a. The appropriate cause of demurrer should be stated.-A demurrer fails if the appropriate cause of demurrer has not been assigned (Viburt v. Frost, 3 Abb. 120; Hobart v. Frost, 5 Duer, 672; and see post, 262 a). For judgment cannot be given for a cause different to the one stated (Wilson v. Mayor of N. Y., 6 Abb. 6; 15 How. 500); and all objections except those specified are deemed to be waived (Malone v. Stilwell, 15 Abb. 421; Nelis v. De Forest, 16 Barb. 65). Where a demurrer specified as the ground of demurrer, that the complaint did not state facts sufficient to constitute a cause of action, among other things that it did not show plaintiff's capacity to sue; held, that although the complaint not showing plaintiff's capacity to sue was not a failure to state facts sufficient to constitute a cause of action, yet the objection that the complaint did not show plaintiff's capacity to sue was suffi ciently stated in the demurrer to enable the defendant to have the advantage of it on the argument (Conn. Bank v. Smith, 9 Abb. 168; 17 How. 487).

b. The appropriate ground of demurrer for a misjoinder of parties plaintiff is that the complaint does not state facts sufficient to constitute a cause of action; thus where husband and wife sue for a cause of action, exclusively in the wife, the proper ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action (Mann v. Marsh, 35 Barb. 68; 21 How. 372; and see Walrath v. Handy, 24 How. 353).

c. For a substantial and radical defect in a complaint the proper ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action (Spear v. Downing, 12 Abb. 437; 34 Barb. 523; Struver v. Ocean Ins. Co., 2 Hilton, 475).

d. The objection that the complaint does not present a case for the exercise of the power of the court to remove a cloud from plaintiff's title may be insisted upon under a demurrer which alleges for cause, that the complaint does not state facts sufficient to constitute a cause of action (Hotchkiss v. Elting, 36 Barb. 39).

e. A demurrer bad in part is bad altogether.-Where a demurrer is not intended to apply to the whole complaint, it should specify the part it is aimed at (Jarvis v. Palmer, 11 Paige, 650; Stuyvesant v. Mayor of N. Y., id. 415; Kuypers v. Ref. Dutch Church, 6 id. 57). Where a demurrer purported in its commencement to be a demurrer to the whole preceding pleading, but in assigning the grounds of demurrer, it distinctly set forth and specified the parts to which the demurrer was intended to apply, the court of appeals held that it was properly regarded as a demurrer only to the parts specified, and not to the whole preceding pleading (Matthews v. Beach, 4 Selden, 173).

f. The demurrer must be entirely sustained or fail together (Peabody v. Wash. Mut. Ins. Co., 20 Barb. 342; Cooper v. Classon, 1 Code Rep. N. 8. 347; The People v. Mayor of N. Y., 17 How. 57; Wait v. Ferguson, 14 Abb. 387). Thus, where the complaint contained two causes of action of a class that admitted their being united, but of one of which the court had no jurisdiction, a demurrer to the entire complaint, on the ground that several causes of action were improperly united, was overruled (Cook v. Chase, 3 Duer, 634). The demurrer should have been confined to the cause of action of which the court had no jurisdiction, and should have been on the ground of their want of jurisdiction. (Id.) So if a complaint contains two distinct causes of action, and a demurrer to the whole complaint be interposed, the demurrer must be overruled if either of the causes of action alleged is well pleaded (Butler v. Wood, 10 How. 222; Martin v. Mattison, 8 Abb. 3); and if a complaint state a cause of action against one or some of several defendants, a joint demurrer by all the defendants, on the ground that the complaint does not state facts sufficient, or for defect of parties, cannot be sustained (The People v. Mayor of N. Y., 28 Barb. 240). Where the complaint disclosed a separate cause of action against each defendant, but not a joint cause of action, a joint demurrer for the misjoinder was sustained (Hess v. Buffalo and Niagara Falls R. R., 29 Barb. 391; see Eldridge v. Bell, 12 How. 549: Phillips v. Northrup, id. 17; Brownson v. Gifford, 8 id. 392; Woodbury v. Sackrider, 2 Abb. 402). A demurrer under the sixth sub-division will be overruled if on the facts stated

the plaintiff is entitled to any relief whatever. although not that demanded (Stuyvesant v. Mayor of N. Y., 11 Paige, 415; and see Emery v. Pease, 20 N. Y. 62).

Note to subdivision 1.

a. The meaning of this is, that the person is not subject to the jurisdiction of the court, not that original process has been improperly served (Nones v. Hope Mut. Ins. Co., 5 How. 96; 3 Code Rep. 161). An objection to the jurisdiction which does not appear on the face of the complaint, cannot be raised by demurrer (Wilson v. Mayor of N. Y., 6 Abb. 6; 15 How. 500; Kanig v. Nott, 8 Abb 384).

Note to subdivision 2.

b. The capacity of a plaintiff to sue is independent of a cause of action The facts showing the former are not facts constituting the cause of action ('B'k. of Lowville v. Edwards, 11 How. 216; Vibert v. Frost, 3 Abb. 120; Myers v. Machado, 6 Abb. 198; Hobert v. Frost, 5 Duer, 672). Therefore the objection that the complaint shows the plaintiff has not legal capacity to sue, cannot be entertained where the only cause of demurrer stated is that given by subd. 6. (Id.) A plaintiff in an action on a note has not legal capacity to sue when it appears on the face of the complaint that the plaintiff holds the note as a collateral security under a trust to sell it, but not authorizing the plaintiff to sue on it (Nelson v. Eaton, 7 Abb. 305; revs'g S. C., 15 How. 305). Where a plaintiff miscalls himself by a name which represents no person real or artificial, the remedy, it seems, is by motion, not by demurrer or answer (B'k of Havana v. Magee, 20 N. Y. 356).

c. The objection is not that the plaintiff has not capacity to sue, but that no person natural or artificial is named as plaintiff. Certain persons, as infants, lunatics, and married women, cannot sue except by guardian or committee, or in the case of a married woman, by joining their husband in certain cases. This was what the provision refers to and not the absence of a real person as plaintiff. (Id.)

Note to subdivision 3.

d. Where it appears on the face of the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer. Where it does not appear on the face of the complaint that another action is pending, &c., then if in fact another action be pending, the proper mode for the defendant to avail himself of that fact is by answer setting forth the pendency of such action (Burrows v. Miller, 5 How. 51). This rule applies to an action for a partition (Hornfager v. Hornfager, 1 Code Rep. N. 8. 412; 6 How. 279). See note to section 147.

Note to subdivision 4.

e. The defect of parties defendant for which a demurrer is allowed, is a deficiency of and not too many parties (Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb. 342; Gregory v. Oaksmith, 12 How. 134; Pinckney v. Wallace, 1 Abb. 82; Voorhies v. Baxter, id. 44; Crosby v. Berger, 4 Edw. Ch. R. 210; Churchill v. Trapp, 3 Abb. 306; Davy v. Betts, 23 How. 396; Davy v. Betts, 16 Abb. 446 note; Bank of Havana v. Magee, 20 N. Y. 359). And the mere joinder of too many defendants is not a ground of demurrer by any one of them against whom the complaint sets forth a good cause of action (N. Y. & N. Haven R. R. v. Schuyler, 7 Abb. 41; 17 N. Y. 592; Manning v. The State of Nicaragua, 14 How. 517; Kolls v. De Leyer, 17 Abb. 312). To sustain a demurrer under this subdivision (the objection being the non-joinder of a defendant), it must appear that the party demurring has an interest in having such other party made a defendant (Hillman v. Hillman, 14 How. 460; Newbuild v. Warren, 14 Abb. 80); as that the party not joined is jointly liable with the one sued (Wooster v. Chamberlain, 28 Barb. 602). And it must appear on the face of the complaint that the party defendant for whose non-joinder the demurrer is

interposed is living. If it does not so appear the objection to his non-joinder must be taken by answer (Scofield v. Van Syckle, 23 How. 97).

a. A defect of parties plaintiff is a good cause of demurrer by all the defendants (Brownson v. Gifford, 8 How. 392; Walrath v. Handy, 24 How. 353.) If husband and wife sue together for a cause of action in the husband alone, it is a defect of parties for which a demurrer will be sustained (Id; Dunderdale v Grymes, 16 How. 195; and see Avogardo v. Bull, 4 E. D. Smith, 384; Bartow v. Draper, 5 Duer, 130).

b. Section 122 is to control in determining whether a demurrer for defect of parties is well taken (Wallace v. Eaton, 5 How. 99).

c. A demurrer for non-joinder of parties is well taken where it appears that the court cannot determine the controversy before it without prejudice to the rights of others, nor by saving their rights (Wallace v. Eaton, 3 Code Rep. 161; 5 How. 99).

Note to subd. 5.

d Does a demurrer lie to a complaint under this subdivision for the defect of not separately stating two or more causes of action, they being such as might be united in one complaint if properly stated? That it does not, and that the defendant should have the complaint set right by motion; see Fickett v. Brice, (22 How. 195); Dorman v. Kellam, (14 How. 184; 4 Abb. 202); Moore v. Smith (10 How. 361); Peckham v. Smith (9 id. 436); Robinson v. Judd (id. 378); Gooding v. McAllister (id 123); Forsyth v. Edmiston (11 id. 408); Wallar v. Raskan (12 id. 28); Woodbury v. Sackrider (2 Abb. 402); Badger v. Benedict (4 id. 176, 1 Hilton, 415); Cook v. Chase (3 Duer, 643); Harsen v. Bayard (5 id. 656); Hess v. Buffalo R. R. Co. (29 Barb. 395); and other cases. That a demurrer may be interposed for this cause, see Getty v. Hudson River R. R. Co. (8 How. 177); Van Ñamee v. Peoble (9 id. 198); Durkee v. Saratoga and Wash. R. R. Co. (4 id. 227); Pike v. Van Wormer (5 id. 171); Struss v. Parker (9 id. 342); Colwell v. N. Y. & Erie R. R. Co. (9 How. 313); and in Acome v. Amer. Min. Co. (11 How. 27), Hand., J., thought there was too much doubt on the subject to strike out as frivolous a demurrer on the ground that the causes of action were not separately stated.

e. It has been held that a complaint which alleged that defendant had become possessed of one knitting-machine, the property of plaintiff, by wrongfully taking the same from plaintiff, and that he wrongfully detained the same and had converted it to his own use, and then demanded that the defendant` might be adjudged to pay plaintiff damages for the wrongful taking, detention and conversion, and that the property may be forthwith delivered to the plaintiff, improperly united two causes of action, and was demurrible on that ground (Maxwell v. Farnham, 7 How. 236). A complaint after stating a cause of action on contract against partners, and demanding judgment therefor, contained also allegations that defendants were insolvent, and had fraudulently confessed judgments to hinder their creditors, and demanded an injunction and a receiver;-held that although the last matter might be obnoxious to a motion to strike out, its insertion did not render the complaint demurrible for improper joinder of causes of action (Meyer v. Van Collem, 7 Abb. 222; 28 Barb. 230; see Durant v. Gardner, 19 How. 94; 10 Abb. 445). Allegations of fraud in support of a cause of action and not as constituting a separate cause of action, do not make an improper joinder of causes of action (Campbell v. Wright, 21 How. 9).

f. Where a complaint, in fact, contains but a single cause of action, although some of the allegations may be introduced with the words, "and for a further cause of action," the defendant cannot successfully demur on the ground that several causes of action are improperly united (Hillman v. Hillman, 14 How. 456).

See sections 167, 172.

Note to subdivision 6.

g. It is entirely optional with a defendant whether he will demur or not for the cause that the complaint does not state facts sufficient to constitute a causf

of action; and his election not to avail himself of that right does not preclude him from taking advantage of the defect in the complaint at any stage of the case (Gould v. Glass, 19 Barb. 186; Montgomery Co. B'k v. Albany City B'k. 3 Selden, 464; Higgins v. Freeman, 2 Duer, 650; Budd v. Bingham, 18 Barb. 494); and if two persons are made defendants, and the complaint does not state facts sufficient to constitute a cause of action against one of them, and there is no demurrer for that cause, the objection may be made upon the trial; and upon the fact appearing, the complaint should be dismissed as to such defendant (Montgomery Co. B'k v. Albany City Bank, supra).

a. Under a demurrer, for the reason that the complaint does not state facts sufficient, the defendant cannot object that there is an improper joinder of parties (Eldridge v. Bell, 12 How. 547), or that the plaintiff has not legal capacity to sue (Vibert v. Frost, 3 Abb. 120; Hobart v. Frost, 5 Duer, 671); or that the court as a court of equity has no jurisdiction (Wilson v. Mayor of N. Y., 8 Abb. 6; 15 How. 500; 4 E. D. Smith, 706, note), or that the complaint on a bill of exchange shows the right to sue on the bill is in a third person not a party to the action (Myers v. Machado, 6 Abb. 198; but see Palmer v. Smedley, id. 205; De Witt v. Chandler, 11 Abb. 459), or that the complaint by a corporation does not show its authority to sue (Bank of Lowville v. Edwards, 11 How. 216, Bank of Havana v. Wickham, 7 Abb. 134), or the prayer for relief is too extensive (The People v. Mayor of N. Y., 8 Abb. 19; 4 E. D. Smith, 706, note; Lord v. Vreeland, 24 How. 316; 13 Abb. 195). The only question raised by a demurrer under this subdivision is, whether the plaintiff, upon the facts stated, is entitled to the relief which he claims; and it is immaterial whether that relief be legal or equitable. If the relief be equitable in its nature, but cannot properly be granted without the presence of other parties; an objection on that account cannot be taken by demurrer under this subdivision (Gen'l Mut. Ins. Co. v. Benson, 5 Duer, 168), or by objection on the trial. (Id.) A demurrer on this subdivision puts in issue the validity of the whole complaint (White v Brown, 14 How. 282; Spear v. Downing, 12 Abb. 442; 34 Barb. 523).

b. The complaint, to be overthrown by a demurrer under this subdivision, 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 (The People v. Mayor of N. Y., 8 Abb. 7), or no cause of action against the defendant demurring (Sinclair v. Fitch, 3 E. D. Smith, 677). Where the demurrer admits facts enough to constitute a cause of action, the complaint will he sustained (Richards v. Edich, 17 Barb. 260; Graham v Camman, 13 How. 362; 5 Duer, 697; Hammond_v. Hudson River Iron and Machine Co., 20 Barb. 386; Bank of Lowville v. Edwards, 11 How. 218; Hillman v. Hillman, 14 id. 456, and see Richards v. Beavis, 28 Eng. Law and Eq. R. 157).

c. It seems that in an action against husband and wife, the complaint asking relief against the separate estate of the wife only, but not stating facts sufficient to show a liability of such separate estate, a demurrer by both husband and wife under this subdvision, will be sustained (Goodall v. McAdam, 14 How. 385). But husband cannot demur alone (see Goelet v. Gori, 31 Barb. 321).

145. [123.] (Am'd 1849.) Demurrer must specify the grounds. May be to all or some of the causes of action.

The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

d. As to the 1st and 6th grounds of demurrer, given by section 144, it seems to be settled that a demurrer stating the grounds of it in the language of those subdivisions, is sufficient. With respect to the other subdivisions the

better opinion seems to be that a demurrer under either of those subdivisions, should specifically point out the grounds of objection (Swift v. De Witt, 1 Code Rep. 25; Glenny v. Hitchings, 2 id. 56; 4 How. 98; Grant v. Lasher, 2 Code Rep. 2; Hunter v. Frisbee, id. 59; Durkee v. Saratoga R. R. Co., 4 How. 226; Hyde v. Conrad, 5 id. 112; Annaball v. Hunter, 6 id. 255; Purdy v. Carpenter, id. 361; Hinds v. Troeddle, 7 id. 278; Skinner v. Stuart, 13 Abb. 457; Getty v. Hudson River R. R. Co., 8 id. 177; Haire v. Baker, 1 Selden, 163; Johnson v Wetmore, 12 Barb. 433).

a. Where the demurrer specifies the alleged causes of demurrer it “excludes all other grounds of objection than those particularly set forth," and the defendant cannot insist on any others on the argument (Nellis v. De Forrest, 16 Barb. 65; see ante, 262).a.

b. A demurrer stating "that it does not appear that the plaintiff had any title to the note when the suit was commenced," was held, not to sufficiently assign the cause of demurrer (White v. Low, 7 Barb. 204).

c. A demurrer merely alleging that there "is a defect of parties defendant is defective" in not specifying the particular defect (Skinner v. Stuart, 13 Abb. 443).

d. Where the ground of demurrer stated was that the complaint did not state facts sufficient to constitute a cause of action; among other things, that it did not show plaintiff's capacity to sue; held, sufficiently to point out the objection relied upon, to enable defendants to insist on the argument that the plaintiff had not capacity to sue (Conn. Bank. v. Smith, 9 Abb. 168; 17 How. 487).

e. Where the ground of demurrer alleged is that the complaint does not state facts sufficient to constitute a cause of action, the defendant cannot object to the form of the action or the want of proper parties (Loomis v. Tifft, 16 Barb. 541); or that the court has no jurisdiction (Wilson v. Mayor of N. Y., 4 E. D. Smith, 706 note).

f. There cannot be a demurrer to a portion of a cause of action (Lord v. Vreeland, 24 How. 320; 13 Abb. 195).

g. Where the complaint, after setting forth certain matters of inducement, averred in succession several distinct acts done and committed by the defendants, whereby and by each of which acts the defendants became liable to plaintiff, &c.,-held, that such complaint must be regarded as analogous to a declaration containing several distinct counts, and separate demurrers might be interposed to the several causes of action contained in the complaint (Ogdensburg Bank v. Paige, 2 Code Rep. 75).

§ 146. [125.] (Am'd 1849.) How to proceed if complaint be amended.

If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff, upon filing with the clerk on [due] proof of the service, and of the defendant's omission, may proceed to obtain judgment, as provided by section 246; but where an application to the court for judgment is necessary, eight days' notice thereof must be given to the defendant.

h. Where a defendant has appeared by attorney, the amended complaint is to be served on the attorney, and not on the defendant personally. A judg ment entered as upon failure to answer an amended complaint, which was served on the defendant personally, after he had appeared by attorney, was held irregular (Mercier v. Pearlstone, 7 Abb. 325).

i. In an action against three defendants, two of the defendants demurred to