2939. Demurrer.

In a case specified in subdivision third or fourth of section 2935 of this act, a party may demur to the pleading of the adverse party, or, if it is a complaint, to one or more distinct and separate causes of action, where it is not sufficiently explicit to be understood; or where it does not state facts sufficient to constitute a cause of action, or counterclaim, as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended; and if the party fails so to amend, the defective pleading, or part of a pleading demurred to, must be disregarded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election.

From Co. Proc., § 64, subds. 6, 7.

§ 2940. General rules of pleading.

A pleading, except as otherwise prescribed in section 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docket-book; if it is written, it must be filed by him, and a reference to it made in his docket-book. A pleading is not required to be in any particular form; but it must be so expressed, as to enable a person of common understanding to know what is intended. From Id., subds. 2, 5.

§ 2941. Account, or instrument for payment of money. For the purpose of setting forth a cause of action, defence, or counterclaim, founded upon an account, or upon an instrument for the payment of money only, it is sufficient for the party to deliver the instrument, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set off. From Id., subd. 9.

¡ 2942. Court may require items to be exhibited.

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

From Id., subd. 14.

2943. Immaterial variance to be disregarded.

A variance, between an allegation in a pleading and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has been misled thereby, to his prejudice. From Id., subd. 10.

2944. Amendment of pleadings.

The court must, upon application, allow a pleading to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. The court may also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party.

From Id., subd. 11.

2945. Counterclaims.

Sections 501 and 502 of this act apply to a counterclaim in an action brought in a justice's court; except that such a counterclaim cannot be interposed, unless it is of such a nature, that a justice's court has jurisdiction of a cause of action founded thereon.

Substituted for 2 R. S. 234 (Part 3, c. 2, tit. 4), § 50.

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.

From Id., §§ 55, 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 thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. From Id., § 57.

§ 2948. The last section qualified.

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

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

2. Where the counterclaim consists of a judgment, rendered before 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 another action was pending, at the time when the action was commenced.

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

From Id., § 58; L. 1840, c. 317; L. 1831, c. 300, § 39.

2949. Judgment upon counterclaim.

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, unless it is more than the sum of two hundred dollars. If it is more than two hundred 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 satisfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case, the defendant may maintain au action 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 judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

From 2 R. S. 234, §§ 52, 53, and § 58, subd. 3.

§ 2950. Judgment when accounts exceed $400.

Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance mast be rendered against the plaintiff, with costs.

From Id., § 54.

§ 2951. Answer of title.

The defendant may, either with or without other matter of defence, set forth in his answer facts, showing that the title to real property will come in question. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must, thereupon, countersign the answer, and deliver it to the plaintiff. From Co. Proc., § 55.

§ 2952. Undertaking thereupon.

In the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days thereafter, deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars.

From Id., 56.

§ 2953. In what court new action to be brought.

The court in which a new action is to be brought, as prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo.1

From Id., § 56.

§ 2954. When action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the under

1 The Superior Court of Buffalo was abolished by the Constitution of 1804 (Art. VI, 5), and its jurisdiction transferred to the Supreme Court (see Appendix I, post).

taking, the defendant may maintain an action against the plaintiff to recover his costs before the justice.

From Id., § 57.

§ 2955. Effect of failure to give undertaking.

If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question. From Id., § 58.

§ 2956. When title comes in question on plaintiff's own showing.

If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.

From Id., § 59.

§ 2957. Pleadings in new action. Justice, when applicable.

Undertaking before

In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action.

From Id., § 60.

§ 2958. Answer of title as to one of several causes of action.

Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not as to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper

court; and the original action must proceed as to the other

causes.

From Id., 62. 850

TITLE IV.

Proceedings between the joinder of issue and the trial.

Article 1. Adjournments.

2. Compelling the attendance of a witness.

3. Commission to take testimony.

ARTICLE FIRST.

Adjournments.

Sec. 2959. Adjournment by justice.

2960. Adjournment on application of plaintiff.

2961. Adjournment on application of defendant.

2962. Id.; undertaking thereupon.

2963. Undertaking to procure discharge of defendant from custody. 2964. When defendant to be discharged.

2965. Subsequent adjournments.

2966. Justice may impose conditions upon adjournment.

2807. Adjournment when warrant to attach absent witness is issued.
2968. Adjournment not to exceed ninety days.

§ 2959. Adjournment by justice.

At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made. From 2 R. S. 238 (Part 3, c. 2, tit. 4), § 67. 68.

§ 2960. Adjournment on application of plaintiff.

At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial.

From Id., §§ 69, 70.

§ 2961. Adjournment on application of defendant.

At the time of the joinder of issue, the justice must, upon the application of the defendant. adjourn the trial of the action, upon his complying with the following requirements:

1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness. specified by him.

2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel.

Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness.

From la., 74, and § 70, subd. 2.