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Amended

Amended 1551.

may proceed against the defendants served in the same manner as if they were the only defendants;

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone. See Sterne vs. Bentley and McLaughlin. 3 How. 331.

§ 137. [Sec. 116.] In the cases mentioned in section when ser135, the service of the summons shall be deemed complete, ed made in at the expiration of the time prescribed by the order for lication. publication.

1849, § 138. [Sec. 117.] Proof of the service of the summons, and Service of of the complaint or notice, if any, accompanying the same must how probe as follows:

1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or,

4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of the service.

The sheriff is entitled to only one fee, of twelve and one-half cents, for returning a summons with his certificate of service. Gallagher vs. Egan and others, 2 Sand. 742. See Supreme Court Rule, 90. $ 139. From the time of the service of the summons in a when jar»

risdiction civil action, or the allowance of a provisional remedy, the of action

. court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary ap- 1949. pearance of a defendant is equivalent to personal service of Amended the summons upon

him.

Passed

1951.

TITLE VI.
Of the pleadings in civil actions.
CHAPTER I. The complaint.

II. The demurrer.
III. The answer.
IV. The reply.

V. General rules of pleading.
VI. Mistakes in pleading and amendments.

act

1949.

CHAPTER I

The complaint.
SECTION 140. Forms of pleadings inconsistent with this act abolished.

141. First pleading to be complaint.

142. Complaint, what to contain. Forms of $ 140. [Sec. 118.) All the forms of pleading heretofore pleading inconsist- existing, inconsistent with the provisions of this act, are

with abolished. abolished; and hereafter, the forms of pleading in civil

actions, in courts of record, and the rules by which the Amended

sufficiency of the pleadings is to be determined, are modified as prescribed by this act.

All pre-existing rules of pleading not expressly abrogated, remain in force. The Rochester City Bank and Lester agt. Suydam and others, 5 How. 216; Knowles agt. Gee and others, 4 How. 317; Shaw agt. Jayne and Brown, id. 119; Hill &c. agt. Thatcher, 3 How. 407; Boyce vs. Brown, 7 Barb. 81.

In regard to the form and manner of pleading in addition to cases above cited. Glenny vs. Hitchins, 4 How. 98; Millikin agt. Cary, 5 How. 272; Russell vs. Clapp, 3 Code Rep. 64; Anon, 2 Code Rep. 67; Ford agt. Babcock, 2 Sand. 518; The Oswego and Syracuse Plank Road Company agt. Rust and Rust, 5 How. 390; Carley vs. Wilkins, 6 Barb. 557; Hoxie vs. Cushman, 7 Leg. Ob. 149; Vanderpool vs. Tarbox, id. 150; Pepoon vs. White, receiver, 2 Code Rep. 109; Tucker vs. Rushton, id. 59; Diblee vs. Mason, 1 Code Rep. 37; S. C., 6 Leg. Ob. 389; Walrod and Potter vs. Bennett, 6 Barb. 144.

See notes to section 142, infra.

Supreme Court Rules 44, 59. prinsipleade $141. [Sec. 119.] The first pleading on the part of the

to be complaint.

plaintiff, is the complaint. Complaini,

§ 142. [Sec. 120.] The complaint shall contain:

1. The title of the cause, specifying the name of the Amended .court in which the action is brought, the name of the

what to contain

.

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. -Selmuan o locicleretous How 5

See notes to section 140, supra.

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CHAPTER II.

The demurrer.

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.

swer. 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 hate expired. 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,

tion to

1849.

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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 proceed it 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.

1849.

1

not appear

be taken

1349.

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 on 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

Amendad 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 ons te 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.

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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.

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