Obrázky stránek
PDF
ePub

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; Phænix 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. Edwards, 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.

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 (Zabriskie 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. Y. 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. S. 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; Byrbie 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 Ñ. 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.

It

b. Answer. The answer is not required to be entitled in the action. 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

« PředchozíPokračovat »