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7.

If the court deem the objection well founded, it shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded.

8.

In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case.

9.

In an action or defense founded upon an account, or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the court, and to state that there is due to him thereon from the adverse party a specified sum, which he claims to recover or set off.

10.

A variance between the proof on the trial and the allegations in a pleading, shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby.

11.

The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require, as a condition of an amendment, the payment of costs to the adverse party.

12.

Execution may be issued on a judgment, heretofore or hereafter rendered in a justice's court, at any time within five years after the rendition thereof, and shall be returnable sixty days from the date of the same.

13.

If the judgment be docketed with the county clerk, the execution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same manner, as other executions and judgments of the county court, except as provided in section sixty-three.

14

The court may, at the joining of issue, require either party, at the request of the other, at that or some other specified time, to exhibit his account on demand, or state the nature thereof as far forth as may be in his power, and in case of his default, preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated.

15.

The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process upon corporations, shall apply to these courts.

The defendant may, on the return of process, and before answering, make an offer in writing to allow judgment to be taken against him for an amount, to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceedings shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the justice shall file the offer and the acceptance thereof, and render judgment accordingly. If notice of acceptance be not given, and if the plaintiff fail to obtain judgment for a greater amount, exclusive of costs, than has been specified in the offer, he shall not recover costs, but shall pay to the defendant his costs accruing subsequent to the offer.

ɑ. Complaint.-The complaint need not correspond with the summons in every respect. Thus, where the summons described the action as "a civil action for damage and false representation in the sale of a horse," and the complaint was for a breach of warranty in the sale of a horse, the court said, "the complaint was in a civil action, and that was enough” (Delancey v. Nagle, 16 Barb. 97). The complaint should give a plain statement of the cause of action; a complaint for one quarter's rent of" premises, describing them and stating the amount claimed, is sufficient (Hubbell v. Clark, 1 Hilton, 67).

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So in an action on a premium note, an averment in the complaint, after setting out the note, that "the company did in the years 1850-1855, make assessments upon the said notes, and required the defendants to pay a certain portion thereof, which assessment the defendants have neglected to pay," was held a sufficient averment of the making the assessment and of a demand and refusal to constitute a cause of action. If the defendant wished more particular information, he should have applied to have the pleading amended (St. Lawrence Mut. Ins. Co. v. Page, 1 Hilton, 430). Where the complaint was "for money had and received, damages $41," the court, on appeal, held it insufficient, and that the claim should have been stated according to the facts; but inasmuch as the cause had been tried on the merits, an amendment was ordered (Cushingham v. Phillips, 1 E. D. Smith, 418). A complaint on a sealed instrument need not state the sealing; it is sufficient if the instrument is referred to so as to be identified (Smith v. Kerr, 3 N. Y. 144; Mosher v. Lawrence, 4 Denio, 419). A complaint for taking property, not alleging it to have been plaintiff's property, held sufficient (Willard v. Bridge, 4 Barb. 361; Copley v. Rose, 2 N. Y. 115). A plaintiff may present his cause of action in as many aspects as he can, if they are not inconsistent with each other, and all exhibit causes of action which may be joined (Wentworth v. Buhler, 3 E. D. Smith, 305); and there is no particular mode in which separate causes of action are to be separated and distinguished from each other. Any mode which apprises the defendant of what is intended is sufficient (Hall v. M'Kechnie, 22 Barb. 244); and where a complaint is both in contract and in tort, and is not demurred to, the plaintiff may recover in either form (Willard v. Bridge, 4 Barb. 361; see Mayor of N. Y. v. Mason, 1 Abb. 344; Burdick v. M'Ambly, 9 How. 117). If the complaint is not sufficiently explicit, the defendant should demur; a justice has no authority to strike out a pleading in whole or in part (Mayor of N. Y. v. Mason, 1 Abb. 344). Where the complaint claimed damages one hundred dollars and over," but judgment was taken for less than $100, held no error, the words and over being surplusage (Rockwell v. Perine, 5 Barb. 573).

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a. Demurrer.-A demurrer is the only proper mode of objecting to a pleading in a justice's court (Mayor of N. Ÿ. v. Mason, 1 Abb. 344; 4 E. D. Smith, 142). The demurrer need not specify the grounds of demurrer (Stern v. Drinker, 2 E. D. Smith, 401). Objections to the complaint not taken by demurrer are waived (Willard v. Bridge, 4 Barb. 361), and after an issue of fact it is too late to raise any objection which might have been raised by demurrer (Hilliard v. Austin, 17 Barb. 141; Hall v. M'Kechnie, 22 Barb. 244; and 1 E. D. Smith, 615, 412; 10 How. 276; 5 Sand. 210). But where it appears on the face of the complaint that it is defective for nonjoinder of another as plaintiff, the objection for that cause is not waived by not demurring, and may be taken on the trial (Rice v. Hollenbeck, 19 Barb. 664; contra Tripp v. Riley, 15 id. 333).

b. The language of subdivision 7 "is imperative, and must apply to and control every case in which the defective pleading is susceptible of amendment (Turck v. Richmond, 13 Barb. 533). The right to amend is peremptory, and not discretionary (Hilliard v. Austin, 17 Barb. 141; Stern v. Drinker, 2 E. D. Smith, 402; Smith v. Mitten, 13 How. 326);" and the allowance of the demurrer must always be with leave to amend (id.; Glasse v. Keulson, 3 Abb. 100). If the party refuse to amend, the defective pleading may be disregarded (id.) Where the defendant on the decision of a demurrer against him puts in an answer, he thereby waives the demurrer; and the appellate court cannot review the decision of the justice in overruling the demurrer (Irvine v. Forbes, 11 Barb. 587; Harper v. Leal, 10 How. 276). Sections 143 and 148 of the code do not apply to proceedings in justices' courts (Cornell v. Smith, 2 Sand. 290).

a. Answer.—“The notice authorized by subdivision 4 is not annexed to the answer, but is contained in it; no demurrer is allowed to it" (Jewett v. Jewett, 6 How. 190). An answer denying any knowledge or information of

the matters alleged in the complaint is not permissible (Dennison v. Carnahan, 1 E D. Smith, 144). By an answer on the merits, the defendant waives all objections which would go only in abatement of the action; and this notwithstanding he may have previously taken the objection, either in the form of a motion to dismiss the complaint, or by a demurrer which has been overruled (Andrews v. Thorp, 1 E. D. Smith, 615; Monteith v. Cash, ib. 412; Harper v. Leal, 10 How. 276; Hilliard v. Austin, 17 Barb. 141; Hall v. Me Kechnie, 22 Barb. 244; and see Gardner v. Clark, 6 ib. 449; Bridge v. Payson, 5 Sand 210; and note to § 148, post).

a. If a defendant unite in one answer matter in abatement and matter in bar, the court may disregard the former and try the case upon the merits (Monteith v. Cash, 1 E. D. Smith, 412; Andrews v. Thorp, ib. 615; see, however, post, note to § 150).

b. Can a defendant file a supplemental answer? (Russell v. Ruckman, 3 E. D. Smith, 419; Price v. Peters, 15 Abb. 197; Ressequie v. Brownson, 4 Barb. 541).

e. It is sufficient, unless objected to as indefinite, for the defendant to plead a general denial, and give notice that he will prove on the trial that the plaintiff is largely indebted to him for board and washing, and for money paid, and that he will claim a judgment for $100 (Bell v. Davis, 8 Barb. 210). d. Where a defendant has interposed a defense, nothing short of his express consent will be a waiver of it (Penfield v. Jacobs, 21 Barb. 335).

e. Verification.—The provision for verifying pleadings is not applicable to oral pleadings (Williams v. Price, 2 Sand. 229).

f. Construction.—Great latitude is allowed in pleadings in courts of justices of the peace; and the courts construe them liberally (Ross v. Hamilton, 3 Barb. 609; Willard v. Bridge, 4 Barb. 361; Ressequie v. Brownson, id. 543; Smith v. Mitten, 13 How. 326).

g. Amendments.--Justices' courts possess in general the same powers as to amendments as courts of record (Fulton v. Heaton, 1 Barb. 552; Agreda v. Faulberg, 3 E. D. Smith, 178); but it is not the duty of the justice, nor proper for him, to volunteer to make amendments not moved for by either party (Loyd v. Fox, 1 E. D. Smith, 102). Section 173 is inapplicable to justices' courts (Gates v. Ward, 17 Barb 427; Webster v. Hopkins, 11 How. 148; Gilmore v. Jacobs, 48 Barb. 336); and the complaint cannot be amended by adding a plaintiff or defendant (id.), but it may by adding a new cause of action (Babcock v. Lipe, 1 Denio, 139); or by reducing the amount of damages claimed (Wooley v. Wilber, 4 Denio, 570); or by substituting one form of action for another (Bigelow v. Dunn, 36 How. 120); but not after plaintiff has rested his case (Waldheim v. Sichel, 1 Hilton, 45).

h. Where an answer is defective the justice should allow it to be amended (Smith v. Mitten, 13 How. 325); and an additional defense may be interposed (Colvin v. Corwin, 15 Wend. 557), but not on the trial (Tattersall v. Hass, 1 Hilton, 56).

4. A justice of the peace cannot amend a summons after service, by correcting the name of a defendant therein, when such defendant does not appear (Hoffman v. Fish, 18 Abb. 76); or by striking out a defendant (Gilmore v. Jacobs, 48 Barb. 336); but he may, where the parties appear and do not move to dismiss, amend the summons by correcting the date (Bradbury v. Van Nostrand, 45 Barb. 194); where, on the return day of a summons, the justice on the plaintiff's motion amended the summons by striking out the name of one of the plaintiffs named therein, issue was joined and the cause adjourned. On the adjournment day a motion was made, on the part of the plaintiff, to have the name of the plaintiff, which had been previously struck out, restored. The motion was allowed, and the plaintiff obtained judgment. The supreme court on appeal reversed the judgment, on the ground that the justice ought not to have allowed the restoration (Gates v. Ward, 17 Barb. 427).

j. A justice may authorize a constable to amend his return (Perry v. Tynen, 22 Barb. 137).

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