defense being struck out as sham (Munn v. Barnum, 1 Abb. 281; 12 How. 563). And the truth or falsity of a pleading will not usually be tried on a motion (Catlin v. McGroarty, 1 Code Rep. N. S. 291; Miln v. Vose, 4 Sand. 660). On a motion to strike out a pleading as sham, the pleader is not obliged to disprove the allegations of the affidavit of the moving party respecting matters not presumed to be within the pleader's knowledge, even though the matters are such as if proved will avoid the defense set up (Wirgman v. Hicks, 6 Abb. 17). Where the motion is not opposed, or is not met by affidavit, showing that the answer or defense was put in in good faith, together with an affidavit of merits, it should be granted. But where the defendant, by affidavit, substantially reaffirms the truth of his answer, and makes an affidavit of merits, the answer should stand (Farmers & Mechanics' B'k of Rochester v. Smith, 15 How. 329; The People v. McCumber, 18 N. Y. 325). And where the allegations of the answer, or the affidavit in support of it, are on information and belief, it should state the source of information and grounds of belief (Corbett v. Eno, 13 Abb. 67; and see Miller v. Hughes, 13 Abb. 93, note; 21 How. 442).

a. A plaintiff may in one motion ask (1) to strike out defenses as sham and irrelevant; (2) for judgment on a demurrer as frivolous; (3) to strike out irrelevant and redundant matter; and (4) to have the allegations made definite and certain (The People v. McCumber, 18 N. Y. 315). Where the motion is to strike out several defenses as sham and frivolous, the notice of motion need not necessarily, but should properly, specify which defense is alleged to be sham, and which frivolous (Bailey v. Lane, 13 Abb. 354).

b. Pending a motion to strike out a defense as sham, it is irregular to move to strike out the same defense, on the ground that defendant has not complied with an order requiring him to make said defense more definite and certain (Kellogg v. Baker, 15 Abb. 286).

c. It is no sufficient objection to a motion to strike out an answer as sham that the plaintiff has obtained an order for time to reply (Miln v. Vose, 4 Sand. 660); or has given notice of trial (Beebe v. Marvin, 17 Abb. 194).

d. Where a motion to strike out an answer as sham and irrelevant is denied, on the ground that it is neither, but the answer is insufficient on other grounds, the plaintiff will be allowed to demur, although the time for serving a demurrer may have expired (Seward v. Miller, 6 How. 312), unless the pleading be so utterly frivolous that the party ought not to be put to a demurrer (Miln v. Vose, 4 Sand, 660).

e. Judgment—Amendment.-After an order has been made to strike out an answer as sham and irrelevant, the plaintiff may enter judgment in the same manner as though no answer had been put in (Aymar v. Chase, 1 Code Rep. N. S. 141; Potter v. Correras, 4 Rob. 629; De Forest v. Baker, 1 Abb. N. S. 35). There is no answer in the case to be amended after an order has been made to strike it out, and consequently the defendant has no right to amend, although he may apply for leave to put in a new answer; or such leave may be reserved in the order striking out the former answer (Burrall v. Bowen, 21 How. 378).

f. No appeal lies to the court of appeals from an order striking out an answer as sham or irrelevant (Briggs v. Bergen, 23 N. Y. 162).

CHAPTER IV.

The Reply.

SECTION 153.

Reply, demurrer to answer.

154.

Motion for judgment upon answer. 155. Demurrer to reply.

§ 153. (Am'd 1849, 1851, 1852, 1855, 1857, 1860.) Reply. Demur

rer to answer.

When the answer contains new matter constituting a counterclaim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer; and the plaintiff may in all cases demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defense; and the plaintiff may demur to one or more of such defenses or counter-claims, and reply to the residue of the counter-claims.

And in other cases, when an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's motion, require a reply to such new matter; and in that case, the reply shall be subject to the same rules as a reply to a counter-claim.

a. Reply. Except by order, no reply is allowed but to a counter-claim, and a reply improperly pleaded will be struck out on motion (Devlin v. Bevins, 22 How. 290). Where a plaintiff elects to reply, he cannot answer an objection to its regularity, by saying he was not bound to reply (Roscoe v. Maison, 7 How. 121).

b. A statement in a reply that the plaintiff denies all those allegations which are contained within certain specified folios, is good as a general denial (Gasset v. Crocker, 9 Abb. 39). By replying to a counter-claim the plaintiff waives all objections to the form of the pleading or to the introduction of evidence to prove such counter-claim (Ayres v. O'Farrell, 10 Bosw. 143, and see Smith v. Countryman, 30 N. Y. 655).

c. Order to reply.-A defense of the statute of limitations presents a proper case for ordering a reply. It is not generally essential to the granting such an order that the defendant should allege his ignorance of the grounds on which plaintiff intends to rely to prevent the statute bar (Hubbell v. Fowler, 1 Abb. N. S. 1).

d. New Assignment is not allowable (Stewart v. Wallis, 30 Barb. 344). e. Reply to amended answer.-Where an answer and demurrer are on one paper-the demurrer immediately following the answer-and a re

ply served to the answer, and the demurrer noticed for argument; but before the expiration of the twenty days from the service of the reply what purported to be an amended answer was served; it was an exact copy of the original, except that the demurrer was left out,-held that the plaintiff was not bound to reply. The reply already served was sufficient-the answer in fact was not amended (Howard v. Michigan Ins. Co. 3 Code Rep. 215).

ɑ. Counter-claim in reply.-Where a counter-claim is set up in the answer, it cannot be met by a counter-claim in the reply. That it may not (see Stewart v. Travis, 10 How. 148; and see Hudnall v. Scott, 2 Alb. 569; Alrich v. Berger, 4 Watts & S. 19; 2 Parsons on Contracts, 247, note e.)

b. Demurrer to answer.-A demurrer does not lie to an answer which sets up no new matter, but merely denies the allegations of the complaint (Smith v. Greening, 2 Sand. 702; Ketcham v. Zerega, 1 E. D. Smith, 557; Thomas v. Harrop, 7 How. 57; People v. Barker, 8 id. 261; Reilay v. Thomas, 11 id. 266; Lund v. Seaman's Savings B'k, 37 Barb. 129; 23 How. 258; Rice v. O'Conner, 10 Abb. 362; Maretzek v. Cauldwell, 19 Abb. 35). An answer which professes to set up new matter as a defense, and does not state facts which constitute a defense, may be demurred to for insufficiency (Merrit v. Millard, 5 Bosw. 645). Where matter which constitutes a defense is pleaded as a counter-claim, plaintiff cannot demur (Wait v. Ferguson, 14 Abb. 379). A demurrer to an answer that defendant was civilly dead, was sustained (Freeman v. Frank, 10 Abb. 370).

c. A demurrer will not lie to a part of an entire defense in an answer (Cobb v. Frazee, 3 Code Rep. 43; 4 How. 413; Welch v. Hazelton, 14 How. 97). d. The demurrer to an answer must state the grounds of demurrer (Ketcham v. Zerega, 1 E. D. Smith, 554).

e. 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 (The People v. Banker, 8 How. 261; Fry v. Bennett, 1 Code Rep. N. S. 238; Schwart v. Furniss, id. 342; Newman v. Sup. of Livingston, 1 Lans. 476; Pardo v. 08good, 2 Abb. N. S. 365; The People v. Booth, 32 N. Y. 397; Stoddard v. Onondaga Ann. Conf. 12 Barb. 575; Noxon v. Bentley, 7 How. 316). But query, whether the same rule applies on a demurrer to a counter-claim (Peck v. Brown, 2 Rob. 129; Graham v. Dunnigan, 6 Duer, 629; 4 Abb. 426). On demurrer to a counter-claim the allegations of the complaint not inconsistent with the counter-claim are to be taken as admitted (id.)

f. In a demurrer to an answer on the ground of insufficiency, it is enough to allege generally that the answer is insufficient, or that the facts stated therein do not constitute any defense, and under such an allegation the plaintiff can avail himself of any insufficiency which goes to the merits of the answer (Arthur v. Brooks, 14 Barb. 533; Hyde v. Conrad, 5 How. 112).

g. Where there are several defenses each to the whole complaint, and one defense is demurred to, on a decision upholding such demurrer, the defendant is entitled to a final judgment (Wightman v. Shankland, 18 How. 79).

h. An appeal lies from an order overruling a demurrer to one of several alleged defenses, with liberty to reply to such defense (Mattoon v. Baker, 24 How. 329).

i. Consequences of omitting to demur.-After voluntarily forming an issue, the plaintiff is not at liberty as of course at the trial to amend or disregard that issue, and to insist that the issue is on an immaterial allegation of his complaint (Livingston v. Miller, 8 N. Y. 289). An answer in an action for flowing land which set up the possession and enjoyment during twenty years of an easement to do so, without averring that it was exercised adversely to the owner of the land, would be bad on demurrer, but would, if issue is taken on it, be sufficient to allow evidence of the adverse user on the trial (White v. Spencer, 14 N. Y. 248; and see Ritchie v. Davis, 5 Cal. R. 453; N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 14 N. Y. 85; St. John v. Northrup, 23 Barb. 26; Cady v. Allen, 22 id. 394). A plaintiff by going to trial upon the answer of

the defendant, admits it to be true so far as the matter is set out issuably. But that admission does not aid a defect of substance, or prevent the plaintiff from taking advantage of it upon the trial. If a good defense be defectively set out, the plaintiff cannot take advantage of it on the trial. But where in truth there is no defense, the case is different; and although the allegations of the answer may be proved, yet if they constitute neither defense nor counter-claim, the defendant cannot have any benefit from them (Boyce v. Brown, 7 Barb. 81; Van Valen v. Lapham, 13 How. 243).

§ 154. (Am'd 1863.) Motion for judgment on answer.

If the answer contain a statement of new matter constituting a counter-claim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.

a. A party, by not availing himself of the remedy prescribed by this section, does not waive his right to take advantage, on the trial, of admissions made by the pleadings (Bridge v. Payson, 5 Sand. 217). The motion must be made to the court (Aymar v. Chase, 12 Barb. 301); upon the summons, complaint, and answer (Brown v. Spear, 5 How. 147). Affidavit of time when answer served, and that plaintiff has failed to reply or demur.

b. Review of order.—A party dissatisfied with an order striking out his answer or defense, can review it only by an appeal from the order; he cannot review it on an appeal from the judgment (Potter v. Carreras, 4 Rob. 629).

$155. Demurrer to reply.

If a reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.

e. On demurrer to a reply, if the answer is bad in substance, the plaintiff is entitled to judgment (Halliday v. Noble, 1 Barb. 138).

d. Departure.-A reply which is a departure is irregular, and may be struck out on motion (White v. Joy, 13 N. Y. 83). Where a plaintiff, a receiver, complained on a promissory note, but did not complain as receiver, and the answer alleged that the note was the property of a receiver, without naming him, and the reply stated that the plaintiff was the receiver mentioned in the answer, and as such sought to recover, the defendant demurred,— held that the reply was a departure, but not therefore insufficient; and the demurrer was overruled (id.)

CHAPTER V.

General Rules of Pleading.

SECTION 156. Pleadings to be subscribed and verified.

157. Pleadings, how verified.

158. How to state an account in pleading; Particulars.

159. Pleadings to be liberally construed.

160. Irrelevant or redundant matter to be stricken out, and indefinite matter made more definite.

161. Judgments, how to be pleaded.

162. Conditions precedent, how to be pleaded.

163. Private statutes, how to be pleaded.

164. Libel and slander, how stated in complaint.

165. Answer in such cases.

166. Answer in actions to recover property distrained for damage. 167. What causes of action may be joined.

168. Allegation not denied, when to be deemed true.

§ 156. (Am'd 1849, 1851.) Pleadings to be subscribed and veri fied.

Every pleading in a court of record must be subscribed by the party, or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also.

a Subscription.-The signature to a verification of a pleading, without more, is sufficient subscription to the pleading (Hubbell v. Livingston, 1 Code Rep. 63); where an infant is a party suing or defending by guardian, the attorney who conducts the suit may subscribe the pleadings (Hill v. Thacter, 3 How. 409; and see Anable v. Anable, 24 How. 92). If a pleading is served which does not appear to have been subscribed, it should be returned with notice of the defect (Ehle v. Haller, 10 Abb. 287; 6 Bosw. 661), or the defect will be waived (id.)

b. Verification.—The verification is no part of a pleading (George v. McAvoy, 6 How. 200). Omitting to verify the complaint, or by defectively verifying it, does not render the complaint irregular (Quin v. Tilton, 2 Duer, 648). But if a defendant either omit to verify his answer, or verify it defectively in a case in which a verified answer is required, and the answer is served without a verification, it may be returned, and the plaintiff may proceed for want of an answer (Strout v. Curran, 7 How. 36). The proper mode to test the question is by a motion for judgment for want of an answer (Moloney v. Dows, 2 Hilton, 247; Hull v. Ball, 14 How. 305). An answer for two defendants which requires to be verified by both, verified by one only, cannot be returned; it is good as to the defendant who has verified it, but if the plaintiff intends to insist that the answer is defective as to the party who has not verified it, he should give prompt notice of such his intention to the defendant's attorney. By keeping the answer forty days without any such notice, he waives his right to insist on the defect (Hull v. Ball, 14 How. 305). Where the answer was served without a verification, in a case in which it ought to have been verified, and the plaintiff's attorney kept the answer nineteen days, and then returned it as defective, but without pointing out the defect, and