PART III How to state an pleading. $158. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he account, in shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a further account when the one delivered is defective, and the court may in all cases order a bill of particulars of the claim of either party to be furnished. Pleadings to be liberally conetrued. Irrelevant or redund As amended by Laws of 1851, ch. 479. 15 N. Y., 427; 15 B., 551; 9 How. P. R., 186; 10 Ab., 143; 1 Ab., 107; 2 Hilt., 579; 31 How. P. R., 54; 17 Ab., 340. $159. In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. 19 N. Y., 233; 12 N. Y., 439, 441; 8 N. Y., 174; 26 B., 359; 17 B., 270; 16 B., 66; 10 How. P. R., 49; 9 How. P. R., 523; 8 Ab., 392. $160. If irrelevant or redundant matter be inserted in a ant matters pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain, by amendment. to be stricken out. Judgments, how to be pleaded. Conditions 167; 21 N. Y., 569; 13 N. Y., 85; 12 N. Y., 440; 32 B., 220; 30 B., 346; 2" B.,.633; 23 B., 582; 20 B., 348; 10 B., 154; 8 B., 304; 7 B., 88; 23 How. P. R., 144; 22 How. P. R., 30, 236; 20 How. P. R., 19 How. P. R., 94; 18 How. P. R., 240, 531; 17 How. P. R., 198; 15 How. P. R., 186; 12 How. P. R., 22, 49; 9 How. P. R., 78, 288, 352; 6 How. P. R., 292, 355, 383, 475, 68, 71; 5 How. P. R., 44, 55; 4 How. P. R., 68, 69, 317; 13 Ab., 313; 12 Ab., 442; 10 Ab., 133, 144; 9 Ab., 40, 209; 8 Ab., 391; 6 Ab., 76; 4 Ab., 178, 204; 2 Ab., 327, 468; 29 N. Y., 553; 19 Ab., 291; 24 How. P. R., 475. $161. In pleading a judgment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. 15 N. Y., 427; 22 B., 370; 18 B., 261; 9 B., 382; 13 How. P. R., 538; 13 Ab., 184, 245; 17 Ab., 227; 14 Ab., 150. $ 162. In pleading the performance of conditions precedent precedent, how to be in a contract, it shall not be necessary to state the facts, pleaded. showing such performance; but it may be stated generally, that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial, the facts showing such performance. In an action or defense, founded upon an instrument, for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims. As amended by Laws of 1851, ch. 479. 15 N. Y.. 427; 30 B., 493; 29 B., 385; 17 B., 433; 22 How. P. R., 30; Ab., 91; 4 Ab., 127; 3 Ab., 253; 1 Ab., 403; 37 B., 11; 18 Ab., 261; 15 CHAP. XI. statutes, $163. In pleading a private statute, or a right derived Private therefrom, it shall be sufficient to refer to such statute, by its how to be title and the day of its passage, and the court shall thereupon take judicial notice thereof. 15 N. Y., 427; 2 Ab., 404. pleaded. slander, in com $164. In an action for libel or slander, it shall not be Libel and necessary to state in the complaint any extrinsic facts, for how stated the purpose of showing the application to the plaintiff, of the plaint. defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. 14 How. P. R., 46; 5 How. P. R., 172; 5 Ab., 498; 4 Ab., 459. such cases. $165. In the actions mentioned in the last section, the Answer in defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. 12 N. Y., 72; 11 N. Y., 353; 24 B., 623, 631; 19 B., 263; 13 B., 223; to recover destrained answer $166. In an action to recover the possession of property In actions distrained doing damage, an answer that the defendant or property person by whose command he acted, was lawfully possessed for damage of the real property upon which the distress was made, and and not that the property distrained was at the time doing damage the title. thereon, shall be good, without setting forth the title to such real property. 4 Ab., 203. set forth causes of $167. The plaintiff may unite in the same complaint what several causes of action, whether they be such as have been action may heretofore denominated legal or equitable, or both, where the same they all rise out of, 1. The same transaction or transactions connected with the same subject of action; 2. Contract, express or implied; or 3. Injuries with or without force, to person and property; or either; or 4. Injuries to character; or 5. Claims to recover real property, with or without damages, for the withholding thereof, and the rents and profits of the same; or be joined in action. PART III. Allegation not denied, when be true. 6. Claims to recover personal property, with or without damages, for the withholding thereof; or 7. Claims against a trustee, by virtue of a contract, or by operation of law. But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages the court shall have power to adjudge and direct the payment, by the mortgagor, of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases. As amended by Laws of 1852, ch. 392; 1863, ch. 392. 7 N. Y., 490; 30 B., 61, 386; 29 B., 394; 28 B., 249, 386; 23 B., 95; 22 B., 368; 21 B., 274; 19 B., 518; 16 B., 292, 293; 14 B., 116; 12 B., 481; 11 B., 307, 599; 10 B., 446, 657; 9 B., 246; 8 B., 335; 23 How. P. R., 247, 469; 17 How. P. R., 78, 240, 518; 16 How. P. R 240; 15 How. P. R., 85, 223, 335; 14 How. P. R., 185; 12 How. P. R., 331; 11 How. P. R., 245; 10 How. P. R., 41; 9 How. P. R., 78, 113, 123, 312, 342, 378; 8 How. P. R, 59, 73, 177, 521; 7 How. P. R, 136; 6 How. P. R. 131, 229, 298. 380; 5 How. P. R., 172; 4 How. P. R., 76, 228; 13 Ab., 74; 12 Ab., 52; 11 Ab., 248, 432; 9 Ab., 93; 8 Ab., 4, 232; 7 Ab., 65; 4 Ab., 176, 203; 1 Ab., 178, 376; H.lt., 416; 4 E. D. S., 379; 3 Bos., 456; 43 B., 263; 42 B., 547; 18 Ab., 303; 14 Ab., 364; 28 How. P. R., 230. $168. Every material allegation of the complaint, not controverted by the answer, as prescribed in section one hundred deemed to and forty-nine; and every material allegation of new matter in the answer, constituting a counter-claim, not controverted by the reply, as prescribed in section one hundred and fiftythree, shall, for the purposes of the action, be taken as. true. But the allegation of new matter in the answer, not relating to a counter-claim, 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. As amended by Laws of 1852, ch. 392. 18 N. Y., 121; 16 N. Y.. 182; 13 N. Y., 252; 24 B., 543; 22 B., 26, 152, 159; 21 B., 198; 20 B., 317, 343; 16 B., 57; 12 B., 577; 10 B.. 286; 8 B., 77; 18 How. P. R., 308; 13 How. P. R., 102; 12 How. P. R., 320; 10 How. P. R., 49, 69; 9 How. P. R, 145, 352, 481; 8 Ab., 297; 7 Ab., 139; 6 Ab., 112; 5 Ab., 205; 3 Ab., 151; 2 Ab., 152; 1 Ab., 248; 36 B., 635; 18 B., 264. CHAPTER VI. MISTAKES IN PLEADING AND AMENDMENTS. SEO. 169. Material variances, how provided for. 170. Immaterial variances, how provided for. 171. What to be deemed a variance. SEO. 172. Amendments of course, and after decision on demurrer. 173. Amendments by the court. 174. Amendments, extensions of time, relief from judgments. 176. No error or defect to be regarded, unless it affect substantial rights. ОНАР. XI variances, $169. No variance between the allegation in a pleading Material and the proof shall be deemed material, unless it have actu- how provid ally misled the adverse party, to his prejudice, in maintain- ed for. ing his action or defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just. 30 B., 340; 27 B., 359; 26 B, 359; 25 B., 162; 24 B., 287; 22 B., 322; $170. Where the variance is not material, as provided in Immaterial the last section, the court may direct the fact to be found variances, how proaccording to the evidence, or may order an immediate amend- vided for. ment, without costs. 11 N. Y., 374; 25 B., 162; 24 B., 287; 23 B., 590; 22 B., 322; 20 B., deemed a $171. Where, however, the allegation of the cause of ac- What to be tion or defense to which the proof is directed is unproved, variance. not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof. 16 N. Y., 254; 15 N. Y., 497; 11 N. Y., 374; 29 B., 293; 28 B., 494; ments of $172. Any pleading may be once amended by the party of Amendcourse, without costs, and without prejudice to the proceed- course. ings already had, at any time within twenty days after it is served, or at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purposes of delay and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed, and if it appear to the court that such amendment was made for such purpose the same may be stricken out and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a After dedemurrer, either at a general or special term, the court may, demurrer. in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. If the demurrer be allowed for the cause cision on PART III. Amend ments by the court. Amend tensions of from judg. mentioned in the fifth subdivision of section one hundred and forty-four, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. Amended by Laws of 1851, ch. 479; 1829, ch. 428. 19 N. Y., 175; 22 How. P. R., 231; 21 How. P. R., 97; 20 How. P. R., 328; 18 How. P. R., 272; 15 How. P. R., 345; 14 How. P. R., 495; 13 How. P. R., 458; 11 How. P. R, 273; 9 How. P. R., 95, 140; 8 How. P. R., 48; 7 How. P. R., 411; 6 How. P. R., 325; How. P. R., 142, 207, 302; 4 How. P. R., 174; 13 Ab., 270; 12 Ab., 5; 6 Ab., 82, 218; 5 Ab., 69, 322; 4 Ab., 203; 3 Ab., 442, 323; 1 Ab., 85; 43 B., 263; 42 B., 511; 15 Ab., 53; 30 How. P. R., 2; 28 How. P. R., 21. $173. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved. As amended by Laws of 1851, ch. 479. 22 N. Y., 241; 18 N. Y., 521, 550; 14 N. Y., 251; 32 B., 221, 535; 29 B., 295; 26 B., 359; 25 B., 336; 24 B., 287, 410; 23 B., 29; 22 B., 139, 164, 322; 20 B., 42, 502; 19 B., 52, 186, 331; 17 B., 105, 426; 16 B., 293; 14 B., 252; 13 B., 183; 9 B., 206; 7 B., 226; 22 How. P. R., 481; 20 How. P. R., 220, 256; 19 How. P. R., 116, 234; 18 How. P. R., 506; 14 How. P. R., 232, 526; 13 How. P. R., 471; 12 How. P. R., 381; 11 How. P. R., 170; 10 How. P. R., 193; 8 How. P. R., 334; How. P. R.. 294, 449; 6 How. P. R., 76, 390; 5 How. P. R., 310; 4 How. P. R., 154; 11 Ab., 420, 456; 10 Ab, 374, 425, 479; 9 Ab.. 413; 7 Ab., 199, 477; 6 Ab., 79, 82, 214, 350, 380; 5 Ab., 70; 4 Ab., 367; 3 Ab., 87, 440; 2 Ab., 442; 1 Ab, 65; 3 Bos., 250; 31 N. Y., 564; 28 N. Y., 320; 42 B., 185, 192; 41 B., 372; 40 B., 242; 35 B., 72; 18 Ab., 406; 17 Ab., 322; 14 Ab., 164; 31 How. P. R., 166, 282; 28 How. P. R., 432; 27 How. P. R., 37; 26 How. P. R., 174. $174. The court may likewise, in its discretion, and upon mente, ex such terms as may be just, allow an answer or reply to be time, relief made or other act to be done after the time limited by this ments. act, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the court may, in like manner and upon like terms, permit an amendment f such proceeding, so as to make it conformable thereto. As amended by Laws of 1851, ch. 479. 18 N. Y., 153; 30 B., 121; 25 B., 337; 12 B., 287; 22 How. P. R., 231; 18 How. P. R., 324; 17 How. P. R., 383; 16 How. P. R., 386; 14 How. P. R., 19, 430; 13 How. P. R., 175; 12 How. P. R., 400; 8 |