, therefore, the defendant's request was properly denied. It 260 PLEADING. was undoubtedly assumed by the court that payment was an affirmative defense or otherwise it would have been en- tirely unnecessary to discuss and determine the proper time at which the defendant 's application should have been made. * * * Jn "Wellington v. Continental C. & I. Com- pany (52 Hun, 408) the action was brought by a creditor against stockholders of an insolvent corporation to enforce their liability for unpaid subscriptions to stock under sec- tion 282 of the Laws of 1854 (General Eailroad Act). It was held that in such an action it was necessary for the creditor to prove that the stockholder was in default, but said Judge Bockes, writing for the third department : "If this were an action by the Boston, Hoosac Tunnel and West- ern Eailroad against Ames to recover his unpaid subscrip- tions, of course it would be for Ames to prove payment as a defense, and not for the company to prove non-payment as a ground of action." Many other cases might be cited. It will be seen that in none of these case is there any cita- tion of authority for the proposition that payment must be affirmatively proved. It is assumed as settled law. Against this uniform current of authority there can be cited but a single case which is exactly in point; that is Cochran v. Eeich (91 Hun, 440). Before dealing with it I will refer to the other cases cited by my associate. Witherhead v. Allen (4 Abb. Ct. App. Decisions, 628) arose on demurrer and involved merely a question of pleading. It was an action brought against the members of a joint-stock com- pany after judgment and return of execution unsatisfied against the president of the company. It was held that the complaint must state a good cause of action against the members of the company on the original claim in the same manner as in the suit brought against the officer of the com- pany, and, therefore, that a failure to pay for the goods sold must be alleged. This is simply the rule of pleading declared in the Krower and Lent cases. Knapp v. Eoche CONKLING V. WEATHEEWAX. 261 (94 N. Y. 329) was an action against the officers of an in- solvent savings bank for negligence and misconduct in making improper loans of the funds of the bank. It was held incumbent upon the plaintiff to prove that those loans had not been repaid. The case had no bearing on the prin- ciple under discussion. The loans created no obligation on the part of the defendants to repay the same ; their liability arose from the fact that they should not have made the loans, and, of course, that liability was limited to the loss occasioned by their action. If the defendants had admitted their liability to the bank or its receiver and pleaded that they had paid the amount of such liability then the case would be in point. Krower v. Eeynolds (supra) was an action brought on a deficiency judgment recovered against the defendant in New Jersey, on his assumption of a mort- gage on certain real estate there situated. The defendant admitted the bond and mortgage and the deed containing his covenant to assume payment of the same, and denied the remaining allegations of the complaint. On the trial the plaintiffs proved their appointment as executors of the de- ceased mortgagee without proving the New Jersey judg- ment. A motion for a nonsuit was denied and judgment given against the defendant. On appeal it was sought to sustain this recovery on the theory that the cause of action was mg,de out by the defendant's admission of his covenant to pay the mortgage. This court held that the action was on the New Jersey judgment, not on the covenant saying that the complaint failed to state a good cause of action on the covenant because it did not allege any breach of the same. The case simply goes to the question of pleading. Lent v. N. Y, & Massachusetts Eailway 'Company (supra) is also an authority on the question of pleading. It arose on a demurrer to the complaint which alleged an award to the plaintiff in condemnation proceedings, but failed to allege non-payment of the award. There was nothing de- 262 PLEADING. cided in the case that deals with the question now before ns, and its sole application arises out of a single sentence excerpted from the opinion without reference to the gen- eral context. The distinguished judge who there wrote for the court said: " But no reason is apparent how it can justify the omission from the complaint of a fact material to the plaintiff's cause of action, and essential to be proved to entitle the plaintiff to a judgment." The statement that it was necessary to prove non-payment to entitle him to judgment was wholly obiter, for there was no question of the kind in the case. On this excerpt is based the decision of the General Term of the Supreme Court in Cochran v. Eeich, already alluded to. To that decision must be ac- corded the merit of logic and entire consistency. The ac- tion was to recover for the breach of a covenant to pay rent reserved in the lease. The complaint alleged default in such payments. The answer was a general denial. On the trial the plaintiff introduced no evidence of non-pay- ment and, no evidence of payment having been given by the defendant, recovered judgment. The learned trial court, while conceding that the plaintiff's contention was not without ' ' comfort " to be found in the opinions in the Lent and McKyring cases, held, first, that as it was necessary to allege non-payment a general denial put that in issue; and, second, that it was necessary to prove what it was necessary to allege. However logical this decision may be it plainly conflicts with the settled law of this state, that payment, when the plaintiff declares on a specific ob- ligation, must be pleaded, for that was expressly held in the McKyring case, and Judge Brown in the Lent case con- cedes the binding authority of the earlier decision. From this review of the cases there appears to be no confusion in the law of this state on the question before us, save that raised by Cochran v. Eeich which was expressly retracted by the Appellate Division of the first department in Hicks- CONKLING V. WEATHEKWAX. 263 Alixanian v. Walton (14 App. Div. 199), the learned judge who wrote the opinion in the earlier case concurring in the decision in the later one. Nor is the rule different in an action in equity. Coulter v. Bower (11 Daly, 203) is also merely an authority on the question of pleading. The com- plaint for the foreclosure of mortgage was held bad on demurrer for failure to allege a breach of its conditions. Davies v. N. Y. Concert Company (41 Hun, 492) was like- wise an action to foreclose a mortgage. That mortgage, however, was given by a corporation and contained special provisions not found in ordinary mortgages given by in- dividuals, though not uncommon in those given by corpo- rations. As pointed out by Judge Daniels, writing for the General Term of the first department, it was not every default in the payment of the coupons or bonds secured by that mortgage that authorized a foreclosure. How far that case is aside from any question now before us appears from the fact that the complaint, which was held insufficient, expressly alleged " and that said coupons were not paid at maturity, nor was any of them paid, or any part thereof. ' ' I may also suggest that if the obiter dictum in the Lent case is to be considered an authority it is at least neutralized by the very recent declaration of this court in Heilbronn v. Herzog (165 N. Y. 98). The action was to recover the price of goods sold and delivered; the defense that the sale was on credit which had not expired. It was held that the de- fense was an affirmative one entitling the defendant to the opening and closing of the case, and Judge Werner, writing for the court, said : ' ' Like the defense of payment, it must not only be pleaded, but proved." I am not certain that this declaration was obiter, but conceding it to be such there is a fair set-off, obiter against obiter. The suggestion is made in the Encyclopaedia of Plead- ing and Practice (Vol. 16, p. 179) that the true rule is 264 PLEADING. ' ' that the plaintiff should prove not non-payment generally, but non-payment when due or at maturity, or in other words a breach of the contract called on," leaving it to the de- fendant to allege his new matter, payment after the breach, and this suggestion seems to meet with the approval of my associate. I cannot find any authority for such a rule. The text writer refers to Douglass v. Central Land Company (12 W. Va. 508) in support of his suggestion. I find noth- ing in the case to sustain it. The case itself principally involved the question of pleading and the court held that a plea of payment should conclude ' ' to the country. ' ' In the discussion of the opinion the court enunciates substanti- ally four propositions: 1, that the complaint must allege non-payment ; 2, that the defendant must affirmatively plead payment ; 3, that though it is necessary for the plaintiff to allege non-payment and that allegation is put in issue by the defendant's plea of payment, it is not necessary for the plaintiff to prove that which it is necessary to allege, to wit, non-payment, but, 4, the burden is upon_th g defen d- ant to prove payment. From this it would appear that the law in West Virginia presents the same paradox that is found in the law in this state. I imagine, however, that the paradox is not confined to either that state or our own, but exists to a greater or less degree in most jurisdictions which follow the common law. A legal paradox is not to be commended and if we were about to develop a new sys- tem of jurisprudence, should be carefully avoided. It does not, however, necessarily create a confusion in the law if courts wiU only stand by their decisions. This is especially true where the questions involved relate merely to plead- ings or procedure and not to substantial rights. In the present discussion the only question of substantial right is that as to the party on whom lies the burden of proof. The question of pleading is of very slight importance. It is of little consequence how it is settled provided it stays LINTON V. THE UNEXCELLED FIHEWOEKS CO. 265 settled. If there is to be any attempt to make the law on the question of pleading and proof of payment consistent (which at this late day I think unwise), pleading should be subordinated to proof, not proof to pleading. It may also be suggested that the existing rule as to pleading and proving payment is not anomalous in the law of evidence. In an action to recover a penalty for selling liquor without a license it is necessary to allege the want of a license but it is not necessary to prove it. On the contrary, the de- fendant must prove his license if he has one. (Potter v. Deyo, 19 Wend. 361.) The same rule prevails in most of the states, even in criminal prosecutions for that offense. (See cases cited in note. Bishop on Statutory Crimes, § 1062.) LINTON V. THE UNEXCELLED EIREWORKS CO. 124 N. Y. 533. Vann, J. Upon the trial of this action the plaintiff read in evidence the contract in question, which provided for his employment by the defendant until December 31, 1889, proved that he was discharged February 6, 1889, while engaged in the performance thereof, showed that after due effort he could not obtain other employment, and rested. Thereupon the defendant introduced evidence tending to support the twelve specifications of misconduct and unfaith- ful service on the part of the plaintiff set forth in its an- swer, and in addition thereto offered to show other acts| of misconduct and unfaithful service on his part not alleged! in the answer. Exceptions to the ruling of the court ex- cluding this evidence, upon the ground that the facts had not been pleaded, present the main question arising upon this appeal. No effort was made to amend the answer, but the defendant rested, so far as the point under con- sideration is concerned, upon the strength of its exceptions. 266 PLEADING. The defendant insists that this evidence was competent Tinder its denial of the averment by the plaintiff that the defendant broke the contract, and, without right or cause, discharged him. The plaintiff did not wait until the expiration of the period for which he was hired and seek to recover under the contract the wages therein agreed upon, but he com- menced this action within a few days after his discharge to recover the damages caused thereby. It was necessary for him to aver and prove that he was discharged before his term of service, as provided by the contract, had ex- pired, but it was 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 was prima facie a violation of the agreement. The law wUl not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof under proper allegations that he was dis- charged while engaged in the performance of the contract and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense con- fesses the contract and the discharge, but avoids the cause of action by showing new matter which, by the command of the statute, must be pleaded. (Code Civ. Proc, § 500; Code Proc, § 149; McKyring v. Bull, 16 N. Y. 297.) Any other rule, as was said by this court in the case cited, would " lead to surprises upon the trial, or to an unnecessary extent of preparation. ' ' A general or a specific denial con- troverts only ' ' material ' ' allegations or such facts as the plaintiff would be compelled to prove to establish his cause of action. (Griffin v. Long I. E. E. Co., 101 N. Y. 348, 354; Fox V. Turner, 17 N. Y. St. Rep. 666.) It does not put at LINTON V. THE UNEXCELLED FIREWORKS CO. 267 issue immaterial averments, because the Code does not re- quire that they should be denied. (§ 500.) The language of the statute is that the answer "must contain a * * * denial of each material allegation of the complaint con- troverted by the defendant," etc. That the plaintiff was discharged before the contract had expired was material. That he was discharged without cause was immaterial, so far as the complaint was concerned, because a recovery could be had without proving it. It was sufficient for the plaintiff to allege a violation of the contract by the de- fendant. His effort to anticipate and deny any possible defense to his cause of action was surplusage. Moreover, the main object of a pleading is to notify the adverse party of the facts relied upon by the pleader to constitute a cause of action or a defense. The improve- ment sought to be effected by the system of pleading pro- vided by the Code was to enable each party to know pre- cisely what he would be required to prove upon the trial. Accordingly, no pleading should be so framed as to mis- lead or deceive the adverse party by furnishing him only a part of the facts relied upon. Yet this would result from the construction of the pleadings in this action contended for by the defendant, because the effect of a denial that the discharge was without cause, in connection with twelve affirmative specifications of good cause for the discharge, would naturally induce the belief that the acts or omissions so specified were all that the plaintiff would be called upon to meet. It was a fair inference that evidence as to other derelictions was not embraced by the answer and could not be received. The defendant could not show, as it tried to, acts of gross immorality on the part of the plaintiff, without sug- gesting them in the answer, although many other wrong- ful acts of less importance were alleged with great fullness 268 PLEADING. and precision. A party who has, either intentionally or otherwise, led his adversary to believe that certain enu- merated acts only would be proved, will not be permitted to prove other acts of which no notice was given. In a case recently decided by this court, the complaint averred the performance of all the conditions precedent contained in a contract. The answer denied all allegations not thereby admitted and affirmatively alleged that the plaintiff had not performed all the conditions precedent, and enumerated certain things which, as it specifically al- leged, showed that the conditions had not all been per- formed. The court held that, although the denial, " if left by itself, might have made an issue as to each condition precedent in the contract," still the issue was " confined to the particular breaches of condition specifically referred to." (Eeed v. Hayt, 19 J. & S. 121, 128, affirmed on the opinion of the General Term in 109 N. Y. 659.) That case goes farther than is necessary in the decision of the case in hand, because there the averment t;hat the conditions pre- cedent had all been complied with was a substantive part of the complaint, whereas, here, as we have seen, the allega- tion that the discharge was without cause, was not es- sential to a recovery by the plaintiff. "We think that the new matter that the defendant sought to prove in confession and avoidance of the contract and the discharge was properly excluded by the trial court upon the ground that it had not been alleged in the answer. WENDLING V. PIERCE. 27 App. Div. 517. Adams, J. The plaintiff, a real estate broker, brings this action to recover the amount claimed to be due him by reason of his employment by the defendant to negotiate ''A^ENDLING V. PIEECE. 269 the exchange of his farm of about 400 acres for certain real estate in the city of Buffalo. The answer of the defendant denies any employment of or indebtedness to the plaintiff. It then admits the execu- tion of the contract for the exchange df the property re- ferred to in the complaint and alleges that the defendant was induced to enter into the same by reasons of the false statements and representations made by the plaintiff as the agent or representative of one Harmon Frost, the other party to the contract, and that when he, the defendant, discovered the fraud which had been practiced upon him he refused to complete the exchange and so notified both the plaintiff and Frost. The allegations respecting the representations made by the plaintiff were regarded as irrelevant by the Special Term, and it is from the order striking them from the an- swer that this appeal is brought. The theory upon which this order was granted was that the allegations of the defendant's answer were inconsistent with each other, as possibly they were; but we do not understand that con- sistency is any longer required of a defendant in plead- ing several separate and distinct defenses. The former ^Code of Procedure (§ 150) permitted a de- fendant to set forth in his answer as many defenses and counterclaims as he might have; and under this system of pleading it was repeatedly held that defenses which were ut- terly inconsistent with each other might be properly united in the same pleading as, by way of illustration, a denial of speaking the words, and an allegation that the words spoken were true, in an action of slander (Buhler v. Went- worth, 17 Barb. 649), or a denial and a justification of the taking in an action of replevin. (Hackley v. Ogmun, 10 How. Pr. 44.) When the present Code of Civil Procedure was enacted in 1876 an attempt was made to impose a limit upon a de- 270 PLEADING. fendant's right to plead separate and distinct defenses by requiring that " they must not be inconsistent with each other." (Laws of 1876, chap. 448, § 507.) But, in 1879 (chap. 542), the words above quoted were stricken from the section, so that now, as formerly, a defendant, with- out any restriction, may set forth in his answer " as many defences or counterclaims, or both, as he has " (Code Civ. Proc, § 507) ; and it matters not whether they are con- ' sistent or inconsistent with each other. (Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 id. 149; Societa Italiana v. Sulzer, 138 id. 468.) A defendant is sometimes required to elect upon which of two inconsistent defenses he will rely, but this is done only where, from the very nature of the case, it is impos- sible for him to avail himself of both. (Breunich v. Wesel- man, 100 N. Y. 609; HoUenbeck v. Clow, 9 How. Pr. 289.) Eeversed. vyTHOMPSON V. HALBERT. 109 N. Y. 329. Finch, J. This action was brought to recover damages for the conversion by the defendants of two notes and the mortgages which secured them. The first cause of action pleaded respects a note and mortgage upon land in Kansas, dated in 1871, and, as an answer to that, the defendants alleged in their seventh defense, that by the laws of that state in which the maker of the note resided and the land was located, the note and mortgage were barred by the Statute of Limitations, and that no action could now be maintained thereon. To this answer the plaintiff demurred, on the ground that it was insufficient in law on the face thereof. The demurrer was sustained by the Special Term, THOMPSON V. HALBEKT. 271 but that decision was reversed by the General Term on appeal. We are of the opinion that the reversal was erroneous. The fa cts stated in the answer were not pleaded as a partial defense or in mitigation of damages. Where that is attempted t he Code explicitly requires that the ans wer sha ll so stat e , and give notice that the facts relied upo n aremte nded as a partial defens e. (J_ 5Q8.) Where no such statero ent is made the plaintiff has the right to assum e, anST we court must assume, that the new matter alleged is pleade d as a complete defense, and if demurred to J iust bete sted as such. , (Matthews v. Beach, 5 Sandf. 256; s. c, 8 N. Y. 173.) Ap plying that test the answer is insufficient. It merely affects the amount of damages to be recovered, by tending to reduce the value of the securities converted. It confesses but does not avoid. It admits the cause of action and questions only its extent and amount, and is not a bar to a recovery., It is bad, therefore, as a defense, and the Special Term was right in so holding. It is not denied that the facts alleged, if admissible at all, may, nevertheless, be put in evidence for the purpose of affect- ing or reducing the value of the securities, (Booth v. Powers, 56 N. Y. 22.) So far as the question of pleading is concerned they are admissible under the denials of the answer. The plaintiff must prove the value of the articles converted as the basis of his recovery, and what he may prove the defendants, denying, may disprove. The plain- tiff averred the value of the note to be $300 and the accrued interest at twelve per cent. The defendants deny that al- legation, and aver that the same had no value, and also deny the alleged conversion. While the allegations of value and no value may perhaps not make a technical issue, be- cause needless, yet, under the denial of the answer which puts in issue plaintiff's whole cause of action, the defend- ants have a right to prove any facts which affect the value 272 PLEADING. of the securities, and possibly to an amount which would reduce the recovery to merely nominal damages, and so as a question of pleading, and although the seventh defense be stricken out, may prove the law of JCansas and show the difficulty and uncertainty of collection. (Knapp v. Roche, 94 N. Y. 333.) So much the plaintiff concedes. Precisely what useful purpose was served by interposing this de- murrer it is, therefore, difficult to see, but the question is raised and must be correctly decided. The argument of the General Term appears to be that the facts pleaded might induce the jury to find that the securities converted were absolutely valueless, and so the defense become a complete one. It would be more correct to say that the damages would become merely nominal, although the conversion would remain and the wrong itself be undefended. An answer does not bar a cause of action and so constitute a defense when it affects merely the meas- ure of damages. The judgment of the General Term should be reversed, and that of the Special Term affirmed, with costs, but with leave to the defendants, upon payment of the costs of the demurrer, to plead anew or amend within twenty days after entry and notice of this judgment. Code § 53fi.;=^ is held not to have changed the rule at common law which I permitted defendant to prove under a general denial any facts which tend to reduce or diminish the actual damages that plaintiff claims to have sustained, but to apply only to cases where punitive or exemplary damages are authorized. Wandell v. Edwards, 25 Hun, 498. PIEESON V. SAFFOBD. 273 b. Counterclaims. Code Civ. Proc, §§ 501-506, 509, 512, 1770. n^ PIERSON V. SAFFORD. 30 Hun, 521. Appeax, by Homer Weston, the defendants ' attorney, from an order of the Onondaga Special Term denying Ms motion to set aside the settlement made by the parties, and the order of discontinuance herein, and for leave to continue the action to judgment for the purpose of perfecting his own rights herein. Smith, P. J. On reading the appeal book, we are satis- fied with the conclusion of the learned judge at Special Term that the defendant John D. Safford is solvent and able pecuniarjy to respond to the appellant for whatever compensation he may be entitled to as the attorney of the defendants in this action, and also that the settlement com- plained of was not made coUusively or with intent to de- fraud the appellant. The settlement was made before judg- ment. Such being the facts, the appellant has no footing which gives him a right to set aside the settlement and continue the action for the purpose of collecting his costs, unless the case is within the provisions of the Code which give an attorney a lien upon the cause of action before judg- ment. Those provisions are contained in section 66 of the Code of Civil Procedure, as amended in 1879, and are as follows: " From the commenceme nt of an action or the ^ervice_of an answer con taining a c ounter-claim, the at- torney w ho appears for a party nas a lien upon his client's" 7!ause"of' action or counter-claim wiiicn attacnes to a veraict. 18 274 PLEADING. report, decision or judgment in his cl ient's favor and tlie pro ceeds thereof in whosesoever hands they may com e; and cannot be affected by any settlement/betw een the par- tie£ befnj:e or after .judgment. " The question arises whether the appellant's clients have a counterclaim in this action to which his lien as an attor- ney can attach. The action is ejectm ent. The plaintiff, in his complaint, demands judgment for the possession of the premises described therein and damages for withhold- ing the same. Section 1531 of the Code of Civil Procedure provides that in an action of ejectment, ' ' w here permanent imp rovements have been made in good fa ith by the defend- ant, or those unde r whom he claims, wh ileJiald ing under 'color of title_ads£X§e]y to the plaintiff, the value thereof 3e allowed to the defendant in reduction of the dam- ages of the plaintiff, but not beyondthe_ damages." Under that section, one of the defendants has set up in her answer what the pleader has termed a " counter-claim to the damages demanded " in the com- plaint, consisting of taxes paid and improvements and re- pairs made on the premises, to be set off in extinguishment or reduction of any claim for damages which the plaintiff may recover in the action. We think the answer does not present a counterclaim, within the meaning of section 66, to which the lien of the attorney can attach. A cause of antin n ia e ssential to con- _ _sfTFute a._ counterclaim as defin ed by the Code. (Sec. 501.) Here is no cause of action and no claim wnicn is or can be the subject of affirmative relief. The claim set up is only available to meet or reduce any claim for damages which the plaintiff may recover, and if the plaintiff makes no claim for damages at the trial, or establishes none, the claim set up by the defendant goes for naught. In no ev ent can there be an affir mati ve recovery by the defendant, and consequently there is nothing involyg^ i^ thft antirm MAYO V. DAVIDGE. 275 jjpon_wliieli the defendant's attorney can have a lien for 2QStS i^S The order should be affirmed, with $10 dollars costs and disbursements. For remedies of an attorney under section 66 (now Judiciary- Law, § 475), see Fischer-Hansen v. Brooklyn H. R. Co., 173 N. Y. 492. The section has been held not to apply to an action in the Municipal Courts. People ex rel. Jaffe v. Fitzpatrick, 71 N. Y. Supp. 191. For helpful discussion of the nature of a counterclaim, read Vassar v. Living'ston, 13 N. Y. 257. A counterclaim must tend to defeat or diminish the recovery of plaintiff , In an p .fiti"^ ^^^- lught to restrain defendant fr om using an alleged name on the ^ound that plaintiff had acquired a right to rns eycln pivp use of it, defendant may as a counterclaim allege that he is the 'owner of the trade-name and ask that plaintiff be r estrained from usingk G. & H. Mfg. Co. V. Hall, 61 N. Y. 226. "^ lintiff . \ trade- n '.!nsijiz£' A MAYO V. DAVIDGE. 8 St. Rep. 844. Appeax, from an interlocutory judgment sustaining plain- t.if FV rlnmnTTPr tn q p.nnnt.prp.l aim interposed by the de- f endant s. Baestakd, p. J. The complaint is one for the foreclosure -of a mortgage made by k;ja llie IVL. Uavidge and her husband fo r $2.00 0. A judgment for a deficiency is asked agamst both the wife and the husband, and the loan, so far as dis- closed by the complaint, was made to them jointly. They answer, and, among other defenses, aver a loan made by the husband to the plaintiff, a balance due thereon, an assignment of that balance to Longuemon and a reas- signment of the same by him to the defendants Davidge and husband. The answer does no t contain an averme nt that th e ^'V_j jui» i -u . -. .....'1'. Jii iiii WL i .i. ,,^1 jiLjMgJl i Ji i I II - I ii^nMUBjgi y ^ l- ii, - Rig-Time nt was made or that the defen dants abQs:a..~Baj nedi o' ^oned the title thereto befo r,gJ-.he fiOTmnpnf^PTaiP.Ti|; nf thiRJ acfioiK 276 PLEADING. A demurrer was interposed to the counterclaim thus pleaded. By section 501 of the Code the character of a counter- claim is established. In any action on contract ' ' any other cause of action on contract existing at the commencement of the action." ' By_ section 495 it i s ma _de_a_sause fox, dem urrer to a counterclaim that .it, is ..not., of the^ charac ter ^specified i n section 501. I t is. therefore, essenti al t o a countercla im that it exist J ri the hands of the defendants 3yho set it up at the time of _t1ifi cnriiTTiericemerit of the a.o^\c)r\. The rights of the parties become fixed according to the facts which existed when the plaintiff commenced his action. This is in accordance with the rules of pleading as they have always existed. It is never proper for a party defendant to buy a defense or a counterclaim after he is sued. Insolvency was never a reason why t]ie rule of pleading should vary. All parties are under the same rules of plead- ing. It cannot be assumed that the wife, under the allega- tions of the complaint, is not liable foV the deficiency, and that the husband is alone liable so as to prevent the counter- claim on behalf [of] the husband: The husband does not own the satne; his former title passed from him and the reassignment was taken to .the wife and husband. Their right to set it up does not exist because it was ac- quired after suit brought. Judgment affirmed, with costs. In Rice v. O'Connor, 10 Abb. Pr. 362, a demurrer to a counter- claim was sustained because the answer alleged " that plaintiff is indebted to defendants," etc., instead of " that before and at the time of the com- mencement of this suit plaintiff was and still is indebted to defendants," etc. "-^ ""^ CAEPENTER V. MANHATTAN L. CARPENTER v. MANHATTAN L, 93 N. Y. 552. Eabl, J. The actionwasJ)roiaght to recover against the/ defendant f or jthe w rongful con version, on the 23d day on January, 1879, of a quantity-of cord^^wood. The answer ad- mitted the possession of the wood by the plaintiff, and that the defendant took the same, but denied that the plaintiff owned the wood ; and then for a counterclaim, it was alleged that on the 28th day of September, 1871, one Markham, then the owner in fee of the land mentioned in the complaint, executed to the defendant a bond, and a mortgage as col- lateral thereto on the land, to secure the payment to the defendant of the sum of $45,000, with interest; that there- after, on default of payment of the sum thus secured,' the defendant foreclosed the mortgage and became the pur- chaser at the foreclosure sale, for a sum which left a deficiency of over $17,000, for which judgment was entered against Markham, who was then, and for three years had been, to me knowledge of the plaintiff, wholly insolvent; that the land was, to the knowledge of the plaintiff, insuf- ficient security for the amount of the bond and mortgage, and he being a second mortgagee with such knowledge, and in possession of the land, between November 7, 1877, and January 23, 1879, wrongfully, fraudulently and with intent to cheat and defraud the defendant, and with the intent to reduce its security and deprive it of such security, cut or Pflngpti +.f) be cut from the land'Fhe wood mentioned in th e' complaint, thereby wasting the land, and lessening and re- "d ucing defendant's security to its aamage $5U 0.~ " Upon the trial, after the plaintiff had proved his title to the wood, its quantity and value, and the conversion thereof by the defendant, and had rested his case, the defendant then offered to prove the facts alleged in the answer by way of counterclaim, and the plaintiff objected to such proof 278 PLEADING. and the court sustained tlie objection. From the judgment entered in favor of the plaintiff, the defendant appealed to the General Term, and there the judgment was reversed, and then the plaintiff appealed to this court. It is admitted by the plaintiff, as claimed on the part of the defendant, that the facts alleged in the answer show a cause of action against the plaintiff. But the plaintiff's claim is, and so it was held at the trial term, that the cause of action did not arise out of the transaction set forth in the complaint, and was not connected with the subject of the action, and hence was not a proper counterclaim under section 501 of the Code. The transaction set forth in the complaint was the con- version of the wood, and hence it cannot be said that the counterclaim arose out of that transaction. But, was it not connected with the subject of the action? The word " con- nected " may have a broad signification. The connection may be slight or intimate, remote or near, and where the line shall be drawn it may be difficult sometimes to determine. tThe counterclaim must have such a relation to, an d con- nection with, the su'bject 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 cou nter- clai m should be settled in one action bv one litigatio n : and that the claim of the one should be offset against, or ap - pliftd nprrn , the plaim nf t||f^ ^flipr Here it is sufficiently ac- curate to say that the subject of the action was the wood wrongfully taken by the defendant, and the counterclaim was for damages sustained by the defendant, in the wrong- ful impairment of its security," by the severance of the same wood from the land, and thus diminishing the value of the land by the value of the wood. In such case it is certainly Just that the defendant should counterclaim its damages for the severance of the '^"'^^ agai nst the plaintiff 's _clfiiTn fnr — , t^n "^nyrr^inwi iithftrrnf In the forum of conscience, the MICHIGAN SAVINGS BANK V. JIILLAK. 279 jplaintiff was under obligation to r^tore the wQ^rl in t.Ti'ff Trmst nnt r>y]1y hft TT]ptnf^1 in thp PY t.ftnt_ tnat they are owing by each to the other, but they must be ^UlQ . an d jiayable. and, therefore, a claim not diT 's Tca^p ot^be^" " , &et-o^^a gaiast-gn ewhi c h m ayJbe-ili ereaf ter "Snfors^. (De The view thus expressed as to the construction of section 1909 of the Code of Civil Procedure is strengthened when that section is read in connection with section 502, which relates to counterclaims, and provides, in subdivision 1, that if the action is founded upon, a contract which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto or an assignee of the contract at the time of the 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 so allowed against the party or the assignee while the contract belonged to him. " To compel a set-off both debts must Lave been due and payable at the same time, and before a change in the ownership of either." Taylor v. Mayor, 82 N. Y. 17. — ■ " If an assignee of a claim desires to protect himself against the pur- chase by the debtor of claims against the assignor, he hsis only to give notice of the assignment to the debtor. If he neglects to do this, then it is reasonable to permit the debtor to purchase in good faith any valid claim against his original creditor and to use it as a counterclaim when sued." From opinion, Faulknor v. Swart, 55 Hun, 261, 264. ** c_ HOPKINS V. LANE, 283 HOPKINS/^. LANE. 87 N. i. 501. Eael, J. This action was brought to recover on a promissory note given in part payment of cheese sold by the plaintiffs to the defendant Daniel W. Lane and to Darius W. Benjamin and Quincy Matthewson. The cheese was de- livered and each of the purchasers gave a note for his share of the purchase-money. This note was given b y Daniel^ .,"W. fo r hia gTiaT-Q^ flnr) was «ip; ned by Victorv L. h f]j^<^ «« anrAtf ifm^im. The defendants in their answer set up a counter- claim for breach of wa^anty and fraud in the sale of the cheese. One of the grounds upon which the defendants were defeated as to the alleged counterclaim at the trial was that they could not avail th ems evgs_Qf it, as it belonged, to the th r ee purchase rs^jointly. -The answer alleged that the sale of the cheese was To the three as- joint purchasers, and that allegation was sustained by th^ proof. There was no proof showing that there was a separate contract with each purchaser or a separate warranty to, or fraud per- petrated upon, each purchaser. For the convenience of the purchasers, and with the o^ljfsent of the sellers, the cheese was paid for by the separate notes properly secured of the purchasers, and after the notes were thus given there re- mained no joint obligation to pay for the cheese, simply be- cause it had been paid for. Payment in this mode, however, d id not affect the contract 6f purchase or the relation be- "tween the partie s gr owliig out of the juinL puMiaije. — Any claim, therefore, for damages, growing out of the breach of warranty or the fraud, belonged to the three purchasers jointly and could not be used by one of them as a counter-i claim. One of them could not have separately sued the plaintiffs to recover such damages, and hence one of them separately cannot set up such damages as a counterclaim under section 150 of the Code of Procedure. As there was 284 PLEADING. no defense to this note, except by way of counterclaim, Daniel W. Lane was obliged to pay it, and the claim for damages on account of the breach of warranty and the fraud could be enforced only by an action in th'e name of all the purchasers against the sellers. If, however, any one of the purchasers refused to join as plaintiff in such an action, he could be made a defendant. We are, therefore, of opinion that the judgment should be affirmed, with costs. "While, as a general principle, 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 statute. (2 Story's Eq. Jur., § 1437.)" Bathgate v. Haskin, 59 N. Y. 533, 537. \/atwater v. spader. I 12 St. Iter. 506. Dykman, J. This is an action upon an undertaking exe- cuted by Margaret G. Spader and J, Van derb ilt Spader for the procurement of an order of arrest in- a civil action brought by John A. McCaul against William H. Gale, for the recovery of money re^ic'ed by him in a fiduciary capacity. The order of arrest was obtained, but when the cause came on for trial the complaint was dismissed and the de- fendant had judgment for the costs of the action. The defense to the action is this : Prior to the institution of the action of McCaul against Gale, Gale was indebted to the defendant J. Vanderbilt Spader for money loaned to him individually, and also for money loaned to- Eim and Louis Spader. *" ~""^ The claim for money loaned to Gale and Spader was assigned to the defendant Margaret G. Spader, and she sets it up as a coui^rclaim in this action^ The defendant, J. Vanderbilt Spader sets up the individua^l indebtedness of THOMPSON V. WHITEMAKSH. 285 Gale as a counterclaim, and there is more tlian sufficient due upon each of these claims to extinguish any amount the plaintiff can claim in this action. All these facts are undisputed, and the sole question involved has reference to the applicability of the counterclaim to the extinguishment of the plaintiff's claim upon the undertaking. The undertaking upnn whir^h ih]^ action is brough t is jomt and several, and a separate jndg'mftnt mi.o 'Tit. bp re- covered in favor of the plaintiff against either one of the defendants. , and the ooi iritprr'lgiTn iTitpy pnapn rp pT-paptil-a-Tr cause of actio n ^against the person wjmm jbe plaintiff repre-_ sents existingLiit the time of the commencement of this action. The requirements for the allowance of a counterclaim are prescribed by section _50]^ of the Cqde of Civil Pro- cedure, and they are all satisfied and fulfilled by the facts of this ease. The allowance of the counterclaim against the assignee of the undertaking was justified by section 502 of the Code, and justice has been obtained. The judgment should be affirmed, with costs. In an action upon contract bro^*> by one member of a partnership, defendant may not counterclaim a claim against the firm, unless the insolvency of the fiim furnishes ground for the interposition of equity.^ Spafford v. Eowan, 124 N. Y. 108. THOMPSON V. WHITMARSH. 100 N. Y. 35. App EAii from a j udgment entered upon an or der of the ^gie7il^TfijaMZ:aJi3±:de33a;£tmen4~»^ Januar y 23^;^jL8837 affirming a judgment e ntered upon report of referee in favor nf .tlu>-plai-p,f.ifF ff|^ IIi'^'tI ji] interests' and costs. ""'""" The action was brought to recover certain money de- livered,vand the purchase price of certain chattels sold b 286 PLEADING. plaintiff to defendant, which plaintiff held as executrix of Charles Thompson, deceased. The defendant sought to counterclaim an indebtedness due from Charles Thompson to him. FisrcH, J. It is not denied in this ease that, irrespective of sections 449 and 1814 of the Code, and before its enact- ment, an executor or administrator, seeking to Enforce a contract made by himself and not by the decedent, could sue in his own name; and that in such action a demand against the decedent belonging to the defendant could not be used as a counterclaim to diminish or extinguish the re- covery. It is i nsisted, however, that the effect of these sec- tions is to change the law, and compel the executor or ad- ministrator to-sue in his representative -eapaeity^SEEilbis^ recovery will be, assets , an d is f or_the_hfia-. " It is the settled law in this state that for a defendant to preclude a plaintiff from contesting a counterclaina because of a failure to sethe result was reached by treating the conveyance by the defendants as fraudulent, or by compelling them to account for the pro- ceeds of the property, as provided under the statute, does not affect the substantial purpose of the action. The amended complaint relieved the defendants from the im- putation of fraud, and in that respect might be deemed more favorable to them. If they could have defeated the action in its original form this was no just reason why they should not, by amendment of the complaint, be put in a position where the real controversy as between the cred- itors and themselves may be tried and adjudicated. The order of the General Term should be reversed and that of the Special Term affirmed, with costs in both courts. HATCH V. CENTRAL NAT. BANK. 78 N. Y. 487. Appeal from order of General Term of the Supreme Court, in the first judicial department, modifying and affirming as modified an order of Special Term. The Special Term order, granted on plaintiffs' motion, directed that a judgment herein in favor of plaintiffs be opened and the record thereof canceled, and that plaintiffs be allowed to serve an amended complaint, setting up an HATCH V. CENTRAL NAT. BANK. 339 additional cause of action, on condition that plaintiff refund and repay the amount of said judgment, which had been paid and satisfied by defendant; with certain other con- ditions and provisions. The order of General Term modi- fied this order by adding another condition, in substance, that plaintiff give a bond conditioned, that if defendant be obliged to pay the claims set up by the amendment and is defeated in an action brought by it to collect of its princi- pals, then that plaintiffs refund, etc. The summons asked for a recovery of $8,000 and interest. The original complaint alleged, in substance, that plain- tiffs, on September 28, 1867, purchased of defendant what purported to be four United States treasury notes of $1,000 each, which were counterfeits. Plaintiffs obtained judg- ment for the amount paid, with interest, August 5, 1876, which judgment was paid August seventh. The amend- ment allowed was to add a count setting forth the purchase of four other similar counterfeit notes on September 25, 1867, which it was claimed were omitted from the original complaint through mistake. The order granting the motion was made February 5, 1879. Danforth, J. The plaintiffs recovered judgment, and it was satisfied. They sought by motion to vacate the judg- ment, and amend the complaint by adding new causes of action. Leave was granted upon terms. So far as the causes of action were stated in the complaint they were merged in the judgment ; the judgment was paid and satis- fied. There was no longer a judgment, and the parties were out of court. It is urged by the appellant's counsel that the court had no power to allow the amendment, and the plain- tiffs' counsel contends that it was a matter within its dis- cretion. It was going a great way to grant the relief sought ; but the application was not without merit, and was one which under a long series of authorities the court 340 PLEADING. had power to grant. If so the order is not appealable. * * * In the case of Minthorne (19 Johns. Eep. 244), after judgment and satisfaction both were opened to allow an amendment by adding to the recovery. It was made necessary by the omissions of the clerk in assessing the damages. So in Crookes v. Maxwell (6 Blatchf. 468), the court on motion of the plaintiff made in 1867, opened a judgment recovered in 1862, and then paid and satisfied of record, in order to permit errors in the assessment of damages to be corrected, and this was done, although after the judgment of 1862, a new suit had been commenced for the recovery of the sums so omitted, and the plaintiff de- feated because of the Statute of Limitations. In Deane v. O'Brien (13 Abb. Pr. 11), the plaintiff was allowed to amend by enlarging his cause of action, although he thus avoided the Statute of Limitations, and ' ' it might affect third parties." These (and there are many other; cases show the power of the court over its own judgments, and its habit to exercise it in aid of justice. It is an in- herent power 'and not limited in matters of substance by the sections of the Code (section 174 of old Code, section 724 of the new Code), and others referred to by the learned counsel for the appellant, while section 723 seems to au- thorize its exercise in furtherance of justice. In the case before us the summons claimed an amount corresponding to the sum of all the notes while the com- plaint was for part only. The suit was commenced when the summons was served, and therefore no question arises here as to the Statute of Limitations; but even if it did, the precedents are numerous where amendments have been allowed so as to prevent its operation. Balcom v. Wood- ruff (7 Barb. 13), where after nonsuit an amendment was allowed nunc pro tunc, and in New York Ice Co. v. North- western Ins. Co. (23 N. Y. 357), the judgment was amended by giving leave to serve a new complamt, in place of dis- HOROWITZ V. GOODMAN. 341 missal without prejudice. Tlie order in this ease may go a little further, but it is in the same direction. The appeal should therefore be dismissed, but without costs. See Davis v. K Y., L. E. & W. R. Co., 110 N. Y. 646; Eighmie v. Taylor, 39 Hun 366. HOROWITZ V. GOODMAN. 112 App. Div. 13. Appeal from an order granting leave to plaintiff to serve a so-called " amended and supplemental complaint." Ingraham, J. This action was commenced in June, 1905. In the original complaint the plaintiff alleges that she is the lessee of certain premises belonging to the defendant, and that the defendant had caused a portion of the leased premises to be cut away for the purpose of constructing water closets and shafts, and threatens to further cut away the ceiling and floors of the leased premises and to con- struct such water closets and shafts without the authority and consent of the plaintiff; and the plaintiff demands that the defendant be restrained from constructing and maintaining said water closets and shafts and from break- ing the ceiling and floor of the plaintiff's store, and from in any way trespassing upon or interfering with the said store of the plaintiff. The lease was annexed to the original complaint. 'The plaintiff made a motion for a temporary injunction, which was denied. The answer was served and the case was put upon the calendar for trial. Subsequently the plaintiff moved for leave to serve an amended and supplemental complaint upon an affidavit alleging that after the ac- tion was commenced the defendant had wrongfully entered upon the plaintiff's premises and wrongfully con- structed said shaft and water closet in said premises ; that 34:^ PLEADING. during the commission of such act certain personal prop- erty of the dei ondant m the store was damaged; that the defendant had thus completed subsequent to the commence- ment of the action the wrongful acts threatened prior to the commencement of the action and alleged in the com- plaint herein, and has so damaged the personal property of the plaintiff in the course of his wrongful acts of tres- pass ; that in order to prove said acts so committed by the defendant subsequent to the commencement of the action it is necessary that a supplemental and amended complaint be served herein, the commission of said acts subsequent to the commencement of the action necessitating an amend- ment of the complaint herein, as deponent is advised by her counsel and verily believes. Annexed to this was the pro- posed pleading, which was intended to take the place of the original complaint. The Code of Civil Procedure recog- nizes no such pleading as an " amended and supplemental complaint." Section 478 of the Code provides that " The first pleading on the part of the plaintiff, is the complaint ; ' ' and section 481 provides that 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 judg- ment to which the plaintiff supposes himself entitled." Sections 542 and 543 of the Code allow an amendment to a pleading of course. By section 546 the court may require indefinite or uncertain allegations to be made definite and certain by amendment; and sections 539 and 540 provide for an amendment where there is a variance between an allegation in a pleading and the proof. Section 723 of the Code authorizes the court, upon the trial, or at any other HOKOWITZ V. GOODMAN. 343 stage of the action, to amend any process, pleading or other proceeding, 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 pro- ceedings to the facts proved; and further power in rela- tion to amendments is given by section 724 of the Code. This power in relation to an amendment to the original complaint relates to the insertion of an allegation of fact existing at the time of the commencement of the action, and thus amendments to a complaint are authorized t6 allow the insertion of allegations of fact existing when the action was commenced and upon which the action is to be maintained. Provision is then made by section 544 of the Code for what is called " supplemental pleadings." That section provides that ' ' Upon the application of either party, the court may, and, in a proper case, must upon such terms as are just, permit him to make a supplemental com- plaint, answer or reply, alleging material facts which oc- curred after his former pleading, or of which he was ignorant when it was made. * * * The party may apply \for leave to make a supplemental pleading, either in ad- dition to, orjiL.pl««e of, the former pleading." The facts which may be alleged by way of a supplemental pleading are ' ' material facts which occurred after his former plead- ing, or of which he was ignorant when it was made." Just what is meant by the provision that this supplemental plead- ing may take the place of the former pleading is not clear, but it has been uniformly held that " the plaintiff could not, by a supplemental complaint, change the action in its entire scope and purpose by bringing in and substituting a new controversy, and a new and independent cause of action springing out of a transaction occurring since the commencement of the action between the defendants, with which the plaintiff had no connection." (Prouty v. Lake Shore & Mich. So. E. E. Co., 85 N. Y. 275, and cases there 344 PLEADING. cited.) It would seem that under these provisions of the Code the complaint in the action must consist of facts in existence at the time of the commencement of the action and upon which the plaintiff bases his right to relief. It may be amended by the court so as to include facts then existing and which are material to the plaintiff's cause of action. As to material facts which occurred after the serv- ice of the complaint, or of which the plaintiff was ignorant when his complaint was made, the plaintiff may allege such facts by way of supplemental complaint, and such a sup- plemental complaint may be served in place of the original complaint, in which case it would entirely supersede it. The plaintiff in this case has attempted to unite in one com- plaint called an " amended and supplemental complaint " facts alleged in the original complaint and which occurred prior to the service of his original complaint and the facts which have occurred after the service of the original com- plaint and which she seeks to set up by way of supplemental pleading. I think this practice improper and that it should not be allowed. It is in substance commencing a new action to recover upon facts alleged after the commencement of ithis action and would introduce an element of uncertainty and confusion. The original complaint in this action was one in equity and demanded a judgment enjoining the de- fendant from proceeding to make certain changes in the premises which had been leased to the defendant under orders of the tenement house commission. The new plead- ing proposed by the plaintiff as an " amended and supple- mental complaint," alleges all the facts set up in the orig- inal complaint, and also other facts not in the original com- plaint which happened before the commencement of the action, and further alleges that subsequent to the com- mencement of the action, the defendant entered upon the leased premises, constructed the appliances required by the tenement house commission, ejected the plaintiff from HOROWITZ V. GOODMAN. 345 certain portions of the leased premises and caused the plaintiff substantial damage, and the relief that the plain- tiff now demands is that the defendant be compelled to remove such appliances so placed upon the leased premises and that the plaintiff have judgment against the defend- ant for the sum of $15,000. I think the plaintiff should have been granted leave to serve a supplemental complaint setting up the acts of the defendant after the service of the former pleadings in carrying out the acts which, when the former pleadings were served, were threatened, and stating the damages occa- sioned thereby and asking to recover in this action such damages. Upon the trial the facts would then have been ^ presented to the court under the original complaint, upon V which the right of the plaintiff to maintain the action would depend, and the relief to which the plaintiff would be en- titled would depend upon the facts alleged in the original and 'Supplemental complaints, but if the plaintiff had no right to maintain the action as one in equity the cause of action could not be bolstered up by the facts alleged after the commencement of the action. If upon the trial it ap- peared that the plaintiff at the time it was commenced was authorized to maintain it as an action in equity, the court would have power to retain the action and to grant the plaintiff such relief as she was entitled to, although, in con- sequence of the wrongful acts of the defendant afj;er the commencement of the action, equitable relief would not give the plaintiff full relief, buijLt,_was irregular t o attemp t to set up by wav in one complaintTac ts whicn o ccurre d befo re and after the com mencement of the action and at - t empt thereby t.n snstaip a new cause of action against the def endant. For this reason I think this " amended and supplemental complaint " should not have been allowed, and that the order appealed from should be reversed, with $10 costs PLEADING. and disbursements, and the motion for leave to serve this pleading denied, with $10 costs, without prejudice to a motion to be made by the plaintiff for leave to serve a proper supplemental complaint. In Holly V. Graf (29 Hun, 443), the answer set up unexpired credit as a defense in an action for goods sold. Held, plaintiff could not set up in a supplemental complaint expiration of the term of credit after action commenced. But in Corbin v. Knapp (5 Hun, 197), further pub- lication of a libel after action commenced was allowed to be alleged by supplemental complaint as an aggravation of the original wrong, f Devolu- tion of interest pendente lite is properly alleged by supplemental com- plaint or amended answer, for the complaint speaks from the commence- ment of the action but the answer only from its service. But, Galm v. Sullivan (117 App. Div. 236), Laughlin, J. "^His'is an action to recover damages for personal injuries alleged to have been sustained by the plain- tiff through the negligence of the defendant. After the defendant answered and noticed the case for trial, and placed it upon, the calendar, the plaintiff settled his claim with the defendant and executed a release of his cause of action. The defendant thereafter and within the time within which he was authorized to amend his answer as of course, and without leave of the court, served an alleged amended answer, setting up the release as a de- fense. It is manifest that this defense, arising after the original answ-er was served, could only be interposed by leave of the court and in the form of a supplemental answer. (Code Civ". Proc, § 544.) " It follows that the order should be reversed." CHAPTER IV. STATUTE OF LIMITATIONS. 1. Nature. CAMPBELL V. HOLT. 115 U. S. 620. In holding that the repeal of a statute of limitation of actions on personal debts does not, as applied to a debtor, the right of action against whom is already barred, deprive him of his property in violation of the Fourteenth Amend- ment, of the Constitution of the United States, the court said, speaking by' Mr. Justice Miller : The action is based on contract. It is for hire of the negroes used by the father, and for the money received for the land of his daughter, sold by him. The allegation is of indebtedness on this account, and the plea is that the action is barred by the statute of limitations. It is not a suit to recover possession of real or personal property, but to recover for the violation of an implied contract to pay money. The distinction is clear, and, in the view we take of the case, important. By the long and undisturbed possession of tangible prop- erty, real or personal, one may acquire a title to it, or own- ership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title. This superior or antecedent title has been lost by the laches of the person holding it, in failing within a reasonable time to lassert it effectively; as, by resuming the possession to which he was entitled, or asserting his right by suit in the [347] 348 STATUTE OF LIMITATIONS. proper court. What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. 'This is the foundation of the doctrine of prescription, a doctrine which, in the English law, is mainly applied to incorporeal hereditaments, but which, in the Eoman law, and the codes founded on it, is applied to property of all kinds. Mr. Angell, in his work on Limitations of Actions, say% that the word limitation is used in reference to " the time- which is prescribed by the authority of the law {anctoritate legis, 1 Co. Litt. 113) during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or suit in equity can be maintained ; ' ' and in the Roman law it is called Praescriptio. " Prescription, therefore (he says), is of two kinds- — that is, it is either an instrument for the acquisition of property, or an instrument of an exemption only from the servitude of judicial process." Angell on Limitations, §§ 1, 2. Possession has always been a means of acquiring title to propertynt was tlie~earlieStTno(re recognized by mankind ofThe appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirm- ing or creating title. The English and American statutes of limitation have in many cases the same effect, and, if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title — a title superior to that of the latter, whose neglect to avail himself CAMPBELL V. HOLT. 349 of his legal rigjits lias lost liim his title. This doctrine has been repeatedly asserted in this court. Leffingwell v. War- ren, 2 Black,' 599; Croxall v. Shererd,-5 Wall 268, 289; Dickerson v. Colgrove, 100 U. S. 578, 583; Bicknell v. Corn- stock, 113 U. S. 149, 152. It is the doctrine of the English courts, and has been often asserted in the highest courts of the States of the Union. It may, therefore, very well be held that, in an action to recover real or personal property, where the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, such act deprives the party of his property without due process of law. The reason i"s, that, by the law in existence before the repealing act, the property had become the de- fendant's. Both the legal title and the real ownership had become vested in him, and to give the act the effect of trans- ferring this title to plaintiff, would be to deprive him of his property without due process of law. But we are of opinion that to remove the bar which the statute of limitations enables a debtor to interpose to pre-^ vent, the payment of his debt stands on very different ground. A case aptly illustrating this difference in the effect of the statute of limitations is found in Smart v. Baugh, 3 J. J. Marsh. 364, in which the opinion was delivered by Chief Justice Eobertson, whose reputation as a jurist entitles his views to the highest consideration. The action was de- tinue for a slave, and the defendant having proved his un- disturbed possession of the slave for a period of time which would bar the action, but having failed to plead the statute of limitations, the question was whether he could avail him- self of the lapse of time. " The plea (said the court) is non detinei in the present tense, and under this plea any- thing wh0h will show a better right in the defendant than in the plaintiff may be admitted as competent evidei^ce. 350 / STATUTE OF LIMITATIONS. '"'" / The plea puts in issue the plaintiff's right. Five years un- interrupted adverse possession of a slave not only bars the remedy of the claimant out of possession, but vests the absolute legal right in the possessor. Therefore, proof of such possession may show that the claimant has no right to the slave and cannot recover. Consequently it would seem to result from the reason of the case, that the adverse pos- session may be proved under the general issue." Answer- ing the objection that in assumpsit and other actions the statute to be available must be pleaded, and by analogy should be pleaded in that case, he says : ' ' The same reason does not apply to assumpsit, because the statute of limita- tions does not destroy the right in joro conscientiae to the. benefit of assumpsit, but only bars the remedy if the defend- ant chooses to rely on the bar. Time does not pay the debt, hut time may vest the right of property." Again he says: " This is perfectly true in detinue for a slave, because, in. such a case, the lapse of time has divested the plaintiff. of- his right of property, and vested it in the defendant. . . . But it is not so in debt, because the statute of limitations does not destroy nor pay the debt." " This (he says) has been abundantly established by authority. . . . A debt barred by time is a sufficient consideration for a new as- sumpsit. The statute of limitations only disqualifies the plaintiff to recover a debt by suit if the defendant rely on time in his plea. It is a personal privilege, accorded by law for reasons of public expediency; and the privilege can only be asserted by plea." The distinction between the effect of statutes of limitation in vesting rights to real and personal property, and its operation as a defence to contracts, is well stated in Jones V. Jones, 18 Ala. 248. See also Langdell's Equity Pleading, §§ 118 et seq. , We are aware that there are to be found, in the opinions of courts of the States of the Union, expressions of the CAMPBELL V. HOLT. 351 idea that the lapse of time required to bar the action ex- tinguishes the right, and that this is the principle on which the statutes of limitation of actions rest. But it will be found that many of these are in cases where the suits are for the recovery of specific real or personal property, and where the proposition was true, because the right of the plaintiff in the property was extinguished and had become vested in the defendant. In others, the Consti- tution of the State forbade retrospective legislation. That the proposition is sound, that, in regard to debt or assump- sit on contract, the remedy alone is gone and not the obliga- tion, is obvious from a class of cases which have never been disputed. L^It is uniformly conceded, that the debt is a sufficient consideration for a new promise to pay, made after the bar has become perfect. 2j- It has been held, in all the English courts, that, though the right of action may be barred in the country where the defendant resides or has resided, and where the contract was made, so that the bar in that jurisdiction is complete, it is no defence, if he can be found, to a suit in another country. * * * There are numerous cases where a contract incapable of enforcement for want of a remedy, or because there is some obstruction to the remedy, can be so aided by legis- lation as to become the proper ground of a valid action ; as in the case of a physician practising without license, who was forbidden to compel payment for his service by suit. The statute being repealed which made this prohibition, he recovered in the court a judgment for the value of his services on the ground that the first statute only affected the remedy. Hewitt v. Wilcox, 1 Met. (Mass.) 154. Of like character is the effect of a repeal of the laws against usury, in enabling parties to recover on contracts in which the law forbade such recovery before the repeal. Wood v. 352 STATUTE OF LIMITATIONS. Kennedy, 19 Ind. 68; Welch v. Wadsworth, 30 Conn. .149; Butler V. Palmer, 1 Hill, 324; Hampton v. Commonwealth, 19 Penn. St. 329 ; Baugher v. Nelson, 9 Gill. 304. In all this class of cases the ground taken is, that there exists a contract, but, by reason of no remedy having been provided for its enforcement, or the remedy ordinarily ap- plicable to that class having, for reasons of public policy been forbidden or withheld, the legislature, by providing a remedy where none exists, or removing the statutory ob- struction to the use of the remedy, enables the party to enforce the contract, otherwise unobjectionable. Such is the precise case before us. The implied obliga- tion of defendant's intestate to pay his child for the use of her property remains. It was a valid contract, implied by the law before the statute began to run in 1866. Its nature and character were not changed by the lapse of two years, though the statute made that a valid defence to a suit on it. But this defence, a purely arbitrary creation of the law, fell with the repeal of the law on which it depended. It is much insisted that this right to defence is a vested right, and a right of property which is protected by the pro- visions of the Fourteenth Amendment. It is to be observed that the word vested right is nowhere used in the Constitution, neither in the original instrument nor in any of the amendments to it. We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hered- itaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the lan- guage of the Constitution. We certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case. The statutes of limitation, as often asserted and especially by HULBBET V. CLARK. 353. this court, are founded in public needs and public policy — are arbitrary enactments by the law-making power. Tioga Railroad v. Blossburg and Corning Railroad, 20 Wall. 137, 150. And other statutes, shortening the period or making it longer, which is necessary to its operation, have always been held to be within the legislative power until the bar is complete. The right does not enter into or become a part of the contract. No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says, time shall be no bar, though such was the law when the contract was made. The authorities we have cited, especially in this court, show that no right is destroyed when the law restores a remedy which had been lost. y /f 1"^ ■V HULBERT V. CLARK. 128 N. Y. 295. Appeal, from judgment of the General Term of the Su- preme 'Court in the fifth judicial department, entered upon an order made October 23, 1890, which modified, and affirmed as modified, a judgment in favor of plaintiffs en- tered upon the report of a referee. This action was commenced in July, 1887, to foreclose a mortgage executed and delivered by the defendants to Eeuben D. Hulbert, the plaintiffs' intestate, on the 8th day of March, 1867. The mortgage, as stated therein, was given to secure the payment of eight promissory notes of $500 each held by Hulbert, all bearing the same date as the mortgage, and maturing at different times within nine months from their date. It was provided that the mortgage should become void if the notes, principal and interest should be paid at maturity, but that in case of default in the payment of the notes or any part thereof, it should be lawful for the mort- 23 ^54 STATUTE OF LIMITATIONS. gagee to sell tlie mortgaged premises in the manner pre- scribed by law, and out of the moneys received upon such sale to retain the amount then due and unpaid upon such notes, and to pay the balance, if any, to the mortgagor Wil- liam B. Clark. There was no covenant to pay the notes or the mortgage. The answer alleged payment of the notes, a set-off and the six years ' Statute of Limitations. The action was referred and tried before the referee. He found that two of the notes had not been paid, and that there was due theron over and above the set-offs al- lowed by him the sum of $1,310.09 ; and he decided that the mortgage was a subsisting security for that sum, and or- dered judgment of foreclosure. Eael, J. The sole question for our determination is whether the mortgage continued to be a subsisting lien and could be foreclosed after an action at law upon the notes was barred by the Statute of Limitations. This is an interest- ing question which has given rise to considerable discussion in the courts of this country and England. We do not, how- ever, deem it difficult of solution. The Statute of Limitations does not after the prescribed period destroy, discharge or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel pay- ment. The legislature could repeal the Statute of Limita- tions and then the payment of a debt upon wliich the right of action was barred at the time of the repeal, could be en- forced by action, and the constitutional rights of the debtor are not invaded by such legislation. It was so held in Campbell v. Holt (115 U. S. 620). It was held in Johnson V. Albany & Susquehanna E. E. Co. (54 N. Y. 416), that the Statute of Limitations acts only upon the remedy; that it does not'impair the obligation of a contract or pay a debt HULBERT V. CLAEK. 355 or produce a presumption of payment, but that it is merely a statutory bar to a recovery ; and so it was beld in Quan- tock V. England (5 Burr. 2628), and so it has ever since been held in the English courts. These notes were, therefore, not paid, and so the referee found. The condition of the mortgage has, therefore, not been complied with. The notes being valid in their incep- tion the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security and can be foreclosed. The mortgage being under seal can be foreclosed by action at any time within twenty years. (Code, § 381.) It is only an action upon the notes that is barred after six years. (Code, § 382.) It is a general rule recognized in this country and in England that when the security for a debt is a lien on prop- erty, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred. The subject has several times been under consideration in the courts of this state. In Jackson v. Sackett (7 Wend. 94), ejectment was brought on a mortgage executed as col- lateral security for the payment of a sum of money secured to be paid by a note. The note had been past due more than twenty years when the action was commenced. Upon the trial it was the contention of defendant 's counsel that from the lapse of time the note must be presumed to have been paid, and on that ground the court nonsuited the plaintiff. The Supreme Court upon review held that the evidence as to payment ought to have been submitted to the jury, and nothing else was decided. It was, in fact, held that payment of the note was the only defense to the action, but the judge writing the opinion expressed what must now be conceded to be erroneous views as to the presumption of payment furnished by the Statute of Limitations. He appeared to 356 STATUTE OF LIMITATIONS. be of opinion that after six years there was a statutory pre- sumption of payment, not a presumption of law, but a pre- sumption of fact from which, with other evidence, the jury might infer payment. In Heyer v. Pruyn (7 Paige, 465), the chancellor said that the intimation of an opinion by Justice Sutherland in Jackson v. Sackett, ' ' that a mortgage to secure a simple contract debt was presumed to be paid in six years because the Statute of Limitations might at the expiration of that time be pleaded to a suit on the note, certainly cannot be law." The case of Pratt v. Huggins (29 Barb. 277) is quite like this. That was an action to foreclose a mortgage given to secure the payment of $250, for which the mortgagee at the same time took the mort- gagor's promissory note. The note and mortgage were dated February 5, 1835, and were payable February 1, 1836. The action was cemmenced September 6,' 1855. Upon the trial the defendant claimed that the plaintiff could not main- tain the action because an action upon the note was barred by the Statute of Limitations, and so the trial judge held and gave judgment for the defendant. The plaintiff ap- pealed to the General Term, and there, after much discus- sion and consideration the judgment was reversed, the court holding that a debt secured by a sealed mortgage and an unsealed note may be enforced by a foreclosure of the mort- gage after the expiration of six, but before the expiration of twenty years from the time when the debt became due ; that the lapse of six years is not conclusive evidence that the mortgage has been paid, and that the provision of the Statute of Limitations making the lapse of six years a bar in such a case, is in terms confined to an action upon the note, and does not operate to defeat a remedy on the mort- gage. Then, as here, there was no covenant to pay in the mortgage, and the mortgage was collateral to the note. In Mayor, etc. v. Colgate (12 N. Y. 140), it was held that the lien of an assessment which was to be regarded in effect HULBEET V. CLABK. 357 as a mortgage, could be enforced after the Statute of Lim- itations would have barred a common-law action against the person liable to pay the same for the recovery thereof. In Morey v. Farmers' Loan and Trust Co. (14 N. Y. 302), an action by the vendee for specific performance of a con- tract under seal to convey land, on paj'ment of the purchase- money, it was held that the presumption arising from the lapse of twenty years after the money became due was not sufficient evidence of payment to entitle the plaintiff to the relief demanded. To the same effect is Lawrence v. Bull in the same volume at page 477. In Borst v. Corey (15 N. Y. 505), it was held that an action to enforce the equitable lien for the purchase-money of land, was barred by the lapse of six years after the debt accrued. The reasoning by which the result was reached in that case is not altogether satis- factory, and yet that decision is not in conflict with the views we now entertain. The judge there writing the opin- ion said: " The equitable lien (for the purchase-money) is neither created nor evidenced by deed, but arises by operation of law, and is of no higher nature than the debt which it secures. ' ' He distinguished that case from one like this as follows : "It has, however, been held that when a mortgage was given to secure the payment of a simple con- tract debt, the statute limiting the time for commencing actions for the recovery of such debt was no bar to an action to enforce the mortgage," and he cited among other cases Heyer v. Pruyn. He said further : ' ' There is a material distinction between a mortgage and the equitable lien for the purchase-price of land given by law, and also between an action to foreclose a mortgage and one to enforce a lien. The action to foreclose a mortgage is brought upon an in- strument under seal, which acknowledges the existence of the debt to secure which the mortgage is given ; and by rea- son of the seal the debt is not presumed to have been paid until the expiration of twenty years after it became due and 358 STATUTE OF LIMITATIOXd. payable." In Johnson v. Albany & Susquehanna R. R. Co. (supra), the action was to compel defendant to issue its certificate for stock subscribed for after an action to compel the subscriber to pay for the stock had been defeated on the ground that the action was barred by the Statute of Limitations ; and it was held that the plaintiff, notwithstand- ing the statutory bar, could recover only upon proof of actual payment. In Lewis v. Hawkins (23 Wall. 119), Mr. Justice Swayne, writing the opinion, recognizes the rule above stated as follows : " That the remedy upon the bond, note or simple contract for the purchase-money is barred in cases like this, in no wise affects the right to proceed in equity against the land." Hardin v. Boyd (118 U. S. 756) was a bill in equity to set aside a conveyance of the pur- chase-money, and to make it a lien on the lands ; and it was held that, although the debt for unpaid purchase-nioney was barred by limitation under the local law, the lien therefor on the land was not barred. * * * We could go much further in these citations. But we have gone far enough to show that the rule applicable to a case like this is, both upon principle and abundant authority, as we have above stated it. There are cases in some of the states of this country which lay down a different rule. But those cases generally depend upon some local statutes, or are to be found in states where it is held that the Statute of Limitations not only bars the remedy but destroys and annihilates the debt by the presumption that it has been paid or discharged. Judgment affirmed. BUTLER V. JOHNSON. 359 2. In Equitable Actions. BUTLER V. JOHNSON. Ill N. Y. 204. From Opinion of Peckham, J. "After the death of the testator, and when the payment of the legacies became due, the legatee had several rem- edies to obtain such payment. She could have asked the surrogate to decree payment of them to her by the execu- trix, and payment could have been enforced if there were assets, and in this respect the real estate must under the will be regarded as assets . (2 E. S. 90, § 45; id. 116, § 18.) She could also, after the expiration of eighteen months, have cited the executrix to account before the surrogate, and an accounting could have been enforced. (2 E. S. 92, § 52 et seq.) She could also have proceeded by action for a simple accounting or for payment of the legacies, or she could have included in such action a prayer for relief that if there were not enough personal property to pay the legacies, the executrix should be compelled to exercise the power of sale of the real estate given her by the will, and with the proceeds pay such legacies. The six years statut e applied to- all these remedies, for they were of a legal nature, excepting the last. If there had been no other rem- edy than such last-mentioned one, it is plain the ten years statute would apply. The claim is made, upon the part of the plaintiff, that the subject-matter of such a suit, the cause of action, is the recovery of payment of the legacy, and that all these various modes of obtaining payment thereof are simply different remedies to attain the same object, and that when such is the case, and the two courts under the old system of law and equity had concurrent jurisdiction over the subject-matter or cause of action, and the remedy at law was as §ff^Qital as the eouitableone, the legal stat- 360 STATUTE OF Li:,IITATIOXS. ute of limitations applied to the remedy in equity and if the cause of action were barred at law, it was equally so in equity. This was the rule in the days before the adoption of the Code, and plaintiffs claim that it still exists. All the relief obtainable by action, in the nature of a suit in equity by the legatee herein, could have been obtained by an aption of a purely legal nature during six years. The proceedings before the surrogate were entirely adequate to obtain pay- ment of the legacies. Under the will the real estate would be treated as assets for the purpose of selling it to pay the legacies. The rule of limitation, that equity follows the law, in cases of concurrent jurisdiction of the two courts, was not brought into being by the Revised Statutes. In Hov- ender v. Lord Annesley (2 Sch. & Lef. 607), Lord Chancellpr Eedesdale stated : ' ' But it is said that courts of equity are not within the statutes of limitation. This is true in one respect. They are not within the words of the statutes, be- cause the words apply to particular legal remedies. But they are within the spirit and meaning of the statutes and have been always so considered. I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes. They act in obedience to them; the statute of limitations applying itself to certain legal remedies for recovering the possession of lands, for the re- covery of debts, etc., and equity which in all cases follows the law, acts on legal titles and legal demands, according to matters of conscience which arise and which do not admit of the ordinary legal remedies. Nevertheless, in thus ad- ministering justice according to the means afforded by a court of equity, it follows the law. * * * j think, there- fore, courts of equity are bound to yield obedience to the statute of limitations upon all legal titles and legal demands, and cannot act contrary to the spirit of its provisions. I think the statute must be taken virtually to include courts of equity, for when the legislature by statute limited the BUTLEE V. JOHNSON. 381 proceedings by law in certain cases, and provided no ex- press limitation for proceedings in equity, it must be taken to have contemplated that equity followed the law, and, therefore, it must be taken to have virtually enacted, in the same cases, a limitation for courts of equity also." Chancellor Kent said, in commenting upon the language of the court in the above case, that it meant that if the party had a legal title and a legal right of action, and, instead of proceeding at law, resorted to equity — instead of bringing his action of account or detinue or case for money had and received at law, he files his bill for an account, the same period of time that would bar him at law would bar him in equity. {Kane v. Bloodgood, 7 Johns. Ch. 89.) "When the same subject-matter of the demand in equity can also be made the subject of an action at law, the rule of analogy applies with all its force. {Kane v. Bloodgood, supra.) In Murray v. Coster (29 Johns. 575, 585) the same rule was announced by the Court of Errors. The Eevised Statutes (2 E. S. 301, art. 6, §§ 49-51) en- acted the same rule, and, in cases of concurrent jurisdiction, the legal limitation was applied. The revisers, in their notes to these sections, stated that no new rule was intended, but the sections adopted the language of the Court of ^Errors in the case of Murray v. Goster (supra). In truth, the Revised Statutes simply enacted the then existing law on that subject. The Code of 1848 (Laws of 1848, 511, § 66) repealed the provisions of the Revised Statutes as to limita- tions upon the time for the commencement of actions other than for those relating to real property, and substituted provisions of its own on that subject. Provision being made in other sections for many cases, it was enacted by section 77 of that Code that ' ' an action for relief, not here- inbef ore provided for, must be commenced within ten years after the cause of action shall have accrued. ' ' 362 STATUTE OF LIMITATIONS. The claim is now made that, by this repeal of the Revised Statutes upon the subject of the limitation of actions and by the adoption of affirmative provisions on that subject by the Code, the old rule under discussion has been abolished and does not now exist ; that it was repealed in terms and has not been re-enacted. * * * We think that in causes of action which, before the adop- tion of the Code the two courts had concurrent jurisdiction over, or, in other Avords, where the subject of the action was the same in both courts, and the remedy only was dif- ferent, such actions are included in and provided for by the sections preceding the above-mentioned seventy-seventh section, and hence are not included in that section as within the ten years statute. The simple repeal of those sections of the Revised Statutes relating to the commencement of actions would not have made any alteration in the law applicable to these causes of action, over which the two courts had theretofore had concurrent jurisdiction, for, as we have seen, the law was the same before their enactment. We must look further and see if the Code has provided any rule on this subject which is at war with the law as it stood before it was adopted. Wejjjxji^HtftBJm; has. Those sections which precede the seventy-seventh, wherein the time for the commencement of actions of what would there- tofore have been called a legal nature, is prescribed, must be taken to include causes of action over which courts of equity had theretofore had concurrent jurisdiction with courts of law, because, as was said by Lord Redesdale, in the case of Hovenden v. Annesley (supra), the legislature must be taken to have contemplated the rule then existing, that equity followed the law in such cases, and to have virtually enacted for them the same limitation. This would leave the seventy-seventh section to apply to all cases over which equity had theretofore had sole jurisdiction, where no other rule had been specifically provided for one or more of such. cases. EXKOKN V. EXKORN. 363 When the legislature prescribed, for instance, six years in which to commence an action upon a liability or obliga- tion, express or implied, we think it meant to include in such description an action which might formerly have been prosecuted in either court, upon or by reason of such obliga- tion, and where the remedy would have been adequate in either, and if the form of the remedy chosen were such as would formerly have been cognizable in chancery, yet the limitation applicable to the remedy at law would apply. There can be no sense in enlarging the time by a mere change of the form of the remedy sought, where the subject matter of the action is precisely the same, and the remedy in either was adequate. This holding retains the application of the statute. to a number of cases which, before the adoption of the Code, had been limited to six years, and where no good reason can be suggested for lengthening such time to ten years." The above case also holds that an e x^ji tor or administrator is bound to set up the bar of the statute and will not be allowed in his accounting any sum paid upon a debt which, at the time of its payment by him, was barred by such statute. It has been held that in cases where a court of equity has exclusive jurisdiction it might deny relief because of unreasonable delay though ten years have not elapsed ; but " whether the equitable doctrine of laches, as distinguished from the Statute of Limitations, now exists in this state, is open to serious doubt" (Cox v. Stokes, 156 N. Y. 491, 511). EXKORN v. EXKORN. 1 App. Div. 124. Bareett, J. The action was brought to reform a ref- eree's deed by inserting the plaintiff's name as co-grantee with the defendant. No fraud is alleged, and the case rests solely upon an allegation of mistake. The deed was de- livered inr July, 1877, and the action was commenced in Augij&t, 1894. The defendant pleads the ten-year Statute 364 STATUTE OF LIMITATIOXS. of Limitations. The plaintiff acknowledges that this would be fatal but for the fact that he did not discover the mistake until October, 1884. But the running of the statute did not depend upon the discovery of the mistake. That was the general rule in equity before the Code. The decisions of courts of equity then placed mistake upon the same footing in this regard with fraud. Under the Code, however, the rule as to discovery of the facts upon which the action is based is limited to actions for fraud, and all other cases are excluded from its operation. As was said by Allen, J., in Oakes v. Howell (27 How. Pr. 145, at p. 151) : " From the absolute obligation of the present statute upon the courts, and its clear application to every case that can arise, and to every form of action, by every principle of statutory construction the cases of mistake and accidents j ire excluded from the exceptions in favor of actions for relief from fraud. ' ' This case has been repeatedly cited with approval, and was followed in Hoyt v. Putnam (39 Hun, 402, 406) and Sprague v. Cochran (70 id. 513). We think the rule is sound. The court cannot read the discovery provision into section 388 of the Code of Civil Procedure. The Legis- lature in this connection acted advisedly and deliberately both with regard to inclusions and exclusions. Had it been so intended, it would have been as easy and simple to pro- vide for the discovery of facts constituting mistake as of facts constituting fraud. The Legislature has not done so, and consequently the cause of action here accrued upon delivery of the deed. ^ MILLS V. MILLS. 115 N. Y. 80. In 1864 Theodore G. Mills conveyed several parcels of land to defendant, Hiram P. Mills, upon a written agree- ment that Hiram was to sell the lands and out of the pro- MILLS V. MILLS. 365 ceeds reimburse himself for all expenses incurred, and for debts due or to become due Mm from Theodore and pay the surplus over to Theodore. After the death of Theodore his administratrix commenced this action in 1881 for an accounting for all moneys received by defendant from the sale of said lands, and recovered judgment. Defendant appealed. Earl, J. The sole question for our determination is whether the plaintiff's cause of action was barred by the statute of limitations, and we are of opinion that it clearly was. The absolute title to the lands was vested in the de- fendant, evidently with the intention that he might sell them and reimburse himself and pay over any surplus to his brother. Long before his brother's death, he had sold all the lands, and received more than sufficient for his reim- bursement. After the sale of the lands, he ceased to be mortgagee. He must be deemed to have sold the lands for the satisfaction of his mortgage, and it was satisfied. So far as he received the proceeds of the sales they were ap- plicable, and must be deemed to have been applied for his reimbursement. After he had been fully reimbursed, the proceeds of the lands which came to his hands were received by him to and for the use of his brother, and it was his duty at once to pay over such surplus proceeds to his brother, and upon his failure so to do, -he was liable without any de- mand to suit for their recovery. The six years statute of limitations is applicable to such a case. (Code, § 382.) /When money is received by one to and for the use of anothsi*, under such circumstances that it / is his duty at once to pay it over, then an action for money .had and received may be brought to recover it without any demand ; and in such a case the statute of limitations begins to run from the day of the receipt of the mone^ (Stacy v. Graham, 14 N. Y. 492 ; Matter of Cole, 34 Hun 320 ; Compton 366 STATUTE OF LIMITATIONS. V. Elliott, 16 J. & S. 211 ; Dief enthaler v. Mayor, etc., Ill N. Y. 331.) The defendant must always have known the amount of his loans and advances to his brother, and it was his duty to keep an account of his expenditures on account of the property transferred to him and hence he could tell when he had been fully reimbursed and the time came when he received moneys to and for the use of his brother under the obligation to make payment of them to him. Even if an accounting was necessary to determine the amount due from him to his brother, the account could be taken in an action at law as well as in an action in equity; and in whatever form the action was commenced the legal rule of limitations would be applicable. (Bundle v. Allison, 34 N. Y. 180; Carr v. Thompson, 87 id. 160; In the Matter of the Accounting of Neilley, 95 id. 382.) All the relief asked for in the complaint is an accounting and a judgment for a sum of money, and no other relief waS" needed or possible upon the facts established. This was in no sense an action to redeem, as there was no mortgage and nothing to redeem. (Morriss v. Budlong, 78 N. Y. 543.) When the lands were sold, the mortgage being satisfied, the lien thereof did not attach to the moneys, but the defendant became a debtor for the surplus. He cannot, therefore, be treated as a mortgagee in possession, and the cases of Miner v. Beekman (50 N. Y. 337) and Hubbell v. Moulson (53 id. 225) are not applicable. It is said, however, that the defendant was in some sense a trustee of the moneys received by him, and hence that the statute of limitations could not begin to run in his favor until he repudiated the trust. But the defendant was not a trustee in the sense contended for. He had received money belonging to another and became a debtor for the same, and he is in no other sense a trustee than every one is who receives money to and for the use of another. There HOOVER V. HUBBARD. 367 was no actual express trust as to these moneys created by the act of the parties. It is certainly not true that every mortgagee is a trustee of an express trust, and the relation of trustee and beneficiary does not exist between mortgagor and mortgagee. If the defendant was in any sense a trustee of the moneys received by him, it was simply an implied trust which the law would raise for the purposes of justice ; and as to the liability growing out of such a trust the ordinary rules of limitations apply. (Kane v. Bloodgood, 7 Johns. Ch. 90; Lammer v. Stoddard, 103 N. Y. 672.) Section. 410 of the Code has no application to this case, because if we are right in what has already been said, no demand was necessary to entitle the plaintiff to maintain this action. * * * We, therefore, see no way to avoid the conclusion that the plaintiff's cause of action was barred by the statute of limitations, and the judgment should be reversed and a new trial granted, with costs to abide event. y^As against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed or repudiated «the trust) or the trust has come to an end and the trustee has no longer a ■fight to hold the fund or property as such, but is bound to pay it over or transfer it discharged from the trust. But in the case of a trustee ex male- ficio or by implication or construction of law the statute begins to run from the time the wrong was committed, by which the party became chargeable by implication. (Lammer v. Stoddard, 103 N. Y. 672; Gilmore v. Ham, 142 N". Y. 1, 10). The cause of action of a retiring partner against the liquidat- ing partner does not accrue, nor the statute begin to run, until the lapse of a reasonable time after dissolution in which to liquidate the affairs of the copartnership. Gilmore v. Ham, supra. HOOVER V. HUBBARD. 202 N. Y. 289. Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered 368 STATUTE OF LIMITATIONS. July 10, 1909, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. Chase, J. On Mareli 1, 1895, the defendants borrowed of Charles Genter six hundred dollars for which they gave to him a promissory note, of which the following is a copy : " $600.00 Theresa, March 1, 1895. " For value received, we jointly and severally promise to pay Charles Genter, or bearer, six hundred dollars one year after date, at five per cent, interest. " ELMER E. HUBBARD, " HENRY H. HUBBARD." The defendant Elmer E. Hubbard paid the interest on said note annually for eleven years. He also paid thereon $300 on account of principal. Prior to the commencement of this action the plaintiff became the owner and holder of said note and on April 28, 1908, this action was commenced thereon. The appellant, Henry H. Hubbard, answered the complaint, in which he alleged : " First. That prior to the tcommencement of this action he fully satisfied and dis- Tiharged any and all claims and indebtedness in said com- plaint set forth by payment in full. Second. That the cause of action set forth in said complaint did not accrue nor did any part thereof accrue at any time within six years next preceding the commencement of this action." It affirmatively appears that the appellant never made any payments upon said note. It is claimed by the respond- ent that some of the payments made by the defendant Elmer E. Hubbard were in the presence of the appellant. It was held by this court in McMuUen v. Rafferty (89 N. Y. 456) that:/*' It is the settled law of this state that payments made by one joint contractor cannot save from the Statute of Limitations a claim against another joint contractorXand that payments made by the principal debtor HOOVER V. ilTJBBAKD. 369 cannot save from the statute a claim against tlie surety; and it makes no difference that the payments were made with the knowledge of the other party liable for the same debt. To make payments effective against a party to save a claim from the statute, they must have been made by him, or for him by his authorized agent. One joint con- tractor may make payments as agent for all the contractors, or the principal debtor may make payments for and in the name of his surety as his agent, or payments may thus be made in the name of all the joint contractors, or of the surety without previous authority, but be subsequently rati- fied, and in all such cases the running of the statute may be prevented. (First National Bank of Utica v. Ballou, 49 N. T. 155.) But in all cases to make the payments effective they must by previous authorization or subsequent ratifica- tion be the payments of the party sought to be affected by them." (p. 459.) C^t does not appear that the appellant authorized the de- fendant, Elmer E., to make any payment upon such no^. Unless a payment by one of two joint and several debtors prevents the running of the Statute of Limitations as to all, there is no evidence on which to sustain the judgment as against the appellant. There has been a controversy in some jurisdictions as to the legal consequences of a pay- ment made upon an indebtedness by one of two or more joint debtors, so far as it affects the running of the Statute of Limitations against the debtors other than the person making the payment. In Shoemaker v. Benedict (11 N. Y. 176), referring to payments made by one of several makers of a promissory note before the Statute of Limitations had barred an action thereon, it was said that " Before the de- cision of Van Keuren v. Parmelee (2 Comstock, 523), it would have been considered very well settled upon author- ity that such payments did operate to prevent the statute ■ Petition, To the Supreme Court of the State of New York: The Petition of James Anderson respectfully shows: That your petitioner is the father of Robert Anderson, who is an infant of the age of twelve years and resides with your petitioner at No. 559 West 57th Street in the Borough of Manhattan. That on the 3d day of June, 1898, the said infant suffered serious personal injuries by being knocked down and run over by one of the cars of the Metropolitan Street Railway Company, in the said Borough of Manhattan, and that as your petitioner is informed and believes such injuries were caused by the negligence of the employees of said Company; and that as your petitioner is advised and believes said infant has a right of action against said company for his damages caused by said injuries. That said infant has no general guardian. That James Kent, Esq., Counsellor at Law, of the City of New York, is a competent and responsible person and in all respects, as your peti- tioner believes, qualified to act as Guardian ad litem for said infant in an action against said company, to recover damages for said injuries. Wherefore your petitioner prays that an order be entered appointing James Kent, Esq., Guardian for said infant for the purposes of said action. Dated, New York, October 1, 1898. JAMES ANDERSON. JOHN MARSHALL, Attorney for Petitioner. City and County of New York, ss. : James Anderson being duly sworn says that he is the petitioner above named; that he has read the foregoing petition and knows the contents thereof, and that the same are true of his own knowledge. JAMES ANDERSON. Sworn to before me October 1, 1898. JAMES GRAY, Notary Public, N. Y. County. FOEMS. 399 CONSENT. I, James Kent, hereby consent to my appointment as Guardian ad litem for Robert Anderson in an action to be brought in his behalf against the Metropolitan Street Railway Company. JAMES KENT. Dated October 1, 1898. City and County of New York, ss.: On this first day of October, 1898, before me personally came James Kent, to me known to be the individual described in and who executed the foregoing instrument, and acknowledged to me that he executed the same. JAMES GRAY, Notary Public, New York County. SUPREME COURT — County op New Yoek. In the Matter of the Petition of James Anderson for the appointment of a Guardian ad litem for Robert Anderson, an infant. Affidavit of Proposed Guardian ad litem. City and County of New York, ss. : James Kent being duly sworn says that he resides in the Borough of Manhattan, in said City, and is an attorney and counsellor of this Court. That deponent is fully competent to understand and protect the rights of Robert Anderson, the infant above named, and has no interest adverse to that of said infant, and is not connected in business with the attorney for the Metropolitan Street Railway Company. That he is of sufficient ability to answer to the said infant for any damages which may be sustained by his negligence or misconduct in the prosecution of an action against the said company, and is worth over Three Thousand Dollars over and above all his debts and liabilities, and exclusive of property exempt by law from levy and sale under an execution. JAMES KENT. Sworn to before me October 1, 1898. JAMES GRAY, Notary Public, New York Co. 400 FORMS. At a Special Term of the Supreme Court, held at the Court House, in the Borough of Manhattan, on the 3d day of October, 1898. Present Hon. Roger A. Prtob, Justice. In the Matter of the Petition of Jambs Anderson for the appointment of a Guardian ad litem for Robert Anderson, an infant. - Order. On reading and filing the petition of James Anderson, verified October 1, 1898, and the consent duly acknowledged of James Kent, and the affidavit of James Kent, verified October 1, 1898, and on motion of John Marshall, attorney for the petitioner, It is Ordered, that James Kent, Esq., Counsellor at Law, be, and he hereby is, appointed Guardian, ad litem, for Robert Anderson, in an action to be brought in his behalf against the Metropolitan Street Rail- way Company. Enter, R. A. P., J. S. C. 9. C&mplaint: Goods Sold and Delivered. SUPREME COURT — County of New York. John Smith against Richard Jones. John Smith, the plaintiff in the above entitled action, complains of the defendant and alleges that heretofore and on or about the first day of July, 1898, he sold and delivered to the defendant goods, wares and merchandise of the value of one hundred dollars, no part of which has been paid, for which sum with interest thereon from July 1st, 1898, and the costs of this action, the plaintiff demands judgment against the defendant. WILLIAM BLACKSTONE, Plaintiff's Attorney. 154 Wall St., New York City. County of New York, ss. : John Smith being duly sworn says that he is the plaintiff in the above entitled action, that he has read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge except FORMS. 401 as to the matters therein stated to be alleged upon information and belief and as to those matters he believes it to be true. JOHN SMITH. Sworn to before me, this 9th day of November, 1898. PHILIP JASPER, Notary Public, Kings Co. Certificate filed in New York County. 10. Complaint: For Work Done and Materials riimished. SUPEEME COURT — New York Countt. Mark Ashton, V. George Sherwood, Plaintiff, Defendant. Plaintiff above named by his attorney, John Halifax, complains of defendant andr alleges: I. That the defendant is indebted to the plaintiff in the sum of $1,429.54 for work, labor and services, done and performed for the defendant at his special instance and request, at the city of Buffalo, by the plaintiff and his servants and agents, at divers times between the 8th day of March, 1852, and the commencement of this action, in and about quarrying, dress- ing, preparing, delivering, putting together and erecting certain building stones in and about defendant's dwelling on Main street, in said city of Buffalo. II. That said work, labor and services were reasonably worth the sum of $1,479.54 (and defendant promised to pay the same therefor). III. That defendant has not paid the plaintiff said sum nor any part thereof. For a second cause of action against defendant, plaintiff says : IV. That the defendant is indebted to him in the sum of $38.04 for cer- tain dressed building stones, before the commencement of this action sold and delivered by the plaintiff to the defendant, at the city of Buffalo, at de- fendant's special instance and request. V. That said building stones were reasonably worth the said sum of $38.04, (and that defendant promised to pay said sum therefor.) VI. That defendant has not paid plaintiff said sum nor any part thereof, but has wholly neglected and refused so to do. 26 402 FORMS. Wherefore plaintiff demands judgment against defendant for the sum of $1,517.63, besides the costs of this action. JOHN HALIFAX, Attorney for Plaintiff, 200 Broadway, New York, N. Y. See Farron v. Sherwood, 17 N. Y. 227. 11. Complaint: Executory Contract of Sale. SUPREME COURT — County of Kings. John Dob, Plaintiff, against Richard Roe, Defendant. John Doe, the plaintiff in the above entitled action, by William Black- stone his attorney, complains of the defendant and alleges, First : — That heretofore and on or about the first day of August, 1898, the plaintiff made a certain agreement in writing with Richard Roe, the defendant in this action, whereby the plaintiff agreed to sell to said defend- ant, and in consideration thereof the said defendant agreed to buy from the plaintiff a certain bay horse, the property of the plaintiff, and to pay therefor the sum of one hundred dollars on the 10th day of August, 1898. Second : — That on said last named date the plaintiff offered to deliver the said horse to the defendant, but that defendant refused to accept the same or to pay the said sum of money. That plaintiff is ready to deliver said horse to the defendant pursuant to said contract. Wherefore the plaintiff demands judgment against the defendant for the sum of one hundred dollars with interest thereon from August 10th, 1898, besides the costs of this action. WILLIAM BLACKSTONE, Plaintiff's Attorney, 154 Wall Street, New York City. (Verification.) FORMS. 403 12. Complaint: Account Stated. MUNICIPAL COURT OF THE CITY OF NEW YORK — Borough of Manhattan, Third District. Jane Doe, as Administratrix of John Doe, deceased Plaintiff, V. Julius Caesar. Defendant. Plaintiff complains of defendant and shows: I. That on or about April 1, 1910, John Doe died in the county of New York, where he then resided, and that thereafter on April 20, 1910, plaintiff was duly appointed administratrix of the estate of said deceased by the Surrogates' Court of the County of New York. II. That on or about June 21, 1910, an account was stated between plaintiff and defendant a copy whereof is hereto annexed and marked " Schedule A," and made a part hereof. III. That on such accounting defendant was found to be indebted to plaintiff, as administratrix of said John Doe, deceased, in the sum of $330. IV. That defendant then and there promised to pay plaintiff said sum but no part thereof has been paid. Wherefore plaintiff demands judgment against defendant for $330 with interest thereon from June 21, 1910, and costs. JOHN DOE, Jr., Attorney for Plaintiff, 1 Fifth Avenue, Borough of Manhattan, New York City. SCHEDULE A. New York, June 21, 1910. Julius Caesar, To Estate of John Doe, Jane Doe, Admx., Dr. July 1, 1909. 50 Tons furnace coal @ $6 . 50 $325 Nov. 12, 1909. 70 " " " @ $6.50 455 Jan. 15,1910. 80 « " " @ $7.00 560 Total $1340 Cr. Sept. 1, 1909. $250 Dee. 15, 1909. 160 Feb. 1, 1910. 600 1010 Balance $330 404 FOEMS. 13. Complaint: Breach of Warranty (or Fraud and Deceit). COUNTY COUET OF KINGS COUNTY. Ida Lindsay, John Mulqueen, Plaintiff, Defendant. I Plaintiff herein respectfully shows to this court : First. That defendant resides in Kings County. Second. That at the Borough of Brooklyn in said county on or about the 3rd day of March, 1910, the defendant offered to sell the plaintiff for sixty-six dollars to be paid to him by plaintiff 66 yards of carpet, which said carpet defendant warranted (and fraudulently represented) to be a first-class imported English body Brussels carpet and made of all wool. Third. That the plaintiff, relying on said warranty (and representations and believing the same to be true, was induced thereby to purchase, and) did purchase the same from defendant and paid him therefor the said sum of sixty-six dollars. Fourth. That in fact said carpet so sold as aforesaid was not a first- class imported English body Brussels carpet made of all wool, as by de- fendant warranted and represented, but the same was a mixed texture known as jute and was a greatly inferior article, and said carpet was utterly worthless. (Fifth. Upon information and belief that defendant then and there knew that said representations were false and made the same with intent to deceive plaintiff to her damage.) Wherefore plaintiff demands judgment against defendant in the sum of sixty-six dollars and costs. MASON AND BLACK, Attorneys for Plaintiff, 200 Fulton Street, Brooklyn, N. Y. See Lindsay v. Mulqueen, 26 Hun 485. FORMS. 405 14. Complaint: By Indorsee of Promissory Note v. Maker and Prior Indorser. CITY COURT OF THE CITY OF NEW YORK. "-» August Bureall, Plaintiff, V. Mark DeGroot, Joseph Carpenter, George R. Jaques and Frank Paton, Defendants. Plaintiff, complaining of the defendants, alleges: I. Upon information and belief that heretofore, (for value received,) the defendant Frank Paton made his promissory note in writing, dated Brook- lyn, July 10, 1854, whereby, four months after date thereof, he promised to pay to the order of defendants, Joseph Carpenter and George R. Jaques, under their firm name of Carpenter and Jaques, one thousand dollars. II. Upon information and belief that thereafter and before the maturity of said note said firm of Carpenter and Jaques, and the defendant Mark DeGroot, severally indorsed said note, in blank, and the same was delivered to plaintiff who now holds and owns the same. III. That at the maturity thereof the said note was presented to the maker thereof for payment and payment thereof refused, whereupon said note was duly protested for non-payment, of all of which the defendants Carpenter, Jaques and DeGroot had due notice. IV. That said note remains due and unpaid. Wherefore plaintiff demands judgment against the defendants for the sum of one thousand dollars, with interest from November 13, 1854, besides protest fees and costs. NATHAN PRINCE, Attorney for Plaintiff, 30 Broad Street, New York, N. Y. City and County of New York, ss. : Nathan Prince being duly sworn says that he is attorney for the plaintiff in the above entitled action which is brought to recover upon a promissory note which is in deponent's possession. That he has read the foregoing complaint and knows the contents thereof and that the same is true of his own knowledge except as to the matters therein stated to be alleged upon information and belief and that as to those matters he believes it to be true. That the sources of deponent's information and the grounds of his 406 FORMS. belief as to the matters alleged upon information and belief are interviews with defendant George R. Jaques and a letter from Joseph Paton to plaintiff in which said Paton admitted making the note but refused to pay the same. NATHAN PRINCE. Sworn to before me Decem- ber 20, 1854. IRA LANE, Notary Public New York Co. Adapted from Burrall v. DeGroot, 5 Duer 379. 15. Complaint: Specific Performance. SUPREME COURT— New York County John Land and James See, Co- paetnees, Plaintiffs, V. Morris Jayne, Defendant. Plaintiffs complain of the defendant and allege : I. That at all times herein mentioned plaintiffs were and still are^ co- partners carrying on the business of buying and selling real estate under the firm, name of " Land & See." II. Upon information and belief that on June 10, 1912, defendant was and still is the owner in fee simple of the following described premises in the Borough of Manhattan, County of New York. {Description of premises as in a deed.) III. That on said day defendant entered into an agreement with plain- tiffs under their firm name of Land & See wherein and whereby defendant agreed to sell and convey to plaintiffs and plaintiffs agreed to buy of de- fendant the above described premises free from all incumbrances for the sum of $50,000 which sum plaintiffs agreed to pay therefor in the manner following : $5,000.00 was paid by plaintiff to defendant upon the signing of said contract. $10,000.00 in cash upon the delivery of the deed as therein provided. $35,000.00 by plaintiffs executing and delivering, to the defendant a purchase money bond and mortgage upon said premises for said sum with interest at the rate of five per centum, which bond and mortgage were to contain the usual insurance, tax, assessment and receiver clauses, and were FOEMS. 407 to be prepared by the attorney for the defendant at the expense of plain- tiffs; said deed to be delivered by defendant and payment so made by plaintiffs at the offlce of the Lawyers Title Insurance & Trust Co., at 160 Broadway, in the Borough of Manhattan, on the 1st day of July, 1912, at eleven o'clock in the forenoon. IV. That plaintiffs have always been and still are ready and willing to perform said agreement upon their part, and are ready and willing to pay the remainder of said purchase money and to execute and deliver said bond and mortgage upon delivery to them of a deed conveying to them a good and marketable title of said premises, free from all incumbrances. V. That on said first day of July, 1912, at said place and hour plaintiffs duly tendered to the defendant the balance of said purchase money, and offered to execute and deliver said bond and mortgage upon receiving from defendant a conveyance of said premises free from all incumbrances; but that defendant refused to execute and deliver said deed and has entirely neglected and failed to perform said agreement on his part. VI. That since the making of said agreement plaintiffs have discovered that there is a deficiency in the quantity of said land agreed to be con- veyed as aforesaid, in that instead of having a width of twenty-five (25) feet at the rear of said premises, said premises are only twenty (20) feet wide at the rear, and that the remainder of said premises heretofore described herein is covered by an encroaching building which has stood upon said land for more than thirty years. VII. That plaintiffs have necessarily expended in searching the title of said premises and procuring a survey thereof, the sum of $250, and in attorney's fees for legal services in and about the transaction above set forth, the sum of $100. Wheeefoeb, plaintiffs demand judgment; That the defendant specifically perform said agreement and deliver to plaintiffs a good and sufficient deed conveying to them said premises free of all incumbrances upon payment by plaintiffs of the remainder of said purchase money and the execution and delivery by them of said bond and mortgage, and that a just deduction from said purchase price be made by reason of said encroachments upon said premises. That if defendant cannot convey said premises to plaintiffs free from all incumbrances in the manner and form stated in said agreement, de- fendant be adjudged to pay to the plaintiffs the sum of $5,350, being plaintiffs' payment upon the signing of said agreement and the costs and expenses of searching said premises and of plaintiffs' attorney's fees as above set forth; and that plaintiff have such other and further relief as may be just. COKE & LITTLETON, Attorneys for Plaintiffs, 10 Wall Street, New York City. 408 FORMS. 16. Complaint: Divorce. SUPREME COURT — New York County. Pauline Laesen, V. Olup Laesen, Plaintiff, Defendant. The plaintiff above named by her attorney complains of the defendant and alleges: Fiest: That plaintiff was married to the defendant at Grace Church, in the Borough of Manhattan, on the 24th day of March, 1907. Second : That plaintiff and defendant then were and still are residents of the State of New York. Third : That the only issue of said marriage is a daughter, Cora, now four years of age. EouETH : Upon information and belief that during the week following July 4, 1909, in the house of John ©oe, at Linden, in the State of New Jersey, the defendant committed adultery with Jane Doe. Fifth : That said adultery was committed without the consent, con- nivance, privity, or procurement of the plaintiff. That five years have not elapsed since the discovery by plaintiff of the commission of said adultery. That plaintiff has not forgiven defendant for the same, nor co-habited with defendant since the discovery by plaintiff of said adultery. Sixth : That no divorce has ever been granted to defendant against plaintiff by any court of this or any other state, or foreign country. Wheeepoee, plaintiff demands judgment against the defendant, that said marriage between plaintiff and defendant be dissolved, that the custody of said Cora Larsen be awarded to plaintiff, that plaintiff be permitted to resume her maiden name, and that suitable provision be made out of the property of said defendant for the support and maintenance of plaintiff and her said daughter. JAMES ROE, Attorney for Plaintiff, 100 Broadway, New York City. FORMS. 409 17. Complaint: Separation. SUPREME COURT— New York County. Rosa Roe, Plaintiff, V. RicHAED Roe, Defendant. Plaintiif complaining of defendant alleges: I. That plaintiff was married to defendant at the City Hall in the Borough of Manhattan, City of New York, by Alderman Abraham Itzko- witz on the 1st day of April, 1910. II. That plaintiff then resided and still resides in the City of New York. III. That on or about March 26, 1912, defendant brutally beat this plaintiff about the head and face; that continuously from said date to May 16, 1912, defendant treated plaintiff in a cruel, inhuman and brutal manner, in that he almost daily cursed and applied abusive epithets to her, and threatened to beat her and repeatedly ordered plaintiff to leave his house, that during said period his entire course of conduct toward plain- tiff was so brutal as to undermine her health ; that ever since May 16, 1912, defendant has absented himself from his home and has failed to furnish plaintiff with the necessaries of life. Wherefore, plaintiff demands judgment of separation from the bed and board of defendant, for suitable provision for plaintiff's support out of the property and income of defendant and for such other and further relief as may be just. JOHN MARSHALL, Attorney for Plaintiff, 10 Wall Street, New York City. See Itzkowitz v. Itzkowitz, 33 App. Dlv. 244. 410 F0KM3. 18. Complaint: Conversion. SUPREME COURT — NiAGAEA County. Robert Gordon, Lewis H. Hostetter, Plaintiff, Defendant. Plaintiff complains of the defendant and says : That between the month of September, 1860, and the month of January, 1861, defendant wrongfully took and converted to his own use, certain money, the property of the plaintiff, consisting of bank bills and gold and silver coin, of the amount and value of ninety dollars, to the plaintiff's damage $100, for which sum plaintiff demands judgment. SILAS MARSH, Attorney for Plaintiff, Ransomville, N. Y. Follows Gordon t. Hostetter, 37 N. Y. 99. 19. Complaint: Reple-dn, Wrongful Detention. SUPREME COURT — Queens County. John Chapin, Plaintiff, Merchants' National Bank, Defendant. Plaintiff complaining of defendant alleges: I. Upon information and belief that at all times hereinafter mentioned defendant was and is a domestic corporation organized under the laws of the United States and engaged in carrying on the business of banking at Whitehall, in the State of New York. II. That on the 3rd of October, 1878, the plaintiff was, and that he still is, the owner of two certain certificates of the capital stock of defendant corporation, to wit : one of 50 shares of the par value of $100 each issued FOKMS. 411 to plaintiff by defendant and dated October 3rd, 1878, and numbered 126 ; and one for 25 shares of the par vahie of $100 each issued to plaintiff by defendant, dated the same day and numbered 127. III. That while plaintiff was such owner, and on or about that day, said certificates came into the custody and possession of defendant. IV. That the defendant, though often requested by plaintiff to return the same, has refused so to do, and on the contrary has converted the same to its own use, to plaintiff's damage $15,000. Wherefore plaintiff demands judgment against defendant for the possession of said certificates of stock, or in case possession thereof cannot be delivered to plaintiff for the sum of $12,500, the value of said certifi- cates, together with the sum of $2,500 damages for said detention, with costs of this action. ROLAND AND SQUIRES, Atto'^neys for Plaintiff, Whitehall, N. Y. See Code § 1T21. Chapin v. Merchants' Nat. Bk., 31 Hun 529; Rogers v. Conde, 67 App. Div. 130. 20. Complaint: Nuisance. SUPREME COURT — Delaware County. Maegaret Brown, Plaintiff, V. Port Jervis Gas Co., Defendant. Plaintiff complains of defendant and alleges : I. Upon information and belief that at all the times hereinafter men- tioned defendant was and still is a domestic corporation. II. That for more than five years prior to the commencement of this action defendant has been and still is engaged in the manufacture of gas in large quantities upon premises at 122 Pearl street, in the city of Port Jervis, adjoining the premises of plaintiff hereinafter mentioned, and that defendant is the owner of said premises. III. That plaintiff owns and occupies as a residence for himself and family a house and lot at number 120 Pearl street in said city and has owned said premises and has resided there at all the times mentioned herein. IV. That about the year 1880 defendant erected a new tank for the pur- pose of its gas-works on its said premises, the southern side of which stands within forty feet of plaintiff's premises. That about the year 1880 plaintiff 412 roBMS. began and ever since lias and still does manufacture gas at said works from naphtha, and that said tank was and still is used to store said naphtha for the purposes aforesaid. That naphtha is an offensive, noxious, unhealthy and sickening mineral substance destructive to the health and comfort of those required to be and remain in close proximity to it. That by reason of the erection and use of said tank and said works and the manufacture therein and thereby of gas from naphtha, the defendant has since 1880 and dtill does maintain a nuisance injurious to the comfort and enjoyment of plaintiff and injurious to the rental value of said premises. Wherefore plaintiff demands judgment that defendant be forever en- joined and restrained from storing naphtha or manufacturing gas from naphtha upon said premises or permitting the same, and that plaintiff recover of defendant $5000 damages and costs of this action, and have such other and further relief as may be just. JOHN W. PENN, Attorney for Plaintiff, 12 Main Street, Port Jervis, N. Y. See Bohan v. Port Jervis Gas-Light Co., 122 N. Y. 18. 21. Complaint: Assault and Battery. CITY COURT OF THE CITY OP NEW YORK. Margaret Marsh, V. Mansfield Hubbard, Plaintiff, Defendant. Plaintiff complains of the defendant and alleges : I. That on or about September 26, 1894, at the City of New York, the defendant violently assaulted the plaintiff, and struck, beat and pushed her violently against, upon and into a chair thereby injuring and bruising her about her arms, limbs and body; that he shook his list in her face, and cursed and swore at her and threatened to kill her if she did not sign her name to a paper writing, which he then and there produced and which con- tained false and untrue statements; that defendant then and there did, by threat, violence, force and duress, and by putting plaintiff in fear of her life, compel her to sign her name to and upon said paper. II. That by reason of the foregoing, plaintiff was and ever since said date has been incapacitated in a great degree for the performance of her duties and business and has suffered and still suffers great bodily and FORMS. 413 mental pain as well as a severe shock to her nervous system; that she has thereby been put to great expense for medicine and medical treatment and has suffered great mental anguish and distress, all to her damage of $5000. "Wherefore, plaintiff demands judgment against the defendant "for $5000 and costs. JAMES WALTON, Attorney for Plaintiff, Brewster, N. Y. 22. Complaint: Slander. COUNTY COURT OF KINGS COUNTY. Antonino Dimaeco, Plaintiff, V. Giuseppe Artale and Giovanni Zanolini, Defendants. Plaintiff complaining of the defendants alleges : I. That defendants reside in the County of Kings. II. That on or about the 3rd day of December, 1908, at No. 152 Johnson Avenue, in the Borough of Brooklyn, County of Kings, the defendants and each of them, in the presence and hearing of one Giovanni Buongirno and divers other persons, all of whom understood the Italian language, maliciously spoke of and concerning plaintiff and to plaintiff the following false and defamatory words in, the Italian language : ' Tu sei ladro, co hai rubato Lire ottocento.' III. That said words meant and were understood to mean by the persons then present and hearing the same : " You are a thief, you have stolen from us 800 Lire." IV. That said words were false and defamatory, and that by reason of the speaking of such words by the defendants as aforesaid, plaintiff was greatly injured in his reputation, has ever since suffered infamy and dis- grace by reason thereof, and has suffered and will continue to suffer great mental anguish and distress, all to his damage of $2000. Wherefore, plaintiff demands judgment against the defendants for $2000 and costs. CATELLO LORENZO, Attorney for Plaintiff, 44 Court Street, Brooklyn, N. Y. Suggested by Di Blasi v. Artale, 133 App. Dir. 153. 414 FORMS. 23. Demurrer. (See Form 22.) COUNTY COrRT OF KINGS COUNTY. Antonino DniARCO, Plaintiff, V. Giuseppe Aetale and Giovanni Zanolini, Defendants. The defendants above named, and each of them, demur to the complaint herein on the ground that causes of action have been improperly united in that the plaintiff has joined in one action several and distinct causes of action against each defendant alleged to have spoken the slanderous words mentioned in the complaint herein. TOMASO TACCHINO, Attorney for Defendant, 390 Fulton Street, Brooklyn, N. Y. Overruled in Di Blasi v. Artale, 133 App. DIt. 133. 24. Demurrer. SUPREME COURT — County of New York. John Smith, against Richard Jones, Plaintiff, Defendant. The defendant, Richard Jones, demurs to the complaint of the plaintiff in the above entitled action, and specifies as the ground of such demurrer. That such complaint does not state facts sufficient to constitute a cause of action. JAMES KENT, Defendant's Attorney, 170 Nassau Street, New York City. (Borough of Manhattan.) FORMS. 415 25. Answer. (See Form No. 11.) SUPREME COURT — County of New York. John Doe, Plaintiff, against Richard Roe, Defendant. Richard Roe, the defendant in the above entitled action, appearing therein by James Kent, his attorney, answers the complaint therein as follows : For a First Defense : — Upon information and belief the defendant denies each and every allegation in said complaint contained excepting the allegation that the defendant refused to accept a horse tendered by the plaintiff on the 10th day of August, 1898, or to pay any sum therefor. For a Second Defense : — That at the time of making the supposed con- tract alleged in the complaint the defendant was under the age of twenty- one years, to wit of the age of between nineteen and twenty years. For a Third Defense, and by way of Counter Claim :— That heretofore and on or about June 1st, 1898, the plaintiff made, executed and delivered to the defendant his certain promissory note, in the words and figures following : " New York, June 1st, 1898. " On demand I promise to pay to the order of Richard Roe the sum of one hundred and fifty dollars, value received. " JOHN DOE." That no part of said sum has been paid. That there is due the defendant from the plaintiff upon said note the sum of one hundred and fifty dollars, which he claims. Wherefore the defendant demands judgment dismissing said complaint, and for the sum of one hundred and fifty dollars with interest thereon from June 1st. 1898, besides the costs of this action against the plaintiff. JAMES KENT, Defendant's Attorney, 170 Nassau Street, New York City. (Verification.) 416 FOKMS. 26. Reply. (See Form No. 25.) SUPREME COURT — County of New York. ^ John Doe, Plaintiff, against Richard Roe, Defendant. John Doe, the plaintiff in the above entitled action, by "William Black- stone his attorney, for reply to the third defense and counter claim con- tained in the answer of the defendant herein, alleges, upon information and belief, That the plaintiff made, executed and delivered the promissory note set forth in said counter claim for the amount of the purchase price of a quantity of hay which the defendant agreed to furnish and deliver to the plaintiff on or before July 1st, 1898, and that such note was so made, executed and delivered as payment in advance for such hay, and for no other purpose. That the defendant has failed to deliver any part of the hay for which such payment was made. Wherefore the plaintiff den>ands judgment as demanded in the complaint. WILLIAM BLACKSTONE, Plaintiff's Attorney. 154 Wall St., New York City. City and County of New Tork, ss.: William Blackstone, being duly sworn, says that he is the attorney for the plaintiff in the above entitled action; that he has read the fore- going reply and knows the contents thereof, and that the same is true of his knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. That the grounds of deponent's belief as to all matters not stated upon his knowledge are communications from and statements by the plaintiff and his clerks and agents to deponent, and that the reason why this verification is not made by the plaintiff is that he is at present absent from the County of New York, wherein deponent resides. WILLIAM BLACKSTONE. Sworn to before me, November 30th, 1898. JAMES CLARK, Notary Public, New Tork Co. FORMS. 417 28. Papers on Application for Extension of Time to Answer. SUPREME COURT — County op New York. Robert Ames against Albert Boyd. " Affidavit of Merits. City and County of New York, ss.: Albert Boyd, being duly sworn, says that he is the defendant in the above entitled action, and that he has fully and fairly stated the ease in the above action, to John Marshall his counsel in this action, who resides at 1 East 125th Street, in the said City of New York and that he has a good and substantial defense upon the merits thereof as he is advised by said counsel, after such statement made as aforesaid, and verily believes it to be true. ^ ALBERT BOYD. Sworn to before me, this 29th day of September, 1898. JOHN A. BROWN, Notary Public, New York Co. SUPREME COURT — County of New York. Robert Ames against Albert Boyd. ' Affidavit. County of New York, ss. : John Marshall, being duly sworn, says that he is the attorney for the defendant in this action which was commenced by the service of the sum- mons and complaint therein on said defendant on the 10th day of Sep- tember instant. That defendant's time to answer or demur to said complaint or other- wise move respecting the same, will expire on September 30th instant, and that no extension of time therefor either by stipulation or order has been granted. That the cause of action set forth in the complaint is for an alleged breach of warranty with respect to certain goods sold and delivered by the defendant to the plaintiff, and the relief demanded is judgment in 27 418 FORMS. favor of the plaintiff and against the defendant for Five Hundred Dollars with interest. That deponent has until this day, since the service of said papers, been absent from the country on his vacation, and has not yet had the opportu- nity to sufficiently investigate the facts in order properly to prepare the answer of the defendant, and requires an extension of time for twenty days for that purpose. That no other application for this order has been made. JOHN MARSHALL. Sworn to before me September 29th, 1898. JOHN A. BROWN, Notary Public, New York Co. SUPREME COURT — County op New York. RoBEET Ames, Albert Boyd, against Plaintiff, Defendant. Order Extending Time to Answer. Upon the annexed affidavits: Ordered that the time of the defendant in this action to answer or demur to the complaint herein or otherwise move respecting the same, be extended twenty days from date. Dated September 29th, 1898. JOSEPH DALY, -. J. S. C. 29. Order of Discontinuance on Consent. At a Special Term of the Supreme Court, held at the Court House, in the Borough of Manhattan and County of New York, on the 15th day of October, 1898. Present, Hon. William N. Cohen, Justice. William Johnson against Andrew Mills. This action having been settled between the parties, now upon reading and filing the annexed consent and on motion of Joseph Story, plaintiff's attorney. FORMS. 419 It is ordered that this action be discontinued without costs to either party as against the other. Enter, W. N. C, /. s. c. We consent to the entry of the above order. JOSEPH STORY, Plaintiff's Attorney. JAMES RUTLEDGE, Defendant's Attorney. The forms numbered 1, 2, 3, 4, 5, 7, 9, 11, 24, 25, 26, 28 and 29 were prepared by the late Professor George A. Miller. 89 304-5 310-12 304^5 301-2 or) INDEX TO VOLUME I. PAGE. Account, limitation of action on mutual 380-6 Action, commenced by service of summons 1, 29 in rem and in personam distinguished 62-3, 69-70 Administrator, counterclaim by and against 285-7 duty to plead statute of limitations 363 Adverse Possession, limitation of against person in 373^ Affidavit, for substituted service of summons 56 of merits 302-4 of service of summons 55-6 by publication 65-6, 73-9 Agent, managing, of domestic corporation 45 of foreign corporation 46-5-1 Ambiguity in pleading, remedy , 317-19 ■jj Amendment of Summons 6-8 r of summons to correct misnomer 19 -'' of pleading of course after notice of trial 333-5 of pleading of course after demurrer 335 different cause of action may be set up by 336-41 what facts may be set up by 341-7 of complaint upon the trial 235 Answer 236-S7 is an appearance 89 extension of time to serve 304-5 frivolous 310-12 sham 304-5 served on co-defendant, when 301-2 Appearance, how effected 89 voluntary, effect of 30, 91 effect of notice of 92 when defendant may appear 91 unauthorized, effect of 93 withdrawn, how 22, 96 infant must appear by guardian 30 by guardian ad litem of infant not served with summons. . 29 Assault by process server vitiates service 36 AssfGNMENT of chose in action or other right 116-27 need be only colorable 116-20 of part of claim 120-28 of future rights 123 [421] 422 ! ixDEx. PAGE. Association, unincorporated, how sued 45 Attorney forbidden to permit use of name 9 acts as agent in issuing execution 155-7 lien of, on client's cause of action 273-5 may verify pleading, when 291-7 Bail, when equivalent to actual custody 44 Bill of Paeticulars 319-33 lack of particularity distinguished from indefiniteness 319-24 ordered of claim of either party 321 not ordered as to evidential facts 325- 7 denials 328-30 failure to serve, how punished 330-33 Burden op Proof as to payment 257-65 Causes op Action, divisible and indivisible 201-8 City of New York, service of summons on 45 Complaint 161-218 amendment of 333-41 framed with double aspect, when 161- construction of, on demurrer 218-20 on motion to dismiss 176 for conversion 180-2 fraud 169-73 in replevin 173-5 on promissory note 184-7 may not demand inconsistent forms of relief 164-8 must state facts in issuable form 174, 176-80, 182-3 verified when (see Verification.) Condition Precedent, how performance pleaded 190-3 Construction, of complaint 161 of pleadings, legal rather than popular meaning of words taken 186-7 Convict sentenced for felony may be sued, cannot sue 34 Corporation, service of summons on domestic iri on foreign 46-54 foreign, cannot be sued in county court 96-8 actions against by non-residents 47 when can plead statute of limitations 380 designation of person to be served with summons 48 verification of pleadings by 291-5, 300 Counterclaim 273-S7 distinguished from mere defence 273-5 must defeat or diminish plaintiff's claim 274-5 when arisijig out of same transaction or connected with subject of action 277-9 INDKX. 423 Counterclaim — Continued. page, against assignee 278-82 by or against administrator 285-7 in courts of equity 284 as to joint or joint and several claims 283-5 Counts, pleading several 198-201 County, summons must show where trial desired 6 County Cleek is clerk of supreme and county courts 85-6 failure of, to do duty does not prejudice party 86 County Court, jurisdiction of, when may be questioned 96 Damages, evidence in reduction of actual, under general denial. 272 Default, practice on opening 304 Defect of Parties, how objection taken 225 Defence, dilatory ; 225 in justification of mitigation in slander 196-S of contributory negligence . 238-9 of new matter to be fully set forth 265-8 inconsistent, allowed 268-70 when defendant must elect 270 partial, must be so pleaded 270-2 Defendant, when may be designated by initials • 13 may assert claim against co-defendant 301-2 statute of limitations as to non-resident 376-3 Definiteness and certainty in pleading 317-19 Demueeee , 218-36 is an appearance 89 not verified 300 effect of 218-20 opens the record, when 221 for defect of parties 222, 230 lack of legal capacity 224 misjoinder of causes • 230 note on 232-3 Denial, must be unequivocal 236-44 of legal conclusion 244 •^ of knowledge or information 245-50 " says he denies " 241, 243 certain denials frivolous 250-1, 311 negative pregnant 251-3 cannot be stricken out as sham 31^ of fact not alleged in complaint 175, 195 Designation of Person to receive service of summons 48, 53-4 same, by certain foreign corporations 54 Diligence, how shown by affidavit 76-S Disabilities, provisions of statute of limitations as to 371-4 424 INDEX. PAGE. DrvOECE, proof of service of summons in action for 55 " DuLT," use of the word in pleading 188-92 Election between inconsistent remedies 208-10 defences 270 Equity Couet, when will award money damages 345 will enforce statute of limitations 359-67 Piling Papers on service by publication 84-5, 87 of court orders 81 Folio, denial by reference to 241 Forms, summons 393 summons with notice 393 affidavit for service of summons by publication 394 order for service of summons by publication 395 affidavit of service of summons by publication 398 in action for divorce 39C notice of appearance with demand 397 application for appointment of guardian ad litem 398 complaint ; goods sold and delivered 400 work done and materials furnished 401 executory contract of sale 402 account stated 403 breach of warranty (or fraud and deceit) 404 on promissory note 405 specific performance 406 divorce 408 separation 409 conversion 410 replevin 410 nuisance 411 assault and battery 412 slander 413 demurrer 414 answer (with counterclaim) 415 reply 416 application for extension of time to answer 417 order of discontinuance on consent 418 on application for leave to sue as a poor person 147 Fraud in service of summons 36 complaint in action for 170 distinguished from breach of warranty 170-3 limitation of action in equity for 363-4 Frivolous Pleadings 310-12 Future Interest, assignment of 120-24 General Denial, evidence admissible under plea of 254^68, 270-72 INDEX. 425 PAGE. Guardian Ad Litem, of infant plaintiff 30, 152-5 security required, when 155-7 qualifications of 157 Indefiniteness in pleading 317-19 Infant, under 14, how served with summons 29 defendant, when guardian ad litem appointed for 30, 152 must appear by guardian 152-5 when not bound by judgment 159-60 Injunction, order substituted for writ 168 Instrument for payment of money only, how pleaded 193-5 Insufeiciency of complaint, how objection taken 194-5, 198, 234r-5 Intervention of person affected by action 134 Irregularity, in summons when not waived by appearance .... 22 Avhen waived by retaining paper 88 in appointment of guardian ad litem 157 Irrelevancy in Pleading, remedy 312-14 Joinder op Causes 211-18, 230 ' Joinder of Joint Tort Feasors, parties generally 99-108, 224 Joint-Stock Association, how sued 140 Judgment where one joint debtor not summoned 14 based on unauthorized appearance 93-6 when deemed a res within the state 68 how pleaded 188-90 when levy of attachment must precede 62, 92 Jurisdiction of county courts 96 over defendant, how acquired 1 over infant, how acquired 29 over person conferred by appearance 30 question of, when not waived by appearance 96-8 over foreign corporation, how acquired 46-54 acquired by substituted service of summons 58-9 publication of summons 60-87 of cause of action where summons served by publication . . 70 cannot be acquired by amendment 5, 8, 72 Libel, code provisions as to pleading in 196-8 repetition of, after action commenced, how pleaded 346 Lien of attorney on client's cause of action 273—1 Limitations. (See Statute of Limitations.) Lunatic, how action commenced against 31, 34 when leave to sue necessary 32 Mark of illiterate person is his signature 11 Matter, allegation of new matter not equivalent to denial 242-4 Merits, affidavit of 302-4 Misjoinder of Parties 102-S 426 INDEX. PAGE. Mistake, limitation of action in equity based on 363-4 Money Had and Received, limitation of action for 365 Mortgagee, when necessary party in action on fire policy 99-102 Motion to set aside service of summons 8, 34, 38, 70 to vacate judgment for misnomer 13, 15, 16 taken against infant 159-60 to compel plaintiff's attorney to accept ans'wer 27, 297 to extend time to answer 304-5 to make pleading more definite and certain 317-19 to strike out answer as sham 306-12 scandalous allegations 314r-17 pleading for failure to serve bill of particulars 330-33 for judgment on frivolous pleading 312 Name of Attorney must appear on summons 5 may be printed on summons 9 misdemeanor for attorney to allow use of 9 of actions abolished 161, 169-73 of parties 13 initial letters may constitute 13 effect of misspelling ].l misnomer of defendant 16, 19, 21 fictitious, when to be used 16 Negative Pregnant 251-3 New York City, service of summons on 45 Non-payment, necessity of pleading 257-65 Non-Resident not bound by unauthorized appearance 94 when exempt from service of process 38-44 suitors and witnesses, exemption of 94 action against foreign corporation by 47 statute of limitations as to 376-8 Notice of Appearance, effect of 91 of filing, failure to publish. 87 to be served with summons 22 Order, judge's and court 80-1 must be served with summons, when 81 extending time to answer 87 Particulars. (See Bill of Particulars.) Parties, who should be made 99 bringing in additional 115, 134^6, 141-4 necessary where part of claim has been assigned 124-6 necessary in action on fire policy 99 for injury to realty 102 plaintiff must appear by same attorney 102 necessary and proper 131r3 INDEX. 427 Parties — Continued. page. in interest, who are 202 real party in interest 116-30 one suing on behalf of others 108-16 refusing: to join as plaintiffs 99-110 united in interest 108-12 when numerous, procedure 110-11 defect of, how objection taken 125, 131-3 officer of unincorporated association as party 13S common member of two partnerships 141 liable on same written instrument 145-7 infant 152-60 counterclaims between, jointly and severally liable 283-5 Partners, how named in summons 14 limitation of action against liquidating 367 PATiiENT, burden of proof of 257-65 by joint debtor does not waive statute of limitations as to co-obligor 367-70 when part pajrment waives statute of limitations 370 Penalty, notice to be served with summons in action for 22 Plaintiff may not serve summons 26 Pleading, amended and supplemental 341-6 names of actions abolished 161, 167 verity required in 163-4 must inform court and adversary of the facts 164 use of word " duly "in 188-92 " counts " under the code 198-201 " general denial," effect of 254-7 certain particulars excludes all others 265-8 general provisions as to 301-46 sham 306-9 frivolous 310-12 irrelevant matter in, remedy 312-14 scandalous matter in, remedy 314-17 indefliniteness and uncertainty in 317-19 Poor Person, who is 150-52 papers on application for leave to sue as 147-52 Post-office address of plaintiff's attorney 6 where summons to be mailed 82 Publication of StraijiONS, how long 82-4 Real Party in interest 116 Release obtained after action begun, how pleaded 346 Relief must be consistent with complaint 161-2 legal and equitable, distinction not abolished 168 election between incor^sistent forms of 208-10 428 INDEX. Replevin, complaint in 173-5 Reply 288-90 Rules of Practice, as to ex parte applications 79 as to proof of service of summons 55 Scandalous matter in a pleading 314-17 Sham answer or defence 306-9 Slander, code provisions as to pleading in 196- S Statute oe Frauds, how pleaded in defence 227 -9 Statute of Limitations 347-8(5 effect of repeal of 347-53 avoided by amendment of complaint 338^1 when lapse of time gives vested right 348-9 in action to foreclose mortgage given to secure a debt 353-8 in equitable actions 359-(iT duty of administrator to plead 363 in action for money had and received 365 in equity for fraud 363-4 in equity for mistake 363-4 in action against trustee 367 in action against liquidating partners 3(i7 in action on mutual account 380-6 effect of part payment by one joint debtor 367-70 extended by disability of party 371^ adverse possession 372-3 absence and non-residence of defendant 376-80 waiver of, by new promise 374—6 Stipulation extending time to answer 90 Summons, form 4 void and voidable 6-8 subscription by plaintiff's attorney 9 amendment of, by adding name of defendant 14 to correct misnomer 19 supplementjal, when necessary, 15 with notice or indorsement 22, 26 service of, by plaintiff irregular 26 in action by common informer 27 on Sunday 27, 29 personal service of, on infant under fourteen 29 on lunatic 31, 34 on adult 34-8 on domestic corporation 45 on foreign corporation 46-54 on city of New York 45 on person designated, when 54 how proved 55 INLEX. 429 Summons — Continued. page. substituted service of 56-60 service of, by publication or personally without the state. . 60-87 time of actual publication 82—4 when service complete 84 notice to be published 87 when not to be served in the state on non-resident 38^4 Sunday, when process may be served on 27, 29 Table of Code Sections 387-92 Tenants in common must join in action to recover for injury to the realty 225 Time when service of summons by publication complete 82-4 to answer, extension of 304^5 within which defendant may appear 92 Title in Replevin, how pleaded 173-5 Transaction, word construed 212-15 Trick in service of summons 36 enticing defendant into state by 38 Trustee op Express Trust 128-30 Unincorporated Association, how sued 45, 138-4C Value, when not an issuable fact 271 VARrANCE, between summons and complaint 22 Verification 290-300 remedy for omission of 290-91 by attorney 291-5 by domestic corporation 291-5 when not required 297-300 Waiver of Objection by failure to demur 225-6 Wareantt, breach of, distinguished from fraud 170-3 Week, definition of 84 Words, legal rather than popular meaning taken 186 Writing includes printed matter 12