Griffin, 8 Bosw. 689). An answer denying the making of a note held sham (see Fairchild v. Rushmore, 8 Bosw. 698). And in an action by a corporation as indorsee of a note, an answer merely denying the plaintiff's corporate character and the partnership of the indorsers,-held sham (Agawan B'k v. Egerton, 10 Bosw. 669; and see Beebe v. Marvin, 17 Abb. 194; De Forest v. Baker, 1 Abb. N. S. 34).

a. A counter-claim is not a defense and cannot be stricken out as sham (Collins v. Suau, 7 Rob. 94). An answer which is so framed that it does not set up a valid defense, but which states facts that may, by being properly averred, constitute a defense, will not be struck out as sham, irrelevant, or frivolous (Alfred v. Watkins, 1 Code Rep. N. S. 343; Struver v. Ocean Ins. Co. 2 Hilton, 475; 9 Abb. 23); but it may be demurred to (id.)

b. To a complaint on a promissory note, remote indorsees against maker, the defendant answering that the note was made without consideration therefor, was obtained from him by fraud of A. B. & C., and alleging "upon information and belief" that plaintiffs gave no value for the note, and "are not bona fide holders thereof." The plaintiffs, on an affidavit that they were the bona fide holders of the note for a valuable consideration, paid in cash upon the maturity of the note, and without notice of the want of consideration or fraud alleged in the answer, and stating admissions and promises to pay by the defendant, moved to strike out the answer as sham. The defendant did not fully deny the allegations in the plaintiff's affidavits. The motion was denied. The court said the answer was not shown to be untrue, but the plaintiff's affidavits stated facts which avoided the answer (Wirgman v. Hicks, 6 Abb. 17).

c. In an action by an indorsee against the defendant as maker of the promissory notes, the subject of the action, the complainant alleged the making of the notes, that the plaintiff was "the lawful owner and holder of the notes.” The answer denied that the plaintiff was "the lawful owner and holder of the notes," &c., and was struck out as sham (Seeley v. Engell, 17 Barb. 530; see Butterfield v. Mc Comber, 22 How. 150). So in Catlin v. Gunter (1 Duer, 265), one of the defenses consisted of a denial that the plaintiff was the lawful owner and holder of the note sued on, and that the defendant was indebted to him thereon in the sum claimed to be due, or in any sum whatever; and in reference to this the court say, "We are in the constant habit of striking out such a denial as irrelevant and frivolous;" and to the same effect in Witherspoon v. Van Doler (15 How. 266). An answer, verified, which alleged-as to the averment in the complaint that the plaintiff is the lawful holder and owner of said promissory note, and that the defendant is indebted to him thereon in the sum of $- and interest-the defendant has no knowledge or information sufficient to form a belief, and can therefore neither admit nor deny the same was struck out as sham (Fleury v. Roger, 9 How. 215; Flammer v. Kline, id. 216; Fleury v. Brown, id. 217).

d. In an action on a promissory note against indorsee, the answer denied any knowledge, &c., of presentment and notice of nonpayment, the plaintiff moved to strike out the answer as false on affidavit of the notary of presentment and notice of nonpayment. The defendant made an affidavit that his answer was put in in good faith, and that it was trueto best of his knowledge and belief, but stated no facts warranting such belief,-the motion was denied (Bailey v. Lane, 13 Abb. 354; and see Ward v. Waterhouse, 2 Rob. 653).

e. In an action for false imprisonment, an answer denying any kno wledge or information sufficient to form a belief as to the allegation that defendants caused to be issued the writ on which the plaintiff was arrested, was struck out as sham (Lawrence v. Derby, 15 Abb. 346, note; 24 How. 134).

f. In an action on a promissory note, a defense of an agreement contemporaneous with the making of the note, to renew the note at maturity, is frivolous (Bailey v. Lane, 13 Abb. 359), and may be struck out on motion (id.); and see Shoe & Leather B'k v. Camp, 21 How. 443.

a. An answer denying knowledge of a judgment in an action in which the defendant appeared, struck out as sham and false (Beebe v. Marvin, 17 Abb. 194).

b. Irrelevant pleading.—A pleading is irrelevant, which has no substantial relation to the controversy between the parties to the action. A general denial of a material allegation cannot be considered as irrelevant (Seward v. Miller, 6 How. 313; Fasnacht v. Stehn, 53 Barb. 650; 5 Abb. N. S. 338); a frivolous answer or defense is not necessarily irrelevant (id.) Irrelevancy comprehends both prolixity or needless details of material matter and also matter out of which no cause of action or defense could arise between the parties (Lee Bank v. Kitching, 11 Abb. 435; Struver v. Ocean. Ins. Co. 2 Hilton, 476; 9 Abb. 23). An answer should be palpably irrelevant to warrant its being stricken out (Littlejohn v. Greeley, 22 How. 345; 13 Abb. 311); if not palpably irrelevant, the plaintiff should demur (id.; Struver v. Ocean Ins. Co. 9 Abb. 23; 2 Hilton, 475; see, however, Lee Bunk v. Kitching, 11 Abb. 439). Where the complaint for goods sold and delivered and for labor alleged that said goods were sold and delivered at the times and were of the value therein specified, and also alleged that the labor was performed at the time, and was of the value therein specified, and the answer denied that the goods were sold, &c., at the time, and were of the value specified, and made a like denial as to the labor,-held that the denial of the time was immaterial, but that the denial, of the value raised a material issue (Gregory v. Wright, 11 Abb. 410). To a complaint for use and occupation, an answer which, without denying any fact stated in the complaint, merely alleged, "The defendant denies that the plaintiff is entitled to the sum of money demanded in this action, or any part thereof," was struck out on motion, the report does not state on what ground; it is presumed as irrelevant (Drake v. Cockcroft, 10 How. 337; 1 Abb. 203; 4 E. D. Smith, 34). New matter which is palpably no defense, either total or partial, nor a counter-claim, may be struck out as irrelevant (Kurtz v. McGuire, 5 Duer, 660).

c. In an action by the holder, against the first indorser of a note, the answer alleged that plaintiff was not the real party in interest, nor the owner of the note. That it belongs to one R. the second indorser, who at the time he owned it was indebted to the maker, and that the maker had notified defendant not to pay the note,-held that said answer, except that part which alleged that plaintiff was not the real party in interest nor the owner of the note, was irrelevant (Arrangois v. Frazer, 2 Hilton, 244; and see Tamisier v. Cassard, 17 Abb. 187).

d. Motion to strike out.-The denial of a motion to strike out as frivolous does not prevent a motion to strike out as sham (Kreitz v. Frost, 5 Abb. N. S. 277). An entire answer or an entire defense may be struck out under this section; but not a part of a defense (Slack v. Cotton, 2 E. D. Smith, 398; Bell v. Ogden, 13 Abb. 93, note; Littlejohn v. Greeley, 13 Abb. 311; Collins v. Coggill, 7 Rob. 81; Winslow v. Ferguson, 1 Lans. 436). But in the case of a joint answer it may be adjudged sham as to some defendants, and valid as to the others (Burrell v. Bowen, 21 How. 378). The right to demur to an answer, and to move to strike it out as irrelevant, are not optional with the plaintiff; where the irrelevancy of an answer or defense is not palpable, the plaintiff should demur (Littlejohn v. Greeley, 13 Abb. 311; 22 How. 345). The power to strike out should be cautiously exercised (The People v. McCumber, 18 N. Y. 325; Webb v. Van Zandt, 16 Abb. 190; Manuf. B'k of Rochester v. Hitchcock, 14 How. 406; Lockwood v. Salhenger, 18 Abb. 136). Semble, that, on a motion to strike out an answer as false, it must be shown affirmatively by affidavit, other than the verification of the complaint in the ordinary form, that the answer is false (White v. Bennett, 7 How. 59; Kellogg v. Baker, 15 Abb. 287); the defendant is bound, on a motion to set aside the answer as sham, to support the motion by the oath of a party having knowledge (The People v. McCumber, 18 N. Y. 316).

e. Slight circumstances, indicating good faith, are sufficient to prevent a

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).

§ 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).

a. 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