§ 2932. served.

Proceedings when summons

not personally

Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied. and the proceedings thereupon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect as if the summons had been personally served.

L. 1831, ch. 300, § 12, am'd.

2933. When action not affected by failure to replevy. Where the summons has been personally served upon the de fendant, or where he appears, the justice must proceed to hea and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it.

842

TITLE III.

;s; including counterclaims, and proceedings upon answer of title.

d.; where executor or trustee is a party. onsequence of neglect to plead counterclaim. he last section qualified.

dgment upon counterclaim.

dgment when accounts exceed $400.

nswer of title.

ndertaking thereupon.

what court new action to be brought.

Then action before justice to be discontinued.

ffect of failure to give undertaking.

'hen title comes in question on plaintiff's own showing.

leadings in new action. Undertaking before justice, when applicable.

nswer of title as to one of several causes of action.

Am'd, 1893.] When issue to be joined.

ace, and within one hour after the time, specified in the or the return thereof; or, where an order of arrest is d executed, within twelve hours after the defendant is fore the justice; or, where no summons is issued, at -hen the parties voluntarily appear to join issue, the f the parties must be made, and issue must be joined. 1 parties appear upon the return of the summons, an be joined before an adjournment is had, except when nt refuses or neglects to plead. Where an issue of issue of law is joined in a justice's court, or before a he peace in the city of Brooklyn, or in any of the e county of Kings, in which the judgment demanded arty in his pleadings exceeds the sum of one hundred when in an action to recover a chattel or chattels, which as fixed by either party in his pleadings or affieds one hundred dollars, the defendant may, after and before an adjournment is granted upon his applito the justice before whom the action is brought for moving the action into the county court of the Kings. Such an order must be granted upon ant filing with the justice an undertaking in

by the justice, not exceeding twice the amount ages claimed or twice the value of the chattel e chattels claimed, as stated in the pleading or th one or more sureties, approved by the justice, to at the defendant will pay to the plaintiff the amount ent, including costs, that may be recovered against unty court in the action so removed. From the time ng of the order the county court of Kings county has the action, and the same shall be tried and dete 1 county court as if originally brought therein.

justice must forthwith deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered and recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county court.

L. 1893, ch. 380.

§ 2935. Pleadings.

The pleadings in a justice's court are:

1. The plaintiff's complaint.

2. The defendant's answer.

3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein.

4. The plaintiff's demurrer to one or more counterclaims stated in the answer.

Co. Proc., § 64, subd. 1.

2936. Complaint.

The complaint must state, in a plain and direct manner, facts constituting the cause of action.

Id., subd. 3.

§ 2937. What causes of action may be joined.

the

The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of:

1. The same transaction, or transactions connected with the same subject of action; or

2. Contract, express or implied; or

3. Personal injuries, and injuries to property, or either. But it must appear, upon the face of the complaint, that al the causes of action so united belong to one of the foregoing sub divisions of this section; that they are consistent with each other that they require the same judgment; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an exec tion against the person of the defendant cannot be issued upo the judgment.

§ 2938. Answer.

The answer may contain a general denial of each allegation the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defences or cour terclaims.

Co. Proc., subd. 4, § 64.

§ 2939. Demurrer.

In a case specified in subdivision third or fourth of section 293 of this act, a party may demur to the pleading of the advers party, or, if it is a complaint, to one or more distinct and separat causes of action, where it is not sufficiently explicit to be unde stood; or where it does not state facts sufficient to constitute cause of action, or counterclaim, as the case may be. If the cour. deems the demurrer well founded, it must permit the pleading be amended; and if the party fails so to amend, the defectiv pleading, or part of a pleading demurred to, must be disregarded.

urt deems the demurrer not well founded, it must permit making it to plead over, at his election."

-, § 64, subd. 6 and 7.

General rules of pleading.

ding, except as otherwise prescribed in section 2951 of may be oral or written. If it is oral, the substance must be entered by the justice in his docket-book; if it is it must be filed by him, and a reference to it made in t-book. A pleading is not required to be in any parrm; but it must be so expressed, as to enable a person n understanding to know what is intended,

2 and 5, am'd.

Account, or instrument for payment of money. purpose of setting forth a cause of action, defence, or im, founded upon an account, or upon an instrument for ent of money only, it is sufficient for the party to deliver ment, or a copy of the account to the court, and to state e is due to him thereupon, from the adverse party, a um, which he claims to recover or to set off.

9.

Court may require items to be exhibited.

rt may, upon the request of either party, made when ined, require the adverse party to exhibit his account 1, or to state the nature thereof, as far as it is in his o do, at that or another specified time; and in case of his may preclude him from giving evidence of such parts have not been so exhibited or stated.

14.

mmaterial variance to be disregarded.

ce, between an allegation in a pleading and the proof, isregarded as immaterial, unless the court is satisfied verse party has been misled thereby, to his prejudice.

0.

mendment of pleadings.

t must, upon application, allow a pleading to be t any time before the trial, or during the trial, or upon ubstantial justice will be promoted thereby. Where a ds his pleading after joinder of issue, or pleads over ecision of a demurrer, and it is made to appear to the of the court, by oath, that an adjournment is necesadverse party, in consequence of the amendment or er, an adjournment must be granted. The court may discretion, require, as a condition of allowing an the payment of costs to the adverse party.

1.

›unterclaims.

01 and 502 of this act apply to a counterclaim in an ght in a justice's court; except that such a countert be interposed, unless it is of such a nature, that a irt has jurisdiction of a cause of action founded

or 2 R. S. 234, § 50 (2 Edm. 250, 251).

§ 2946. Id.; where executor or trustee is a party.

Sections 505 and 506 of this act apply to a counterclaim in an action against a person sued in a representative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff, upon a counterclaim, for a sum exceeding two hundred dollars.

2 R. S. 234, §§ 55 and 56.

§ 2947. Consequence of neglect to plead counterclaim. Where the defendant, in an action to recover damages upon or for breach of a contract, neglects to interpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title theret through or from him, are forever thereafter precluded from mairtaining an action to recover the same, or any part thereof. Id., § 57.

§ 2948. The last section qualified.

But the prohibition contained in the last section does not ex tend to either of the following cases:

1. Where the amount of the counterclaim is two hundred dol lars more than the judgment which the plaintiff recovers.

2. Where the counterclaim consists of a judgment, rendered be fore the commencement of the action, in which it might have been interposed.

3. Where the counterclaim consists of a claim for unliquidated damages.

4. Where the counterclaim consists of a claim, upon which a other action was pending, at the time when the action was com menced.

5. Where judgment is taken against the defendant, without per sonal service of the summons upon him, or an appearance him.

Id., 58, am'd; L. 1840, ch. 317 (2 Edm. 252).

§ 2949. Judgment upon counterclaim.

Where a counterclaim is established, which equals the plai tiff's demand, the judgment must be in favor of the defendant Where it is less than the plaintiff's demand, the plaintiff ms have judgment for the residue only. Where it exceeds the plai tiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is mo than the sum of two hundred dollars. If it is more than two hu dred dollars, or if no part of it is due from the plaintiff, the jus tice must, at the election of the defendant, either:

1. Set off so much of the counterclaim as is sufficient to s isfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case, the defendant may maintain an se tion for the residue; or,

2. Render a judgment of discontinuance with costs; in which case, the defendant may thereafter maintain an action for the whole.

Where part of the excess is not due from the plaintiff, the jude ment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel Id., §§ 52, 53, and part of § 58.