13 Abb. N. C. 210. I 12. security for the faithful discharge of his trust, before receiving money or property of the infant, under a judgment or order in the action. $477. A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not liable for the costs of the action, unless specially charged therewith by the order of the court, for personal misconduct. CHAPTER VI. PLEADINGS IN COURTS OF RECORD, INCLUDING TITLE I. THE CONSECUTIVE PLEADINGS IN AN ACTION. $ 478. The first pleading, on the part of the plaintiff, is the complaint. $479. [Am'd 1877.] If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if, after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. 480. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. $481. The complaint must contain: 1. The title of the action, specifying the name of the court in which it is brought; if it is brought in the supreme court, iv. Pro. the name of the county, which the plaintiff designates as the 23 Abb. N. place of trial; and the names of all the parties to the action, plaintiff and defendant. 11. Misc. 139; 31 Hun, 432; 22 App. Div. 400. 11 Misc. 133. 2. A plain and concise statement of the facts, constituting 31 Hun, 432. each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff sup pyses himself entitled. $482. [Am'd 1877.] In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a final judgment, distinguishing them clearly. $483. Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered. $484. [Am'd 1877.] The plaintiff may unite in the same complaint, two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows: N. S. 46 31 Hun, 596; 32 Id. 332; 52 Super. Ct. (J. & S.) 299; 9 Civ. Pro. 141; 24 N. Y. State Rep. 185; 27 Id. 635; 129 N. Y. 183, 135 N. Y. 209; 151 Id. 186; 138 Id. 272. 10 App. Div. 516. 1. Upon contract, express or implied. 5 N. Y. State 2. For personal injuries, except libel, slander, criminal con- Rep. 141. versation, or seduction. 15 Misc. 234 3. For libel or slander. 97 N.Y. 245 5. Real property, in ejectment, with or without damages 4. For injuries to real property. for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the action; and it must appear upon the face of the complaint, that they do not require different places of trial. § 487. The only pleading on the part of the defendant is either a demurrer or an answer. 50 N. Y. Sur er. Ct. (J. d 8.) 236. 5 Civ. Pro. 135. 53 Hun, 617. Rep. 141; 6 ld. 768; 25 117 N.Y. 442 3 Abb. N.C 428. § 488. [Am'd 1877.] The defendant may demur to the complaint, where one or more of the following objectionthereto appear upon the face thereof. 15 Mise. 50, 1. That the court has not jurisdiction of the person of th: defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties, for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties, plaintiff or defendant 7. That causes of action have been improperly united. 16 Misc. 95. 8. That the complaint does not state facts sufficient to con stitute a cause of action. $489. [Repealed 1877.] § 490. [Am'd 1877.] The demurrer must distinctly specify the objections to the complaint; otherwise it may be disre garded. An objection, taken under subdivision first, second, fourth or eighth of section four hundred and eighty-eight of this act, may be stated in the language of the subdivision; an objection, taken under either of the other subdivisions, must point out specifically the particular defect relied upon. § 491. [Repealed. 1877.] § 492. The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may answer the causes of action not demurred to. § 493. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counterclaim, contained in the reply, on the ground that it is in sufficient in law, upon the face thereof. § 494. The plaintiff may demur to a counterclaim or a defence consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. $ 495. [Am'd 1877.] The plaintiff may also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim : 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover upon the same. 3. That there is another action pending between the same parties, for the same cause. 4. That the counterclaim is not of the character specified in section five hundred and one of this act. 5. That the counterclaim does not state facts sufficient to constitute a cause of action. § 496. [Am'd 1877.] A demurrer, taken under the last section, must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same, as where a demurrer is taken to a complaint. $497. [Am'd 1877.] Upon the decision of a demurrer, either at a general or special term, or in the court of appeals the court may, in its discretion, allow the party in fault c &498-201 ANSWER. 99 plead anew or amend, upon such terms as are just. Ií a demurrer to a complaint is allowed, because two or more canses of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. $498. [Am'd 1877.] Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer. 499. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. 98 N. Y. 239; 108 Id. 445; 119 Id. 348; 122 Id. 631. $ 500. [Am'd 1877.] The answer of the defendant must contain: 110 N. Y. 150; 124 Id. 533; 67 State Rep. 583; 11 Misc. 622; 5 App. Div. 128; 17 Id. 328. 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language, without repetition. $ 501. [Am'd 1877.] The counterclaim, specified in the last section, must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action : 23 Abb. N. C. 60; 128 Id. 58; 132 N. Y. 472; 137 Id. 270; 81 Hun, 420; 20 Misc. 48 24 Id. 485; 23 App. Div. 393. 34 Hun, 602. 119 N. Y. 348. 128 N. Y. 58. 136 N. Y. 55. 26 Hun, 107; 31 Id. 596. 50 N. Y. Sup er Ct. (J. & S.) 198. 33 Hun, 143. 11 N. Y.State Rep. 85. 23 App. Div. 393. 1. A cause of action, arising out of the contract or transact- 49 Hun, 300, ion set forth in the complaint as the foundation of the plain tiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action o contract, existing at the commencement of the action. 24800 18 Hun, 20 139 N.Y. 531. 9 Misc. 71. 8 Misc. 150; 768. 502. JAm'd 1877.] But the counterclaim, specified in bdivision second of the last section, is subject to the following rules: 1. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested. 503 [4m'd 1877.] Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel. $504. In a case not specified in the last section, where a counterclaim is established, which entitles the defendant to an affirmative judgment, demanded in the answer, judgmenc must be rendered for the defendant accordingly. § 505. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him. § 506. In an action brought by an executor or adminis26 N.Y Supp trator, in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life-time; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment, only in a case where it could be issued upon a judgment, in an action against the executor or administrator. |