204), and so merely alleging that there "is a defect of parties defendant" is not specifying the particular defect (Skinner v. Stuart, 13 Abb. 443).

a. Demurrer to part.--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, 3 N. Y. 173). There cannot be a demurrer to a portion of a cause of action (Lord v. Vreeland, 24 How. 320; 13 Abb. 195).

§ 146. (Am'd 1849.) Proceeding if complaint 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.

b. Answering.-The right to put in an answer to an amended complaint is substantial, and a waiver of it should not be implied (Low v. Graydon, 14 Abb. 444); so that, although a defendant omits to answer the original complaint, and yet, if the complaint be amended, he should have notice of the amendment and an opportunity to answer (People v. Woods, 2 Sand. 652).

§ 147. Objection not appearing on complaint.

When any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer.

c. Where a married woman sues alone for a cause of action, in which her husband should have joined as plaintiff, and the fact of her being a married woman does not appear on the face of the complaint, the only way in which the defendant can avail himself of the defense of the plaintiff's coverture is to set up her coverture by answer (Dillaye v. Parks, 31 Barb. 132; Scranton v. Farmers & Mechanics' Bank of Rochester, 33 Barb. 527).

d. Where the complaint discloses a joint cause of action against the defendant and others who are not joined as defendants, and is silent as to whether the others are living or dead; the proper mode of raising the objection is an answer setting up that the parties not joined are living (Brainard v. Jones, 11 How. 569; Schofield v. Van Syckle, 23 How. 97).

e. Where there are two actions pending between the same parties for the same cause, but that does not appear on the face of the complaint, the defendant, to avail himself of that fact, must put in an answer of the other action pending (Hornfager v. Hornfager, 1 Code Rep. N. S. 412; 6 How. 279).

f. When, in an action by a corporation or a natural person, the want of legal capacity to sue exists, but that fact does not appear on the face of the complaint, the objection must be taken by answer (Union Mutual Ins. Co. v. Osgood, 1 Duer, 707; Fulton Ins. Co. v. Baldwin, 37 N. Y. 648). See § 148.

§ 148. (Am'd 1849.) Objection, when deemed waived.

If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

a. Meaning of section.-This section means that if the objection is not taken by demurrer, when that mode is proper, or by answer in cases where that is the appropriate method, it is waived (Žabriskie v. Smith, 13 N. Y. 336; and see Scranton v. Farm. & Mechan. Bank of Rochester, 33 Barb. 527; Patchin v. Peek, 38 N. Y. 39). And when the objection is one proper to be raised by demurrer, the defendant cannot have the benefit of the objection by raising the objection by answer (id.; Mayhew v. Robinson, 10 How. 162; Ingraham v. Baldwin, 9 N. Ÿ. 45; Baggott v. Boulgers, 2 Duer, 160; B'k of Waterville v. Beltser, 13 How. 270; Gassett v. Crocker, 10 Abb. 133; Dennison v. Dennison, 9 How. 246; Depuy v. Strong, 4 Abb. N. 8. 340; 37 N. Y. 372).

b. Waiver.-An objection that there is a defect of parties, not taken by demurrer or answer, is waived (Fosgate v. Herkimer Manuf. Co. 12 N. Y. 584; Zabriskie v. Smith, 13 N. Y. 336; Wright v. Storrs, 6 Bosw. 600; Dillaye v. Parks, 31 Barb. 132; Lewis v. Graham, 4 Abb. 106; Wright v. Bennett, 3 Barb. 451; Abbe v. Clarke, 31 Barb. 238; Benson v. Paine, 2 Hilton, 552; Hosley v. Black, 26 How. 97; Giraud v. Beach, 3 E. D. Smith, 337; Byxbie v. Wood, 24 N. Y. 607), and cannot be taken for the first time on the trial (Van Deusen v. Young, 29 Barb. 9; Abbe v. Clark, 31 id. 238), or on appeal (Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 266; Purchase v. Mattison, 6 Duer, 588; Colegrove v. N. Y. & Harlem R. R. Co. id. 382; Bowdoin v. Coleman, 3 Abb. 431; 6 Duer, 183; Bates v. James, 3 Duer, 45); "or in any other mode, or in any other stage of the cause" (Leavitt v. Fisher, 4 Duer, 23). And so of an objection that several causes of action are improperly united (Youngs v. Seeley, 12 How. 395; Blossom v. Barrett, 37 N. Y. 434; Winterson v. Eighth Av. R. R. Co. 2 Hilton, 393; Wright v. Storrs, 6 Bosw. 600; Bonnell v. Walsh, id. 621); or a defense of coverture (Castree v. Gavelle, 4 E. D. Smith, 425); or that the action was commenced before the cause of action accrued (Smith v. Holmes, 19 N. Y. 271), or that the plaintiff is not the real party in interest (Savage v. Corn Ex. Co. 4 Bosw. 2), or has not legal capacity to sue (Mosselman v. Caen, 34 Barb. 66), or any defense which requires to be specially pleaded. What objections are waived by not demurring (Tremper v. Conklin, 44 Barb. 456; Loeschigk v. Addison, 19 Abb 169; Palmer v. Davis, 28 N. Y. 242; Hosley v. Black, 28 N. Y. 438; Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 N. Y. 43; Lee v. Wilkes, 27 How. 336; 19 Abb. 355; Secor v. Law, 9 Bosw. 165).

The objection that necessary parties to a complete determination of the action are not joined is not waived by omitting to raise it by demurrer or answer (see Davis v. Mayor of New York, 14 N. Y. 506); an objection that a party suing for himself should sue on behalf of himself and others, is not a mere objection for defect of parties, and may be made for the first time on the trial (Greene v. Breck, 10 Abb. 43).

d. Not waived.-The failing to demur does not waive the right of the defendant to object on the trial for the first time, that the complaint does not state facts sufficient to constitute a cause of action (Higgins v. Freeman, 2 Duer, 650; Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 464; Gould v. Glass, 19 Barb. 186; De Witt v. Chandler, 11 Abb. 459). An incurable defect is not waived by any pleading, but may be taken advantage of whenever the parties are before the court (Burnham v. De Bevoise, 8 How. 159; Budd v. Bingham, 18 Barb. 494; Stanna d v. Eytinge, 5 Rob. 100; Coffin v. Reynolds, 37 N. Y. 640). Thus the privilege of a foreign consul to be exempt from the

jurisdiction of a State tribunal is not waived by an answer to the merits (Valarino v. Thompson, 7 N. Y. 576; Flynn v. Stoughton, 5 Barb. 115). If, however, on the trial the defect in the complaint is supplied by the proof, the objection may be overruled (Lounsbury v. Purdy, 18 N. Y. 521; Emery v. Pease, 20 N. Y. 64; Morton v. Pickering, 8 Bosw. 135).

a. The objection that the complaint does not state facts sufficient to constitute a cause of action cannot be taken for the first time on appeal (Pope v. Dinsmore, 8 Abb. 429; Corley v. Wilkins, 6 Barb. 558; contra, see Cole v. Blunt, 2 Bosw. 125).

CHAPTER III.

The Answer.

SECTION 149. Answer, what to contain.

150. Counter-claim. Several defenses.

151. Demurrer and answer, when allowed.

152. Sham and irrelevant defenses to be stricken out.

§ 149. (Am'd 1849, 1851, 1852.) Answer, what to contain. The answer of the defendant must contain,

1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief;

2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repeti

tion.

b. Answer.—The answer is not required to be entitled in the action. It should, however, show in what suit and for what defendant it is put in (see 1 Code Rep. 43). It must either controvert a material allegation of the complaint or state new matter constituting a defense (McKyring v. Bull, 16 N. Y. 307). It is not essential to its sufficiency that it constitute a defense or counter-claim to the whole of the complaint or of any single cause of action. It is sufficient if it constitute a defense or counter-claim to so much as it professes to answer (id.; Allen v. Haskins, 5 Duer, 332; Kneedler v. Sternberg, 10 How. 68). Defense means a defense as to part (Brush v. Prosser, 11 N. Y. 352). Thus the partial failure of the consideration for which a note was given may be set up as a defense pro tanto (Gleason v. Moen, 2 Duer, 640), and so in an action for rent (Van de Sande v. Hall, 13 How. 458), or for goods sold (Willis v. Taggard, 6 id. 435). But if the answer profess to answer an entire cause of action and in fact only answers a part, it is insufficient, and may be demurred to (Foster v. Hazen, 12 Barb. 547; Beach v. Barons, 13 Barb. 306; Thumb v. Walrath, 6 How. 196; Willis v. Taggard, id. 433; Nichols v. Dusenbury, 2 N. Y. 283); if the defense professes to be part only of a cause of action, without specifying what part, it is sufficient [although indefinite] if it is an answer to any part (Cottingham v. The State, 7 Blackf. 405). The parts of the complaint to which the answer is intended to apply, should be so clearly defined as that the court, on looking at the complaint, can deter

mine what parts are covered by it (Davison v. Schermerhorn, 1 Barb. 480). Where, in an action for an assault and false imprisonment, the answer assumed to be to the whole complaint, but justified only the imprisonment, it was on demurrer held bad (Foster v. Hazen, 12 Barb. 547).

a. Several defendants.-In actions against several defendants, it is sometimes better that each defendant answer separately, as when in trespass for executing process, the officer and the plaintiff in the process are sued together (see 2 Saund. Pl. & Ev. 18, 19). În an action against several executors, such of them as are first served with process are entitled to answer for the estate, and one answer being in it is irregular for the other executor to answer (Salters v. Pruyn, 15 Abb. 224), unless he obtain leave to put in a separate answer (id).

b. Denial.-A general denial is a denial in gross of all the allegations of the complaint, and a specific denial is a denial of one or of each allegation separately (Dennison v. Dennison, 9 How. 247; Seward v. Miller, 6 id. 312). The usual form of general denial is, "the defendant denies each and every allegation of the complaint" (Kellogg v. Church, 4 How. 339; Radde v. Ruckgaber, 3 Duer, 684). A defendant after expressly admitting some of the allegations of the complaint may make a denial "of all the allegations in the complaint not herein before specifically [expressly] admitted" (Parshall v. Tillou, 13 How. 7; Genesee Mut. Ins. Co. v. Moynihen, 5 id. 321; Smith v. Wells, 20 How. 158; 144; 6 id. 148). A statement that the defendant denies all those allegations which are contained within certain specified folios is good as a general denial (Gassett v. Crocker, 9 Abb. 39; see Blake v. Eldred, 18 How. 240). A denial of "each and every material allegation of the complaint" is evasive, and obnoxious to a motion that it be made more definite and certain (Mattison v. Smith, 19 Abb. 288).

c. To a complaint for goods sold, alleging the sale and that the defendant is now indebted to the plaintiff therefor, the defendant answered, admitting the sale, but alleging that the purchase was on a credit of six months, and that credit had not expired,-held a "special denial of the allegation," that defendant is now indebted (Gilbert v. Cram, 12 How. 455).

d. Where the allegations of a complaint are not directly denied, but the defendant states other facts inconsistent with those set forth by the plaintiff, this will not be construed as a denial; merely making a counter-statement, or giving a different version of the matter from that contained in the complaint, is not specifically denying such allegations (Wood v. Whiting, 21 Barb. 190; West v. Am. Ex. B'k, 44 Barb. 176; id.; see Hamilton v. Hough, 13 How. 14; Isles v. Tucker, 5 Duer, 393; Loosey v. Orser, 4 Bosw. 392).

e. Denial of any knowledge or information, &c.—A denial as to a material allegation, or as to all the allegations of a complaint, of any knowledge or information sufficient to form a belief, forms a complete issue (Livingston v. Hammer, 7 Bosw. 670; Ketcham v. Zerega, 1 E. D. Smith, 554). A denial of "any knowledge or information sufficient to form a belief" makes a complete denial; and the defendant need not and should not add "and therefore he denies the same " (Flood v. Reynolds, 13 How. 112; Leach v. Boynton, 3 Abb. 3; Townsend v. Platt, id. 325; Livingston v. Hammer, 7 Bosw. 670). Where the defendant has made an insufficient allegation of the want of any knowledge or information, and has followed such allegation by the further allegation," and therefore he denies," &c., this further allegation has been disregarded (see Chapman v. Palmer, 12 How. 38; Edwards v. Lent, 8 id. 28). A denial of knowledge, without adding information, is not sufficient (Edwards v. Lent, id.; Heye v. Bolles, 33 N. Y. 267; and see The People v. McCumber, 15 How. 189; Ketcham v. Zerega, 1 E. D. Smith, 554); nor is it sufficient for a defendant to say he is ignorant of whether or not the facts alleged against him are or not true (Forbes v. Waller, 25 N. Y. 430; Wood v. Stanlies, 3 Code Rep. 152). An answer that the defendant "is not informed and cannot state whether or not the plaintiff was possessed, &c., is not a sufficient denial for any purpose (Elton v. Markham, 20 Barb. 348). And so of an allegation that

"the defendant does not know of his information or otherwise,” (Sayre v. Cushing, 7 Abb. 371). In general, a defendant is permitted to allege that his denial is on or according to his information and belief (7 Abb. 371, note). And where an answer commenced," The defendant verily believes, and therefore answers and says, that the plaintiff is not," &c., it was held sufficient (Davis v. Potter, 4 How. 155; and see Chapman v. Chapman, 34 How. 281). Where in an action on promissory notes against the executrix of the indorser, she answered "that whether or not upon the maturity of the notes mentioned in the complaint, the same were or either of them was duly presented to the makers thereof for payment, and payment thereof demanded and refused, and thereupon said notes duly protested for non-payment, and notice of such presentment, refusal and protest, given to the said H. L., this defendant has no knowledge or information sufficient to form a belief,"-it was held insufficient (Young v. Catlett, 6 Duer, 443). But an answer is not frivolous merely because it denies the allegations of the complaint conjunctively instead of disjunctively (Livingston v. Hammer, 7 Bosw. 670; and see Beach v. Barons, 13 Barb. 305). To a complaint which alleged that defendants purchased goods of plaintiff, and that to obtain said goods and deceive plaintiff defendant represented that he was in good circumstances and worth more than $3,000 over and above his debts, and that such representations were false, and were made to obtain possession of the goods, and to deceive plaintiff, defendant answered, denying that, to obtain said goods and to deceive plaintiff, he represented to plaintiff that he was in good circumstances or that he was worth more than $3,000 over and above his debts, or that the representations were false, or were made to obtain said goods,-- held insufficient, and that the answer left it uncertain what defendant meant to deny (Otis v. Ross, 8 How. 193; Corbin v. George, 2 Abb. 467. See note to section 165, post).

a. What may be denied.-The answer may deny part, or some, or one of the cause or causes of action and leave the residue unanswered (Willis v. Taggard, 6 How. 433; Genesee Mut. Ins. Co. v. Moynihen, 5 ib. 322; Snyder v. White, 6 ib. 321); or answer the residue by new matter or otherwise (Long-. worthy v. Knapp, 4 Abb. 115). A denial that plaintiff is entitled to the sum of money demanded is not a denial of a material allegation (Drake v. Cockcroft, 4 E. D. Smith, 39). In an action by two or more for an unlawful taking of property, answer that plaintiffs are not joint owners is material (Walrod v. Bennett, 6 Barb. 144). In an action for detaining personal property, the value of the property is not the subject of an issue and should not be denied (Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 ib. 13; McKenzie v. Farrell, 4 Bosw. 193; Woodruff v. Cook, 25 Barb. 505). Although the value is alleged in the complaint and not denied by the answer, the defendant may, on the trial, prove the true value (b.) And where a complaint gives credit for a payment on account, that is not a traversable fact (Hodgins v. Hancock, 14 Mees. & W. 120). In Gregory v. Wright (11 Abb. 417), an action for goods sold and for services,-held that an answer which denied the value of the services raised a material issue. An answer that defendant is not indebted in manner and form as alleged is not sufficient (Pierson v. Cooley, 1 Code Rep. 91), except that where the plaintiff states as his cause of action that the defendant is indebted to the plaintiff, instead of setting forth the contract on which the cause of action arises, the defendant may take issue on indebtedness (Morrow v. Cougan, 3 Abb. 328; Anon. 2 Code Rep. 67). An allegation in an answer that the defendant never gave the plaintiff the note mentioned in the complaint amounts to a denial of the making the note and plaintiff's ownership (Sawyer . Warner, 15 Barb. 282). Nor are allegations of special damage traversable (Maloney v. Dows, 15 How. 265); unless the special damage is the gist of the action, in which case they are traversable (Perring v. Harris, 2 M. & Rob. 5). Where, in an action on contract, the complaint, in addition to the facts necessary to constitute a cause of action, also alleges the facts showing the fiduciary capacity of the defendant, the latter allegations are not traversable in the answer (Wood v. Henry, 40 N. Y. 124).