tion he believes the same to be true." On motion to strike out the answer on the ground of a defect in the verification, Emmett, J., denied the motion; and see Patterson v. Ely, 19 Cal. R. 28.

a. Verification by all plaintiff's or defendants.—Where several join as plaintiffs, or defendants, all not united in interest should verify (Gray v. Kendall, 5 Bosw. 666; 10 Abb. 70). Where one of several parties united in interest makes the verification, he should state that he is acquainted with the facts (Kelly v. Bowman, Transcript, 18 July, 1861; Boston Loco. Works v. Wright, 15 How. 253). Where the maker and indorser of a promissory note are sued together, the complaint being verified, if they put in a joint answer, it must be verified by both (Andrews v. Storms, 5 Sand. 609; Alfred v. Watkins, 1 Code Rep. N. S. 343; Hull v. Ball, 14 How. 305; and see Reed v. Butler, 2 Hilton, 589).

b. And in an action against husband and wife, where the complaint is verified, unless the wife is a mere nominal party, she should join with the husband in verifying the answer (Youngs v. Seely, 12 How. 397; Reed v. Butler, 2 Hilton, 589; but see Hartely v. James, 18 Abb. 299).

c. Writing, numbering, and indorsing pleadings.- Pleadings are to be in the English language (2 R. S. 275, § 9), legibly written, and the folios, where the pleading exceeds two folios in length, distinctly marked (Rules 20 and 56); the attorney's name and residence are to be indorsed (id. 10).

§ 158. (Am'd 1849, 1851.) Items of account. Particulars.

[1] It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a "further account," when the one delivered is defective; [2] and the court may in all cases order a bill of particulars of the claim of either party to be furnished.

d. Copy account.-The "account" alleged in the pleading means an account stated (Johnson v. Mallory, 2 Rob. 681). Where an account is alleged in a pleading, the opposite party is entitled to a copy thereof; in all other cases, particulars can be obtained only by order (Fullerton v. Gaylord, 7 Rob. 566). An order to deliver a copy of the account mentioned in a complaint does not per se extend the time to answer (Platt v. Townsend, 3 Abb. 9; 5 Duer, 668). After demand of a copy account, if one is delivered which is not satisfactory, a motion should be made promptly for a further account (McKinney v. McKinney, 12 How. 22). The items, as to which a further account is required, should be clearly specified (Kellogg v. Paine, 8 How. 329). The order for a further account may be made at any time before trial (Yates v. Bigelow, 9 How. 186), but after order for reference and trial before referee commenced (Cadwell v. Goodenough, 28 How. 479; 2 Rob. 706; 3 id. 633). A party refusing to furnish a copy of his account should be precluded from giving evidence thereof (Goings v. Patten, 17 Abb. 339). An order for precluding such evidence should be obtained prior to the trial (Kellogg v. Paine, 8 How. 329). An order directing the defendant to deliver an account of payments, or show cause why he should not deliver such account, is not appealable (Watt v. Watt, 2 Rob. 685; 3 id. 615).

a. Bill of particulars.—A party is not entitled, of course, to a bill of particulars. It can be obtained only by order (Fullerton v. Gaylord, 7 Rob. 566). A bill of particulars was refused in an action for violating a special contract (Ives v. Shaw, 31 How. 54), for breach of warranty (Pylie v. Stephen, 6 M. & W. 814), for settlement of partnership accounts (Depew v. Leal, 5 Duer, 663), for converting goods (Blackie v. Neilson, 6 Bosw. 681), for death by wrongful act (Murphy v. Kip, 1 Duer, 659); nor will the order be made in any case where the party applying has full knowledge of the grounds of action or defense (Young v. De Mott, 1 Barb. 30; Blackie v. Neilson, 6 Bosw. 681). A plaintiff is not bound to furnish particulars of set-offs, or payments by defendant, with which he (plaintiff) volunteers to credit him (defendant) in his complaint (Williams v. Shaw, 4 Abb. 209; Giles v. Betz, 15 Abb. 285; Watt v. Watt, 2 Rob. 685). In an action on a policy of insurance, the defendant is entitled to a bill of particulars (Cockroft v. Atlantic Mut. Ins. Co. 9 Bosw. 681; see Mason v. Ring, 10 Bosw. 598; Goings v. Ludlow, 9 id. 681). The use of a bill of particulars is to apprise a party of the specific demands of his adversary (The People v. Monroe Com. Pleas, 4 Wend. 200). It "has the effect to restrict the proofs and limit the recovery to the matters set forth in it. It is regarded as an amplification of the pleading to which it relates, and it is to be construed as forming a part of it" (Melvin v. Wood, 3 Keyes, 536; Bowman v. Earle, 3 Duer, 649). No proofs should be allowed of matters not within the bill of particulars (id.; Brown v. Williams, 4 Wend. 368). But it is not the office of a bill of particulars to state the grounds upon which the plaintiff claims to recover, but only to point out the items and particulars of his claim (Seaman v. Low, 4 Bosw. 338). It is sufficiently specific if it apprises the opposite party of the evidence to be offered (Smith v. Hicks, 5 Wend. 48; Drake v. Thayer, 5 Rob. 694). A bill of particulars as follows: to the first count damages $5,000; balance due on settlement, $5,000; money received at New Orleans on account of plaintiff, $5,000, without specifying any date,-held insufficient (Wetmore v. Jennys, 1 Barb. 53); and stating the items as 66 amount advanced" is not sufficient (Moran v. Morissey, 18 Abb. 131; 28 How. 100). The several items should be stated with dates and amounts (Kellogg v. Paine, 8 How. 329).

§ 159. Pleadings, how construed.

In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.

b. The code, by requiring pleadings to be liberally construed, does not mean that substantial averments may be omitted (Koenig v. Nott, 2 Hilton, 324; Spear v. Downing, 34 Barb. 523; 12 Abb. 437). A verified pleading must be construed so as to make all its parts, if possible, harmonize with each other (Ryle v. Harrington, 4 Abb. 421).

c. Words used in a pleading, as in a contract, should be construed according to their popular sense (Woodbury v. Sackrider, 2 Abb. 405; Mann v. Morewood, 5 Sand. 557); but a pleading must be construed according to what it says, and not what the pleader intended (6 Hill, 240; Gould v. Glass, 19 Barb. 185). "The law does not presume that a party's pleadings are less strong than the facts of the case will warrant " (Cruger v. The Hudson River R. R. Co. 12 N. Y. 201; Koenig v. Nott, 2 Hilton, 324); and where the plaintiff so frames his complaint as to render it doubtful whether he intends to rely on a cause of action on tort or contract, that construction should prevail which is most unfavorable to the plaintiff (Ridder v. Whitlock, 12 How. 212; see Munger v. Hess, 30 N. Y. 591); when the statement of facts in a complaint will support either of two actions, and it is doubtful which the pleader intended, the demand for judgment and the summons may be con

sulted with a view of ascertaining which action was intended (Rodgers v. Rodgers, 11 Barb. 596; Chambers v. Lewis, 2 Hilton, 591; 10 Abb. 206; 11 Abb. 210; Cornes v. Harris, 1 N. Y. 223). And where the complaint was so framed that it was a matter of doubt whether it was intended as consisting of one or of two causes of action, but it contained allegations constituting a cause of action on contract and a cause of action for a tort,-held that all the allegations not material to the cause of action on contract might be struck out as irrelevant or redundant (Hunter v. Powell, 15 How. 221). Generally where an equivocal or ambiguous expression is used, it is to be construed against the party using it (13 Eng. Com. Law Rep. 175; 30 id. 243; Bates v. Rosekrans, 23 How. 98; Beach v. Bay State Co. 10 Abb. 71); but if the opposite party pleads over, then that construction is to be adopted which will support the previous pleading (id.) Where the parties go to trial on an issue of fact, the pleadings objected to will be construed with greater liberality than where the objection has been pointed out by demurrer (St. John v. Northrup, 23 Barb. 26; and see Cady v. Allen, 22 Barb. 394); or motion (Wall v. Buffalo Water Works, 18 N. Y. 119); the language of a pleading is to have a reasonable construction; and when a matter is capable of different meanings, that shall be taken which will support the pleading, and not the other which will defeat it (Allen v. Patterson, 7 N. Y. 480; Olcott v. Carroll, 39 N. Y. 436; Quintard v. Newtown, 5 Rob. 72; and see Sheddon v. Patrick, 28 Eng. Law and Eq. R. 68; Moore v. Foster, 5 Com. B. 220; and see 5 Beav. 41; 3 id. 285; 2 Myl. & Cr. 145). The law will not assume in favor of a party any thing he has not averred (Cruger v. Hudson River R. R. Co. 12 N. Y. 201).

a. General statements in a pleading, which are evidently qualified, and intended to be qualified, by subsequent parts, must be taken accordingly with such qualification (Page v. Boyd, 11 How. 416); thus where the condition was that all suits in the supreme court were to be discontinued, meaning three ejectment suits in the name of P. M. H., one against Norman P., one against Nelson P., and one against S. D., and the allegation of performance was that all suits in the supreme court were discontinued, as in the condition of said bond stipulated, meaning these ejectment suits in the name of P. M. H. against Nelson P. and one against S. D., nothing being said as to the suit against Norman P., and it not appearing to have been in any way discontinued,— held on demurrer that the complaint was defective, for not showing performance of the stipulations as to the suit of Norman P. (Hatch v. Peet, 23 Barb. 575).

b. Where there is an averment of a legal conclusion at variance with an admitted fact, the fact will be regarded and the legal conclusion disregarded (Jones v. The Phænix Bank, 8 N. Y. 235; Robinson v. Stewart, 10 N. Y. 189); and the averment of a mere conclusion, without any fact to warrant it, is always disregarded (Schenck v. Naylor, 2 Duer, 678; and see Mann v. Morewood, 5 Sand. 566; Garr v. Selden, 4 N. Y. 91; Siblee v. Waffle, 16 N. Y. 180; Burrall v. Bowen, 21 How. 378); and this has been held of an allegation that the defendant is indebted or remains indebted (Chamberlain v. Kaylor, 2 E. D. Smith, 139); that a defendant was liable under a special contract (Lewis v. Acker, 11 How. 163); that an instrument was a mortgage (Fairbanks v. Bloomfield, 2 Duer, 354); and so of the allegation "unlawfully converted" (id. 354), or that an obstruction was a flagrant nuisance (Hentz v. L. I. R. R. Co. 13 Barb. 647; and see in note to § 160, post; Decker v. Matthews, 12 N. Y. 321; St. John v. Griffith, 1 Abb. 40).

c. A positive denial of fraud in an answer will not prevail against admissions in the same answer of facts which show that the transaction was fraudulent (Robinson v. Stewart, 10 N. Y. 189; and see Wight v. Prescott, 2 Barb. 196; Dykers v. Woodward, 7 How. 313.)

d. An allegation that "the sheriff suffered and permitted such person to escape" states a voluntary and not a negligent escape (Loosey v. Orser, 4 Bosw.

e. Where a party is shown to be owner of property on a certain day, it

need not be alleged that he continued such owner, the fact of his continuing owner will be presumed (Van Rennsselaer v. Bonesteel, 24 Barb. 366).

a. An averment that an agent acted by due authority is sustained by proof of subsequent ratification (Hoyt v. Thompson's Executors, 19 N. Y. 208). b. To state in a pleading, the nature and source of the information upon which the party relies in making an averment on information and belief, does not vitiate the allegation, nor does prefixing the word "therefore" to an allegation render the allegation the less an allegation of fact (Borrowe v. Millbank, 5 Abb. 28).

c. A complaint, stating a promissory note, whereby the maker promised to pay the defendants named, "trading and doing business under the partnership name or firm of C. J. & Co., and that said note was duly indorsed by said defendants by their said partnership name, sufficiently avers the partnership; an answer, denying " the indorsement in the complaint alleged," does not put the partnership in issue (Anable v. Conklin, 25 N. Y. 470).

d. An allegation that a deed was procured by "false and fraudulent representations and by undue influences," is not an allegation of fraud (Butler v. Viele, 44 Barb. 159).

e. The allegation that defendant subscribed to so many shares of stock implies that defendants were owners of those shares (Oswego Plank R'd Co. v. Rust, 5 How. 390).

f. An allegation "that Abner Sanford was appointed to collect the money, * * * and that no personal demand was made by the said Abner Sanford," does not imply that no personal demand was made by any person authorized to receive the sum demanded, and other than the said Abner Sanford (Manice V. Mayor of N. Y. 8 N. Y. 132).

g. An allegation that plaintiff's intestate was in the employ of defendants as an engineer upon their locomotive while it was in their service,-held sufficient to show the relation of master and servant between the parties (M'Millan v. Saratoga R'lroad Co. 20 Barb. 452).

h. From an allegation that plaintiff was the owner and entitled to certain real estate, it cannot be inferred that he ever was in possession of such real estate (Carpenter v. Stillwell, 3 Abb. 460).

i. In an action on a policy of insurance against fire, proof that there was no force-pump in the building destroyed is admissible under an allegation in the answer that the plaintiff, on his application for insurance, warranted that the building contained such force-pump; and that he removed the same before the fire (McComber v. The Granite Ins. Co. 15 N. Y. 495).

j. An allegation that certain drafts were accepted by a corporation, by their treasurer, includes an averment of authority to the treasurer to accept the drafts (Partridge v. Badger, 25 Barb. 146).

k. In an action for damages caused by the defendant leaving a ditch open and unguarded, the complaint stated that plaintiff fell into it "without any fault or want of care." The answer denied that "plaintiff, without any fault or want of care," did fall therein,-held, that this put in issue the falling into the ditch, and the exercise of proper care by plaintiff (Wall v. Buffalo Water Works, 18 N. Y. 119; Livingston v. Hammer, 7 Bosw. 670).

7. Where a deed is set up in an answer, it is not sufficient to say it was "executed in due form of law;" delivery and acceptance also must be averred (Whitlocke v. Fiske, 3 Edw. Ch. 131; and see 19 Ñ. Y. 232; 30 Barb. 492).

m. Knowledge of the party means of the party making the contract (Hickman v. Fernie, 3 M. & W. 517). Where the plaintiff avers facts amounting to an excuse for not giving notice of nonpayment, and proves such facts on the trial, he may recover, although he has also averred notice and gives no proof thereof (Purchase v. Mattison, 6 Duer, 587).

n. Allegation of making a written instrument implies a delivery (Prindle v. Caruthers, 15 N. Y. 426); allegation that defendant accepted implies a due acceptance (Graham v. Machado, 6 Duer, 514; B'k of Lowville v. Edwards, 216); no award means no valid award (Dresser v. Stansfield, 14 M. & W. 822);

no memorial means no valid memorial (Hicks v. Cracknell, 3 M. & W. 77; taking means an unlawful taking (Childs v. Hart, 7 Barb. 372); conversion means wrongful conversion (Young v. Cooper, 6 Ex. 62); indorsed means lawfully indorsed (Mechanics' B'k Association v. Spring Valley Shot Co. 25 Barb. 521; and see Price v. McClave, 6 Duer, 544; Bank of Geneva v. Gulick, 8 How. 57); and includes delivery (B'k of Lowville v. Edwards, 11 How. 216; see 8 M. & W. 494); entry on land means lawful entry (Turner v. McCarthy, 4 E. D. Smith, 248); sold implies "a sale and delivery" (Clark v. Meigs, 13 How. 467); negligence includes gross as well as ordinary negligence (Nolton v. West. R. R. Corp. 15 N. Y. 450; Edgerton v. N. Y. & Harlem R. R. 35 Barb. 389); overpayment means an overpayment in money (Mann v. Morewood, 5 Sand. 557); sole heir at law implies heirship and only heir (St. John v. Northrup, 23 Barb. 26); signed means made, applied to a promissory note (Price v. McClave, 6 Duer, 544; B'k of Geneva v. Gulick, 8 How. 57); lease in writing means a parol lease (Vernam v. Smith, 15 N. Y. 332); agreement implies written agreement (Young v. Austin, Law Rep. iv. 554, C. P.); furnished proof of interest does not imply an interest (Williams v. Ins. Co. of N. A. 9 How. 374); stating the recovery of a judgment and that it is a lien, implies that it was docketed (Cady v. Allen, 22 Barb. 394).

a. To what time allegations in pleadings refer.—The allegations in a pleading, in the absence of any averment to the contrary, are construed as referring to the time when the pleading is verified or served, and not to the time when the action was commenced, or the accrual of the cause of action (Fisher v. Ford, 12 Adol. & El. 654; Faithful v. Ashley, 1 Q. B. 183; Prindle v. Caruthers, 15 N. Y. 426; Wheeler v. Heermans, 3 Sand. Ch. 597; Rice v. O'Conner, 10 Abb. 362). To an allegation of the complaint that the defendant is the owner, an allegation in the answer that he is not the owner, was held uncertain, and that it should go further and allege that he was not such owner at the time of the commencement of the action (Martin v. Kanouse, 2 Abb. 329; see Dendy v. Powell, 3 M. & W. 442; Moltan v. Torrance, 9 Wheat. 537; Warwick v. Beswick, 10 B. & C. 676; Boyd v. Weeks, 2 Den. 222).

§ 160. (Am'd 1849.) Irrelevant or redundant. Indefinite or

uncertain.

If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.

b. Redundant.-Redundant and irrelevant are not equivalent terms Matter which is irrelevant, it is true, is also redundant; but the converse is not true. A needless repetition of material averments is redundancy; although the facts averred, so far from being irrelevant, may constitute the whole cause of action (Bowman v. Sheldon, 5 Sand. 660). Allegations of aggravating circumstances in an action for malicious prosecution, held not to be redundant (Brockleman v. Brandt, 10 Abb. 141). It is matter which might be proved under a general denial, and is not irrelevant (Hollenbeck v. Člow, 9 How. 292; see Maretzek v. Cauldwell, 2 Rob. 715; Smith v. Trafton, 3 Rob. 709, that mitigating circumstances cannot be struck out as irrelevant nor made definite and certain). To a complaint alleging want of probable cause, the answer, after denying the allegation of the complaint, set up as a defense that defendant had probable cause,-held redundant (Rost v. Harris, 12 Abb. 446; see Benedict v. Seymour, 6 How. 303). It is taking issue on an allegation of