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county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant ;

2. A plain and concise statement of the facts constituting a cause of action without unnecessary repetition;

3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

As to what is sufficient in a complaint on a promissory note. Peet vs. Bratt, 6 Barb. 662; Appleby vs. Elkins, 2 Code Rep. 80; Turner vs. Com. stock, 1 Code Rep. 102; Benson vs. Couchman and others, id. 119; Beach vs. Gallup, 2 Code Rep. 66. -Sjelman o lucieler edows How 5

See notes to section 140, supra.

CHAPTER II.

The demurrer.

swer.

to demur or

SECTION 143. Defendant to demur or answer. .

144. When the defendant may demur.
145. Demurrer must specify grounds of objection to complaint.
146. How to proceed if complaint be amended.
147. Objection not appearing on complaint may be taken by an-

148. Objection, when deemed waived. § 143. [Sec. 121.] The only pleading on the part of the Defendant defendant, is either a demurrer or an answer. It must answer. be served within twenty days after the service of the copy of the complaint.

A party cannot answer and demur to the same pleading. Spelman and others agt. Weider and others, 5 How. 5; Slocum vs. Wheeler, 4 How. 373; S. C., 3 Code Rep. 59.

The court may allow an answer to be put in after twenty days have ex. pired. Allen agt. Ackley, 4 How. 5; Grant et al. vs. McCaughin, 4 How. 216.

Where service is by mail, double time is allowed. Washburn vs. Herrick, 4 How. 15.

Enlarging time to answer is enlarging time to demur. Brodhead et al. vs. Broadhead et al., 4 How. 308; S. C., 3 Code Rep. 43.

A party should make the best .service the nature of the case admits. Falconer vs. Ucoppell, 2 Code Rep. 71. § 144. [Sec. 122.] The defendant may demur to the com- When the

defendant plaint, when it shall appear upon the face thereof, either : may de

mur.

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties, for the same cause; or,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly

united ; or,

lion to

1849.

6. That the complaint does not state facts sufficient to constitute a cause of action.

Section 122, supra, is the controlling section in determining whether a de. murrer for defect of parties is well taken. Wallace and another agt. Eaton and others, 5 How. 99; Cobb and others agt. Frazee, 4 How. 413, S. C. 3

Code Rep. 43 Demurrer must speci

$ 145. [Sec. 123.] The demurrer shall distinctly specify fy grounds of objec- the grounds of objection to the complaint. Unless it do complaint. so, it may be disregarded. It may be taken to the whole Amended complaint, or to any of the alleged causes of action stated

therein.

As to manner and form of demurrers, see White, receiver &c. vs. Low and others, 7 Barb. 204; Smith vs. Oliphant and wife, 2 Sand. 306; Smith et al. vs. Greenin et al., id. 702; Appleby vs. Elkins, id. 673; Cobb and others agt. Frazee, 4 How. 413; S. C., 3 Code Rep. 43; Hyde, receiver, agt. Conrad, adm'r, 5 How. 112; Glenny agt. Hitchins et al., 4 How. 98; Durkee and others agt. The Saratoga and Washington Rail Road Company, id. 226; Bentley vs. Jones and Allen, id. 202; De Witt ads. Swift and Wal. don, 3 How. 280. See notes to section 140, supra.

$ 146. [Sec. 125.] If the complaint be amended, a copy proceod if complaint thereof must be served on the defendant, who must answer

it within twenty days, or the plaintiff upon filing with the Amended clerk on proof of the service, and of the defendant's

omission, may proceed to obtain judgment, as provided by section 246, but where an application to the court for judgment is necessary, eight days notice thereof must be given to the defendant.

If the plaintiff amend after the default of the defendant, he must serve the amended complaint. The People ex rel. Rumsey vs. Woods and others, 2 Sand. 652; S. C., 2 Code Rep. 18.

How to

be amended.

not appear

1849.

An amended complaint, although it wholly changes the nature of the action, cannot be treated as a new suit. McGrath and Hasbrouck vs. Van Wyck, 2 Sand. 651.

The complaint may be amended in the amount claimed, even after a re. ply repeating the original claim, and both pleadings verified. Merchant vs. The New-York Life Insurance Company, 2 Sand. 669.

$ 147. [Sec. 126.] When any of the matters enumerated Objection in section 144 do not appear upon the face of the coming com face plaint, the objection may be taken by answer.

plaint may

by answer. But not an objection that the summons was not properly served;

the re- Amended medy is by motion to set the proceedings aside. Nones agt. The Hope Mutual Life Insurance Company, 5 How. 96.

$ 148. [Sec. 127.] If no such objection be taken, either objection, by demurrer or answer, the defendant shall be deemed deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the 1849. complaint does not state facts sufficient to constitute a cause of action.

If a complaint does not state facts sufficient to constitute a cause of ac. tion, the defect will not be waived by the omission of the defendant to de. mur for that cause, and the defendant may appeal from the judgment to the general term. Rayner vs. Clark and Lawrence, 7 Barb. 581; but see Carley vs. Wilkins, 6 Barb. 557.

waived.

Amendad

CHAPTER III.

The Answer.

SECTION 149. Answer what to contain.

150. May set forth as many grounds of defence as exist.
151. Demurrer as to some causes of action, and answer as to

others.
152. Sham defences to be stricken out.

what to contain.

1849.

$ 149. [Sec. 128.] The’answer of the defendant must con- Answer, tain :

1. A specific denial of each material allegation of the com- Amended plaint controverted by the defendant, according to his knowledge, information or belief, or of any knowledge or information thereof sufficient to form a belief.

2. A plain and concise statement of any new matter constituting a defence or set-of' without unnecessary repetition.

forth as

many

See Section 140, supra, and notes.

Requisites of answer. Boyce v. Brown, 7 Barb. 80; Royce v. Brown, 3 How. 391; Kellogg agt. Church, 4 How. 339; Spelman and others agt. Weider and others, 5 How. 5; Knowles agt. Gee and others, 4 How. 317; McMurray and Thomas agt. Gifford, 5 How. 14; The Genesee Mutual Ing. Co.agt. Moynheim, id. 321.; Russell vs. Clapp, 7 Barb. 482; S. C., 4 How. 347; Castles vs. Woodhouse, 1 Code Rep. 72.

As to supplementary answer see Radley vs. Houghtailing, 4 How. 251.

A plaintiff has no right to adjudge answer frivolous and treat it as a nul

lity. Hartness and others vs. Bennett, 3 How. 289. May set 8.150. [Sec. 129.] The defendant may set forth by an

swer, as many defences as he shall have. They shall each grounds of defence as be separately stated, and refer to the causes of action which

they are intended to answer, in any manner by which
they may be intelligibly distinguished.
See sections 140 and 149, and notes.

§ 151. The defendant may demur to one or more of sevaction, and

eral causes of action stated in the complaint, and answer

the residue. Passed

8 152. Sham and irrelevant answers and defences may be fence to be stricken out on motion and upon such terms as the court may

in their discretion impose.

When answers and defences may be stricken out, see Smith et al. vs. Amended Greenin and Vine, 2 Sand. 702; Darrow agt. Miller, 5 How. 247; Mier agt.

Cartlege and Ferguson, 4 How. 115; McGowan agt. Norrow, 3 Code Rep. 9.

If answer deny a material allegation it will not be stricken out. Davis agt. Potter, 4 How. 155; Hill agt. McCarthy, 3 Code Rep. 49.

Amended 1849

Demurrer as to some causes of

answer as to others.

1849. Sham de

stricken out. Passed 1849.

1851.

CHAPTER IV.

The Reply.
SECTION 153. Reply, when to be put in, and what to contain.

154. When defendant may move for judgment upon an answer.

155. Demurrer to reply. Reply to be § 153. [Sec. 131.] When the answer contains new matter put in, and

constituting defence or set-off the plaintiff may, within twenty contain.

days, reply to such new matter, denying specifically each al

legation controverted by him, according to his knowledge, in-. 1849, 1851.

formation or belief, or any knowledge or information thereof sufficient to form a belief ; and he may allege, in a plain and

what to

Amended

concise manner without unnecessary repetition, any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer ;, or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may demur to one or more of several defences and set-off set up in the answer and reply to the residue.

When the answer contains new matter requiring a reply. Walrod vs. Bennet, 6 Barb. 144; Beals vs. Cameron, 3 How. 414.

When a reply is not necessary. Brown and others, agt. Spear and Butler, 5 How. 146; Howard agt. The Michigan Southern R. R. Co. id. 200.

The plaintiff may be allowed to reply on terms. Merritt and another agt. Slocum and others, 3 How. 309.

§ 154. If the answer contain a statement of new matter when deconstituting a defence, and the plaintiff fail to reply or may move demur thereto within the time prescribed by law, the de-ment, upon fendant may move on a notice of not less than ten days for such judgment, as he is entitled to upon such state- 1849. ment, and if the case require it, a writ of inquiry of damages may be issued. See Section 247, infra, and notes. § 155. If a reply of the plaintiff to any defence set up Demurrer

to reply. by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds there- 1949. of.

answer.

Passed

Passed

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