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9 Misc. 308.

$ 507. (Amd 1879.) A defendant may set forth, in his 39 Hun, 602 answer, as many defences or counterclaiins, or both, as he 78 Hun, 52,

80;79 Id.bil, bas, whether they are such as were formerly denominated legal or equitable. Each defence or counterclaim must be 14 Hun, 123; separately stated, and numbered. Unless it is interposed as 23 Liv. Pro. an answer to the entire complaint, it must distinctly refer to R. 187. the cause of action which it is intended to answer.

$508. [Am'd 1877.) partial defence may be set forth, 32 Hun, 628. as prescribed in the last section; but it must be expressly 31 Abb.N.C. stated to be a partial defence to the entire complaint, or to 540, 56. one or more separate causes of action, therein set forth. 74 Hun, 123;

23 Civ. Pro, Upon a demurrer thereto, the question is, whether it is suffi

R. 187. cient 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 tlie meaning of this section.

$ 509. (Amd 1877.) Where the defendant deems himseli 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 (Repealed 1877.)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'ıl 1877, 1879.) Where the answer of the de- 25 Hur., 277. Pendant, expressly or by not denying, admits a part of the 3 N. Y. State plaintiff's claim to be just, the court, upon the plaintiff's Rep. 534. motion, may, in its discretion, order, that the action be severed; 135 N.Y 458 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 case.

$ 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 fur want of an answer. The admission must be made 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.

ARTICLE FOURTH.

REPLY. 1514. Reply; what to contain.

require a leply. öla, Judgment upon failure to 2 517. Plaintiff may

set forth reply.

several avoidances in re516. Cases where the court may

ply. $ 514. [-im'd 1877.] Where the answer contains a counter

21 Abb. K claim, the plaintiff, if he does not demur, may reply to the C 136. counterclaila). The reply inust contain a general or specific 8 Misc. 224

475,

22 App. Div. denial of each material allegation of the counterciaim, con

troverted by the plaintiff, or of any knowledge or information thereof suficient 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.

$ 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 8 Misc. 224; ordered, or a writ of inquiry may be issued, as prescribed in 7 Hun, 80: chapter eleventh of this act, where the plaintiff applies for 14 Id. 424; 79 judgment. Id. 389. 46 N.Y. Sup

$ 516. Where an answer contains new matter, constituer. Ct. (J. & ting a defence by way of avoidance, the court may, in its 8.) 21.

discretion, on the defendant's application, direct the plaintiff 63 How. Pr. to reply to the new matter. In that case, the reply, and the 159.

proceedings upon failure to reply, are subject to the same

rules as in the case of a counterclaim. 46 N. Y. Sup

$ 517. [Am'd 1877.] A reply may contain two or more er.Ct. (J. & 3.) 21.

distinct avoidances of the same defence or counterclaim; but they must be separately stated and numbered.

TITLE II.

Provisions generally applicable to pleadings. $ 518. Application and effect of

ded. this chapter.

2 531. Account; how pleaded. 519. Pleadings to be liberally

Bill of particulars. construed.

532. Judgments; how pleaded. 520. Pleadings to be sub

533. Conditions precedent; how scribed ; within what

pleaded. time to be served.

534. Instrument for payment 521. When defendant to serve

of money; how pleaded. copy answer on co-de. 535. Pleadings in libel and fendant.

slander. 522. Allegation not denied ; 536. Pleading mitigating cir. when to be deemed true.

cumstances, in action for 523. When pleading must be

a wrong verified; and when veri- 537. Frivolous pleadings; how fication may be omitted.

disposed of. 524. Form and construction of 538. Sham defences to be certain allegations and

stricken out. denials in verified plead- 539. Material variances; how ings.

provided for. 525. Verification; how and by 540. Immaterial variances; how whom made.

provided for. 526. Form of affidavit of verifi. 541. What to be deemed a cation.

failure of proof. 527. When verification may be 542. Amendments of course.

confined to a counter- 513, Amended pleading to he claim.

served ; answer thereto. 528. Remedy for defective veri. 544. Supplemental pleadings.

fication, or want of veri. 545. Seandalous and irrelevant fication.

matter may be ordered 529. When defendant not ex.

stricken out. cused from verifving 546. Indetinite and uncertain answer to charge of fraud.

allegations, 530. Private statute ; how plea

$ 518. This chapter preseribes the form of pleadings in 91 Hun, 332

an action, ard the rules by which the sufficiency thereof is 77 Hun, 428.

determined, except where special provision is otherwise made by law

304.

57.

13 Misc. 136. $ 519. The allegations of a pleading must be liherally 36 Hun, 571. construed, with a view to substantial justice between the 50 N. Y. Supparties.

er. Ct. (J &

S.) 301. $ 520. A pleading mnst be subscribed by the attorney for 138 N.Y. 291. the party. plaint, must be served on the attorney for the adverse party, 11 Civ. Pro. A copy of each pleading, subsequent to the com

4 Month. L.

Bul. 18. within twenty days after service of a copy of the preceding pleading.

S521. (Amd 1884.) Where the judgment may deter- 87 N. Y. 40 mine the ultimate rights of two or more defendants, as be- rev'g 20 tween themselves, a defendant who requires such a determi

Hun, 104. nation must demand it in his answer, and must at least twenty revig 13

90 N. Y. 306, days before the trial serve a copy of his answer upon the Week. Dig. attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may 47 N.Y. Supdirect, upon defendants so to be affected who have not duly er, CE; (J. & appeared therein by attorney. The controversy between the $ ) 1.74. defendants shall not delay a judgment, to which the plaintiff

5 Civ. Pro.

106. is entitled, unless the court otherwise directs.

36 Hun, 168; 3 Id: 521; 3 N. Y. Supp. 415; 50 Hun, 236; 22 Abb. N. C. 304. 130 N. Y.

136 Id. 458. 406. 87 Hun. 339.

$ 522. Each material allegation of the complaint, not 90 N. Y. 110, controvered by the answer, and each material allegation of att'g 24 Hun new matter in the answer, not controverted by the reply, 265; 185 N.Y. where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the 189; 17 Misc. answer, to which a reply is not required, or of new matter in 32. a reply, is to be deemed controverted by the adverse party,

92 Ilu), 1.

16 App. Div. by traverse or avoidance, as the case requires. $ 523. Where a pleading is verified, each subsequent

25 Hon, 180

2 Civ. Propleading, except a demurrer, or the general answer of an intant by his guardian ad litem, must also be verified. But the 33 Hun, 238 verification may be omitted, in a case where it is not other- 6 Civ. 'Pro. wise specially prescribed by law, where the party pleading 30. would be privileged from testifying, as a witness, concerning 103 N.Y. 242

21 Abb. N. an allegation or denial contained in the pleading. A pleading

C. 214. cannot be used, in a criminal prosecution against the party, 131 N.Y. 490. as proof of a fact admitted or alleged therein.

$ 524. The allegations or denials in a verified pleading 14 Abb. N. must, in form, be stated to be made by the party pleading. C. 36. Unless they are therein stated to be made upon the informa- 33 Hun, 143 tion and belief of the party, they must be regarded, for all 110 N.Y. 150 purposes, including a criminal prosecution, as having been inade 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. (Amd 1879.] The verification must be made by 3 Abb. N. C. the affidavit of the party, or, if there are two or more parties 13. united in interest, and pleading together, by at least one of

1 Month L.

Bul. 20. them, who is acquainted with the facts, except as follows:

2:Week. Dig. 3; 41 Hun, 58 ; 20 Abb. N. C. 1. 133 N. Y. 270. 1. Where the party is a domestic corporation, the verifica

15 Civ. Pra tion 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,

204.

34.

259

314.

C. 1.

. 18 Misc. 627. 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 zor, 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 it
where the action or defence is founded upon a written instru-
ment for the payment of money only, which is in the possession
of the agent or the attorneys or where all the material alle-
gations 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. 27 Hun, 369.

$ 526. The affidavit of verification must be to the effect, 2 Civ. 'Pro. that the pleading is true to the knowledge of the deponent,

except as to the matters therein stated to be alleged on infor94 N. Y. 574. mation and belief, and that as to those matters he believes it 41 Hun, 58.

to be true. Where it is made by a person, other than the 20 Abb. N.

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.

$ 527. Where the complaint is not verified, and the an. swer 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. 9 Daly, 166.

$ 528. The remedy for a defective verification of a plead. ing 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 an6 Civ. Pro.

swer 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. 3 Civ. Pro. $ 530. (Amd 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. 87 N.Y. 272; $ 531. It is not necessary for a party to set forth, in a 120 Id. 33. pleading, the items of an account therein alleged ; but in that 27 Hun, 515. case, he must deliver to the adverse party, within ten days 60 How. Pr. after a written demand thereof, a copy of the account, which, 4 Civ. Pro.

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 i How. Pr. within the personal knowledge of the agent or attorney for

the party, or the party is not within the county where the & NY. State attorney resides, or capable of making the afidavit, by the Rep. 894; 16 affidavit of the agent or attorney. If he fails so to do, he is

30.

412.

152.

398.

N. S. 338

611.

precluded from giving evidence of the account. The court, Id. 771; 30 or a judge authorized to make an order in the action, may 21 App: Div. direct the party to deliver a further account, where the one 33. 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 47 N.Y. dup a court or officer of special jurisdiction, it is not necessary to er. Ct. (1. & state the facts conferring jurisdiction ; but the judgment or $. 372.

15 N. Y. State determination may be stated to have been duly given or made. If that allegation is controverted, the party plead- Rep: 316, ing must, on the trial, establish the facts conferring juris- affog 44 Hun, diction.

$ 533. In pleading the performance of a condition pre- 4 Civ. Pro. cedent 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 35. 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,

76 N.Y. 564. is founded upon an instrument for the payment of money icityC1. 235. only, the party may set forth a copy of the instrument, and 10 Daly, 344. state that there is due to him thereon, from the adverse 22 Week. party, a specified sum, which he claims. Such an allegation Dig: 18. is equivalent to setting forth the instrument, according to its 113 N. Y.662. legal effect. $ 535. It is not necessary, in an action for libel or slander, 81 N. Y. 246 ;

87 Id. 231. to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory

32 Hun, 628.

19 Week. matter : but the plaintiff may state, generally, that it was Dig. 266. published or spoken concerning him ; and, if that allegation is 8 Civ. Pro. controverted, the plaintiff must establish it on the trial. In 133. such an action, the defendant may prove mitigating circum- 118 N. Y.178. stances, not withstanding that he has pleaded or attempted to 86 Hun, 479. prove a justification. 22 App. Div. 400, 24 Id. 89.

$ 536. (Am'd 1877.) In an action to recover damages for 93 N. Y. 516. the breach of a promise to marry, or for a personal injury, or 32 Hun, 628 an injury to property, the defendant may prove, at the trial, Tacts, 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. (Amd 1877, 1879.) If a demurrer, answer, or re- 6 Abb. N. C. plý is frivolous, the party prejudiced, thereby; upon a pre 88 i 1d. 99. vious notice to the adverse party, of not less than five days, 21 Hun, 332. may apply to the court or to a judge of the court for judg. 4 Month. L. ment thereupon, and judgment may be given accordingly. It Bul. 31. the application is denied, an appeal cannot be taken from the 4 Civ. Pro. determination, and the denial of the application does not

9 N. Y. Si sto prejudice any of the subsequent proceedings of either party. Rep. 600. Costs, as upon a motion, may be awarded upon an application pursuant to this section. | 638. A sham answer or a sham defence may be stricken 76 Hun, 574;

6 Miso. 010. 92 Hun, 1

18.

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