Слике страница

§ 507. [Am'd 1879.] A defendant may set forth, in his answer, as many defences or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence or counterclaim must be separately stated, and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.

508. [Am'd 1877.] A partial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defence, within the meaning of this section.

§ 509. [Am'd 1877.] Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer.

$ 510. [Repealed 1877.]

§ 511. [Am'd 1877, 1879.] Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff's motion, may, in its discretion, order, that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff's election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same, as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action costs must be awarded, as upon final judgment in any other


§ 512. In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer, does not deny the plaintiff's claim, but sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counterclaim, may take judgment for the excess, as upon a default for want of an answer. The admission must be inade a part of the judgment-roll.

513. A defence, which does not involve the merits of the action, shall not be pleaded, unless it is verified as prescribed in title second of this chapter.


1514. Reply; what to contain.


require a eply.

[ocr errors]

515. Judgment upon failure to 517. Plaintiff may set forth several avoidances in reply.


516. Cases where the court may

$ 514. [Am'd 1877.] Where the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim. The reply must contain a general or specific

[blocks in formation]


22 App. Div. denial of each material allegation of the counterclaim, controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defence to the counterclaim.

[blocks in formation]

21 Hun, 332.

§ 515. If the plaintiff fails to reply or demur to the counterclaim, the defendant may apply, upon notice, for judgment thereupon; and, if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment.

§ 516. Where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In that case, the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counterclaim.

§ 517. [Am'd 1877.] A reply may contain two or more distinct avoidances of the same defence or counterclaim; but they must be separately stated and numbered.


Provisions generally applicable to pleadings.

2518. Application and effect of
this chapter.

519. Pleadings to be liberally

520. Pleadings to be sub-
scribed; within what
time to be served.
521. When defendant to serve
copy answer on co-de-

[blocks in formation]

when to be deemed true.
523. When pleading must be
verified; and when veri-
fication may be omitted.
524. Form and construction of
certain allegations and
denials in verified plead-

525. Verification; how and by
whom made.

526. Form of affidavit of verifi-

527. When verification may be
confined to a counter-

528. Remedy for defective veri-
fication, or want of veri-
529. When defendant not ex-
cused from verifying
answer to charge of fraud.
530. Private statute; how plea-


531. Account;

how pleaded.

Bill of particulars.

532. Judgments; how pleaded. 533. Conditions precedent; how pleaded.

534. Instrument for payment of money; how pleaded. Pleadings in libel and slander.


[blocks in formation]

518. This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is

77 Hun, 428. determined, except where special provision is otherwise made

by law

13 Misc. 136.

$519. The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties.

§ 520. A pleading must be subscribed by the attorney for the party. A copy of each pleading, subsequent to the complaint, must be served on the attorney for the adverse party, within twenty days after service of a copy of the preceding pleading.

$521. [Am'd 1884.] Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant who requires such a determination must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not duly appeared therein by attorney. The controversy between the defendants shall not delay a judgment, to which the plaintiff is entitled, unless the court otherwise directs.

43 Id: 521; 3 N. Y. Supp. 415; 50 Hun, 236; 22 Abb. N. C. 304. 130 N. Y. 406. 87 Hun. 339.

522. Each material allegation of the complaint, not controvered by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.

523. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an inant by his guardian ad litem, must also be verified. But the verification may be omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.

§ 524. The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information, to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information.

§ 525. [Am'd 1879.] The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: Dig. 286; 41 Hun, 58; 20 Abb. N. C. 1. 133 N. Y. 270.

1. Where the party is a domestic corporation, the verification must be made by an officer thereof.

2. Where the people of the State are, or a public officer, in their behalf, is the party the verification may be made by any person acquainted with the facts.

[blocks in formation]

18 Misc. 627.

27 Hun, 369. 2 Civ. Pro.


3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or if the latter is not a resident of the State, the county where he has his office, and capable of making the affidavit or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or 14where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case, the verification may be made by the agent of or the attorney for the party.

§ 526. The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his 110 N.Y. 150. belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.

94 N. Y. 574. 41 Hun, 58. 20 Abb.

C. 1.


9 Daly, 166.

6 Civ. Pro. 30.

3 Civ. Pro. 412.

§ 527. Where the complaint is not verified, and the answer sets up a counterclaim, and also a defence by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counterclaim. In that case, the last three sections are applicable to the affidavit and the counterclaim, as if the latter was a separate pleading.

§ 528. The remedy for a defective verification of a pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy of a sufficient verification, in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice, with due diligence, to the attorney of the adverse party, that he elects so to do.

§ 529. A defendant is not excused from verifying his answer to a complaint, charging him with having confessed or suffered a judgment, or executed a conveyance, assignment, or other instrument, or transferred or delivered money, or personal property, with intent to hinder, delay, or defraud his creditors; or with being a party or privy to such a transaction by another person, with like intent towards the creditors of that person; or with any fraud whatever, affecting a right or the property of another.

§ 530. [Am'd 1877.] In pleading a private statute, or a right derived therefrom, it is sufficient to designate the 11 Misc. 646. statute by its chapter, year of passage, and title, or in some other manner with convenient certainty, without setting forth any of the contents thereof.

[blocks in formation]

§ 531. It is not necessary for a party to set forth, in a pleading, the items of an account therein alleged; but in that case, he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect, that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is

precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party.

§ 532. In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.

[blocks in formation]

4 Civ. Pro.


§ 533. In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts con- 112. stituting performance; but the party may state, generally, 72 Hun, 400. that he, or the person whom he represents, duly performed 15 App. Div. all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance. $534. Where a cause of action, defence, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect.

§ 535. It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter: but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justification.

22 App. Div. 400; 24 Id. 89.

§ 536. [Am'd 1877.] In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts, not amounting to a total defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defences to the entire cause of action. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that description.

$ 537. [Am'd 1877, 1879.] If a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judg. ment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section.

76 N. Y. 564. 1CityCt. 235. 10 Daly, 344. 22 Week. Dig. 18. 113 N. Y.662.

81 N. Y. 246; 32 Hun, 628. 19 Week. Dig. 266.

87 Id. 231.

8 Civ. Pro. 133.

118 N. Y. 178. 86 Hun, 479.

[blocks in formation]

538. A sham answer or a sham defence may be stricken 76 Hun, 574;

5 Miso. 610. 92 Hun, 1

« ПретходнаНастави »