Where a joint answer of two defendants was served after the time for answering by one of them had expired, the plaintiff's attorney returned it, and after waiting until the time of the other defendant had also expired, entered judgment, it was held regular (Jacques v. Greenwood, 1 Abb. 230). See Opening default, in note to § 246, post.

a. Separate answers.-A defendant, defending separately, need not serve a copy of his answer on his codefendant (Bogardus v. Parker, 7 How 307; Leavitt v. Fisher, 4 Duer, 2).

6. Demurrer and answer.-A demurrer is an answer in law (N. J. v. N. Y. 6 Peters, 323). Its province is to point out defects in the pleading_demurred to, so that they may be amended (Cook v. Crawford, 1 Texas, 9). The answer and demurrer are different pleadings; and by the fact that they are on one paper and in form connected, they do not lose their distinct character (Howard v. Michigan Southern R. R. Co. 5 How. 207). The insertion in an answer of a claim that the complaint is insufficient, is a demurrer (Slack v. Heath, 1 Abb. 337; 4 E. D. Smith, 95). A demurrer and answer to the same matter is not allowed (Munn v. Barnum, 12 How. 563; Spelman v. Weider, 5 How. 5). "To determine whether a defense is a demurrer or an answer, it is only necessary to ascertain whether it requires that any facts should be proved or not" (Struver v. Ocean Ins. Comp. 16 How. 428). Where the defendants in a portion of their answer took the objection of a want of parties,-held that it must be considered as a demurrer, and as they could not answer and demur to one cause of action, they must elect by which they would abide (id.)

c. Defective pleading.—An answer, or demurrer, or amended answer, regularly served, and within the proper time, so that the only question is upon its sufficiency, cannot be disregarded and treated as a nullity, although in fact defective (Strout v. Curran, 7 How. 36; Hartness v. Bennett, 3 id. 289; Bergman v. Howell, 3 Abb. 329; Corning v. Haight, 1 Code R. 72; Spencer v. Tooker, 12 Abb. 353; Ross v. Longmuir, 15 Abb. 326; Chadwick v. Snediker, 26 How. 60).

d. Answer of married woman.-Where a married woman is joined as a party defendant with her husband, she may answer separately from her husband, without leave of the court (Harley v. Ritter, 18 How. 147; 9 Abb. 400).

The defendant may demur to the complaint when it shall appear upon the face thereof, either

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties for the same cause; or,

4. That there is a defect of parties, plaintiff or defendant; or, 5. That several causes of action have been improperly united;

or, 6. That the complaint does not state facts sufficient to constitute a cause of action.

e. When a demurrer is proper.-There are no causes of demurrer other than those specified (Haire v. Baker, 5 N. Y. 363; Simpson v. Loft, 8 How, 235; Beale v. Hayes, 5 Sand. 640; Harper v. Chamberlain, 11 Abb. 234). There cannot, therefore, be any demurrer. For irrelevancy, redundancy,

or uncertainty (Watson v. Husson, 1 Duer, 242; Spies v. Acces. Transit Co. 5 id. 663; Roeder v. Ormsby, 13 Abb. 334; Seeley v. Engell, 13 N. Y. 542; Smith v. Greening, 2 Sands. 702; Richards v. Edick, 17 Barb. 261; Graham v. Camman, 5 Duer, 697; Hammond v. Hudson River Iron and Machine Co. 20 Barb. 386; Chesborough v. N. Y. & Erie R. R. Co. 26 id. 9; Lee B'k v. Kitching, 11 Abb. 435; Warren v. Phillips, 30 Barb. 647; Meyer v. Van Collem, 28 Barb. 230; Ward v. Ward, 5 Abb. N. S. 145). Argumentativeness (Brown v. Richardson, 20 N. Y. 474; Zabriskie v. Smith, 13 N. Y. 330; Prindle v. Caruthers, 15 N. Y. 431). Defect of form (Howell v. Fraser, 1 Code Rep. N. S. 270). Duplicity (Gooding v. McAlister, 9 Barb. 123; Wells v. Webster, id) Nor because pleading hypothetical (Taylor v. Richards, 9 Bosw. 678). Nor because it appears on the face of the complaint that the cause of action is barred by lapse of time (Sands v. St. John, 36 Barb. 628; 23 How. 140). Nor to the demand of judgment (Beale v. Hayes, 5 Sands. 640; Andrews v. Shaffer, 12 How. 443; Hecker v. Degroot 15 id. 315; Lord v. Vreeland, 24 How. 316; 13 Abb. 195; Moses v. Walker, 2 Hilton, 536; St. John v. Peirce, 22 Barb. 371). A demurrer is only appropriate when the ground of demurrer is apparent on the face of the complaint (Getty v. Hudson River R. R. Co. 8 How. 177; Wilson v. Mayor of N. Y. 6 Abb. 6; 4 E. D. Smith, 675; Coe v. Beckwith, 31 Barb. 339; Konig v. Nott, 8 Abb. 384; Depuy v. Strong, 4 Trans. App. 239; 4 Abb. N. S. 340). It is not within the office of a demurrer to state objections not apparent on the face of the complaint, e. g., to name parties who should be joined (Coe v. Beckwith, 10 Abb. 296; 19 How. 399; 31 Barb. 339). [Such a demurrer is called a "speaking demurrer."] When it appears on the face of the complaint that the action is to recover a debt contracted by partners, and that it is brought against a surviving partner and the personal representatives of a deceased partner, the objection that the parties defendant have been improperly joined as defendants can only be by demurrer (Higgins v. Freeman, 2 Duer, 650); and in actions sounding in tort, where it appears by the complaint that all the proper parties are not made plaintiffs, the defendant should demur. If he omit to do so, the defect is waived, although the defendant, in his answer, insists that the complaint should be dismissed for this defect (Zabriskie v. Smith, 13 N. Y. 322). Thus, in an action by three partners for damages caused to the firm of four partners by a false representation, the answer set up that the fourth partner should have been made a party, and prayed that the complaint should be dismissed on account of his not being joined, it was held that the fourth partner should have been joined as a party plaintiff, but that the defect was waived by the defendant failing to demur for defect of parties (id.) And to the like effect, see Dillaye v. Parks, 31 Barb. 132; Wright v. Starrs, 6 Bosw. 600; Abbe v. Clarke, 31 Barb. 238; Lewis v. Graham, 4 Abb. 106; Wright v. Bennett, 3 Barb. 451.

a. Admission by demurrer.-A demurrer admits the facts that are relevant and well pleaded, but not conclusions of law (Hall v. Bartlet, 9 Barb. 297; Acome v. American Mineral Co. 11 How. 26; Bennion v. Davidson, 1 Horn. & Hurl. 48; Freeman v. Frank, 10 Abb. 370). A demurrer remaining on the record is an admission of the facts in the pleading demurred to, not only for the purpose of the argument, but as evidence on the trial of the issue to which the pleading demurred to relates (Cutler v. Wright, 22 N. Y. 472).

b. Several causes of demurrer.-It is supposed that a defendant may assign as many causes of demurrer as he thinks fit; and if one be sustained, the demurrer will be allowed (Harrison v. Hogg, 2 Ves. jun. 323; Jones v. Frost, 3 Mod. 1); and that he may put in separate demurrers to separate and distinct parts of a complaint for separate and distinct causes; and in such a case one demurrer may be allowed, and another or others overruled (1 Barb. Ch. Pr. 107).

c. Appropriate cause of demurrer to 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; Fulton Fire Ins. Co. v.

Baldwin, 37 N. Y. 648; and see note to Subd. 6 of § 144). 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. Stillwell, 15 Abb. 421; Nellis v. De Forest, 16 Barb. 65; Loomis v. Tift, 16 Barb. 541). Where a demurrer specified as a 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 sufficiently 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; see §. 145).

a. Demurrer bad in part, bad altogether.-The demurrer must be entirely sustained or fall altogether (Peabody v. Wash. Mut. Ins. Co. 20 Barb. 342; Cooper v. Classon, 1 Code Rep. N. S. 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). A demurrer under the sixth subdivision 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.

b. Jurisdiction.-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).

Note to subdivision 2.

c. Capacity to sue.-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; Hobart 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.; see Note to subd. 6, § 144). 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). Objection that plaintiff, a foreign executor, should be taken by demurrer, that plaintiff has not capacity to sue (Robbins v. Wells, 18 Abb. 191).

Note to subdivision 3.

d. Action pending.-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 (Burrows v. Miller, 5 How. 51; see Bishop v. Bishop, 7 Rob. 195; Lorillard Ins. Co. v. Meshural, id. 309). This rule applies to an action for a partition (Hornfager v. Hornfager, 6 How. 279). See note to section 147.

Note to subdivision 4.

a. Defect of parties.-The defect of parties defendant for which a demurrer is allowed, is a deficiency of and not too many parties (Peabody v. Wash, 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; Allen v. City of Buffalo, 38 N. Y. 280). 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, 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 nonjoinder 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; Newbould v. Warren, 14 Abb. 80); as that the party not joined is jointly liable with the one sued (Wooster v. Chamberlain, 28 Barb. 602). Unless it appear on the face of the complaint that the omitted defendant is dead, it will be presumed he is alive, and a demurrer is proper (Eaton v. Balcom, 33 How. 80); the defect, if not insisted on by demurrer or answer, is remedied by proof on the trial (28 Barb. 602). b. 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).

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

d. A demurrer for non-joinder of parties lies where the court cannot determine the controversy before it without prejudice to the rights of others, nor by saving their rights (Wallace v. Eaton, 5 How. 99).

Note to subdivision 5.

e. Improper joinder of Causes of action.-A demurrer does not lie under this subdivision for the defect of not separately stating two or more causes of action, the causes of action being such as may, if properly stated, be united in one complaint (Bass v. Comstock, 38 N. Y. 21; 36 How. 382). Where the allegations of a complaint constitute but one cause of action, the fact that an allegation commences," and for a further cause of action" will not justify a demurrer (Hillman v. Hillman, 14 How. 456), and 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. 1; see Meyer v. Van Collem, 7 Abb. 222; Durant v. Gardner, 10 id. 445 and §§ 167, 172).

f. Where the complaint discloses a separate cause of action against each defendant, but not a joint cause of action a joint demurrer for misjoinder is proper (Hess v. Niagara Falls R. R. Co. 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; but see Goodall v. McAdam, 14 How. 385). In an action against husband and wife for a tort by the husband and also by the wife, the wife may demur alone, on the ground that several causes of action are improperly joined (Malone v. Stilwell, 15 Abb. 425; and see Valentine v. Lloyd, 4 Abb. N. S. 371, and Goelet v. Gori, 31 Barb. 321).

Note to subdivision 6.

a. No cause of action.—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 cause 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, 7 N. Y. 464; Higgins v. Freeman, 2 Duer, 650; Budd v. Bingham, 18 Barb. 494; Gray v. Palmer, 2 Rob. 500); 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, the objection may be made upon the trial, and the complaint be dismissed as to such defendant (Montgomery Co. B'k v. Albany Co. Bank, supra).

b. 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 (Mann v. Marsh, 35 Barb. 68; Walrath v. Handy, 24 How. 353; 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; Phonix B'k v. Donnell, 40 N. Y. 411; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648); or that the court has no jurisdiction (Wilson v. Mayor of N. Y. 6 Abb. 6; Hotchkiss v. Elting, 36 Barb. 39); or that the complaint shows the right to sue is in a third person not a party (Myers v. Machado, 6 Abb. 198; but see Palmer v. Smedley, id. 205; De Witt v. Chandler, 11 Abb. 459); or that the complant by a corporation does not show its authority to sue (Bank of Lowville v. Ēdwards, 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.

c. The complaint, to be overthrown by a demurrer under this subdivision, must present defects so substantial that, taking all the facts to be admitted, 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; Richards v. Edick, 17 Barb. 260; Graham v. Camman, 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).

§ 145. (Am'd 1849.) Demurrer must specify grounds. May be to all or some causes of actions.

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. Grounds of demurrer.-As to the 1st and 6th grounds of demurrer, given by section 144, a demurrer stating the grounds of it, in the language of those subdivisions, is sufficient. With respect to the other subdivisions a demurrer under either of them should specifically point out the grounds of objection (Skinner v. Stuart, 13 Abb. 457; Getty v. Hudson River R. R. Co. 8 id. 177; Haire v. Baker, 5 N. Y. 163; Johnson v. Wetmore, 12 Barb. 433).

e. Where the demurrer specifies the causes of demurrer the defendant cannot insist on any others on the argument (Nellis v. De Forrest, 16 Barb. 65), stating "that it does not appear that the plaintiff had any title to the note," -held, not to sufficiently assign the cause of demurrer (White v. Low, 7 Barb.