the complaint (King v. Utica Ins. Co. 6 How. 485; Anon. 2 Code Rep. 6; Maretzek v. Cauldwell, 19 Abb. 38).

a. Irrelevant.-Matter is irrelevant in a pleading which has no bearing on the subject-matter of the controversy, and cannot affect the decision of the court (Fabricotti v. Launitz, 1 Code Rep. N. S 121; Stafford v. Mayor of Albany, 6 Johns. 25; Van Rennselaer v. Brice, 4 Paige, 177; Lee B'k v. Kitching, 11 Abb. 435; Cahill v. Palmer, 17 Abb. 196; Dovan v. Dinsmore, 33 Barb. 86). If material only as affecting the damages (Root v. Foster, 9 How. 37), or the costs, it is not irrelevant (Van Rensselaer v. Brice, 4 Paige, 177). Hence, the true test of the materiality of averments sought to be struck out is, to inquire whether such averments tend to constitute a cause of action or defense; and if they do, they are not irrelevant (Ingersoll v. Ingersoll, 1 Code R. 102; Averill v. Taylor, 5 How. 476; Minor v. Terry, 6 How. 208; Quintard v. Newton, 5 Rob. 72).

b. Where the plaintiff applies to strike out a denial as being a denial of an immaterial allegation,-in such a case it seems a good test to ask the plaintiff if he will consent to strike out the allegation in his complaint; if he consent, then to grant his application; if he will not consent, then to deny his application (Curts v. Surridge, 9 Q. B. 1015; and Tallis v. Tallis, 16 Jur. 744; 11 Eng. Law and Eq. Rep. 457). But this is not a general rule of practice (id.) c. After stating the facts on which the pleader relies to establish his cause of action or defense, it may sometimes be necessary, to insure certainty, to add the conclusion which he draws from such facts; but the statement of such conclusion would never vitiate the pleading, and probably would not be struck out as redundant. Thus, where a complaint, after stating the facts, proceeded: "Whereupon the plaintiff became entitled to the possession of the said note," the court said, "It was probably not necessary to state this conclusion upon the facts stated; but it can do no harm" (Decker v. Matthews, 12 N. Y. 321; Gould v. Williams, 9 How. 51; St. John v. Griffith, 1 Abb. 40; Meyer v. Collen, 28 Barb. 230; and see Lee Bank v. Kitching, 7 Bosw. 664; 11 Abb. 439; Bridge v. Paysan, 5 Sand. 216; where such an allegation was held to be irrelevant). d. In an action against an indorser of a note, an answer that the defendant did not receive the notice of presentment and dishonor, would be irrelevant (Edgerton v. Smith, 3 Duer, 614).

e. Where a plaintiff has an option either to sue on contract or tort, and he elects to sue on contract in the form for money received to plaintiff's use, all allegations as to fraud on the part of the defendant, in reference to the alleged cause of action, are redundant and irrelevant (Sellar v. Sage, 12 How. 531; 13 id. 230; Lee v. Elias, 3 Sand. 736; and see Lamoreaux v. Atlantic Mut. Ins. Co. 3 Duer, 681).

ƒ. Uncertainty.-Wherever the pleader desires to show a conclusion different from that which the law would, prima facie, draw, he must state the facts which remove such prima facie conclusion; but if, instead of stating the facts, the pleader merely states the conclusion, the fault is uncertainty, not insufficiency, and the remedy of the opposite party is, by motion, to have the pleading made certain, by amendment (Martin v. Kanouse, 11 How. 568; 2 Abb. 327; see Eno v. Woodworth, 4 N. Y. 253).

g. Time. If the time when a fact happened is material to constitute the cause of action, it should undoubtedly be stated. The fact without the time would be insufficient to constitute the cause of action; but if the time is immaterial, a demurrer will not lie for omitting to state it (The People v. Ryder, 12 N. Y. 439; Bryant v. Bryant, 2 Rob. 212). The remedy is by motion to make the pleading definite and certain (id.; and see, to the same effect, Barnes v. Mattison, 5 Barb. 378; Nash v. Brown, 18 Law Jour. Rep. N. S. [C. P.] 62; Payne v. Banner, 15 id. 227; Marshall v. Powell, 13 Jurist, 126). The day on which it is alleged, in pleading under a videlicet, that an act is done, is usually immaterial; and if a day stated under a videlicet is inconsistent with any allegation of the pleading, the allegation of the day may be regarded as surplusage (Lester v. Jewett, 11 N. Y. 460; Lyon v. Clark, 8 N. Y. 148; Ive v. Scott, 9

Dowl. Pr. C. 993; Dubois v. Beaver, 25 N. Y. 123; see Zorkowski v. Zorkowski, 3 Rob. 613). In an action for slander, the allegation of the time of uttering the slander is immaterial (Potter v. Thompson, 22 Barb. 87).

a. Where it is important to show that a particular fact alleged in a pleading occurred after the happening of some other event, it is in most cases sufficient to allege that such fact occurred after such other event (Martin v. Kanouse, 2 Abb. 331; Kellogg v. Baker, 15 Abb. 287; and see Brown v. Harmon, 21 Barb. 510; Beesley v. Dolby, 6 Bing. N. C. 37); but an allegation that plaintiff was not advised of fraud until long after, is uncertain (Johnson v. Johnson, 5 Ala. R. N. S. 101; and see Bertine v. Varian, 1 Edw. Ch. R. 343).

b. A declaration for goods sold, &c., which did not allege the time of sale,— held sufficient on special demurrer (Lane v. Thelwell, 3 Cr. M. & R 140); so was a declaration which made profert of letters testamentary, but omitted the date when the letters were granted (Hughes v. Williams, 2 Cr. M. & R. 331). The day on which it is alleged, in a declaration in trespass for mesne profits, that the plaintiff was ejected, and that on which possession was recovered by him, are not material (Ive v. Scott, 9 Dowl. P. C. 993). By not material is meant it may be departed from in evidence; but allegations in respect to time, like all other allegations, are evidence against the party making them, as his admissions (Andrews v. Chadbourne, 19 Barb. 149). An allegation in a complaint that the "plaintiff afterwards, to wit," on a day specified, paid certain moneys, does not preclude him from showing that the payment was made at an earlier day, for the purpose of claiming interest (Lyon v. Clark, 8 N. Y. 418; see Dubois v. Beaver, 25 N. Y. 123).

c. Place. Where a plaintiff seeks to enforce in the courts of this State a contract which by the laws of this State is void, he must state where the contract was made, and that by the law of the place where made it was valid (Thatcher v. Morris, 11 N. Y. 440). And whenever the matters pleaded are local in their nature, the allegation of place is material and the subject of the issue (Vermilyea v. Beatty, 6 Barb. 429; Beach v. Bay State Co. 10 Abb. 71).

d. An omission to allege the time and place at which an act stated in a pleading was done, does not render the pleading insufficient or demurrable (Carpenter v. Brown, 6 Barb. 147; see Beach v. Bay State Co. 10 Abb. 71; Ryalls v. Bramall, 1 Ex. 734); although "when one agrees to sell and deliver at a particular place, and the other agrees to receive and pay, an averment by the purchaser of a readiness and willingness to receive and pay at that place, in case he sues for a nondelivery, is indispensable to a good complaint" (Clarke v. Dales, 20 Barb. 65)—yet if in such a case the complaint alleges a general readiness and willingness on the part of the plaintiff to perform his part of the contract, this would imply a readiness and willingness to perform at the particular place.

e. Quantity.-Allegations with regard to quantity are rarely necessary unless the subject of the averment is a record, a written instrument, or an express contract (Van Rensselaer v. Jones, 2 Barb. 643).

f. Value.-Allegations and proof of value only go to the quantum of damages. Allegations of value are not traversable (McKenzie v. Farrell, 4 Bosw. 193; Stewart v. Binsee, 10 Bosw. 436; Cannos v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 id. 13; Woodruff v. Cook, 25 Barb. 505; Waggoner v. Betts, 4 Monroe, 7; Haley v. Caller, 1 Ala. R. 63; see, however, Gregory v. Wright, 11 Abb. 471; Holmes v. Hodgson, 8 Moore, 379; Bertie v. Pickering, 4 Burr, 245; Scott v. Jones, 4 Taunt. 865; Phillips v. Jones, 19 Law Jour. Q. B. 374).

g. Names of persons.-The omission of the first names of persons in pleadings (unless excused by averment) makes the pleadings indefinite and uncertain (Applemans v. Blanche, 14 M. & W. 154; Esdale v. M’Lean, 15 id, 277). [The averment of excuse is that the first name is unknown to the pleadThis averment, although in this respect necessary, is not traversable. It

er.

is necessary to show that the pleader has made the pleading as certain as it was in his power to make it.] See § 175, post.

a. Allegations held not sufficiently certain.-That referees duly made their award (Everard v. Paterson, 6 Taunt. 645; 2 Marsh, 304). That plaintiff was duly appointed administrator (Beach v. King, 17 Wend. 17); duly appointed receiver (Gillett v. Fairchild, 4 Denio, 83; White v. Joy, 13 N. Y. 86). That an act was done in a "suspicious manner" (Muir v. Kaye, 4 Taunt. 34); or "according to statute" (Walker v. Maxwell, 1 Mass. 104); contrary to statute (Smith v. Lockwood, 13 Barb. 209); or that the defendant had made "repeated acknowledgments" (Bloodgood v. Bruen, 8 N. Y. 366); or that "by virtue of a certain writ or other warrant" (1 Saund. 298, n. 1); or that it was done" in due course of law" (Currie v. Henry, 2 Johns. 437); or that he was "compelled to pay" (Packard v. Hill, 7 Cow. 442, 1 Wend. 209); or that plaintiff is indebted on account of previous transactions (Wiggins v Gans, 3 Sand. 738; Eno v. Woodworth, 4 N. Y. 253). Other necessary charges (Barker v. Thorold, 1 Saund. 47).

b. That defendant was bound to repair (Casey v. Munn, 5 Abb. 91); that a ship was seized "as prize" (Bead v. Tyrrell, Carth. 31); that the instrument sued on had become void (Lewis v. Preston, 1 Show. 290); that a party had been "guilty of contempt as well by acts as by words" (Collett v. Shrewsbury, 2 Leo. 34); or that he did "not detain" (Rex v. Winton, 5 Term R. 89); a large sum (16 N. Y. 122); covenanted (14 N. Y. 544). That S. failed to fulfill his obligations by virtue of said instrument (Van Shaack v. Winne, 16 Barb. 95); that each plaintiff is a creditor in the sum of $100 and upwards (Gray v. Kendall, 5 Bosw. 666); that A is a creditor on several promissory notes of said firm (id.); that services and materials were done and supplied, at the times and about the matters and at the prices specified in an account already delivered (Farcey v. Lee, 10 Abb. 143); that a judgment obtained in the name of another belongs to plaintiff (Martin v. Kanouse, 2 Abb. 327); that plaintiff, at defendants' request, rendered to defendants other services as agent, for which he is entitled to have, as a fair reward, $50; also for work, labor and services done and material furnished by plaintiff for defendants (Chesbrough v. N. Y. & Erie R. R. Co. 13 How. 557); that it appeared on the face of the complaint that certain persons ought to be parties, and that a complete determination of the action could not be had without their presence (Gassett v. Crocker, 10 Abb. 133); facts anticipating and avoiding the defense of the statute of limitations (Butler v. Mason, 5 Abb. 40).

c. When the facts are not really stated with sufficient certainty, the introduction of the words "certain" (13 East, 102, 116; 1 B. and P. 98, 102; 2 id. 120, 265; Bennett v. Ex'ors of Pixley, 7 Johns. 249), "duly," "lawfully," "sufficient," will not avail to make the fact certain (Van Ness v. Hamilton, 19 Johns. 349).

d. Less definiteness and certainty is required when the facts lie more in the knowledge of the opposite party than of the pleader.-This was the rule formerly (Stephen's Plead. 370). If the pleader alleges he is heir, he must show his pedigree, and how he became heir; but if he alleges his opponent is heir, that is sufficient without more (2 Saund. 7 c. note; see St. John v. Northrop, 23 Barb. 26; Richards v.Edick, 17 id. 270). In alleging the opposite party to be an assignee, it is not necessary to state how he became assignee (Norton v. Vultee, 1 Hall, 384). A person claiming as next of kin should show how he was related to the deceased (Public Adm. v. Watts, 1 Paige, 348). A policy of insurance in possession of the opposite party was held to be described with sufficient certainty, where it stated the names of the insurer and the insured, that it was on the furniture in defendant's tavern in Norwich, and that it was for $1,000 (Nellis v. De Forrest, 16 Barb. 67). Where a complaint stated the circumstances under which the defendant made an assignment for the benefit of creditors, and set forth the whole assignment, and then alleged that the assignment was fraudulent and void on its face, and was made to hinder, delay and defraud credit

ors,-held sufficiently definite and certain, and that it was not necessary to state why it was fraudulent and void on its face (Hastings v. Thurston, 18 How. 530; 10 Abb. 418). An answer alleging that a judgment relied upon by the plaintiff was obtained by fraud between parties named, is sufficiently certain (Culver v. Hollister, 17 Abb. 405).

a. A complaint which stated that at a specified time defendants received, as agents of plaintiff, from a specified party, certain sums of money, amounting to a certain sum, and then stated a demand of payment and refusal,-held neither indefinite nor uncertain (Sloman v. Schmidt, 8 Abb. 5).

b. Remedy for irrelevancy, uncertainty, &c.-To make a pleading definite and certain, or to strike from it irrelevant or redundant matter, the remedy is by motion, not by demurrer (see ante, p. 204, e.) An entire pleading cannot be stricken out as irrelevant or redundant (Benedict v. Dake, 6 How. 352; Nichols v. Jones, ib. 355; Hull v. Smith, 8 ib. 150; Howell v. Knickerbocker Life. Ins. Co. 24 How. 475; Blake v. Eldred, 18 How, 240; Fasnacht v. Stehn, 5 Abb. N. §. 338; 53 Barb. 650; Collins v. Coggell, 7 Rob. 81). A party cannot on the trial object to a pleading as indefinite or uncertain (Farmer's Bank of L. I. v. Sherman, 6 Bosw. 181; 30 N. Y. 655; see Martin v. Kanouse, 2 Abb. 331.) Omitting to move to strike out or to make definite and certain, is an admission that defendant understands the nature of the charge and is prepared to meet it (Quintard v. Newton, 5 Rob. 72). A complaint cannot be dismissed at the trial because it contains irrelevant or redundant matter (Simmonds v. Eldridge, 19 Abb. 296; Smith v. Countryman, 30 N. Y. 655).

c. The indefiniteness and uncertainty to be relieved on motion is only such as appears on the face of the pleading (Brown v. So. Mich. R. R. Co. 6 Abb. 237).

d. Motions to strike out parts of a pleading as irrelevant or redundant are substitutes for special demurrers (Kellogg v. Baker, 15 Abb. 287; Lee Bank v. Kitching, 11 Abb. 439; 7 Bosw. 664). They are not to be encouraged (Moloney v. Dows, 15 How. 261). And matter, though clearly redundant, if not tending seriously to prejudice the opposite party or encumber the record, will not be stricken out. The opposite party is not aggrieved (Clark v. Harwood, 8 How. 470; White v. Kyd, 4 id. 68; Hynds v. Griswold, 4 id. 69; Harlow v. Hamilton, 6 id. 476; Brockleman v. Brandt, 10 Abb. 141). On the other hand, it has been said that a party is aggrieved by every unnecessary allegation (Carpenter v. West, 5 How. 53; Isaac v. Velloman, 3 Abb. 464); and again, "if the matter cannot be made the subject of a material issue, it has no business in the pleading, and ought not to be left there (Rens. Plank Road Co. v. Wetsel, 6 How. 68; Stewart v. Bouton, 6 id. 71). "If the matter cannot be made the subject of a material issue, or affect the question of an injunction, or costs, or other relief to be granted, and embarrasses the opposite party and the court, it has no business in the pleading" (Martin v. Kanouse, 2 Abb. 331 ; Aubrey v. Fiske, 1 Trans. App. 246; see Farmer's Bank of L. I. v. Sherman, 6 Bosw. 181; 30 N. Y. 655).

e. Scandalous.-The court may strike out scandalous matter (Bowman v. Sheldon, 5 Sand. 660; Carpenter v. West, 5 How. 53; Mussina v. Clark, 17 Abb. 188; Opdyke v. Marble, 18 Abb. 266, 375).

f. Motion, when and how made.-The motion must be made before demurring to or answering the pleading objected to, and within twenty days from the service of such pleading (N. Y. Ice Co. v. N. West. Ins. Co. 12 Abb. 74); original or amended (Walker v. Granite B'k, 1 Abb. N. S. 406); and before noticing the issue for trial (Kellogg v. Baker, 15 Abb. 287). The motion papers should point out the precise parts objected to (Benedict v. Dake, 6 How. 352; Blake v. Eldred, 18 How. 240; Bryant v. Bryant, 2 Rob. 612). But it seems they need not show affirmatively that the motion is made in time. If not made in time, it is for the opposite party to object (Barber v. Bennett, 4 Sand. 705). A stipulation extending the time for the defendant to answer, and to make such application as he should be advised, operates to extend the

time to move under this section (Lackey v. Vanderbilt, 10 How. 155). But obtaining an order for time to answer or reply, without any reservation, or noticing the cause for trial, is a waiver of the right to move under this section (Miln v. Vose, 4 Sand. 660; Esmond v. Van Benschoten, 5 How. 44; Bowman V. Sheldon, 5 Sand. 657; Marry v. James, 34 How. 238). If after notice of motion to strike out parts of the complaint, and before the motion is heard, the defendant serves his answer, he thereby waives his motion (Goch v. Marsh, 8 How. 439). Where portions of a pleading are on motion struck out as irrelevant, it is not necessary to serve a copy of the pleading without the parts struck out (Ross v. Dinsmore, 12 Abb 4; 20 How. 328).

a. Appeal.—An appeal lies from an order to make a pleading definite and certain (Arrieta v. Morrisey, 1 Abb. N. S. 439). The operation of the order may be suspended pending the appeal by a stay of proceedings (Culver v. Hollister, 17 Abb. 405).

§ 161. Judgments, how to be pleaded.

In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction.

b. Foreign judgment.—“This section does not apply to foreign judgments; and a general averment of jurisdiction of a foreign tribunal would not be sufficient" (Hollister v. Hollister, 10 How. 539; and see Barnes v. Harris, 3 Barb. 603; Ayres v. Covill, 18 id. 260; Bement v. Wisner, 1 Code Rep. N. S. 143). Therefore a complaint on a judgment of a foreign court of inferior jurisdiction must state facts showing that the court had jurisdiction, both of the person and of the subject-matter (McLaughlin v. Nichols, 13 Abb. 244). A complaint on a judgment of a circuit court of another State, e. g., the Warren county circuit court of New Jersey, must aver the existence either of a general jurisdiction in that court, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered, whatever it was, and also that the court had obtained jurisdiction of the person of the defendants (id.; contra, Halstead v. Black, 17 Abb. 227). Need the place where the court was held be alleged? (Duyckinck v. Clinton Mut. Ins. Co. 3 Zab. 279). e. As to judgments obtained in Canada, see Laws 1868, ch. 596.

d. Domestic judgment.-In pleading any determination of a court or officer of limited jurisdiction within this State, such a judgment or determination may simply be alleged to have been duly given or made. If that be denied, jurisdiction and all jurisdictional facts must be proved (Wheeler v. Dakin, 12 How. 542) .Thus, in pleading an insolvent discharge, it is sufficient to say that the judgment or determination of the officer granting the discharge was duly given or made (Livingston v. Oaksmith, 13 Abb. 183). The officer should be designated (Carter v. Koezley, 14 Abb. 147). In pleading a by-law, it is sufficient to allege that the by-law was 66 duly made and passed" (Wilson v. Fort Hope, 10 U. Č. Q. B. Rep. 406). The pleader should allege, substantially that the judgment was "duly given or made" (Hunt v. Dutcher 13 How. 538; see Rowland v. Phalen, 1 Bosw. 44; Carter v. Koezley, 14 Abb. 150).

§ 162. (Am'd 1851.) Conditions precedent, instrument for payment of money only.

[1.] In pleading the performance of conditions precedent in a