No request

request must be alleged, see Spear v. Downing, 34 Barb. 523. need be alleged, where one, having received a part payment on a contract, unlawfully rescinds the contract (Fancher v. Goodman, 29 Barb. 316); or to recover of a stakeholder on an illegal wager (O'Malley v. Rees, 6 Barb. 658); or to foreclose a mortgage (Harris v. Mulock, 9 How. 402), although expressed to be payable on demand (Gillett v. Balcom, 6 Barb. 371); or to recover money collected by a commission merchant who is to sell and guarantee payment (Milliken v. Byerly, 7 How 214); or to recover for a passenger's baggage lost by a carrier (Schroeder v. Hudson R. R. R. Co. 5 Duer, 55; Garvey v. Camden R. R. Co. 1 Hilton, 280); nor to recover money paid by mistake (Utica B'k v. Van Giesen, 18 Johns. 485); but the absence of a demand may effect the right to recover interest (id.), where the complaint is upon a contract to pay a precedent debt (Ernst v. Bartle, 1 Johns. Cas. 219), as in the case of money lent, and goods sold and delivered, or where the defendant is to perform the first act (2 N. Rep. 355; Lent v. Padleford, 10 Mass. 230); or where it appears that the defendant has, by his own voluntary act, put it out of his power to comply with a request, if made (Short v. Stone, 3 D. & L. 580; Clark v. Crandall, 3 Barb. 612); or has otherwise so acted as to render a request useless and unnecessary (12 Barb. 512; 5 B. & Ald. 712; 1 D. & R. 361; 10 East, 359; 11 Price, 494; Caines v. Smith, 15 M. & W. 189); but in such cases the act relied on as rendering a request unnecessary should be alleged (id.) No demand need be alleged in an action on a bond conditioned generally for payment of a special sum with interest (Gibbs v. Southam, 5 B. & Adol. 911).

a. Performance.--The rules respecting the mode of setting forth the performance of conditions precedent [not embraced in section 162, or where the pleader does not avail himself of that section] are not substantially changed by the code. Facts showing performance are to be stated (Van Schaick v. Winne, 16 Barb. 94; see Beecher v. Conradt, 13 N. Y. 110; Hatch v. Peet, 23 Barb. 580).

b. The general rule is, that full performance of an entire contract to do any particular service is essential to the payment of compensation, and that no recovery can be had for a part performance (14 Wend. 257; 12 Johns. 165; 19 id. 337; 8 Cow. 63; 11 N. Ÿ. 25). It is no excuse that the service which a party has undertaken to perform is impracticable in itself (Wolfe v. Howes, 24 Barb. 174-666; 20 N. Y. 197). But the sickness or death of the party contracting is a legal excuse for the nonperformance (id.; Faby v. North, 19 Barb. 341), and so is the fact that complete performance is rendered impossible by the act of the law (Jones v. Judd, 4 N. Y. 411), and where such an excuse exists a recovery may be had for the part of the work actually performed (Wolfe v. Hortes, 20 N. Y. 197).

c. In an action for the nondelivery of goods, pursuant to a contract for sale and for delivery at a particular place, the plaintiff need only allege that he was ready, at the time and place appointed for the delivery, to receive and pay for the goods; he need not allege payment nor an offer to pay (Bronson v. Wiman, 8 N. Y. 188).

d. When there is an executory contract for the sale of an article to be paid for upon delivery, at any time within a certain period, and in an action by the seller for the price, it is not enough simply to show the default of the purchaser; the seller must show that he was ready and offered to deliver the goods (Dunham v. Mann, 8 N. Y. 508; Kelly v. Upton, 5 Duer, 336; Cornwall v. Haight, 8 Barb. 328; Crandall v. Clark, 7 id. 169; Considerant v. Brisbane, 14 How. 487; 2 Bosw. 471; Dunham v. Pettee, 4 E. D. Smith, 500; 21 N. Y. 397; and see McKnight v. Dunlop, 4 Barb. 36; Fancher v. Goodman, 29 Barb. 316). Whichever party seeks to enforce the contract against the other, must show performance, or a tender of performance, on his part (id.; Fickett v. Brice, 22 How. 194; Lester v. Jewett, 11 N. Y. 458; Smith v. Wright, 1 Abb. 243). The mere admission of liability, when payment is demanded, does not operate as a waiver of such tender (id.) Where each party has in part performed, semble no allegation of readiness to complete performance is necessary (Grant

v. Johnson, 5 Barb. 161; Wallace v. Warren, 7 Dowl. & L. 60; and see 8 Barb. 535; 4 id. 36; 29 id. 316).

a. Where goods on storage have been lost or converted by the bailee, tender of the storage is not necessary before bringing a suit for the value of the goods (Rivara v. Ghio, 3 E. D. Smith, 264).

b. Where it was agreed that the plaintiff, in consideration of the payment by defendant of a certain sum on a certain day, and on the delivery to him of certain notes, would make a certain assignment to the defendant,-held that, the money not being paid on the day named, the plaintiff might maintain his action therefor without alleging that he had performed, or offered to perform, on his part (Smith v. Betts, 16 How. 251).

c. When the nonperformance of a condition precedent is occasioned by the act of a party either disqualifying himself for performing on his part, or by refusal to perform, the opposite party, in seeking his remedy, is not bound to aver performance or readiness to perform, on his part, but may allege the facts constituting his excuse (Clark v. Crandall, 27 Barb. 73; Garvey v. Fowler, 4 Sand. 665; Crist v. Armour, 34 Barb. 378; Clarke v. Crandall, 3 Barb. 612; Rivara v. Ghio, 3 E. D. Smith, 264; 31 N. Y. 462).

d. The owner of a sheep which has been slain by a dog may bring an action against the owner of the dog without any previous application to the fence viewers (Fish v. Skutt, 21 Barb. 334).

e. Under an allegation of performance, evidence in excuse of non-performance is not admissible. But the party may amend (Hosley v. Black, 28 N. Y. 438; and see in note to § 162, post.)

ƒ. Profert and oyer.-The rules which formerly prevailed with refrence to profert and oyer, have no application to actions under the code (Mayor of N. Y. v. Doody, 4 Abb. 129; Wells v. Webster, 9 How 251; Bright v. Currie, 5 Sand. 433).

g. Reasonable time.-When no time is fixed by agreement for the performance of a duty, the law requires it to be done in a reasonable time (Thomas v. Dickerson, 12 N. Y. 369). A contract to do as soon as possible, means in a reasonable time (1 Com. B. N. S. 110). What is a reasonable time, is a question of fact for the jury (Pattershall v. Tranter, 4 Nev. & M. 649; Fielder v. Starkie, 1 H. Bl. 17). "But such a question can never arise where the agreement itself can be fairly construed to settle the time at which the option is to be determined. It then becomes a question of law for the court " (Sage v. Hazard, 6 Barb. 179; Nelson v. Patrick, 2 C. & K. 641; Fry v. Hill, 7 Taunt. 379; Bain v. Case, 3 Car. & P. 497); where a statute required "a reasonable notice of not less than ten days," an averment "that the defendants did, pursuant to said act, *** then and there for that purpose made, give to the plaintiff reasonable notice,"-held insufficient for not stating that the notice was" of not less than ten days" (Cruger v. The Hudson River Railroad Co. 12 N. Y. 190). What is a "reasonable period" must depend upon the circumstances (Wilbert v. The N. Y. & Erie R. R. Co. 12 N. Y. 249). Reasonable time is such a period as would be required by a person of ordinary business talents to accomplish the duties which the respective parties had to perform (Smedbury v. More, 26 Wend. 242. See, further, Hoggins v. Becroft, 1 Dana [Ken.] R. 30; Shepherd v. Scroggin, 3 id. 62; Muir v. Louisville & Portland Canal, 8 id. 161; Murray v. Smith, 1 Hawks, 41; Bell v. Beveridge, 4 Dal. 272; Duncan v. Rock, Wallace's Rep. 39; Wharton's Dig. 332; White v. Kyle's Lessee, 1 Ser. & R. 520).

h. Defect in Complaint Cured by Answer.-When the complaint omitted to aver that the defendants insisted that an assignment it was the object of the action to set aside, was not executed with a fraudulent intent, and might have been successfully demurred to for that cause, yet the defendants, by denying that the assignment was executed with any fraudulent intent, were held to have supplied the defect (Bate v. Graham, 11 N. Y. 237; and see Hyde v. Watts, 12 M. & W. 245; Vernam v. Smith, 15 N. Y. 330).

i. Where the answer consists of more than one defense, an admission in

one defense which supplies the defect in the complaint, does not make the complaint sufficient as to any other defense in the answer not containing such admission (Ayers v. Covill, 18 Barb. 264; Swift v. Kingsley, 24 Barb. 541).

a. Defects cured by Verdict.-Faults in pleading are in some cases aided by a verdict (Steph. Pl. 148). Cured by verdict means that the court will after verdict presume that the particular thing required to sustain it was proved at the trial (Merrick v. Trustee, &c. 8 Gill, 59). But the court never presumes a cause of action, even after verdict, when none appears on the pleadings (Wright v. Smith, 27 Barb. 631). "The facts which will after verdict be presumed to have been proved are those which, though entirely omitted to be stated in the complaint, are so connected with the facts alleged that the facts alleged cannot be proved without proving the facts not alleged ' (Addington v. Allen, 11 Wend. 374; and see Barnes v. Harris, 3 Barb. 604; The People v. Warner, 4 Barb. 314; Brown v. Harmon, 21 Barb. 512; Clark v. Dales, 20 Barb. 66; Carpenter v. Brown, 6 Barb. 147; Decker v. Mathews, 12 N. Y. 321; Harris v. Goodwyn, 9 Dowl. 423; Ladd v. Thomas, 11 Adol. & El. 117; Eaton v. Pratchett, 1 Gale, 30).

6. For a single cause of action only one count or statement is allowed.

b. "As there can be but one substantially true statement of a single cause of action, the practice of setting it forth in different counts is necessarily abolished (Nash v. McCauley,, 9 Abb. 159; Hepburn v. Babcock, id. note; Lackey v. Vanderbilt, 10 How. 161; Sipperly v. Troy & Boston R. R. Co. 9 How. 83; Churchill v. Churchill, 9 How. 552). If a plaintiff having really only one cause of action, sets it forth in several counts or divisions in his complaint, the remedy of the defendant is by a motion that the plaintiff elect on which count he will rely, and that the others be struck out (id.) It is not a cause for demurrer (id.; Hillman v. Hillman, 14 How. 456). Where it appears on the face of the complaint, that the several statements of causes of action are really for but one and the same cause of action, varied only in the mode of statement, no affidavit or other proof need be produced, as to their being in truth but one cause of action (Ford v. Mattice, 14 How. 91). But if it is not apparent from an inspection of the complaint, that the several statements are but for one and the same cause of action, then to warrant an order to strike out all the statements but one, the court must he satisfied, by affidavit or other proof, that the plaintiff has in fact but one alleged cause of action (Lackey v. Vanderbilt, 10 How. 161).

c. Where a complaint stated as cause of action, first, a promise by defendant to marry plaintiff on request; secondly, generally, a promise to marry; thirdly, a promise to marry in a reasonable time; and fourthly, a promise to marry when plaintiff should be disengaged from another, a motion that plaintiff should elect on which of the four causes of action she would proceed, or that the complaint be set aside, was granted (Dunning v. Thomas, 11 How. 282; and see Young v. Edwards, 11 How. 201; Whittier v. Bates, 2 Abb. 477; Stockbridge Iron Co. v. Mellen, 5 How. 439; Dickens v. N. Y. Central R. R. Co. 13 d. 228). The court will not compel the plaintiff to elect between several causes of action properly pleaded, although it may appear probable that on the trial but one cause of action will be presented (Smith v. Douglas, 15 Abb. 266; Jones v. Palmer, 1 Abb. 442).

Note to subdivision 3.

d. The plaintiff may demand any kind of relief to which he supposes himself entitled, and he is not confined to one kind of relief. The defendant has nothing to do with the form of the relief demanded (Hall v. Hall, 38 How. 97). There is no reason against uniting in one action claims for both legal and equitable relief (Getty v. Hudson River R. R. Co. 6 How. 269; N. Y. Ice Co. v. Nicest Ins. Co. 21 How. 296; Sheehan v. Hamilton, 3 Abb. N. S. 197; and see 16 N. Y. 264; 9 How. 123; 3 Duer, 680; 5 Duer, 661); provided tney are not inconsistent with each other (Linden v. Fritz, 3 Sand. 668; Young v.

Edwards, 11 id. 202; Trull v. Granger, 8 N. Y. 115). A demand of judgment of forfeiture of a lease, and an injunction restraining the defendant from repairing the demised premises, would be inconsistent (Linden v. Fritz, supra); so would a demand of payment of an installment of purchase-money in arrear, and a forfeiture of the contract (Young v. Edwards, 11 How. 202). And so would a demand of relief and a demand of judgment for a specified sum (Durant v. Gardner, 10 Abb. 445). In some cases alternative relief may be prayed (Linden v. Fritz; Young v. Edwards, supra); but it is improper to join in one complaint prayers for relief against the defendant individually and in his capacity as executor (McMahon v. Allen, 1 Hilton, 103). An objection to the relief should be taken by motion (Durant v. Gardner, 10 Abb. 445; 19 How. 94; Ricart v. Townsend, 6 How. 462; Moses v. Walker, 2 Hilton, 536; Anon. 11 Abb. 233; and see 8 Abb. 19; 28 Barb. 667; Redmond v. Dana, 3 Bosw. 616; Andrews v. Schaffer, 12 How. 443). Although a complaint which alleged the taking and conversion of personal property, and claimed not only damages for the conversion, but also a redelivery to the plaintiff, was held to be demurrable, on the ground that two causes of action were improperly joined (Maxwell v. Farnam, 7 How. 236). A demand of relief that "if necessary" the party should be relieved, was ordered to be amended by striking out the words "if necessary" (Lamoreaux v. Mut. Ins. Co. 3 Duer, 680). Where a complaint asked judgment for a sum of money, and it appeared that the relief, if any, to which the plaintiff was entitled, was compelling the defendant, a trustee, to account for the trust fund, judgment was given for the defendant (Bishop v. Houghton, 1 E. D. Smith, 566; and see Hartt v. Harvey, 21 How. 382). A plaintiff cannot in one complaint pray relief, (1) judgment for the amount claimed; (2) a judicial determination on the validity of an assignment of property, made by the defendant (Reubens v. Joel, 13 N. Y. 488). Although, where the defendant answers, "the demand of relief becomes immaterial" (see § 275, post); yet where the relief demanded is a remedy at law only, as the recovery of money, it renders equitable relief so far inconsistent with the case made by the complaint as to prevent the plaintiff having equitable relief (Towle v. Jones, 1 Rob. 87; Ryder v. Jenny, 2 Rob. 65).

CHAPTER II.

Demurrer and Answer.

SECTION 143. Defendant to demur or answer. 144. When the defendant may demur.

145. Demurrer, what to specify.

146. How to proceed if complaint be amended.
147. Objection not appearing on complaint.
148. Objection, when waived.

143. Defendant to demur or answer.

The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.

a. Time to answer.-A defendant cannot regularly answer before being served with a copy of the complaint (Phillips v. Prescott, 9 How. 433). The time to answer or demur can only be extended by an order for that purpose, or by consent (Mc Gown v. Leavenworth, 2 E. D. Smith, 24; Platt v. Townsend, 3 Abb. 9). An order enlarging the time to answer is an extension of the time

to demur (Broadhead v. Broadhead, 4 How. 308). To obtain such an order the applicant must present an affidavit of merits, or an affidavit of the attorney or counsel retained to defend, that, "from the statement of the case in the action made to him by the defendant he verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or to some part thereof." And if any extension has been granted by stipulation or order, that fact must be stated in the affidavit (Rule 22). An order staying the plaintiff's proceedings, does not extend the time to answer (McGown v. Leavenworth, 2 E. D. Smith, 31); nor does an order for particulars, with a stay of plaintiff's proceedings (Platt v. Townsend, 3 Abb. 9).

a. A defendant, by accepting an order or consent extending his time to answer, admits that the complaint is in a form calling for an answer or demurrer (Bowman v. Sheldon, 5 Sand. 662); and unless leave be reserved by the order or consent, he cannot afterwards move to have the complaint amended (id.); but where the consent reserved leave to the defendant to make such application as he should be advised," he may move to strike out (Lackey v. Vansderbilt, 10 How. 155). See in note to § 160, post.

b. Where service by mail may be made, an order extending the time to answer, obtained and mailed on the last day of the time to answer, is sufficient to prevent the plaintiff from regularly entering judgment, as upon failure to answer. The defendant need show no excuse for not answering earlier; and although his object may be delay, yet he is strictly regular in mailing an order extending his time to answer, on the day such time expires (Schuhardt v. Roth, 10 Abb 203). If the plaintiff enter judgment before receiving the answer, he should vacate it; if he refuse to do so, the court will set it aside with costs (id).

c. Where some of the defendants demur to the complaint, and the demurrer is overruled, "with liberty to answer in twenty days on payment of costs," and such decision on appeal to the general term is affirmed, then conceding that such defendants have the same time to answer after the decision at general term which was given them by the order at special term, such defendants must tender an answer within twenty days after such affirmance, although the costs of the demurrer have not been taxed, or the right to answer is gone (Ford v. David, 1 Bosw. 569).

d. Time to answer after publication, see note to § 138, after order to consolidate. See Consolidating actions.

e. Where the answer is to be served.-And where the place for serving the answer, designated in the summons, was at the attorney's office, 195 Broadway, and the attorney resided out of the city; the defendant's attorney, on the last day for serving the answer, went to 195 Broadway, and found the attorney's office closed; he then tendered the answer next day, but the plaintiff's attorney refused to receive it, and entered judgment,-the judgment was set aside as irregular, and it was held that the defendant was not required, on finding the office of the plaintiff's attorney closed, to follow him to his residence to make the service (Lord v. Vandenburgh, 15 How. 368). And see in note to section 411, post.

f. Service after time expired.-An answer put in after the time to answer expires, and before judgment is entered, but without any order permitting it to be put in, is irregular (Dudley v. Hubbard, 2 Code Rep. 70; Foster v. Udell, id. 30; Mandeville v. Winne, 1 Code Rep. N. S. 161; id. 45; O'Brien v. Catlm, id. 273; McGown v. Leavenworth, supra); the plaintiff, if he intends to avail himself of the irregularity, should decline to receive the answer, or return it within a reasonable time (i. e., the day it is received or the day after), stating the irregularity (Phillips v. Prescott, 9 How. 433), and proceed as for default of an answer (Strout v. Curran, 7 How. 36; Jacob v. Marshall, 6 Duer, 689). The person serving the copy answer is a proper person to return it by, with the reasons for returning it, and if after an answer is so returned the defendant's attorney again serve it, the plaintiff's attorney need not again return it, but may enter judgment as for want of an answer (id.)