Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS com* u-w* Ub ' arV KFN6011.B81 N 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/cu31924022786853 HAND-BOOK BULES OF PLEADING FOR NEW YORK STATE. A COMPENDIUM OF THE RULES OF PRACTICE IN PLEADING, AS SETTLED BY THE LATEST DECISIONS , OF THE COURTS. GEORGE W.'jSRADNER, Attorney and Counsellor-at-Laiu, ALBANY, N. T. : MATTHEW BENDER, LAW BOOK PUBLISHER. 1892. 7 . Entered according to act of Congress, in the year eighteen hundred and ninety-two, By MATTHEW BENDER, In the office of the Librarian of Congress, at Washington. WEED, PARSONS AND COMPANY, PRINTERS AND ELECTROTYPERS, ALBANY N. Y. INTRODUCTION. The object of this work is to present to the practi- tioner the rules of practice governing pleadings, in civil actions, so far as they have been settled by the courts of this state. In this volume I assume that the reader is familiar with the general rule.s'-of- pleadings, and is concerned with their proper application in practice, and the latest construction, which the courts have placed upon those rules. I have accordingly sought to state the most trustworthy decisions of the courts in all the great classes of actions and proceedings. The changes in procedure, since 1875, resulting from the Code practice, have had far-reaching consequences; and the careful practitioners are more than ever accus- tomed to examine the authorities, as to the mode in which, in the present condition of the law, the cause of action or defense should be alleged. Each class of actions has its peculiar rules of pleading. It is not enough to know the general principles which are to be applied. It is necessary to know, also, how they are to be applied and limited in the particular action. Such special rules, though less artificial and technical than formerly, have become, under the new procedure, more numerous and important than ever. The method here pursued aims to give, under the IV INTRODUCTION. _ title of each principal cause of action, the characteristic rules now applied by our courts in that class of cases. The method chosen for the statement of these rules is that which seemed to promise the best practical as- sistance to counsel in preparing his pleadings. The order of topics pursued, first disposes of questions con- nected with the character of particular classes of par- ties, and then proceeds with particular rules. The arrangement under each subject requires the practitioner to analyze his cause of action or defense ; and thus warns him, in preparing his pleadings, not to overlook any element which the case may involve. The practitioner will find that such a close analysis of the probative facts of a cause of action or defense is of the utmost value in giving him a mastery of the de- tails of the case. I have omitted discussion of the cases cited, and their relative authority; my purpose being to cite those of importance and value, and to cite cases of minor authority so far as they justly serve to extend, qualify, or apply the doctrine of the leading authorities. I am not unconscious of imperfections in the execu- tion ; but I submit it to the kind consideration of the profession, in the hope that it may aid them. Dated June 18, 1891. GEO. W. BRADNER. TABLE OF CASES CITED. Abbott v. Jewett 25 Hun, 603 ; am. 11. A. B. H. M. Soc. v. Foote 52 Hun, 104 ; comp. 104. Adsit v. Butler 87 N. T. 585 ; cont. 99. A. E. T. Co. v. Reich 34 N. Y. State Rep. 64 ; comp. Agnew v. B. S. R. R. Co 20 Abb. N. C. 235 ; comp. 104. Ainsworth v. St. John 25 Hun, 156 ; s. & 1. 111. Albany Co. Sav. Bk. v. Burdick. 87 N. T. 40; comp. 59. Alleman v. Bowen 39 N. Y. State Rep. 822 ; comp. 84, 87. Allen v. Suydam 20 Wend. 321 ; comp. 88. Allen v. Malcomb '. . 12 Abb. N. C. 335 ; demurr. 134. Am. Bap. H. M. Soc. v. Poote. 23 N. Y. State Rep. 462; 52 Hun, 307; comp. 90. Ames v. Webbers 8 Wend. 545 ; comp. 83. Ames v. Stearns 37 How. Pr. 289 ; var. 171. Amer. Union Tel. Co. v. Mid- dleton 80 N. Y. 408 ; jur. 143. A. M. F. Co. v. B. F. H. Co. . . 18 Abb. N. C. 70 ; bill par. 44. Anable v. Conklin 25 N. Y. 470 ; den. 31. Anderson v. Hill 53 Barb. 238 ; demurr. 131. Anderson v. Spears 21 Hun, 568 ; par. 156. Anderson v. Horn 23 Abb. N. C. 479 ; par. 156. Anderton v. Aronson 3 How. Pr. K. S. 216 ; par. 146. Anderton v. Wolf 41 N. Y. 571 ; demurr. 126, 130. Angell v. Van Schaick 30 N. Y. State Rep. 714 ; demurr. 137. Ansorge v. Kaiser 22 Abb. N. C. 305 ; reply, 164. Argall v. Jacobs 21 Hun, 114 ; comp. 35. Arrargoiz v. Frazer 2 Hilt. 244 ; ans. 20. Arthur v. Homestead F. Ins. Co. 78 N. Y. 462; comp. 35. A. T. Co. v. Smith 1N.Y. State Rep. 761. Atkinson v. Manks 1 Cow. 691 ; comp. 77. Atwater v. Spader 12 K Y. State Rep. 506; count.-c. 121. Aultman v. Hacker 38 N. Y. State Rep. 724 ; comp. 77. Austen v. Lyons 13 N. Y. Week. Dig. 460 ; den. 35. Austin v. Goodrich 49 N. Y. 266 ; comp. 58. Averill v. Taylor 5 How. Pr. 476 ; ans. 13. vi TABLE OF CASES CITED. Avery v. Everts 18 N. T. State Rep. 213 ; abt. 5. Avery v. Mead 12 N. T. State Rep. 749 ; den. 36. Avery v. Starbuck 22 N. Y. State Rep. 430 ; sup. pi. 166 ; contents, 169. Ayers v. Covill 18 Barb. 260 ; ans. 14. Baer v. Seymour 12 N. Y. State Rep. 166; f. p. 141. Bailey v. Briggs. -. 56 N. Y. 407 ; comp. 68. Bailey v. Ryder. 10 N. Y. 363 ; comp. 76. Baird v.Daly 57 N. Y. 236 ; jur. 143. Baker v. Higgins 21 N. Y. 397 ; comp. 51. Baker v. Marten 2 Barb. 634 ; comp. 86. Baker v. Piatt 17 N. Y. State Rep. 180 ; count.-c. 118. Baker v. Star Printing Co 3 N. Y. Law Bull. 33; wav. 179. Baldwin v. Berrian 53 How. Pr. 81 ; count.-c. 115. Ball v. Eve. P. P. Co 38 Hun, 11 ; bill par. 44; den. 32. Ballou v. Parsons 11 Hun, 602. Bangs v. DuckerEeld 18 N. Y. 592 ; comp. 61. Bangs v. Ocean Nat. Bank. . . . 53 How. 61 ; bill par. 45. Bank, etc. v. City, etc 41 Barb. 341 ; comp. 82. Bank, etc. v. Edwards 11 How. Pr. 216 ; comp. 50. Bank of Havana v. Magee 20 N. Y. 365 ; par. 157. Banks v. Van Antwerp 15 How. Pr. 29 ; ans. 22. Bank v. Vangieson 18 Johns. 485 ; comp. 94. Barclay v. Q. M. & Co 6 Lans. 25 ; demurr. 128. Barker v. Hoff 52 How. Pr. 382 ; comp. 87. Barlow v. Myers 64 N. Y. 41 ; par. 158. Barnard v. Cobbe 3 Daly, 35 ; f. p. 140. Barnes v. Perrine 12 N. Y. 18 ; am. 11. Barnes v. Seligman 29 N. Y. State Rep. 68 ; 55 Hun, 339 ; par. 161. Barnes v. Quigley 59 N. Y. 265 ; failure of proof, 172. Baron v. Korn 12 N. Y. State Rep. 62; 51 Hun, 401; wav. 178. Barr v. N. Y., L. E. & W. R. R. Co 96 N. Y. 444; comp. 92. Barthgate v. Haskins 59 N. Y. 533; count.-c. 122. Bartholomew v. Lyons 67 Barb. 86 ; demurr. 128. Bartlett v. Bunn 28 N. Y. State Rep. 373 ; am. 12. Bartlett v. Hatch 17 Abb. Pr. 451 ; par. 159. Barton v. Spies 3 Hun, 60 ; comp. 56. Bassel v. Elmsmore 48 N. Y. 561 ; comp. 75. TABLE OF CASES CITED. Vll Bass v. Comstock 38 N. Y. 121 ; demurr. 131. Bass v. Lake Erie & W. Co. . . . 96 N. Y. 444; par. 146. Basset v. Fish 75 N. Y. 303; am. 11. Bateman v. F. S. St. & 0. R. R. Co 5 N. Y. Supp. 600 ; comp. 47. Bates v. Bradley 24 Hun, 84 ; comp. 92. Baylis v. Stimson 110 N. Y. 621 ; am. 28. Beach v. Barrons 13 Barb. 305 ; ana. 29. Beaman v. Lyons 27 1ST. Y. Week. Dig. 168 ; war. 178. Bear v. Auer 36 Hun, 400 ; par. 155, 159. Beard v. Yates 2 Hun, 469 ; failure of proof, 172. Beams v. Gould 77 N. Y. 455 ; comp. 50. Bebinger v. Sweet 6 Hun, 478; wav. 175. Becker v. Boon 61 N. Y. 317 ; ans. 21. Becker v. Jones 37 Hun, 35; comp. 106. Becker v. L. E. & W. R. R. Co 31 K. Y. State Rep. 750 ; am. 10, 12. Beers v. Reynolds 11 IT. Y. 97 ; comp. 94. Belknap v. N. A. L. Ins. Co. . 11 Hun, 282; par. 145. Belknap v. Sealey 14 N. Y. 143 ; var. 171 . Bell v. Merrifield 109 N. Y. 202 ; comp. 57. Bell v. Sun, etc 3 Abb. KT. C. 157 ; comp. 75. Bellinger v. Kitts 6 Barb. 273 ; comp. 52. Bendernagle v. Cocks 19 Wend. 207; ans. 19. Bendernagle v. Parce 12 Hun, 149; ans. 19. Benedict v. Tanner 10 How. Pr. 455; f . p. 140. Bengston v. T. S. Co 31 Hun, 96 ; ans. 26. Bennett v. Annesley 42 Barb. 192 ; ans. 14. Bennett v. Leeds Mfg. Co HON. Y. 150 ; ans. 28. Bennie v. Reis 132 U. S. 464; demurr. 137. Benton v. Hatch 43 Hun, 142; den. 35. Berzhiemer v. Straeus 51 N. Y. Supr. Ct. 96; comp. 105. Berney v. Drexel 63 How. Pr. 471 ; comp. 50. Berney v. Drexel 33 Hun, 419; demurr. 125, 126. Bernhard v. Seligman 54 N. Y. 661 ; failure of proof, 172. Bernheimer v. Willis 11 Hun, 16 ; count.-c. 122. Berrian v. Mayor 15 Abb. N. S. 207; count.-c. 115. Bidwell v. Preston 35 N. Y. State Rep. 574; ans. 28. Birch v. Hall 19 N. Y. State Rep. 27; count.-c. 118; reply, 164. Bisby v. Shaw 12 N. Y. 67 ; count.-c. 112. Vlll TABLE OF CASES CITED. Black v. H. M. L. Ins. Co.... 47 Hun, 210; coinp. 61. Blair v. Claxton 18 N. Y. 529 ; count, -c. 123. Blake v. Eldred 18 How. Pr. 240; den. 30. Blake v. Griswold 68 N. Y. 294 ; comp. 61 ; demurr. 125. Blank v. Hartshorn 37 Hun, 101 ; comp. 49. Bliss v. Bliss 7 Bosw. 339; count. -c. 122. Bliven v. Peru S. Ins. Co 60 How. Pr. 280; par. 145. Blossom v. Barret 37 N. Y. 434 ; demurr. 131. Blossom v. Hatfield) 24 Hun, 275; comp. 102. Board of Supervisors v. Miller. 4 Hun, 71 ; ans. 11. Bockes v. Lansing 74 N. Y. 437; comp. 65. Bogardus v. N. Y. L. Ins. Co. 101 N. Y. 328; comp. 52; demurr. 137. Bonnel v. Griswold 8 Civ. Pro. Eep. 280; abt. 3. Bonnel v. R, W. &0. R R. Co. 12 Hun, 219; abt. 4. Boomer v. Koon 6 Hun, 645 ; den. 32. Born v. Schrenkeinsen 110 N. Y. 55; wav. 178. Boreel v. Lawton 90 K Y. 293 ; count. -c. 123. Boos v. "World M. Ins. Co 64 N. Y. 237 ; comp. 33. Boston Nat. Bk. v. Armour. .. 20 N. Y. State Rep. 29; 50 Hun, 176; am. 12. Boswell v. Weltshoefer 9 K. Y. Week. Dig. 500; den. 39. Bowery Bank v. Duryee 74 TST. Y. 491 ; sup. pi. 168. Bowman v. Earl 8 Duer, 691 ; bill par. 45. Boyd v. McDonald 35 N. Y. State Rep. 484; ans. 14. Boyce v. Brown 7 Barb. 80 ; comp. 49. Boyle v. Brooklyn 71 N. Y. 1 ; demurr. 134. Boyle v. City of Brooklyn 75 N. Y. 1 ; comp. 65. Brackett v. Griswold 103 N. Y. 425; abt. 1. Bradford v. Pox 38 N. Y. 289 ; ans. 20. Bradley v. Chamberlain 27 N. Y. Week. Dig. 94 ; par. 153. Bradner v. Faulkner 93 N. Y. 515 ; den. 32. Bradner v. Holland 33 Hun, 288; demurr. 131. Bradt v. Chinch 110 N. Y. 537; par. 153. Bradstreet v. Bradstreet Co 14 N. Y. State Rep. 260; f. p. 141. Brainard v. Bertram 5 Abb. N. C. 102 ; par. 156. Brannigan v. Palmer 5 N. Y. Week. Dig. 521 ; am. 7. Brazil v. Isham 12 N. Y. 9; ans. 18. Briggs v. Bowen 60 N. Y. 454; comp. 35. Briggs v. Briggs 15 N. Y. 471 ; count. -c. 115. BrinkerhoS v. Brinkerhoff. ... 8 Abb. N. C. 207; reply, 165. Brinkerhoff v. Bostwick 14 N. Y. Week. Dig. 157; par. 156. Brinkerhoff v. Bostwick 88 N. Y. 52; par. 148. TABLE OF CASES CITED. IX Bristol v. R. & S. R. R. Co.. . . 9 Barb. 158; comp. 61. Bronson v. Wiman 8 N. Y. 182; comp. 51. Brookman v. Hamill 46 N. T. 636; jur. 143. Brostow v. Barnett 82 Me. 166 ; abt. 6. Brown v. Chaplain . 66 N. Y. 214; comp. 61. Brown v. Leigh 49 N. Y. 78; am. 6. Brown v. Nichols 42 N. Y. 26 ; par. 154. Brown v. Richardson 20 N. Y. 472 ; comp. 51. Brown v. Wickman 12 How. Pr. 313 ; den. 32. Bruce v. Burr 67 N. Y. 237 ; ans. 16 ; count. -c. 123. Brush v. Hoar 15 N. Y. State Rep. 859; wav. 178. Budd v. Walker 29 Hun, 344; ans. 23. Bulman v. Bulman 17 Abb. N. C. 391 ; par. 157. Bull v. Rothchild 22 N. Y. 536 ; sup. pi. 166. Burlingame v. Parce 12 Hun, 149; ans. 19. Burling v. Freeman 2 Hun, 661 ; demurr. 127. Burrill v. Moore 5 Duer, 654 ; am. 7. Burrows v. Miller 5 How. Pr. 51 ; demurr. 129. Bush v. Prosser 11 N. Y. 347 ; count.-c. 112. Butt v. Cameron 53 Barb. 642 ; par. 146. Butler v. Veile 44 Barb. 166 ; comp. 76. Butterworth v. O'Brien 23 N. Y. 275 ; ans. 22. Byrn v. Judd 11 Abb. Pr. N. 8. 390 ; s. & 1. 110. Byrnes v. Dunn 6 N. Y. Week. Dig. 140; am. 10. B. & O. R. R. Co. v. Arthur. . . 15 N. Y. Week. Dig. 374; 90 N. Y. 234; comp. 77. B. L. O. Co. v. S. C. O. Co 42 Hun, 153; comp. 101. C. Bank, etc. v. Pfeiffer 108 1ST. Y. 242; ans. 28, 30. Caldwell v. Raymond 2 Abb. Pr. 193 ; comp. 74. Cairo v. Davies 73 N. Y. 211 ; demurr. 133, 134. Camp v. Smith 27 N. Y. State Rep. 322 ; 117 N. Y. 354 ; am. 9. Cardwell v. Cardwell 12 Hun, 92 ; bill par. 45. Carpenter v. Goodwin 13 Daly, 89 ; den. 39, 40 Carpenter v. Roberts 1 Law Bull. 2 ; jur. 155 ; comp. 91. * Carpenter v. The M. L. Ins. Co. 93 N. Y. 552 ; count.-c. 117. Carr v. Security Co 109 N. Y. 504 ; wav. 177. Carr v. Sterling 144 JST. Y. 555 ; 24 N. Y. State Rep. 521 ; am. 9, 10, 11 ; f. pi. 139. Carroll v. Staten I. R. R. Co. . . 58 N. Y. 126 ; jur. 143. Carrol v. White 33 Barb. 615 ; comp. 74. B X TABLE OF CASES CITED. Carter v. De Oamp 40 Hun, 258 ; count. -c. 125. Carter v. Mayor, etc 43 N. Y. 399; par. 158. Casey v. Mann 5 Abb. Pr. 91 ; comp. 102. Cashman v. Reynolds 37 N. Y. State Rep. 143 ; am. 8 ; demurr. 137. Cashman v. Wood 6 Hun, 520; demurr. 133. Cass v. Higenbotam 100 N. Y. 248 ; count. -c. 120. Casserly v. Witherbee 28 N. Y. "Week. Dig. 388. Castor v. N. Y. & E. R. E. Co. 5 Duer, 667 ; par. 150. Catlin v. Gunter 11 N. Y. 368 ; var. 170. Caulkins v. Bolton 98 N. Y. 511 ; ans. 28. Cavanagh v. The Oceanic S. Co. 30 K. Y. State Rep. 532 ; pr. w. al. 163. Cawley v. Costello 15 Hun, 303; comp. 85. Chafee v. Morse 66 Barb. 252 ; abt. 6. Chaffle v. Morse 67 Barb. 252 ; wav. 176. Chambers v. Lewis 11 Abb. Pr, 210 ; count. -c. 115. Chamboret v. Cagney 41 How. Pr. 125 ; demurr. 136. Chandler v. Powers 25 Hun, 445 ; par. 153. Chapman v. Forbes 34 1ST. Y. State Rep. 351 ; par. 158. Cheeseboro v. Kimberly 6 K Y. Supp. 623 ; bill par. 44. Cheney v. Fisk 23 How. Pr. 236 ; demurr. 131. Childs v. Tuttle 48 Hun, 228 ; comp. 76 ; neg. 97 ; bill par. 43, 44. Chitten. Co. v. Stewart 67 Barb. 463; and see Shaw v. Cook, 12 Hun, 173 ; 78 N. Y. 194. City v. Holloway 7 N. Y. 493 ; neg. 96. Claflin v. Taussig 7 Hun, 223. Clark v. Banner 2 Lansing, 67 ; comp. 76. Clark v. Brockway 3 Keyes, 13 ; count.-c. 120. Clark v. Crandall 27 Barb. 73 ; comp. 53. Clark v. Post 113 N. Y. 17; 21 N. Y. State Rep. 835; par. 161. Clark v. Story 29 Barb. 295 ; count.-c. 119 ; comp. 80. Clark v. Thorpe 2 Bosw. 680 ; comp. 78. Clason v. Baldwin.. . , 31 1ST. Y. State Rep. 350 ; 56 Hun, 326 ; N. Y. Code Civ. Pro., sees. 1497-1531 ; comp. 88. Clason v. Baldwin 37 N. Y. State Rep. 213 ; neg. 97 ; wav. 179. Clegg v. C. N. U 8N.Y. Civ. Pro. Rep. 401 ; comp. 90. Clifford v. Dain 81 N. Y. 52; comp. 33. Clift v. Rogers 25 Hun, 39 ; comp. 84. TABLE OF CASES CITED. XI Clifton v. Brown. ." 2 Civ. Pro. Rep. 44 ; am. 8. C. C. & I. Co. v. H. S. C. Co. 15 Abb. Pr. 78 ; comp. 79. C. C. & I. Co. v. Vinal 15 N. Y. State Rep. 968. C. S. & A. Association v. Read. 93 N. Y. 474 ; ans. 26. C. Nat. Bk. v. Nat. P. Bk 32 Hun, 105; count.-c. 115. C. P. P. Mfg. v. Damon 16 N. Y. State Rep. 133 ; pr. w. al. 163. Cobb v. Dows 9 Barb. 280 ; comp. 56. Cockerill v. Loonam 36 Hun, 353; reply, 165. Cockroft v. Am. Ins. Co 9 Bosw. 681 ; bill par. 43. Coddington v. Davis 1 N. Y. 186; comp. 87. Coffin v. McLean 80 N. Y. 560; count.-c. 115, 121. Cogswell v. N. Y., N. H. & H. R. R. Co 105 N. Y. 319; comp. 67. Cohn v. Goldman 76 N. Y. 284; comp. 76. Coit v. Stewart 50 N. Y. 17 ; count.-c. 1 15. Cole v. Reynolds 18 N. Y. 74 ; par. 149. Coleman v. Plaisted 36 Barb. 36; var. 170. Collyer v. Collyer 21 N. Y. State Rep. 118; 50 Hun, 422; am. 13. Colt v. Davis 20 N. Y. State Rep. 309; 50 Hun, 366 ; f. pi. 141. Columbia Bank v. Jackson.... 4 N. Y. Supp. 433; comp. 63. Conner v. Heese 105 N. Y. 643 ; den. 40. Conrow v. Little 115 N. Y. 387 ; 26 N. Y. State Rep. 527; comp. 70. Cook v. Louie 56 N. Y. 420 ; count.-c. 123. Cook v. Warren 14 N. Y. Week. Dig. 162 ; comp. 57. Cook v. Wardens, etc 5 Hun, 293; 67 N. Y. 594 ; par. 150. Cooper v. Burr 45 Barb. 9 ; comp. 47. Cooper v. Weston 16 N. Y. State Rep. 937; comp. 92; par. 156. Corbin v. George 2 Abb. Pr. 465 ; ans. 18. Cornell v. Dakin 38 N. Y. 253; den. 39. Cornell v. Donovan 14 N. Y. State Rep. 687; count.-c. 113. Cornell v. Mayor 19 Hun, 285; par. 150. Cornwell v. Haight 21 N. Y. 462. Cosgrove v. Bowe 2 N. Y. Civ. Pro. Rep. 61 ; comp. 83. Cosgrove v. Bowe 14 N. Y. Week. Dig. 446 ; comp. 83. Coyle v. Nies 6 N. Y. State Rep. 194 ; comp. 76. Cragin v. Lovell 88 N. Y. 258; count.-c. 113, 114; de- murr. 127; ans. 24. XU TABLE OF CASES CITED. Craig v. Town of Andes 93 N. T. 405 ; abt. 5. Crane v. Hardman 4 B. D. Smith, 448; den. 39. Cromer v. Pinckney 3 Barb. Ch. 466; par. 154. Crook v. County of Kings 97 N. Y. 421 ; par. 157. Crooke v. Hanchett 36 Hun, 70 ; wav. 179. Croome v. Craig 25 N. Y. State Kep. 532 ; pr. w. al. 163. Cropsey v. Perry 23 N. Y. "Week. Dig. 162; comp. 57. Crowley v. E. Ex. S. Co 2 N. Y. Civ. Pro. Rep. 174 ; den. 38. Cruger v. McLeaury 41 N. Y. 219; var. 171. Cummings v. Morris 35 N. Y. 625; count.-c. 116. Cunard v. Francklyn 47 Hun, 526; bill par. 43, 44. Cunningham v. M. S. & P. C. R. R. Co 20 N. Y. State Rep. 698 ; bill par. 44. Curtis v. Morten 11 Paige, 15; ans. 22. Cushman v. Jewell , . . 7 Hun, 525 ; comp. 70. Cutler v. Wright 22 N. Y. 472 ; count.-c. 125 ; ans. 22. Dagal v. Simmons 23 N. Y. 491 ; ans. 22. Dalafield v. Kinney 27 "Wend. 345; comp. 63. Dalrymple v. Hunt 5 Hun, 111 ; den. 39. Danebaum v. Pierson 3 N. Y. Supp. 129 ; den. 35. Daniels v. Daniels 2 N. Y. Civ. Pro. Rep. 238 ; bill par. 43. Davidson v. Alfaro 16 Hun, 353; count.-c. 124. Davidson v. Savage 6 Taunt. 121; demurr. 138. Davis v. Beckstein 69 N. Y. 440 ; wav. 176. Davis v. Carpenter 12 How. Pr. 287; par. 157. Davis v. Duffy. . . 8 Bosw. 617 ; abt. 5. Davis v. Morris 86 N. Y. 569; par. 151. Davis v. K Y, L. E. & W. R. Co HON. Y. 646; ans. 13. Dawley v. Brown 9 Hun, 461 ; ans. 15 ; wav. 175. Day v. Hammond 57 N. Y. 479; ans. 21. Day v. Town, etc 107 N. Y. 148 ; pr. w. al. 162, 163. Dean v. Eldridge 29 How. Pr. 219 ; comp. 79. Dean v. Whiton 16 Hun, 203; par. 156. Decker v. Saltsman 59 N. Y. 275 ; failure of proof, 172. Degraw v. Elmore 50 N. Y. 1 ; failure of proof, 172. Degroat v. Jay 30 Barb. 483 ; comp. 80. Dempewolf v. Hills 53 N. Y. Snpr. Ct. 105 ; bill par. 44. Denham v. Cornell 67 N. Y. 556 ; par. 157. Denair v. City, etc 5 N. Y. Supp. 835 ; am. 12. Denike v. N. Y. & R. Line, etc., Co 80N.Y. 599; par. 145. TABLE OF CASES CITED. xill Dennisen v. Dennison 9 How. Pr. 246; den. 29. De Nobele v. Lee 61 How. Pr. 272; comp. 59, 62. Depuy v. Strong 37 N. Y. 372; demurr. 129, 130. Derhacn v. Lee 87 N. Y. 399 ; par. 160. Devine v. Duncan 2 Abb. K. C. 328 ; am. 7. Devoe v. Brand 53 N. Y. 462; comp. 77. Dewey v. "Ward 12 How. Pr. 419; comp. 56. De Witt v. Buchanan 54 Barb. 231 ; jur. 143. De Witt v. Elmira Nobles Mfg. Oo 66 N. Y. 459; demurr. 158; jur. 142. Dezengruel v. Dezengruel 12 N. Y. Week. Dig. 286; ans. 23. Didier v. Warner 1 Code Bep. 42 ; ans. 13. Dillon v. Sixth Ave. B. E. Co. 46 N. Y. Supr. Ct. 21; reply, 166. D'lvernois v. Leavitt 23 Barb. 63; jur. 143. Dobbs v. Niebuhr 19 K. Y. State Rep. 340 ; par. 160. Dodge v. Colby 108 N. Y. 445 ; demurr. 125 Donnell v. Walsh 33 N. Y. 43 ; par. 150. Donnelly v. Woolsey 38 N. Y. State Rep. 39 ; wav. 180. Donner v. Ogilvie 49 Hun, 229 ; neg. 95. Dorge v. Peace 13 Ala. 227 ; abt. 4. Douglass v, Leonard 37 N. Y. State Rep. 179 ; demurr. 130. Doverhill v. Dickson 5 How. Pr. 109 ; comp. 80. Drake v. Drake 41 N. Y. 366 ; demurr. 126. Draper v. Stouvenal 38 N. Y. 219 ; comp. 66. Dresler v. Hurd 6 N. Y. Supp. 500 ; pr. w. al. 162. Dresler v. Hurd 25 N. Y. State Rep. 808; den. 38. Driscall v. Sanderson 15 N. Y. State Rep. 134 ; count. -c. 118. Dryer v. Brown 23 N. Y. State Rep. 695 ; 52 Hun, 321 ; ans. 23; wav. 177. Duboise v. Hermance 56 N. Y. 673 ; den. 39. Duboise v. Casidy 75 N. Y. 298 ; comp. 62. Dudley v. Mayhew 3 N. Y. 9 ; demurr. 128 ; par. 143; den. 39. Dudley v. Scranton 57 N. Y. 424 ; f. of p. 172. Duncan v. Ray. . , 19 Wend. 530 ; bill par. 46. Dunham v. Bower 77 N. Y. 76 ; den. 37. Dunham v. Lee 87 N. Y. 699; par. 159. Dunham v. Mann 8E Y. 508 ; comp. 51. Duperquet v. Fairfield 18 N. Y. State Rep. 8; 49 Hun, 471; ver. 174. Dusenberry v. Fisher 47 N. Y. Supr. Ct. 482 ; par. 151. Dusty v. Lansing 3 N. Y. State Rep. 699; comp. 169. XIV TABLE OF CASES CITED. Dwight v. Germ. L. Ins. Co ... . 84 N. Y. 493 ; den. 41, 42, 46. Eagleson v. Son 5 Rob. 649 ; comp. 47. Eaton v. Balcome 33 How. Pr. 80 ; demurr. 130. Eaton v. Diefendorf 102 N. T. 720; ans. 23. Eaton v. Wells 82 N. T. 576 ; den. 41 ; ans. 21. Ebbetts v. Martine 19 Hun, 294 ; sup. pi. 167. Edwards v. Lent 8 How. Pr. 28; ans. 27. Edwards v. Noyes 65 N. Y. 125 ; comp. 63. Eighmie v. Taylor 39 Hun, 366 ; ans. 13. Egleston v. Beach 33 JST. Y. State Rep. 835 ; am. 9. Eldred v. Eames 115 N. Y. 401 ; am. 9. Ellis v. Sharp 42 Hun, 179 ; comp. 105. Elton v. Markham 20 Barb. 343 ; den. 30. Emery v. Baltz 22 Hun, 434 ; count.-c. 121. Emery v. Pease 20 N. Y. 62; comp. 83; f. pi. 139. Eno v. Mayor 68 N. Y. 214 ; comp. 66. Ensign v. Ensign 14 N. Y. State Rep. 181 ; ans. 25. Equitable, etc. y. Hersee 103 N. Y. 25; 3 N. Y. State Rep. 100; comp. 71. E. R. & E. L. Co. v. Grant ... 30 N". Y. 793; comp. 57. Erwin v. Ore. R. R. & Nav. Co. 55 Hun, 544 ; par. 147. Essex v. N. Y., etc., R. R. Co. 8 Hun, 361, f. pi. 141. E. Sav. Bank v. Campbell .... 62 N. Y. 637; f. pi. 140. Evans v. "Williams 60 Barb. 346 ; den. 38. Eveleigh v. Town, etc 34 Hun, 140 ; comp. 93. Painerty v. Barker 7N.Y. Legal Obs. 316; comp. 74. Fairmount C. & I. Co. v. Hus- brecht 48 Hun, 206; wav. 176. Farrington v. A. L. & F. Co. . 9 K. Y. Supp. 433; comp. 61. Farrow v. Sherwood 17 N. Y. 327 ; comp. 50. Fassett v. Talmage 15 Abb. Pr. 205 ; ans. 8. Fell v. Cromwell 12 How. Pr. 79 ; am. 7. Ferner v. Williams 14 Abb. Pr. 215 ; comp. 93. Ferris v. Tannebaum 39 N. Y. State Rep. 71 ; sup. pi. 166. Field v. Gibson 20 Hun, 274 ; jur. 143. Field v. Lyons 2 Rob. 35 ; fail, of proof, 172. Fielding v. Lucas 60 How. Pr. 134 ; demurr. 133. Filer v. N. Y. C. R. R. Co . . . 49 N. Y. 42; comp. 72. Fink v. Jetter 38 Hun, 163 ; bill par. 145. Fisher v. Andrews 37 Hun, 176 ; comp. 80. Fisher v. Hope 69 N. Y. 161 ; par. 158. TABLE OF CASES CITED. xv Fitch v. Bigelow 5 How. Pr. 237 ; ver. 174. Fleischman v. Bennett 79 N. Y. 579 ; sup. pi. 166. Fleischman v. Bennett 87 N. Y. 231 ; comp. 74, 75. F. B. Church v.Ut.&S.B.R. Co. 6 Barb. 313; comp. 58. F. L. & T. Co. v. Bk. & M. Tel. Co 109 N. Y. 342; sup. pi. 166. Foden v. Sharp 4 Johns. 183; comp. 88. Fogg v. Edwards 20 Hun, 90 ; am. 90. Ford v. Ford 35 How. Pr. 325 ; var. 171. Fosdick v. Grofi 22 How. Pr. 158 ; ans. 19. Foster v. Hagen 12 Barb. 547 ; ans. 15. Fowler v. Bow. Sav. Bk 1 13 N. Y. 450 ; 23 N. Y. State Rep . 130 ; comp. 72. F. & M. Bk. v. Wadsworth. ... 24 N. Y. 547 ; comp. 51. F. & N. Bk., etc. v. Clarke. ... 22 N. Y. Week. Dig. 569. F. S. Bk. v. Leggett 51 N. Y. 552 ; wav. 176. F. & M. Nat. Bk. v. Rogers. . . 17 N. Y. State Rep. 381 ; demurr. 134. Francis v. Schoelkopf 53 N. Y. 152 ; comp. 67. Frank v. Bush 63 How. Pr. 282 ; am. 7. Frank v.Xevie 5 Robt. 599; par. 157. Franklin v. Schemerhorn 8 Hun, 112; par. 144. Fredricks v. Taylor 2 N. Y. 596 ; ver. 173. Freeman v. Fulton F. Ins. Co. 38 Barb. 247; comp. 61. French v. Saltee 17 Hun, 546 ; comp. 54. French v. Willet 10 Abb. Pr. 99 ; comp. 53. Friedburg v. Bates 24 Hun, 315 ; bill par. Frisbie v. Jacobs 1 City Ct. 235 ; comp. 84. Fry v. Bennett 5 Sandf. 54 ; s. & 1. 110 ; comp. 75. Fuller v. W. F. Ins. Co 12 How. Pr. 293. Fulton Ins. Co. v. Baldwin 37 N. Y. 648; demurr. 126. Flynn v. Eq. L. Ins. Co 78 N. Y. 568; den. 35. Gallager v. Brunell 6 Cow. 346 ; count.-c. 100. Gardvey v. N. Y. L. Ins. & T. Co 14 N. Y. State Rep. 909; wav. 177. Gardner v. Clark 21 N. Y. 399; abt. 6; ans. 18 ; demurr. 138. Gardner v. Ogden 22 N. Y. 327 ; jur. 143. Gardner v. Schoville 1 How. Pr. N. S. 272 ; comp. 106. Gardiner v. Knox 15 N. Y. Week. Dig. 222; bill par. 43. Garrey v. Fowler 4 Sandf. 665 ; comp. 84. Gas-light Co. v. R., W. & O. R. R. Co 51 Hun, 119; am. 10. xvi TABLE OF CASES CITED. Gates v. Preston 41 N. Y. 113; den. 37. Gauntley v. Wheeler 31 How. Pr. 137 ; comp. 79. Gen. Co. Bank v. Bank of Batavia 43 Hun, 295; par. 153. Gessnerv. Smith 18 N. Y. State Kep. 1013; ans. 25; den. 36. Getty v. Develin 70 K. Y. 504; comp. 78. Gilbert v. Cram 12 How. Pr. 455 ; ans. 18. Gilbert v. York Ill N. Y. 544; comp. 89. Gilbert v. York 115 N. Y. 544 ; 20 N. Y. State Rep. 126 ; demurr. 127. Gilchrist v. Gilchrist 44 How. Pr. 317; am. 10. Gildersteine v. Landon 73 N. Y. 609 ; den. 38. Gillett v. Roberts 57 N. Y. 28; comp. 94. Gilman v. Tucker 40 N. Y. State Rep. 71 ; comp. 68. Glen & H. M. P. G. Co. v. Hall. 61 N. Y. 226; count.-c. 112. Goelet v. Cowdrey 1 Duer, 132 ; ans. 21. Goch v. Marsh 8 How. Pr. 439; jur. 142. Gleason v. Moen 2 Duer, 639; ans. 15. Gleinwood v. Wilson 2 N. Y. Law Bull. 33; wav. 179. Goodwin v. The N. M. L . Ins. Co 73 N. Y. 48C; ans. 34. Goodhue v. Luce 82 Me. 222; aba. 6. Goodman v. Robb 41 Hun, 605 ; ans. 17. Goodyear v. Delavergne 10 Hun, 537; ans. 17. Goulet v. Asseler 22 K. Y. 225 ; neg. 98. Good v. Martin 95 N. Y. 93 ; comp. 85. Goddard v. The P. M. Co 22 N. Y. State Rep. 540; bill par. 45. Goldberg v. Utley 60 N. Y. 427 ; comp. 55; demurr. 132. Gordon v. Titus 66 Barb. 275; par. 150. Gould v. Thompson 39 How. Pr. 5; par. 145. G. Nat. Bank v. N. Y., etc., R. R. Co 4 K Y. State Rep. 714. Grafton v. The Union Ferry Co 40 N. Y. State Rep.- 137; abt. 5. Graham v. Scripture 26 How. Pr. 501. Greaves v. Gouge 69 N. Y. 154 ; comp. 91. Green v. Parsons 14 N. Y. State Rep. 97; count.-c. 118. Gray v. Green 9 Hun, 334; comp. 53. Grey v. N. Y. & V. S. S. Co. . . 3 Hun, 383; comp. 91. Griffin y. Todd 48 How. Pr. 15 ; fr. pi. 140. Griffin v. L. I. R. R. Co 101 N. Y. 348; ans. 29; den. 37. TABLE OF CASES CITED. XVH Grimshaw v. Woodfall : 40 N. T. State Rep. 299; comp. 47; de- murr. 131. Gridley v. Gridley 7 N. Y. Civ. Pro. Rep. 215; bill par. 45; wav. 179. Griswold v. Laverty 12 N. Y. Leg. Obs. 316; comp. 50. Groshan v. Lyon 16 Barb. 461; demurr. 129. Gross v. Clark 87 N. Y. 272; den. 42; bill par. 46. Gumb v. T. T. S. R. R. Co. . . . 114 N. Y. 411: 23 N. Y. State Rep. 748 neg. 96. Guest v. City, etc 69 N. Y. 506; comp. 66. Gurnee v. Beach 4 Hun, 108 ; comp. 85. Gurney v. The G. T. R. R. Co. 37 N. Y. State Rep. 558; comp. 109; de- murr. 127. Gustin v. Starderd 23 Hun, 99 ; comp. 72. Gunning v. Appleton 58 How. Pr. 471 ; s. & 1. 110. Gulick v. Gulick 21 How. Pr. 22; par. 143. Hackley v. Ogman 10 How. Pr. 44; ans. 17. Hadden v. St. L. I. M. & P. R. Co 57 How. Pr. 390 ; ans. 19. Hadley v. Boehen 1 Hun, 304; contr. 169. Hagadorn v. Village 37 N. Y. State Rep. 542 ; ans. 28. Haight v. Badgley 15 Barb. 99; den. 39. Haines v. Hollister 64 N. Y. 1; demurr. 129. Hale v. Bank 49 N. Y. 629; demurr. 125. Hall v. Fisher 20 Barb. 441 ; comp. 54. Hall v. Olney 65 Barb. 27; sup. pi. 166. Hall v. Southmayd 15 Barb. 32 ; comp. 63. Hall v. Taylor 8 How. Pr. 428; comp. 80. Hall v. U. S. R. Co 30 Hun, 375 ; pr. w. al. 162. Hall v. Voreland 42 Barb. 543; comp. 74. Hall v. W. C. Co 34 N. Y. 284; comp. 63. Halsey v. Gerdes 17 Abb. N. C. 395 ; comp. 64. Halsey v. F. Nat. Bk 4 N. Y. Supp. 804; am. 10. Halstead v. Cockcroft 40 N. Y. Supr. Ct. 519; par. 153. Halstead v. Nelson 24 Hun, 395; s. & 1. 111. Hamburg v. Singer Mfg. Co. . . 4 N. Y. Supp. 185 ; comp. 89. Hamilton v. Hough 13 How. Pr. 14; ans. 18. Hamilton v. Eno 81 HT. Y. 116; s. & 1. 111. Hammond v. Earl 58 How. Pr. 426 ; ans. 14, 19. Hanna v. Mills 21 Wend. 90; comp. 95. Hand v. Burrows 15 Hun, 481 ; wav. 176. C XVlll TABLE OF CASES CITED. Hansee v. Mead 27 Hun, 162; ans. 24. Hansett v. Fine 18 Abb. N. C . 142 ; oomp. 101. Harland v. Howard 32 N. Y. State Rep. 871; ans. 28. Harris v. Eldridge 5 Abb. N. C. 278; demurr. 134. Hart v. Cleis 8 Johns. 41 ; comp. 58. Harway v. Mayor 1 Hun, 628 ; count.-c. 116. Hasbrouck v. Bunce 62 N. Y. 476 ; par. 150. Hassen v. City 65 N. Y. 516 ; comp. 66. Hastings v. Farmer 4 N. Y. 293 ; jur. 143. Hatch v. Hamlin 12 Daly, 272 ; count.-c. 123- Hatfleld v. Lasher 81 N. Y. 246 ; s. & 1. 111. Hathorn v. Congress Spring Co. 44 Hun, 608; ans. 33. Hauk v. Craighend 4 Hun, 561; var. 170. Havemeyer v. Fuller 60 How. Pr. 316 ; comp. 73, 74. Hay v. Star F. Ins. Co 77 N. Y. 235; comp. 59. Hayes v. Moody 2 N. Y. Supp. 385 ; count.-c. 123. Hayes v. Myers 25 Hun, 414; comp. 79. Haynes v. Brooks 17 Abb. N. S. 152; par. 152. Haynes v. Hollister 64 N. Y. 1 ; par. 153. Haywood v. Wood 44 Hun, 128; sup. pi. 166. Hawes v. Oakland 104 U. S. 460 ; jur. 146. Healy v. Clark 12 N. Y. State Rep. 685 ; den. 36. Hees v. Nellis 63 Barb. 440 ; demurr. 129. Hegerich v. Kiddie 99 N. Y. 258; abt. 1, 3. Heidenheimer v. Wilson 31 Barb. 636; count.-c. 114. Heigel v. Willis 20 N. Y. State Rep. 639 ; count.-c. 117. Height v. Child 34 Barb. 106 ; ans. 22. Heine v. Mayers 61 N. Y. 171 ; comp. 52. Hemingway v. Poucher 98 N. Y. 281 ; comp. 105. Henderson v. Scott 32 Hun, 412 ; ans. 19. Hendricks v. Decker 35 Barb. 298; sup. pi. 166. Henry v. Daley 17 Hun, 210 ; count.-c. 121. Herendeen v. De Witt 49 Hun, 53; comp. 92. Herr v. Bamberg 10 How. Pr. 128; s. & 1. 111. Hier v. Staples 51 1ST. Y. 136 ; wav. 176. Higenbotam v. Green 25 Hun, 214 ; bill par. 45. Higgins v. N. & F. R. R. Co. . . 66 N. Y. 604 ; comp. 53. Higgins v. Wright 43 Barb. 86 ; comp. 80. Hill v. Place 36 How. Pr. 26 ; 48 N. Y. 520 ; comp. 93. Hinds v. Kellogg 37 N. Y. State Rep. 356 ; wav. 179. Hoag v. Lamont 60 N. Y. 96 ; demurr. 126 , 127. Hodge v. Drake 37 N. Y. State Rep. 933; demurr. 128.. TABLE OF CASES CITED. XIX Hoeninghaus v. Chaleger 22 N. T. State Rep. 528 ; den. 42. Hollister v. Stewart Ill N. Y. 644; ans. 19. Holmes v. Holmes 9 N. Y. 525 ; comp. 84. Holstein v. Rice 15 How. Pr. 1 ; comp. 50. Hood v. Hood 85 N. Y. 561 ; comp. 79. Hopkins v. Ensign 11 N. Y. State Rep. 85; ans. 34; wav. 178. Hopkins v. Lane 87 N. Y. 501 ; count. -c. 115. Hooper v. Beecher 4 N. Y. State Rep. 473 ; den. 40. Horn v. Town, etc 83 K Y. 100 ; comp. 66. Horner v. Wood 23 N. Y. 350; comp. 53, 60. Hornfager v. Hornfager 6 How. Pr. 279; am. 7. Horton v. Shepherd 1 N. Y. Civ. Pro. Rep. 26 ; ans. 19. Hosley v. Black 23 N. Y. 438; comp. 53. Hotchkins v. The Third Nat. Bk. 38 N. Y. State Rep. 754; comp. 77. Houghtaling v. Lloyd 39 N. Y. State Rep. 580; ans. 9. House v. Cooper 16 How. Pr. 292 ; comp. 53. Howard v. Johnston 82 N. Y. 271 ; var. 171. Howard v. Raymond 11 Abb. Pr. 155 ; s. & 1. 110. Howell v. Grouse 3 Abb. Pr. 167 ; comp. 102. Hoyt v. Gelston 13 Johns. 141 ; jur. 142. Hoyt v. Thompson 19 N. Y. 207; contr. 169. H. S. Mfg. Co. v. Reinoehl. . . . 40 Hun, 47; bill par. 45. Hubbell v. Fowler 1 Abb. N. S. 1 ; reply, 163. Hubbell v. Leach 58 N. Y. 237 ; comp. 54. Hubbell v. Medbury 53 N. Y, 98; par. 158. Hughes v. McKenzie 39 N. Y. State Rep. 179 ; comp. 60. Hughes v. Vt. Copper Co 72 N. Y. 207; comp. 70. Hulce v. Thompson 9 How. Pr. 113 ; comp. 56. Hull v. Smith 8 How. Pr. 135 ; f. pi. 140. Hunt v. Bennett 19 N. Y. 173 ; comp. 74. Husted v. Cruikshank 38 N. Y. State Rep. 945 ; comp. 69. Hutchins v. Winner 46 N. Y. 456 ; par. 158. Indianapolis, E. R. & T. W. R. R. Co. v. Hyde 122 Ind. 188; ans. 20. In re " St. Josephine" 39 N. Y. 19 ; jur. 143. Inslee v. Hampton 8 Hun, 230 ; comp. 73. I. P. & C. R. R. Co. v. Tyng. . . 63 N. Y. 653; par. 158. Isham v. Davidson 52 N. Y. 237 ; count.-c. 116. Ives v. Jacobs 21 Abb. N. C. 151 ; comp. 85. Ives v. Shaw 31 How. Pr. 54 ; bill par. 45. Jackson v. Andrews 59 N. Y. 244; comp. 57. XS- TABLE OF CASES CITED. Jackson v. Brookins 5 Hun, 530; comp. 56; par. 144. Jackson v. Mudon 1 E. D. Smith, 141 ; ans. 19. Jacob v. Remsen 36 N. Y. 668 ; ans. 32. Jeffries v. McKillop 48 How. Pr. 122; comp. 112. Jennings v. G. T. Ry. Co 33 N. Y. State Rep. 15; 52 Hun, 227; ans. 25. Jex v. Mayor, etc Ill N. Y. 339 ; 19 N. Y. State Rep. 132 ; ans. 16. Johnson v. Gibeon 23 N. Y. Week. Dig. 433 ; ans. 15. Johnson v. Whitman 10 Abb. N. S. Ill ; demurr. 129. Jones v. Felch 3 Bosw, 63 ; par. 151. Jones v. Judd 4 N. Y. 412 ; comp. 52. Jones v. Ludlam 74 N. Y. 61 ; ans. 31. Jones v. Magee 7 N. Y. Week. Dig. 97 ; ans. 37. Jones v. Piatt 60 How. Pr. 277 ; bill par. 43, 46. J. & S. P. R. Co. v. Morley. ... 23 N. Y. 552; comp. 50. Judge v. Hall 5 Lans. 69; demurr. 127. Jutt v. Hughes 67 N. Y. 267 ; comp. 97. v. Whittaker 44 N. Y. 565 ; ans. 21 ; f. pi. 140. Kearns v. C. D. & B. Co 17 N. Y. State Rep. 692; bill par. 44. Keck v. Wirdee 86 1ST. Y. 264 ; sup. pi. 169. Keep v. Kaufman 56 N. Y. 332 ; comp. 56. Keefer v. Thomas 6 Abb. N. S. 42 ; f. pi. 140. Kelley v. Burnett 16 How. Pr. 135 ; demurr. 139. Kelley v. Gould 2 N. Y. Supp. 600 ; comp. 48. Kelley v. Tain tor 48 How. Pr. 270 ; comp. 110. Kelley v. Waterbury 87 N. Y. 179 ; comp. 110. Kellogg v. Baker 15 Abb. Pr. 286 ; ans. 17. Kellogg v. Paine 8 How. Pr. 329 ; bill par. 46. Kelsey v. Sargent 100 N. Y. 602 ; bill par. 41, 45. Kelsey v. Ward 16 Abb. Pr. 98; ans. 19. Kelsey v. Western 2 N. Y. 501 ; ans. 33 ; var. 172. Kendall v. Stone 5 N. Y. 14; comp. 75, 76. Kennedy v. N. Y. C. & H. R. R. Co 18 N. Y. State Rep. 441 ; comp. 95. Kennogh v. McColgan 21 N. Y. State Rep. 326 ; demurr. 135. Ker v. McSweeney 66 How. Pr. 447 ; comp. 99. Kerch v. R., W. & O. R. R. Co. 14 N. Y. State Rep. 446 ; bill par. 43. Kerner v. Boardman 39 N. Y. State Rep. 61 ; comp. 57. Kerns v. Roch. & Gen. Val. R. R. Co 4 Abb. N. S. 107; par. 145. TABLE OF CASES CITED. XXI Ketchum v. Fox 23 N. Y. State Rep. 765 ; par. 144. Ketchum v. Morrill 2 N. Y. Leg. Obs. 58 ; demurr. 138. Keteltas v. Meyers 19 N. Y. 231 ; comp. 49. Kilmer v. Smith 77 N. Y. 226 ; comp. 59. Kilpatrick v. Dean 19 N. Y. State Rep. 837; wav. 177; comp. 62. Kimball v. Ives 30 Hun, 568 ; par 147. Kinder v. Ilorrobin 72 N. Y. 159 ; par. 142. Kip v. K. Y. C. R. R. Co 67 N. Y. 227; demurr. 133. Kipp v. McLean , 15 N. Y. Week. Dig. 168 ; comp. 59. Kirtz v. Peck 113 N. Y. 222; count. -c. 222. Klinck v. Colby 46 N. Y. 427 ; comp. 111. Klinger y. Bondy 36 Hun, 601 ; ans. 27. Knapp v. City of B 97 N. Y. 520; comp. 57. Knapp v. Roche 94 N. Y. 333 ; ans. 20, 35, 38. Knapp v. Roche 37 N. Y. Supr. Ct. 397 ; var. 170. Knox v. Com. Agency 40 Hun, 508 ; ans. 32. Knox v. Baldwin 80 N. Y. 610 ; par. 147. Koch v. le Trois 40 N. Y. State Rep. 561 ; comp. 62. Kosmack v. Mayor, etc 53 Hun, 329; comp. 67. Kraft v. Dingee. 37 Hun, 345; bill par. 45. Kranz v. Dun 8 N. Y. Civ. Pro. Rep. 403 ; bill par. 44. Krower v. Reynolds 19 N". Y. Week. Dig. 383; comp. 80. Krower v. Reynolds 99 N. Y. 245 ; comp. 48. Lamb v. Kelsey 54 N. Y. 645 ; comp. 61. Lamberty v. Roberts 31 N. Y. State Rep. 936 ; reply, 164. Lancashire v. Maxwell 5 N. Y. Supp. 399; par. 155. Lane v. Beam 19 Barb. 51 ; comp. 70. Lane v. Morse 6 How. Pr. 394 ; ver. 173. Langworthy v. Bromley 29 How. Pr. 92 ; comp. 91. Lansing v. Ensign .'.... 62 How. Pr. 363 ; ans. 17. Laraway v. Perkins 10 K. Y. 371 ; ans. 39. Lasher v. Williamson 55 N. Y. 619 ; count.-c. 121. Lattin v. McCarthy 17 How. Pr. 239. Lawrence v. Kidder 10 Barb. 641 ; comp. 100. Lawrence v. Wright. .' 2 Duer, 673; comp. 49. Lazarus v. Heilman 11 Abb. N. C. 93; count.-c. 123. Leach v. Boynton 3 Abb. Pr. 1 ; f . pi. 140. Leary v. Mulcher 38 N. Y. State Rep. 774; comp. 49. Ledyard v. Jones 7 N. Y. 550 ; comp. 83. Lee v. Ainslee 1 Hilt. 277 ; comp. 86. Lee v. Ainslee 4 Abb. Pr. 463 ; comp. 51. Lee Bk. v. Chickering 11 Abb. Pr. 435 ; I. & R. pi. 141. XX11 TABLE OF CASES CITED. Lee v. T. C. Gas L. Co 98 K Y. 115 ; comp. 95. Lefierts v. Silsby 54 How. Pr. 193 ; abt. 6. Lendon v. Graham 1 Duer, 670 ; comp. 76. Lercke v. Brasher 37 Hun, 385 ; count.-c. 119. Leslie v. Leslie 11 Abb. N. S. 311 ; reply, 165. Leslie v. Lorillard 31 Hun, 305 ; comp. 92 ; par. 146. Lester v. Jewett 11 ST. Y. 453 ; comp. 52, 93. Lewis v. Acker 11 How. Pr. 163 ; ans. 16. Lewis v. Cabot 41 N. Y. Supr. Ct. 122 ; ans. 17 Lewis v. Kendall 6 How. Pr. 59 ; ans. 17. Libby v. Rosckrans 55 Barb. 202; comp. 76. L. I. Bk. v. Boynton 105 N. Y. 656 ; ans. 22. Link v. Sprague 8 Abb. N. C. 208; reply, 165. Lintzenich v. Stevens 17 N. Y. State Rep. 862 ; ans. 8. Liscomb v. Agate 51 Hun, 288 ; bill par. 41. Litehhult v. Treadwell 74 N. Y. 603; count.-c. 116. Little wood v. Mayor, etc 89 N. Y. 24; abt. 4. Littlejohn v. G-reely 22 How. Pr. 345; f. pi. 140. Littell v. Sayre 7 Hun, 485; par. 153; demurr. 131. Lloyd v. Burns 62 N. Y. 651 ; ans. 30. L. O., etc., R. R. Co. v. Mason. 16 N. Y. 451 ; comp. 94. Longworthy v. Knapp 4 Abb. Pr. 115; ans. 15. Loosey v. Orser .... 4 Bosw. 391 ; ans. 14, 18. Lorillard v. Clyde 86 N. Y. 384 ; comp. 53. Lovelace v. Doran 39 N. Y. State Rep. 679 ; comp. 91 ; par. 147. Loveland v. Hosmer 8 How. Pr. 215; comp. 111. Lowerre v^ Vail 5 Abb. Pr. 229; comp. 63. Lowery v. Clinton 32 Hun, 267 ; comp. 99. L. S. D' Aries v. Freeman 53 N. Y. Supr. Ct. 518; comp. 52. Lucas v. N. Y. C. & H. R. R. Co. 21 Barb. 245 ; comp. 54. Ludlow v. Dole 52 N. Y. 617; var. 171. Lugar v. Brynes 15 N. Y. State Rep. 970; I. & R. pi. 141. Lund v. Seamen's Sav. Bk 23 How. Pr. 258; demurr. 135. Lutweller v. Linnell 12 Barb. 512; comp. 100. Lynch v. Levy 11 Hun, 145 ; demurr. 134. Lyon v. Isett 42 How. Pr. 155 ; sup. pi. 170. Mack v. Burt 5 Hun, 28 ; ans. 38. Maders v. Lawrence 17 N. Y. State Rep. 999 ; 49 Hun 360. Magoun v. Sinclair 66 N. Y. 30 ; par. 158. Maher v. Hibernia Ins. Co 67 N. Y. 283; comp. 59. Main v. King 8 Barb. 535 ; comp. 51. TABLE OF CASES CITED. XXUI Mallctt v. Challis 16 R. B. 239 ; comp. 83. Maluney v. Dows 15 How. Pr. 261 ; ans. 31. Mandeville v. Avery 36 N. Y. State Rep. 338 ; ans. 18. Mauley v. Rassigua 13 Hun, 288; comp. 53, 62. Manning v. Tyler 21 N. Y. 567 ; ans. 22. Manning v. Winter 7 Hun, 482 ; ans. 18, 37. Maretzek v. Cauldwell 19 Abb. Pr. 35 ; ans. 34. Marie v. Garrison 13 Abb. N. C. 214-306 ; ans. 24. Marie v. Garrison 83 N. Y. 14 ; ans. 31. Marry v. James 37 How. Pr. 52 ; I. & R. pi. 142. Mars v. Barton 12 N. Y. Week. Dig. 524; ans. 20. Marsh v. Dodge 66 N. Y. 533 ; jur. 142. Marshall v. Bresler 1 How. Pr. N. S. 217; comp. 105. Marshall v. Moseley. 21 N. Y. 280 ; par. 151. Martin v. Kunzmuller 37 N. Y. 396. Marx v. Gross 31 N. Y. State Rep. 403 ; ans. 12, 16. Marvin v. Ellwood 11 Paige, 365 ; comp. 77. Masten v. Blackwell 8 Hun, 313 ; par. 150. Matthews v. Steitz 5R.T. Civ. Pro. Rep. 235 ; par. 149. Matthews v. Beach 8 N. Y. 173 ; comp. 110. Mattice v. Wilcox 36 N. Y. State Rep. 914 ; ans. 15, 33 ; demurr. 136. Mattison v. Smith 19 Abb. Pr. 288 ; ans. 30. Maxon v. D., L. & W. R. R. Co. 48 Hun, 172 ; ans. 24. Maxwell v. Farnan 7 How. Pr. 236 ; comp. 56. Maxwell v. Pratt 24 Hun, 448 ; demurr. 129 ; par. 150. Mayor v. Davidge 44 Hun, 342 ; count.-c. 114, 116. Mayor v. Mabie 13 N. Y. 151 ; count.-c. 123. Mayor v. Marrener 49 How. Pr. 36 ; bill par. 43. Mayor v. Ketchum 67 How. Pr. 161 ; ans. 19 ; count.-c. 121. M. Bk., etc. v. Thalheimer . . . 23 N. Y. Week. Dig. 116; par. 152; comp. 49. McCarron v. Sire 14 N. Y. Civ. Pro. Rep. 252 ; bill par. 43. McClyde P. R. Co. v. Parker. . 22 Barb. 323 ; abt. 5. McClung v. Poshour 14 N. Y. State Rep. 367 ; pr. w. al. 160. McConihe v. Fales 107 N. Y. 404 ; count.-c. 122. McCormick v. Pickering 4 N. Y. 276 ; ans. 32. McCotter v. Lawrence 4 Hun, 107; par. 151. McCreery v. Gordon 38 Hun, 467 ; par. 152. McCullock v. Norwood 58 N. Y. 562 ; abt. 5. McDonald v. Davis 12 Hun, 95; sup. pi. 169. McDonald v. Kountze 58 How. Pr. 152 ; comp. 56. XXIV TABLE OF CASES CITED. McDonald v. Mallory 77 N. T. 546 ; jur. 142. McGaw v. Adams 14 How. Pr. 461 ; comp. 77. McGrowen v. Yerks '. 6 Johns. Ch. 450 ; sup. pi. 167. McHarg v. Eastman 35 How. Pr. 205 ; comp. 58. McKane v. Brooklyn Citizen . . 53 Hun, 132 ; ans. 33. McKee v. Judd 12 N. Y. 622 ; comp. 102. McKillip v. McKillip 8 Barb. 552 ; par. 157. McKnight v. Devlin 52 N. Y. 399 ; var. 171. McKyring v. Bull 16 N. Y. 297 ; ans. 14, 20, 32, 40. McMahon v. Allen 12 How. Pr. 39 ; comp. 54. McRoberts v. Pooley 1N.T. State Eep. 725 ; sup. pi. 167, 169. Mead v. Mitchell 17 N. Y. 210 ; par. 158. Mechanics' Bk. v. Straiton 36 How. Pr. 190; comp. 51. Medbury v. Swan 46 N. Y. 200 ; sup. pi. 169. Meeks v. Berry 21 K Y. State Rep. 248 ; count. -c. 118. Meisner v. Brennan 39 K Y. State Rep. 277 ; ans. 32. Meisner v. Brennan 39 X. Y. State Rep. 443 ; comp. 109. Mellen v. Banning 38 N. Y. State Rep. 115 ; comp. 70. Melvin v. Wood 3 Keyes, 533 ; bill par. 46. Merritt v. G-ouley 35 N. Y. State Rep. 227 ; count.-c. 122. Merritt v. Grinnell 10 How. Pr. 31 ; demurr. 138. Merritt v. Walsh 32 N. Y. 685 ; par. 150. Merch v. Stoner 19 N. Y. 30 ; abt. 2. Met. El. R. R. Co. v. Kneeland. 120 N. Y. 134; 30 N. Y. State Rep. 782; comp. 106. Met. L. Ins. Co. v. Meeker 85 N. Y. 614; ans. 34; comp. 108. Metraz v. Pearsall 5 Abb. N. C. 90 ; ans. 31. Meyer v. Amidon 45 N. Y. 169 ; comp. 76. Mfg. Co. v. Beecher 55 How. Pr. 193; demurr. 134, 136. Millard v. M. K. & T. R. R. Co. 86 ST. Y. 441 ; 20 Hun, 191 ; comp. 73. Millbank v. Jones 38 N. Y. State Rep. 900 ; ans. 20. Miller v. Hall 70 N. Y. 251 ; ans. 20. Miller v. Ins. Co., etc 1 Abb. N. C. 470 ; ans. 32, 37. Miller v. Kent 23 Hun, 657 ; bill par. 43. Milliken v. Byerly 6 How. Pr. 214 ; comp. 101. Milliken v. W. U. Tel. Co 110 N. Y. 403; comp. 104. Milliken v. W. U. Tel. Co 53 N. Y. Supr. Ct. Ill ; comp. 60. Mills v. Gould 1 Abb. N. C. 93; comp. 51. Miner v. Beekman 50 N. Y. 337 ; ans. 39. Mitchell v. Allen : . . 25 Hun, 543 ; sup. pi. 167, 169. Mitchell v. Spaulding 11 N. Y. State Rep. 283 ; comp. 85. Moller v. Tuscan 87 N. Y. 166 ; comp. 70. TABLE OF CASES CITED. XXV Monks v. Bruce 3 N. Y. Supp. 419 ; comp. 89. Moran v. McLarey 75 N. Y. 25 ; comp. 59. Moran v. Morrissey 28 How. Pr. 100 ; bill par. 46; comp. 81. Morel v. Ganelly 16 Abb. Pr. 269 ; sup. pi. 169. Morenus v. Crawford 15 Hun, 45 ; par. 144. Morgan v. Skidmore 3 Abb. N. 0. 92 ; par. 149. Morford v. Davis 28 N. Y. 48 ; ans. 39. Moriorty v. Bartlett 99 N. Y. 651 ; abt. 3. Morris v. Emmons 4N.T. State Rep. 882; count.-c. 118. Morris v. Walch 14 Abb. Pr. 387; abt. 5. Morey v. S. D. Co 7 Abb. N. S. 199 ; f . pi. 141. Moody v. Moody 16 Hun, 189 ; count.-c. 123. Moody v. Belden 38 N. Y. State Rep. 722 ; ans. 16. Moore v. Appleby 36 Hun, 368 ; par. 157 . Moores v. Lehman 52 N. Y. Snpr. Ct. 283 ; comp. 64. Moores v. Townshend 102 N. Y. 387 ; comp. 64. Moser v. Cochrane 107 N. Y. 35; count.-c. 112 Moser v. Cochrane 21 N. Y. Week. Dig. 445 ; count.-c. 120. Mosselman v. Caen 4 N. Y. S. C. (T. & C.) 171 ; demurr. 133. Mott v. Barnett 2 E. D. Smith, 50 ; ans. 17. Moulton v. Beecher 1 Abb. N. C. 193 ; ans. 7. Muldowney v. M.&E. R.R. Co. 42 Hun, 444; comp. 105. Mulford v. Hodges 10 Hun, 79 ; comp. 72. Munger v. Bank 85 N. Y. 580 ; comp. 93. Murphy v. Allerton 7 Hun, 650 ; demurr. 133, 136. Murphy v. English 64 How. Pr. 362 ; ans. 23. Murray v. N. Y. Ins. Co 85 N. Y. 236 ; comp. 81. Murtha v. Curley 90 N. Y. 372 ; comp. 58. Myers v. Burns 35 N. Y. 269; count.-c. 123. Myers v. Crim 3 How. Pr. N. S. 194 ; comp. 85. Myers v. Davis 23 N. Y. 485 ; count.-c. 116. Myers v. Hibsher 47 N. Y. 265 ; comp. 60. Myers v. Machado 14 How. Pr. 149 ; comp. 62. Myers v. Met. El. R. R. Co 34 N. Y. State Rep. 293 ; demurr. 1 35 ; sup. pi. 167. Myers v. Scott 20 N. Y. State Rep. 35; par. 145. Myers v. Van Collen 28 Barb. 230 ; demurr. 132. Nathans v. Hope 77 N. Y. 420 ; comp. 72, 73. Nat. P. Ins. Co. v. McKay 21 N. Y. 1Q1 ; count.-c. 122. Nellis v. De Forest 16 Barb. 61 ; demurr. 126. Neilly v. Neilly 11 N. Y. Week. Dig. 487; 23 Hun, 657; par. 157 D XXVI TABLE OF CASES CITED. Nelson v. Eaton 26 Hun, 410 ; comp. 60. Neudecker v. Cohlberg 81 N. Y. 296; am. 7; pr. w. al. 161; var. 172. New v. McKechnie 95 N. Y. 006 ; par. 144. New v. Alland 62 How. Pr. 185 ; am. 10. Newell v. Butler 38 Hun, 104 ; bill par. 44. Newell v. Doty 33 N. Y. 83 ; ans. 40. Newell v. Salmons 22 Barb. 647 ; ans. 39. Nichols v. Drew 94 N. Y. 22; demurr. 131; comp. 56. Nichols v. Drew 19 Uun, 490; comp. 56. Nichols v. Dusenbury 2 N. Y. 283 ; ans. 15. Nichols v. Jones 6 How. Pr. 355 ; f. pi. 140. Nolen v. Skelly 62 How. Pr. 102; ans. 31. Nones v. Ins. Co 5 How. Pr. 96; demurr. 126. North v. Bloss 31 N. Y. 374 ; par. 149. N. Y. & H. R. E. Co. v. Hows. N. Y. Supr. Ct. 372; comp. 77. N. Y. M. P. Co. v. Remington Wks 25 Hun, 475 ; ans. 11. N. Y. N. G. L. Co. v. Mayor 49 How. Pr. 227; i pi. 140. N. Y. 8. M. M. P. Co. v. V. S. R. & Wk. S 14 N. Y. Week. Dig. 312; ans. 11. Oakley v. Morton 11 N. Y. 25; comp. 51. O'Beirne v. Lloyd 43 N. Y. 248 ; comp. 72. O'Blemis v. Kornig 57 N. Y. 649 ; count. -c. 121. O'Dougherty v. R. P. Co 1 N. Y. State Rep. 526; count. -c. 120. Oesterreicher v. Sporting T. P. Co 5 N. Y. Supp. 2; comp. 90. O. & C. R. R. Co. v. V., etc., R. R. Co 4 Hun, 712; demurr. 127. O'Leary v. Brown 51 How. Pr. 92; demurr. 134. O'Maley v. Reese 6 Barb. 658 ; comp. 82. O'Neil v. Phillip 83 Ga. 556 ; ans. 20. Orvis v. Dana 1 Abb. Pr. 268; bill par. 42. O'Reilley v. City 1 14 N. Y. 439 ; 23 N. Y. State Rep. 799 ; comp. 89. Osgood v. Ogden 4 Keyes, 70; count. -c. 120. Osterhout v. Supervisors 28 N. Y. 239 ; pr. w. al. 160. Ostrander v. Konkey 20 Hun, 421 ; ans. 7. Otis v. Schantz 38 N. Y. State Rep. 434 ; count.-c. 124; reply, 163, 166. TABLE OF CASES CITED. XXV11 P. Bank v. Martin 11 Abb. Pr. 291 ; comp. 87. Paige v. Willett 38 N. Y. 28; ans. 33, 41. Paine v. Jones 75 N. Y. 593; comp. 59. Paine v. Upton 87 N. Y. 327 ; comp. 59. Palen v. Bushnell 21 N. Y. State Rep. 8G7 ; 51 Hun, 423; wav. 176. Palmer v. Hussey 87 N. Y. 303 ; sup. pi. 169. Palmer v. Lang 7 Daly, 33; comp. 112. Parker v. Tillinghast 1 N. Y. State Rep. 296; ans. 14. Passavant v. Bowdoin 39 N. Y. State Rep. 238 ; par. 148. Passavant v. Sickles 14 N. Y. Civ. Pro. Rep. 57 ; bill par. 45. Parkinson v. Sherman 74 N. Y. 88 ; f . pi. 140. Parson v. Sutton 66 N. Y. 92 ; comp. 97, 98. Patchin v. Peck 38 N. Y. 39 ; wav. 175. Patten v. Foot 1 Wend. 207 ; comp. 100. Patterson v. Baker 6 N. Y. S. C. (T. & C.) 76 ; par. 146. Patterson v. Copland 52 How. Pr. 460 ; abt. 4. Patterson v. Perry 14 How. Pr. 505; comp. 77. Payne v. Gardinier 29 N. Y. 146 ; comp. 93. Paxton v. Brogan ION. Y. Supp. 303 ; demurr. 129. Peace v. Minster 65 N. Y. 89 ; var. 170. Peart v. Peart 18 N. Y. State Rep. 455 ; comp. 68. Peck v. Ingersoll 7 N. Y. 528 ; comp. 86. Peck v. Winne ,51 N. Y. 641 ; ans. 34. People v. Booth 32 N. Y. 397; demurr. 135. People v. Cook 14 Barb. 259 ; 8 N. Y. 67 ; comp. 48. People v. Crook 53 N. Y. 648 ; demurr. 126. People v. Dennison 84 N. Y. 273; count.-c. 118; jur. 144. People v. Mayor 10 Abb. Pr. Ill; par. 151. People v. Mayor, etc 17 How. Pr. 56 ; demurr. 132. People v. McComber 18 N. Y. 315 ; f. pi. 140. People v. Moody 2 Sandf. 652; ans. 9. People v. Murry 8 Hun, 577 ; wav. 176. People, ex rel. Hawes, v. Walker. 23 Barb. 304 ; comp. 53 . Perkins v. Church 31 Barb. 84 ; demurr. 130. Perkins v. Stinnel 114 N. Y. 359; 23 N. Y. State Rep. 657; wav. 175. Perls v. Met. E. Ins. Co 29 N. Y. State Rep. 409; pr. w. al. 161; reply, 166. Perry v. Dickerson 85 N. Y. 345; comp. 72. Petrie v. Petrie 7 Lans. 90 ; comp. 56 ; par. 153. xxvm TABLE OF CASES CITED. Petrie v. Lansing 66 Barb. 357; demurr. 135. Petrie v. Shoemaker 24 Wend. 83; par. 157. Peyser v. Mayor 70 N. Y. 497 ; comp. 82. Peyser v. McCormack 7 Huu, 300; ver. 174. Pharis v. Gore 14 X. Y. Week. Dig. 387; ans. 33. Phillip v. Baldwin 8 N. Y. Week. Dig. 194; comp. 110. Phillip v. Suidam 54 Barb. 153 ; ans. 8. Phinney v. Phinney 17 How. Pr. 197 ; comp. 58. Phoenix Nat. Bank v. A. B. Cleveland Co 34 N. Y. State Rep. 498 ; comp. 105. Phoenix Nat. Bank v. Donnell. 40 N. Y. 410; demurr. 126, 128, 134. Pierce v. Early 79 Iowa, 199 ; ans. 20. Pierce v. Hitchcock 2 N. Y. 388 ; par. 151. Pierson v. Cronk 13 N. Y. State Rep. 556; sup. pL 168. Pike v. Van Warner 5 How. Pr. 171 ; comp. 109. Pitney v. Glens Palls Ins. Co . . 63 N. Y. 6 ; par. 158. Pittsfield Nat. Bank v. Tailer. . 38 N. Y. State Rep. 895 ; comp. 49. Pixley v. Ingram 53 Hun, 93; 24 N. Y State Rep. 885; count.-c. 122; pr. w. al. 160. Platner v. Lehman 26 Hun, 374 ; ans. 21. Pool v. Hayes 17 N. Y. State Rep. 685 ; ans. 10. Pope v. Cole 55 N. Y 24; par. 149. Pope v. T. H. Car Mfg. Co ... . 107 N. Y. 61 ; comp. 100. Porter v. Rose 12 Johns. 209 ; comp. 100. Porter v. Kingsley 21 N. Y. 588 ; comp. 79. Porter v. Wormser 94 N. Y. 431 ; ans. 22. Potter v. Bllice 48 N. Y. 321 ; par. 151 ; demurr. 130. Powers v. R., W.&O. R. R. Co. 3 Hun, 285; ans. 31. Pracht v. Ritter 48 N. Y. Supr. Ct. 509; comp. 55. Pratt v. Collins 20 Hun, 126; count.-c. 122. Pratt v. H. R. R. R. Co 21 N. Y. 312 ; var. 170. Price v. Brown 112 N. Y. 617 ; 21 N. Y. State Rep. 573 ; ans. 12. Price v. McClure 3 Abb. Pr. 253 ; comp. 87. Price v. Price 75 N. Y. 244; abt. 3. Prindle v. Caruthers 15 N. Y. 425 ; comp. 49, 60. Pugh v. Hartt 52 How. Pr. 22 ; comp. 62. Pulver v. Burke 56 Barb. 391 ; par. 158. Pumpelly v. Village, etc 45 How. Pr. 219; comp. 58. Purdy v. R. P. Co 13 N. Y. Week. Dig. 419 ; 26 Hun, 208 ; comp. 109. Putman v. Griffin 11 N. Y. "Week. Dig. 46 ; comp. 53. TABLE OF CASES CITED. XXIX Quinland v. Raymond 3 N. Y . State Eep. 573 ; ana. 22. Randell v. Dyett 38 Hun, 347. Rank v. Liviner 5 Civ. Pro. Rep. 368; par. 133. Rapalee v. Stewart 27 N. Y. 316 ; ans. 32. Raynor v. Tknerson 46 Barb. 518; ans. 37. Reader v. Ibert 39 N. Y. State Rep. 121 ; ans. 40. Rector v. Clark 78 N. Y. 21 ; comp. 50. Reed v. C. C. O. Co 47 Hun, 410; comp. 77. Reilley v. Cook 22 How. Pr. 93; f. pi. 140. Reiner v. Dorge 61 How. Pr. 142; ans. 17. Reming v. City & C 102 N. Y. 308 ; comp. 93. Rep. of Mexico v. Arangois. .. 11 How. Pr. 1; jur. 142. Rice v. Rockfeller 13 N. Y. Civ. Pro. Rep. 303 ; bill par. 43. Rice v. Hollenbeck 19 Barb. 664 ; par. 150. Rice v. O'Conner 10 Abb. Pr. 362; count. -c. 114. Richards v. Kingsley 12 N. Y. State Rep. 125 ; comp. 99. Rider v. Toggan 37 N. Y. State Rep. 438 ; reply, 165. Riggs v. Am. T. Soc 84 N. Y. 330 ; comp. 50. Risley v. Wightman 13 Hun, 163 ; abt. 6. Robb v. Montgomery 20 Johns. 15 ; oomp. 52. Roberts v. Johnson 58 N. Y. 613; par. 149. Robinson v. Hatch 55 How. Pr. 55 ; comp . 110. Robinson v. Thompson 34 Hun, 634; par. 147. Robinson v. Comer 13 Hun, 291 ; bill par. 43. Robl v. R. F. Ins. Co 6 Bosw. 23 ; comp. 81. Roblin v. Long 60 How. Pr. 200 ; f. pi. 140. Roe v. Rogers 8 How. Pr. 356 ; ans. 16. Roe v. Roe 14 Hun, 612 ; ans. 33. Rogers v. N. Y. & Texas Land Co 17 N. Y. State Rep. 131 ; par. 155. Rogers v. Phillips IX Abb. N. C. 425 ; par. 157. Rohrbach v. Germania F. Ins. Co 62 N. Y. 47 ; comp. 80. Romeyn v. Sickles 108 N. Y. 50; pr. w. al. 161. Root v. Herman 2 City Ct. 409 ; par. 148. Roosevelt v. Varnum 12 How. Pr. 469 ; comp. 96. Rooche v. Kivlin 25 Hun, 150 ; var. 173. Rosa v. Butterfield 33 N. Y. 665 ; ans. 22. Rosebrooks v. Dinsmore 36 How. Pr. 138; var. 171. Rosevelt v. B. H. Bk 45 Barb. 579; ans. 21. Rosevelt v. K. Y. & H. R. R. Co. 45 Barb. 554; ans. 21. Rosevelt v. Rosevelt 22 N. Y. State Rep. 523; comp. 69. XXX TABLE OF CASES CITED. Rosenfield v. Henderson 5 N. Y. Law Bull. 2 ; comp. 81. Ross v. Mather 51 N. Y. 108; var. 172. Rossi v. McKellar 37 N. Y. State Rep. 503 ; comp. 67. Rothchild v. The R. G. W. R. R. Co.! 37 N. Y. State Rep. 44; comp. 59. Rothchild v. The P. T. R. Co. . 38 N. Y. State Rep. 869; comp. 90. R. P. Co. v. O'Doughcrty 81 N. Y. 474; comp. 65. R. P. D. Church v. Brown ... 54 Barb. 491 ; comp. 72. Ruckman v. Pitcher 1 N. Y. 393 ; comp. 82. Ruht v. Ware 22 N. Y. State Rep. 421 ; comp. 62. Rundell v. Butler 7 Barb. 260 ; comp. 74. Russel v. Giblin 8 N. Y. State Rep. 336 ; bill par. 44. Rutly v. C. F. Jar Co 24 N. Y. State Rep. 640; pr. w. al. 160. Rutman v. Pitcher 20 N. Y. 9 ; par. 158. Ryan v. New York 10 T. & S. 202; demurr. 136. Ryerson v. Willis 81 N. Y. 277 ; comp. 65. Saffer v. Dry Dock R. R. Co. . 5 N. Y. Supp. 700; comp. 97. Salinger v. Lusk • 7 How. Pr. 430; ans. 31. Sanborn v. Lefferts 58 N. Y. 179; demurr. 127. Sanders v. Village, etc 66 N. Y. 489; demurr. 130. Sanderson v. Caldwell 45 N. Y. 398 ; comp. 109. Salisbury v. Stinson 10 Huu, 242 ; comp. 101. Saudfortv. The Fourth Nat. Bk. 39 N. Y. State Rep. 456; comp. 103. Savage v. C. Ex. Ins. Co 36 N. Y. 655; ans. 39. Saving Ass., etc. v. O'Brien. .. 20 N. Y. State Rep. 826; demurr. 150. Sayers v. Cushing 7 Abb. Pr. 371 ; ans. 30. Schen v. N. Y, L. E. & W. R. R. Co 12 N. Y. State Rep. 99; comp. 48, 57. Schofield v. Bayard 3 Wend. 448 ; comp. 88. Schroeder v. Becker 22 N. Y. Week. Dig. 261 ; comp. 77. Schroeder v. Gurney 73 N. Y. 430; comp. 65, 68. Schroeppel v. Corning 2N. Y. 132; comp. 58. Schultz v. Depuy 3 Abb. Pr. 252; comp. 88. Schuyler v. Moyes 28 How. Pr. 245 ; comp. 78. Schwarz v. OfEold 74 N. Y. 307 ; ans. 37. Scott v. Montell 109 N. Y. 1; wav. 178; count.-c. 123. Scribner v. Levy 23 N. Y. State Rep. 354; reply, 165. Searll v. McCracken 16 How. Pr. 262; comp. 98. Secor v. Pendleton 13 N. Y. State Rep . 387 ; 47 Hun, 281 ; comp. 62. Secor v. Keller 4 Duer, 416 ; par. 149. Segelken v. Myers 94 N. Y. 473 ; par. 154. TABLE OF CASES CITED. XXXI Seidenbach v. Riley 36 Hun, 211 ; comp . 106 . Seidenbach v. Riley Ill N. Y. 560; N. Y. State Rep. 120; ans. 35. Seifret v. Kraft 13 N. Y. Civ. Pro. Rep. 321; comp. 101. Seinmosonv. Blake 12 Abb. Pr. 331; demurr. 131. Seligman v. Dudley 14 Hun, 186 ; count.-c. 122. Selover v. Coe 63 N. Y. 438 ; wav. 175 ; ans. 34. Seyle v. Zimmer 40 N. Y. State Rep. 604 ; comp. 55. Seymour v. Hunham 24 Hun, 93; count.-c. 120. Shafer v. Henkel 75 N. Y. 378; par. 158. Shale v. Shantz 35 Hun, 622; abt. 4. Shawv. Cook 12 Hun, 173; 78N.Y.194; am. 11. Shaw v. Castor 8 Paige, 339. Shaver v. The Times P. &P. Co. 119 N. Y. 423 ; 29 N. Y.< State Rep. 786; ans. 26. Sheltonv. Lord 4E. D. Smith, 206; par. 149. Sheridan v. Mayor 68 N. Y. 30 ; comp. 92. Sheridan v. Jackson 72 N. Y. 170 ; comp. 150. Sherman v. Parish 53 N. Y. 483; var. 171. Sherwood v. Barton 23 How. Pr. 533; count.-c. 116. Silsbee v. Smith 41 How. Pr. 418 ; comp. 56 ; par. 153. Sinclairv. Finch 3 E. D. Smith, 677; comp. 47. Skidmorev. Collier 8 Hun, 50; demurr. 130; par. 152. Skinuer v. Stuart 13 Abb. Pr. 442 ; demurr. 126. Skinner v. Tibbits 13 N. Y. Civ. Pro. Rep. 370; par. 154. Slack v. Heath 1 Abb. Pr. 331; comp. 61. Slocum v. Barry 38 N. Y. 46 ; comp. 61 . Smith v. Brown 17 Barb. 431; comp. 159. Smith v. Briggs 3 Den . 73 ; comp . 60 . Smith v. Countryman 30 N. Y. 655; I. & R. pi. 141. Smithv. Hallock 8 How. Pr. 73; comp. 56. Smith v. Hilton 19 N . Y. State Rep . 340 ; par. 155. Smith v. Hilton 50 Hun, 236; ans. 21. Smithv. Holmes 19 N. Y. 271; ans. 39. Smith v. McMara 15 Hun, 447 ; par. 143. Smith v. Leipencock 49 Barb. 398 ; var. 171 . Smith v. Payne 21 N . Y. State Rep. 462 ; par. 152. Smith v. Rathbun 66 Barb. 402; par. 155. Smith v. Wright 1 Abb. Pr. 243 ; comp. 99. Southwick v. First Nat, Bk. . . 84 N. Y. 420; comp. 59. Sparman v. Kein 83 N. Y. 245 ; comp. 70. XXX11 TABLE OF CASES CITED. Spear v. Downing 22 How. Pr. 30 ; comp. 61. Spencer v. Clark 15 N. Y. State Rep. 949; comp. 66. Spooner v. D., L. & W. R. R. Co. 115 N. Y. 22; 23 N. Y. 554; comp. 62; par. 157. Spooner v. Keller 51 N. Y. 527; comp. 112. Spring v. The G. N. Life Ass. . 38 N. Y. State Rep. 968; ans. 25. Springer v. Bieu 32 N. Y. State Rep. 63; reply, 1C7. Springer v. Dryer 50 N . Y . 19 ; ans . 13 . Stanley v. Chappell 8 Cow. 335; demurr. 138. Staples v. Anderson 2 Rob. 327 ; count. -c. 123. State v. Phoenix Bk 33 N. Y. 9; par. 142. Stearns v. St. L., etc., R. R. Co. 21 N. Y. State Rep. 746; comp. 103. Steffenv. Schafer 39 N. Y. State Rep. 796; comp. Ill, 112; I. &R. pi. 141. Steinbach v. Relief Ins. Co. . . 77 N. Y. 498; comp. 70. Stettheimerv. Killip 75 N. Y. 282; comp. 59. Stephens v. Rogers 25 Hun, 54 ; comp . 90, 96 . Stevens v. Somerindike 4 B. D. Smith, 418; comp. 83. Stewart v. Bramhall 74 N. Y. 85 ; ans . 85. Stewart v. Eden ; 2 Cai. 121 ; comp. 87. Still v. Little 63 N. Y. 427; comp. 76. St. John v. Skinner 44 How. Pr. 198 ; ans. 34. Stokes v. Amerman 121 N. Y. 337 ; 31 N. Y. State Rep. 391; comp. 106. Stokes v. Stickney 9 N. Y. 323; abt. 3. St. Paul's Church v. Ford 34 Barb. 16; part. 150. Strasser v. Moonetis 55 N. Y. Supr. Ct. 197; par. 155. Striker v. Ex. Bk 28 How. Pr. 20; am. 7. Strong v. Sproul 53 N. Y. 447; f. pi. 140. Strum v. Atlantic Mut. Ins. . . . 63 N. Y. 77; comp. 80. Strusburg v. Mayor 87 N. Y. 452; comp. 66. StudweU v. C. O. L. Ins. Co . . 17 Hun, 102; ans. 34. Sturgis v. Vanderbilt 73 N. Y. 384; abt. 5. Styles v. Fuller 101 N. Y. 622; ans. 36. Sullivan v. N. Y., N. H. & H. R. R. Co IN. Y. Civ. Pro. Rep. 285; demurr. 132. Sullivan v. N. Y. & R. Co ... . 119 N . Y. 338 ; 28 N. Y. State Rep. 747; demurr. 129. Sunderland v. Bradstreet 46 N. Y. 188; comp. 111. Sussdorff v. Schmidt 55 N. Y. 319; var. 171. Swift v. Kingsley 24 Barb. 541 ; ans. 14. TABLE OF CASES CITED. XXXlli Talcott v. Belding 46 How. Pr. 419; comp. 94. Tasker v. Chamberlain 38 N. Y. State Rep. 476; count.-c. 124; reply, 166. Taylor v. Ballard 17 N. Y. State Rep. 398. Taylor v. Guest 58 N. Y. 262; comp. 76. Taylor v. Mayor, etc 82 N. Y . 10 ; count.-c. 113. Taylor v. McLea 34 N. Y. State Rep. 61 ; comp. 107. Teal v. Felton 1 N. Y. 537 ; jur. 142. Terry v. Munger 49 Hun, 560 ; ans. 36. Terry v. Munger 30 N. Y. State Rep. 749 ; comp. 70, 81. Terwilliger v. Wands 17 N. Y. 54 ; comp. 75. Thayer v. Marsh 75 N. Y. 340 ; comp. 50. The Bowery Bk. v. Martin 40 N. Y. State Rep. 646; comp. 58. The People v. N. Y. City U. R. R. Co 39 IT. Y. State Rep. 425; demurr. 133. Thomas v. Harmon 33 N. Y. State Rep. 271 ; demurr. 128 ; jur. 144. Thompson v. Lamley 7 Daly, 74; comp. 96. Thompson v. Sanders 118 N. Y. 252; 28 N. Y. State Rep. 924; count.-c. 117. Thompson v. St. N. Nat. Bank. 61 How. Pr. 163; comp. 56. Thompson v. Whitmarsh... 100 N. Y. 30; count.-c. 119. Thomson v. Gould 16 Abb. N. S. 424. Thomson v. Halbert 109 N. Y. 329; ans. 15, 36; demurr. 136. Thorpe v. Hatch 3 Abb. Pr. 231 ; ans. 23. Tiffany v. Bowerman 2 Hun, 643 ; sup. pi. 168. Tilson v. Clark 45 Barb. 178; comp. 111. Tilton v. Beecher 59 N. Y. 176 ; bill par. 43. Tompkins v. White. 8 How. Pr. 520; comp. 56. Tonnelle v. Hall 3 Abb. Pr. 209; par. 154. Toomeyv. Andrews 48 How. Pr. 332; ans. 8. Torryv. Robinson 21 Miss. 192; abt. 1. Tovey v. Culver 54 N. Y. Supr. Ct. 123; comp. 99. Town, etc., v. Loveless 4 Hun, 696; demurr. 128. Townshendv. Bogert 37 N. Y. State Rep. 438; comp. 107; demurr. 134. Townshend v. Mayor, etc , 77 N. Y. 542; comp. 65. Tracy v. Ames 4 Lans. 500; var. 172. Tracy v. Tracy 35 N. Y. State Rep. 167; comp. 101. Tracy v. Suydam 30 Barb. 110 ; par. 150. Travis v. Myers 67 JST. Y. 542 ; ans. 19. B XXXIV TABLE OF CASES CITED. Trimmer v. Hiscock 15 N. Y. "Week. Dig. 267; comp. 110. Trust and Deposit Co. v. Pratt. 25 Hun, 23; comp. 79. T. G. Sem. v. Cramer 26 Hun, 309; comp. 66. Turner v. Beavan 23 Abb. N. C. 432; bill par. 43. Turnbridge v. Read 22 N. Y. State Rep. 764 ; ans. 25 Tuttle v. Hannogan 54 K. Y. 686 ; comp. 50. Tuttle v. Smith 14 How. Pr. 395 ; demurr. 138. Tyng v. C. W. Co 58 N. Y. 308; var. 171. Uertz v. S. Mfg. Co 35 Hun, 116; comp. 97. Underhill v. Phillip 10 Hun, 591 ; comp. 60. U. S. Ins. Co. v. Gage 17 N. Y. State Rep. 762 ; comp. 80. U.S.v. Gross :. 67 Barb. 304; jur. 142. U. S. v. Lathrop 17 Johns. 4. jur. 143. TJ. S. v. Victor 16 Abb. Pr. 153; comp. 77. Vail v. Rice 5 N. Y. 155; comp. 100. Valans v. Owen 74 N. Y. 526; par. 148. Valarino v. Thompson 7 N. Y. 576; jur. 143. Valentine v. Lunt 22 N. Y. State Rep. 847 ; 51 Hun, 544. Valentine v. Lunt 115 N. Y. 496; 26 N. Y. State Rep. 254. Van Aernam v. McCune 32 Hun, 316 ; comp. 63. Van Benthuysen v. Van Ben- tuuysen 17 K. Y. State Rep. 978; comp. 104. Van Buskirk v. Roy 8 How. Pr. 426 ; comp. 77. Vanderbilt v. Schreger 21 Hun, 537; ans. 17. Vanderbeck v. City, etc 46 Hun, 87 ; sup. pi. 170. Van De Sande v. Hall 13 How. Pr. 458; ans. 15. Van Leuven v. Lyke IN. T. 515 ; comp. 96. Van Namee v. People 9 How. Pr. 198; demurr. 138. Van Valen v. Lapham 13 How. Pr. 240; count. -c. 114. Van Wart v. Price 14 Abb. Pr. 4; par. 150. VanWyckv. Aspinwall 17 N. Y. 190; comp. 111. Vassear v. Livingston 13 N. Y. 257; count.-c. 112. Victory v. Krauss 41 Hun, 533; abt. 3. Vinalv. C. C. & Imp. Co 25 N. Y. State Rep. 912; demurr. 137. Wacher v. Quenzer 29 N. Y. 547; comp. 111. Wade v. Kalbfleisch 58 N. Y. 286; abt. 3. Wadsworth v. Dorger 18 Abb. N. C. 199 ; am. 7. Wakeman v. Everett 41 Hun, 278; count.-c. 119. "Wallace v. Bennett 1 Abb. N. C . 478 ; comp. 75. Wallace v. Dimmick 24 Hun, 635 ; am. 7. TABLE OF CASES CITED. XXXV Wallace v. Eaton 5 How. Pr. 99 ; demurr. 130. Walradt v. Maynard 3 Barb. 584 ; comp. 93. Walsh v. Trustees, etc ; 96 N. Y. 427 ; comp. 57. Walter v. Bennett 16 N. T. 250 ; var. 172. Walton v. Walton 32 Barb. 203; demurr. 138. Ward v. Comegys 2 How. Pr. N. S. 428 ; reply, 165. Ward v. Littlejohn 17 N. Y. Civ. Pro. Rep. 178; bill par. 41, 42. Warth v. Radde 28 How. Pr. 230 ; par. 155. Washburn v. Franklyn 28 Barb. 27; comp. 58. Watson v. Harlem, etc., Co . . . 52 How. Pr. 348; par. 155. Wayland v. Tysen 45 N. Y. 281 ; f. pi. 141. W. Bank v. Sherwood 29 Barb. 383 ; comp. 78. Weaver v. Barden 49 N. Y. 286 ; ans. 40. Webb v. Vanderbilt 39 N. Y. Supr. Ct. 4; demurr. 124, 132. Webster v. Bainbridge 13 Hun, 180; f. pi. 140. Webster v. Bond 9 Hun, 437 ; par . 159 ; ans. 21. Weed v. Cantwell 36 Hun, 528 ; comp. 70. Wehle v. Butler 43 How. Pr. 5 ; 61 N. Y. 245; ans. 39. Weetjen v. Vibbard 5 Hun, 265 ; par. 156. Weil v. Martin 24 Hun, 645 ; ans. 8, 10. Welch v. Preston 58 How. Pr. 52 ; ans. 7. Weinhaur v. Morrison 49 Hun, 498 ; ans. 36. Wells v. Knox 17 N. Y Civ. Pro. Rep. 59 ; par. 152. Wells v. Van Aken 39 Hun, 315 ; bill par. 45. Wemple v. Stewart 23 Barb. 154; ans. 24. Wemple v. McManus 9 N. Y. State Rep. 141 ; am. 33, 41 . Werthem v. Page 10 N. Y. Week. Dig. 26 ; par. 146. Westervelt v. Ackley 62 N. Y. 505 ; demurr. 136. West v. Burns 2 N. Y. Law Bull. 55; sup. pi. 168. Wetmore v. Jafiray 9 Hun, 140 ; comp. 53. Wetmorev. Porter 92 N. Y. 77; comp. 92. Wheeler v. Dakin 12 How. Pr. 537 ; comp. 79. Wheeler v. Dixon 14 How. Pr. 151 ; ver. 173. Wheeler v. Lawson 2 N. Y. State Rep. 791; ans. 36. Wheelock v. Lee 15 Abb. N. S. 24 ; comp. 62. White v. Brown 5 Lans. 78 ; comp. 94. White v. Dundon 9 Bosw. 415; count.-c. 122. White v. Jay 13 N. Y. 83 ; comp. 61. White v. Mayor 14 How. Pr. 495; ans. 7. Whitehall L. Co. v. Edmonds . 22 N. Y. State Rep. 199; I. & R. pi. 141. XXXVI TABLE OF CASES CITED. Whitford v. P. R. R. Co 23 N. Y. 465; abt. 3. Wies v. Simmons , 8 Hun, 189 ; par. 150 . Wigand v. Sichel 33 How. Pr. 174 ; comp. 72 . Wilbur v. G. & S. Tel. Co ... 52 Supr. Ct. 189; sup. pi. 170. Wilcox v. Payne 28 N. Y. State Rep. 712; ans. 12. Wilds v. Suydam 64 N . Y. 173 ; demurr. 132 ; comp. 55 r 56. Wiles v. Suydam 10 Hun, 578 ; par. 145. Williams v. Ayrault 31 Barb. 461 ; demurr. 129. Williams v. Fitzhugh 37 N. Y. 444; par. 143. Williams v. Hayes 23 N. Y. State Rep. 489; sup. pi. 166. Williams v. Kearney 25 Hun, 23 ; comp. 79. Williams v. Riel 11 How. Pr. 374 ; ver. 173. Williams v. Wilkinson 1 Code R. N. S. 20; demurr. 138. Williams v. Williams 33 N. Y. State Rep. 9; demurr. 135. Willover v. Hill 72 N. Y. 36; ans. 34 ; comp. 111. Willover v. F. Nat. Bank 40 Hun, 184; count.-c. 116. Wilson v. Bennett 2 N. Y. Civ. Pro. Rep. 34 ; ver. 173. Wilson v. Goit 11 N. Y. 442; comp. 75. Wilson v. Lawrence 8 Hun, 593; sup. pi. 169. Wilson v. Mayor 15 How. Pr. 500 ; demurr. 126. Wilson v. McKenzie 7 Hill, 95 ; jur. 142. Wiltsie v. Village, etc 4 N. Y. State Rep. 814; ans. 40. Wittemore v. Farrington 76 N. Y. 452; comp. 59. Wolfe v. Supervisors, etc 19 How. Pr. 370; comp. 58. Wolfe v. Howes , 20 N. Y. 197 ; comp. 53. Wood v. Amory 105 N. Y. 278 ; comp. 77. Wood v. Belden 54 N. Y. 658 ; ans. 34. Wood v. Gordon 38 N. Y. State Rep. 455 ; count.-c. 114. Wood v . Lafayette 68 N. Y. 181 ; comp. 63. Wood v. Mayor 73 N. Y. 556; count.-c. 115. Wood v. Stanicle 1N.T. Code Rep. 152 ; ans. 30. Wood M. R. Co. v. Thayer 20 N. Y. State Rep. 396 ; 50 Hun, 516; pr. w. al. 161. Woodbury v. Sackrider 2 Abb. Pr. 402 ; comp. 53, 87. Woodhouse v. Duncan 106 N. Y. 527 ; par. 149. Woodruff v. Bradstreet 35 Hun, 16; comp. 75. Woodruff v. Leonard 1 Hun, 032 ; comp. 92. Woolley v. Newcombe 87 N. Y. 605 ; comp. 48. Woolsey v. Trustees, etc 39 N. Y. State Rep. 744 ; comp. 98 ; par. 151. W. R. R. Co. v. Nolan 48 N. Y. 513 ; par. 158. TABLE OF CASES CITED. XXXV11 W., T. & C. etc. Co. v. Kilder- houae 87 N. Y. 430 ; ans. 22. Wray v. N. Y. 0. & H. R. R. R. Co 4N.Y. Supp. 355; bill par. 44, Wright v. Butler 6 Wend. 284 ; comp. 86. Wright v. Dalafleld 25 N. Y. 266 ; ans. 33. Yale v. Coddington 21 Wend. 175 ; comp. 95. Young v. Catlett 6 Duer, 427 ; ans . 18. Young v. Drake 3 Hun, 61 ; 20 Abb. N. C. 437 ; comp. 91. Young v. Drake 8 Hun, 61 ; par. 146. Young v. Kent 46 N. Y. 671 ; f. pi. 139. Young v. Phoenix Ins. Co 61 N. Y. 650 ; comp. 88. Zabriskie v . Smith 13 N. Y. 322 ; demurr. 130. Zimmerman v. Schoenf elt 6 N. Y. S. C. (T. & C.) 142 ; demurr. 128. Zorn v. Zora 38 Hun, 67; comp. 55. HAND BOOK RULES OF PLEADING. ABATEMENT. Definition. Abatement in practice, is a suspension of all proceedings in a suit from want of proper par- ties capable of proceeding therein, or from want of jurisdiction of the court, or the pendency of another action between the same parties for the same cause, etc. Common-law rule. At common law an original suit abates by the death of one of the parties ; Hegerich v. Keddie, 99 N. Y. 258-270 ; Torry v. Roomson, 24 Miss. 192; and the statutes changing the rule of the com- mon law must be strictly construed, and every case not within the letter of the statute is governed by the rules of common law, as to the survivability of a cause of action ex delicto; Blake v. Griswold, 104 N. Y. 613 ; and the action abates upon the death of either party ; Brachett v. Griswold, 103 id. 425. Assignability of claims. Section 1910 of the Code of Civil Procedure provides that any claim or demand can be transferred except in one of the following cases : (1) Where it is to recover damages for a personal injury or for a breach of promise to marry. (2) Where 1 a THE RULES OF PLEADING. it is founded upon a grant which is made void by a statute of the state. (3) Where a transfer thereof is expressly forbidden by statute or would contravene public policy. When action does not abate. Section 755 of the Code of Civil Procedure provides that "An action does not abate by any event, if the cause of action survives and continues, and that a special proceeding does not abate by any event, if the right sought in such special proceedings survives and continues." When sole party dies. If the sole party to an action dies, and the cause of action survives, the court must allow the action to be continued by or against the representative or successor in interest. The same holds good of any special proceedings. Survivability and assignability are synonymous terms in abatement. All causes of action that are assignable survive the death of a party, and almost if not all non- assignable causes of action die with the person ; Meeck v. Stoner, 19 N. Y. 30. Where the action is for a personal tort by which the offender acquires no gain for himself at the expense of the sufferer ; as slander, libel, assault and battery, false imprisonment, etc., then the person injured has only a reparation for the delictum, and the death of the plaintiff or sole defendant abates the action. Action which abates by the deatb of one of the parties. A cause of action for seduction abates by the death of either party to the action ; so does an action for false representation by a third party, in reliance upon which, credit is given to an irresponsible person ; Zahrishi v. Smith, 13 N. Y. 322. So does a cause of action for a ABATEMENT. 3 breach of promise to marry ; Wade v. Kalbfleisch, 58 id. 286. For killing another. For the negligent killing of another ; Whitford v. P. R. R. Co., 23 N. Y. 465 ; the cause of action provided for by section 1902 of the Code of Civil Procedure, is wholly distinct from and not a revivor of the cause of action which, if the party had survived, he would have had for his bodily injury. But see Littlewood v. Mayor, etc., 89 N. Y. 24. Action for a penalty. An action for a penalty in- curred by trustees under the general manufacturing act does not survive ; Stokes v. SticJcney, 96 N. Y. 323. For inducing one to marry another. An action for fraud in inducing one to marry another does not sur- vive ; Price v. Price, 75 N. Y. 244. Letting unhealthy premises. An action for injuries from a landlord's knowingly letting unhealthy prem- ises does not survive ; Victory v. Krauss, 41 Hun, 533. Civil damage- An action under the Civil Damage Act, to recover damages by a wife for loss of means of support by reason of the sale of liquor by defendant to her husband, does not survive: Moriorty v. Partlett, 99 N. Y 651. In Hegerich v. Keddie, 99 N. Y. 258, the court say : " All causes of action for a mere personal injury caus- ing death, abates upon the death of the wrong-doer and cannot be maintained against his personal representa- tives." Although there seems to be a broad distinc- tion between causes of action which survive the death of the injured party and those which survive the death of the wrong-doer; Bonnell v. Oriswold, 8 Civ. Proc. 4 THE RULES OF PLEADING. Rep. 280 ; but the death, of one of two or more joint tort-feasors does not abate the action against the sur- vivor. Action for wrong against husband and wife. The Laws of 1890, chapter 51, have nearly eliminated actions against husband for a wrong committed by the wife, but a suit against husband and wife for a tort com- mitted by the wife, does not abate by his death unless the tort was committed by her husband's coercion ; Dorge v. Peace, 13 Ala. 227. Death of party after verdict, report or decision. The death of either party after verdict, report or decision, does not abate the action ; Code, sec. 764 ; but this rule does not seem to extend through all causes of ac- tion; Blake v. Griswold, 104 N. Y. 613. In the last- named case the court held, that in certain cases the action would abate notwithstanding a verdict, report or decision, up to the time of entry of judgment. Death of partner, eifect of. The death of one of the partners in an action does not abate the action ; Shale v. Schantz, 35 Hun, 622. Death or removal of a public officer, executrix, etc- An action by or against a public officer, executrix, etc., does not abate by his death or removal, but it may be continued by or against his or their successor or success- ors in office ; Pater son v. Copland, 52 How. Pr. 460. Civil death, effect of. A person sentenced to im- prisonment in a state prison for life is civilly dead, and the rights and liabilities of such a person are as entirely gone as though he were actually dead, and his estate may be administered upon as if he were buried ; Bonnell v. R., W. & O. R. R. Go., 12 Hun, 219 ; Code, ABATEMENT. 5 sec. 2319. But see Avery v. Everts, 18 N. Y. State Eep. 213. A person sentenced to imprisonment for a term of years. Any person sentenced to imprisonment for more than one year is civilly dead, so far only as to deprive him of all civil rights ; Code, sec. 2219, etc. ; but not to free him from all liability to others; he does not in any case acquire immunity from claims of private individ- uals, or the necessities of public justice, the statute suspends his rights alone, and not the rights of others against him. Although he may not sue, he may be sued, and the suit may be prosecuted to judgment against him ; Davis v. Duffy, 8 Bosw. 617 ; Morris v. Walch, 14 Abb. Pr. 387. Dissolution of corporation abates an action. The dis- solution of a corporation terminates an action pending for or against it, but the court may, by order under chapter 295 of the Laws of 1832, revive it; McCulloch v. Norwood, 58 N. Y. 562 ; Sturgis v. Vanderbilt, 73 id. 384. And see Grafton v. The Union Ferry Co., 40 K Y. State Rep. 137. Plea of abatement. A plea of abatement is the proper plea for want of jurisdiction, when it arises from formal defects in the process, or for the want of jurisdiction over the person. If the defendant ap- pears generally he can only raise the question by a plea in abatement ; Mg Clyde P. H. Co. v. Darker, 22 Barb. 323 ; and such plea must be put in before mak- ing plea to the merits. But where the cause of action is not within the jurisdiction granted by law to the tribunal, it may be taken advantage of at any time; Craig v. Town of Andes, 93 N. Y. 405. 6 THE RULES OF PLEADING. Defect of parties. A plea in abatement for defect of parties is bad where it does not state their names and the fact that they are within the jurisdiction of the court ; Goodhue v. Luce, 82 Me. 222. Another action pending. A plea in abatement of the pendency of another action for the same cause and be- tween the same parties, must set out or enroll the record or declaration of such action ; Brostow v. Har- riett, 82 Me. 166. Non-joinder of necessary party. "Where a person who is a necessary party to an action is not made a party, the defendant can raise the question by a plea in abate- ment. To make a plea in abatement for such omission good, the plea must aver, that the person not joined is alive and is within the reach of the ordinary process of the court; Lefferts v. Silsby, 54 How. Pr. 193; Hidey v. Wightman, 13 Hun, 163. The defendant must point out the plaintiff's error and show him how it may be corrected, or in technical terms must give the plaintiff a better writ ; Ghaffee v. Morse, 66 Barb. 252. Wrong name. A defendant sued by a wrong name must plead the defect in abatement ; Gardner v. Clark, 21 N. Y. 399. AMENDMENTS. In general. A party may within the time limited amend his pleading by setting forth a new cause of action or defense, and he is not restricted to a cause of action or defense of the same class as that in the original. He may omit the original cause of action or defense ; Brown v. Leigh, 49 N. Y. 78 ; Fell v. Grom- AMENDMENTS. 7 'well, 12 How. Pr. 79 ; Striker v. Ex. Bh, 28 id. 20 ; Moulton v. Beecher, 1 Abb. N. C. 193. Change of venue by. The plaintiff cannot by an amendment of course of the venue of the complaint, change the place of trial to a different county from that designated in the summons and complaint ; Wads- worth v. Borger, 18 Abb. N. C. 199; Wallace v. Bim- mich, 24 Hun, 635. Matter happening subsequent to the original pleading. Matters happening subsequent to the original pleading cannot be inserted by amendment of complaint ; Hornfager v. Hornfager, 6 How. Pr. 13. But a de- fense arising after the original answer was served can be set up by an amended answer. Amendment of supplementary pleading. A supple- mental complaint is amendable within twenty days ; Bevine v. Buncan, 2 Abb. N. C. 328. Motion to strike out — how effected by amendment. An amendment pending a motion to strike out or for judgment on a frivolous pleading, or after demurrer, will defeat the motion or demurrer ; White v. Mayor, 14 How. Pr. 495 ; Burrill v. Moore, 5 Duer, 654 ; Franh v. Bush, 63 How. Pr. 282 ; Welch v. Preston, 58 id. 52. But such a motion will be denied without costs; Brannigan v. P aimer, 5N. Y. Week. Dig. 521. Notice of trial — effect of. An amendment within the time allowed by the Code destroys the force of a notice of trial, etc.; Ostrander v. Konhey, 20 Hun, 421. An amendment by the court at the trial cannot be made, changing an action ex delicto to one ex contractu. Neudecker v. Cohlberg, 81 N. Y. 296. Time to amend, how reckoned. The time for amend- 8 THE RULES OF PLEADING. ing an answer of course is twenty days after service, even though it were served by mail ; Toomey v. An- drews, 48 How. Pr. 332 ; but if a reply is served to the answer, where a reply is allowable, the defendant can amend within the time allowed, after the service of the reply. Where the first amendment to the com- plaint is compelled by order of the court, plaintiff may amend his complaint the second time, as of course, and without costs; Idntzenich v. Stevens, 17 N. Y. State Rep. 862. Amendment of demurrer by answer. A defendant cannot as matter of right amend a demurrer by serving an answer, and where on the last day to answer de- fendant serves a demurrer, he cannot thereafter serve an answer as a substitute and amendment of the de- murrer-wa.di.ev section 542 of the Code of Civil Proced- ure ; Gashman v. Reynolds, 31 N. Y. State Rep. 143. It seems that a demurrer may be amended once as of course ; Cashman v. Reynolds, 31 N. Y State Rep. 143. Waiver of right. It has been held that noticing the cause for trial is a waiver of the right to amend ; Phillips v. Suidan, 54 Barb. 153 ; and the contrary has also been held; Clifton v. Brown, 2 Civ. Pro. Rep. 44. Notice of amendment must be given to all parties. It is irregular to amend as to one defendant without notice to the others ; Fassett v. Talmage, 1 5 Abb. Pr. 205. Although a defendant omits to answer the original complaint, the should have notice of an amend- ment and opportunity to answer ; People v. Moody, 2 Sandf. 652. But the above rule only applies where the amended complaint substantially changes the original complaint ; Weil v. Martin, 24 Hun, 645. AMENDMENTS. -9 Effect of amendment. An amended pleading super- sedes the original, and relates back to the commence- ment of the action ; Fogg v. Edwards, 20 Hun, 90. A failure to demur to or to answer the amended plead- ing within twenty days thereafter has the same effect as a like failure to demur to or answer the original pleading; N. Y. Code, sec. 543. Effect of amendment of answer on admissions. Where in the original answer an alleged fact is admitted, and an amended answer is afterward served which contains no such admissions, the fact will be taken as denied by the amended answer ; HougJitaling v. Lloyd, 39 N. Y State Kep. 580. Power of court to allow amendment. The court has power to allow an amendment of pleadings whereby a cause of action barred by the statute of limitation may be inserted therein, and thus saved from the force of the statute ; Egleston v. Beach, 33 N. Y. State Eep. 835. AMENDMENT BY THE COURT. In general. Section 723 of the Code of Civil Pro- cedure has given the court power upon the trial, or at any other stage of the action, before or after judg- ment, to give relief to a party litigant ; Garr v. Ster- ling, 114 N. Y. 555 ; 24 N. Y. State Rep. 521. What amendments not allowed at trial. On a refer- ence of a disputed claim against an estate, the referee has no power to permit amendments ; Eldred v. Eames, 115 N. Y. 401. Changing cause of action. An amendment upon the trial changing a complaint in ejectment to one to re- 2 10 THE RULES OF PLEADING. strain the defendant from maintaining a nuisance, will not be allowed ; Gas-Ught Co. v. B., W. & O. B. B. Co., 51 Hun, 119 ; nor one for converting to funds one upon an indebtedness ; Camp v. Smith, 27 N. Y. State Eep. 322; 117 N. Y. 354; nor to change an equitable action to one at law triable by jury ; Halsey v. T. Nat. Bh., 4 N. Y. Supp. 804. A mere remark by the court upon the trial, that it will permit the plaintiff to amend his complaint, upon which no action is taken, will not authorize the entry of an order after judg- ment permitting a specific amendment ; Poole v. Hays, 17 1ST. Y State Eep. 685. Power of special term. The court at special term has almost unlimited power to allow amendments, when justice requires it; Byrnes v. Dunn, 6 N. Y. Week. Dig. 140 ; Carr v. Sterling, 114 N. Y. 555 ; 24 N. Y State Rep. 521 ; Becker v. L. E. & W. B. B. Co., 31 N. Y. State Rep. 750. It is nearly a matter of course to allow amendments which produce no delay and work no special hardships ; Gilchrist v. Gilchrist, 44 How. Pr. 317. The proposed amendment should be served upon the other side with the moving papers ; New v. Alland, 62 How. Pr. 185. But see Weil v. Martin, 24 Hun, 645. New cause of action. The special term cannot allow an amendment setting up a new cause of action; Davis v. N. Y, L. E. & W. B. B. Co., 110 N. Y. 646; 17 N. Y. State Rep. 172. Changing name of party. The court can strike out or add the name of a party, but it cannot change a name by substituting another or entirely different de- fendant ; N. Y. S. M. M. P. Co. v. V. S. B. A. W. AMENDMENTS. 11 K S, 14 N. Y. Week. Dig. 312 ; Chitten. Go. v. Stew- art,S7 Barb. 463. And see Shaw v. Cook, 12 Hun, 173 ; 78 N. Y. 194. The court can strike out the name of the plaintiff, or the name of a defendant, substitute the name of a city in the place of the name of a board of supervisors of a county ; Bd. of Supervisors v. M ti- ler, 4 Hun, 71 ; substitute the name of a receiver for the defendant in an action ; Fuller v. W. F Ins. Co., 12 How. Pr. 293 ; or the name of a corporation for a receiver ; Abbott v. Jewett, 25 Hun, 603 ; strike out a corporation and insert the names of the members of a partnership ; N. Y. M. P. Co. v. Remington Whs., 25 Hun, 475. But in JBassett v. Fish, 75 N. Y. 303, it was held that the court could not strike out the names of defendants, the trustees of a school district, and sub- stitute their corporate name. The mistake in the name of a party may be corrected at or after trial ; Barnes v. Perrine, 12 N. Y. 18. Enlarging demand for relief on default. Notwith- standing the provisions of section 1207 of the Code of Civil Pi'ocedure, which provides that where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint, the court can allow an amendment of the complaint de- manding judgment for a larger sum, where the defend- ant does not appear; Carr v. Sterling, 114 N. Y. 555 ; 24 N. Y. State Rep. 521. Amplification of pleadings by amendment. Where an original complaint alleged that plaintiff 's cows strayed upon defendant's track, and that defendant so carelessly managed its cars that two cows were killed and two others injured, an amendment alleging that the cattle 12 THE RULES OF PLEADING. strayed upon the premises through a fence which the defendant was bound to maintain, and that four cattle were killed instead of two, and three injured, does not change the cause of action, but is only an amplifica- tion of the original complaint ; Becker v. N. Y., L. M &W.B.R. Co., 31 N. Y. State Rep. 750. The court will allow an amendment of a complaint so as to allege the filing of a notice of injuries received, re- quired under chapter 572 of the Laws of 1888 ; Denair v. City, etc., 5 N. Y. Supp. 835. But it will not allow an amendment setting up inconsistent defenses ; Marks v. Gross, 31 N. Y. State Rep. 403. The court has no power, on motion of defendant, to change a date of a transaction stated in the original complaint, so as to make it conform in this respect to the copy served upon him ; Boston Nat. Bk. v. Armour, 20 N. Y. State Rep. 29 ; 50 Hun, 176. A complaint may be amended so as to demand judg- ment for a larger sum, where the defendant does not appear. A complaint for accounting cannot be amended so as to inject into it an equitable cause of action, to have a release set aside for fraud ; Bartlett v. Bunn, 28 N. Y. State Rep. 373. But the complaint may be amplified by claiming and demanding other damages, etc. ; Wilcox v. Payne, 28 N. Y. State Rep. 712. An amendment may be allowed by which the plain- tiff withdraws a portion of the credit admitted in his original complaint; Price v. Brown, 112 N. Y. 677; 21 N. Y State Rep. 573. And in an action for slan- der, by introducing additional words spoken at the same time and in the same connection as those set ANSWER. 13 forth in the original complaint; Golly er v. Colly er, 21 N. Y. State Hep. 118 ; 50 Hun, 422. In an action for negligence, based upon an allegation that the negli- gence consisted in the use of a defective engine, where plaintiff fails because the proof shows that the negli- gence was in the use of improper fuel, the court at special term have power to allow an amendment of the complaint, for this is not a new cause of action ; Davis v. N. Y., L. E. & W. B. B. Co., 110 N. Y. 646. And an amendment which changes the action from one for a breach of warranty upon a sale to one for fraud, etc., made to induce plaintiff to make the purchase, may be allowed; Eighmie v, Taylor, 39 Hun, 366. ANSWER. Definition. An answer offers or it invites an isme of fact. An answer should either meet the statements of the cause of action to which it responds, by tendering an issue ; or it should assert, by way of avoiding its effect, additional facts ; or set up a counter claim, the denial of which it challenges. Entitling. The answer need not be entitled in the action ; Didier v. Warner, 1 Code Rep. 42. It is the facts alleged which constitute the defense, by what- ever name it is called ; Springer v. Dryer, 50 N. Y. 19. Demand for relief. No demand for relief is neces- sary unless the defendant seeks some affirmative relief against the plaintiff or against a co-defendant ; Averill v. Taylor, 5 How. Pr. 476. Costs. Costs form no part of the relief to which an 14 THE RULES OF PLEADING. answer entitles the defendant ; they are simply an in- cident which the statute awards to him of course, as the successful party ; Bendit v. Annesley, 42 Barb. 192. Number of defenses allowed. Section 507 of the New York Code of Civil Procedure provides that a defend- ant may set forth as many defenses and counter-claims, or both, as he may have. Each defense and counter-claim must be complete in itself. Each defense or counter-claim must be com- plete in itself and separately stated ; Boyd v. McDon- ald, 35 N. Y. State Rep. 484, It must contain all the necessary allegations of a complete defense or counter-claim, or expressly refer for some of them to other parts of the pleading. The defendant cannot avail himself of an allegation in the statement of a de- fense or counter-claim, not thus referred to, so as to help out a defect in the statement of another defense ; Loosey v. Orser, 4 Bosw. 391 ; Hammond, v. Earl, 58 How. Pr. 426 ; but a defendant to avoid repetition may aver once certain facts alike applicable to several de- fenses, and refer to them in any other defense ; /Swift v. Kingdey, 24 Barb. 541 ; Ayers v. Covill, 18 id. 260. Answer to part. It is sufficient if the pleading con- stitutes a defense or counter-claim to so much as it professes to answer ; McKyring v. Bull, 16 N. Y. 297. Section 507 of the Code provides that unless a de- fense is interposed as an answer to the entire com- plaint, it must distinctly refer to the cause of action which it is intended to answer. It may deny part, or some, or one of the causes of action, and answer the ANSWER. 15 residue by new matter or otherwise ; Bush v. Pros- ser r 11 N. Y. 347; Long worthy v. JTnapp, 4 Abb. Pr. 115. A partial failure of consideration may be set up pro tanto ; Gleason v. Moen, 2 Duer, 639; Van Be Sande v. Hall, 13 How. Pr. 458. But if it professes to answer an entire cause of action and only answers a part, it is insufficient ; Nichols v. Du- senbury, 2 N. Y. 283; Foster v. Hazen, 12 Barb. 547. The answer need not contain any statement of, what defendant considers the legal effects of the facts set up ; Dawley v. Brown, 9 Hun, 461. Partial defenses. Section 507 of the New York Code of Civil Procedure provides that where a partial defense is set up, it must be expressly stated to be a partial defense to the entire complaint or to one or more sepa- rate causes of/ action therein set forth, or it will be demurrable. The court, in Thomson v. Halbert, 109 N. Y. 329, and in Mattice v. Wilcox, 36 NY. State Rep. 914, say : Where new matter is set forth in an answer, and it is not expressly stated therein to be a partial defense, it must be assumed that the new matter al- leged is pleaded as a complete defense, and if de- murred to, it must be tested as such . Separating defenses. One may justify an assault as committed in self-defense or in defense of his property, but these are distinct defenses and must be separately pleaded and numbered ; Johnson v. Gibeon, 23 N Y. Week. Dig. 433. Separating parts of same defense or counter-claim. A defendant may separate his defenses and counter- claims into different paragraphs, and number the para- 16 THE RULES OF PLEADING. graphs. Two or more paragraphs of an answer which together constitute a single defense will not be re- garded as stating two separate defenses, because the paragraphs are separately numbered, and the latter one contains the words "farther answering, etc."; Jex v. Mayor, etc., Ill N. Y. 339 ; 19 N. Y. State Kep. 132. Inconsistent defenses. By an amendment to section 507 of the New York Code of Civil Procedure, in 1879, the words "but they must not be inconsistent with each other" were stricken out. In Bruce v. Burr, 67 N. Y. 237, the court say: "A defendant may inter- pose as many defenses or counter-claims as he may have, and the objection of inconsistency is not availa- ble. But we still find the courts holding, that a de- fendant cannot unite such defenses as a denial and a justification. But see Moody v. Belden, 38 N. Y. State Kep. 722. In Marx v. Gross, 31 N. Y. State Kep. 403, in an action for a breach of contract, in which the answer was a general denial, an amended answer setting up the defense that the defendants were induced to make the contract by fraudulent representations, was held to be uniting two inconsistent defenses, and the gen- eral denial was stricken out. It was held in Roe v. Rogers, 8 How. Pr. 356, that an answer in an action for assault and battery could not set up a general denial and a justification. And in Lewis v. Acker, 11 How. Pr. 163, it was held, that a denial of the con- tract, and an allegation of non-performance by the plaintiff was bad. But it seems that it is proper to set up in the same answer a general denial and a plea of infancy ; Mott v. ANSWER. 17 Barnett, 2 E. D. Smith, 50 ; a general denial and a release ; Kellogg v. Baker, 15 Abb. Pr. 288 ; in an action for slander a denial, justification, and mitiga- tion; Bahlerv. Went-oorth, 17 Barb. 649 ; in replevin a denial of the taking, and a justification of the taking ; Hachley v. Ogmun, 10 How. Pr. 44 ; and in malicious prosecution, a general denial, and probable cause. Hypothetical statement. An answer in an action for slander which alleges, that if the defendant spoke any slanderous words of and concerning the plaintiff of the nature of those charged in the complaint, they were confidential and privileged, is bad as being hypotheti- cal and assuming to set up matters in avoidance of the charge in the complaint, without confessing the charge ; Goodman v. Bobb, 41 Hun, 605. Contingent aver- ments are bad; Lewis v. Kendall, 6 How. Pr. 59. Matters accruing after suit brought. Matters accru- ing after suit commenced and before answer is put in may be set up in the answer ; Lansing v. Ensign, 62 How. Pr. 363; Reimer v. Doerge, 61 id. 142. Admissions coupled with affirmative averments, effect of. Where admissions in an answer are coupled with affirmative allegations, the adverse party cannot rely upon the admissions, unless he accept it as modified by the accompanying allegations ; Vanderbilt v. Sohreyer, 21 Hun, 537 ; Goodyear v. Be la Vergne, 10 id. 537. Negative pregnant. A denial in the exact words of that stated in the complaint is denominated a negative pregnant. In Lawrence v. Cabot, 41 N. T. Super. Ct. 122, the court say : " A denial amounting to a negative pregnant is an admission of the allegations in reference to which it is made, but in Parker v. Tillinghast, 1 N. 3 18 THE RULES OF PLEADING. Y. State Rep. 296, the court say : 'A denial in an answer in the exact language stated in the complaint, is suffi- cient where it is not indefinite, uncertain or ambig- uous. Disjunctive denials. Disjunctive denials were held to be bad in Young v. Catlett, 6 Duer, 427 ; Gorbin v. George, 2 Abb. Pr. 465. A denial that plaintiff ever sold defendant any goods which have not been paid for, and that if sold they were sold on credit which has not expired, is bad ; Hamilton v. Hough, 13 How. Pr. 14. See, also, Loosey v. Orser, 4 Bosw. 391. NEW MATTER AS A DEFENSE MUST BE SPECIALLY PLEADED. Definition. ~New matter means matter extrinsic to the matter set up in the complaint as the basis of the cause of action ; Manning v. Winter, 7 Hun, 482. It is also that which admits and avoids the cause of action set up in the complaint ; Brazil v. Isham, 12 N. Y. 9; Gilbert v. Gram, 12 How. Pr. 455. Another action pending. To sustain a plea of former action pending, it must appear from the pleadings in the first action, that it was for the same cause as the second, or involved necessarily the same question. It is not enough that the same property is in controversy in both actions; Mandeville v. Avery, 36 N. Y. State Rep. 338. The plea should set out or enroll the declara- tion of such former suit; Broston v. Bennett, 82 Me. 166. It is not enough to allege service of process for the same cause of action, without showing a complaint for the same cause ; Gardner v. Glark, 21 N. Y. 399. ANSWER. 19 The same rule applies where the former action is for a part of an entire demand; Bender nagle v. Cocks, 19 Wend. 207. The defense that a court of equity should not exercise its jurisdiction in an action because of the pendency of an action in another court, is not availa- ble unless pleaded; Hollister v. Stewart, 111 N. Y. 644. The answer must allege and show that the two ac- tions are for the same identical cause of action ; Kelsey v. Ward, 16 Abb. Pr. 98; Dawley v. Brown, 79 N. Y. 390. The plea of the pendency of an action in the United States courts or those of another state, for the same cause, is not a defense ; Hadden v. St. L., I. M. & S. R. R. Co., 57 How. Pr. 390. In such cases a stay should be obtained in one court until the action in the other is terminated; Burling ame v. Parce, 12 Hun, 149 ; Travis v. Myers, 67 K Y. 542. Former recorery. A former judgment must be pleaded to make it a bar or an estoppel ; Henderson v. Scott, 32 Hun, 412 ; Mayor, etc. v. Ketchum, 67 How. Pr. 161. Plaintiff not the real party in interest. The objection that the plaintiff is not the real party in interest must be set up in the answer ; Jackson v. Mudon, 1 E. D. Smith, 141; Hammond v. Harle, 58 How. Pr. 426; and disposed of at the trial ; Horton v. Sheppard, 1 N. Y. Civ. Proc. Rep. 26. And a statement of the facts which are relied on as the ground of the allegation must be set forth ; Fosdick v. Groff, 22 How. Pr. 158. An answer that sets up that A. B. is. but that plain- tiff is not, the real party in interest is not frivolous ; 20 THE RULES OF PLEADING. Arraraois v. Frazer, 2 Hilt. 244 ; Miller v. Hall, 70 N. Y. 251; Mars v. Barton, 12 N. Y. Week. Dig. 524 ; Hayes v. Hathorn, 74 N. Y. 486. Payment. In all cases, except when the fact of non- payment is alleged in the complaint, as a necessary and material fact to constitute a cause of action, the defense of payment must be specially pleaded to be available ; Knapp v. Roche, 94 N. Y. 333 ; Griffin v. R. R. Co., 101 id. 354 ; Bradford v. Fox, 38 id. 289. In McKyring v. Bull, 16 N. Y. 297-309, the court reviewed all the cases prior to that time, and held that evidence of payment, as a defense to an action, or of partial payment in mitigation, was inadmissible on the trial, because neither was pleaded. Partial payment must be pleaded in the answer, although the complaint contains an allegation of non-payment, and the answer a general denial ; Beaman v. Lyons, 27 N. Y. Week. Dig. 168. Release of a covenant, by payment or otherwise, is a matter which must be affirmatively pleaded as a de- fense in an action against a covenantor; Pierce v. Early, 79 Iowa, 199 ; and it must state the time of payment ; (J Neil v. Phillips, 83 Ga. 556; and in a suit by an assignee, a plea of payment to the assignor is bad, where there is no averment that the payment was made before notice of the assignment ; Indianapolis, MR. & T. W. R. R. Go. v. Hyde, 122 Ind. 188. Illegal contract. The defendant cannot show under a general denial that an alleged agreement was illegal, unless it appears from the complaint or the evidence of the plaintiff ; HiUbank v. Jones, 38 1ST. Y. State Kep. 900. ANSWER. 21 Tender. An answer of tender before action should, besides alleging the tender and refusal, allege that the defendant is still ready, and has always been ready to pay ; Rosevelt v. B. H Bk, 45 Barb. 579 ; Rosevelt y.JV. T.d H. R. R. Go., id. 554. A plea of tender admits the cause of action to the amount tendered, and cannot be controverted, or the plea of tender with- drawn by the party pleading it ; Eaton v. Wells, 82 N. Y. 576. The money tendered must be paid into court and notice thereof given to the plaintiff ; Becker v. Boon, 61 N. Y. 317 ; Platner v. Lehman, 26 Hun, 374. Equitable defenses. A defense purely equitable may be interposed to a cause of action strictly legal ; Day v. Hammond, 57 N. Y. 479 ; but a defendant cannot, by interposing an equitable defense, convert a legal action into an equitable one ; Webster v. Bond, 9 Hun, 437. The equities between two defendants must be settled between themselves, they cannot be urged to defeat the claim of a plaintiff who had no connec- tion with them ; Kay v. WMttaker, 44 N. Y. 565. A defendant cannot under sections 452 and 521 of the New York Code of Civil Procedure set up for de- termination, the rights of defendants as between them- selves, unless those rights arose out of, or are connected with, or result from the cause of action set forth and maintained by the plaintiff ; Smith v. Hilton, 50 Hun, 236. Statute of frauds. In pleading the statute of frauds, all that is necessary is to set forth the facts which render its provisions applicable ; Goelet v. Gowdrey, 1 Duer, 132 ; and the defense has been allowed under 22 THE RULES OF PLEADING. a general denial ; Height v. Child, 34 Barb. 106 ; but in Porter v. Worinser, 94 N. Y. 431 ; Myers v. Dor- man, 34 Hun, 115 ; Quinland v. Raymond, 3 N. Y. State Rep. 573, the court say : " Defendant must specially plead the statute of frauds, or it will furnish no defense." Usury. The usurious contract must be set up in the answer with all its terms and the particular facts relied upon to bring it within the statute ; W. T. & C. Co., etc. v. Kilderhouse, 87 N. Y. 430 ; Banks v. Van Ant- werp, 15 How. Pr. 29 ; Manning v. Tyler, 21 IS. Y. 567. Whoever desires the aid of the statutes against usury through the interference of the court, must make out his title to relief by allegations, as well as proof ; L. I. Bk v. Boynton, 105 N. Y. 656. The answer must state what the usurious agreement was, and be- tween whom it was made, the amount of usury, as well as the amount of the loan ; the rate should be stated definitely; Dagal v. Simmons, 23 N. Y. 491. And to set up the defense that a contract made in a foreign state or country is void by the usury laws of such country, defendant should first state what those laws were at the time of the transaction, and then set out the facts which rendered the contract void according to those laws ; Cutler v. Wright, 22 N. Y. 472; Curtis v. Morten, 11 Paige, 15. Corporations and their sureties cannot take advan- tage of the usury laws of this state ; Butterworth v. O'Brien, 23 N. Y. 275 ; Rosa v. Butterfield, 33 id. 665 ; Stewart v. BramhaU, 74 id. 85 ; but it is differ- ent when a corporation is surety for an individual. ANSWER. 23 Foreign law. An answer that the contract set up in the complaint was made in a foreign state, and is void by the laws of said state, must specially set forth the foreign statute as a matter of fact ; Thorpe v. Hatch, 3 Abb. Pr. 231. A defense that the contract is re- pugnant to the laws of another state, in which by its terms it is to be performed, must be pleaded ; Mur- phy v. English, 64 How. Pr. 362. Statute of limitations. It is provided by section 413 of the New York Code of Civil Procedure, that the objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defense or counter-claim can be taken only by reply, except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon allegations contained in the answer. An allegation in an answer that more than six years have elapsed since the matter and the things men- tioned in the plaintiff's complaint, or any of them, have become due, does not contain a proper plea of the statute of limitation to notes set up by plaintiff ; Etu> v. Diefendorf, 102 N. Y. 720 ; Budd v. Walker, 29 Hun, 344. It seems that an executor or administrator cannot waive the statute of limitation by omitting to set it up in his answer ; Dryer v. Braivn, 23 N. Y. State Rep. 695 ; 52 Hun, 321. .Answer to a cause of action consisting of two elements. When a cause of action consists of two elements, one of which is barred in three years and the other in six, a general plea in an answer, that more than three years have elapsed since the plaintiff's cause of action 24 THE RULES OF PLEADING. accrued, is insufficient on demurrer, and if intended for a partial defense it should be so stated ; Maxon v. D., L.&W.R. JR. Co., 48 Hun, 172. Adverse possession. Adverse possession must be pleaded to be available; Manseev. Mead, 27 Hun, 162 ; Dezengruel v. Dtzengruel, 12 N. Y. Week. Dig. 286. Injuries to real property situated out of the state. Damages for injuries to real property situated in an- other state cannot be pleaded as a counter-claim to an action in this state ; Cragan v. Lovell, 88 1ST. Y. U58. Plaintiff suing as partnership. A defense furnished by the provisions of chapter 281 of the New York Laws of 1833, forbidding a person from transacting business in the name of a partner not interested in his firm, must be specifically presented by the answer, as the statute is penal in its nature. Statute laws in regard to trusts. Defendant cannot raise the objection that the transaction relied on can only have effect by way of trust, and that by the stat- ute of frauds, a trust must be declared in writing, unless the answer alleges such defense ; Marie v. Gar- rison, 13 Abb. N. C. 214-306. Mistake. In an action upon contract, an answer which seeks to set up a mistake in the instrument embodying it, must state what was the actual agreement, and the mistake in reducing it to writing ; Wemple v. Stewart, 22 Barb. 154. Adultery as an answer and as a counter-claim. An an- swer setting up plaintiff's adultery merely as a defense, need not allege that either of the parties were inhabit- ants of the state, etc. If the plaintiff's guilt be set up as a counter-claim, and a divorce for the defendant ANSWER. 25 asked for, all such allegations should be inserted, as in a complaint. Carrier's contract. A carrier setting up a breach of one of the conditions of its bill of lading as a defense, must specifically aver all the facts constituting the alleged breach ; Jennings v. G. T Ry. Go., 23 N. Y. State Rep. 15 ; 52 Hun, 227. Answer of insurance company. A defendant insur- ance company, in order to avail itself of a defense by which the policy of insurance would be forfeited by reason of untrue answers made to the application, must set forth such defense ; Spring v. The G N~. Life Ass., 38 N. Y. State Rep. 968. Modification. Under an allegation of full perform- ance, proof of a modification of the contract, and per- formance of it as modified, is not admissible ; Turn- bridge v. Mead, 22 N. Y. State Rep. 764. No notice of protest, how set up. When a party sued as an indorser of commercial paper desires to contro- vert the service of notice of protest, he must serve with his answer an affidavit, as prescribed by section 923 of the Code of Civil Procedure ; Gessner v. Smith, 18 N. Y. State Rep. 1013. Answer by corporation in an action upon their bonds, notes, etc. A general denial of averments of the com- plaint not admitted does not put in issue plaintiff's incorporation, where defendant admitted that they contracted with plaintiff as alleged in the complaint ; G. Bh, etc. v. Pfeiffer, 108 N. Y 242 ; Ensign v. Ensign, 14 N. Y. State Rep. 181. Section 1778 of the New York Code of Civil Pro- cedure provides, that in an action against a corpora- 4 26 THE RULES OF PLEADING. tion, to recover upon their evidence of debt, that unless the defendant serves with his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judgment at the expiration of twenty days after the service of a copy of the complaint. But when a corporation is sued as an indorser or surety on a note, etc., an order of a judge is not required ; Shover v. The Times P. & P. Co. 119 N. Y. 483; 29 N. Y. State Rep. 786. Issue as to corporate existence, how formed. Section 1776 of the New York Code of Civil Procedure pro- vides that in an action, brought by or against a corpo- ration, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is veri- fied and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation. An answer which alleges that defendant has no knowledge or information sufficient to form a belief as to whether plaintiff is a corporation, does not put plaintiff upon proof of its corporate existence, as this is not within the Code (sec. 1776) an affirmative allega- tion that it is not a corporation; C. 8. &, A. Assoc, v. Read, 93 N. Y. 474; Bengston v. T S Co., 31 Hun, 96. Answer in action for divorce or separation. Section 1770 of the New York Code of Civil Procedure pro- vides that where an action is brought by either hus- band or wife, a cause of action against the plaintiff and in favor of the defendant, arising under either sections 1756 or 1762, maybe interposed, in connection with a denial of the material allegation of the com- plaint, as a counter-claim. ANSWER. 27 Answer in action for separation. Section 1765 of the New York Code of Civil Procedure provides that the defendant may set up in justification, the misconduct of the plaintiff ; and if that defense is established to the satisfaction of the court, the defendant is entitled to judgment. Answer in action for determination of claims to real property. Section 1641 of the New York Code of Civil Procedure provides, that in an action for the determination of claims to real property the defendant may, in his answer, set up a general denial and an estate in fee, or for life, or for a term of years not less than ten, in possession, reversion, or remainder, or an . interest or easement in, or a lien or incumbrance upon the property. Answer of title in third party — conversion. In an action to recover damages for conversion, where the complaint alleges title in plaintiff and the right of possession, and the answer is a general denial, and an averment of title in a third person ; defendant cannot prove his right to stand in the place of the third per- son. He should have alleged the facts ; Klinger v. Bondy, 36 Hun, 601. One defendant denying for another. In Edwards v. Lent, 8 How. Pr. 28, it is said that where the answer is verified, one defendant cannot deny knowledge, etc., on the part of others. That a defendant cannot deny knowledge or information sufficient to form a belief that he ever did the act alleged in the complaint to have been done by him. Special denials by reference to folios, etc., not proper when. The practice of referring, in an answer, to parts 28 THE RULES OF PLEADING. of the complaint, which the pleader intends to admit or deny as " at " or " between " certain folios, does not conform to the spirit of the Code ; Caulkins v. Bolton, 98 KY. 511. In Baylis v. Stimson, 110 N. Y. 621, and in Varnum v. Hart, 47 Hun, 18, the court say: " An answer which denies portions of the complaint merely by reference to the first and last words of such portions, and to the folios where they are to be found, is irregular and not authorized, and will not present any question for review to an appellate court." Denial upon information and belief. A denial " upon information and belief " is good ; for if defendant knows the allegations to be false, he may deny it posi- tively; if he has no knowledge or information sufficient to form a belief, he may state that fact, but if he has information, and it is to the effect that the allegation is false, but he has not positive knowledge, a denial upon information and belief is appropriate • Bennett v. Leeds Mfg. Co., 110 N. Y. 150. A statement in an answer, "that defendant has not knowledge or information sufficient to form a belief as to the fifth paragraph of the complaint," which alleged shipment of goods, is not a denial, and does not put in issue the facts alleged in such paragraph ; Bidwell v. Preston, 35 N. Y. State Eep. 574. In Hagadorn v. Village, etc., 37 N. Y. State Rep. 542, an answer deny- ing that defendant has any knowledge or information as to the allegations contained in the complaint, suffi- cient to form a belief, was held to be sufficient. Denial of knowledge not sufficient. A denial of knowledge sufficient to form a belief is not equivalent to a denial " of any knowledge or information thereof ANSWER. 29 sufficient to form a belief," and does not form an issue ; F. N. BTc, etc,, v. Clarke, 22 N. Y. Week. Dig. 569. Denial of all or all of the material allegations bad. A denial should not be of all the allegations, but of " each and all " or " each and every." A denial of all the material allegations is of doubtful form. Conjunctive denial. Although the allegations to be controverted are in the conjunctive, the denial ought to be in the disjunctive ; thus where the complaint alleges that defendant cut and carried away timber, a denial that defendant cut and carried away said timber is bad; Beacli v. Barrons, 13 Barb. 305. Denial of each and every allegation not before admitted or controverted is good. A denial of " each and every allegation of the complaint not hereinbefore admitted or controverted " is a good denial when there is no confusion or doubt as to the application of the gen- eral denial ; Griffin v. L. I. B. B. Co., 101 N. Y. 348. Where a complaint alleged that plaintiff consigned goods to defendant ; that he sold them and received a certain amount, which he refused to pay on demand, an answer which admits agency sale, and receipt of the money, but denies each and every other allegation, is a denial of the plaintiff's allegation that the defendant has not paid the money over ; Harland v. Howard, 32 1ST. Y. State Eep. 871 ; 57 Hun, 113 ; but where de- fendants admitted that they contracted with plaintiff as alleged in the complaint, where the complaint alleged that plaintiff was a corporation. A general denial of the averments of the complaint, not admitted, does not put in issue the allegations of 30 THE RULES OF PLEADING. plaintiff's incorporation ; C. Bk, etc. v. Pfeifer, 108 N. Y. 242. GENERAL DENIAL. Definition. A general denial is a denial in gross of all the allegations of the complaint. Specific denial. A specific denial is a denial of one or more allegations separately. A general and a special denial to the same allegation bad. A general and a special denial of the same alle- gation is bad; Blake v. Eldred, 18 How. Pr. 240; Dennison v. Dennison, 9 id. 246. What is not a general denial. A denial of " each and every other material allegation of the complaint " is evasive; Mattisonv. Smith, 19 Abb. Pr. 288. And an answer which states that the defendant has not " suffi- cient information to form a belief, and therefore denies," is insufficient. It must aver no knowledge nor informa- tion, etc. ; Lloyd v. Burns, 62 N. Y. 651. A denial of knowledge, without adding information, is not suffi- cient; Heye v. Bolles, 83 How. Pr. 266. Nor is it sufficient for a defendant to say he is ignorant of whether or not the facts alleged agaihst him are or are not true; Wood v. Stanicle, 1 N. Y. Code Rep. 152. An answer that defendant " is not informed and can- not state " whether or not plaintiff was possessed, etc., is not a denial ; Elton v. Marhham, 20 Barb. 343. And one that states that defendant " does not know of his own information or otherwise," is not a denial ; Sayen v. Gushing, 7 Abb. Pr. 371. And an answer in the following words, " the defendant, answering, avers that he denies that the rights and interests of the parties COMPLAINT. 31 hereto are correctly alleged in said complaint," is not a denial; Nolen v. Shelley, 62 How. Pr. 102. A denial that plaintiff rendered the services "on the days and at the times, and to the extent or quantity or in the manner mentioned in the complaint," is no denial of any thing certain ; Davison v. Powell, 16 How. Pr. 467 ; Salinger v. Lush, 7 id. 430 ; Powers v. R., W. & 0. R. R. Go., 3 Hun, 285. A denial that plaintiff is entitled to the sum of money demanded, is not a denial of a material allega- tion; Drake v. Ccchroft, 10 How Pr. 377. Facts impliedly averred must be denied. Facts im- pliedly averred must be denied or they are admitted ; Anablev. Conklin, 25 N. Y. 470 ; Prindle v. Caruthers, 15 id. 425; Marie v. Garrison, 83 id. 14. But allega- tions of special damage are not traversable ; Maloney v. Dows, 15 How. Pr. 261. What is a denial. In Jones v. Ludlam, 74 1ST. Y. 61, it is held that a denial in a pleading in this form, " he says, that he denies each and every allegation," etc., is a good general denial. In Meiraz v. Pearsall, 5 Abb. N. C. 90, the court say : " An answer is proper which says, the defendant answers the complaint herein upon information and belief, as follows : " He alleges that no allegation of said complaint is true, except, etc. Denial, answer, counter-claim. In an action for work and materials furnished, the answer admitted that plaintiff did the work and furnished the materials, but alleged as a counter-claim that plaintiff agreed to do the work in a workmanlike manner and to furnish suitable materials, but that he had not done so, to the defendant's damage of $300. Held, that a material 32 THE RULES OF PLEADING. allegation of the complaint was denied by the answer and the plaintiff's cause of action was not admitted ; Meimer v. Brennan, 39 N. Y. State Rep. 277. Admission and avoidance, how pleaded. New matter is that which admits and avoids the cause of action set up in the complaint; Brazil v. Isham, 12 N. Y. 9. This applies only to matters of defense arising after the contract was made ; Boomer v. Koon, 6 Hun, 645 ; Miller v. Ins. Co., etc., 1 Abb. N. C. 470. In pleading new matter the defendant may say, " the supposed cause of action, if any such there be ; " McCormick v. Pickering, 4 N. Y. 276 ; Brown v. Hickman, 12 How. Pr. 313. What sufficient averment of new matter. The answer must allege all those facts which, when the cause of plaintiff is admitted or proved, defendant must prove in order to defeat a recovery; MclLyring v. Bull, 16 N. Y. 297 ; Bapalee v. Stewart, 27 id. 310 ; Fry v. Bennett, 28 id. 324 ; Jacob v. Bemsen, 36 id. 668. Justification and mitigation. In an answer to an ac- tion for slander or libel, if a justification is attempted, it must be by a statement of facts showing the truth of the matter charged. At common law it is necessary to state the particular facts which evince the truth of the imputation upon the plaintiff's character, and the plea should state specific facts, showing in what par- ticular instances and in what exact manner he has mis- conducted himself. The rule is the same in respect to pleading mitigating circumstances, since only such as are pleaded can be proved ; Ball v. Eve. P. P. Co., 38 Hun, 11 ; Fnoscv. Com. Agency, 40 id. 508 ; Brad- ner v. Faulkner, 93 N. Y. 515. In McKane v. Brook- COMPLAINT. 33 lyn Citizen, 53 Hun, 132, and Haihorn v. Congress Spring Co., 44 id. 608, it is held, that an answer of justification must specify the facts tending to show the truth of the charge, and that it must be as broad as the charge which it seeks to justify ; Mattice v. Wilcox, 36 N. Y. State Kep. 914. General denial — proof — new matter. A general de- nial allowed by section 500, subd. 2, of the New York Code of Civil Procedure permits a defendant to dis- prove any thing the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter ; Wemple v. McManus, 39 N. Y. State Kep. 141. When new matter cannot toe proved. A defendant cannot give evidence of any defense of new matter not set up in his answer, even though such defense ap- pears from the evidence offered by plaintiff ; Kelsey v. Western, 2 N. Y. 501 ; Field v. Mayor, 6 id. 179 ; Wright v. Pelafield, 25 id. 266 ; Paige v. Willet, 38 id. 28. What has toeen held to toe new matter. The following defenses are held to be new matter : statute of limi- tations ; Dezengreuel v. Dezengreuel, 24 Hun, 457 ; non-joinder of parties; Phavis v. Gare, 14 1ST. Y. Week. Dig. 387; license; Clifford v. Bam, 81 K Y 52 ; that plaintiff was an alien enemy at the time suit was brought ; JBurnside v. Matthews, 54 N. Y. 78 ; conduct by wife in her action for separation ; Poe v. Poe, 14 Hun, 612; breach of warranty; Poos v. World M. Ins. Co., 64 N. Y. 237; that the policy is a wager policy; Goodwin v f M. M. L. Ins. Co., 73 N. 5 34 THE RULES OF PLEADING. Y. 480 ; false statement in application for insurance ; /Studwett v. G. O. L. Ins. Go., 17 Hun, 602; conver- sion; Wood v. Belden, 54 N. Y. 658; failure of con- sideration; Dubois v. Hermanoe, 56 id. 673; act of God pleaded as an affirmative defense; Hopkins v. Ensign, 11 N. Y. State Rep. 85; former accounting; Derby v. Yale, 13 Hun, 273 ; an agreement in avoid- ance ; St. John v. Skinner, 44 How. Pr. 198 ; also any facts in mitigation of damages ; Willover v. Hill, 72 N. Y. 36. Bat it is held that " an averment of the truth of the matter in an action for libel " is not new mat- ter; Maretzek v. Gauldwell, 19 Abb. Pr. 35. When it is not necessary to aver new matter. It is held that it is not necessary to plead new matter in a case where plaintiff must affirmatively show his case to be within the provisions of a statute ; Selover v. Goe, 63 N. Y. 438; or that leave was obtained to sue on a judgment ; 13 N. Y. Week. Dig. 277. New matter set up ia answer and reply, how traversed. If an answer sets up facts which, if true, destroy plaintiff's cause of action, or if a reply sets up new matter, which, if true, destroys defendant's counter- claim, the plaintiff or the defendant, as the case may be, is not bound to reply, but may meet them on the trial by proofs in rebuttal and avoidance ; Met. L. Ins. Go. v. Meeker, 85 N. Y. 614. This may be done by proof of other matter which he has not pleaded ; Peck v. Winne, 51 N. Y. 641 ; and he is entitled to the benefit of every possible answer to it, the same as if pleaded; for that purpose evidence admissible under the principle of either law or equity, takes the place of pleadings ; Arthur v. Homestead F. Ins. Co., 78 N. COMPLAINT. 35 Y. 462; Argall v. Jacobs, 21 Hun, 114 ; 87 N. Y. 110 ; Briggs v. Bowen, 60 id. 454 ; Austin v. Lyons, 13 N. Y. Week. Dig. 460 ; i^rara v. LJq. L. Ins. Co., 78 N. Y. 568. What facts are admissible under a general denial. Under a general denial of the allegations of a complaint which shows an absolute unconditional agreement, de- fendant may show that the agreement was conditional, and by virtue of the condition has terminated ; Knapp v. Roche, 94 N. Y. 833. See also Danenbaun v. Person, 3 K Y. Supp. 129 ; Taylor v. Ballard, 17 N. Y. State Rep. 598. Defendant may controvert by evidence any and every fact by which the plaintiff seeks to establish his cause of action. He may also show that plaintiff never had a cause of action against him ; Ben- ton v. Hatch, 43 Hun, 142. Title of third person in action of replevin. Where a complaint in replevin contains no averment of a wrongful taking, but simply alleges a wrongful de- tention, a general denial puts in issue both plaintiff's title and the wrongful detention, and under it defend- ant may show title in a stranger, although he does not connect himself with the title ; Seidenbach v. Riley, 111 N. Y. 560; 20 K Y. State Rep. 120. Statute of limitation on conversion of a note. In an action for the conversion of a promissory note, if proof of the fact that an action thereon is barred by the statute of limitations, is admissible at all, it may be proved under a general denial, since the plaintiff must prove the value of the note as the basis of his recovery, and the defendant may prove any facts which affect its value, even to the extent of reducing the recovery to 36 THE RULES OF PLEADING. mere nominal damages ; Thompson v. Halbert, 109 N. Y. 329 ; Weinhauer v. Morrison, 49 Hun, 498 ; and the judgment-roll in a former action on contract against others connected with the alleged conversion, is admissible to show that the property was sold and not converted; lerry v. Munger, 49 Hun, 560. That a chattel mortgage is void. Under a general denial, the defendant may show that a chattel mort- gage under which plaintiff claims title was fraudulent and void; Avery v. Mead, 12 N. Y. State Kep. 749 ; Healy v. Olarh, id. 685. Payment. Payment may be shown under a general denial in some cases. Notice of protest. In an action on a negotiable paper against an indorser, the defendant, if he desires to show that he did not receive notice of protest, must, with his answer, serve an original affidavit, as pre- scribed by section 923 of the Code of Civil Procedure; Gessner v. Smith, 18 N. Y. State Kep. 1013. Crim. con. In an action to recover damages' for alien- ation of the affections of plaintiff's wife, where the complaint alleges that plaintiff and his wife were living happily together, evidence tending to show that they did not live happily together, that the wife had no affection for plaintiff, and that he lost nothing by deprivation of her society, is admissible under a gen- eral denial ; Edwards v. Nichols, 21 N. Y. Week Dig. 238; but justification is not admissible under a general denial ; A. T. Go. v. Smith, 1 N. Y. State Kep. 761 ; Wheeler v. Lawson, 2 id. 791 ; Styles v. Fuller, 101 N. Y. 622. Judgment in another action. A judgment in favor of COMPLAINT. 37 a carrier, in an action by him to recover freight, may be proved as a bar to an action by the owner of the goods shipped, to recover damages for the destruction of the property caused by a failure on the part of the carrier to perform his contract of transportation, under a general denial ; Dunham v. Bower, 77 N. Y. 76. Arbitration and award. An arbitration and award on the claim in suit, may be proved under a general denial; Jones v. McGee, 7 N. Y. Week. Dig. 97. Bad character of plaintiff in slander. It was held in Anon., 8 How. Pr. 434, that in an action of slander the defendant, under a general denial, could show the bad character of plaintiff. Title of real estate in a stranger in action of ejectment. In Raynoi' v. Timerson, 46 Barb. 518, the defendant was allowed to show, under a general denial, that the title of the property was in a stranger. Only part of the goods agreed to be delivered, had been delivered. In Manning v. Winter, 7 Hun, 482, the detendant, under a general denial, was allowed to show that only part of the goods agreed to be de- livered had been delivered. Custom. In Miller v. Ins. Co., 1 Abb. N. C. 470, under a general denial, the defendant was allowed to show a custom known to both parties. Alteration of instrument. In Schwarz v. Oppold, 74 N. Y. 307, the defendant was allowed to show, under a general denial, that the note sued on had been altered since its execution. That work sued for was unskillfully done. In Gates v. Preston, 41 N. Y. 113, the defendant, under a general denial, was allowed to show that the work sued for 38 THE RULES OF PLEADING. was unskillfully done, or was worth less than the amount claimed. Want of consideration may also be shown under a general denial ; Evans v. Williams, 60 Barb. 346. The fact that the action was prematurely commenced may be shown at any stage of the action and without any pleadings ; Mack v. Burt, 5 Hun, 28. Facts that cannot be shown under a general denial. Under a general denial, evidence of a distinct affirma- tive defense is not admissible. The defendant is limited to contradicting the plain- tiff's proofs, and disproving the case made by him ; thus in an action for services, the defendant, under a general denial, may show any circumstance tending to show that he was never indebted at all, or that he owed less than was claimed ; he may prove that he never incurred the debt ; or, that the services, either in whole or in part, were rendered as a gratuity ; or, that the plaintiff had, himself, fixed a less price for them than he claimed to recover ; or, that they were rendered upon the credit of some other person than the defendant; or, that the work was unskillfully done ; or, that he had discharged the plaintiff, or given him notice to stop; Griffin v. B. B. Co., 101 N. Y. 354 ; Knapp v. Roche, 94 id. 329 ; but a denial will not admit evidence of an affirmative defense, except so far as to contradict the matters alleged in the com- plaint ; Dresler v. Hard, 25 N. Y. State Rep. 808. Under a general denial defendant cannot show the assign ment of all of plaintiff's property to an assignee ; Saun ders v. Chamberlain, 13 Hun, 568 ; nor adverse posses sion ; Crowley v. B. Mo. 8. Co., 2 N. Y. Civ. Pro. Rep, 174 ; nor discharge in bankruptcy ; Cornell v. Dakin, COMPLAINT. 39 38 N. Y. 253 ; nor license to enter the premises of an- other ; Haight v. Badgley, 15 Barb. 499 ; nor payment by application of property ; Wehle v. Butler, 43 How. Pr. 5 ; 61 N. Y. 245 ; nor that plaintiff is not the real party in interest ; Savage v. C. Ex. Ins. Co., 36 id. 655 ; nor usury ; Morford v. Davis, 28 id. 481 ; nor that plaintiff was not licensed to sell the liquors for which the note sued on was given; Boswell v. Welfshoefer, 9 N. Y. Week. Dig. 500 ; nor a release and accord ; or that the time for payment has been extended, and has not expired ; Newell v. Salmons, 22 Barb. 647 ; nor presumption of payment from lapse of twenty years ; Miner v. Beehman, 50 N. Y. 337 ; nor that the cause of action had not accrued be- fore the commencement of the action ; Smith v. Holmes, 19 N. Y. 271 ; nor an award for the same cause ; Brazill v. Isham, 12 id. 9 ; nor a claim for recoup- ment ; Crane v. Hardman, 4 E. D. Smith, 448 ; nor that the judgment sued on was vacated ; Carpenter v. Goodwin, 13 Daly, 89 ; neither can a mutual aban- donment of the contract, nor non-performance of con- ditions precedent by plaintiff ; Laraway v. Perkins, 10 N. Y. 371 ; nor in an action upon a writing under seal, can a want of consideration be proved under a gen- eral denial ; Dubois v. Hermance, 56 N. Y. 673. In an action to rescind for fraud, a judgment showing former suit for the recovery of damages for the fraud cannot be shown under a general denial ; Dalrymple v. Hunt, 5 Hun, 111. In an action for the wrongful discharge of plaintiff from the service of defendant, held, that the defend- ant cannot be permitted to show on the trial other 40 THE RULES OF PLEADING. grounds for the discharge, than those set up in the an swer; Reader v. Ibert, 39 N. Y. State Rep. 121. In short any defense founded on new matter; Weaver v. Borden, 49 N. Y. 286; or which confesses or avoids the cause of action, cannot be shown under a general denial; McKyring v. Bull, 16 id. 297. Admissions by not denying. Where a separate de- fense in an answer makes no denial of any of the alle- gations of the complaint, such complaint stands ad- mitted upon demurrer to such defense, although there are denials in other portions of the answer ; Valentine v. Bunt, 22 N. Y State Eep. 847 ; 51 Hun, 544. In general. Where the answer of a defendant does not deny the allegations of the complaint, but sets up new matter in avoidance thereof, if he fails to prove his defense the averments of the complaint stand ad- mitted without proof; Conner v. Keese, 105 N. Y. 643. But a failure to deny an allegation in the complaint is not necessarily such an admission of the cause of ac- tion, that a judgment contrary to the admission is erroneous, if affirmative matter of defense is stated ; Newell v. Doty, 33 N. Y. 83. Of implied matter. A contract set forth in a com- plaint, not being denied by the answer, must be deemed admitted, and it must also be deemed to be ad- mitted that the contract was one binding on the par- ties to it ; Wiltsie v. Village, etc., 4 N. Y. State Rep. 814 ; Hooper v. Beeoher, id. 473. By plea of tender. An averment of tender admits the cause of action, stated in the complaint, to the amount tendered ; the defendant is bound by the aver- ment, and the plaintiff or the court may accept it as COMPLAINT. 41 an admission establishing the fact that a tender was made; Eaton v. Wells, 82 K Y. 576. Effect of an express admission in a pleading. What- ever Las been admitted in a pleading cannot be con- tradicted by the party so admitting, in a subsequent pleading, on the trial, or in the verdict; Ballou v. Parsons, 11 Hun, 602 ; Paige v. Willet, 38 K Y. 28 ; Crosby v. Leary, 6 Bosw. 312. But when a party re- lies on the confession of his adversary, the whole mat- ter confessed must be taken together ; Gildersleeve v. Landon, 73 K Y. 609. Non-joinder of parties. Defendant employed plain- tiff to procure a loan on some property and agreed to pay him a certain commission. On the trial of an ac- tion, brought to recover the money, the defendant offered to prove that the plaintiff was to divide the commission with three other persons. Held, that un- der section 499 of the New York Code of Civil Pro- cedure, the failure to plead the non-joinder of the other three was fatal to the offer ; Wemple v. McManus, 39 'N. Y. State Eep. 141. BILL OF PARTICULARS. Account, when party entitled to. A party is entitled to a copy of his adversary's account as a matter of right ; N. Y. Code, sec. 531 ; Ward v. Littlejohn, 17 N. Y. Civ. Pro. Kep. 1 78 ; Kelsey v. Sargent, 100 N. Y. 602; Liscomb v. Agate, 51 Hun, 288. Discretionary to grant bill of particulars, when. A party is not entitled, of course, to a bill of particulars. It can be obtained only by order ; D wight v. Ger. L. Ins. Co., 84 N. Y. 493. 6 42 THE RULES OF PLEADING. In what actions allowed. A bill of particulars is ap- propriate to all description of actions, where the cir- cumstances are such that justice demands that a party should be apprised of the matter of which he is to be put on trial, with greater particularity than is required by the rules of pleading; Tilton v. Beecher, 59 N. Y. 176 ; Gross v. Clark, 87 id. 272. Office and effect of. The object and office of a bill of particulars is to amplify a pleading and indicate spe- cifically the claim set up, while its effect is to restrict the proofs and limit the demand. Its entire scope and nature is to furnish information to an opponent, and to the court, of the specific proposition for which the party contends ; Higenbotamv. Green, 25 Hun, 214. Defendant. The defendant may be compelled to fur- nish a bill of particulars of the matters alleged in his answer; Dioight v. Ger, L. Ins. Co,, 84 N. Y. 493. How obtained. A bill of particulars is obtained upon a motion to the court upon affidavits, etc. Affidavits must show what- The affidavit to move for a bill of particulars in tort, must be to the effect that the party does not know and cannot form an opinion as to the matters to which he is charged, that the charge is so vague that he does not know what he is charged with; Orvis v. Dana, 1 Abb. Pr. 268. But other averments have been held sufficient. By whom affidavit must he made. The affidavit should be made by the parties themselves and not by their attorney; Hoeninghaus v. Chaleyer, 22 N. Y. State Kep. 528. But see Ward v. Littlejohn, 17 N. Y. Civ. Pro. Kep. 178. In what cases ordered. A bill of particulars was or- COMPLAINT. 43 dered in an action for crim. con.; Tiltcm v. Beecher, 59 N. Y. 176 ; and in an action on a policy of insurance for a statement of the articles destroyed ; Oochroff v. Am. Ins. Co., 9 Bosw. 681 ; and in an action for slander, where defendant set up matters in justifi- cation, he was ordered to give a bill of particulars ; Daniel v. Daniel, 2 N. Y. Civ. Pro. Rep. 238 ; and the plaintiff was ordered to give the times and places where the slanderous words were spoken ; McCarron v. Sire, 14 N. Y. Civ. Pro. Rep. 252 ; Turner v. Beavan, 23 Abb. N. C. 432 ; Jones v. Piatt, 60 How. Pr. 277 ; Gardinier v. Knox, 15 N. Y. Week. Dig. 222 ; for fraud of a trustee in misappropriating funds ; Fried- berg v. Bates, 24i Hun, 375 ; and for procuring money on false vouchers ; Mayor v. Marrener, 49 How. Pr. 36 ; in an action for conversion ; Robinson v. Comer, 13 Hun, 291 ; by a broker for services, etc. ; Miller v. Kent, 23 Hun, 657 ; for slander of title ; Childs v. Tattle, 48 id. 228 ; in an action for injuries received from the fright of plaintiff's horse by the blowing of a whistle on defendant's locomotive ; Kerch v. B., W. & O. B. B. Co., 14 N. Y State Rep. 446. Plaintiff is entitled to a bill of particulars of acts alleged in the answer to have been done by himself in a case where he utterly denies the averments, and pleads ignorance of the nature of the defendant's claim ; Bice v. Rocke- feller, 13 K Y. Civ. Pro. Rep. 303 ; Gurnard v. Franck- lyn, 47 Hun, 526. In an action for work, where the defendant set up that some of the work was done im- properly, carelessly, etc., they should give a bill of par- ticulars of the particular classes of work and their location to which such defense applies ; Cunningham 44 THE RULES OF PLEADING. v. M.S.&F. G. R. R. Co., 20 N. Y. State Eep. 698 ; Idscomb v. Agate, 21 id. 303 ; Canard v. FrancMyn, 111 N. Y. 511; in an action for penalty; Wray v. iV; 7. £ &H.R.R. R. Co., 4 N. Y. Supp. 355 ; in an action for negligence; Kearns v. C. I. & B.Co.,Vl N. Y. State Rep. 692 ; in an action to abate a nui- sance; Cheeseboro v. Kimberly, 6 N. Y. Supp. 623; in an action by a tenant against His landlord for breach of a covenant to furnish, steam heat ; Russell v. Giblin, 8 N. Y. State Rep. 336. In an action for a libel where the complaint contains averments that plaintiff has lost money, sales and profits by reason of said libel, the plaintiff was ordered to give a bill of particulars showing specifically all such sales and prof- its, with names and places of business of those whose custom has been lost, and the dates and amounts of any transaction the benefit of which plaintiff has lost through the alleged libel; A. M. F. Co. v. .B. F H. Co., 18 Abb. N. C. 70 ; Franz v. Bun, 8 N. Y. Civ. Pro. Rep. 403. But see Newell v. Butler, 38 Hun, 104. Defendant in an action for libel, pleading a justifica- tion, should be required, in a proper case, to furnish a bill of particulars ; Ball v. Eve. Post P. Co., 38 Hun, 11. In Bempewolf v. Hills, 53 N. Y. Supr. Ct. 1 05, the court say : " The only proper office of a bill of particu- lars, is to give information of the specific proposition for which the plaintiff contends, in respect to any mate- rial and issuable fact in the case, but not the evidence. It is not the office of a bill of particulars to apprise the defendant of the nature of the parties' proof, or of the names of his witnesses." A bill of particulars was ordered in an action for COMPLAINT. 45 damages for injuries sustained by plaintiff by reason of the bad quality of oil purchased of defendant ; Kraft v. Dingee, 38 Hun, 345 ; Kelsey v. Sargent, 100 N. Y. 602 ; H. S. Mfg. Co. v. Eeinoehl, 40 Hun, 47 ; Wells v. Van Alien, 39 id. 315. Contents of affidavit. The affidavit should be made by the party, and in an action for a tort the defendant seeking a bill of particulars should aver, that he was not guilty of the offenses charged in the complaint ; and that he has no knowledge or information of the particular fact or facts upon which the plaintiff relies to sustain the charges, or as to which his proof will be directed; Gridley v. Gridley , 7 N. Y. Civ. Pro. Kep. 215. WHEN A BILL OF PARTICULARS WILL NOT BE ORDERED. In general. A bill of particulars will not be ordered when the information sought for lies peculiarly within the knowledge of the party seeking it ; Fink v. Jetter, 38 Hun, 163 ; Passavant v. Sickles, 14 N. Y. Civ. Pro. Rep. 57. Where the answer in an action on contract is in effect a denial of plaintiff's performance, it is not proper to compel him to furnish a bill of particulars as to the respect in which he claims that the contract was not performed; Goddard v. P. M. Co., 22 N. Y. State E,ep. 540 ; nor where the circumstances are fairly described in the pleadings ; Bangs v. Ocean Nat. Bh, 53 How. 61 ; Higenbotam v. Green, 25 Hun, 214 ; Card- well v. Car dwell, 12 id. 92 ; Ives v. Shaw, 31 How. Pr. 54. How matters should lt>e stated. A bill of particulars, should give the date, amount, and general character of 46 THE RULES OF PLEADING. each item, should state the suras claimed, when and how they arose, and the items of the demand ; Kellogg v. Paine, 8 How. Pr. 329 ; Mo ran v. Morrissey, 28 id. 100; Jones v. Piatt, 60 id. 277. Effect of the bill. A bill of particulars has the effect to restrict the proofs and limit the recovery to the matters set forth in it. It is regarded as an amplifi- cation of the pleading to which it relates, as if annexed thereto, and it is to be construed as forming a part of it; Melvin v. Wood, 3 Keyes, 533 ; Bowman v. Pari, 3 Duer, 691. Under a bill specifying a sale as on or about Oct. 13, 1824, one on Oct. 25 may be shown ; Duncan v. Pay, 19 Weud. 530. Disobedience, how punished. If, after demand, a party refuses to furnish a copy of the " account " alleged in his pleadings, he may be precluded upon the trial from giving evidence of such account. If he refuses to obey an order of the court requiring him to furnish a bill of particulars of his claim, the court may, as a penalty, stay his proceedings until he complies, or it may, in advance, order that his proofs be excluded, or it may strike out his pleadings; Gross v. Clark, 87 1ST. Y. 272 ; Bwight v. Germ. L. Ins. Co., 84 id. 493. What not an excuse for a bill of particulars. It is the duty of a party on demand to serve the best bill of particulars possible, and if the same is not satisfactory, a motion may be made to compel the exhibition of another or farther bill. The provisions of the Code cannot be defeated by a mere allegation on the motion to compel the rendering of some bill that none can be made out ; Schwartz v. Green, 38 N. Y. State Rep. 569. COMPLAINT. 47 COMPLAINT. Definition. A complaint is the statement, in a logi- cal and legal form, of the facts which constitute the plaintiff's cause of action; it is the formal mode of alleging, on the record, that which would be for the support of a party in evidence. Formal commencement. The pleader is at liberty to open the statement of the complaint, in such language as he considers most appropriate. The phrase " the plaintiff complains and alleges" is often used as an introduction to the statement of a complaint. Matters of inducement. In addition to the formal com- mencement of a complaint, it may be necessary to pre- fix to the statements of facts which constitute the cause of action, one or more explanatory sentences. Matter thus brought forward is termed matter of in- ducement. When two or more causes of action are set forth in the same pleading, this matter of induce- ment may be pertinent to one or all of them. In the latter case the general averments, which form the mat- ter of inducement, will be construed as forming a part of each claim or defense to which it is applicable; Sinclair v. Fitch, 3 E. D. Smith, 677. What to contain. Section 481 of the New York Code of Civil Procedure provides that the complaint must contain : (1) The title of the action, specifying the name of the court, the name of the county, and the names of all the parties to the action, plaintiff and de- fendant ; (2) A plain and concise statement of the facts constituting each cause of action ; (3) A demand of judgment. 48 THE RULES OF PLEADING. Names of parties. If defendant is known by two names he may be sued by either ; Eagleson v. Son, 5 Rob. 640 ; or by that by which he is generally known, though not his real name ; Cooper v. Burr, 45 Barb. 9. " Junior " is no part of the name. Neither is a middle letter between the christian and the surname ; the law knows only one christian name ; People v. Cook, 14 Barb. 259 ; aff'd, 8 K Y. 67. What causes of action may be joined. Section 484 of the Code provides that the plaintiff may unite in the same complaint as many causes of action as he may have, provided they come within some one of the sub- divisions of said section, are separately stated and numbered ; and each cause of action is complete in it- self. Causes of action named in one subdivision can- not be joined with those named in another subdivision ; Krower v. Reynolds, 99 N. Y. 245 ; Grimshaw v. Wood/all, 40 N. Y. State Rep. 299. Several statements of a single cause of action proper. A complaint does not set up separable causes of action, within the meaning of section 483 of the New York Code of Civil Procedure, requiring such causes of action to be separated ; where the plaintiff sets up separate grounds upon which he is entitled to recover the same amount, and two distinct theories on which defendant is liable for identically the same sum of money ; Richards v. Kingsley, 12 K Y. State Rep. 125 ; Scheu v. M Y„ L. E. & W. R. R. Co., id. 99. A complaint is not to be deemed as uniting several causes of action because it sets forth several grounds relative to the same transac- tion ; Kelley v. Gould, 2 N. Y. Supp. 600 ; Bateman v. F. S. St. &C.R.R. Co., 5 id. 13 ; M. M., etav. Thai- COMPLAINT. 49 heimer, 23 N. Y. Y/eek. Dig. 116 ; Gilbert v. Pritchard, 41 Hun, 46 ; Blank v. Hartshorn, 37 id. 101 ; Pittsfield Nat. Bank v. Tatter, 38 N. Y State Sep. 895. Single causes of action, in equity cases. In an equit- able cause of action against several parties, the plaintiff need not state and number separately the causes of action alleged against the various parties defendant ; Leary v. Nulcher, 38 N. Y. State Rep. 774. A com- plaint in an action to set aside an assignment for credit- ors, which alleges that such an assignment is null and void on its face, and, also, that it was made to hinder, delay and defraud the creditors of the assignor, con- tains but one cause of action, and such statements can- not be required to be separately stated and numbered ; Pittsfield Nat. Bank v. Tatter, 38 NY. State Eep. 895. What are facts. The facts required to be set forth in a complaint are physical facts, real traversable facts, not evidence of facts, nor inferences, nor matters of law ; Boyce v. Brown, 7 Barb. 80 ; Lawrence v. Wright, 2 Duer, 673. traversable facts. A pleader must not aver a legal conclusion, as an equivalent for the group of separate facts from which it is inferred. The allegations should be such, and so stated, as to permit a distinct traverse and evolve a distinct issue. Cook v. Warren, 14 N Y. Week. Dig. 50. Implied facts need not be alleged. No delivery need be alleged in terms ; the averment of the making of an instrument in writing is equivalent to alleging a delivery; Prindle v. Oaruthers, 15 1ST. Y. 425 ; Kttel- tas v. Myers, 19 id. 231 ; so the averment of the in- 7 5'0 THE RULES OF PLEADING. dorsement of a negotiable instrument implies a deliv- ery ; Griswold v. Laverty, 12 N. Y. Leg. Obs. 316 ; Bank, etc. v. Edwards, 11 How. Pr. 216. An aver- ment of acceptance implies that it was in writing; Beams v. Gould, 77 K Y. 455 ; Rector v. Clark, 78 id. 21 ; Thayer v. Marsh, 75 id. 340. It is sufficient to state the facts from which, the law infers a liability or implies a promise ; J. & 8. B. B. Co. v. Morley, 23 N. Y. 552 ; Barron v. Sherwood, 17 id. 227. A complaint in an action on a contract embodied in a written instrument not under seal, need only allege the making of the agreement, withoirt specifying the form or stating it to be in writing ; Tuttle v. Hanne- gan, 54 N. Y. 686. Averments that are held to be matters of fact. The fol- lowing are held to be allegations of matters of fact, viz. : " That defendant was not the true owner and was not seized of the premises in fee ; " Woolley v. Newcombe, 87 K Y. 605 ; " that by a foreign law the title to the personal property of the testator vested in plaintiff ; " Berney v. Brexel, 63 How. Pr. 471 ; " that plaintiff is entitled .to possession of lands for the rent of which action is brought;" Sheridan v. Jackson, 72 N. Y. 170; "that a party is of unsound mind," "an in- fant," or " a married woman; " Biggs v. Am. T. Soc, 84 N. Y. 330. Title, what sufficient averment of. It has been held that an averment of ownership in the following form was sufficient, viz. : "That plaintiff is now the bona fide holder and owner;" Holstein v. Bice, 15 How. Pr. 1 ; " that the note for value received lawfully came to the possession of these plaintiffs ; " Lee v. COMPLAINT. 51 Ainslee, 4 Abb. Pr. 463. An allegation that an in- strument was delivered, indorsed, transferred, or as- signed to plaintiff, implies that he is owner and holder : F. & H. Bk. v. Wadsworth, 24 N. Y 547 ; Brown v. Richardson, 20 id. 472 ; Mechanics' Bk.v. Straiton, 36 How. Pr. 190. Conversion — allegation of possession. The allegation in a complaint for conversion that "the defendant wrongfully took into his possession property of which the plaintiff was the owner," is in substantial con- formity with the requirement of good pleading that there must be an allegation of possession in the plain- tiff ; Kerner v. Boardman, 39 N. Y State Kep. 61. PERFORMANCE, TENDER, EXCUSES FOR NON-PERFORMANCE. In general. Section 533 of the New York Code of Civil Procedure provides that, in pleading the per- formance of a condition precedent in a contract, it is sufficient to state, generally, that he,, or the person he represents, duly performed all the conditions on his part. Averment of performance necessary, when. The plain- tiff must allege performance on his part ; Dunham v. Pettee, 8 N. Y. 508 ; or a good excuse for non-per- formance ; Oakley v. Morton, 11 N. Y. 25. The seller should aver that he was ready and offered to deliver the goods ; Baker v. Higgins, 21 N. Y. 397 ; Cornduell v. Haight, id. 462 ; and a refusal by defendant to pay ; Mills v. Gould, 1 Abb. N. C. 93 ; Thomson v. Gould, 16 Abb. K S. 424. But see Bronson v. Wiman, 8 N. Y. 182 ; Main v. King, 8 Barb. 535. A complaint in an action on contract must allege an 52 THE RULES OF PLEADING. existing contract, and performance by plaintiff of all conditions precedent provided for in the contract, or a tender of performance ; Bogardus v. W. Y. L. Ins. Go., 101 K Y. 328. An averment that the plaintiff " in all respects carried out the agreement on his part " is not good as an averment of performance of conditions pre- cedent under section 533 of the New York Code of Civil Procedure. To take advantage of the provisions of a statute, it is necessary to plead performance sub- stantially in the words of the statute ; L. 8. D" 1 Aries v. Freeman, 53 N. Y. Supr. Ct. 518. It is necessary for the plaintiff to aver that he was ready and willing to fulfill at the time and place appointed. When the covenants are dependent, the purchaser is not bound to make an absolute tender of performance. An offer to perform, conditioned on the defendant's performance, is sufficient ; Hohb v. Montgomery, 20 Johns. 15 ; Bel- linger v. Kitts, 6 Barb. 273; but the averment must be of an offer to perform; Lester v. Jewett, 11 N. Y. 453. What is a sufficient excuse for non-performance. The sickness or death of the party contracting is a legal excuse, in this state; Wolfe v. Howes, 20 N. Y. 197; and so is the fact that complete performance is ren- dered impossible by the act of the law; Heine v. Myers, 61 N. Y. 171 ; Jones v. Judd, 4 id. 412 ; and a recovery may be had for the part actually performed. Defendant's refusal to perform before time for perform- ance. Where the defendant refuses to perform, unless the refusal has been acted upon, it must be shown that it was persisted in down to the time of performance, or the party has rendered himself unable to perform ; COMPLAINT. 53 Gray v. Green, 9 Hun, 334 ; Wetmore v. Jaffray, id. 140. An averment that defendant has abandoned and refused to perform a contract is an insufficient allega- tion of a breach to sustain an action commenced before the contract time for performance has expired ; Put- nam v. Griffin, 11 N. Y. Week. Dig. 46. Quantum meruit, complaint in. One who has fully- performed a special contract for work, etc., may declare for the value of the work, and at the trial refer to the contract to determine the value ; Higgins v. N~. & F. R. JR.. Co., 66 N. Y. 604; excuses for non-performance must be pleaded unless the suit is on a quantum meruit ; Wolfe v. Howes, 20 N. Y. 197 ; Hosley v. Black, 28 id. 438 ; Clark v. Crandall, 27 Barb. 73. What sufficient averment of acts. The following alle- gations have been held a sufficient averment of perform- ance : That the meeting was duly convened ; People, ex rel. Hawes, v. Walker, 23 Barb. 304 ; that the note was duly protested at maturity ; Woodbury v. Sack- rider, 2 Abb. Pr. 402 ; that an execution was duly issued; French v. Willett, 10 Abb. Pr. 99 ; that a cor- poration was duly organized ; Lorillard v. Clyde, 86 1ST. Y. 381 ; Manley v. Bassigna, 13 Hun, 288 ; that a contract was duly assigned; Horner v. Wood, 23 N. Y. 350. A demand against defendant as executor or adminis- trator and against him individually. Section 1815 of the New York Code of Civil Procedure provides, that " an action may be brought against an executor or ad- ministrator personally and also in his representative capacity. 1. Where the complaint sets forth a cause of action against him in both capacities, or states facts 54 THE RULES OF PLEADING. which render it uncertain in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the de- fendant, in different capacities, all of which grow out of the same transaction or transactions connected with the same subject of action, and do not require different places or modes of trial, and are not inconsistent with each other." CAUSES OF ACTION THAT CANNOT BE JOINED. Causes of action for breach of duty as trustee and upon an individual bond. A cause of action for a breach of duty as trustee, and one on a bond given by the de- fendant individually, cannot be joined; French v. Salter, 17 Hun, 546. And except the cases come directly within the provisions of section 1815 of the New York Code of Civil Procedure, claims against a defendant as executor or administrator cannot be joined with claims against him individually ; Ma- Mahon v. Allen, 12 How. Pr. 39. The claims allowed to be joined by section 1815 of the New York Code of Civil Procedure are only those growing out of the business of the estate which the defendant represents. Individual claims and those which accrued to a deceased whom plaintiff represents. Claims which accrued to plaintiff personally cannot be united with those which accrued to a deceased person whom he represents ; Hall v. Fisher, 20 Barb. 441 ; Lucas v. N. Y. C. R. R. Co., 21 id. 245. Two persons suing in same action for same property. The claims of two persons, each claiming the whole of a piece of land by title hostile to each other, cannot be joined ; Hubbell v. Lerch, 58 N. Y. 237. COMPLAINT. 55 Action for divorce and separation. An action for di- vorce and an action for separation cannot be joined ; Zorn v. Zorn, 38 Hun, 67. Where all defendants are not affected by all the causes. In an action at law, where two causes of action on contract are joined in the same action, a demurrer to the complaint, upon the ground that all the defend- ants are not affected' by all the causes, may be made by a defendant who is affected by both causes of ac- tion, since the objection is to misjoinder of causes of action, and not to misjoinder of parties; Nichols v. Dreiv, 94 N. Y. 22. A complaint averring a complete cause of action against one defendant, and another complete cause of action against the same defendant and the defendant pleaded with him, is bad ; Praeht v. Bitter, 48 K Y. Supr. 509. Mingling of causes of action. If the complaint con- tains several causes of action, and they are improperly united, the omission to state the causes of action in different counts, properly numbered, does not deprive the defendant of the right to demur thereto ; Goldberg v. Uiley, 60 K Y. 427 ; Wilds v. Suydam, 64 id. 173. But see Selye v. Zimmer, 40 N. Y. State Kep. 604. Miscellaneous causes of action that cannot he joined. A cause of action arising out of a fraud by one in an individual capacity cannot be joined with one against two other defendants as assignee of a third; Van Liew v. Johnson, 6 N. Y. S. C. (T. & C.) 648 ; nor can a cause of action for damages against an individual, with one for equitable relief against a corporation ; House v. Cooper, 16 How. Pr. 292. Causes of action on different contracts cannot be joined unless all par- 56 ' THE RULES OF PLEADING. ties are affected by each; Nichols v. Drew, 19 Hun, 490 ; neither can the plaintiff join the makers and guarantors of a note in the same action ; Barton v. Spies, 5 Hun, 60 ; nor defendants who sell liquors at different times ; Jackson v. Brookins, id. 530 ; nor a cause of action against a stockholder for failure to file certificate of payment of capital stock, and one against him for the same debt as trustee, for failure to file an annual report ; Wiles v. Suydam, 64 N. Y. 173 ; Bon- nell v. Griswold, 68 id. 294 ; nor one against trustees for assets and one for accounting ; Petrie v. Petrie, 7 Lans. 90 ; nor to set aside a conveyance by adminis- tratrix, and for accounting, etc. ; Silsbee v. Smith, 41 How. Pr. 418 ; nor for ejectment against two and for rent against one ; Tompkins v. White, 8 id. 520 ; nor for possession of land, and for damages for not using the same as required by the lease ; Smith v. Hallock, id. 73 ; nor creditor's suit and partition ; Dewey v. Ward, 12 id. 419 ; nor trespass and ejectment; Hulce v. Thompson, 9 How. Pr. 113 ; nor on contract, and for entering premises and removing property ; Keep v. Kaufman, 56 N. Y. 332 ; nor for contract and con- version ; McDonald v. Kountze, 58 How. Pr. 152 ; nor for conversion, and for re-delivery ; Maxwell v. Farnan, 7 id. 236 ; nor for conversion and for money received ; Cobb v. Dows, 9 Barb. 230 ; nor for conversion and for an accounting ; Thompson v. St. N Nat. Bk., 61 How. Pr. 163. STATING CONCLUSIONS. What are statements of conclusions. An allegation that a person " being insane " does an act, cannot be COMPLAINT. 57 considered as an allegation as to the condition of that person, or as presenting an issuable fact or ground for relief; Valentine v. Zant, 115 N. Y. 496 ; 26 N. Y. State Rep. 254 ; R R. E. Z. Co. v. Grant, 30 id. 793. A statement in a complaint that the defendant is a domestic corporation, is a mere conclusion of law. Walsh v. Trustees, etc., 96 N. Y. 427. An allegation, in a complaint in an action to vacate an assessment, that the expense of the improvement " has been increased $15,000 by reason of the illegal action, frauds and ir- regularities of the officers, " etc., of defendant, no action being pointed out, no frauds described or averred, and no irregularities specified, states a mere conclusion, and is insufficient ; Knapp v. City of B., 97 N. Y. 520. An answer in replevin, alleging that the horses in suit were trespassing upon defendant's premises con- trary to the provisions of the statute, alleges a mere conclusion of law ; Cropsey v. Perry, 23 N. Y. Week. Dig. 16-2. Legal and equitable causes united. A complaint may embrace legal and equitable causes of action, some in- volving trial by jury and others by the court ; Scheu v. N.Y.,Z.KSW. R. R. Co., 12 N. Y. State Rep. 99; but the mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury. Courts of equity give judgment for money only, where that is all the relief needed, and if facts are stated in a complaint that show that it is of an equitable nature, and that the cause of action is simply equitable, a case is not made for a jury trial ; Bell v. Merrifield, 109 N. Y. 202 ; Murtha v. Cut-ley, 58 THE RULES OF PLEADING. 90 id. 372. But see The Bowery Bk v. Martin, 40 N. Y. State Rep. 646. Statutes, how pleaded. Public statutes need not be recited or referred to in a pleading ; McHarg v. East- man, 35 Plow. Pr. 205 ; but in statute actions, the com- plaint must show that every requisite to the cause of action exists ; Austin v. Goodrich, 49 Ni Y. 266 ; and when the statute giving a cause of action prescribes what plaintiff shall state in his complaint, and requires a reference to be made to the statute, the requirements must be complied with, or plaintiff cannot recover; Schrceppel v. Corning, 2 N. Y. 132. When a statute declares an act unlawful, and makes an exception in the enacting clause, and not in the proviso, the exception must be negatived; F. B. Church v. Ut. & jS. B. R. Co., 6 Barb. 313 ; Washburn v. Franlclyn, 28 id. 27. But the complaint need not negative a proviso in the section giving a penalty, which furnishes mere matter of excuse ; Hart v. Cleis, 8 Johns. 41. Where an action is brought to test the constitutionality of a statute, on the ground that it was not passed by the legal number of votes, the com- plaint must allege those facts; Pumpelly v. Village, etc., 45 How. Pr. 219. In other cases it is not neces- sary; Wolfe v. Supervisors, etc., 19 How. Pr. 370. Foreign laws and statutes. Where a cause of action is based on a foreign statute, the substance of the stat- ute must be averred as a fact ; Phinney v. Phinney, 17 How. Pr. 197; Kipp v. McLean, 15 N. Y. Week. Dig. 1 68. In pleading a foreign statute, it is not nec- essary to set forth the statute at lengtb, only the sub- stance of it need be averred. Where a plaintiff claim- COMPLAINT. 59 ing to sue in a representative capacity, conferred by a foreign tribunal, tte facts of the capacity and the man- ner in which it was conferred, must be definitely and specifically pleaded; Be Nobele v. Lee, 61 How. Pr. 272. The law of a foreign state is a fact to be alleged and proved like any other fact. It is not necessary to plead the evidence of the fact, whether such evidence be embodied in the statutes of the foreign state, or in decision of its courts, but the fact that a given propo- sition is the law must be stated, if such fact is essen- tial to a recovery ; Pothchild v. The M. G. W. H. R. Go., 37 N. Y. State Rep. 44. Reformation of contract. To maintain an action to reform an instrument, on account of a mutual mistake, or mistake by one and fraud by another, it must be averred ; Jackson v. Andrews, 59 N. Y. 244 ; Hay v. Star F. Ins. Go., 11 id. 235 ; Albany Go. Sav. Bk. v. Burdick, 87 id. 40. It must be a mistake as to some existing fact, not as to something to occur in the future ; Southwick v. F. Nat. Bk., 84 N". Y. 4-20. But see Paine v. Jones, 75 id. 593 ; Maker v. Hibernia Ins. Go., 67 id. 283 ; Kilmer v. Smith, 77 id. 226 ; Whittemore v. Farrington, 76 id. 452 ; Moran v. Mc- Larty, 75 id. 25; Stettheimer v. Fillip, id. 282; Paine v. Upton, 87 id. 327 ; Humphreys v. Hurtt, 20 Hun, 398. Modified contract. In pleading a modified contract, the complaint should set out the original contract, then the contract as modified, and allege that he has per- formed all the conditions thereof, on his part ; Smith v. Brown, 17 Barb. 431. If the contract provides for 60 THE RULES OF PLEADING. payment when some one has furnished a certificate that the work was finished, the giving of the certificate must be alleged ; Smith v. Briggs, 3 Denio, 73. Action on an assigned claim. If it appears, or is alleged that the cause of action accrued to some person other than plaintiff, the complaint must show how plaintiff became owner, whether by purchase, operation of law, or how otherwise, and the facts should be stated. The complaint must allege the fact of the assignment, but need not state that there was any consideration, nor whether it was in writing or by parol ; Horner v. Wood, 23 N. Y. 350 ; Nelson v. Eaton, 26 id, 410 ; Prindle v. Oaruthers, 15 id. 425. Consideration. A consideration should always be alleged, but where the instrument purports to be for value received, and is set out in the complaint, it is a sufficient allegation of consideration ; Myers v. Hibsher, 47 N. Y. 265 ; Prindle v. Oaruthers, 15 id. 425. A complaint on a note need not aver a consideration ; Underhill v. Phillips, 10 Hun, 591. In an action against a telegraph company for non-delivery of a mes- sage, the complaint must aver some consideration for the defendant's agreement to deliver, as that the prom- ise to deliver was made in consideration of plaintiff's promise to pay ; Millihin v. W. TJ. Tel. Co., 53 N. Y. Supr. Ct. 111. "Where, in an action brought by a re- ceiver in supplementary proceedings, an injunction is asked to restrain the disposition of money on deposit in a bank, it is necessary that the amount of the judg- ment should be stated in the complaint ; Hughen v. MeKemie, 39 N. Y. State Rep. 179. Carrier of chattels. In an action upon the contract COMPLAINT. 61 of a carrier, the complaint should allege a considera- tion; Bristol v. E. & S. B. B. Co., 9 Barb. 158. Request in action for services. When the action is for services the complaint must allege that they were performed at the defendant's request ; Spear v. Down- ing, 22 How. Pr. 30. When and how knowledge must be alleged. In an action for fraud in the sale or the purchase of goods ; Lamb v. Felsey, 54 1ST. Y. 645 ; for falsely representing a person as fit to be trusted ; for keeping mischievous animals ; against the continuator of a private nuisance originated by another, and in divers other actions, knowledge in defendant must be alleged. Instrument for payment of money only. It is pro- vided by section 534 of the Code, that where a cause of action, defense, or counter-claim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, etc. Such instrument may be annexed and referred to as part of the pleading, and where that is done, any facts recited in it are to be considered as alleged in the pleading ; Black v. H. M. L. Ins. Co., 47 Hun, 210 ; Slack v. Heath, 1 Abb. Pr. 331 ; Blake v. Griswold, 68 N. Y. 294 ; Brown v. Chaplain, 66 id. 214. Action by trustees, receivers, assignees, etc. A trustee or agent must aver his trust and capacity to sue, so that issue can be taken thereon ; Freeman v. Fulton F. Ins. Co., 38 Barb. 247 ; Slocum v. Barry, 38 N. Y. 46. In a suit by a receiver, unless the fact of his ap- pointment is stated, plaintiff does not show any right to sue ; Bangs v. Buckenfield, 18 N. Y. 592 ; White v. Joy, 13 id. 83. A general averment that plaintiff was C2 THE RULES OF PLEADING. duly appointed assignee, etc., was held sufficient in Whelock v. Lee, 15 Abb. N. S. 24, and in Manly v. Rassiga, 13 Hun, 288 ; and it was held that an alle- gation that plaintiff was duly appointed at a time and place named is sufficient. But see Duboise v. Cassidy, 73 N. Y. 298. In an action by a foreign receiver, assignee, trustee or executor, the complaint must allege facts showing their right to sue, and set out the law of the state, etc. ; BeNobele v. Lee, 61 How. Pr. 272 ; Pucjh v. Hurtt, 52 id. 22 ; Myers v. Machado, 14 id. 149. In alleging the appointment of an administrator, in an action brought by him, the complaint should show that the letters of administration were issued by a tribunal of the state having authority, under its laws ; Secor v. Pendleton, 13 NY. State Rep. 387; 47 Hun, 281 ; but the objection must be taken by demurrer or answer, or it is waived; Ruht v. Ware, 22 N. Y. State Eep. 423 ; Kilpatrich v. Bean, 19 id. 837. Plaintiff suing Iby guardian. The complaint of an infant by guardian must set forth the appointment of the guardian with certainty as to time, place, and power of appointment in a traversable form, but a de- fect in such allegation is waived by failure to raise the objection by demurrer or answer ; Spuoner v. B., L. & W. B. R. Co., 115 N. Y. 22 ; 23 N. Y. State Rep. 554. And see Koch v. le Trois, 40 id. 561. The word " as." The words '' as administrator of the estate of A. B., deceased, etc.," appearing in the title of the action, cannot be treated as mere descriptio per- sonam; Farrington v. A. L. & F. Co., 9 N. Y. Supp. 433. COMPLAINT. 63 Association — action by or against. Where associa- tions sue or are sued in the name of their president, the allegation must be that the association, not the plaintiff or the defendant, did thus or that ; Lowerre v. Vail, 5 Abb. Pr. 229 ; Dalafdd v. Kinney, 24 Wend. 345. In such action the plaintiff must allege that it consists of seven or more persons ; Columbia Bank v. Jackson, 4 N. Y. Supp. 433 ; but the contrary was held in Van Aernan v. MbOune, 32 Hun, 316. REAL PROPERTY — ACTION IN REGARD TO. Trespass. To maintain trespass upon lands of which he is not in possession, plaintiff must show a valid title, or that the locus in quo is part of premises, to all of which plaintiff claims title under a written instrument which purports to give him title to the whole, and of a por- tion of which he is in the actual possession ; Hdtvards v. Noyes, 65 N. Y. 125. The complaint must allege that the plaintiff was in possession at the time of the trespass, or was put in possession afterward ; Wood v. Lafayette, 68 N. Y. 181. Use and occupation. In an action for use and occu- pation, the complaint must show the relation of land- lord and tenant ; Hall v. Southmayd, 15 Barb. 32 ; Chit v. Planer, 51 N. Y. 647. If the landlord gives the power to occupy and enjoy, an action for use and occupation is maintainable, though there is no actual occupation ; Hall v. W. C. Co., 34 N. Y. 284. To determine claims to real property. Section 1639 of the New York Code of Civil Procedure provides that in an action to determine a claim to real property the plaintiff must set forth facts showing his title, and 64 THE RULES OF PLEADING. whether his estate is in fee, or for life, or for a term of years not less than ten, and whether he holds it as heir, devisee, or purchaser, and state his source of title. He must also allege that he, or he and those from whom he derives title, were in possession for one year next preceding the commencement of the action ; that the defendant unjustly claims an estate or interest or easement therein, or a lien or incumbrance there- upon, in fee, for life, etc., and a description of the property. Ejectment. In Moores v. Lehman, 52 N. Y. Supr. Ct. 283, it was held that where a complaint in an ac- tion of ejectment does not set forth that defendant unlawfully withholds, or that he entered without the consent of the plaintiff, or in anywise wrongfully, or that plaintiff is entitled to the immediate possession of the premises, and does not contain any equivalent aver- ment, it is bad on demurrer ; but in Halsey v. 6erd.es, 17 Abb. N. C. 395, it was held that a complaint alleg- ing that the plaintiff is seized in fee, and that defend- ants are in possession and withhold the same from the plaintiff, is sufficient. CLOUD ON TITLE — ACTION TO REMOVE. Complaint must show necessity for. A complaint in an action for the cancellation and delivery of a con- veyance under which the defendant occupies certain premises, as a cloud upon plaintiff's title, must show why plaintiff could not obtain all the relief to which he was entitled by an action of ejectment, and failing to do this, it is insufficient ; Moores v. Townshend, 102 N. Y. 387. COMPLAINT. 65 When action will lie. It is only when there is an instrument or proceeding which on its face purports to create or convey a title paramount to that of the party seeking relief, or an incumbrance thereon, that an action will lie to set aside such instrument or proceed- ing as a cloud on title , Bockes v. Lansing, 74 N. Y. 437. Invalid lien will not sustain action. An action to set aside a lien cannot be maintained when the lien is in- valid upon its face, or where the invalidity will neces- sarily appear in any proceedings to enforce title under it ; Townshend v. Mayor, etc., 77 K Y. 542. Where the law raises presumption of validity. Where the law raises a presumption of the validity of a conveyance, and its invalidity can only be shown by extrinsic proof, an action to compel its surrender, etc., is maintainable ; JR. P. Co. v. 0' 'Dougherty, 81 N. Y. 474; JRyemonv. Willis, id. 277 ; iSchoerder v. Ghirney, 73 id. 430. An action lies to prevent a cloud on title as well as for removal ; Sanders v. Village, etc., 63 N. Y. 646 ■ N.Y.&H. JR. JR. Go. v. Trustees, etc., 7 Hun, 652. Assessment — action to vacate. A complaint in an action to remove an assessment alleged to be illegal, must aver that the errors do not appear on the face of the record, and that the defect would not necessarily appear in proceedings to enforce the lien ; Boyle v. City of Brooklyn, 71 N. Y. 1. To authorize the court to intervene to remove the lien of an assessment or to set aside a sale, it must appear that the record or conveyance is not void on its face, and that the claimant under it would not 66 THE RULES OF PLEADING. develop the defects rendering it invalid by the proof which he would be obliged to produce in proceedings to enforce his claim ; Strusburgh v. Mayor, 87 N. Y. 452 ; Horn v. Town, etc., 83 id. 100 ; Dederer v. Voor- hics, 81 id. 153 ; T. G. Sem. v. Cramer, 26 Hun, 309 ; N. Y. Laws of 1880, chap. 68, sec. 8 ; Hassen v. City, 65 N. Y. 516 ; Bno v. Mayor, 68 id. 214; Guest v. City, 69 id. 506. Tender — action to redeem. A complaint in an action to redeem should contain an offer to pay what is found due, or a tender of a conceded amount ; Spencer v. Clark, 15 N. Y. State Eep. 949. A bill by a stock- holder to cancel bonds of the corporation, etc., held, fatally defective because it did not contain an offer to restore what the corporation had received thereunder ; Spencer v. Clarh, 15 N. Y. State Rep. 949. In an action for an accounting for the . value of property seized under a chattel mortgage, and bought in by the mortgagees under an alleged legal sale, the complaint must allege tender of the amount due on the mortgage or an offer to pay it on being ascertained and estab- lished : Casserly v. Wither bee, 28 N. Y. Week. Dig. 388. Mechanic's lien — action to foreclose. A complaint in an action to foreclose a mechanic's lien should aver : (1) The filing of notice as prescribed by chapter 342 of the New York Laws of 1885 ; (2) The service of a copy of the notice upon the owner, etc., of the prem- ises ; (3) That the defendants are owners, etc. ; (4) That the work was done or materials furnished in pursuance of a contract and in conformity therewith ; (5) It must describe the premises very minutely. COMPLAINT. 67 The complaint must also allege that the services, etc., were performed at the request of said owner or his agent, or that the owner or some person contracting with him for the work, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services or the furnishing of the materials ; otherwise the com- plaint will be bad ; Rossi v. McKellar, 37 N. Y. State Rep. 503. Nuisance — action for. One who has sustained dam- ages peculiar to himself from a common nuisance has a cause of action against the person erecting or main- taining the nuisance, though a like injury has been sustained, by numerous others ; NY. Code, sees. 1660- 1663; Francis v. Schoelhopf, 53 1ST. Y. 152. Where the action is to abate a nuisance and for damages, the plaintiff is not entitled to jury trial under section 968 of the New York Code of Civil Procedure ; Cogswell y.N. Y.,N.H.& H. B. E. Co., 105 N. Y 319. Under allegations in a complaint against a municipal corporation on account of a discharge of the refuse from a public sewer upon plaintiff's premises, a cause of action against the city as the owner of premises from which a private sewer ran which discharged upon the plaintiff's premises, cannot be proved; Kosmack v. Mayor, etc., 53 Hun, 329. Dower — action by claimant of. Section 1647 of the New York Code of Civil Procedure provides that any person claiming, as owner, an estate in fee, for life or for years in real property, may, after the expiration of four months after the death of claimant's husband, maintain an action against a woman of full age, and 68 THE RULES OF PLEADING. not under any disability, who claims dower in the prop- erty described in the complaint, to compel the deter- mination of her claim. Widow's action of dower. In an action for dower un- der section 1599 of the New York Code of Civil Pro- cedure, in two distinct parcels of land occupied by different persons, the causes of action should be sepa- rately stated and numbered; Peart v. Peart, 18 N. Y. State Rep. 455. Quia timet. The complaint to make out a case, quia timet, must state facts showing wrongs or anticipated mischiefs which should be forestalled and prevented ; Bailey v. Briggs, 56 N. Y. 407 ; Schroeder v. Gurney, 73 id. 430. Purchaser of real property at execution sale, action by. In an action under section 1479 of the New York Code of Civil Procedure, the complaint must allege, that the sale was made for defendant's benefit ; that the plain- tiff purchased the same ; that the proceedings were irregular, or that the judgment under which the execu- tion was issued has been vacated or reversed ; or set aside for irregularity ; or error in fact ; that for said reason the plaintiff has been evicted or a judgment rendered against him for the possession thereof. See Oilman v. Tucker, 40 N. Y. State Sep. 71. Waste, action for. A complaint in an action for waste must set forth : 1. The plaintiff's title. 2. The defendant's term and occupation. 3. A description of the premises. 4. Show in what manner the waste has affected the value of the premises. 5. Demand some of the relief allowed by sections 1655, 1656, 1657 or 1658 of the New York Code of Civil Procedure. COMPLAINT. 69 Will, action to establish. A complaint in an action to establish a will, under section 1861 of the New York Code of Civil Procedure, must allege : 1. The making of a will and the time, place, and circum- stances of such making. 2. That such will is either in another state or country under such circumstances that it cannot be obtained for probate, or that it has been lost or destroyed before it was proved, and re- corded within the state ; or, 3. That it is a will of per- sonal property, made by a person, who resided with- out the state, at the time of the execution thereof, or at the time of his death, and that the will cannot be admitted to probate in the surrogate's court of this state. 4. That the will was in existence at the time of the testator's death, or was fraudulently destroyed in his life-time. Will, action to determine the validity, construction or effect of a testamentary disposition of property under. A complaint under section 1866 of the New York Code, to determine the validity, etc., of a testamentary disposition of real property, must allege all the facts mentioned in said section. Will, construction of. A complaint seeking to ob- tain, a construction of a will, alleging plaintiff to be testator's heir at law and next of kin, reciting the pro- visions of the will, and praying that plaintiff's interest in the estate be ascertained, does not state a cause of action, there being no averment that testator died in- testate as to any of his estate, or that plaintiff has any interest therein, or that there are any disputed questions arising on the will calling on the court for construc- tion ; Rosevelt v. Bosevelt, 22 N. Y. State Rep. 523. TO THE RULES OF PLEADING. The complaint should also allege that there is doubt or disagreement between those standing in the posi- tion of trustees and beneficiaries, or that one claims one view, and the others another; Weed v. Cantwell, 36 Hun, 528 ; Mellen v. Banning, 38 N. Y. State Rep. 115. Accounting in action for legacy. A complaint in an action to recover a legacy which alleges that, in an action to construe the will, it was adjudged that plaintiff was entitled to upward of $10,000; that defendant has since sold the remaining property and paid out large sums to others, but refuses to pay the plaintiff, does not state facts sufficient to constitute a cause of action at law, as it does not allege an accounting, etc.; Ous- ted v. Cvuikshank, 38 N. Y. State Rep. 945. ELECTION OF REMEDIES. What is deemed an election. The commencement of an action, where all the facts are known, is conclusive evidence of an election of remedies ; Oonrow v. Little, 115 N. Y. 387 ; 26 N. Y. State Rep. 527. One who has sued for conversion of stock cannot afterward sue for dividends subsequently declared thereon ; Hughes v. Vt. Cop2>er Co., 72 N. Y. 207 ; Terry v. Munger, 30 N. Y. State Rep. 749. Where plaintiff has sued upon his policy of insurance, in its present form, he cannot in another suit prove a different contract so as to pro- cure a reformation ; 2 Her. Est., sec. 1045; Steinhach v. Relief Ins. Co., 11 1ST. Y. 498 ; Lane v. Beam, 19 Barb. 51; Oushman v. Jeioell, 1 Hun, 525. But see Moller v. Tuscan, 87 N. Y. 166 ; Sparman v. Kein, 83 id. 245. COMPLAINT. 71 Waiver of tort. Where a defendant has carried away personal property, and has not sold or disposed of it, the tort can still be waived, and the plaintiff may pro- ceed upon an implied contract of sale to the wrong-doer himself; Terry v. Hunger, 30 N. Y. State Eep. 746. The fiction of the receipt by defendant of money for the sale of the property converted which "ex aequo et bono," they ought to pay back to plaintiff, and which they impliedly promise to pay back, cannot be indulged in. That which would have been at one time the subject of some doubt has been set at rest by the above decision. If the wrong-doer has not sold the property, but still retains it, the plaintiff has the right to waive the tort and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged as for money had and received by him to the use of the plaintiff, the contract implied, is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. Election — what is not. In those cases where the commencement of an action has been regarded as not an election of remedies, the fact has appeared, that the plaintiff, at the time of its commencement, was not aware of the facts which would have enabled him to elect. Such is the case of Equitable, etc., Co. v. Hersee, 103 N. Y. 25 ; 3 N. Y. State Rep. 100. Election — when final. When it becomes necessary to choose as between inconsistent rights and remedies, the election will be final, and cannot be reconsidered even where no injury has been done by the choice, or would result from setting it aside, and this holds good 72 THE RULES OF PLEADING. even against a stranger to the first action ; Fowler v. Bow. Sav. Bh., 113 N. Y. 450; 23 N. Y. State Rep. 130 ; Terry v. Munger, 30 id. 746. Election — fraud. When the vendee has been guilty of a fraud in the purchase of goods on credit, the vendor may, without waiting until the credit has expired, re- claim the goods, or he may waive the tort and recover the value ; Olafiin v. Taussig, 7 Hun, 223 ; Wigand v. Sichel, 33 How. Pr. 174. SPLITTING UP DEMANDS. Entire demands. An entire, indivisible demand cannot be split up so as to be the basis of two actions. There can be but one recovery for an injury from a single wrong however numerous the items of damage may be, and but one action for a single breach of a contract ; Perry v. Dickerson, 85 N. Y. 345 ; Filer v. N. Y. O. R. R. Go., 49 id. 42 ; Draper v. Stouvenal, 38 id. 219 ; Gustim v. Stoddard, 23 Hun, 99. If a demand is split up, the pendency of the first ection, if pleaded, bars a recovery on the others, and a recovery in either bars the others ; Nathans v. Hope, 77 N. Y. 420 ; Jex v. Jacobs, 19 Hun, 105. A judgment for a part only of an entire and indivisible demand is a bar to a subsequent suit for the rest; O'Beirne v. Lloyd, 43 N. Y. 248. A judgment in an action for a breach of one covenant in an instrument is a bar to an action for a breach of another covenant in the same instru- ment, committed before the first suit was commenced ; Mulford v. Hodges, 10 Hun, 79 ; R. P. D. Church v. Brown, 54 Barb. 491. Separate demands. A party cannot be compelled COMPLAINT. 73 to join, in one action, several distinct causes of action. He may sue on them separately ; Inslee v. Hampton, 8 Hun, 230. The distinction between rights of action whicn are single and entire, and those which are several and dis- tinct, is that the former immediately arises out of one and the same act, or contract, and the other out of dif- ferent acts or contracts. The holder of several past-due promissory notes, against the same parties, may bring separate actions upon each, and a recovery in one does not affect ac- tions for the others. The fact that the notes were given upon settlement of one and the same demand makes no difference; Nathans v. Hope, 77 N. Y. 420. In Millard v. M. K. & T. B. B. Co., 86 N. Y. 441; 20 Hun, 191, the court say : " The rule is for the protection of the debtor, and may be waived, by him. It cannot be perverted into an instrument of fraud or injustice, and where, on the trial of an action, on de- fendant's objection, a portion of the claim is withdrawn, the judgment is no bar to a claim for that portion. LIBEL AND SLANDER. Slander not per se. Where in slander the words al- leged are not slanderous, per se, the complaint must allege the surrounding circumstances from which the fair inference can be drawn, that the words used were spoken and understood in such a way as to presump- tively work an injury ; Havemeyer v. Fuller, 60 How. Pr. 316. Ambiguous words. It is proper to allege of an am- biguous article that it was published with a particular ]0 74 THE RULES OF PLEADING. intent and was so understood by the readers (JRundell v. Butler, 7 Barb. 260), and that defendant meant to be understood by those to whom it was published as charging plaintiff with a crime, etc. Words — how set forth. The precise words published or uttered should be set forth ; Hall v. Voreland, 42 Barb. 543 ; Fainerty v. Barker, 7 N. Y. Leg. Obs. 316. Malice — how averred. An allegation that the words published are a " libel " is a sufficient allegation of falsehood and malice ; Hunt v. Bennett, 19 N. Y. 173. Local meaning of words should be alleged, when. Where by local usage, words have a peculiar meaning, the usage should be averred ; Bias v. Short, 16 How. Pr. 322. Business, profession or special character should be alleged, when. Where the words, spoken or written, are actionable only because spoken of plaintiff in some business, profession or special character, the facts of his being so engaged, or answering to such special character at the time the words were spoken, should be alleged in a traversable form ; Havemeyer v. Ful- ler, 60 How. Pr. 316 ; Carrol v. White, 33 Barb. 615 ; Fleischman v. Bennett, 87 K Y. 231. Names of clients, patients, or customers, must be al- leged, when. When loss of customers, clients, pa- tients, etc., are alleged, their names must be stated in the complaint. Extrinsic facts — alleged, when. Where a publica- tion is not defamatory on its face, and becomes so only by reference to extrinsic facts, the existence of those facts must be alleged in a traversable form ; Caldwell v. Raymond, 2 Abb. Pr. 193; Corrall v. White, 33 COMPLAINT. 75 Barb. 615 ; Pike v. Van Wormer, 5 How. Pr. 171 ; Fry v. Bennett, 5 Sandf. 54. Innuendo — office of. The office of an innuendo is to connect the words published with the persons or facts, and extrinsic circumstances previously named and set forth in the complaint, and to explain their ap- plication thereto. It cannot enlarge the sense of the words, or supply or alter them when they are deficient ; Sanderson v. Caldwell, 45 N. Y. 398 ; Fleischman v. Bennett, 87 id. 231. Pecuniary damages — must Ibe alleged, when. If the words are not actionable per se, plaintiff must allege and prove pecuniary damages, exclusively the conse- quence of the publication ; Woodruff v. Bradstreet, 35 Hun, 16 ; Bell v. Sun, etc., 3 Abb. N C. 157 ; Wallace v. Bennett, 1 id. 478 ; injury to good name and that friends shunned plaintiff is not enough ; Bassell v. Els- more, 48 N. Y. 561 ; neither is mental distress, phy- sical illness, and inability to labor, occasioned by the aspersions; Terwilliger v. Wands, 17 N. Y. 54; Wil- son v. Goit, id. 442. If the special damage was of a loss of customers or of a sale of property, the persons who ceased to be customers or who refused to purchase, must be named; Kendall v. Stone, 5 N. Y. 14. Judicial and legislative proceedings. Section 1907 of the New York Code of Civil Procedure provides that, " an action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a newspaper, for the publication therein of a fair and true report of any judicial, legislative, or other public and official proceeding, without proving special malice. Slander of title. In an action for slander of title, 76 THE RULES OF PLEADING. the plaintiff must allege and prove, that the words were uttered maliciously and followed by a pecuniary damage to plaintiff, and name the person or persons who refused to purchase or make a loan, in conse- quence of the slander; Kendall v. Stone, 5 N. Y. 14; Lendon v. Graham, 1 Duer, 670 ; Childs v. Tutile, 48 Hun, 228. FRAUD AND DECEIT. Fraud, what averments necessary. Where a party seeks to maintain his cause of action or defense on the ground of fraud, he must allege : 1. The facts constitut- ing the fraud; Butler v. Veile, 44 Barb. 166 ; Bailey v. Ryder, 10 N. Y. 363. 2. The manner of the fraud must be so alleged as that issue can be taken on it ; Libby v. Bosekrans, 55 Barb. 202; Cohn v. Gold- man, 76 N. Y. 284. 3. He must allege knowledge and intent ; Meyer v. Amidon, 45 id. 169, 4. That he was influenced by the statements to his damage ; Taylor v. Guest, 58 id. 262. 5. That defendant believed or had reason to believe the representa- tions to be untrue when made, or that they were made with fraudulent intent; Stitt v. Little, 63 id. 427. Where the vendor of a chattel is guilty of a fraudu- lent concealment of material facts in relation to the sale, to the injury of the vendee, the vendee has an action for his damage. It is not enough that the ven- dor tells the truth, so far as he goes he must tell the whole truth ; Getty v. Devlin, 70 N. Y. 504 ; 9 Hun, 63 ; Clark v. Bamer, 2 Lans. 67. In all actions for wrongful acts, facts must be stated showing the acts complained of to be wrongful ; COMPLAINT. 77 Schroeder v. Becker, 22 N. Y. Week. Dig. 261 ; Ault- rnan v. Backer, 38 1ST. Y. State Rep. 724. Silence on sale as to financial condition sometimes amounts to fraud ; Devoe v. Brandt, 53 N. Y. 462 ; Place v. Minder,- 65 id. 89. In Wood v. Amory, 105 N. Y. 278 ; Reed v. £ C. G. Co., 47 Hun, 410, and Chyle v. A7Suy- dam, 64 N. Y. 173; Myers v. Van Gotten, 28 Barb. 230. The design of a demurrer for an improper joinder is to compel plaintiff to elect upon which of two or more causes of action improperly joined, he will pro- ceed ; Sullivan v. N. Y., N. H. & H. R. R. Go., 1 N. Y. Civ. Pro. Eep. 285. That the complaint or counter-claim does not state facts sufficient to constitute a cause of action. Subdi- vision 8 of section 488 of the New York Code of Civil Procedure provides, for a demurrer, where the com- plaint does not state a cause of action upon which, if uncontradicted, the plaintiff has a right to recover; People v. Mayor, etc., 17 How. Pr. 56. As when it does not show any connection between the facts alleged and the party demurring ; Webb v. Vanderbilt, 39 N. Y. Supr. Ct. 4. When a complaint does not state a cause of action and fails to demand any judgment against one of several defendants, the proper remedy of such defend- ant is to interpose a demurrer to the complaint and not DEMURRER. 133 a motion to strike out ; The People v. N. Y. City U. R. R. Co., 39 N. Y. State Rep. 425. Demurrer to separate counts. A defendant may de- mur to one count in a complaint and answer another ; N. Y. Code Civ. Pro., sec. 492 ; Murphy v. Allerton, 7 Hun, 650. Where complaint states a cause of action and a defense. Where a complaint states a cause of action, also facts constituting a defense, the whole must be considered together on a demurrer to the complaint as not stat- ing a cause of action; Calvo v. Davies, 73 N. Y. 211. When it appears that a statute forbids the form adopted by plaintiff, the complaint is demurrable ; Eno v. Mayer; 7 Hun, 320. And such objection may be interposed at any time. So of actions brought by foreign executors, administrators, trastees, assignees, etc.; Mosselman v. Caen, 4 N. Y. S. C. (T. & C.) 171; and to actions by an administrator to recover intes- tate's land; Cashman v. Wood, 6 Hun, 520; and by tenants in common against each other for use of com- mon premises, etc.; De Witt v. E. JV. M. Co., 66 N. Y. 459 ; and where it appears in a complaint in an equity action that there is a remedy at law ; Fielding v. Lucas, 60 How. Pr. 134; Kip v. JV. Y., etc., R. R. Co., 67 N. Y. 227. Construction of complaint under demurrer. To make a complaint demurrable under subdivision 8 of section 488 of the New York Code of Civil Procedure, it must present defects so substantial in their nature and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever ; OLery v. 134 THE RULES OF PLEADING. Broivn, 51 How. Pr. 92 ; Machey v. Auer, 8 Hun, 180. If any count is good, the complaint is not demurrable; Boyle v. Brooklyn, 71 N. Y. 1 ; Lynch v. Levy, 11 Hun, 145; F.&M. Nat. Bk, etc. v. Rogers, 17 N. Y. State Rep. 381. All of the averments of a count must be taken together as a whole- In determining upon a demurrer to a com- plaint, whether it states a cause of action, all its aver- ments must be taken together as a whole ; Calvo v. Bavies, 73 IS". Y. 211. If several causes of action, against several defendants, be set forth in different counts, the complaint is demurrable ; Harris v. Elr dridge, 5 Abb. N. C. 278. How a demurrer to a count must be determined. A defective count cannot be helped on demurrer by an averment in another count, which in no way refers to the former one ; Mfg. Co. v. Beecher, 55 How. Pr. 193. Where a general demurrer is interposed to a complaint containing two counts, if in either count a sufficient cause of action is alleged, the demurrer will be over- ruled; Plwznix Bh. v. Bonnell, 40 N. Y. 410. When party in partition cannot demur. A defendant in a partition action cannot sustain a demurrer to a complaint on the ground that it does not allege any cause of action against him, where the complaint avers that certain defendants, naming them, "claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff," etc. ; Townshend v. Bogert, 37 N. Y. State Eep. 488. DEMURRER TO ANSWER. In general. When a counter-claim or a defense con- DEMURRER. 135 sisting of new matter contained in an answer is insuffi- cient in law upon the face thereof, a demurrer is allowed ; N. Y. Code Civ. Pro., sec. 494, etc. It is only where new matter is set up in the answer, that a demurrer is allowed; Lund v. Seaman? a Sav. Bk., 23 How. Pr. 258. An objection as to whether a counter-claim is lawfully presented must be raised by demu/rrer, or by an objec- tion at the trial ; Westervelt v. Achley, 62 N. Y. 505. Complaint may Ibe attacked on demurrer to answer. An answer, however defective it may be, is not subject to demurrer if the pleading it assumes to answer is radically insufficient to call for any answer whatever ; Allen v. Malcolm, 12 Abb. N. C. 335. On a demurrer to an answer, the sufficiency of the complaint may be considered to show that the court has no jurisdiction of the action, or that the complaint does not state facts sufficient to constitute a cause of action ; People v. Booth, 32 N. Y. 397 ; Williams v. Williams, 33 N. Y. State Kep. 9. An answer that sets up matters that should hare been taken by demurrer is bad. When an answer raises an objection that should have been taken by demurrer, it is demurrable ; Petree v. Lansing, 66 Barb. 357. Supplemental pleading. There is no provision of the Code that authorizes a demurrer to a supplemental pleading ; Myers v. Met. El. R. B. Co., 34 N. Y. State Eep. 293. Form of demurrer. A demurrer " to each and every defense " contained in an answer is the same in effect as if plaintiff had demurred separately to each defense ; Kcnnagh v. McOolgan, 21 N. Y. State Kep. 326. 136 THE RULES OF PLEADING. Unless a defense is complete in itself it is demurrable. Each defense must be complete in itself or it is demur- rable; Mfg. Co. v. Beecher, 55 How. Pr. 183. Partial defense. Unless a partial defense states that it is set up as a partial defense, it is demurrable ; Thomson v. Halbert, 109 N. Y. 329 ; Mattice v. Wil- cox, 36 N. Y. State Rep. 914. Effect of demurrer to one of several defenses. When a demurrer to several defenses is sustained, and the defendant does not amend, it is excluded from consid- eration; RyariY. New Yorh, 10 J. & Sp. 202; and the judgment on the demurrer must be, that the plain- tiff recover unless the defendant succeeds on the other issues ; Murphy v. Allerton, 7 Hun, 650. Counter-claim, when demurrable. A counter-claim is demurrable on the same grounds as a complaint, viz. : (1) that the court has no jurisdiction of the subject thereof, as where it consists of a claim to damages to real estate situate in another state ; (2) that the de- fendant has no legal capacity to recover upon the same ; (3) that there is another action pending for same cause between the same parties ; (4) that the counter-claim does not state facts sufficient to consti- tute a cause of action ; (5) that the counter-claim is not of the character specified in section 501 of the New York Code of Civil Procedure ; Code, sec. 495 ; Chambovet v. Gagney, 41 How. Pr. 125. Demurrer to reply. The defendant may demur to a reply or to a separate traverse to or avoidance of a de- fense or counter-claim contained in a reply, on the ground that it is insufficient in law upon the face thereof ; N. Y. Code Civ. Pro., etc., sec. 493. FORMAL PARTS OF PLEADINGS. 137 Amendment of demurrer. In Gashman v. Reynolds, 31 N. Y. State Rep. 143, the court say : " A party can amend his demurrer within twenty days as of course." What is admitted by a demurrer. On a demurrer to a pleading, all the allegations of fact, not inconsistent with other allegations in the same count, must be taken as true ; Vinal v. G. G. & Imp. Go., 25 N. Y. State Eep. 912. Averments of a legal conclusion from facts stated, or of facts not well pleaded, are not admit- ted by a general demurrer to the pleading ; Bennie v. Beis, 132 U. S. 464. A demurrer does not admit that the construction of a statute set forth in the pleading demurred to is the correct one, or that the statute im- poses the obligations or confers the rights which the pleading alleges ; Angell v. Van Schaick, 30 N. Y. State Rep. 714. Nor the construction put upon the contract by the pleading demurred to, or the correctness of in- ferences drawn from the facts admitted ; JBogardus v. JV. T. L. Ins. Go., 101 N. Y 328. An allegation of the meaning and purpose of a foreign statute is an aver- ment of fact, which is admitted by a demurrer ; Sav- ings Ass., etc. v. O'Brien, 20 N. Y. State Rep. 826. What objections waived. Where the objections men- tioned above do not appear upon the face of the plead- ing, objection may be taken by answer or reply. If such objection is not taken by either, it is deemed to be waived except in the cases excepted by section 499, etc., of the New York Code of Civil Procedure, etc. FORMAL PARTS OF PLEADINGS. The court. Where the summons and complaint are served together, and the name of the court appears in 18 138 THE RULES OF PLEADING. the summons, its omission from the complaint may be disregarded as a technical irregularity, which cannot injure the defendant; Van Namee v. People, 9 How. Pr. 198. County of trial. In an action in the supreme court the complaint is irregular, unless it states the place of trial; Williams y". Wilkinson, 1 Code R. N. S. 20. The omission to state it is held not a mere irregularity. It is not waived by obtaining time to answer, nor can it be cured by reference to the summons. The com- plaint in such case must be amended, or stricken out as irregular ; Merrill v. Grinnell, 10 How. Pr. 31. Names of the parties. It is sufficient when the parties have been once named in the pleading, to describe them afterward by the name " said plaintiff " and " said defendant;" Davidson v. /Savage, 6 Taunt. 121. And this rule applies equally where the plaintiff sues in a special character, beginning his pleadings by showing his character ; Stanley v. Chappel, 8 Cow. 335 ; Ketchum v. Morrell, 2 N. Y. Leg. Obs. 58. A defendant sued by a wrong name must plead the defense in abatement ; Gardner v. Clarh, 21 N. Y. 399. The summons governs as to the names of the par- ties; Tuttle v. Smith, 14 How. Pr. 395. What relief plaintiif entitled to. The relief granted to the plaintiff if there be no answer cannot exceed that which he shall have demanded in his complaint. It is not enough that he has stated in his complaint facts entitling him to the relief; Simmonson v. BlaTce, 12 Abb. Pr. 331. And this rule is applied on demurrer / Walton v. Walton, 32 Barb. 203. But where there is an answer, the demand for relief becomes immaterial, FRIVOLOUS PLEADINGS. 130 and the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue ; Emery v. Pease, 20 N. Y. 62. Alternative demand. In general a demand for judg- ment in the alternative is improper, but in an action for equitable relief the complaint may be framed with a double aspect, when there is doubt as to the particu- lar relief to which the plaintiff is entitled. When demand for relief may be enlarged. Notwith- standing the provisions of section 1207 of the New York Code of Civil Procedure, which provides that where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint, the court can allow an amendment of the complaint demanding judgment for a larger sum, where the defendant does not appear ; Carr v. Sterling, 114 N. Y. 555; 24 N. Y. State Rep. 521. Subscription. Every pleading in a court of record must be subscribed by the party or his attorney ; N. Y. Code Civ. Pro., sec. 520. It is held that the signature of the party or attorney to the verification is a sufficient subscription of a pleading. FRIVOLOUS PLEADINQS, NEW YORK CODE OF CIVIL PRO- CEDURE, SECTION 537. In general. A frivolous answer is one which con- troverts no material allegation of the complaint, and presents no tenable defense ; Kelley v. Barnett, 16 How. Pr. 135 ; Hull v. Smith, 8 id. 149 ; Youngs v. Kent, 46 N. Y. 672. The point must be so clear as to require no argument ; Griffin v. Todd, 48 How. Pr. 140 THE RULES OF PLEADING. 15 ; and indicative of bad faith in the pleader, upon bare inspection ; Strong v. Sproul, 53 N. Y. 497. Frivolous demurrer — what is. A demurrer, to be ad- judged frivolous, must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection and indi- cates that its interposition was in bad faith ; Cook v. Warren, 83 N. Y. 37. Answer. Answers were held frivolous in the follow ing cases: N. Y. K G. L. Co. v. Mayor, 49 How.Pr, 227 ; Barnard v. Kobbe, 3 Daly, 35 ; M Mfg. Co. v Campbell, 13 Abb. Pr. 86 ; Kay v. Whittaher, 44 R Y. 565 ; E. Sav. Bh. v. Campbell, 62 id. 637 ; Par hinson v. Sherman, 74 id. 88 ; Peilly v. Cook, 22 How. Pr. 93 ; Webster v. Bainbridge, 13 Hun, 180; Roblin v. Long, 60 How. Pr. 200. Sham answer — how disposed of. Section 538 of the New York Code of Civil Procedure provides that a sham answer or defense may be stricken out by the court, upon motion, upon such terms as the court deems just. Must be false. A sham answer is one that is false ; Littlejohn v. Greely, 22 How. Pr. 345 ; Leach v. Boyn- ton, 3 Abb. Pr. 1 ; but yet may be in good form ; Hull v. Smith, 8 How. Pr. 149 ; it sets up new matter known to be false ; Benedict v. Tanner, 10 How. Pr. 455 ; the essential element is falsity ; Nicholas v. Jones, 6 How. Pr. 355 ; People v. McCumber, 18 N. Y. 315 ; it must be false in a sense of being a mere pretense set up in bad faith and without color of fact ; Keefer v. Thomas, 6 Abb. N. S. 42. The right to strike out as sham extends only to affirmative defenses that IRRELEVANT AND REDUNDANT. 141 are not verified ; Wayland v. Tysen, 45 N. Y. 281. Its falsity must appear clearly if not decisively ; Morey v. S. B. Co.., 7 Abb. N. S. 199. IRRELEVANT AND REDUNDANT MATTER. Stricken out, when. Section 545 of the New York Code of Civil Procedure provides for striking out irrele- vant and redundant matter from a pleading. The rule in Essex v. JST. Y., etc., B. E. Co., 8 Hun, 361, that the discretionary power of the court to strike out irrelevant allegations from a complaint should be reluctantly and cautiously exercised, has been followed and approved in Bradstreet v. Bradstreet Co., 14 N. Y. State Rep. 260 ; Baer v. Seymour, 12 id. 166 ; and Stefen v. Schaefer, 39 N. Y. State Rep. 796. When not stricken out. It is only in cases in which harm or injustice will be done to a defendant by retain- ing irrelevant and redundant allegations in a complaint, that they will be stricken out on motion ; Lv,gar v. Byrnes, 15 N. Y. State Rep. 970. There is no au- thority for striking out a portion of an answer as ir- relevant ; Colt v. Davis, 20 N. Y. State Rep. 309 ; 50 Hun, 366 ; Whitehall L.Co. v. Edmonds, 22 NY. State Rep. 199. Irrelevancy comprehends both redundant and immaterial matter, and also matter out of which no cause of action or defense could arise between the parties ; Lee Bk. v. Chickering, 11 Abb. Pr. 435. New matter when no defense. New matter which is properly no defense, either total or partial, nor a counter-claim, may be stricken out as irrelevant ; Smith v. Countryman, 30 N. Y. 655. Redundant. Redundant and irrelevant are not equiva- 142 ■ THE RULES OF PLEADING. lent terms ; matter which is irrelevant is also redun- dant, but the converse is not true. A needless repeti- tion of material averments is redundancy ; although the facts averred, so far from being irrelevant, may- constitute the whole cause of action. Waiver of — objection to irrelevancy, etc. Omitting to move before answer, or demurrer, or obtaining an order for time to appear, is a waiver of the right to move to strike out redundant or irrelevant matter ; Goch v. Marsh, 8 How. Pr. 439 ; Marry v. James, 37 id. 52. JURISDICTION OF STATE COURTS. Who may sue. The United States may sue in a state court ; U. 8. v. Groff, 67 Barb. 304 ; so may another state; State, etc. v. Plmnix BTc., 33 N. Y. 9 ; or a foreign government ; Rep. of Mexico v. Arangois, 11 How. Pr. 1 ; so may an assignee in bankruptcy ; Kin- der v. Horrobin, 72 1ST. Y. 159. Who may be sued. A postmaster may be sued in the state courts for detaining a letter ; Teall v. Felton, 1 N. Y. 537 ; so may the collector of customs for illegal exactions; Hoyt v. Gelston, 13 Johns. 141. It was held in Wilson v. McKenzie, 7 Hill, 95, that an officer of the navy might be sued in the state courts for wrongful punishment on shipboard. What may be sued for. An action for royalties for the use of a patented article may be sued for in a state court ; Marsh v. Bodge, 66 N. Y 533; and in all cases where patent rights come in question collaterally only; Be Witt v. Elmira M. Mfg. Co., 66 N. Y. 459 ; for general torts committed at sea ; McDonald v. Mallory^ 77 N. Y 546 ; and for the protection of passengers on JURISDICTION. 143 steam vessels; Carroll v. Staten I. B. R. Co., 58 N. Y. 126; for injury to goods transported by sea; Baird v. Daly, 57 N. Y. 236 ; for personal torts, frauds, slander, etc., committed abroad, where one of the parties is a citizen ; Johnson v. Whitman, 10 Abb. N. S. Ill; DeWitt v. Buchanan, 54 Barb. 31; in cases of contract, fraud, or trust, even though lands out of the state are affected ; D'lvernois v. Leavitt, 23 Barb. 63 ; and compel the conveyance of land situated abroad ; Gardener v. Ogden, 22 N. Y. 327 ; and to set aside transfers and cancel usurious mortgages on lands out of the state ; Williams v. Fitzhugh, 37 N. Y. 444. So foreign executors and administrators who reside in this state may be sued in the state courts ; G-ulick v. Gulick, 21 How. Pr. 22. But see Field v. Gibson 20 Hun, 274. WHEN STATE COURT HAS NO JURISDICTION. A state court has no jurisdiction over sales of per- sonal property made in another state, nor for trespass or other injuries to land situated out of the state ; Amer. TJn. Tel. Go. v. Middleton, 80 N. Y. 408; nor to enforce the penal laws of another state ; TJ. S. v. Bathrop, 17 Johns. 4; nor for the use or an infringe- ment of a patent; Dudley v. Mayhew, 3 N. Y. 9 ; nor of actions in rem against a vessel ; In re Steamboat "Josephine,'''' 39 N. Y. 19; except upon the lakes and rivers ; Brookman v. Hamill, 46 N. Y. 636 ; nor against an Indian on his contract ; Hastings v. Farmer, 4 N. Y. 293 ; nor against a receiver, executor, etc., appointed in another state ; Smith v. MrNamara, 15 Hun, 447 ; nor against consuls ; Valarino v. Thompson, 7 N. Y. 144 THE RULES OF PLEADING. 576 ; nor against a foreign government or state ; Peo- ple v. Dennison 84 N. Y. 272. County courts. County courts have no equity juris- diction. It has no jurisdiction of an action to reform a mortgage, although part of the relief demanded is the foreclosure of such mortgage after it has been re- formed; Thomas v Harmon, 33 N. Y. State Kep. 271. PARTIES. Who may Ibe joined as plaintiffs. All persons having an interest in the subject of an action, and in obtain- ing the judgment demanded, may be joined as plain- tiffs, except as otherwise expressly prescribed N. Y Code Civ. Pro., sec. 446. Parties under Civil Damage Act. In Jackson v. Brook- ins, 5 Hun, 531 ; Franklin v. jSohemerhom, 8 id. 112 ; JVeu v. McKechnie, 95 K Y. 636 ; Ketchum v. Fox, 23 N. Y. State Rep. 765, it is held, that any number of different parties may commence and sustain separate actions under the Civil Damage Act, where they have been injured either in person, property, or means of support by any intoxicated person, if they allege and prove the necessary facts. An action, however, cannot be sustained against two defendants jointly, under the Civil Damage Act, by proof of separate sales ; Morenus v. Crawford, 1 5 Hun, 45. Those who sell liquor to a minor, who is made sick thereby, are liable to the father ; Volans v. Owen, 74 N. Y. 526 ; Bertholf v. OReilley, id. 509. CREDITORS, STOCKHOLDERS, ETC., AS PARTIES. Creditor against trustee. A creditor under second PARTIES. 145 Revised Statutes, 412, sections 33 and 34, must be a judgment creditor ; the owner of a paid-up policy can- not maintain an action to remove trustees ; Belknap v. M A. L. Ins. Co., 11 Hun, 282. Under the act of 1848, chapter 40, section 12, each creditor of a corpo- ration may maintain a separate action against the trus- tees of a company for a debt due him, when the annual report is not filed as therein required ; Wiles v. Suy- dam, 10 Hun, 578. S tockliolder against corporation. It seems that a stock- holder cannot bring an action to wind up a corporation, except in rare cases ; Bliven v. Peru 8. & I. Co., 60 How. Pr. 280. In Myers v. Scott, 20 N. Y. State Rep. 35, it was held, that stockholders could maintain such an action. Directors against directors, etc. In Gould v. Thomp- son, 39 How. Pr. 5, it was held, that part of the direct- ors of a corporation could not maintain an action against other directors and stockholders and the company to restrain an action against the company, and secure an accounting ; that the company should bring the action. Stockholder's action to dissolve corporation. In De- nike v. N. T. & R. Line, etc., Co., 80 N. Y. 599, it was held, that a portion of the stockholders of a manufac- turing corporation have no actual right to maintain an action to dissolve it, or appoint a receiver, although it be utterly insolvent. A corporation stands in no fidu- ciary relation to its stockholders. The directors, not the corporate body, are the trustees and must be par- ties to an action for the enforcement of a trust or to compel the declaring of a dividend ; Kerns v. Boch. & Gen. Vol. B. B. Co., 4 Abb. N. S. 107. 19 146 THE RULES OF PLEADING. Stockholders against one who has converted the cor- porate property. In Werihim v. Page, 10 N. Y. Week. Dig. 26, it was held, that a mere stockholder has no right to maintain an action against a person who has wrongfully converted the property of the corporation, without showing a failure or neglect on the part of the corporation, or its officers, to prosecute, after a request by him so to do. When stockholders may sue directors, etc. Although an action cannot be maintained by a stockholder against a director of a corporation for the cancellation of a fraudulent contract, and an illegal issue of stock, until after application to and refusal by the corpora- tion to bring an action, yet when it is shown that the defendant director controls a majority of the board of directors, who aid and abet him in his illegal acts, and without whose consent the corporation cannot begin an action, a stockholder may begin it, without a pre- vious application to the corporation; Anderton v. Aronson, 3 How. Pr. N. S. 216; Greaves v. Gouge, 69 K Y. 154; Leslie v. Lorrilard, 31 Hun, 305 ; Hawes v. Oakland, 104 IT. S. 460 ; Brinckerhoff v. Bostwick, 88 N. Y. 52 ; Barr v. JV. Y, L. Erie & W. Co., 96 id. 444. Whether such a suit may be maintained by a stockholder for fraud committed before he purchased his stock, query; Young v. Brake, 8 Hun, 61 ; Ramsey v. Gould, 57 Barb. 398 ; Patterson v. Baker, 6 N. Y. S. C. (T. & C.) 76 ; Butt v. Cameron, 53 Barb. 642. When stockholder cannot sue directors, etc. The stockholders of a bank have not such an ownership or interest in a cause of action against the directors for neglecting their duty when acting officially as entitles PARTIES. 147 them as a matter of right to be made parties plaintiff in an action brought thereon by the receiver of the corporation; Kimball v. Ives, 30 Hun, 568. When all trustees must be joined. In an action to es- tablish the liability of directors of a corporation creating debts beyond the amount of the capital, all the trus- tees must be joined as defendants in order that a proper distribution of responsibility may be made by a court of equity; Laws of 1875, chap. 611, sec. 22; Robinson v. Atwell, 6(3 How. Pr. 121 ; Robinson v. Thompson, 34 Hun, 634; Knox v. Baldwin, 80 N. Y. 610 ; McClave v. Thompson, 36 Hun, 365. But see Lovelace v. Dor an, 39 K Y. State Kep. 679, Foreign corporation — action to dissolve. In an ac- tion to set aside transfers by a foreign corporation as fraudulent against stockholders, it appeared that the only resident plaintiff, who could therefore maintain an action, became a stockholder by receiving a certifi- cate of stock in exchange for money just before re- ceived for the purpose, and that the transfer of this certificate had never been made upon the books of the company. Held, error to dismiss the complaint upon the ground that such plaintiff had no title to the stock ; M'vin v. Ore. R. R. & Nav. Co., 55 Hun, 544. Where bondholder, etc., may sue. A stockholder and bondholder of an insolvent corporation may maintain an action against the corporation, its directors and other persons, to rescind an unlawful contract made by certain of the defendants, with the corporation, and compel the wrong-doers to account for property and securities of the corporation wrongfully received from it, without first making a demand upon the corpora- 148 THE RULES OF PLEADING. tion to bring an action to redress the wrongs com- plained of where it appears from the facts alleged that the corporation is obviously unable to act by reason of its directors being under the control of the very per- sons who are alleged to have been guilty of the wrong- ful acts and who are defendants in the action ; Currier v. N. Y., W. S., etc., B. B. Co., 35 Hun, 355. To recover for neglect of bank officers. A bank and its receiver, appointed by the comptroller of the cur- rency, are necessary parties to an action brought by the stockholders to recover for misconduct, or neglect on the part of the directors, whereby the funds of the bank were lost or misapplied ; Brinckerhoff v. JBost- wide, 88 N. Y. 52. When assignee must be made party. Where a judg- ment has been granted, setting aside an assignment as having been made in fraud of creditors and appointing a receiver, the assignee therein is a necessary party de- fendant in a subsequent action to reach moneys paid to preferred creditors under such void assignment. Such subsequent action must be brought in the name of the receiver ; Passavant v. Boiodoin, 39 N. Y. State Eep. 238. PARTNERS. Who must be plaintiffs. In an action against part- ners all must be joined as defendants. If one pleads infancy the action may be discontinued as to him and proceed to judgment against the other defendants; Boot v. Herman, 2 City Ct. 409. Dormant partners. The omission of a dormant part- ner or contractor, as defendant, will not defeat the ac- PARTNERS. 149 tion, unless the plaintiff knew, at the time of the com- mencement of the action, that such omitted partner was a member of the defendant's firm ; North v. Bloss, 30 K Y. 374; Woodhouse v. Duncan, 106 id. 527. A dormant partner is a necessary plaintiff in an action by a partnership; Secor v. Keller, 4 Duer, 416. But it is different with a limited partnership ; Shelton v. Lord, 4 E. D. Smith, 206. After the death of one partner, the survivors must sue and be sued as though there had never been any other partner ; Matthews v. Steitz, 5 N. Y. Civ. Pro. Kep. 235. Torts — liability of partners for. One, all or any number of partners may be sued for an injury caused by the negligence of a servant of the firm ; Roberts v. Johnson, 58 N. Y. 613. But if a partner, by fraud, in- duces a person to buy property from the firm, he alone is liable ; Morgan v. /Skidmore, 3 Abb. N. C. 92. Members of two firms. In Cole v. Reynolds, 18 N. Y. 74, it was held, that where a person is a member of both the plaintiff's and the defendant's firm, he must be made a party either plaintiff or defendant. Representatives of deceased partners. Where a cred- itor can show that the surviving partner or partners of a partnership are insolvent, he can enforce payment of his debt from the estate of a deceased partner, without proceeding to judgment and execution against the sur- viving partner; Pope v. Cole, 55 N. Y. 124. But it is safer to obtain a judgment against the survivor and have an execution against him returned unsatisfied, be- fore proceeding against the representatives of the de- ceased partner; Tracy v. Suydam, 30 Barb. 110 ; Mas- tin v. Blackwell, 8 Hun, 313. 150 THE RULES OF PLEADING. Action between partners. One partner may maintain an action against another for a breach of a partnership agreement, and in all cases where the party suing will not have to contribute to pay the judgment obtained; Gordon v. Titus, 66 Barb. 275 ; Burringer v. Clark, 60 id. 113; Wills v. Simmons, 8 Hun, 189. TENANTS IN COMMON. Actions by and against. Tenants in common of real property must unite in an action for trespass upon it ; Depew v. Strong, 37 N. Y. 372. If any one refuse to join as plaintiff, he may be made defendant; Has- brouch v. Bunce, 62 JST. Y. 476. For use and occupa- tion they may sue jointly or severally, they must join in an action for the conversion of their chattels ; Bice v. Hollenbech, 19 Barb. 664. Each tenant in common may bring a separate action for his share of real estate or the proceeds thereof ; Hasbrouclcv. Bunce, 62 N. Y. 476 ; Code, sees. 1496-1503 ; Van Wart v. Price, 14 Abb. Pr. 4. But in Cook v. Wardens, etc., 5 Hun, 293 ; 67 N. Y. 594, it was held, that all the grantees must join. And see Maxwell v. Pratt, 24 Hun, 448. Ten- ants in common of a pew cannot be sued jointly for an assessment; St. Paul's Ch. v. Ford, 34 Barb. 16. Owners of vessels should all join in an action for freight or for hire of the vessel ; Donnell v. Walsh, 33 N. Y. 43 ; Merritt v. Walsh, 32 id. 685 ; Coster v. JST. T.&F.E. B. Co., 5 Duer, 677. Joint owners. One of several joint owners of a claim — not partners — may maintain an action for his share collected on said claim by their agent, but in an action on a joint bond, all the obligees must join; Cornell v. TORTS OF MARRIED WOMEN. 151 Mayor, 9 Hun, 285 ; Pierce v. Hitchcock, 2 N. Y. 388 ; Dusenbury v. Fisher, 47 N. Y. Supr. Ct. 482. Real estate. Several plaintiffs, claiming under dis- tinct titles for distinct interests in land, cannot main- tain a joint action ; People v. Mayor, 10 Abb. Pr. 111. But all interested in a contract for a conveyance of land, must join the plaintiff in an action for specific performance ; Mc Cotter v. Lawrence, 4 Hun, 107. An heir at law may sue for his share of rent under a lease made by the decedent, or all the heirs may join ; Jones v. Fetch, 3 Bosw. 63 ; Denham v. Cornell, 67 N. Y. 556 ; Marshall v. Moseley, 21 id. 280 ; Potter v. Fllice, 48 id. 321 ; Davis v. Morris, 36 id. 569. TORTS OF MARRIED WOMEN. N. Y. Laws of 1890, chapter 51. It is provided by chapter 51 of the Laws of 1890, that a married woman shall have a right of action for injuries to her property, injuries to her person or character, and injuries arising out of the marital relation in all cases in which an un- married woman or man now has a right of action by law. But see Woolsey v. Village, etc., 39 N. Y. State Eep. 744. N. Y. Laws of 1890, chapter 248. It is provided by chapter 248 of the Laws of 1890, that "in an action or special proceeding a married woman appears, prose- cutes, or defends alone or joined with other parties as if she were single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate, or character of his wife. 152 THE RULES OF PLEADING. Husband not proper party in action against wife for her torts. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation. Husband not liable for torts of wife. It is provided by section 2 of chapter 51 of the Laws of 1890, that "A husband shall not be liable in damages for his wife's wrongful or tortious acts nor for injuries to person, property or marital relations caused by the acts of his wife unless the said acts were done by actual coercion or instigation of the husband ; but in all cases embraced in this section, the wife shall be personally liable for her wrongful or tortious acts. WHO MUST BE DEPENDANT. Creditor's action. In an action by a creditor for an accounting by a general assignee, the assignor, or if he be dead, his personal representatives are necessary par- ties ; Wells v. Knox, 17 N. Y. Civ. Pro. Eep. 59. The assignee for the benefit of creditors is a necessary party to an action by plaintiff to impeach the assignment for fraud, etc. ; Smith v. Payne, 21 N. Y. State Rep. 462. But see McCreery v. Gordon, 38 Hun, 467. In an action in the nature of a creditor's bill, the plaintiff may join as defendants all persons who are fraudulent grantees or lienors, or who united in the common de- sign to hinder, delay or defraud him ; M. Bh., etc. v. Thalheimer, 23 N. Y. Week. Dig. 116. In Haynes v. Brooks, 17 Abb. N. S. 152, it is said, that an indi- vidual creditor of a surviving partner cannot maintain a creditor's action to set aside a general assignment of WHO MUST BE DEFENDANT. 153 the assets of the firm made by the surviving partner. The right to do so is in the representative of the de- ceased partner, and perhaps in the partnership cred- itors. Preferred creditors. A preferred creditor may be a necessary party to a creditor's suit to set aside an as- signment; Gen. Co. Bh. v. BJc. of Batavia, 43 Hun, 295 ; Chandler v. Bowers, 25 id. 445. One party suing for many. In an action to compel an assignee to account, brought by a creditor in behalf of himself and other creditors, where a creditor appears and files his claim, he becomes a party to the action and is entitled to notice of all subsequent proceedings ; Bradley v. Chamberlain, 27 IS". Y. Week. Dig. 94 ; Code Civ. Pro., sec. 448. Ejectment. By Code of Civil Procedure, sections 1502-1503, only the occupant of real property is re- quired to be a party defendant, but others may be joined ; Bradt v. Chinch, 110 N. Y. 537. A person is properly joined as a defendant, who is alleged to be in wrongful- possession of a part of the property under the other defendants; Bank v. Livinus, 5 Civ. Pro. Kep. 368. Accounting. In an action for an accounting, all per- sons who are interested should be made parties though their interests do not accrue in the same right ; Skid- more v. Collier, 8 Hun, 50 ; Littell v. Sayre, 7 id. 485. The action survives the death of a party ; Hoisted v. Cochcroft, 40 N. Y. Supr. Ct. 519 ; Silsby v. Smith, 41 How. Pr. 418; Betrie v. Betrie, 7 Lans. 90; Haynes v. Hollister, 64 N. Y. 1. Heirs, executors, etc. One of several heirs at law may 20 154: THE RULES OF PLEADING. maintain an action against an administrator, who has wrongfully converted assets of the estate, and the per- sons receiving the same with knowledge of the misap- propriation, to recover such assets or their value, upon the administrator's refusal and neglect to bring such an action ; JRandell v. Dyet, 38 Hun, 347 ; Segelken v. Meyer, 94 N. Y. 473. A residuary legatee suing for his share of the residue, must join all persons interested in the residue as defendants ; Tonnelle v. Hall, 3 Abb. Pr. 209. In other cases a legatee may sue alone for a legacy; Cromer v. Pinckney, 3 Barb. Ch. 466. Insane. It seems the New York Code of Civil Proced- ure, section 2340, was intended to apply only to debts, claims and demands existing in favor of the lunatic, and not to his real estate ; Shinner v. Tibbetts, 13 N. Y. Civ. Pro. Rep. 370 ; and an action of ejectment to re- cover possession of the land of a lunatic should be brought in the name of such lunatic. A lunatic may be sued, whether he has a committee or not ; Brown v. Nichols, 42 N. Y. 26. NEW YORK CODE OF CIVIL PROCEDURE, SECTION 448. When one may sue for many. It is provided by sec- tion 448 of the New York Code of Civil Procedure that where the question is one of common or general inter- est of many persons; or where the persons who might be made parties are very numerous, and it may be im- practicable to bring them all before the court, one or more may sue or defend for the benefit of all. If a bill is filed on behalf of a class, to enforce the rights of a class, then every member of that class has a right to come in and enjoy its benefits upon contributing to NEW YORK CODE OF CIVIL PROCEDURE. 155 the expense of the litigation, whether he has some other qualification or not ; Rogers v. JSf. Y. & Texas Land Co., 17 N. Y. State Eep. 131 ; Lancashire Lis. Co. v. Maxwell, 5 N. Y. Supp. 399. Joint beneficiaries. Where the interests of the bene- ficiaries are joint, they must all be made parties, and it is not enough for plaintiff to allege that he sues on their behalf, unless they are too numerous to be brought in ; Lear v. Amer. R. T. Co., 36 Hun, 400. Trades-union. The members of an unincorporated trades-union may bring an action in their own behalf and in behalf of the other members to restrain the in- fringement of a label designating the product of their workmanship ; Strasser v. •Moonelis, 55 N. Y. Supr. Ct. 197. Who must be made parties in an action by stockhold- ers. An action may be brought by a stockholder of a corporation to set aside the fraudulent proceedings of the directors ; they may also bring an action against a trustee and the corporation, where the trustee con- verted its property and the corporation has declined to bring an action ; Carpenter v. Roberts, 1 Law Bull. 2 ; but the plaintiff must allege and prove that the cor- poration has refused, upon request, to bring the suit ; Young v. Drake, 8 Hun, 61 ; a stockholder cannot sue the directors or trustees for misconduct, without mak- ing the other stockholders parties or suing for all, and making the corporation a party ; Smith v. Rathbun, 66 Barb. 402 ; Warth v. Radde, 28 How. Pr. 230; Watson v. JIarlem, etc., Co., 52 How. Pr. 348. Liability of stockholder to a servant of the corpora- tion. In an action to enforce the liability of stock- 156 THE RULES OF PLEADING. holders to a servant, under the New York Laws of 1848, chapter 40, section 18, either one or all must be sued; Dean v. Whiton, 16 Hun, 203; and under sec- tion 23 of said act, the action can only be brought by all the creditors jointly, or by one creditor in behalf of himself and all others ; Anderson v. Spears, 21 Hun, 568. One stockholder suing for all. One stockholder of a bank may maintain an action in behalf of all against its receiver, and its directors, for misconduct, etc., if on request the receiver declines to bring such an action. In such action the bank is a proper defendant ; Brinher- Jioff v. BostwicTc, 14 N. Y. Week. Dig. 157. When one party cannot sue for others. The fact that a partnership consists of more than forty members re- siding in different countries, does not authorize an action to be brought in the name of one for all ; Brain- ard v. Bertram, 5 Abb. N. C. 102. Action to he prosecuted by real party in interest. A cestui que trust cannot maintain an action to recover his securities, or their value, which the trustee has mis- appropriated in speculative dealings with brokers. All the cestui que trust can do is to prosecute an action for the vindication of the trust, etc., in case the trustee refuses to prosecute such action in his own name and on his own behalf ; Weetjen v. Vibbard, 5 Hun, 265 ; Cooper v. Weston, 16 N. Y. State Kep. 937. Name of party. A defendant ought to be sued in the surname of his ancestors, and the christian name given to him in baptism. 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. NEW YORK CODE OF CIVIL PROCEDURE. 157 Anderson v. Horn, 23 Abb. N. C. 479 ; Bank of Ha- vana v. Magee, 20 N. Y. 365 ; the law does not recog- nize a letter as a name ; Frank v. Levie, 5 Robt. 599. Suing one's self. A person cannot be plaintiff and defendant in the same action; Cole v. Reynolds, 18 N. Y. 74 ; Sherwood v. Barton, 23 How. Pr. 533 ; but the court can grant appropriate relief in a suit between two estates, when the plaintiff, as representative of one, is the defendant, as representative of the other ; Neilly v. Neilly, 11 N. Y. Week Dig. 487 ; 23 Hun, 651. Infants, lunatics, drunkards, etc. A guardian ad litem or next friend is not a party to the action ; Spooner v. D., L.&W.R. B. Co., 115 N. Y. 22 ; 23 "N. Y State Rep. 554. So, also, the committee of a lunatic or drunkard is regarded as a mere servant; McKillip v. McKillip, 8 Barb. 552 ; Betrie v. Shoe- maker, 24 Wend. 83. A committee is a trustee of an express trust ; Bur- net v. Bookstaoer, 10 Hun, 481 ; Davis v. Carpenter, 12 How. Pr. 287. How infant must sue. When an infant has a gen- eral guardian, he must bring an action to recover money or personal property belonging to him, in his own name by his guardian ad litem; Segelken v. Meyer, 94 N. Y. 473 ; Buermann v. Buermann, 17 Abb. N. C. 391; N. Y. Code Civ. Pro., sees. 469, 470, 476. But it is different as to the real estate of the infant ; Moore v. Appleby, 36 Hun, 368 ; Crook v. County of Kings, 97 N. Y. 421 ; Roger v. Bhillips, 17 Abb. N. C. 425. PRINCIPAL AND AGENT. The party for whose benefit a simple contract was 158 THE RULES OF PLEADING. made, may maintain an action upon it; Schaefer v. Henkel, 75 N. Y. 3 78. And an action may be brought thereon in the name of the principal or agent ; Pitney v. Glen's Falls Ins.Oo., 65 N. Y. 6 ; I. P. & C. R. R. Co. v. Tyng, 63 id. 653. An agreement, made upon a valid consideration by one party with another, to pay money to a third, whether a simple contract or a writing under seal, may be enforced by such third party in his own name ; Magoun v. Sinclair, 66 N. Y. 30 ; Coster v. Mayor, etc., 43 id. 399 ; Fisher v. Hope, etc., 69 id. 161 ; Hutchings v. Miner, 46 id. 456. But see Barlow v. Myers, 64 id. 41 ; Simpson v. Brown, 68 id. 355. One for whom another makes a bet and deposits the money, may sue to recover the amount, though he was not known to the other party ; Rutman v. Pitcher, 20 KY.9; Pulver v. BurTce, 56 Barb. 391. Trustee of an express trust. A trustee of an express trust may be sued, and through him the cestui que trusts are brought before the court and bound ; Mead v. Mitchell, 17 N. Y. 210. The beneficiary may bring an action, with or without the trustee; Hubbell v. Medbury, 53 N. Y. 98 ; Bartlett v. Hatch, 17 Abb. Pr. 451. But where trustees have the title to a trust fund the beneficiaries cannot sue a third party to protect it, unless the trustees refuse to act; W. R. R. Co. v. Nolan, 48 N. Y. 513. BRINGING IN PARTIES. Parties — New York Code of Civil Procedure, section 452. The rule that in an action at law, the plaintiff seeking a money judgment cannot be compelled to bring in any other parties than those he may choose to summons is not changed by section 452 of the New York Code. If BRINGING IN PARTIES. 159 an equitable defense set up to a legal cause of action, shows the absence of necessary parties defendant, there must be either a nonsuit or a verdict ordered for the de- fendant. Section 452 of the New York Code of Civil Pro- cedure refers to parties in what, under the old practice, would have been suits in equity, and it never intended to make it incumbent upon a plaintiff in an action at law to sue any other than the parties he should choose to ; Webster v. Bond, 9 Hun, 437. Nor does a defendant obtain any right to compel a plaintiff to bring in a party under section 447 of the New York Code of Civil Procedure. A person who is not a party to the action, and who has an interest in the subject thereof, must, by the terms of section 452 of the New York Code of Civil Procedure, himself make application to be made a party ; Chapman v. Forbes, 34 N. Y. State Rep. 351. In Dunham v. Lee, 87 N. Y. 599, the action was changed by the consent of all parties from a simple action at law to one in equity. When the court must bring in parties defendant. Where a defendant does not object to a defect of par- ties by demurrer or answer, he is deemed to have waived it ; N. Y. Code Civ. Pro., sec. 499. But when the granting of relief against the defendant alone would prejudice the rights of others, and their rights cannot be saved by the judgment, and the controversy cannot be completely determined without their pres- ence, the court must direct them to be made parties, and failure to make an order to bring them in, under New York Code of Civil Procedure, section 452, is error. Under the New York Code of Civil Procedure, the 160 THE RULES OF PLEADING. court is bound to take the objection, when a proper case is presented ; Bear v. Rapid Tel. Go., 36 Hun, 400 ; Osterhout v. Supervisors, 28 N. Y. 239. Litigating with co-defendants under Code, section 521. The authority given by sections 452 and 521 of the New York Code of Civil Procedure, to a defendant, to set up for determination the rights of defendants as between themselves, only includes those rights arising out of, or connected with, or resulting from the cause of action set forth and maintained by and in favor of the plaintiff, and does not permit a defendant to set up a new cause of action, subverting that alleged and relied upon by the plaintiff; Derham Y.Lee, 87 N. Y. 399; Smith v. Hilton, 19 N. Y. State Kep. 340 ; JDobbs v. Niebuhr, id. 21. PROOF WITHOUT ALLEGATION. In general, proofs without allegations are as unavaila- ble as allegations without proofs ; Rutty v. G. F. Jar. Go., 24 N. Y State Kep. 640. When pleadings cannot he conformed to proof. Plead- ings cannot be conformed to the proof, where there is. an objection taken in due time to the sufficiency of the pleading which sets forth the cause of action. A party cannot plead one cause of action and recover on another; Stevens v. Mayor, etc., 84 N. Y. 296; Neu- decher v. Kohlberg, 81 id. 296; McGlung v. Foshour, 14 N. Y. State Kep. 367. In Pixley v. Ingram, 24 N. Y. State Eep. 885 ; 53 Hun, 93, it was held that usurious payments could not be deducted from the amount demanded upon a prom- issory note where the usury was not established and the payments were not set up as a counter-claim in the answer. PROOF WITHOUT ALLEGATION. 161 In Bomeyn v. Sickles, 108 N. Y. 50, it was held that it is fatal to a recovery when the proof does not conform in all material respects to the allegations in the pleadings, where an objection has been taken in time, or an exception presents the question. In Barnes v. Seligman, 29 N. Y. State Eep. 68 ; 55 Hun, 339, it is held that a complaint cannot be amended to con- form to the facts, where an objection has been taken in time to the proving of the facts because of the in- sufficiency of the pleadings. A party must allege as well as prove his case. In Clark v. Post, 113 N. Y. 17; 21 N. Y. State Eep. 835, the court say: "The recovery must be within the case made by the pleadings, unless the parties consent to disregard them ; a party must allege as well as prove the facts constituting his cause of action." The same was held in Wood M. B. Co. v. Thayer, 20 N. Y. State Kep. 396 ; 50 Hun, 516. In Town of Mentz v. Cook, 108 N. Y. 504, the court held that the defense in equity that a remedy exists at law, must be pleaded to be available. The same was held in Baron v. Korn, 21 N. Y. State Eep. 62 ; 51 Hun, 401. In Perls v. Met. K Ins. Co., 29 N. Y. State Eep. 409, the complaint alleged that the contract sued upon was under seal, and the answer denied the allegations of the complaint and set forth a contract not under seal; the court held that the action was on the sealed instrument, and the plaintiff must recover, if at all, upon the contract set forth in the complaint and not upon that set forth in the answer. "Where matters which-happen after the incurring of 21 162 THE RULES OF PLEADING. the original obligation have the effect of an equitable defense, it must be pleaded under subdivision 2 of sec- tion 500 of the New York Code of Civil Procedure, etc.; Dresler v. Hard, 6 N. Y. Supp. 500. In an action brought upon the theory that the de- fendant, while an executor, became personally liable to the plaintiff for the payment of certain legacies, on ac- count of having retained from the assets of the estate the amount of said legacies, the plaintiff cannot re- cover by showing that the payment of the legacies was made by defendant's note, which are in evidence and unpaid; Camp v. Smith, 117 K Y. 354; 27 N. Y. State Kep. 322. A judgment in plaintiff's favor upon the ground that he is equitably entitled to a fund held for a third person, whom plaintiff has been forced to pay, cannot be maintained without amendment under a complaint alleging plaintiff's title to the fund in defendant's hands; Bay v. Town, etc., 107 K Y. 148. In slander, proof without objection of the utter- ance of words not alleged in the complaint, will not sustain a request to charge the jury, that they are ac- tionable, and they will not be considered within the issue upon an appeal; Lynde v. Johnson, 39 Hun, 12. Each party to an action is entitled to be apprised of the ground intended to be relied upon by his adver- sary in the course of the trial, and when the pleadings fail to do that the party chargeable with the failure can derive no advantage from evidence appearing upon the trial tending to establish the existence of the cause of action or defense not included within the pleadings ; Hall v. U. S. B. Co., 30 Hun, 375. REPLY. 163 What relief may Ibe given. If the facts put in issue by the pleadings and established by evidence entitle a party to any relief in the power of the court to give, although not that demanded, it is the duty of the court to give it, and its power to do so is not conditional on the form of the prayer ; C. P. P. Mfg. Co. v. Damon, 16 N. Y. State Rep. 133. In a creditor's suit, the plain- tiff is not limited to the particular relief asked for in the complaint, but is entitled to the relief which the facts proven warrant, and if it turns out that the par- ticular relief asked for cannot be granted, but that other and different relief consistent with the case made by the complaint and embraced within the issue is proper, the court is bound to grant this relief and not turn the plaintiff out of court ; C. P. P. Mfg. Co. v. Damon, 48 Hun, 509. REPLY. In general. Section 514 of the New York Code of Civil Procedure provides that a reply must contain a general or specific denial of each material allegation of the counter-claim, controverted by the plaintiff, or of any knowledge or information thereof, and any new matter constituting a defense to the counter-claim. Reply not necessary, when. New matter in an an- swer may be traversed or avoided without a reply ; Springer v. Bien, 32 N Y. State Rep. 63 ; Otiss v. Schantz, 38 id. 434. When reply to amended answer not necessary. Where matters alleged, calling for a reply, are the same in both the original and the amended answer, no reply need be made to the amended answer, where the origi- 164 THE RULES OF PLEADING. nal was duly replied to ; Lamberty v. Roberts, 31 N. Y. State Rep. 936. Statute of limitations. The objection that the coun- ter-claim or defense set up in an answer did not accrue within the time limited, can be taken only by reply ; except where a reply is not required ; N. Y. Code of Civ. Pro., sec. 413. Where an answer sets up the statute of limitations, the plaintiff may, in a proper case, avoid the force of the statute by setting up facts by way of reply, show- ing that the case is within the exceptions prescribed by sections 405, 406, 411, 412 of the New York Code of Civil Procedure ; Cavanagh v. The Oceanic S. Co., 30 N. Y. State Rep. 532. When reply insufficient. A demurrer to a reply should be sustained where the reply contains no fact whatever that has not already appeared from the com- plaint and answer; Croome v. Craig, 25 N. Y. State Rep. 532. And when the reply purports to be a reply to the whole answer, but which is in fact only a par- tial reply, it is demurrable. Another action pending. The fact that a prior action is pending on a cause set up in an answer as a counter- claim, for which an affirmative judgment is demanded, is a defense to the counter-claim; Ansorge v. Kaiser, 22 Abb. N. C. 305. And where it does not appear on the face of the counter-claim, plaintiff may set it up by a reply. In the absence of a reply, the allegations of a coun- ter-claim are to be taken as true ; Birch v. Hall, 19 N. Y. State Rep. 27. But where the damages are unliquidated, it does not entitle the defendant to the REPLY. 165 direction of a verdict without proof of damages ; Scrib- tier v. Levy, 23 N. Y. State Rep. 354. Matter as recoupment. Matter set up in recoupment may be controverted without a reply; Oocherill v. Loonam, 36 Hun, 353 ; Ward v. Comegys, 2 How. Pr. N. S. 428. Reply enlarging demand in complaint, proper when. In Rider v. Foggan, 37 K Y. State Rep. 438, the plaintiff was allowed by a reply to enlarge his demand for relief. In divorce. Where a counter-claim is set up in an action for divorce, and an affirmative judgment de- manded, a reply is necessary ; Leslie v. Leslie, 11 Abb. N. S. 311. When the court may require a reply. When an an- swer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's application, direct plaintiff to reply to the new matter; N. Y. Code Civ. Pro., sec. 516. A reply to new matter set up as a defense is ordered when the defendant should be informed of the grounds on which the plaintiff intends to rely to do away with the defense; Hubbell v. Fowler, 1 Abb. N. S. 1 ; Dil- lon v. Sixth Ave. R. R. Co., 46 N. Y. Supr. Ct. 21. Where in an action for dower, the defendant alleges that deceased had been divorced, he is entitled to an order that the plaintiff reply thereto ; Brinkerhoff v. Brinkerhoff, 8 Abb. K C. 207. A reply was also ordered in Link v. Spragiie, 8 Abb. N. C. 208, where, in an action by plaintiff for services as a tutor, defend- ant alleged that she was a married woman. A party asking to have the plaintiff serve a reply 166 THE RULES OF PLEADING. must show that he is entitled to it ; Perls v. Met. L. Ins. Co., 29 N. Y. State Kep. 409 ; Tasker v. Chamber- lain, 38 id. 476. Not necessary, when. Section 495 of the New York Code of Civil Procedure only applies when defendant demands affirmative judgment on his counter-claim and has no application where the defendant seeks to use his counter-claim for the purpose simply of extin- guishing the claim of the plaintiff ; Otis v. Schantz, 38 N. Y. State Eep. 434 ; Tasker v. Chamberlain, 38 id. 476 SUPPLEMENTAL PLEADINGS. Discretionary, when. Section 544 of the New York Code of Civil Procedure provides, that the court may, and in a proper case must, upon such terms as are just, permit a party to make a supplemental complaint, answer or reply, either in addition to, or in place of, his former pleading. In Williams v. Hayes, 23 N. Y. State Rep. 489, it was held to be an absolute right. But in Fleischmann v. Bennett, 79 N. Y. 579, the court say: "Notwith- standing the mandatory language of the Code, it is the duty of the court, upon the application, to consider all of the circumstances, and to grant or refuse it, as may be just and proper in the particular case," and the same was held in Avery v. Starbuck, 22 N. Y. State Eep. 430 ; Bull v. Rothschild, id. 536 ; F.L.&T. Co. v. JJ. L. T. Co., 47 Hun, 315 ; The C. C. & I. Co. v. Vinal, 15 N. Y. State Rep. 968. The party must apply for leave, which must be granted, unless the motion papers show a case where the court may exercise a discretion in granting or re- SUPPLEMENTAL PLEADINGS. 167 fusing it ; Bpeares v. Mayor, 72 N. Y. 442 ; Mitchell v. Allen, 25 Hun, 543. Office of a supplemental pleading. The office of a supplemental pleading is to set up facts happening after the commencement of the action, or after the original pleading was put in, and where they cannot be proved unless so set up ; Hall v. Olney, 65 Barb. 27 ; Hendricks v. Decker, 35 id. 298 ; Pierson v. (Jronk, 13 N. Y. State Rep. 556. It is not necessary, nor was it ever intended, that a supplemental complaint should set up all the facts constituting the plaintiff's cause of action ; McRoberts v. Pooley, 1 N. Y State Rep. 725. And it is not subject to demurrer for in- sufficiency, when read with the original complaint a «ause of action is stated ; Haywood v. Wood, 44 Hun, 128. There is no provision of the New York Code of Civil Procedure which authorizes a demurrer to a supple- mental pleading ; Myers v. Met. El. R. R. Co., 34 N. Y. State Rep. 293. Supplemental answer — necessary when. On the trial of an action brought against defendants to enforce their liability as sureties on two undertakings, exe- cuted by them upon the granting of orders of arrest against plaintiff in two actions brought against him, the judge, after admitting in evidence a notice of ap- peal to the court of appeals in the original action, from the orders of the general term vacating the orders of arrest, which notice had been served before the answer in this action, excluded evidence of the un- dertaking on'appeal, executed after the answer, on the ground that it should have been pleaded by supple- 168 THE RULES OF PLEADING. mental answer. Held, no error ; Ferris v. Tcmnebawn, 39 .N. Y. State Rep. 71. Answer, supplemental effect of, on demand for judgment. When a supplemental answer has been allowed to be put in, and the allegations of it proven, any judgment to which it entitles defendant against plaintiff should be rendered in defendant's favor. It seems that where a supplemental complaint is filed merely to bring in parties, the original defendants need not be made par- ties to the supplemental complaint; McGowen v. Yerhs, 6 Johns. Ch. 450. Nor notice of application given to the parties to be brought in ; Ebbets v. Mar- tine, 19 Hun, 294. Appeal. An order allowing or refusing leave to serve a supplemental complaint is not appealable to the court of appeals ; Fh L. & T. Co. v. Bk's & M. Tel. Co., 109 N. Y. 342. Cannot help out original cause of action. Facts arising after the commencement of the action will not be per- mitted to be set up in a supplemental complaint to make a cause of action where the facts, as they existed at the time the action was brought, did not sustain any cause of action; F. L. & T. Co. v. U. L. Tel. Co., 47 Hun, 315 ; C, C. & I. Co. v. Vinal, 15 K Y. State Eep. 968 ; Piersons v. Cronk, 13 id. 356. New claim. A plaintiff is not allowed to set up by supplemental complaint a new claim not existing when his action was begun ; Tiffany v. Bowerman, 2 Hun, 643 ; Muller v. Earl, 37 N. Y. Supr. Ct. 388 ; West v. Burns, 2 N. Y. Law Bull. 55; Bowery Bk v. Burt/ee, 74 N. Y. 491 . Contents. Facts constituting a cause of action or SUPPLEMENTAL PLEADINGS. 169 propriety of parties defendant need not be set out in a supplemental complaint, its only office is to show how plaintiff's rights have changed since he commenced hia action, and to what relief he is now entitled ; Mo- Roberts v. Pooley, 1 N. Y. State Rep. 725. New parties. Section 757 of the New York Code of Civil Procedure absolutely requires the court, in case of death of the sole plaintiff or defendant, to allow continuance by supplemental summons and complaint, and it seems that section 820 of the New York Code of Civil Procedure, also, requires such leave to be given ; Wilson v. Lawrence, 8 Hun, 593. Upon application for relief to file a supplemental answer, the court will not consider whether the pro- posed answer sets up a good defense, but simply whether it is offered in good faith and without laches ; Dusty v. Lansing, 3 N. Y. State Rep. 699 ; Williams v. Hayes, 23 id. 489. It is almost a matter of course to allow a supplemental answer to be filed at any time before trial : Hoyt v. Thompson, 19 N. Y. 207. It is a substitute for the plea of "puis darrein continuance ;" Mitchell v. Allen, 25 Hun, 543. It may be refused for laches ; McDonald v. Davis, 12 Hun, 95 ; Medbury v. Swan, 46 N. Y. 200 ; Hadley v. Boehm, 1 Hun, 304. But see Palmer v. Hussey, 87 N. Y. 303 ; Keck v. Werder, 86 id. 264. Sufficiency of answer subject of inquiry on motion for leave to file. On motion for leave to file a supplemen- tal answer, the court will inquire into the truth and sufficiency of the proposed answer, and will not grant the leave unless the answer appears to be true in fact, and to state a good defense ; Avery v. Starbuck, 22 170 THE RULES OF PLEADING. N. Y. State Rep. 430; Morel v. Ganelly, 16 Abb. Pr. 269 ; Lyon v. Isett, 42 How. Pr. 155 ; Wilbur v. G. & 8. Tel. Co., 52 N. Y. Supr. Ct. 189 ; Vanderbeckv. City, etc., 46 Hun, 87 ; G. W. C. Co. v. 8. G. L.Go., 47 id. 255. VARIANCE. In general. Section 539 of the New York Code of Civil Procedure provides, that " A variance between ..an allegation in a pleading and the proof is not mate- rial, unless it actually misleads the adverse party to his prejudice, and the fact and the particulars in which he has been misled must be proved by the party ob- jecting. If the proof sustains a cause of action which can be found in the complaint, it is enough ; JSJiiapp v. Roche, 37 N. Y. Supr. Ct. 395. Party must prove he has been misled, when. When- ever it is alleged that a party has been misled, that fact must be proved to the satisfaction of the court, and the proof must show in what respect he has been misled; Catlin v. Gunter, 11 N. Y. 368; Place v. Minster, 65 id. 89. When no proof is furnished that the party has been misled to his prejudice, the variance must be disregarded and the pleadings may be amended to conform to the facts proved; Hauck v. Craighead, 4 Hun, 561. Disregarding variances, is equivalent to an amendment. Disregarding variance is equivalent to an amendment or an amendment may be made nunc pro tunc, on ap- peal ; Coleman v. Plaisted, 36 Barb. 36. The general term or court of appeals may allow amendments to •conform pleadings to proofs ; Pratt v. H. M. M. R. (Jo., 21 N. Y 312. VARIANCE. 171 What are immaterial variances. Allegations of an express agreement ; proof of an implied one ; Smith v. Lipencoch, 49 Barb. 398. Under complaint on a con- tract for a specific snm for services, proof of value constitutes an immaterial variance; Sussdorff v. Schmidt, 55 N. Y. 319. So in a complaint on quantum meruit ; proof of a specific contract fixing price ; Lud- low v. Bole, 52 1ST. Y. 617. Allegation, title by convey- ance ; proof, title by inheritance ; Cruger v. McLaury, 41 N. Y. 219. Immaterial variance, how provided for. It is provided by section 540 of the New York Code of Civil Pro- cedure that, where the variance is not material, the court may direct the facts to be found according to the evidence, or may order an immediate amendment with- out costs. New cause of action cannot he inserted. A new cause of action cannot be inserted at trial ; Ford v. Ford, 35 How. Pr. 325. But a new defense may be ; Howard v. Johnston, 82 N. Y. 271. In an action for malicious prosecution the plaintiff was allowed to amend, by in- serting averments that the prosecution was ended; Ames v. Steams, 37 How. Pr. 289. Objection waived, how. The objection that proof does not correspond with pleadings must be distinctly taken at the trial or it is not available ; Rosebrooks v. Dinsmore, 36 How. 138; Belknap v. Sealey, 14 N. Y. 143. If the objection is not taken at the trial, the case will be disposed of on appeal as if the pleadings had been amended; MoKnight v. Devlin,, 52 N. Y. 399 ; Sherman v. Parish, 53 id. 483 ; lung v. G. W. Co., 58 id. 308. 172 THE RULES OF PLEADING. FAILURE OF PROOF. Ill general. The failure of proof provided for by section 541 of the New York Code of Civil Procedure is, where there is a total want of any allegation in the pleading of the subject-matter as a cause of action or ground of defense proved ; Kelsey v. Western, 2 N. Y. 500 ; Oatlin v. Gunter, 11 id. 368. Tort and contract. Where a complaint states a cause of action ex delicto, it is not competent at the trial to convert it into one ex contractu ; Neudecker v. Kohl- berg, 81 N. Y. 296. Upon an allegation in tort proof of a cause of action ex contractu cannot be given ; Walter v. Bennett, 16 1ST. Y. 250 ; DeGraw v. Elmore, 50 id. 1 ; Beard v. Yates, 2 Hun, 466. Account stated and special contract. An allegation of an account stated will not admit of proof of a cause of action on special contract; Volkening v. DeGraaf, 81 N. Y. 268. Under an averment for money received for plaintiff's use, a claim as assignee cannot be proved ; Decker v. Saltsman, 59 N. Y. 275. An averment of want of consideration will not allow of proof of pay- ment ; nor an allegation of conversion, proof of negli- gence ; nor breach of warranty sustain an allegation of fraud ; Boss v. Mather, 51 N. Y. 108 ; Barnes v. Qaig- ley, 59 id. 265 ; Bemhard v. Seligman, 54 id. 661 ; Dudley v. Scranton, 57 id. 424 ; nor debt not due an allegation of fraud ; Neudecker v. Kolilberg, 81 N. Y. 296 ; an allegation for money paid is not sus- tained by proof of bail and delivery ; Field v. Lyons, 2 Rob. 35; nor trespass waste; Tracy v. Ames, 4 Lans. 500. VERIFICATION. 173 VERIFICATION. Copy served. A paper served as a copy is to be as- sumed to be correct. If the officer's name is omitted, the paper is not verified; Williams v. Riel, 11 How. Pr. 374 ; Lane v. Morse, 6 id. 394. Omission of verification, when allowed. Section 523 of the New York Code of Civil Procedure allows an unverified pleading to be served, where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading ; this provision applies only where the accusary matter is contained in the pleading to be an- swered ; Fredericks v. Taylor, 52 N. Y. 596. And section 530 of the Code takes away the above excep- tion from certain parties charged with fraud. It seems that it is proper, when a defendant claims the right to serve an unverified answer, that he should serve there- with an affidavit showing his excuse for not verifying his answer ; Roache v. Kivlin, 25 Hun, 150. If the complaint shows defendant would be privileged from testifying, an unverified answer, without an affidavit, is good; Wheeler v. Dixon, 14 How. Pr. 151. In an ac- tion for libel the defendant need not verify his answer ; Wilson v. Bennett, 2 N. Y. Civ. Pro. Eep. 34. The same is held of divorce ; Sweet v. Sweet, 15 How. Pr. 169. Terification out of the state. A verification taken out of the state must be certified as provided by chapter 133 of the New York Laws of 1869; chapter 115 of the Laws of 1880 ; chapter 136 of the Laws of 1875 ; chapter 421 of the Laws of 1865. Br whom made. All parties not united in interest 174 THE RULES OF PLEADING. should verify. One cannot swear to the want of knowledge or information on the part of his co-defend- ant, but where defendants are united in interest, and plead together, one of them can verify for both. Yerification by agent or attorney. An attorney or agent can verify a pleading in the following cases : 1. In case of a foreign corporation. 2. Where the sole party is absent from the county where the attorney resides. 3. Where of several defendants no one who is acquainted with the facts lives in such county. 4. Where the action or defense is on a written instru- ment for the payment of money only, and which is in the attorney's possession. 5. Where he has personal knowledge of all the material allegations ; IS". Y. Code, sec. 525, subd. 3 ; Peyser v. McCormack, 7 Hun, 300. But such attorney or agent must state the reason why the verification is not made by the party; Filch v. JBiglow, 5 How. Pr. 237. He must also state the ground of his belief or the sources of his information ; Duparquet v. ^airfields, 18 N. Y. State Eep. 8; 49 Hun, 471. When answer must lie verified. A defense which does not involve the merits of the action shall not be pleaded, unless it is verified; N. Y. Code, sec. 513. Yerification by infant or his guardian. The answer of an infant by his guardian ad litem need not be veri- fied. In all other cases where a pleading is verified, each subsequent pleading, except a demurrer, must be verified ; N. Y. Code, sec. 523. WAIVER OP OBJECTIONS TO PLEADINGS. In general. Section 499 of the New York Code of WAIVER OF OBJECTIONS TO PLEADINGS. 175 Civil Procedure provides, that if an objection is not taken by demurrer when the defects appear on the face of the pleading, or by answer in other cases, it is waived. Objection to jurisdiction. An objection to the juris- diction of the court, and the objection that the com- plaint does not state facts sufficient to constitute a cause of action, may be taken at any time ; so also the objection that the action is prematurely brought; Selover v. Coe, 63 N. Y. 438. And that the complaint does not conform to the requirements of the statutes ; Stinnard v. Eyting, 35 How. Pr. 42. Demurrable objections cannot be taken by answer. A demurrable objection cannot be taken by answer, and where the objection is one proper to be raised by demurrer, defendant waives it by raising the objection by answer ; Patchin v. Peck, 38 N. Y. 39 ; ZabrisMe v. Smith, 13 id. 322 ; Bebinger v. Sweet, 6 Hun, 478; Dawley v. Brown, 9 id. 461. And an answer that sets up an objection that appears upon the face of the complaint is demurrable. Thus if the defendant omits to demur, when there is a defect of parties apparent on the face of the com- plaint, he waives the defect, even though he insists on it in his answer, etc. Want of capacity to sue. All actions brought by an infant shonld be brought in the name of the infant by a guardian ad litem, but unless the question is raised by demurrer or answer, it is waived; Perkins v. Stinnel, 114 N. Y. 359 ; 23 N. Y. State Pep. 657. Non-joinder of plaintiff. An objection to the non- joinder of party plaintiffs not set up by demurrer, or 176 THE RULES OF PLEADING. by a distinct or separate defense, is waived ; Ohaffie v. Morse, 67 Barb. 252 ; Davis v. Bechstein, 69 N. Y. 440 ; TJ. Nat. Bk v. Warner, 12 Hun, 306 ; Bisley v. Wiglttman, 13 id. 163 ; F. S. Bk v. Leggett, 51 N. Y. 552. Improper joinder of causes of action. The objection that there is an improper joinder of causes of action must be taken by demurrer or answer, or it is waived ; People v. Murry, 8 Hun, 577. Joinder of maker and guarantor. An objection to the joinder of the maker and guarantor of an instrument in writing is waived, unless taken by demurrer or an- swer; BZier v. Staples, 51 N. Y. 136; Hand v. Bur- rows, 15 Hun, 481 ; Williams v. Ingersoll, 23 id. 284. Leave of court not pleaded. An objection founded upon the fact that an action was brought by a receiver without leave of the court cannot be taken after issue has been taken thereon ; Palen v. Bushnell, 21 ~N. Y. State Kep. 867 ; 51 Hun, 423. A failure of the complaint to show that plaintiffs letters of administration were issued by the proper tri- bunal is waived by not demurring on the ground that plaintiff has not legal capacity to sue ; Secor v. Pen- dleton, 13 N. Y. State Kep. 387 ; 47 Hun, 281. Defect of parties. A defect of parties in a com- plaint, to which no objection is taken either by de- murrer or answer, is deemed to have been waived ; Ward v. Deane, 32 N. Y. State Rep. 270 ; Fairmount G.&I. Co. v. Hasbrecht, 48 Hun, 206. Plaintiff not the real party in interest. The objection that plaintiff is not the real party in interest must be taken by demurrer or answer ; Spooner v. Delaware, WAIVER OF OBJECTIONS TO PLEADINGS. 177 L., etc., B. B. Co., 115 N. Y. 22 ; 23 N. Y. State Rep. 554. Representative not qualified. In an action by a gen- eral assignee for conversion of parts of an assigned es- tate, the objection that the plaintiff has not filed his official bond must be taken by demurrer or answer, or it is waived; Kilpatrich v. Dean, 19 N. Y. State Rep. 837 ; Buhl v. Ware, 22 id. 423. Statute of limitation by executor or administrator. Can an executor or administrator waive the defense of the statute of limitations by omitting to set it up in his answer ; Dryer v. Brown, 23 N. Y. State Rep. 695 ; 52 Hun, 321. Pendency of another action. Where the pendency of another action appears on the face of the complaint, it is ground for demurrer, and the objection must be taken in that manner, as it can only be taken by an- swer when it does not appear upon the face of the complaint. If not taken by demurrer the objection is waived ; Garvey v. JV. T. L. Ins. & T. Co., 14 N. Y. State Rep. 909. Non-joinder of party defendant The fact that a mort- gagee should have been made a party to an action upon a policy of insurance, if not taken by demurrer or an- swer, is thereby waived; Carr v. Security Ins. Co., 109 N. Y. 504. Proof without objection. Where defendant relies upon a mistake in reducing to writing the contract sued on and desires its reformation, he should allege the facts entitling him to reformation, and ask judg- ment therefor as a counter-claim ; but if there has been no objection at the trial, it may be disregarded on ap- 23 178 THE RULES OF PLEADING. peal where lie obtains the relief sought; Born v. Schrenkeinsen, 110 N. Y. 55. A defense that there was another agreement. A de- fense, that by the terms of a contract any dispute was to be the subject of arbitration, must be set up in the answer or it is waived ; Varian v. Johnson, 108 N. Y. 645. Remedy at law in equity action. Where the com- plaint in an action in equity alleges that there is no adequate remedy at law, and the answer admits the fact, the question cannot be again raised ; Town of Mentz v. Cook, 108 N. Y. 504. It seems that a de- fendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, un- less he pleads that defense in his answer, and defendant by going to trial waives the objection ; Baron v. Kom, 21 N. Y. State Eep. 62 ; 51 Hun, 401. Partial payment. Partial payment must be pleaded in the answer, although the complaint contains an al- legation of non-payment and the answer a general denial; Beaman v. Lyon, 27 N. Y. Week. Dig. 168. Leave to sue. The objection that plaintiff in an ac- tion upon a judgment has not obtained leave to sue, is waived unless raised by demurrer or answer; Brush v. Hoar, 15 N. Y. State Rep. 859. Illegality of contract. The defense of illegality must be pleaded ; Hopkins v. Ensign, 11 N. Y. State Eep. 85. Damages for breach of covenant to make repairs. Dam- ages for breach of covenant to make repairs, etc., must be pleaded as a counter-claim to be available ; Scott v. Montells, 109 N. Y. 1. Defect of parties, when waived. Where, in an action WAIVER OF OBJECTIONS TO PLEADINGS. 179 of ejectment, the plaintiff failed to make tenants, who were the actual occupants of the premises, parties as required by section 1512, Code of Civil Procedure, and the complaint did not disclose this omission, the remedy of the defendant is to set up the non-joinder by an- swer; otherwise the objection is waived; Glason v. Baldwin, 37 N. Y. State Rep. 213. No cause of action stated. Where the defendant in- tends to claim that the allegations of the complaint do not make out a cause of action, his remedy is by de. murrer or by motion to dismiss on the trial; failing thus, he cannot raise the point on appeal ; Hinds v. Kellogg, 37 N. Y. State Rep. 356. Corporation. Where it appears in the complaint that the defendant is a corporation, if it does not allege that the defendant is a domestic or foreign corpora- tion, it is demurrable ; N. Y. Code, sec. 1775 ; Baker v. Star Printing Co., 3 N. Y. Law Bull. 29. Action on undertaking on appeal. Where the com- plaint in an action on an undertaking given on appeal fails to allege that the notice required by section 1309 of the Code was given, the complaint is demurrable, but if the objection is not taken by demurrer or an- swer, it is waived ; Gleinwood v. Wilson, 2 N. Y. Law Bull. 33. Time to move to make pleadings more definite and cer- tain. A motion to make a pleading more definite and certain must be made before answer; Gridley v. Gridley, 7 N. Y. Civ. Pro. Rep. 215 ; and within twenty days after service ; Brooks v. Hanchett, 36 Hun, 70. County court waiver. Where the defendant in an 180 THE RULES OF PLEADING. action in county court appears generally and demands a copy of the complaint, and by his answer does not allege non-residence or attack the jurisdiction of the court, except by a denial of an allegation of the com- plaint that the parties are both residents of the county, he thus admits the jurisdiction of the county court, and no issue as to his residence is made; Donnely v. Woolsley, 38 N. Y. State Eep. 39. INDEX Abatement. Page. action for penalty 3 for inducing one to marry another 3 for letting unhealthy premises 3 for ciyil damage 3 for killing another 3 "wrong against husband and wife 4 for dissolution of a corporation 5 cause of action, abates when 1 common-law rule 1 ciyil death, effect of 4 definition 1 plea of : another action pending 6 defect of parties 6 non-joinder of necessary parties 6, 41 death of parties 4 ■wrong name 6 person sentenced to imprisonment for a term 5 special proceedings 2 does not abate, when 2 when action does not abate 2 special proceedings does not abate 2 Account Stated. pleaded, how 84 Admissions. by not denying 40 plea of tender 40 express, effect of 41 of implied matter 40 182 INDEX. AGENT. Page> acts of, not to be alleged 101 counter-claim 119, 120 right of party to set off agent's debt in action by prin- cipal 121 Ambiguous Pleading. effect of 109 Amendment. amplification of pleadings by amendment 11, 12 by trial court 9 change of venue by, not allowed 7 changing cause of action not allowed 9 changing theory of action not allowed 10 demurrer by answer not allowed 8 effect of 9 enlarging demand for relief on default 12 matter happening subsequent to the original pleading. 7 motion to strike out, how effected by 7 new cause of action 10 notice of trial, effect of 7 notice of, must be given to all parties - .. 8 power of trial court to allow 9 power of Special Term to allow 10 new cause of action 10 supplemental pleading, amendment of 7 time, how reckoned on 7, 8 waiver of right to 8 what not allowed at trial 9, 10 Answer. admission, effect of express, in a pleading 41 and avoidance, how pleaded 18, 32 expressed, effect of 40 by not denying 40 admissions coupled with affirmative averments 17 adultery as a defense to action of separation 24 alteration of instrument, how pleaded 37 arbitration and award, answer of 19 INDEX. 183 Answer — Continued. Page. adverse possession must be pleaded, when 24 bad character of plaintiff in slander 37 carrier's contract, answer as to 25 conjunctive denial, bad, when 18, 29 corporation , 26 issue upon their notes, etc 25, 26 definition 13 demand for relief 13 costs 13 denial 30 general 30 general and special to the same allegation, bad 30 of facts impliedly averred 31, 40 what is not 30, 31 held to be a denial 31 upon information and belief 28 of knowledge not sufficient 28 of all or all the material allegations bad 29 conjunctive 26, 29 counter-claim as a denial 31, 32 of each and every allegation not admitted 29 special by reference to folios not proper 27, 28 what facts admissible under general 33, 35 alteration of instrument 37 arbitration and award 37 bad character of plaintiff in slander 37 erim. con 36 custom 37 judgment in another action 36, 37 only part of the goods had been delivered .... 37 notice of protest 36 payment 36, 20 Btatute of limitation on conversion of, note, 23, 35, 36 title in third person, in conversion 27 replevin 35 of real estate in a stranger 37 184 INDEX. Answer — Continued. Page. what facts admissible under general denial — Cont. that a chattel mortgage is void 36 work sued for was unskillfully done .... 37, 38 determination of claims to real property 27 divorce or separation 24 each defense and counter-claim must be complete in it- self 14 entitling 13 equitable defenses 21 hypothetical statement 17 inconsistent defenses 16 implied matter „ , 40 justification, how pleaded 32, 33, 110 matter accruing after suit brought 17 new, what is 18 mistakes 24 mitigation 32, 34 negative pregnant 17 plaintiff not real party in interest 19 sham, how disposed of 140 Assault and Battery 89, 90 by servant 89 Assessment. action to set aside 65 Assignee. action by and against 91, 93 complaint must allege refusal of, when 91 counter-claim action by and against 119, 120 Assignment. when action of right is not assignable 1, 2, 3 right of action is assignable 1, 2 must be pleaded 60 Association. suits by and against 63 Bank. action against officers of 91 INDEX. 185 Bailee. Page . demand necessary, when ■.. T2, 93 Belief. denial of 28 form of denial 29, 32 Bills. acceptor for honor 88 action by drawer against drawee 88 excuse for not presenting must be averred 84 holder against acceptor 88 indorser after inception 85 no notice of protest, how pleaded 36 presentment and demand 86 waiver of demand, how pleaded 87 Bill of Particulars. account, party entitled to, when 41 affidavit must show what 42 by whom affidavit must be made 42 defendant must furnish, when 42 disobedience, how punished 46 discretionary to grant, when 41 effect of bill 46 how matters should be stated 45 obtained 42 in what actions allowed 42 cases ordered 42, 43, 44, 45 office and effect of 42 what not an excuse for 46 when bill will not be ordered 45 Breach of Agreement. to indorse notes, how pleaded 100 joint and several 100 Cloud os Title. action to remove 64 invalid lien will not sustain, when 65 when the law raises presumption of validity 65 action will lie 65 24 186 INDEX. Complaint. Page. account stated, how alleged 103 acts, what sufficient averment of 53 agreed, the word 103 ambiguous pleading, effect of 109 agent, acts of, not to be alleged 101 assault and battery 89, 90 assigned claim, action on 60 association, action by and against 63 bills, notes, checks, etc. : action by prior against subsequent party 84 after death of indorser 87 drawer of check, action against 84 excuse for not presenting note for payment 84 indorser against maker of note 86 after inception 85 of past-due note 87 note payable to fictitious person 86 ownership of plaintiff must be alleged 85 premium note 86 presentment and demand 86 promise to pay without demand 87 waiver 87 bill of exchange 88 acceptor for honor 88 drawer against drawee 88 holder against indorser 88 bonds and undertakings : to discharge an attachment 78 given on arrest 78 injunction, action on 78 replevin, action on 78 on appeal, action on 79 of executors, action on 79 specific breach must be alleged 78 carrier, contract of, how alleged 60 causes of action that cannot be joined 54 mingling 55 INDEX. 187 Complaint — Continued. Page. consideration must be alleged 60 cloud on title, action to remove 64 complaint must show necessity for 64 invalid lien will not sustain 65 when action will lie 98 where the law raises presumption of validity 65 conclusions, stating 56 what are statements of 56 construction of 103, 104 contract : breach of agreement to indorse note 100 covenant to save harmless 100 joint and several 100 non-delivery 99, 100 reasonable time 100 reformation of 59 warranty, implied 100 conversion, assignment after 102 allegation of possession 51 corporation : complaint under section 1775, Code, etc 90 foreign 90 indebtedness exceeding capital stock 90 municipal 92 officers, under section 1781, Code, etc 90 plea of existence 90 creditor's action : return of execution 98, 99 trustees of manufacturing company 99 to remove obstruction to execution 99 definition 47 demand, necessary, when 93 agent or factor 94 bailee or depositor 93 creditor, action against 94 guarantor 93 goods to be paid for with note 94 188 INDEX. Complaint — Continued. demand necessary, when — Cont. Page. mistake 93 money received 93 note payable in a particular place 93 due proceedings 103 duress, complaint in action for 82 divorce, absolute, complaint in 104 and separation cannot be joined 55 dower, action by claimant of 67 widow's action for 68 ejectment 64 election of remedies : what is not 71 when final 71, 72 fraud 72 waiver of tort 71 what is deemed 70 execution : purchaser at sale, action by 68 facts : allegations of 50 definition 47 implied need not be alleged 49 traversable * 49 what are , 49 foreign laws and statutes , 58 formal commencement 47 fraud and deceit 76 knowledge must be alleged 61 what averments necessary 76, 77 gaming : complaint for money lost at 81 against stakeholder 82 guardian, plaintiff suing by 62 heirs, action against 101 implied facts need not be alleged 49 inconsistent counts 107 inducement, matter of 47 INDEX. 189 Complaint — Continued. insurance : Page . fire policy, complaint on 80 life policy, complaint on 81 instruction, breach of, how pleaded 89 instrument : for payment of money only 61 not necessary to set out contents, when 107 interpleader 77, 78 joinder : causes of action that cannot be joined 54 for breach of duty as trustee and individually. 54 individual claims and those which accrued to a deceased person 54 legal and equitable 57 miscellaneous 55 two persons suing for same property 54 jurisdiction : county court, how pleaded. 89 injuries occurring out of the state 108, 109 landlord : action against, for injuries 95 omission of duty 102 leave to sue : action on judgment 79, 80 drunkards 80 lunatics 80 official bonds 79 receivers 80 trustees 80 legacy, accounting in action for 70 legal effect : statement of, not necessary 105 legal and equitable causes 57 liability to pay, allegation of, when sufficient 106 libel and slander : ambiguous words 73, 74 business, profession, special character, etc 74 190 INDEX. Complaint — Continued. libel and slander — Cont. Page. extrinsic facts alleged, when 74 innuendoes, office of 75 judicial and legislative proceedings 75, 76 local meaning of words 74 must be alleged 74 malice, how averred 74 names of clients, patients or customers must be al- leged, when 74 not per se 73 pecuniary damages must be alleged, when 74 perse 109, 110 words, how set forth 74 malicious prosecution 98 mechanic's lien, action to foreclose 66 mesne profits 88 mischievous animals 96 modified contract 59 money lost at gaming : complaint for 81 against stakeholder , 82 mutual accounts, how affected by statute of limitation. 105 names of parties 48 negligence : contributory , , 95 under sections 1902 and 1903 of Code 95 sufficiency of 95 non-payment must be alleged 101 nuisance, action for 67 partition, sufficiency of complaint in 107 penalties, action for, under excise laws 99 performance : averments of, necessary, when 51 defendant's refusal to perform before time for performance, effect of 52 excuse for non-performance 51 tender 51 what sufficient excuse for non-performance 52 INDEX. 191 Complaint — Continued. p age . quantum meruit 53 quia timet 68 rebuttal, facts for, how pleaded 108 receiver, capacity to sue must be alleged 61 reformation of contract 59 refusal to sue : assignee 91 cestui que trust against trustee 92 executor 91 must aver 91 receiver 91 trustee 91 relationship must be pleaded, when 89 relief, inconsistent, alternative 102, 103 what demand sufficient 105 replevin : demand, how alleged 106 wrongful detention 101 request 92 in action for services 61 school teacher, action for wages by 104, 105 sheriff : action for escape 83 exempt property 83 failure to return execution 83 special damages for : breach of contract , 98 injuries to real property 97 wife in action by husband 97 selling mortgaged chattels 98 slander 97 splitting up demands : entire 72 separate 72 statutes, how pleaded 58 tax payer's action, Code, section 1925 82 192 INDEX. Complaint — Continued. title of cause : Page. representative capacity in 105 when sufficient 104 town and highway commissioner 93 trespass 63 trustees, capacity to sue, how alleged 61 use and occupation 63 waste, action for 68 will : action to establish 69 determine the validity, construction or effect of a testamentary disposition of property under, 69 construction of. 69 Conclusions of Law. examples of 56, 57 not the subject of an issue 57 should not be pleaded 56 what are statements of. 56, 57 Conditions. performance of, when and how alleged 72, 84 precedent 91, 93 Confidential Communication. privileged, when 41 Consistency. allegations of defense should be consistent 16 complaint not inconsistent, when 107 Construction of Pleadings. counts, all averments of, must be taken together 134 due proceedings 103 each cause of action and defense must be separate and distinct 103 facts as pleaded must control 12, 102 of complaint under demurrer 133, 134 pleadings must be liberally construed 103 to be taken together 103 provision of the Code relating to 103 INDEX. 193 Conversion-. p age . allegation of possession 51 assignment after ., 102 Cobpo RATION. answer of, in action on their notes, etc 25 corporate indebtedness, effect of 90 denial of, how made 26 dissolution of, abates action, when 5 foreign, complaint in action against 90 issue by, how formed 26 plea of existence, when ^sufficient 108 suit by and against 90 County Court. demurrer 127 jurisdiction of, how" pleaded 89 in equity causes 144 Counter-claim:. as a defense 124 definitions 112 both parties are plaintiffs, when 112 cause of action against plaintiff or person whom he rep- resents 112 defendant must own counter-claim at commencement of action 113 form of alleging counter-claim 114 limitation not same as if sued upon 114 defendant may waive tort and set up damages 114, 115 defendants severally liable ,. '. 115 divorce 24, 25 action on assigned claim, counter-claim allowed, when 115 affirmative judgment for defendant not allowed in, when 116 tort against contract and contract against tort 116 contract, when it may be set up against tort 116, 118 tort, when it may be set up against tort 116, 117, 118 fraud against contract 116, 117 judgment as a counter-claim 118 25 194 INDEX. Counter-claim — Continued. p age . executor and administrator 119 action brought by ... , , 119 against 119 receivers, assignee's insolvency, etc 119 when counter-claim may be set up against. . . 119, 120 connected with the subject of the action, what is 120 dismissal of complaint, effect of 120, 121 surety, right of action of, on principal's debt 121 agent, right of party to set off agent's debt 121 payment, for extension of time 122 foreclosure, counter-claim in 122 landlord and tenant, counter-claim and action by . . 122, 123 real estate, counter-claim in action for damages 123 infant, counter-claim and action by 62 separation, action for 27 set-off, action for , 124 Covenant. to save harmless, complaint in action upon 100 Ckeditok's Bill. aid of court to remove incumbrance 99 execution returned unsatisfied, necessary, when ... 98, 99 one creditor may sue for all 96 tender of debt in suit by stockholder 91 trustees, directors, receivers, etc., are necessary parties. 97 what party must show to entitle him to such aid 99 when action may be maintained without return of exe- cution 99 Damages. enlarging demand for, by amendment 12 not alleged, cannot be recovered for 96, 97 special, how pleaded 96, 97, 98 Death. action for causing 3, 95 when it abates by 2 civil 4, 5 INDEX. 195 Death — Continued. Page. convicts for life deemed civilly dead 5 cannot maintain action. 5 sentence for one year or more 5 persons civilly dead may be sued 5 Deceit. allegation of knowledge in action for 61 wrongful intent, action for 76 Defendants. accounting 153, 154 all parties to bills, notes and checks 85-87 corporation must be, when 155 creditor's action 152, 153 convicts may be made, when , 5 ejectment 153 foreign government cannot be 143, 144 heirs, executors, etc 153, 154 idiots, lunatics and habitual drunkards may be 154 infants, etc 157 notice of amendment of pleading must be given to, when 8 one denying for another 30, 31 preferred creditor. .* 153 state cannot be 143, 144 stockholders in action by servant of corporation . . 155, 156 who must be made 155 Definition. abatement 1 answer 13 complaint 47 demurrer 124 Defenses. counter-claim as 124 each must be complete in itself 136 effect of, to one of several 136 number allowed 13, 14 partial 136 196 INDEX. Defenses — Continued. Page. parts of same 14 separating 13, 15 Demand. agent or factor must be alleged, when 94 against guarantor must be alleged, when 93 bailee or depository must be alleged, when 93 character of relief demanded 102 creditor, action against 94 for money received must be alleged, when 93 form of demand for relief. 102 must be alleged, when 93 need not be alleged, when 94, 106 note payable at a particular place 93 on certificate of deposit 95 Demands. separate 72, 73 splitting up 72 Demueeeb. amendment proper, when 8, 137 county court 127 definition, nature and office of 124 defect of parties means too few parties not too many. . 130 defect must appear on the face of the complaint, 125, 126 127, 128 extend to an entire cause of action 133, 134 of parties plaintiff or defendant 129 effect of, as an admission of facts 125, 137 omission to demur 125 blending causes of action 131 demurrer to answer 126, 130 to reply 135, 136 form of demurrer to complaint 125, 126 answer 126, 127 reply 136 for want of jurisdiction 125 defect of parties 125, 129 INDEX. 197 Demurrer — Continued. Page. for misjoinder of causes of action 131 insufficiency of complaint 125, 126 answer and counter-claim 132 misjoinder of parties plaintiff 129 must specify grounds of objection 125 when demurrer to complaint will lie 125 remedy for defect of plaintiffs 129 non- joinder of defendants 130 the court has no jurisdiction over the person 126 of the subject of the action 127 where the plaintiff has no legal capacity to sue 128 another action is pending 128 when a demurrer to an answer will lie 133, 134, 135 complaint may be attacked on 135 a demurrer to a counter-claim is proper 126, 136 will lie to a reply 134, 136 who may, for defect of parties 130 to separate counts, effect of , 133 where a complaint states a cause of action and a defense. 133 to counts must be determined 134 answer that sets up matters that should have been taken by, bad 135 supplemental, not subject of 135 Denial. conjunctive 26, 29 counter-claim as 31, 32 general 30 and special to the same allegation bad 30 of all, or all the material allegations, bad 29 each and every allegation not admitted good 29 facts impliedly averred 31, 40 knowledge not sufficient 28 special, by reference to folios not proper 27, 28 upon information and belief proper 28 what is not 30, 31 held to be 31 198 INDEX. Divorce. p age . answer in 24, 25, 26 separation 27 complaint in 55, 104 counter-claim in 27 reply in 24, 25 Dowek. action for 68 to determine 67 Dueess. complaint in, action to recover money paid under 82 plea of 17 Ejectment. mesne profits in , 97 premises must be wrongfully withheld 64 title of stranger under general denial 37 uniting claim for land and for damages 97 Election of Kemedies. between inconsistent defenses 13, 15 once made conclusive 70, 71 party must abide by 70, 71 waiving contract and suing in tort 71 tort and suing in contract 71 what is deemed an election 70 not deemed an election 70 Equitable Actions. county courts have no jurisdiction in 144 Escape. action for 83 Excise — Penalties. action for 99 Execution. action to remove obstruction from 99 by purchaser at sale under 68 failure to return, action for 83 return of 98, 99 INDEX. 199 Executors and Administrators. p age . action by and against 53, 61, 62 counter-claim 119 demand against, and individually 53 the word "as" 62, 105 Exempt Property. action for 83 Pacts. averments that are held to be 50 for rebuttal, how alleged 108 implied, need not be alleged 49, 50 statement of legal effect not necessary 105 that cannot be proved under a general denial 37 traversable 49 what are 49 Failure of Proof. account stated and special contract 172 general 172 tort and contract 172 Foreclosure. complaint in action upon mechanic's lien 66 counter-claim in action for 122 Formal Commencement. county of trial 138 names of parties 138 of complaint 47, 137, 138 title 47 Fraud. silence as 76, 77 statute of, how pleaded 21 waiver of election 72 what averments necessary in action for 61, 76 Frivolous Pleadings. answer, what is 140 demurrer, what is 140 what is a 139, 140 200 INDEX. Gaming. * Page . money lost at, complaint for 81 stakeholder, action against 82 Goods. to be paid for with note, action for. 94 Guardian ad Litem. complaint by or against 62 effect of omitting to appoint 62 verification of pleadings by 174 Heie. action against 101 Husband and Wife. for injuries to wife 97 Imprisonment. effect of, on parties 4, 5, 6 Indemnity. action upon covenant for. 100 Infants. action by and against 62 Instructions. breach of, how pleaded 89 Instrument. for the payment of money only 107 Insurance. company, answer of 25 fire policy, action on 80 life policy, action on 81 marine policy, action on 80 Interpleader. what must be averred in 77, 78 Irrelevant Pleading. new matter, when 141 when stricken out 141 not stricken out 141 waiver ■, 142 INDEX. 201 Joinder of Causes of Action. p age . causes that may be joined 48, 57 cannot be joined 54, 55 for breach of duty as trustee and upon individual bond 54 demand against part of the defendants 55 divorce and separation 55 individual claims and those that accrued to decedent whom plaintiff represents 54 legal and equitable causes 57 two persons suing for same property 54 Jurisdiction. consent cannot confer, when 128 county court in equity causes 144 as to parties 89, 127 general 42, 143, 144 of the person 126 subject of the action 127 Justification. how pleaded in actions of libel and slander 32, 33 Knowledge. necessary to allege, when 61, 96 in action for fraud 61 for damages caused by vicious animals 61 Landlord. action against, for injuries 102 leasing unhealthy premises, abates 3 counter-claim in action by 122, 123 Leave to Sue. necessary, when 79, 80 in actions against receivers 80 lunatics 80 upon judgments of court of record 79, 80 sheriff's bonds 79 undertakings on appeal 79 official bonds generally 79 26 202 INDEX. Legacy. Page . accounting in action for 70 Libel. ambiguous words in 73, 74 business, profession, etc. 74 extrinsic facts must be averred 74 how pleaded 74, 109 innuendoes, when necessary 75 judicial and legislative proceedings 75 justification 32, 33 local meaning of words must be alleged, when 74 malice must be averred 74 mitigating circumstances Ill names of clients, patients and customers must be given, when 74 not per se, how set out 73 per se 10 pecuniary damages, how alleged 75 privileged statements, what are Ill special damages must be alleged, when 97 words, how set forth 74, 109 Limitations. counter-claim, time not limited 114 mutual accounts as affected by 105 must be pleaded 23 Lunatics. action. by and against 79, 80 Malicious Prosecution. pleadings in action for 98 Mareied Woman. action for injuries to 97 Mechanics' Lien. pleadings in action to foreclose 66 Mesne Peofits. action for 88 INDEX. 203 Mingling Causes of Action. Page, effect of 55 Miscellaneous Causes of Action. that cannot be joined 55 Mischievous Animals. action for damages of 96 Misjoinder of Causes of Action. all defendants not affected by all the causes 55 blending of two causes, effect of , 55 of parties, effect of 55 of plaintiffs, effect of 148, 153 objection to, when raised 10, 13 Mistake of Fact. action to recover money on 94 how set up in answer „ 24 Modified Contract. complaint in action upon 48, 59 Mortgagee of Chattels. against party selling 98 Municipal Corporation - . presentation of claims to 92 Names. of parties in pleading 48, 138, 157 court, county, etc., must be specified in complaint 48 Negative Pregnant. what is 17, 18 Negligence. complaint for 95 contributory 95 defense 24, 26 injuries occurring outside of state 108, 109 killing, action for 95 landlord, action for 95 omission of duty 95 pleading in action for 104 204 INDEX. New Matter. Page. another action pending 18 adverse possession 24 adultery of plaintiff 24, 25 carrier's contract 25, 60 determination of claims to real property 63 equitable defenses 21 former recovery 19 foreign law 23 illegality of contract 20 justification and mitigation 25 modification of contract 25, 59 no notice of protest 19 plaintiff not the real party in interest 19 suing as a partnership 24 release of covenant 20 statute of limitation 23 fraud 21, 22 law in regard to trusts 24 separation 27 tender 21 traversed, how 34, 35 usury 22, 26, 27 what cannot be shown under a general denial, 33, 38, 39, 40 what is 17, 18 what sufficient averment of new matter 32 what held to be new matter 33, 34 when not necessary to aver new matter 34 Non-Joindee. of parties 41 of defendants, remedy for 6 Non-Payment must be alleged, when 101 Notes. action by prior against subsequent party to. 84 debt due must be alleged 85 excuse for not presenting, must be averred 84 INDEX. 205 Notes — Continued. p age . indorser past-due note 87 after inception, action against 85 against maker 86 ownership of plaintiff must be alleged , 85 payable to fictitious person 86 presentment and demand 86 after death of indorser 87 premium, action on 86 promise to pay without demand 87 protest, no notice, how set up 25, 36 waiver of demand 87 Nuisance. action to abate, and for damages 67 pleadings in action for 67 Objections. to jurisdiction, when and how taken 89, 128, 144 limitation, when and how taken 23 non-joinder and mis- joinder 6, 41 waiver of 174, 178 Officers. of corporation, action against 107 One Suing foe Many 96 Parties. accounting 153, 154 agent 157, 158 bringing in 158, 159, 160 creditors, action by 152, 153 preferred 153 against trustee 48, 144, 145 directors against directors 145 foreign executors as plaintiffs 144, 156 corporation, action to dissolve 145, 147 heir, against executors, etc 154 how infant may sue 157 husband not proper party in action against wife .... 4, 5 6, 152 206 INDEX. Parties — Continued. p age . husband not liable for torts of wife 152 insane party 154, 157 infants 157 joint owners , 150, 151 beneficiaries 155 litigating with co-defendants 160 married women, action by and against 151, 152 names of 156, 157 one suing for many 154, 155 partners 149, 150 action between 150 dormant, not necessary defendants 149, 150 member of two firms 150 representative of deceased 149, 150 torts, liability of, for 149 whom must be plaintiffs 148, 149 plaintiffs, who must be 144, 145, 147, 149, 150 principal must sue, when 157, 158 real party in interest , 156 stockholder, actions by 144, 145, 146, 155 to dissolve corporation 145, 146 in action by servant 155, 156 one suing for all 156 tenants in common 150 trades-union 155 trustee of an express trust 158 Partition. parties defendant in, cannot demur, when 134 pleadings in 107 Part Payment. how pleaded 20 Payment. for extension of time must be pleaded as counter-claim. 122 must be pleaded, when 20, 36 non-payment must be pleaded, when 101 INDEX. 207 Penalties. Page . action for, abates 3 under excise laws 99 Pendency. of another action, how pleaded 18 Performance. averment of, necessary when 51 excuse for non-performance 52 what is sufficient 52 refusal before time for, effect of 52 sufficient averment of 51 Plaintiff. action by tax payer 82 name of 156 one suing for money 154, 156 tenants in common 150 when one party member of two firms 149 who may be joined as 149, 150, 151, 152, 153 must be joined as 148, 149, 150, 152, 153 Pleading. action founded on instrument for payment of money only 61 against indorser, what necessary 86 admissions coupled with affirmative averments, effect of, 17 allegation of extrinsic facts to show application of words. 74 of possession implies title 51 of liability to pay sufficient, when 106 anticipating and negativing defense not proper 108 bill of particulars 41 when bill is obtainable , „ 48 contents of bill of particulars . 45 office of bill of particulars 42 capacity must be alleged 61 consideration must be alleged, when 60 conditions precedent, how pleaded 49 each cause of action and each defense a distinct plead- ing 14 claim or defense must be complete in itself 14 208 INDEX. Pleading — Continued. Page. effect of admissions in a pleading 41 election between causes of action 70 once made is final 70, 71 facts must be stated as they are 105 what are 49 showing right to maintain an action given by stat- ute 58, 59 implied, need not be alleged = . . . . 49 showing a right to sue in a representative capacity. 105 averments that are held to be 50 foreign statutes, how pleaded 23, 47 in action for slander and libel 73, 74 legal conclusions should not be pleaded 56 liability of defendant in representative capacity 105 matters of inducement, how pleaded 47 presumed, may be omitted 48 office of innuendo not dispensed with 75 private statutes, how pleaded 58 pleadings must be subscribed 40 reply: another action pending 164, 165 divorce 165 enlarging demand in complaint by 165 general 163, 164 insufficient 164 not necessary, when 163, 166 recoupment not necessary to 165 to amended answer not necessary, when 163 when court may require 165 setting forth copy of note, etc., sufficient 61 supplemental, not subject to demurrer 135 things implied need not be pleaded 105 what causes of action may be joined 48 must all belong to same class 48 when causes of action are divisible 72 are indivisible •. . 72 several statements of a single cause of action proper. . . 48 INDEX. 209 Pleading — Continued. Page, traversable facts, what are 49 Proof without Allegations. a party must allege as well as prove his case 160, 163 what relief may be given 163 when pleadings cannot be conformed to proof. .160,161, 162 Purchaser. of real property on execution, action by 68 for non-delivery 99 Quia Timet. action for 68 Quantum Meruit. complaint in 53 Seal Property. action in regard to 63 to determine claims to 63 cloud on title, action to remove 64 when action will lie 65 invalid lien will not sustain 65 when law raises presumption of validity 65 counter-claim in action for damages 123 ejectment 27, 64 injuries to, situate out of the state 24 purchaser on execution, action by 68 parties in action for 151 trespass 63 Redundant Matter 141, 142 Reformation of Contract. complaint in action for. , 59 Relationship. must be pleaded, when 89 Receiver. action by and against 61 counter-claim 119 representative capacity in title 105 refusal to bring action must be alleged, when 91 - 27 210 INDEX. RELIEF. Page. alternative demand 139 demand for „ 13, 138, 139 inconsistent, alternative 102, 138, 139 what plaintiff entitled to 138 when demand for, may be enlarged 139 Eeplt. another action pending 16, 165 enlarging demand in complaint by 163, 164, 165 in general 163, 165 divorce cases 165 not necessary, when 163, 164, 166 School Teacher. action for wages by , . 104 Several Statements. of a single cause . . k 48 in equity actions 49 Sheriff. escape, action for 83 exempt property, action for 83 failure to return execution 83 Slander. ambiguous words, how pleaded 73, 74 business, profession, etc., must be pleaded 74 complaint must set out words spoken 32, 33 innuendoes, when necessary 75 how pleaded 109 justification, how pleaded 32, 33, 110 local meaning of words 74 malice, how averred 74 mitigation, how averred 32, 33, 111 names of clients, patients, etc., must be alleged 74 plaintiff's bad character may be shown under denial. . . 37 privileged statements, what are Ill words per se 110 not per se 73 how set forth 74 INDEX. 211 Splitting of Demands. p age . entire demand 72 separate demand 72, 73 Statutes. of frauds, how pleaded 21, 22, 58 of limitation, how pleaded 23 foreign, how pleaded , 58, 59 private, how pleaded 58 public, not necessary to plead 58 Stockholder. action by 91, 155, 156 liability to servant of corporation 15 one suing for all 156 Supplemental Pleading. amendment of, proper, when 7 answer, necessary, when : 167, 168 cannot cure defective pleading 168, 169 demurrer, not the subject of 167 office of 167 what may be set up in 168, 169 when allowed 166, 167 Tax Paters. action by 82 Tenant-in-Common. action by and against 150 all must be joined, when 150 Tender. in action to redeem 50, 66 how pleaded 34, 35 must be pleaded, when 40, 41, 66 Time. reasonable, how alleged 100 Title. of cause, when sufficient 103, 105 what sufficient averment of 50 Traverse. new matter, how 34, 35 212 INDEX. Tbespass on Land. Page. complaint in action for 63 Trusts. statute law in regard to 24 Trustees. action by 61 cestui que trust, action by 92 counter-claim. 119, 120 refusal to bring action must be alleged, when 91 representative capacity in title 105 Undertaking. of executors, action on 79 in replevin, action on 78 injunction, action on 79 leave to sue on 79 on appeal, action on '. 79 arrest, action on 79 attachment, action on 78 official bonds, action on 79 specific breach must be alleged, when , 78 Use and Occupation. action for 63 Usury. how pleaded - 22 Variance. account stated and special contract ■ 172 disregarding of, is equivalent to an amendment 170 failure of proof 172 immaterial, how provided for 171 in general 170 new cause of action cannot be inserted at trial 171 objection waived, how. 171 party must prove he has been misled, when 170 what are immaterial 171 material 172 Venue. cannot be changed by amendment of complaint 7 INDEX. 213 Verification. Page answer must be, when 174 by agent or attorney 174 infant or his guardian 174 omission of, when allowed 173 out of the state, how made 174 by an infant or his guardian 174 "Waiver. in general 174 objection to the jurisdiction of the court not waived. . . 175 demurrable objection cannot be taken by answer. . 137, 175 want of capacity to sue 175 non-joinder of plaintiff 175, 176 improper joinder of causes of action 1 76 joinder of maker and guarantor 176 leave of court not pleaded 176 defect of parties 176, 178 plaintiff not the real party in interest 176, 177 representative not qualified 177 statute of limitation by executor or administrator 177 non-joinder of parties defendant 177 proof without objection 177, 178 a defense that there was another agreement 178 right to amend 8 pendency of another action 177 remedy at law in equity action 178 leave to sue not granted 178 illegality of contract 178 damages for breach of covenant to make repairs 178 no cause of action stated 179 corporation 179 action on undertaking on appeal 179 time to move to make pleadings more definite and cer- tain 179 county court 179, 180 Warranty, Implied. how alleged 100, 101 214r INDEX. Waste. Page . action for 68 Will. action to establish 69 determine validity, construction and effect of 69 for construction of 69