a. For surplus moneys and surrender of notes, in action by an assignor of a mortgage to secure payment of said notes against the assignees (Calhoon v. Bank of Utica, 7 N. Y. 486). b. Legal and equitable relief, when consistent (Getty v. Hudson River R. R. Co. 6 How. 269; Young v. Edwards, 11 How. 201; Wandle v. Turney, 5 Duer. 661; Gridley v. Gridley, 24 N. Y. 136; Phillips v. Gorham, 17 N. Y. 284; N. Y. Ice Co. v. N. West. Ins. Co. 21 How. 296; 12 Abb. 414); as to have a contract reformed and enforced as reformed (Gooding v. McAllister, 9 How. 123; N. Y. Ice Co. v. N. West. Ins. Co. 21 How. 296; and see Lamoreaux v. Atlan. Mut. Ins. Co. 3 Duer, 680; and 16 N. Y. 267; Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263; but see, contra, House v. Cooper, 16 How. 293; 30 Barb. 157; Lattin v. McCarthy, 17 How. 239; Linden v. Hepburn, 3 Sand. 683; Palen v. Lent, 5 Bosw. 713; Gardner v. Ogden, 22 N. Y. 327). c. Recovery of dower, with damages for withholding same (Van Name v. Van Name, 24 How. 247). d. The causes of action to be joined must be in favor of all the plaintiffs, and against all the defendants, and must belong to the same class (Enos v. Thomas, 4 How. 48); but the defendants need not be all equally affected (Vermeule v. Beck, 15 How. 333). e. What causes of action may not be joined.—One complaint may not include causes of action for: f. A demand against defendant as administrator, trustee, or executor, and against him individually (Latting v. Latting, 4 Sand. Ch. R. 31; Landau v. Levy, 1 Abb. 376; Benjamin v. Taylor, 12 Barb. 328; McMahon v. Allen, 3 Abb. 89; 12 How. 40; Worth v. Radde, 18 Abb. 396; 28 How. 230). But where executors continued to occupy premises occupied by their testator in his lifetime,-held that in an action against them in their representative capacity, there might, properly, be joined a demand for the rent which accrued in the lifetime of the testator, with a demand for the rent subsequently accrued (Pugsley v. Aiken, 11 N. Y. 494). 9. Against one defendant as trustee, and against another defendant individually (Alger v. Scoville, 1 Code Rep. N. S. 303; 6 How. 131). h. Divorce on the ground of adultery, and for cruel and inhuman treatment (McIntosh v. McIntosh, 12 How. 289; Johnson v. Johnson, 5 Johns. Ch. R. 163; Henry v. Henry, 17 Abb. 411). i. For cattle killed by railroad cars of defendants, and for the wrongful killing and converting said cattle, with a cause of action on an agreement to carry cattle, and for damages occasioned by the breach of such agreement to. carry safely, and for the loss by death of cattle by reason of weak and insufficient cars, and for converting the cattle so killed (Colwell v. N. Y. & Erie R. R. Co. 9 How. 311). j. For a wrongful conversion of goods and a claim for money received to plaintiff's use (Cobb v. Dows, 9 Barb. 230; and see Moore v. Smith, 10 How. 361; Hunter v. Powell, 15 id. 221; Dorman v. Kellam, 4 Abb. 202; 14 How. 184; see, however, Adams v. Bissell, 28 Barb. 382). k. To restrain some of the part owners of a vessel from disposing of her, in derogation of the rights of other part owners (the plaintiffs), and a cause of action for the hire of the vessel (Coster v. N. Y. & Erie R. R. Co. 5 Duer, 677; 3 Abb. 332, 352). . A claim as an individual and in a representative character (Hall v. Fisher, 20 Barb. 442; Lucas v. N. Y. Cent. R. R. Co. 21 Barb. 245). But a plaintiff may unite a cause of action as executrix with one as devisee where both accrued under a contract made by the testator with the defendant, growing out of the same matter (Armstrong v. Hall, 17 How. 76). m. A claim as an individual and one in the public generally (Warwick v. Mayor of N. Y. 26 How. 358; 28 Barb. 212). n. Against all the defendants jointly, and one or some of the defendants severally (Barnes v. Smith, 16 Abb. 420; Wells v. Jewett, 11 How. 242; Le Roy v. Shaw, 2 Duer, 626; Rodgers v. Rodgers, 11 Barb. 595; Enos v. Thomas, 4 How. 48; Viall v. Mott, 37 Barb. 208; Tompkins v. White, 8 How. 520). a. Breach of warranty, and a claim for damages for fraudulent representations in regard to the same transaction (Sweet v. Ingerson, 12 How. 331; Springsteed v. Lawson, 14 Abb. 328; Quintard v. Newton, 5 Rob. 72). b. Possession of land, and damages for not using the same land as required by the lease thereof (Smith v. Hallock, 8 How. 73; see, however, Hotchkiss v. Auburn R. R. Co. 36 Barb. 600). c. Statute penalties for violating a city ordinance, and to enjoin a continuance of the violation (Lamport v. Abbott, 12 How. 340). d. For building an embankment on defendant's own land; for building an embankment on the highway near plaintiff's store; and for erecting an embankment on plaintiff's land, whereby damage had accrued to plaintiff (Durkee v. Saratoga and Wash. R. R. Co. 4 How. 226; 2 Code Rep. 145). e. A legacy, and for rent not arising out of the same transaction (Gridley v. Gridley, 33 Barb. 250). f. For damages for converting personal property, and for a redelivery (Maxwell v. Farnan, 7 How. 236; Spalding v. Spalding, 3 How. 297; Hulce v. Thompson, 9 How. 113; Budd v. Bingham, 18 Barb. 494). g. For breach of contract for sale of real property, and for an assault on plaintiff, and taking said contract from him (Ehle v. Haller, 6 Bosw. 661). h. Wrongful act of wife, and for wrongful act of husband (Malone v. Stilwell, 15 Abb. 421). i. Several counts.-Several causes of action do not always form the subject of several separate statements or counts, but are sometimes thrown, for the sake of brevity and convenience, into one (Longworthy v. Knapp, Á Abb. 115; Adams v. Holley, 12 How. 329). Stating several grounds of complaint are not necessarily several causes of action (Durant v. Gardner, 10 Abb. 445). j. Separate statement and numbering.-Where there are several causes of action, they must be separately stated and plainly numbered (Rule 19; and see note thereto). k. Consolidating actions.-If two or more actions be brought by the same plaintiff, at the same time, against the same defendant, for causes of action which may be joined, the defendant may move to consolidate the actions (2 R. S. 383, § 38). And, if one of such actions be pending in the supreme court, and others be pending in another court of this State, the supreme court may order the actions in the other court to be consolidated with that in the supreme court; and when several suits are commenced against joint and several debtors in the same court, the plaintiff may, in any stage of the proceedings, consolidate such action (ib. 384, §§ 39, 40; 3 Wend. 442; 9 ib. 451; 19 ib. 23; 4 Hill, 46; 9 Price, 393). 7. A motion to consolidate may be made any where in the district containing the county in which the venue of either of the actions to be consolidated is laid (Percy v. Seward, 6 Abb. 326). m. The granting or refusing a motion to consolidate rests entirely in the discretion of the court (2 R. S. 383). Therefore, from an order granting or refusing a motion to consolidate, no appeal can be taken. If the grounds of the motion are not denied, and it does not appear that the plaintiff will be materially prejudiced by the consolidation, it has been customary with the courts to grant the motion (19 Wend. 23), not only where both or all the suits are brought at the same time, but where they are brought at different times, and although at the commencement of the first action the cause of action in the other had not accrued. The test for allowing the motion is, are the questions to be tried identical? If they are, the motion to consolidate should be granted (4 Hill, 46), unless it will prejudice the plaintiff (3 Hill, 450). The defendant, to entitle him to an order to consolidate, need not swear to merits (3 Wend. 443); for the motion will be granted where no defense is intended, merely to avoid the expense of several judgments (4 Hill, 47; 3 Wend. 442). n. Where several actions are brought on one policy of insurance, the court, on the application of the defendant, and with the consent of the plaintiff, will grant an order to stay the proceedings in all the actions but one, the defendant undertaking to be bound by the verdict in such action, and to pay the amount of their several subscriptions and costs, in case the plaintiff should recover. This mode of consolidation, however, has been held to apply only to several actions on one policy, and not extend to several policies on one risk (1 Caines R. 114). a. Where the same defendants, in several actions for work and labor, entered into a stipulation that all proceedings should be stayed except in the action by J. D., and that the other actions should abide the final judgment in the case of J. D.,—held that J. D. having obtained final judgment against defendants, the plaintiffs in the other actions, on a reference for the purpose had to prove the amount of their claims only, and the defendants could controvert that one point only (Honlahan v. Sacketts Harbor R. R. 24 How. 155). b. Where, in several actions, the plaintiff has regularly obtained judgment at the circuit or special term, the court has no power, on motion of the defendant, to grant an order to stay proceedings in all the actions but one, until the decision of the general term in that one, or to abide the event thereof (Toll v. Thomas, 15 How. 315). c. A party moving to consolidate actions which are to be defended, must show by his affidavit that the questions to be tried in them will be substantially the same in all the suits (Dunn v. Mason, 7 Hill, 154). Where the affidavit was "that the defense in each and all the actions will be substantially the same," but the nature of the defense was not stated,-it was held insufficient. (ib.) And where the affidavit was made by the defendant's attorney, and he swore he had been informed by the president of the company, defendant, that there was a good defense, and that the questions were the same in each action, and gave no excuse why the president himself did not make the affidavit-Ingraham, J., denied the motion (Hone v. Farmer's B'k of Ohio, not reported). d. The plaintiff brought at one time, and against the same defendants, a separate action in each of the counties of the State, for one and the same libel,-held, that the defendant's motion to consolidate the actions must be granted; and that the motion to consolidate was properly made in the county in which all the parties resided. The time to plead in the consolidated action in such a case, should be the time which remained in the action in the county to which the other actions were drawn by the consolidation (Percy v. Seward, 6 Abb. 326). e. A motion to consolidate may be made by a plaintiff (Briggs v. Gaunt, 2 Abb. 77; 4 Duer, 664). f. Where a plaintiff commenced sixty-four actions against the same defendant, all of which were at issue, and were for the recovery of separate penalties for an alleged violation of the law concerning foreign bank notes, the defendant moved to consolidate,-ordered that the plaintiff should bring to trial one of the suits, which might be selected by him, and that all proceedings in the remaining suits should be staid until the trial of such selected suits, with liberty to the defendant after such trial to renew the motion for a consolidation (Clark v. Metropolitan Bank, 5 Sand. 665; and see Anderson v. Towgood, 1 Ad. & El, N. S. 245; Sorley v. Brewer, 18 How. 509). g. Costs where, after consolidation some of the actions are discontinued (Blake v. Mich. R. R. Co. 17 How. 228). § 168. (Am'd 1849, 1852.) Allegation not denied, deemed true. Every material allegation of the complaint, not controverted by the answer, as prescribed in section 149; and every material allegation of new matter in the answer, constituting a counter claim, not controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. a. Material allegation.-Only those allegations in a complaint are to be deemed material which the plaintiff must prove upon the trial in order to maintain his action (Fry v. Bennett, 5 Sand. 54; Newman v. Otto, 4 Sand, 668; Harlow v. Hamilton, 6 How. 475; Connoss v. Meir, 2 E. D. Smith, 316; Oechs v. Cook, 3 Duer, 161; Sands v. St. John, 36 Barb. 628). Every allegation is material unless it may be struck out as surplusage (Mayor of Albany v. Cunliff, 2 N. Y. 171). b. In a complaint against several defendants for goods sold, which, after alleging the sale of the goods to the defendants, adds, "under their firm name of Cook & Son," this last allegation is descriptive only, and not necessary to be proved. The defendant, by not denying it, does not admit it (Oechs v. Cook, 3 Duer, 161). But if the complaint had alleged that the defendants composed the firm of Cook & Son, and then a sale to the firm-in that case the allegation that the defendants composed the firm of Cook & Son, would have been material. Hence "an allegation may be material in one form of constructing a complaint and immaterial in another, in declaring on the same cause of action" (id.; Livingston v. Miller, 8 N. Y. 289; Hatch v. Peet, 23 Barb. 575). c. What defendant admits by not answering.-By not answering the defendant admits the truth of all the allegations in the complaint, but not that those facts constitute a cause of action (Johnson v. Pierce, Eng. (Ark.) R. 599). A defendant who does not answer is not to be taken as admitting any thing contained in an answer of a codefendant in which he has not participated (Woodworth v. Bellows, 4 How. 24). Where there is an allegation on the complaint that the undertaking in suit was executed by defendant, and that allegation is not denied, the execution and delivery of the undertaking is admitted (Robert v. Good, 2 Trans. App. 103). d. Effect of admissions.—Whatever has been admitted in the pleadings cannot be contradicted in the subsequent pleadings or in the verdict (Crosbie v. Leary, 6 Bosw. 313; Thomas v. Austen, 4 Barb. 265 ; Johnson v. MeIntosh, 31 Barb. 272; Paige v. Willett, 38 N. Y. 28); a judgment contrary to an admission in the pleading would be erroneous (Bridge v. Payson, 5 Sand. 217; see Barto v. Himrod, 8 N. Y. 483; and see 6 Johns. 543, 559, 565; 1 Barb. Ch. Pr. 339). e. Where a party relies on the confession of his adversary, the whole matter confessed must be taken together (Dorlon v. Lewis, 6 Barb. 451; Stuart v. Kissam, 2 id. 493). An admission made in the course of a pleading is not an admission made for all the purposes of the cause (Robins v. Maidstone, 4 Q. B. 881; see, however, Hutt v. Morrell, 13 Jurist, 215; Ayres v. Covill, 18 Barb. 264; Knight v. McDowell, 12 Ad. & El. 442; Gould v. Oliver, 2 M. & G. 234; Bonzi v. Stewart, 4 M. & G. 295; Gale v. Lewis, 11 Jurist, 730; Fearn v. Filieu, 7 M. & G. 518; Carter v. James, 13 M. & W. 137). An admission, in an answer, of new matter upon which issue is taken, cannot be used on the trial as a general admission of a material fact alleged in the complaint, when there is in the same answer a general denial of all the material allegations of the complaint (Troy and Rutland R. R. Co. v. Kerr, 17 Barb. 581; Swift v. Kingsley, 24 id. 541). For the new matter pleaded in one defense does not dispense with the necessity of trying the issue formed directly upon the complaint by another defense (Vassear v. Livingston, 13 N. Y. 256; Ayres v. Covill, 18 Barb. 264). a. No admission in a count or defense expressly abandoned by the pleader, can be used in evidence against him (Brown v. Feeter, 7 Wend. 301). And where a pleading has been amended, semble, that the original pleading cannot be read in evidence to show what the party conceived to be his right at the time such pleading was put in (Hales v. Pomfret, 1 Dan. 141). The prima facie effect of the amendment of a pleading, is an acknowledgment of the pleader that he has been mistaken, and not that he made a willful false statement in the pleading so amended (Elizabethport Manufacturing Co. v. Campbell, 13 Abb. 87; see Fielden v. Carelli, 26 How. 173; 16 Abb. 289); and semble, that facts stated in an answer held bad on demurrer, cannot be used as an admission of those facts (Firmin v. Crucifix, 5 C. &. P. 98). b. Reading pleadings to the jury.-It rests wholly in the discretion of the court whether or not it will permit the pleadings to be read to the jury (Willis v. Forrest, 2 Duer, 310). Where plaintiff reads a portion of the answer, defendant is in entitled to have the whole answer read as evidence in his own behalf (Gildersleeve v. Mahony, 5 Duer, 383). As to reading pleadings in evidence, see Gregory v. Brunswick, 6 M. & G. 955; Jennings v. Asten, 5 Duer, 695; 3 Abb. 373; Fry v. Bennett, 3 Bosw. 200; Ames v. Hurlbut, 17 How. 185). c. Admission by not replying.-An answer of infancy (Hodges v. Hunt, 22 Barb. 150), or the statute of limitations, is deemed controverted by this section without any reply (Esseltyn v. Weeks, 12 N. Y. 635); so of a defense of usury (Cutler v. Wright, 22 N. Y. 472). Where the defense is infancy, the plaintiff may, without replying or amending his complaint, prove the making of a new promise by the defendant, after he attained majority (Hodges v. Hunt, 22 Barb. 150). Where a conversion of personal property is set up as a counter-claim, and no reply is interposed, the amount of damages alleged in the counter-claim is not thereby admitted (McKenzie v. Farrell, 4 Bosw. 193; Stewart v. Binnse, 10 Bosw. 436). d. Admission by demurrer.-See ante, p. 205, a. CHAPTER VI. Mistakes in pleading, and amendments. SECTION 169. Material variances, how provided for. 174. Court may give relief in case of mistake. 176. No error or defect to be regarded unless it affect substan tial rights. 177. Supplemental complaint, answer, and reply. § 169. (Am'd 1849.) Material variance. No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or |
