Bosworth J. held the answer to be frivolous, and gives this reason-" It [the answer] admits, therefore, the making and delivery of the notes to the plaintiff, that they are unpaid, that he is the real party in interest in the action, but professes ignorance whether he is the lawful holder and owner; on the facts admitted, he is in judgment of law the lawful owner and holder, and on producing the notes at the trial he is entitled to recover; and the answer contains no allegation of fact which, if proved, would be a defence." Fleury v. Roget, 5 Sand., 646. It appears from the report of this case, that on the motion the defendant produced an affidavit, in which he swore that the answer was not put in merely for delay, but in good faith; that he "believed the plaintiff had parted with all right, title, and ownership in and to the said notes, and is now suing on said notes for the benefit of some other and third party." The affidavit was disregarded, because it did not state any ground on which the defendant formed his belief.

a. In an action on a promissory note, the complaint set forth a copy of the note, and alleged that the plaintiff was the lawful holder and owner thereof, and that defendants had not paid same, and were indebted to plaintiff in the amount thereof. The defendants by their answer admitted making the note, "but they deny the allegation of nonpayment, and that they are indebted to plaintiff on said note, or by reason of the making thereof, or that said note or any part thereof is justly due or owing by them." The complaint and answer were verified. Plaintiff moved to strike out as false and frivolous all the answer, except so much as admitted the making the note. Welles, J. granted the motion with costs, and said, "Under these denials no new matter would be admissible in evidence. The plaintiff would have nothing to prove upon the trial, as the making the note is admitted. There is nothing the defendants could give in evidence under this answer. They could not prove payment, because they have not set it up in their answer; and so of any other imaginable defence. Having admitted the making the note, and not having set up any fact showing why they ought not to pay it, their liability to pay is a legal conclusion from which the defendants cannot escape, as they have not prepared the way by heir answer for giving any defence in evidence." The motion, it seems to us, should have been to strike out the portion of the answer objected to as irrelevant or redundant, under section 160, and not as frivolous. Frivolous is when the whole pleading is irrelevant. Edson v. Dillaye, 8 Pr. R., 274.

b. A denial in the answer that plaintiff is the lawful owner of the note sued on (after an admission that the note is in the possession of the plaintiff), and that the defendant is indebted to the plaintiff thereon, raises no issue whatever, but is a denial merely of a conclusion of law, which as such the judge upon the trial, so far from admitting evidence under it, is bound to disregard as irrelevant and nugatory. Gunter v. Catlin, 1 Duer, 253.

owner

c. Where a complaint by an endorser of a promissory note, alleged that the plaintiff was the "lawful holder" of the note, and the defendant demurred, alleging for cause, that it did not appear by the complaint that the plaintiff was the of the note, the court refused a motion to set aside the demurrer as frivolous. Beech v. Gullup, 2 Code Rep. 66. That case, however, has been overruled and disregarded in numerous cases.

d. An answer which denies knowledge or information sufficient to form a belief that the defendant (a corporation) made its promissory note, as it is set out in the complaint, simply denies the making the note under all the circumstances, of time, place, and form, as stated in the complaint, thus leaving it entirely uncertain whether a material or immaterial issue was designed to be presented. In this respect the answer controverted so familiar and well-settled a rule of pleading, that it is frivolous. Sherman v. N. Y. Central Mills. 1 Abbott, 191.

e. In an action on a promissory note, payee against maker, an answer that the note was not presented for payment at the time it became due, and at the place at which it was made payable, without any allegation of payment or tender of payment, at the time and place when and where the note was due and payable, raises an immaterial issue, and may be struck out as frivolous, or if it be the only defence set up, the plaintiff may move for judgment. Tompkins v. Acer, 10 Pr. R. 309.

f. To a complaint alleging that the defendants made their promissory note, payable to their own order, and indorsed and delivered it to the plaintiffs, and that "the

plaintiffs are now the lawful holders and owners of the note," an answer which states only that the defendants have not any knowledge or information sufficient to form a belief whether the plaintiffs are "the owners of the note," and "are justly entitled to have and demand payment of the same," would be clearly frivolous, because "the uncontroverted allegations in the complaint, show possession and property in the plaintiffs." Higgins v. Rockwell, 2 Duer, 653.

a. Complaint on promissory note, payee against maker, the allegation being that the defendant, a corporation, made the note by their agent; the answer, verified by one of the members of the corporation, alleged that the defendant (the corporation) had no knowledge or information sufficient to form a belief that it did at the time, for that purpose stated in the complaint, by its authorized ageut, make its promissory note by the name and for the amount and as in this respect set forth in the complaint," on motion, the answer was adjudged frivolous, and judgment given for the plaintiff Thorn v. N. Y. Central Mills, 10 Pr. R. 20; Sherman v. N. Y. Central Mills, 1 Abbott, 187.

b. Where the complaint alleged the making of a note by the defendant J. T., payable to the order of the defendant W. T., and that J. T. delivered the note to W. T., "who thereupon indorsed the same and duly delivered it, and said note before it became due was duly delivered to and came into the possession of the plaintiff. The defendant demurred, and specified as ground of demurrer," that the complaint did not state that the note was delivered to the plaintiff by said William Totten, or by any lawful holder or owner, nor how the note came into the plaintiff's possession. On motion, the demurrer was held not to be frivolous. Parker v. Totten, 10 Pr. R., 233.

c. Where a defendant does not in his answer, in an action for assault and battery, take a direct issue upon the fact whether an assault was or was not committed, but merely states matter controverting the degree of aggravation by which it was characterized, the plaintiff's remedy is to move for judgment under § 247 of the code on account of the frivolousness of the answer. Lane v. Gilbert, 9 Pr. R., 150.

d. If a defendant cannot take issue in such action upon the material allegations in the complaint, either by denial or justification, he should not answer at all. He can give in evidence his mitigating circumstances before a sheriff's jury on an assessment of damages. Ib.

e. In an action on a promissory note, indorsee against maker, an answer denying that the payee named in the note delivered it to the plaintiff, is not frivolous. Metropolitan Bank v. Lord, 1 Abbott, 185.

f. The decision of a judge at chambers on a motion under this section is an order, and is appealable to the general term, West. R. R. Co. v. Kortright, 10 Pr., R. 457); and per Harris, J. The defendant, if he will take issue with the plaintiff on the facts of the case, must either deny some material allegation stated in the complaint, or state some new matter constituting a defence or counter-claim. If the answer does neither, the plaintiff instead of demurring, as under the former practice, may move summarily for judgment upon the answer. If the judge to whom he applies is of opinion that the answer does not tender to the plaintiff a material issue, he is to give judgment accordingly. In other words, he is to make an order that the plaintiff is entitled to judgment notwithstanding the answer. The decision is not the determination of an issue. On the contrary, it is determined that no issue, such as the law authorizes, has been joined."

g. The application under this section is a summary trial of an issue of law, and the decision on such application is a judgment. Bentley v. Jones, 3 Code Rep. 37; 4 Pr. R. 335; King v. Stafford, 5 lb. 30; Roberts v. Morrison, 7 Ib. 396; Lawrence v. Daris, Ib. 354; Hull v. Smith, 8 Ib. 150; but it has been said the application for judgment under this section is not a trial, it is more analogous to the application for the relief demanded under the second subdivision of the 246th section. "The plaintiffs say, in effect, that they have received no such pleading as the code declares to constitute an answer; that, although they have been served with a paper purporting to be the defendant's answer, it is, in fact, not an answer." Gould v. Carpenter, 7 Pr. R., 98., and see note f., supra. The question is important

as regards the amount of costs on such an application, and it is considered in the note to sec. 307

a. How is a decision under this section to be reviewed? The cases that hold such a decision to be a judgment, also hold that to review such a decision a judg ment must be entered and an appeal taken there from; while the cases which hold such a decision to be an order, hold also that a review may be had by an appeal from such order, under section 343.

b. The words (in this section) "judgment may be given accordingly," do not necessarily require or permit judgment to be entered by the clerk, on the decision of the judge, for the sum mentioned in the complaint, without any assessment of damages, or proof as to the amount due the plaintiff. This would work gross injustice, especially where the action is in tort, or on contract for unliquidated damages. The idea that judgment is to be immediately entered in such cases is negated by section 269. If judgment be ordered for the plaintiff, there must be a reference or writ of inquiry in all the cases in which they would be required if no answer had been served. King v. Stafford. 5 Pr., R. 30.

251.

252.

Issue of fact.

On issues of both law and fact, the issue of law to be first tried.
Trial defined.

253. Issues, how tried.

254. Other issues to be tried by the court.

255. Issues, where to be tried.

256. Either party may give notice of trial. Note of issue.
257. Order of disposing of issues on the calendar.

$248. [203.] The different kinds of issues.

Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds,

1. Of law; and

2: Of fact.

§ 249. [204.] Issue of law.

An issue of law arises,

Upon a demurrer to the complaint, answer, or reply, or to some part thereof.

§ 250. [205.] (Amended 1849.) Issue of fact.

An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or,

2. Upon new matter in the answer controverted by the reply; or,

3. Upon new matter in the reply, except an issue of law is joined thereon.

§ 251. [206.] On issues of both law and fact, the issue of law to be first tried,

Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct.

a. Where there were issues of law and fact in a case, and both parties noticed the cause for trial on the issue of fact, and the issue of fact was tried without objection before the issues of law, it was afterwards contended that the trial was irregular, because the issue of law was not first tried; but it was held in the superior court, all the judges concurring, that both parties having noticed the issue of fact for trial, had consented to its being first tried, and it must be deemed to have been first tried by order of the court. Warner v. Wigers, 2 Sand, 635.

b. In the case last cited it was announced that the future practice of the superior court would be, "that whenever a cause was moved on the trial calendar in which there was an issue of law pending, the court will then determine whether the issue of fact shall be first tried or not, and it is not necessary to obtain a previous order on the subject."

c. The practice was settled under our former system, and there is nothing in the code that changes it in this respect, that where there is an issue of law and an issue of fact in a cause, no judgment for costs can be entered in favor of the party who prevails on the issue of law, until the issue of fact is disposed of." Masters v. Barnard, 6 Pr. R., 114.

§ 252. [207.] (Amended 1849-1851-1852.) Trial defined. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

d. The amendment of 1852 restores this section to the precise wording of the same section in the code of 1849.

e. This section is, so far as an issue of fact is concerned, merely declaratory of the existing law. (3 Blk. Com. 330.) It is true, it includes the examination of issues of law as well as of fact, within its definition, so that what was formerly an "argument" or "hearing is now a trial. This is the only difference between a trial under the code, and under the former system. Per Gridley, J., in Dodd v. Curry, 4 Pr. R., 123, 124.

f. The taking a dismissal of the complaint under section 258, was held to be a trial, within the definition of a trial contained in this section. Dodd v. Curry, 4 Pr. R., 123.

g. Whether the hearing of a motion for judgment on a frivolous demurrer, under section 247, is a trial (Gould v. Carpenter, 7 Pr. R., 98; Roberts v. Morrison, Ib. 396; Lawrence v. Davis, Ib. 354; Hull v. Smith, 8 Ib. 149); and whether a motion to dismiss a complaint for not proceeding with the action, is a trial (Tilspaugh v. Dick, 8 Pr. R., 33); also whether au application for judgment under section 246 is a trial,-are questions important as regulating the amount of costs on such motions,and are considered with that view in the note to section 307; and see note to section 247, p. 356, g.

u. An issue of law on demurrer may be brought on to argument at a special term, held in a different county in the district from that indicated as the place of trial in the complaint. Ward v. Davis, 6 Pr. R., 274.

§ 253. [208.] (Amended 1849-1852.) Issues, how tried. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section two hundred and sixty-six, or a reference be ordered as provided in sections two hundred and seventy, and two hundred and seventy-one.

a. Prior to the amendment of 1852, this section read: "Whenever in an action for the recovery of money only, or of specific, real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270 and 271."

b. The words "specific, real or personal property" in this section, relate to personal property, which was formerly the subject of an action of replevin, and does not relate to claims in equity. Cahoon v. President, &c., of Bank of Utica, 4 Pr. R., 423; 3 Code Rep., 110.

c. In the cases where the trial of issues of fact is not provided for in this section, if e'ther party desires a trial by jury, such party must within ten days after issue joined give notice of a special motion to settle the issues, and the court or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in section 72 of this code. See Rule 69 of

Supreme Court Rules, in Appendix.

d. The court has no power to send an issue of fact to be tried by a sheriff's jury." Dolan v. Petty, 4 Sand., 673.

e. A trial by jury cannot be demanded as a matter of right in a suit commenced in the late court of chancery, to foreclose a mortgage, and transferred to the supreme court under the constitution of 1846. Palmer v. Lawrence, 1 Selden 389.

§ 254. [209.] (Amended 1849.) the court.

Other issues to be tried by

Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.

f. The effect of sections 253, 254, is to throw the trial of all questions of fact, in the old common-law actions, upon the court and jury, and at the same time to throw the trial of the whole class of equity suits upon the court without a jury, unless for some special reason the court shall order such issue to be tried by a jury. Hill v. McCarthy, 3 Code Rep., 50.

§ 255. [210.] (Amended 1849-1851-1852.) Issues, where to be tried.

All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court, must be tried at a circuit court when the trial is by jury; other