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. 8 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 ▼. 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 (Mc Gown 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.

ƒ. 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. Catim, 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.)

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).

b. 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,

or,

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

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. Løft, 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 Ább. 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, 1Horn. & 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