djorupll ICaul i>rl)nnl IGibrary 
 
Cornell University Library 
 KFN6011.A7A13 1895 
 
 Select cases on code Plead ng / 
 
 3 1924 022 786 895 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022786895 
 
SELECT CASES 
 
 CODE PLEADING 
 
 WITH NOTES. 
 
 AUSTIN ABBOTT, LL.D., 
 
 Dean of the New York University Law School ; Author of "Trial Evidence,*' 
 "New York Digest," &c. 
 
 SECOND EDITION. 
 
 Enlarged and Improved, with collation of the most recent cases. 
 
 A Pleading is at once a notice to the adver- 
 sary of what he must prepare to meet ; 
 a rule of order by which the court may re- 
 strain the latitude of contention at the 
 trial ; and, after judgment, a record of 
 justice done which the court may enforce 
 and compel the parties to respect. 
 
 KEW YORK : 
 
 THE DIOSSY LAW BOOK COMPANY, 
 |J u b I i s I) e r s . 
 
 1895. 
 
Copyright, 1893, by AUSTIN ABBOIT. 
 Copyright, 1896, by AUSTIN ABBOTT. 
 
PREFACE 
 
 In this volume I have selected the best authorities on the New 
 Procedure in Pleading as it is adopted and practically applied 
 in the State of New York. Such parts of a ease as had no rela- 
 tion to the question of pleading have been omitted ; the omission 
 and its reason being always indicated. An examination of the 
 original records of each case as presented in court has enabled 
 me to prefix to the opinion the actual pleading on which the 
 question arose, and any details of procedure, necessary to show 
 how the question came before the court. 
 
 The head notes are prepared especially for this work, and the 
 cases are arranged in a logical order calculated to develop the 
 reader's view of the rules of pleading as a systematic body of 
 consistent principles growing out of the litigation over concrete 
 facts, and I have appended to the cases on some of the more im- 
 portant and frequently occurring classes, notes to aid the applica- 
 tion of the same principles to varying states of fact. The 
 classification shows how the application of such principles dis- 
 tributes litigated causes into distinguishable classes, indicated 
 over the top of the pages ; and after the general principles have 
 been elucidated in the cases forming the first half of the volume, 
 the technical rules are given which have grown up under judicial 
 experience in the convenient and orderly presentation of facts to 
 the court by means of pleading. 
 
 Prefixed to the volume are two tables ; one a topical table of 
 all the cases presented in the volume ; and one of the requisites 
 or contents of each pleading used under the Code, and the 
 method of taking objections to defects. 
 
 The following statement of the object of the rules of pleading 
 (from the " Brief on the Pleadings ") I repeat here to aid my 
 readers in reviewing the subject in the completed volume. 
 
 A pleading is at once a notice to the adversary of what he 
 must prepare to meet ; a rule of order to limit contention at 
 
IV PREFACE. 
 
 the trial; and, after judgment, a record of justice done to show 
 what it is that the parties are precluded from subsequently 
 contesting. 
 
 The rules applicable on demurrer have grown up chiefly in 
 view of the first of these requirements, and turn on the ques- 
 tions : Do the pleadings present a fit question for litigation ? and, 
 Do the incidents of parties, jurisdiction, etc., make this a fit 
 occasion ? 
 
 The rules applicable at the opening of a trial of issues of fact, 
 before going into evidence, assume that the present is a fit 
 occasion, but leave open the inquiries : Whether the pleadings 
 present a question to be tried ; and of a nature to be within the 
 jurisdiction of this court? and, Are all indispensable parties 
 before the court ? The same stage of proceedings may raise the 
 further questions : What mode of trial do the contents of these 
 pleadings call for ? and. In what order shall the parties and issues 
 be heard ? 
 
 The opening by counsel, and the resulting reception of evi- 
 dence, introduce such modification of this aspect of the case as 
 is required by the practical construction which the parties, by 
 their contention in the presence of the court, put upon the 
 language in which they have framed the issue. 
 
 The court still holds them to questions within the general 
 scope of the pleadings, but disregards technical objections which 
 the objector by his own course has already disregarded. 
 
 The course of the trial, proceeding on this relaxation of the 
 original rules, frequently obscures the lines which strict adherence 
 to the pleadings might have preserved ; and when the time for 
 submission of the cause arrives, the question whether each party 
 gave his adversary fair notice of the question which they have 
 actually tried has gone by, for each has taken his part in trying 
 it ; and the time for applying the rules of order as to the method 
 of trial has also gone by ; while the question what sort of judg- 
 ment can the court properly render, and perpetuate on its record, 
 and enforce by its process, on the foot of these pleadings, comes 
 into prominence. 
 
 These distinctions must be borne in mind by whoever would 
 master the modern principles and rules of pleading. 
 
 My acknowledgments are due to the Williamson Book Com- 
 
PREFACE. V 
 
 pany, of Rochester, JST. Y., for permission to use cases from 
 Abbott's Practice Reports (Old Series), of which they sometime 
 since became the copyright proprietors. 
 
 AUSTIN ABBOTT. 
 New York University, 
 
 Second Edition, July, 1895. 
 
COI^TEISTTS. 
 
 [The heavy faced figures refer to pages in this volume.] 
 [For Alphabetical Table of Caeee, and Index, see end of volume.] 
 
 Preliminary Notes on Requisites 
 OP Pleadings (XIII.) 
 
 I. Causes of Action at Law. 
 (1) Express Contracts. (_Goocln sold.) 
 Allen !). Patterson, 7 N. Y., 476, 
 (1) ; — iVoto of Recent Cases on 
 Complaint in Action for the Price 
 of Goods Sold (605);— The same for 
 the Value,(606);— Secor s.Sturgis, 
 16 N. Y. 548, (5) -—Notes of Recent 
 Cases on SplittingCause of Action, 
 (607);— Sharp -o. Hutchinson, 100 
 N. Y.,o33, (I'iy,— {Breach of Contract 
 of Sale.) Albany & Rensselaer 
 Co. V. Lundberg, 131 U. S., 
 451, (16); — Considerant v. Bris- 
 bane, 33 N. Y., 389, (21 note) ;— 
 Nelson v. Eaton, 7 Abb. Pr., 305, 
 (21 note) ; — Pope «. Terre Haute 
 Car & M'f'g Co., 107 N. Y., 61 
 (22) ;— Golden Gate Co. v. Jack- 
 son, 13 Abb. N. C, 476, (26);— 
 Note on the Seller's Actions on 
 the Contract of Sale, (27) -—{Ser- 
 uces.) Farley v. Browning, 15 
 Abb. N. C, 301, (29);— Schencke 
 V. Rowell, 3 Abb. N. C, 843, (gi'); 
 — Notes of Recent Cases on Com- 
 plaints in Actions upon Building 
 Contracts,(608); — Hosley«. Black, 
 38 N. Y., 438, (37) ;— Parry v. 
 American Opera Co., 19 Abb. N. 
 C, 269, (4:0);— Note on Actions 
 for Breach of Contract for 
 Services (42) ;— The same on 
 Actions for the Value of Services 
 Rendered, the Agreed Compen- 
 sation, or Damages for a Wrong- 
 ful Discharge, (609) ; — {Money 
 Lent.) Bank of British North 
 
 Am. 1). Delafield, 126 N. Y., 410, 
 (44) ;— Esdaile v. Wuytack, 35 
 Abb. N. C, 474, (47 note) ;— 
 (Incidental Allegations of Fraud.) 
 Hoboken Beef Co. -o. Loeflel, 33 
 Abb. N. C, 93, (48) ;— iVote on In- 
 cidental Allegations of Fraud, 
 (48);— Blank v. Hartshorn,37 Hun, 
 101, {aO);— {Bills, Notes and Cheeks.) 
 Spear v. Downing, 13 Abb. Pr., 
 437, (53) ;— Carnwright v. Gray, 
 137 N. Y., 92, (58) ;— Keteltas v. 
 Myers, 19 N. Y., 281, (64);— 
 Palmer ®. Smedley, 6 Abb. Pr. R., 
 205, (67);— Cohu w. Husson, 113 
 N. Y., 662, (68) ;— Conkling ». 
 Gandall, 1 Abb. Ct. of App. Dec, 
 423, (72);— Chemical National 
 Bank v. Carpentier, 9 Abb. N. C, 
 301, (77);— Cook ii. Warren, 88 
 N. Y., 87, (78) ;— Pahquioque 
 Bank a Martin, 11 Abb. Pr., 391, 
 (83); — Mechanics'Banks. Straiten, 
 3 Abb., Ct. of App. Dec, 269, 
 (84) ;— Gfroehner v. McCarty, 3 
 Abb. N. C, 76, (86) ;— Draper v. 
 The Chase Manufacturing Co., 3 
 Abb. N. C, 79, (88);— iVote on 
 Actions on Paper Payable on De- 
 mand, (90) ; — Notes of Recent 
 Cases or Complaints in Actions 
 on Bills, Notes and Checks (612) ; 
 , — {Account Stated.) Graham v. 
 Caraman, 5 Duer, 697, (91);— 
 {Insurance Policy.) Fowler v. N. 
 Y. Indemnity Ins. Co., 26 N. Y., 
 423, (94) -—Notes of Recent Cases 
 on Complaints in Actions on 
 In,surance Policies, (618); — {Bond.) 
 Brown i). Champlin, 66 N. Y., 
 
CONTENTS. 
 
 314, (100) ;— Bostwick «). Van 
 Vooi-his, 91 N. Y., 353, (103);— 
 Hopper i>. Town of Covington, 
 118 U. S., 148, {106);— {Contract 
 for Telegraph Service.) Milliken «. 
 Western Union Tel. Co., 110 N. 
 Y., 403, (110) ;— Notes of Recent 
 Cases on Complaints in Actions 
 against Telegraph Companies 
 for Dereliction of Duty in tlie 
 Transmission of Messages, (624) ; 
 — {Common Carrier.) Catlin ». 
 Adirondack Company, 11 Abb. 
 N. C, 377, {1\9)\— Notes of Recent 
 Cases on Complaints in Actions 
 against Common Carriers for 
 Loss or Injm-y to Goods Entrusted 
 to them for Transportation, (626); 
 — {Boy allies.) Dalzell «. The Fahys 
 Watch Case Co., 138 N. Y., 285, 
 (\i^);—{Bent.) Thomas «. Nelson, 
 69 N. Y., 118, (126) ;— Hurliman 
 «. Seckendorf, 9 Misc., 264, (129) ; 
 — {Use and Occupation.) Coit a. 
 Planer, 51 N. Y., 647, (133) ;— 
 Note on tlie Landlord's Remedies 
 for Rent, (136) ;— Notes of Recent 
 Cases on Actions for Use and 
 Occupation, (627) ; — {Chtaranty.) 
 Hernandez ». Stilwell, 7 Daly, 
 360, (138) ;— Notes of Recent Cases 
 on Complaints in Actions upon 
 a Guaranty, (628); — Cordier «. 
 Thompson, 8 Daly, 172, (144). 
 
 —(2) Constructive Contracts. {Prop- 
 erly Received under Void Contract.) 
 Reed v. McOonnell, 138 N. Y., 
 435, {\i:9) ;— {Money Received.) 
 Southwiok V. First National Bank, 
 84 N. Y., 430, (154 noie);— {Money 
 Paid.) Freer v. Denton, ftl N. Y., 
 493, {\ho) ; — {Wager Contract.) 
 Eggers V. Klussmann, 16 Abb. N. 
 C, 336, (169) ;— {Foreign judgment.) 
 Krower v. Reynolds, 99 N. Y., 
 345, (161) ;— Notes of Recent Cases 
 on Complaints in Actions upon 
 Judgment, (628) ; — {Money Paid.) 
 Everitt v. Conldin, 90 N. Y., 045, 
 
 (168) ; — {Money Received.) Roberts 
 V. Ely, 113 N. Y., 138, (175);— 
 Chapman v. Forbes, 133 N. Y., 
 533, (1 79) ;— Rosenberg v. Salo- 
 mon, 144 N. Y., 93, (185 note);— 
 Notes of Recent Cases on Com- 
 plaints for Money Had and Re- 
 ceived, (630). 
 
 — (3) Torts. (Negligence.) Agnew v. 
 Brooklyn City Railroad Co., 20 
 Abb. N. C, 385, (186) ;— Donner 
 V. Ogilvie, 49 Hun, 339, (187);— 
 City of Buffalo v. Holloway, 7 N. 
 Y., 493, (193);— Davis ». N. Y., 
 Lake Erie & Western R. R. Co., 
 30 Abb. N. C, 330, (196);— 
 Ehrgott V. Mayor, etc., of New 
 York, 96 N. Y., 265, (202);— 
 Gumb V. Twenty-third St. R. R. 
 Co., 114 N. Y., 411, (203);— Fisher 
 V. Rankin, 35 Abb. N. C, 191, 
 (204); — Lamming v. Galusha, 135 
 N. Y., 339, (207) -—Notes of Recent 
 Cases on Complaints in Actions 
 for Nuisance, (631) ; — Note on the 
 distinction in Pleading, between 
 Negligence, Nuisance and Willful 
 Act, (213) ;— Reining v. City of 
 Buffalo, 102 N. Y., 308, (217);— 
 Mayor, etc., of New York v. Dim- 
 mick, 30 Abb. N. C, 15, (223) ;— 
 Hawxhurst v. Mayor, etc., of New 
 York, 15 Abb. N. C, 181, (225); 
 Notes of Recent Cases on Com- 
 plaints in Actions for Negligence, 
 (633). 
 
 — {Conversion.) Berney v. Drexel, 83 
 Hun, 34, (2,^9);— Notes of Recent 
 Cases on Complaints in Actions 
 for Conversion or Replevin, 
 (643). 
 
 — {Deceit.) Whitner v. Perhacs, 
 35 Abb. N. C, 130, (239) -—Note 
 on Distinction between Motion to 
 Make More Definite and Certain, 
 and for a Bill of Particulars, (239); 
 — Notes of Recent Cases on Com- 
 plaints in Actions for Deceit, 
 (649). 
 
CONTENTS. 
 
 IX 
 
 — {FaUe Imprisonment.) Sheldon v. 
 Lake, 9 Abb. Pr. (N. S), 306, (241). 
 — Notes of Recent Cases on Com- 
 plaints in Actions for False Im- 
 prisonment, (^h^)\— {Malicious 
 Pi-osecntion,etc.)^othsc\iMv.'Wh\t- 
 man, 133 N. Y., 473, (244);— iVofes 
 of Recent Cases on Complaints 
 for Malicious Prosecution, (G54). 
 
 — {Libel.) Fleisohmann ii. Bennett, 
 87 N. Y., 331, (251) ;— Caldwell v. 
 Raymond, 2 Abb. Pr., 193, (258); 
 — Notes of Recent Cases on Com- 
 plaints in Actions for Libel or 
 Slander, (656). 
 
 — {Trespass.) Sprague v. Parsons, 
 14 Abb. N. C, 320, (263) ;— Lang- 
 don ». Guy, 91 N. Y., 661, (264) ; 
 Whatling «. Nash, 41 Hun, 579, 
 (267) ;— Gilbert «. Pritchard, 41 
 Hun, 46, (268);— Gunn «. Fellows, 
 41 Hun, 357, (269 note);— iVote of 
 Recent Cases on Complaints in 
 Actions for Trespass on Real 
 Property, (663). 
 
 — {Seduction, etc.) Buckel «. Suss, 
 28 Abb. N. C, 27, (272) \—Note on 
 the distinction between an action 
 for enticing away and harboring- 
 a wife or husband and one for 
 criminal conversation, (275); — 
 Notes of Recent Cases in Actions 
 for Criminal Conversation, (666); 
 — Notes of Recent Cases on Com- 
 plaints in Actions for Enticing' 
 away Spouse, (666). 
 
 — {Replevin.) Schofield ». White- 
 legge, 13 Abb. Pr., (N. S.), 330, 
 (277). 
 
 — {Ejectment.) Halsey v. Gerdes, 17 
 Abb. N. C, 395, (280) ;— Clason v. 
 Baldwin, 139 N. Y., 183, (281); — 
 Notes of Recent Cases on Com- 
 plaints in Actions of Ejectment, 
 (667). 
 
 II. Causes of Action in Equity. 
 (1) {Accounting.) Ensignu. Nelson, 
 31 Abb. N. C, 331, (287);— iV^oto 
 of Recent Cases on Complaints 
 
 in Actions for an Accounting, 
 (671). 
 
 — (2) {Partnership.) Williams a.Lind- 
 blom, 68 Hun, 173, (292) ;— Dalton 
 V. Vanderveer, 31 Abb. N. C, 
 430, (294) ;— Notes of Recent Cases 
 on Complaints in Actions to 
 Settle up Partnership Accounts, 
 (672). 
 
 — (3) {Foreclosure.) Coulter®. Bower, 
 11 Daly, 303, (301) ;— -ZVi/te on 
 Pleading and Parties in Fore- 
 closure, (303) ; — Notes of Recent 
 Cases on Complaints in Actions 
 of Foreclosure, (673). 
 
 — (4) (Partition.) Townsend v. Bo- 
 gert, 136 N. Y., 370, (311) -—Note 
 on Who May Bring Partition, and 
 who may be made Parties De- 
 fendant, (318); — Notes of Recent 
 Cases on Complaints in Actions 
 of Partition, (675). 
 
 — (.5) {Judg't Creditors' Suit.) Kain 
 1). Larkin, 141 N. Y., 144, (322) ;— 
 Reed «. Stryker, 4 Abb., Ct. of 
 App. Dec, 26, {S2S) ;— Notes of 
 Recent Cases on Complaints in 
 Creditoi's Actions, (676). 
 
 — (6) {Divorce.) Blanc v. Blanc, 67 
 Hun, 384, (333) ;— Notes of Recent 
 Cases on Complaints in Actions 
 for Absolute or Limited Divorce, 
 (682). 
 
 — (7) {Mechanic's Lien.) Ross v. Si- 
 mon, 9 N. Y. Supp., 536, (339) ;— 
 Notes of Recent Cases on Com- 
 plaints in Actions to Foreclose 
 Mechanic's Lien, (685). 
 
 III. Technical Rules. (1) {Juris- 
 diction.) Gilbert v. York, 111 N. 
 Y., 544, (347);— Wheelock v. Lee, 
 74 N. Y., 495, (352) ;— Robinson v. 
 Oceanic Steam Nav. Co., 112 N. 
 Y.,315, (356);— Dodge v. Colby, 
 108 N. Y., 445, (362) ;— Cragin v. 
 Lovell, 88 N. Y., 258, (367);— iVbte 
 on the question. What is to be 
 Deemed the Place Where the 
 Cause of Action Arose, (371). 
 
CONTENTS. 
 
 — (3) (Joinder.) PoUey ■b. Willds- 
 son, 5 Civ. Pro. Rep., 135, (373); 
 —Nichols «. Drew, 94 N. Y., 32, 
 (375). 
 
 — (3) {Separate Statement.) Victory 
 Webb Printing-, etc. Co.B.Beechei', 
 36 Hun, 48, (380). 
 
 — (4) (Demurrer.) Marie ». Garri-son, 
 83 N. Y., 14, (383);-John.son ». 
 Golder, 1.83 N. Y., 116, (304);— 
 Masterson v. To\vn.shencl, 183 N. 
 Y., 4.J8, (.■(95);- Smitli v. Holmes, 
 19 N. Y., 371, (399);— Nones v. 
 The Hope Mutual Life Ins. Co., 5 
 How. Pr., 96, (401):— Phoenix 
 Bank v. Donnell, 40 N. Y., 410. 
 (403) ;— Harmon v. Vanderbilt 
 Hotel Co., 79 Hun, 393, (407);— 
 Goddard v. Ben.son, 1.5 Abb. Pr., 
 191, (408) ; — Corning ». Roosevelt, 
 35 Abb. N. C, 330. (410). 
 
 — (5) (Answer.) Clark i). Dillon, 15 
 Abb. N. C, 361, (414);— iVote on 
 the Forms of Denial, (420) ;— Mac- 
 auley v. Bromell & Barkley Print- 
 ing- Company, 14 Abb. N. C, 816, 
 (428) ;— Fleiscbman <o. Stern, 90 
 N. Y., 110, (430);— Drake ». Cock- 
 rott, 1 Abb. Pr., 303, (431);— 
 AVesson v. Judd, 1 Abb. Pr., 354, 
 (434 note) ; — Thompson v. Erie 
 Railway Co., 45 N. Y., 468, (434) ; 
 — Sherman v. Boehm, 15 Abb. N. 
 C, 354, (449);— McKy ring «. Bull, 
 16 N. Y., 397, (4o6);— Quimi r. 
 Lloyd, 41 N. Y., 349, (4G1);— 
 White V. Smith, 46 N. Y., 418, 
 (4«(i);— Knapp v. Roche, 94 N. Y., 
 339, (469) ;— Whitman v. Foley, 
 135 N. Y., 651, (474);-Lent v. 
 New York Massachusetts Rail- 
 way Company, 130 N. Y., 504, 
 (474);— iVbCe on Burden of Proof 
 as to Non-Payment, (475);— Crane 
 1). Powell, 139 N. Y., 379, (477);— 
 Milbank «. Jones, 137 N. Y., 370, 
 (483);— Wallace«.Blake, 138 N.Y., 
 676, (486); — Sprague v. Sprague, 
 80 Huii, 385, (488) ;— Baumiller ». 
 Workingman's Co-operative As- 
 
 sociation, 9 Misc., 157, (489); — 
 Note on the Effect of a Denial, 
 (489) ; — Note on putting Corpo- 
 rate Existence in Issue, (491); — 
 Walker v. The Granite Bank, 1 
 Abb. Pr. (N. S.), 406, (492);— 
 White V. Drake, 3 Abb. N. C, 
 188, (493) ; — Traver v. Eighth 
 Avenue R. R. Co., 4 Abb. Ct. of 
 App. Dec, 431, (494); — TamisiertJ. 
 Cassard, 17 Abb. Pr., 187, (494);— 
 Wiegand v. Sichel, 4 Abb. Ct. of 
 App. Dec, 593 (497) ;— Palmer ®. 
 Field, 76 Hun, 329, (497 note);— 
 Thompson v. Halbert, 31 Abb. 
 N. C, 366, (500);— Simmons v. 
 Simmons, 31 Abb. N. C, 469, 
 (503) ; — President, etc., of Union 
 Bank -o. Crine, 31 Abb. N. C, 146, 
 (506) ;— Mack ». Kitsell, 30 Abb. 
 N. C, 393, (510). 
 
 — (6) (Gounterclaim.) Carpenter v. 
 Manhattan Life Ins. Co., 98 N. Y., 
 553, (514); — Lipman v. Jackson 
 Architectural Iron Works, 138 N. 
 Y., .58, (516) ;— Otis «. Shauts, 138 
 N. Y., 45, (519); — Rice ». Grange, 
 131 N. Y., 149, (522). 
 
 — (7) (Reply.) Hubbell v. Fowler, 1 
 Abb. Pr. (N. S.), 1, (525) ;— New 
 York, Lake Erie & Western R. R. 
 Co. V. Robinson, 35 Abb. N. C, 
 116, (527);— iVbte on Pleading in 
 Avoidance of a Defence by Reply, 
 Volunteered or Compelled, or by 
 Avoidance, in the Complaint of 
 an Anticipated Defence, (531); — 
 Winchester v. Browne, 36 Abb. 
 N. C, 387, (533) ;— Ansorge D. 
 Kaiser, 23 Abb. N. C, 305, (535). 
 
 — (8) (Veiification.) Goff ». Star 
 Printing Co., 21 Abb. N. C, 311, 
 (537); — Fredericks ii. Taylor, 14 
 Abb. Pr. (N. S.), 77, (538 note). 
 
 — (9a) (Tndefimteness and Uncertaiiiii/). 
 Reubens v. Ludg-ate Hill S. S. Co., 
 31 Abb. N. C, 464, (540) ;— Ott- 
 man v. Fletcher, 38 Abb. N. C, 
 430, (543) ;— Blanchard v. Jeffer- 
 son, 38 Abb. N. C, 236, (545);— 
 
CONTENTS. 
 
 XI 
 
 Note on the Difference between 
 an Action on an Account and for 
 an Accouating-, (548). 
 
 - (94) (Bill of Particulars.) People 
 ». Tweed, 63 N. Y., 194, (549); — 
 D wight V. Germania Life Ins. Co., 
 84 N. Y., 493, (559) ;— Butler «. 
 Mann, 9 Abb. N. C, 49, (572);— 
 Melvin v. Wood, 3 Abb. Ct. of 
 App. Dec, 273 (574);— Hoff e. 
 Pentz, 1 Abb. N. C, 388, (576); 
 — Goings 11. Patten, 17 Abb. Pr 
 Rep., 339, (577); — Gebhard v. 
 Parlfer, 130 N. Y., 33, (579). 
 
 - (10) {Striking Out.) Badeau ij. 
 Niles, 9 Abb. N. C, 48, (582);— 
 Ward «. Ward, .5 Abb. Pr. (N. S.), 
 145, (583) ; Gassett v. Crocker, 10, 
 Abb. Pr. 183, (584 note). 
 
 -(11) {Amendment of Pleadind .) Deyo 
 V. Morss, 144 N. Y., 316, (584);— 
 Mus&inan ®. Hatton, 31 Abb. N. 
 
 C, 3.54, (587);— Cashman v. Rey- 
 nold.s, 133 N. Y., 138, (689). 
 
 — {VZ) {Amendment of Summons.) 
 Mapes V. Brown, 14 Abb. N. C, 
 94, (592) ;— Anderson ». Horn, 33 
 Abb. N. C, 475, (593);— Spence ». 
 Griswold, 33 Abb. N. C, 339, 
 (595);— Riley ». Stern, 33 Abb. 
 N. C, 435, (590) ;— McKane v. 
 Democratic General Committee 
 of Kings County, 31 Abb. N. C.,89, 
 (597); — Munzinger v. The Courier 
 Co., 83 Hun, .575, (599 note) ;— 
 Lassen ■». Ai'onson, 39 Abb. N. C, 
 114, (COO). 
 
 — (13) {Supplemental Complaint.) Mc- 
 Roberts v. Pooley, 1 N. Y. St. 
 Rep., 735, (GOl). 
 
 Notes of Recent Cases on Com- 
 plaints in various causes of 
 Action, (C05). 
 
NOTE GiymG A GENERAL VIEW OF THE COURSE 
 OF PLEADING UNDER THE CODES. 
 
 [The details are for the sake of precision stated here according to the 
 rule in New York ; but the practitioner in other jurisdictions can 
 readily adapt the statement in detail where there is diversity.] 
 
 Contents of the Complaint. 
 
 I. — Matters showing the cause peopeblt before the court. 
 
 1. Ajopearance hy attorney. A usual introductory statement, 
 but not essentiaL Subscription enough, N. Y. Code Civ. Pro., 
 S 417. 
 
 2. Complaint not to depart from the summons ; e. g., as to 
 names of parties, court and county (N. Y. Code Civ. Pro., §§ 417, 
 481) ; Wadsworth v. Georger, 18 Abb. N. C, 199 ; Rector v. 
 Ridgewood Ice Co., 38 Hun, 293. 
 
 3. Jurisdiction. In inferior courts of limited "jurisdiction, 
 jurisdictional facts must be alleged. Gilbert v. York, 111 N. Y., 
 544, p. 347 of this vol. In federal courts, citizenship or 
 alienage must be alleged, if jurisdiction depends on citizenship, 
 etc. " No adequate remedy at law " is a useful allegation in an 
 equitable action where the jurisdiction of equity depends on the 
 lack of such remedy at law ; but facts substantiating it must be 
 alleged as well. 
 
 But location of property is not essential to be alleged for the 
 purpose of fixing the place of trial. Acker v. Leland, 96 N. Y., 
 393, holding that it may be shown by affidavit. 
 
 4. Capacity of party ; as in case of corporation ; infant suing 
 by guardian ad litem ; foreign receiver ; executor, etc. 
 
 5. Leave to sue j (rules uncertain) ; better opinion that where 
 the requirement is not a condition precedent to right, but only a 
 safeguard against liability for costs, allegation is not necessary. 
 Hirshfeld v. Kalischer, 81 Hun, 606. 
 
 6. Allegations relating to the adequacy or ranging of the 
 parties ; as, where you make your co-trustee a defendant, you 
 must allege your reason for so doing, as, — that he is unwilling to 
 sue. Also if you sue- in equity in behalf of numerous persons, 
 allege their number and that fact as an excuse for not joining 
 
Course of Pleading 
 
 them. Or, if you sue on a joint obligation, and do not join your 
 joint obligee, allege both the fact and the excuse, as, — that he is 
 dead. 
 
 7. Changes of 'parties, which have been made since the cause 
 was commenced and before the complaint is verified. 
 
 II. — Showing facts constituting cause of action. 
 
 1. Plaintifs right or title. 
 
 2. The grievance. 
 
 3. Whether partial satisfaction, if any, should he admitted. 
 Query ? 
 
 4. Any facts requiredhy statute, or rule of court ; e. g., de- 
 nial of collusion, in some cases ; ground of arrest, in some cases. 
 
 5. An offer to do something, may in some cases constitute part 
 of the cause of action. 
 
 6. Facts affecting right to costs, in equitable actions. 
 
 III. — Anticipation and avoidance of defence. 
 
 In actions on a common law cause of action use this with great 
 caution, as it is an open question whether it is proper in such 
 cases under the Code. Note in 25 Abb. N. C, 120. [This 
 corresponds to the " charging part " of the bill in equity.] 
 
 IV. — Demand of judgment. 
 
 Judgment on failure to answer cannot be more favorable than 
 the demand. 
 
 If an interlocutory judgment is required, it better be separately 
 demanded. 
 
 If injunction or receiver is desired as part of the final relief 
 it should be demanded in the complaint. A merely provisional 
 remedy like arrest or attachment need not. 
 
 V. — Otiiee details. 
 
 1. Signature by party in person, or, if infant, by guardian ad 
 litem ; or by the attorney of the party, or of infant's guardian ad 
 litem appearing by attorney. 
 
 2. Verification. A complaint must be verified: (a). When serv- 
 ice by publication is desired, C.C.P., § 439 ; {b). AVhen the action 
 is against a joint debtor, not served in a previous action for the 
 same cause brought against all those jointly liable, ^ 1938; (c). 
 
Undeu the Codes. xv 
 
 When it is desired to use the complaint as an affidavit (§ 3343, 
 sub. 11) in applying for an order of arrest (§§ 549, 557) ; or an 
 injunction (§ 607) or an attachment (§ 636) or for any other order. 
 
 3. Folioing. (Eule 19.) 
 
 4. Endorsing object of action on summons in some cases when 
 served without complaint, §§ 1774, 1897, 1964. 
 
 5. Date is not essential and rarely conclusive of anything. 
 But dates of verification or service are important and may 
 determine a legal right. 
 
 Pkinoipal Objections to Complaint ; and Defendant's 
 Remedies Theeefoe. 
 
 [Note. — "We will class as Technical those that can be waived 
 without affecting the merits or result of the action ; as Formal, 
 those which, although relating to the form of the proceeding and 
 not affecting the substance, may, if waived, affect the merits or 
 the result. Technical and Formal Objections are not favored by 
 the courts, and should not be raised without due caution and 
 discretion. A note to the attorney of the adverse party is 
 usually better than a motion.] 
 
 I. — Technical objections. 
 
 1. Omission to sign — return promptly, with notice. Rule 
 ISTo. 19. 
 
 2. Omission to folio — same remedy. Iil. 
 
 3. Tardy service — if proceedings for want of timely service 
 have been or are to be taken, it may be useful to return with 
 notice. 
 
 4. Letter-press copy — return promptly, with notice. Rule 
 Eo. 19. 
 
 5. lUegibihty — same remedy. Id. 
 
 II. FOEMAL objections. 
 
 1. Omission of court and place of trial — if not supplied by 
 summons, may move to set aside the complaint ; but if summons 
 is correct, defect is amendable. Davison v. Powell, 13 How. 
 Pr., 287. 
 
 2. Misnomer of plaintiff or defendant — plead it in answer. 
 
xvi CouKSE OF Pleading 
 
 Traver v. Eighth Ave. R. li. Co., 4 Abb. Ct. of App. Dec, 422. 
 
 3. Wrong place of trial — have it changed by demand or mo- 
 tion. Code Civ. Pro., §^ 985, 986. 
 
 4. Omission of title — return, with notice ; or may move to set 
 aside the complaint. Swift v. Smith, 4 Mo. Law Bull., 87. [If 
 the names of the parties do not appear as well in the body of the 
 pleading, the defect is substantial.] 
 
 5. Departure from summons — move to set aside the complaint 
 and any proceedings that have been founded upon it. Allen v. 
 Allen, 14 How. Pr., 248. 
 
 6. Indefiniteness and uncertainty — often a substantial objec- 
 tion. (See below. III, 20.) (At common law, a special demurrer 
 is taken ; but under Code Civ. Pro., demurrer will not lie. 
 MiUiken V. West. Un. Tel. Co., 110 N. Y., 403.) Eemedy: 
 move to compel to make more definite and certain, before an- 
 swering. ]Sr. Y. Code Civ. Pro., § 546 ; Court Eule 22 ; Arm- 
 strong V. Danahy, 75 Hun, 405. 
 
 7. Too great generality to enable to plead or to prepare for 
 trial (generally a substantial objection, see below III, 17.) — 
 move for bill of particulars ; or, if necessary, move in the alter- 
 native, to make more definite, etc., or for particulars ; or both. 
 jSTote as to the distinction between these two species of relief, 
 p. 239, of this volume. Code Civ. Pro., § 531. 
 
 8. Commingled statement of several causes of action — cannot 
 demur if the causes are such as could be joined in the same com- 
 plaint, for then it is not a misjoinder. Bass v. Comstock, 38 IST. 
 Y., 21. Move to compel separate statement and numbering. 
 Wood V. Anthony, 9 How. Pr., 78 ; or, perhaps, to strike out all 
 the allegations not appropriate to a single cause of action. 
 Waller v. Easkan, 12 How. Pr., 28 ; Code Civ. Pro., § 483. 
 
 9. Irrelevant, redundant or scandalous matter — move to strike 
 out. Code Civ. Pro., § 545. Motion must be made before an- 
 swering or demurring. Eule 22 ; Williams v. Folsom, 57 Hun, 
 128. 
 
 10. Argumentativeness — motion to make more definite and 
 certain. Marie v. Garrison, 83 N. Y. 14 ; s. c, p. 383 of this vol. 
 and see below. 
 
Under the Codes. xvii 
 
 III. — Substantial objections. 
 
 1. Ostensible attorney not member of the bar — appear 
 specially and move to set aside all proceedings. Code Civ. Pro., 
 §64. 
 
 2. Action not authorized by plaintifE — same remedy, or, plead 
 want of authority, as a defence. 
 
 3. No leave to sue, when leave is required by rule of court 
 or by statute — move to stay, or to set aside all proceedings. 
 Abb. Brief on PI., p. 249. 
 
 May demur for insufficiency, if a statute makes leave to sue 
 part of the cause of action. Id.; Palmer v. Davis, 28 JST. Y., 242. 
 
 4. Complaint not served with summons — demand copy, and 
 if demand not complied with, move to dismiss. Code Civ. 
 Pro., §§ 479, 480. 
 
 5. Nonconformity of copy served with original — move to 
 strike original from records or to set aside service. Boston Natl. 
 Bank «. Armour, 50 Hun, 176. 
 
 6. Vexatiousness of suit — move to stay proceedings. 
 
 7. Service on the wrong person — if in doubt as to whether 
 he may not be bound to appear, appear specially and move to set 
 aside the service and the proceedings founded thereon.* 
 
 8. Lack of jurisdiction of the subject matter — motion to vacate 
 summons and dismiss the complaint ; demurrer or answer ; or 
 objection at the trial. Robinson v. Oceanic Steam Nav. Co., 112 
 N. Y., 315 ; s. c, p. 356 of this vol. ; Code Civ. Pro., §§ 488, 490. 
 This lack of jurisdiction may depend on residence. Gilbert v. 
 York, 111 N. Y., 544; s. c, p. 347 of this vol.; Wheelock v. 
 Lee, 74 N. Y., 496 ; s. c, p. 352 ot this vol.; Eobinson v. 
 Oceanic Steam Nav. Co., supra. 
 
 9. Lack of jurisdiction of the person, for defect in service — 
 appear specially and move to set aside all the proceedings. 
 Nones v. Hope Mut. Life Ins. Co., 5 How. Pr., 96 ; s. c, p. 401 
 of this vol. 
 
 10. Lack of jurisdiction of the person because absolutely 
 exempt ; e. g., the state, or a foreign ambassador or consul, sued 
 in a state court — appear specially, and move to set aside all pro- 
 ceedings ; or demur or answer ; or take objection at the trial.* 
 
 * It may be that judgment on default would be void for want ot juris- 
 diction. 
 
 I 
 
xviii Course of Pleading 
 
 Compare Code Civ. Pro., § 488, sub. 1.; Davis v. Packard, 7 
 Pet., 278. 
 
 11. Lack of capacity to sue — demur or answer ; objection can- 
 not be iirst taken at the trial. IST. Y. Code Civ. Pro., § 488, sub. 
 3., § 499. Nanz v. Oakley, 122 JST. Y., 631. 
 
 12. Lack of guardian ad litem — stay till appointment, or, 
 move to set aside proceedings for irregularity. Freyberg v. 
 Pelerin, 24 How. Pr., 202. 
 
 13. Misjoinder of plaintiffs — demur or answer ; objection can- 
 not be first taken at the trial. § 488, sub. 4., § 499. 
 
 14. Misjoinder of causes of action (as distinguished from com- 
 mingled statement of joinable causes) - demur. (Motion before or 
 at the trial to compel election is inappropriate where misjoinder 
 is clear, because the Code provides that this objection maybe 
 deemed waived, if not taken by demurrer or answer, § 488, sub. 
 7.) But causes which can be joined may be inconsistent, in which 
 case you may move before trial ; and the court have power to 
 compel election even at the trial. See note in 24 Abb. N. C, 326. 
 
 15. Defect of parties — demur or answer. § 488, sub. 6. If the 
 absentee is an " indispensable " party, objection can also be made 
 at the trial. Bear v. American Eapid Tel. Co., 36 Hun, 400. 
 
 As to motion to bring in adverse claimant see p. 179 and p. 185 
 of this vol., and Code Civ. Pro., § 820. 
 
 16. Former action pending — demur if it appear on the face of 
 the complaint, or answer if it do not. § 488, sub. 4; 26 Abb. 
 ISI. C, 218. 
 
 17. Insufficiency of facts to constitute a cause of action — demur 
 or answer ; or object at the trial before evidence taken. § 488, 
 sub. 8. 
 
 18. Alternative allegations — :if the result is prejudicial un- 
 certainty, move to make more definite and certain ; but an 
 alternative allegation is never stronger than its Aveakest branch. 
 Abb. Br. on PI., p. 40, § 46. 
 
 19. Inconvenient generality — ask and if necessary move for 
 Bill of Particulars. (See above 11. , 6.) 
 
 20. Lack of copy of account mentioned in complaint — demand 
 copy. § 581. If not served in compliance with demand, move 
 that he be precluded from giving evidence of the account. Geb- 
 hard v. Parker, 120 N. Y., 33 ; s. c, p. 579 of this vol. 
 
Undek the Codes. xix 
 
 21. Lack of document alleged as part of plaintiff's case — Bill 
 of Particulars, § 531 ; or petition for Discovery and Inspection, 
 § 803 ; Holmes ». Cornell, 7 Weekly Dig., 375. 
 
 22. Tndefiniteness and Uncertainty ; if not amounting to sub- 
 stantial insufficiency to constitute a cause of action (in which case 
 demurrer lies) —move to make more definite and certain. (See 
 above II., 5.) 
 
 23. Legal conclusion, ^vithout facts to bear it out — demur, or 
 move to make more definite and certain, or object at the trial. 
 Abb. Br. on PI. , §§ 40, 535, 563. Taking issue specially on the 
 allegation usually precludes objection at the trial. Id.; "Wein- 
 hauer v. Morrison, 49 Hun. 498'. 
 
 24. Inconsistent allegations in the same cause of action — 
 motion to make more definite and certain. If fatal to the truth 
 of a material allegation demurrer lies. 
 
 25. Inconsistent allegations in separate causes of action — motion 
 to make more definite and certain ; or to compel election ; or, if 
 they cannot be joined, demur for misjoinder. 
 
 26. Cause of action, statute barred — if by statute of limitations, 
 by answer. _ §413. 
 
 Staleness of demand in an action of an equitable nature — that 
 the objection should also be taken by answer and not by de- 
 murrer, see Zebley v. Farmers' Loan & Trust Co., 139 N. Y., 
 461. 
 
 27. Lack of verification, when same is required by law ; as in 
 an action against a joint debtor not originally served, § 1938 — 
 remedy, return immediately, with notice, or move to set aside. (A 
 defective verification may be treated as no verificatioii. § 528.) 
 
 28. Letter press copy ; return immediately, with notice. Rule 
 No. 19. 
 
 29. Omission to folio — return immediately, with notice. Id. 
 
 30. Omission to endorse — return immediately, with notice. Id. 
 
 31. Demand for wrong relief — demur for insufficiency, if the 
 facts alleged entitle the plaintiff to no part of the relief 
 demanded. Code Civ. Pro., §1207 ; Edson v. Girvan, 29 Hun, 
 422. But if the relief demanded be merely more or less than the 
 plaintiff is entitled to, a demurrer does not lie, and the defect 
 should be disregarded. Buess v. Koch, 10 Hun, 299. 
 
 Issue cannot be taken by answer to the demand for relief. 
 
XX CouESB OF Pleading 
 
 32. Adequate remedy at law— answer ; see Town of Mentz v. 
 Cook, 108 ]Sr. Y., 504; Ostrander v. Weber, 114 id., 95 ; Watts 
 V. Adler, 130 id., 646. Compare, Dalton v. Vanderveer, 31 Abb. 
 N. C, 430. 
 
 33. Amended complaint served for the purpose of delay — 
 move to strike out. C. C. P., § 542. 
 
 34. Amended complaint served after time allowed therefor — 
 refuse to accept, or return, with notice. Hollister v. Livingston, 9 
 How. Pr., 140. Such objection waived by answering, Duval v. 
 Busch, 21 Abb. N. C, 214. 
 
 CONTKNTS OF DeMUEREE. 
 
 I. Showing identity of cause ; title of court and cause. 
 
 II. Showing who demurs. Joint demurrer is not appropriate 
 for objection by part of the defendants, where the liability is 
 not joint, but several, and where the objection is only good for 
 one. 
 
 III. Pointing to the matter demurred to. 
 
 (Note : Demurrer to a complaint as a whole is bad, if any one 
 cause of action is good. Demurrer to a single cause of action is 
 not appropriate to raise the objection of misjoinder.) 
 
 ly. Specifying the grounds (Code Civ. Pro., §§ 490 and 496). 
 If you only specify something more particularly than the statute, 
 you may be confined to this narrow objection. 
 
 V. Other details : 
 
 Signature, f olioing, indorsing, &c. (verification is not necessary) 
 
 Contents of Answee. 
 
 I. Showing identity of cause (same as in demiirrer). 
 
 II. Showing who answers. 
 
 III. Showing what is answered, whether it is the whole of the 
 complaint; or one or several causes of action. 
 
TJndee the Codes. xxi 
 
 IV. How complaint is answered. 
 
 1. By denial ; which may be, 
 
 1. General; or 
 
 2. Specific ; and each of these may be, 
 (a) Positive denial. 
 
 (5) Denial of knowledge or information sufficient to form 
 
 a belief, 
 (c) Denial on information and belief. 
 See Note on Denials, p. 420 of this vol. 
 
 2. By allegation of new matter, not constituting a counter- 
 claim, i. e., matter of avoidance ; (at common law the alleged 
 grievance was admitted by pleading new matter). 
 
 3. By counter-claim against plaintiff or his cause of action. 
 
 4. By claim against co-defendant ; but it must be matter in- 
 volved in the suit, and the answer must be served on such co- 
 defendant as well, § 521. 
 
 5. By partial defence ; which must, however, under the Code, 
 be characterized as such, § 508. 
 
 V. Verification. An answer must be verified : 
 {a) When it does not involve the merits, § 513. 
 (&) When the complaint is verified, § 523. 
 
 Except the general answer of an infant by his guardian 
 
 ad litem, § 523, and 
 Except the answer in divorce for adulter}', § 1Y56, and 
 Except where the party pleading would be privileged from 
 testifying as a witness concerning an allegation or de- 
 nial contained in the pleading. § 523 
 But this privilege does not apply where the complaint 
 charges fraud, § 529. 
 (c) Where it contains a denial which you wish to prevent be- 
 ing stricken out as sham. Thompson v. Erie Ey. Co., 
 45 K Y., 468 ; s. c, p. 434 of this vol. 
 {d) Where it is desired to put in issue the existence of a cor- 
 poration, §1776. 
 {e) When it is desired to use the answer as an affidavit, §3843, 
 sub. 11. 
 
 VI. Other minor details : same as in complaint and demurrer. 
 
xxii CouESE OF Pleading 
 
 Peinoipal Objections to Answee. 
 
 I. Technical; e. g., omission of signatures, of folioing or 
 sufficient veriiieation ; tardy service, letter-press copy, etc. — 
 remedy, return promptly with notice. 
 
 II. FOEMAL. 
 
 1. Indefiniteness and uncertainty — remedy, motion to correct. 
 (For other kindred objections, see objections to complaint.) 
 
 2. Bad denial — if not a clear admission, move to make more 
 definite and certain ; if a clear admission, move for judgment ; 
 or take objection at the trial. Negative pregnant is now re- 
 garded as ground for motion to make more deiinite and certain ; 
 not for disregarding intended issue when objection is not raised 
 till the trial. 
 
 3. Commingled statement of separate defences — remedy, mo- 
 tion to compel separate statement and numbering. § 507. 
 
 III. Substantial. 
 
 1. Bad denial — if a clear admission of the cause of action, mo- 
 tion for judgment on the pleadings, or take objection at the trial. 
 If an admission of part only of the claim, motion to compel the 
 payment or delivery of the admitted part. (Code Civ. Pro., 
 §§ 515, 717.) 
 
 2. Insufficiency of new matter as a defence — remedy, de- 
 murrer (§ 494) or objection at the trial. But if so extremely in- 
 sufficient as to be frivolous, motion for judgment. § 537. 
 
 3. Partial defence, not pleaded as partial — remedy, demiuTcr. 
 § 508. (But the better opinion is that matter merely mitigating 
 the amount of damages by negativing any of plaintiff's allegations 
 or evidence may be proved under a denial without being ex- 
 pressly pleaded as a partial defence.) 
 
 4. Inconsistency between several defences — not objectionable, 
 unless it prove one to be necessarily false in fact, in which case 
 the remedy is : 
 
 1. Motion to strike out one as sham ; or 
 
 2. Motion for judgment on the pleadings ; or 
 
 3. Motion to compel election ; or 
 
 4. Objection at the trial. 
 
 Mclntire v. Wiegand, 24 Abb. N. C, 312. 
 
Undee the Codes. xxiii 
 
 5. Omission to verify where verification is required — return, 
 with notice. § 528. 
 
 6. Counter-claim not within the jurisdiction of the court over 
 its subject — demurrer. § 495. 
 
 7. Counter-claim on which defendant has not legal capacity to 
 recover — demurrer. Id. 
 
 8. Counter-claim, another action pending thereon — demurrer. 
 Id. 
 
 9. Counter-claim inappropriate, i. e., one that cannot be inter- 
 posed in this action — demurrer. Id. 
 
 10. Counter-claim, facts not insufficient for — demurrer. Id. 
 (Note. — In all of the above cases of counter-claim, reply, if 
 
 the objection does not appear on the face of the counter-claim.) 
 
 11. Frivolousness of answer — if too clear for argument, move 
 for judgment on the answer as frivolous ; if not too clear for 
 argument, demur. § 53Y. 
 
 12. Sham allegation of pretended new matter, or sham imveri- 
 fied denial — move to strike out and for judgment. § 538. 
 
 13. Other minor details, same remedies as in complaint and 
 demurrer. 
 
ALLEN V. PATTEKSON. 
 
 New York Court of Appeals, 185%. 
 [Reported in 7 N. Y., 476.] 
 
 1. Facts, but not evidence, must be pleaded. 
 
 3. A complaint stating in substance that on, etc., at, etc., plaintiffs at de- 
 fendant's request sold and delivered to him goods, for which he then 
 owed, or was then bound to pay, plaiatiffs, the sum of, etc; and further 
 averring there was then due them from defendant the said sum, for 
 which sum plaintiffs demanded judgment — states facts enough to con- 
 stitute a cause of action. 
 
 These facts are implied in a statement that " defendant is indebted 
 to plaintiffs in the sum of, etc., for goods, sold," describing the sale as 
 above, in form as in an old count in assumpsit. 
 
 3. The allegation that the price is "due" may be reasonably intended to 
 mean that it is payable. 
 
 4 "Due" is sometimes used to express the mere statement of indebt- 
 ment, and then is an equivalent to owed or owing ; sometimes to ex- 
 press the fact that the debt has become payable. 
 
 0. Tlie Code rule that allegations "must be liberally construed with a 
 view to substantial justice between the parties," applied. 
 
 An action for the price of goods sold and delivered. 
 
 The allegations of the complaint were as follows : 
 
 " The plaintiffs complain against the defendant for that the 
 defendant is indebted to the plaintiffs in the sum of three 
 hundred and seventy-one dollars and one cent, for goods sold and 
 delivered by the plaintiffs to the defendant at his request, on the 
 first day of May, 1849, at the city of Buffalo, in said county. 
 
 And the plaintiffs say that the items in their account exceed 
 twenty in number. And the plaintiffs say that there is now due 
 them from the defendant the sum of three hundred and seventy- 
 one dollars and one cent, for which sum the plaintiffs demand 
 judgment against the defendant, with interest from the 20th day 
 of October, 1849, besides costs. And the plaintiffs say the fore- 
 going complaint is true." 
 
 \_A hill of items was annexed to the co7nplaint.'\ 
 
 The defendant demurred to the complaint, and assigned for 
 cause of demurrer that it did not state facts sufficient to consti- 
 
2 Abbott's Select Cases on Code Pleading 
 
 Allen V. Patterson, 7 N. Y., 476. 
 
 tute a cause of action, in this : First, There is no allegation in. 
 the complaint of a contract by the defendant; Second, the 
 plaintiffs have alleged no breach of any contract by the defend- 
 ant ; Third, there are no facts stated in the complaint showing 
 that the defendant, at the time of the commencement of said 
 action, was indebted to said plaintiffs ; Fourth, there are no facts 
 stated in the complaint showing anything was due and payable. 
 
 The Supreme Court at Special Term, Marvin, J., overruled 
 the demurrer [citing Tucker v. Eushton, 2 Code Rep., 59], and 
 holding that the insufficiency of the allegation of indebtedness 
 was not fatal because the subsequent statement sufficiently 
 alleged the facts of a sale and delivery ; that plaintiff need prove 
 nothing more, and an allegation of breach was not necessary 
 [approving rule in Glenny v. Hitchins, 4 How. Pr., 99] ; and if 
 defendant relied on payment or unexpired credit, he must show 
 that in defence. 
 
 The General Term affirmed this without further opinion. 
 Hott, J., dissenting, thought the allegations that defendants 
 were "indebted" and that the sum was "now due," being mere 
 conclusions, must be wholly disregarded ; and that reading the 
 complaint without them, there was no allegation that the sale was 
 on a promise to pay at any particular time, or upon request or 
 upon delivery ; nor that they were sold upon credit, nor that they 
 were not paid for on delivery ; nor was there any allegation of 
 default ; and defendant's admission that he had bought goods of 
 plaintift would not sustain an inference that they were never 
 paid for [citing Morse v. Bogart, 4 Den., 108] : " The complaint 
 should sliow that the goods were sold to be paid for upon 
 delivery, request, at a particular time, or upon some contingency, 
 and that the defendant had failed to perform on his part." 
 
 The Court of Appeals affirmed the judgment. 
 
 Jewett, J. The Code requires that a complaint shall contain 
 a plain and concise statement of the facts constituting the cause 
 of action. (§ 142) [Ee-enacted in Code Civ. Pro., § 481.] Every 
 fact which the plaintiff must prove, to enable him to maintain 
 his suit, and which the defendant lias a right to controvert 
 in his answer, must be distinctly averred or stated. This rule of 
 pleading, in an action for a legal remedy, is the same as formerly 
 
I. Cause of Action at Law. (1) Express Contracts, 3 
 
 Allen V. Patterson, 7 N. Y., 476. 
 
 in this, that _/acfe and not the evidence of facts must be pleaded. 7 
 (1 Chitty PI., 215 ; Eead v. Brookman, 3 Term E., 159, per 
 Buller, J.; Eno v. Woodworth, 4 N". Y., 249.) 
 
 The plaintiffs, in their complaint in this action, state that the 
 defendant is indebted to the plaintiffs in the sum of $3T1.01, for 
 goods sold and delivered by the plaintiffs to the defendant, at his 
 request, on the 1st day of May, 1849, at the city of Buffalo, in 
 said county of Erie, and that the items of their account exceed 
 twenty in number, and that there is now due them from the de- 
 fendant the sum of $371.01, for which they demand judgment 
 against the defendant, with interest from the 20th day of 
 October, 1849, besides costs. In substance, stating that on the 
 1st day of May, 1849, at the city of Buffalo, in the county of 
 Erie, the plaintiffs, at the request of the defendant, sold and 
 delivered to him goods, for which he then owed, or was then 
 bound to pay, the jjlaintiffs the sum of $371.01, and that the 
 items of their account of such goods exceeded twenty in number ; 
 and further averring that there was then due them from the de- 
 fendant the sum of $371.01 (that is, that the time when the said 
 money for said goods was promised to be paid, had expired) for 9 
 which sum the plaintiff's demand judgment, etc. The question 
 is, then, are there facts enough stated to constitute a cause of 
 action ? I think that there are. 
 
 The words " that the defendant is indebted to the plaintiffs in 
 the sum of $371.01, for goods sold and delivered by them to him, 
 at his request, on the 1st day of May, 1849," and that there was 
 then due to the plaintiffs, from the defendant, said sam, clearly 
 imply that a contract had been made between the plaintiffs and 
 defendant, by which the former sold and delivered to the latter 
 goods, at his request, for which he promised to pay the plaintiffs 1*^ 
 the sum of $371.01 ; and that the period when the same was 
 promised to be paid had expired. It contains every statement of 
 facts necessary to constitute a good indebitatus count, in debt, 
 according to the mode of pleading before the Code. (2 Chitty 
 PI., ed. 1812, 142; Emery v. Fell, 2 Term E., 28; 1 Chitty PL, 345.) 
 
 The counsel for the defendant insisted, that the statement that 
 there is " due," etc., did not amount to a statement that the debt 
 had become payable ; that it meant no more than the statement 
 
4 Abbott's Select Cases on Code Pleading. 
 
 Allen V. Patterson, 7 N. Y., 476. 
 
 11 that the defendant is "indebted," etc., and that if the word 
 " due " had two significations, the pleader could not select be- 
 tween them, and impute to it the one which suits his purpose 
 best ; for the maxim was, that everything should be taken most 
 strongly against the pleader, or, if the meaning of the words be 
 equivocal, and two meanings present themselves, that construction 
 shall be adopted which is most unfavorable to the party pleading. 
 In the case of the United States v. The State Bank of Korth 
 Carolina (6 Pet., 29), Judge Story said, that the term "due" 
 was sometimes used to express the mere state of indebtment, 
 and theu it was an equivalent to owed or owing, and it was 
 sometimes used to express the fact that the debt had become 
 payable. In the latter sense, I think, that the word " due " was 
 used by the pleader in the complaint in this suit, and in that 
 sense it may be deemed to have been used. In 1 Chitty PL, 241, 
 it is said that it it is a maxim in pleading, that everything shall 
 be taken most strongly against the party pleading, or rather that 
 if the meaning of the words be equivocal, they shall be construed 
 most strongly against the party pleading them; for it is to be 
 
 13 intended, that every person states his case as favorably to himself 
 as possible ; but that the maxim itself must be received with 
 some qualification, for the language of the pleading is to have 
 a reasonable intendment and construction ; and when a matter is 
 capable of different meanings, that shall be taken which will 
 support the declaration, etc., and not the other which will defeat 
 it. (Wyat V. Aland, 1 Salk., 325.) 
 
 The Code (§ 159) declares, that in the construction of a plead- 
 ing, for the purpose of determining its efi^ect, its allegations shall 
 be liberally construed with a view to substantial justice between 
 the parties ; and § 140 provides, that the rules by which the 
 sufiiciency of the pleadings is to be determined are modified as 
 prescribed by that act. I think, then, that we are not only au- 
 thorized, but required, to consider that the term " due " was used 
 in the complaint to express the fact that the money sought to be 
 recovered had become payable, or the time when it was prom- 
 ised to be paid had elapsed. The judgment should be afiirmed 
 with costs. 
 
 Judgment afiirmed. 
 
I. Causes of Action at Law. (1) Express Contracts. 5 
 Secor V. Sturgis, 16 N. Y., 548. 
 
 SECOK V. STUEGIS. 
 
 New York Court of Appeals, 1858. 
 
 [Reported in 16 N. Y., 548 ; aff'g- 2 Abb. Pr., 69.] 
 
 1. It seems that an entire claim, arising either upon contract or tort, can- 
 not be divided and made the subject of several suits ; and if several 
 suits be brought for different parts of such a claim, the pendency of 
 the first may be pleaded in abatement of the others, and a judgment 
 on the merits in either will be available as a bar in the other suits. 
 
 3. But several suits may be maintained upon several causes of action ; it 
 makes no difference that such causes of action might be united in a 
 single suit. 
 
 3. The true distinction between a single and entire demand or right of 
 
 action, and those which are several and distinct, is, that the items of 
 the former immediately arise out of one and tlie same act or contract, 
 and the latter out of different acts or contracts. 
 
 4. Where items of an account arise at different times, there must be 
 
 either an express contract or the circumstances must be such as to 
 raise an implied contract, embracing all the items, to make them a 
 single or entire demand or cause of action, within the rule against 
 splitting a cause of action. 
 
 5. In the case of a running account it may usually be fairly implied that 
 
 it was kept in pursuance of an agreement that an account might be 
 opened and continued. 
 
 Plaintiffs sued as co-partners on a bond given to procure the 
 discharge of defendant's vessel from an attachment alleging a 
 sum due for materials furnished. 
 
 The plaintiffs were engaged in two different kinds of business, 
 one as ship-chandlers, furnishing stores to ships ; the other as 
 ship-carpenters, repairing ships. They did the one business on 
 one floor of their store, the other on another floor, and kept 
 separate accounts of each business, and in this case rendered to 
 the captain who ordered the stores and the repairs, one bill for 
 the stores and another for the repairs ; the bill for the stores 
 being $521.16, that for the repairs $139.32. 
 
 The stores were ordered from one clerk of the plaintiffs, and 
 the repairs from another. The plaintiffs first attached the vessel 
 under our State law for the stores, and afterwards libelled her in 
 the United States Court for the repairs. Two of the defendants 
 gave bonds so as to discharge the vessel from the libel, and 
 admitted the liability for the repairs in the action in the United 
 
6 Abbott's Select Cases on Code Pleading. 
 
 Secoi- V. Sturgis, 16 N. Y., 548. 
 
 States Court, and allowed judgment for the price of them ; and, 
 after that, being sued in this action on the bond given by them 
 to discharge the vessel from the domestic attachment for the 
 stores, they pleaded the recovery in the United States Court as 
 a bar to this action; insisting that the two bills constituted but 
 one cause of action, and that the plaintiffs had split up that 
 cause, and by doing so had lost all that they did not recover in 
 the United States Court. The attachment for the stores was on 
 the 20th December, 18i9, the libel for repairs on the 29th of 
 that month. The defendants on the 28th of that month, got 
 the domestic attachment discharged, and on the same day exe- 
 cuted their bond, conditioned to pay the amount of all such- 
 claims and demands as had been exhibited, and which should be 
 established to have been subsisting liens on the vessel. 
 
 At Circuit plaintiffs had a verdict. 
 
 The General Term of the Supreme Court affirmed the judg- 
 ment, on grounds similar to those presented in the opinion of the 
 Court of Appeals, which see below. 
 
 The Court of Ajypeals affirmed the judgment. 
 
 Strong, J. It is not controverted that the account, the amount 
 of which is sought to be recovered in this action, was due to the 
 plaintiffs, and a lien on the vessel, at the time of the application 
 for the attachment, and also at the time of the execution of the 
 bond on which this action is founded ; but it is insisted that 
 the said account, and the account for which judgment was 
 recovered in the District Court of the United States, together, 
 constituted a single cause of action, and that the judgment for 
 part of it is a bar to a recovery in this action for the residue. 
 The answer does not, in express terms, allege that the cause of 
 action in the suit in the District Court was the same as that in 
 the present suit, but it was treated in the reply as containing sub- 
 stantially that allegation, and must therefore be so regarded by 
 the court. It was essential, in order to present the question 
 raised, that the identity of the cause of action in the different 
 suits should, in some form, be averred in the answer (3 Chit. PI., 
 928, 9 ; Philips v. Berick, 16 Johns., 136, 137, 140). 
 
I. Causes of Action at Law. (1) Express Contracts. Y 
 Secor V. Sturgis, 16 N. Y., 548. 
 
 The principle is settled beyond dispute that a judgment 7 
 concludes the rights of the parties in respect to the cause of 
 action stated in the pleadings on which it is rendered, whether 
 the suit embraces the whole or only part of the demand con- 
 stituting the cause of action. It results from this principle, and 
 the rule is fully established, that an entire claim, arising either 
 upon a contract or from a wrong, cannot be divided and made the 
 subject of several suits; and if several suits be brought for 
 different parts of such a claim, the pendency of the first may be 
 pleaded in abatement of the others, and a judgment upon the 
 merits in either will be available as a bar in the other suits. 
 (Farrington v. Payne, 15 Johns., 431, 432 ; Smith v. Jones, id., 
 229; Philips v. Berick, 16 id., 136, 137; Miller v. Covert, 
 1 "Wend., 487 ; Guernsey v. Carver, 8 id., 557 ; Stevens v. Lock- 
 wood, 13 id., 644 ; Colvin v. Corwin, 15 id., 557 ; Bendernagle 
 V. Cocks, 19 id., 207, and cases there cited). But it is entire 
 claims only which cannot be divided within this rule, those 
 which are single and indivisible in their nature. The cause 
 of action in the different suits must be the same. The 
 rule does not prevent, nor is there any principle which pre- 9 
 eludes, the prosecution of several actions upon several causes of 
 action. The holder of several promissory notes may maintain 
 an action on each ; a party upon whose person or property suc- 
 cessive distinct trespasses have been committed may bring a 
 separate suit for every trespass ; and all demands, of whatever 
 nature, arising out of separate and distinct transactions, may be 
 sued upon separately. It makes no difference that the causes 
 of action might be united in a single suit ; the right of the party 
 in whose favor they exist to separate suits is not affected by that 
 circumstance, except that in proper cases, for the prevention of 
 vexation and oppression, the court will enforce a consolidation 
 of the actions. 
 
 It is not, as will be seen by the cases, always easy to determine 
 whether separate items of claim constitute a single or separate 
 cause of action, and this difficulty, connected with neglect, in 
 some instances, of proper attention to the principle of the rule 
 under consideration, has led to some loose expressions and con- 
 fusion in the books on this subject. Farrington v. Payne, was 
 
8 Abbott's Select Cases on Code Pleading. 
 
 Secor V. Sturgis, 16 N. Y., 548. 
 
 11 a plain case of an indivisible cause of action. A bed and bed 
 quilts were taken at the same time and by the same act, and a 
 recovery in trover for the quilts was held to be a bar to a 
 recovery in trover for the bed. In Smith v. Jones, actions were 
 brought for goods sold and delivered, the plaintiff, in one, claim- 
 ing to recover for one barrel of potatoes, and in the other for 
 two barrels of the same article, all sold at the same time. The 
 court held that the demand could not be divided into separate 
 suits. This was also a plain case of one cause of action. Miller 
 V. Covert, in which the same rule was applied, was a case of a 
 sale of hay, under a contract, delivered in parcels. The demand 
 was held to be entire and indivisible. 
 
 In Gruernsey v. Carver, the plaintiff declared on a book 
 account consisting of items of merchandise delivered between 
 the 20th of July and the 27th of August, 1828, amounting to 
 $2.35. The defendant pleaded a former suit for the same 
 identical cause and causes of action. It was proved in the 
 Common Pleas that the plaintiff had an account against the 
 defendant, consisting of twenty different articles of merchandise, 
 
 13 delivered on fourteen different days between the 4th of June 
 and the 27th of August, 1828, amounting to between $5 and $6 ; 
 that he commenced a suit against the defendant, and exhibited 
 an account of items delivered between the 1st of June and the 
 19th of July, 1828, amounting to $2.74, that the defendant 
 pleaded a tender in such suit, and obtained judgment for costs. 
 The plaintiff then sued for the balance of such account, viz.: for 
 items delivered between the 20th of July and the 27th of 
 August. The Common Pleas decided that on a running account, 
 where no special contract was made at the commencement of 
 the account, and where items have been delivered on such 
 account at different times, without any intermediate agreement, 
 each separate delivery formed a separate and distinct cause of 
 action, and that separate suits might be maintained on each 
 separate delivery; and the plaintiff recovered judgment. On 
 appeal to the Supreme Court the judgment was reversed. The 
 court, by Nelson, J., after stating that it was settled in that 
 court that if a plaintiff bring an action for part only of an entire 
 and indivisible demand, the judgment in that action is a con- 
 
I. Causes of Action at Law. (1) Express Contracts. 9 
 
 Secoi- V. Stui-gis, 16 N. Y., 548. 
 
 elusive bar to a subsequent suit for another part of the same 15 
 demand, says : " This case comes within the reason and spirit 
 of that principle. The whole account being due when the first 
 suit was brought, it should be viewed in the light of an entire 
 demand, incapable of division, for the purpose of prosecu- 
 tion. The law abhors a multiplicity of suits. According to the 
 doctrine of the court beloM', a suit might be sustained, after 
 the whole became due, on each separate item delivered, and if 
 any division of the account is allowable it must, no doubt, be 
 ■carried to that extent. Such a doctrine would encourage intol- 
 erable oppession upon debtors, and be a just reproach upon the 
 law. The only just and safe rule is to compel the plaintiif, 
 on an account like the present, to include the whole of it due in 
 a single suit. The reasoning of the learned justice would make 
 every account consisting of different items, the whole of which 
 is due, an entire demand incapable of division for the purpose 
 of prosecution irrespective of every other consideration. It 
 excludes tiie idea that it is necessary the claims should have 
 arisen out of a single transaction, or be connected together by 
 contract. This, in my opinion, is carrying the doctrine in ques- 17 
 tion far beyond its just limits. Stevens v. Lockwood was a case 
 ■similar to the last, and decided upon similar views. These cases 
 may have been rightly decided, but I cannot assent to all the 
 reasons given for the decisions. 
 
 In Colvin v. Corwin, two suits were brought for lottery tickets 
 sold the defendant. On the trial of the first the defendant 
 admitted he had bought the tickets alleged to have been sold to 
 him, and judgment was rendered for the plaintiif. The judg- 
 ment was set up as a bar in the second suit, and on the trial it 
 appeared that the tickets claimed in the suits were delivered to 
 the defendant by two different agents of the plaintiff, at different 
 offices occupied by them, at different times, and it was held by 
 the Supreme Court that the previous judgment was a bar to 
 recovery. It is manifest that this decision rests on no sound 
 principle, and is not law. A plainer case of distinct independent 
 causes of action could hardly be presented. 
 
 Bendernagle v. Cocks was an action for breaches of certain 
 covenants contained in an indenture of lease. A plea in abate- 
 
10 Abbott's Select Cases on Code Pleading. 
 
 Secor V. Stm-gis, 16 N. Y., 548. 
 
 ] 9 ment was interposed of an action pending upon the same lease 
 for the alleged breach by the defendant of covenants therein. 
 It is stated in the reporter's note that all the causes of action had 
 accrued at the time of the bringing of the first action. The 
 plaintiff replied that the covenants, for the breach of which the 
 first suit was brought, were other, distinct and different from- 
 the covenants for the breach of which the second suit was 
 brought. The defendant demurred, and the Common Pleas 
 overruled the demurrer, but the Supreme Court reversed the 
 judgment. Cowen, J., who delivered the opinion of the court, 
 reviews and comments upon many of the cases, after which he 
 makes the following observations : " I admit that the rule does 
 not extend to several and distinct trespasses or other wrongs, nor 
 as we have seen, to distinct contracts. It goes against several 
 actions for the same wrong, and against several actions on the 
 same contract. All damages accruing from a single wrong, 
 though at different times, make but one cause of action, and all 
 debts or demands already due by the same contract make one 
 entire cause of action. Each comes under the familiar rule that 
 
 31 if a party will sue and recover for a portion, he shall be barred 
 of the residue. Proof of that fact would sustain the common 
 issue presented in Bagot v. Williams, that the plaintiff had before 
 impleaded the defendant, and recovered for the same identical 
 cause of action," etc. 
 
 The true distinction between demands or rights of action 
 which are single and entire, and those which are several and dis- 
 tinct is, that the former immediately arise out of one and the 
 same act or contract, and the latter out of different acts or con- 
 tracts. Perhaps as simple and safe a test as the subject admits 
 of, by which to determine whether a case belongs to one class or 
 the other, is by inquiring whether it rests upon one or several 
 acts or agreements. In the case of torts, each trespass, or con- 
 version, or fraud, gives a right of action, and but a single one, 
 however numerous the items of wrong or damage may be ; in 
 respect to contracts, express or iniplied, each contract affords one 
 and only one cause of action. The case of a contract containing 
 several stipulations to be performed at different times is no excep- 
 tion ; although an action may be maintained upon each stipula- 
 
I. Causes of Action at Law. (1) Express Contracts. 11 
 
 Secor V. Stui-gis, 16 N. Y., 548. 
 
 tion as it is broken, before the time for the performance of the 23 
 others, the ground of action is the stipulation which is in the 
 nature of a several contract. "Where there is an account for 
 goods sold, or labor performed, where money has been lent to 
 or paid for the use of a party at different times, or several items 
 of claim spring in any way from contract, whether one only or 
 separate rights of action exist, will, in each case, depend upon 
 whether the ease is covered by one or by separate contracts. 
 The several items may have their origin in one contract, as on 
 an agreement to sell and deliver goods, or perform work, or 
 advance money ; and usually, in the case of a running account, 
 it may be fairly implied that it is in pursuance of an agreement 
 that an account may be opened and continued, either for a defi- 
 nite period or at the pleasure of one or both of the parties. But 
 there must be either an express contract, or the circumstances 
 must be such as to raise an implied contract, embracing all the 
 items, to make them, where they arise at different times, a single 
 or entire demand or cause of action. 
 
 Applying this test to the present case, it is very clear that the 
 two accounts did not constitute an entire claim, but, on the con- 25 
 trary, that they were several and formed two several causes of 
 action. The business of tl^e plaintiffs consisted of two branches, 
 which were designed to be and were kept entirely distinct, in 
 each of which one of the accounts was made, and an arrangement ■ 
 was entered into under which one of the accounts arose anterior 
 to the opening of the other account. Here was no express con- 
 tract con-necting the two accounts ; and the facts, instead of war- 
 ranting the presumption of such a contract, show that separate 
 agreements only, one in regard to each account, were intended. 
 
 \_A ruling on another point is omitted.'] 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
12 Abbott's Select Cases on Code Pleading. 
 
 Sharp V. Hutchinson, 100 N. Y., 533. 
 
 SHAKP V. HUTCHmSON. 
 
 JVew York Court of Appeals, 1885. 
 
 [Reported in 100 N. Y., 533 ; aflf'g 49 Super. Ct, 50.] 
 
 1. In an action ag-aiust one who has become liable as a general partner by 
 
 reason of a failure to comply with the statute of limited partnerships, 
 it is sufficient for the complaint to allege the defendants to have been 
 partners without mentioning their attempt to form a limited partner- 
 ship. 
 
 2. The cause of action against him is not based upon the statute, but 
 
 upon his common law liability as a general partner. 
 
 1 Action for the price of goods sold. 
 The complaiat was as follows : 
 
 Superior Court of the City of New York. 
 
 ■ '- \ 
 
 James L. Sharp, Plaintiff, 
 
 against 
 
 Andrew H. Hogg, Alexander 
 ^ H. Patterson and David J. 
 Hutchinson. 
 
 Plaintiff, by Robertsons, Harmon and Cuppia, his attorneys 
 herein, complains of the defendants above named and alleges : 
 
 I. That at the times hereinafter mentioned, the defendants 
 were copartners in trade, carrying on business in the city of 
 New York, under the firm name and style of Hogg & Patterson. 
 
 II. That as such copartners, the defendants, at the city of 
 New York, between the 7th day of December, 1880, and the 9th 
 day of March, 1881, purchased and received of plaintiff cer- 
 tain goods, wares and merchandise, consisting of gas stoves and 
 gas heating burners, at the agreed price, and of the just and 
 reasonable value of $97.25, which said sum defendants promised 
 and agreed to pay to plaintiff therefor. 
 
 III. That no part of said sum has been paid except the sum 
 of $2.5.00, which defendants paid generally, on account thereof, 
 on the 6th day of May, 1881. 
 
I. Causes of Action at Law. (1) Express Contracts. 13 
 
 Sharp V. Hutchinson, 100 N. Y., 533. 
 
 Wherefore, plaiatiff demands judgment against the defendants 
 for the sum of seventj-two dollars and twenty-five cents, with 
 interest thereon from the 9th day of March, 1881, besides costs. 
 Robertsons, Harmon & Cuppia, 
 
 Pltffs. Att'ys. 
 
 The answer (omitting title) was as follows : 
 
 The defendant, David J. Hutchinson, separately answers the 
 complaint in this action by George H. Forster, his attorney 
 herein, upon information and belief, as follows : 
 
 First. He denies each and every allegation contained in said 
 complaint, except such as are hereinafter expressly admitted to 
 be true. 
 
 Second. He alleges that heretofore a limited partnership was 
 formed pursuant to the laws of the State of New York, under 
 the firm name of Hogg & Patterson, in which the general 
 partners were Andrew H. Hogg and Alexander H. Patterson, 
 and that said partnership was to commence on the 29th day of 
 April, 1880, and to terminate on the 29th day of April, 1883, 
 and that this defendant was a special partner therein, and was 
 not otherwise interested in or related to said partnership or its 
 business, and that said limited partnership continued at the 
 several times mentioned in the complaint. 
 
 Wheeefoee, he demands judgment, that the complaint as to 
 him be dismissed, with costs. 
 
 Geo. H. Foestee, 
 Att'y for Deft Hutchinson. 
 
 At the trial the plaintiff proved the sale of the goods to the 
 firm. He also gave in evidence the papers by which, in the 
 organization of the firm, it had been attempted to create a special 
 or limited partnership under the statute; (1 E. S., 765 [8th ed., 
 2493, vol. 4], sec. 8); and offered testimony to show that no 
 actual cash payment of capital had been made by the proposed 
 special partner, as required by the statute in order to constitute 
 a limited partnership. 
 
 The evidence was excluded on the ground that the pleadings 
 laid no foundation for it. 
 
14 Abbott's Select Cases on Code Pleading. 
 
 Sharp V. Hutchinson, 100 N. Y., 533. 
 
 8 T/)e Superior Court at Oeneral Term held that, as the answer 
 set up a limited partnership, it was error so to hold ; and re- 
 versed the judgment dismissing the complaint. 
 
 Sedgwick, Ch. J., delivering the opinion of the court, said, in 
 part : 
 
 " If in this action the defendant had not in the answer set up 
 the existence of the limited partnership, it might have, perhaps, 
 been necessary to determine whether an allegation of general 
 partnership is supported by proof that the certificate or affidavit 
 filed under the statute to form a limited partnership was false. 
 
 " One question w6uld be, does negativing the assertions of the 
 certificate or affidavit tend to show that such facts as are essential 
 to copartnership had an existence ? Or does it tend only to show 
 the liability as a partner under the statute % 
 
 " Another question would be, if it tend to show only the latter 
 must not the special facts, which under the statute create the 
 liability, be pleaded ? But when the defendant, to a complaint 
 of general partnership, avers the making of the limited partner- 
 ship, the ground of the exclusion of the questions on the trial in 
 10 this case cannot, in my judgment, be sustained. The ground 
 was that to show the falsity of the certificate or affidavit was not 
 I'elevant to any issue in the case, as the complaint did not state a 
 cause of action based upon the falsity. There was, however, an 
 issue arising from the answer to which the questions were rele- 
 vant, and which required their admission, unless they had been 
 excluded on an objection which was not taken, and which per- 
 haps would not be held to be sound, that is, that the testimony 
 should not be called for until the defendant had given his case. 
 
 " Section 522 of the Code of Civil Procedure declares that 
 allegation of new matter in an answer is to be deemed contro- 
 verted by the adverse party." * * * 
 
 Feeedman, J., concurred. 
 
 The Court of Appeals affii-med the judgment of the General 
 Term. 
 
 Eael, J. In April, ISSO, the defendants attempted to form a 
 limited copartnership for the purpose of carrying on business in 
 the city of New York, under the firm name of Hogg & Patter- 
 
I. Causes of Action at Law. (1) Express Contracts. 15 
 
 Sharp V. Hutchinson, 100 N. Y., 533. 
 
 son, the defendant Hutchinson being the special partner. There- 12 
 after the plaintiff sold the firm certain goods, and this action was 
 brought against all the members of the firm to recover the price 
 of such goods. The defendant Hutchinson alone defended, set- 
 ting up as his answer the formation of the limited copartnership, 
 and claiming exemption from liability under the statute as a 
 special partner. 
 
 The plaintiff in his complaint alleged a cause of action against 
 the defendants as copartners, making no mention of the attempt 
 to form a limited copartnership ; and upon the trial he proved 
 the sale of the goods to the firm, and then introduced in evi- 
 dence the certificate and papers filed for the formation of the 
 limited copartnership, from which it appeared that Hutchinson 
 contributed to the capital of the firm $10,000; and then he 
 offered to prove that he in fact contributed only $8,000. Upon 
 the objection of Hutchinson's counsel this proof was rejected on 
 the sole ground that it was not within the -issue. The view of 
 the trial judge was that the complaint, instead of treating Hutch- 
 inson as a mere general partner, should have been based upon 
 the statute alleging the special defects in the formation of the 14 
 limited copartnership. 
 
 In this there was error. If the proof had been received it 
 would have shown that Hutchinson never in fact became a special 
 partner, but that he was from the beginning -a general partner, 
 and liable as such. (2 E. S., chap. -4. tit. ], § 8.) The cause of 
 action against him was not based upon the statute, but upon his 
 common law liability, as a general partner, and hence it was 
 proper, in setting forth in the complaint the facts constituting 
 plaintiff's cause of action, to charge him as a general partner, and 
 then upon the trial to show that he was such by any competent 
 proof. 
 
 The General Term was, therefore, right in reversing the 
 judgment of the Special Term, and its order should be affirmed, 
 and judgment absolute ordered for the plaintiff with costs. 
 
 All the judges concurred. 
 
 Order affirmed, and judgment accordingly. 
 
16 Abbott's Select Cases on Code Pleading. 
 
 Albany & Rensselaer Co. v. Lundberg-, 121 U. S., 451. 
 
 ALBANY & EENSSELAER CO. v. LUNDBERG. 
 
 United States Supreme Court, 1887. 
 
 [Reported in 131 U. S., 451 ; rev'g 33 Fed. Rep., 501.] 
 
 1. Under N. Y. Code Civ. Pro., §449 — allowing a trustee of an express 
 trust to sue in his own name — one who made a contract in his own 
 name, but described himself therein as agent of a third person, may 
 sue thereon in his own name ; and this rule is applicable to a suit in 
 a court of the United States within such state. 
 
 3. If the agreement is interpreted as having been made by the signer per- 
 sonally, then the price is payable to him personally ; if as having been 
 made as agent for another, then the price is payable to him as trustee 
 of an express trust. 
 
 1 Action by seller against buyer for refusing to accept and pay, 
 etc. 
 
 The allegations of the complaint were : 
 I. For a first cause of action. 
 
 1. The plaintiff is not a citizen of the United States, but is an 
 alien and subject of the kingdom of Sweden and Norway, and 
 resides in Boston in the State of Massachusetts. 
 
 2. The defendant is a corporation duly created and existing 
 under the laws of the State of New York, and is a citizen 
 
 - thereof and of the United States, and has an oiliee for the 
 transaction of business in the southern district aforesaid, to wit, 
 in the city of New York. 
 
 3. On the 10th day of February, 18S0, the plaintiff, by an 
 instrument in writing, duly signed by him and by the defend- 
 ant, agreed to sell to the defendant, and the d'efendant agreed 
 to purchase from the plaintiff, certain goods, wares and mer- 
 chandise described in said contract, which, at the prices then and 
 there agreed upon by and between the parties, amounted, in the 
 
 3 aggregate, to the sum of twenty-three thousand nine hundred 
 and twenty-two 3i-100 dollars (S:^3,922.3i), and which amount 
 the defendant then and there agreed to pay, according to the 
 terms of said contract, all of which will, by reference to the said 
 agreement, a copy of which, marked "A," is hereto annexed 
 and made part of this complaint, more fully and at large 
 appear. 
 
I. Causes of Action at Lair. (1) Express Contracts. 17 
 Albany & Rensselaer Co. v. Lundberg-, 131 U. S., 451. 
 
 4. Thereafter and on the 9th day of June, 1880, the plaintiff 
 delivered to the defendant, in fulfillment of the contract afore- 
 said, marked " A," four hundred and ninety-eight tons seven 
 hundred weight two quarters and sixteen pounds of Swedish 
 charcoal gray pig iron, of the brand N B G P H, on the wharf in 
 the city of New York, duty paid. The said iron had been 
 shipped from Sweden in May, 1880, which was as early a time 
 of shipment as the plaintiff was able to ship that amount and 
 .quality and brand of iron. The defendant received the same 
 without objection, on the ground that the amount thereof was 
 slightly less than the amount of five hundred tons mentioned in 
 said contract, and caused the same to be transported to Troy, in 
 New York, and examined the same there, and then and there 
 refused to accept or pay for the same, on the ground that the 
 same was not of the quality and description called for by said 
 contract. Upon the said delivery of said goods plaintiff duly 
 rendered his bill for the same and demanded that the defendant 
 should pay for the same thirty days after the delivery aforesaid, 
 which bill the defendant refused to pay. The interest on the 
 amount of said contract paid from July 9, 1880, to August 24, 
 1881, amounts to the sum of one thousand six hundred and 
 fourteen 79-100 dollars ($1,61-4.79). 
 
 5. The plaintiff, upon such refusal, duly notified the defend- 
 ant that he would proceed to sell the said iron on account of the 
 defendant, and would hold the defendant responsible for any 
 loss arising upon the said resale. After the said refusal and 
 notice, and at various times during the year 1881 and down to 
 and including August 24, 1881, the plaintiff, in good faith and 
 with due diligence, sold the said goods for the account of the 
 defendant for the best price that could then and there be 
 obtained — to wit, the sum of sixteen thousand live hundred and 
 eighty-one 71-100 dollars ($16,581.71), amounting, together with 
 interest on sales from dates thereof to August 24, 1881, to the 
 sum of sixteen thousand six hundred and seven 58-100 [dollars] 
 ($16,607.58), leaving a balance due to the plaintiff from the 
 defendant of eight thousand nine hundred and thirty 15-100 
 dollars ($8,930.15), no part of which has been paid to the 
 plaintiff. 
 
18 Abbott's Select Cases on Code Pleading. 
 
 Albany & Rensselaer Co. v. Lundberg, 131 U. S., 451. 
 
 8 6. The plaintiff paid, laid out and expended for the defendant 
 on such resale ae and for the necessary and reasonable exjjenses 
 upon the same, the sum of one thousand eight hundred and 
 seventy-four 9-100 dollars ($1,874.09), as will more fully appear 
 from the account thereof, annexed hereto and marked " C," by 
 reason whereof the defendant became justly indebted unto the 
 plaintiff in said sum in addition to the balance aforesaid, amount- 
 ing together to the sum of ten thousand eight hundred and four 
 24-100 dollars ($10,804.24), no part of which has been paid to the 
 plaintiff. 
 
 ■ II. [^Fbr a second cause of action the complaint stated another 
 contract which differed only in being for the sale and purchase 
 jof " 300 tons of brands sbve and nbbbk."] 
 
 III. For a third cause of action. 
 
 The plaintiff, to avoid unnecessary repetition, refers to and 
 Testates the allegations of the first and second causes of action 
 hereinbefore alleged, and makes them part of his statement of 
 the third cause of action. 
 10 After the plaintiff had demanded and been refused payment 
 for the iron delivered to the defendant, as in the statement of 
 said first and second causes of action is averred, and after the 
 plaintiff had given notice to the defendant that he would 
 proceed to sell the same for the account of the defendant, the 
 defendant refused to give up the said iron, except on the pay- 
 ment by the plaintiff of six hundred and twenty-two 67-100 
 dollars ($622.67), the amount of the freight from JSTew York to 
 Troy, paid by the defendant, and which amount defendant 
 demanded from plaintiff, although by the terms of the contract 
 defendant was bound to pay said freight. Plaintiff thereupon, 
 in order to obtain the said iron and make delivery thereof to 
 the several purchasers upon such resale, was compelled to, and 
 did on or about the 6th day of August, 18S1, pay tp the 
 defendant the amount so demanded, which amount still remains 
 due and owing from said defendant to said plaintiff ; but the 
 defendant, although thereto requested, has not paid the same, 
 nor any part thereof. 
 
I. Causes of Action at Law. (1) Express Contracts. 19 
 Albany & Rensselaer Co. v. Lundberg', 121 U. S., 451. 
 
 IV. [For a fourth cause of action, the complaint alleged 12 
 worJc, labor, and services performed in and about the sale.] 
 
 "A. 
 " Copy of Contract. 
 
 [JV. M. Hogluiid's Sons (& Co.,Stoolcholm; Gustaf Lundherg, 
 successor to JV^ils Mitamier .•] 
 
 [38 Kilby street, Boston, February 10, 1880.J 
 
 \_]^ote. The foregoing three lines in brackets and the words 
 helow enclosed in bracJcets, did not appear in the exhibit annexed 
 to the complaint; but did appear in the contract given in IS 
 evidence. ] 
 
 " I, Gustaf Lundberg, agent for jST. M. Hoglund's Sons & Co., 
 of Stockholm, agree to sell, and we, Albany and Rensselaer Iron 
 & Steel Co., Troy, N. Y., agree to buy the following Swedish 
 charcoal grey pig iron, viz : 500 tons of brand nbgph, at a price 
 [of] forty-eight ($48) dollars, American gold, per ton of 2,240 
 lbs., delivered on wharf [at] New York, duty paid : [said iron 
 to be in accordance with an analysis furnished in Gustaf 
 Lundberg' s letter of 6th February]. Payment in gold in 
 Boston [or] New York funds within 30 days from date of ship's 
 entry at custom house. Shipment from Sweden [during the 
 season], say May next, or sooner, if possible. The above 
 quantity hereby contracted for to be subject to such reduction as 
 may be necessitated by natural obstacles and unavoidable 
 accidents. The seller not accountable for accidents or delays at 
 sea. Signed in duplicate. 
 
 " Accepted : Gustaf Lundberg. 
 
 " Accepted : Albany & Rensselaer Iron & Steel 
 
 Co." 15 
 
 Selden E. Marvin, Treasurer. " 
 
 /;;, the United States Circuit Court for the Southern District 
 of New York, it appeared on the trial that defendant, in 
 consequence of an analysis refused to accept and pay for the 
 iron, and returned it to the plaintiff, who afterwards sold it for 
 less than the contract price, and brought this action to recover 
 the difference. 
 
 The jury returned a verdict for the plaintiff on the first,, 
 second and third causes of action, but not on the fourth. 
 
20 Abbott's Select Cases on Code Pleading. 
 
 Albany & Rensselaei' Co. v. Lundberg, 121 U. S., 451. 
 
 16 Judgment was rendered for upwards of $15,000. 
 
 The defendant sued out this writ of error. 
 
 The Supreme Court of the United States (while reversing 
 the judgment and directing a new trial for error in receiving 
 evidence), sustained the complaint. 
 
 Gray, J. [after recapitulating the facts] : The first question 
 presented by the bill of exceptions, is, whether this action can be 
 maintained in the name of Lundberg, or should have been brought 
 in the name of his principals, N. M. Hoglund's Sons & Co. 
 
 The paper upon which each of the contracts in suit is 
 written has at its head, besides the name of that firm, the name 
 of " Gustaf Lundberg, successor to Nils Mitander, " followed by 
 the street and number of his ofiice in Boston. Tlie contract 
 itself begins with a promise by him in the first person singular, 
 "I, Gustaf Lundberg, agent for IST. M. Hoglund's Sons & Co. 
 of Stockholm, agree to sell ; " the description added to his 
 name in this clause is the only mention of or reference to that 
 firm in the contract ; his promise is not expressed to be made by 
 them as their agent, or in their behalf; and the agreement is 
 18 signed by him with his own name merely. 
 
 There are strong authorities for holding that a contract in 
 such form as this is the personal contract of the agent, upon 
 which he may sue, as well as be sued, in his own name, at com- 
 mon law. Kennedy v. Gouveia, 3 D. & R., .503 ; Parker v. 
 Winlow, 7 E. & B., 942 ; Button v. Marsh, L. R., 6 Q. B., 361 ; 
 Buffum V. Chad wick, 8 Mass., 103; Packard v. Nye, 2 Met., 
 47. In Gad v. Houghton, 1 Ex. D., 357, the contract which 
 was held not to bind the agent personally was expressed to be 
 made " on account of the principals ; " and in Oelricks v. Ford, 
 ^^ 23 How., 49, in which the contract, which was held to biud the 
 principal, more nearly resembled that before us than in any 
 other case in this court, the important element of a signature of 
 the agent's name, without addition, was wanting. 
 
 But it is unnecessary to express a definitive opinion upon the 
 question in whose name, independently of any statute regulat- 
 ing the subject, this action should have been brought. 
 
 The Code of Civil Procedure of the state of New York con- 
 tains the following provision : 
 
I. Causes of Action at Law. (1) Express Contracts. 21 
 Albany & Rensselaei* Co. v. Lundberg, 131 U. S., 451. 
 
 " Sec. 449. Every action must be prosecuted in the name of 20 
 the real party in interest, except that an executor or adminis- 
 trator, a trustee of an express trust, or a person expressly author- 
 ized by statute, may sue without joining with him the person 
 for whose benefit the action is prosecuted. A person with 
 whom, or in whose name, a contract is made for the benefit of 
 another, is a trustee of an express trust, within the meaning of 
 this section." 
 
 Under this provision, the Court of Appeals of that state has 
 held that an agent of a corporation, to whom, " as executive 
 agent of the company," a promise is made to pay money, is " a 
 person with whom, or in whose name, a contract is made for the 
 benefit of another," and may therefore sue in his own name on 
 the promise. Considerant v. Brisbane, 22 IS". Y., 389.* The 
 rule thus established is applicable to actions at law in the courts 
 of the United States held within the state of New York. Rev. 
 Stat., § 914; Sawin v. Kenny, 93 U. S., 289; Weed Sewing 
 Machine Co. v. Wicks, 3 Dillon, 261 ; United States v. Tracy, 8 
 Benedict, 1. 
 
 The case then stands thus : If the agreement to sell is an 22 
 agreement made by Lundberg personally, and not in his capacity 
 of agent of the Swedish firm, the price is likewise payable to 
 
 *In Considei-ant v Brisbane, 22 N. Y., 389, it appeared that defendant 
 subscribed for stock in a foreign corporation by signing a paper, whereby 
 he promised to pay a certain specified sum to " Considerant, as executive 
 agent of" the corporation. In an action brought in the name of C, 
 upon the notes, — Held, 1. That the contract was between tlie defendant 
 and the corporation ; that C. had no beneficial interest in it, was not 
 bound by it, and was not "the real party in interest." 2. That he was 
 "a trustee of an express trust," within the meaning of Code Pro., § 111 oq 
 [Re-enacted in Code Civil Pro., § 449], and as such could maintain an 
 action upon the notes in his own name. He was a person "in whose 
 name a contract is made for the benefit of another.'' 
 
 In Nelson v. Eaton, 7 Abb. Pr., 305, plaintiff sued as trustee under a 
 trust agreement, whereby defendant's promissory note had been placed in 
 plaintiff's hands as collateral. The trust agreement gave the trustee power 
 only to sell the note. — Held, on demurrer, that plaintiff did not have legal 
 capacity to sue on the note as trustee of an express trust ; that the express 
 authority to sell the note excluded any presumption that he had a right to 
 sue on it. 
 
22 Abbott's Select Cases on Code Pleading. 
 
 Pope V. Terre Haute Car & Mfg. Co., 107 N. Y., 61 
 
 24 him personally, and the action on the contract must be brought 
 in his name, even at common law. If, on the other hand, the 
 agreement must be considered as made by Lundberg, not in his 
 individual capacity, but only as agent and in behalf of the 
 Swedish firm, and for their benefit, then the price is payable to 
 him as their agent, and for their benefit, in the same sense in 
 which an express promise to pay money to him as the agent of 
 that firm would be a promise to pay him for their benefit, and 
 therefore, by the law of New York, which governs this case, an 
 
 25 action may be brought in his nanie. In either view, this action 
 is rightly brought. 
 
 [The Coxirt then discussed the merits and held that the 
 judgment miost be reversed for error in the rulings upon evi- 
 dence.] 
 
 Judgment reversed, and case remanded to the Circuit Court, 
 with directions to set aside the verdict and to order a new 
 trial. 
 
 POPE V. TERRE HAUTE CAR & MFG. CO. 
 
 New Yorlc Court of Appeals, 1887. 
 [Reported in 107 N., Y. 61 ; rev'g 34 Hun, 633.] 
 
 1. An executory contract for the sale of goods containing no provision as 
 to the time when delivery is to be made, is in legal effect an engage- 
 ment on the part of the seller to deliver within a reasonable time. 
 
 3. A complaint for breach, by tlie buyer, of an executory contract of sale 
 in which no time for performance was specified should allege an offer 
 to deliver the g'oods within a reasonable time, and is fatally defective, 
 if there is no allegation as to when the contract was to be performed, 
 or of the plaintiff's performance in respect to time. 
 
 3. Sucli detect is not waived by failure to demur or answer, but may be 
 objected to on tiie trial. 
 
 1 Action by the sellers against the buyer in a contract for the 
 sale of goods. 
 
 The complaint, omitting formal parts, was : 
 " First. That at the times hereinafter mentioned these plaint- 
 iffs were, and now are, copartners in business, and doing 
 business in the City of New York under the style and firm 
 name of Thomas J. Pope & Brother. 
 
I. Causes of Action at Law. (1) Express Contracts. 23 
 Pope V. Terre Haute Car & Mfg. Co., 107 N. Y., 61. 
 
 Second. That said defendant is a corporation duly incor- 2 
 porated and organized under and by virtue of the laws of the 
 State of Indiana. 
 
 Third. That heretofore and on or about the second day of 
 February, 1880, at the City of New York, these plaintiffs sold to 
 said defendant and said defendant purchased of these plaintiffs, 
 three hundred (300). tons No. 1 Calder Iron, at and for the price 
 and sum of twenty-nine dollars ($29) per ton cash', to be delivered 
 in bond at New Orleans, Louisiana. 
 
 Fourth. That said iron was and is Scotch iron, and has to be 
 imported from Scotland, and that said sale was made subject to 
 the ocean risks. 
 
 That said sale was made through Millard & Combs, brokers, 
 doing business as such in St. Louis. Thafdefendant well knew 
 that said Millard & Combs, were brokers, not merchants, and 
 were selling said iron as brokers. 
 
 Fifth. That said defendant, knowing that said iron was for 
 sale, made an offer for it, and these plaintiffs accepted said offer 
 in the City of New York. 
 
 Sixth. That after the terms of said sale had been fixed, said 4 
 brokers made and signed a note or memorandum in writing of 
 said sale usually known as a broker's " bought and sold note " 
 giving and containing all the material facts of said purchase 
 and sale. 
 
 Seventh. That these plaintiffs duly ordered the shipment of 
 said iron. That the same arrived safely in New Orleans, and was 
 there placed in bond. That thereupon these plaintiffs notified 
 said defendant, and tendered delivery of said iron, and demanded 
 payment therefor according to the terms of said contract. 
 
 Eighth. That said defendant positively refused to receive 
 said iron or any part of it, and positively refused to pay for the 
 same, or to perform its said agreement of purchase, or any part 
 
 of it. 
 
 Ninth. That thereupon the plaintiffs duly notified said de- 
 fendant that they should sell said iron for their account and 
 risk, and specified the time and place of such sale. 
 
 That not having received any payment, or performance on the 
 part of the defendant, plaintiffs did on or about the 26th day of 
 
24 Abbott's Select Cases on Code Pleading. 
 
 Pope V. Tei-re Haute Car & Mfg-. Co., 107 N. Y., 61. 
 
 June, 1880, sell said iron for $15 per ton, in bond in New 
 Orleans. 
 
 Tenth. That tlie total amount realized upon the re-sale of 
 said iron was $4,500. That that was the full value, and the best 
 price that could be obtained for said iron at that time. That the 
 expense of moving, storing and protecting said iron, and for the 
 re-sale of the same was t^^i^^-^^j, which these plaintiffs were 
 compelled to and did pay. 
 
 Eleventh. Plaintiffs further say that after crediting said de- 
 fendant with the net proceeds of said iron, the said defendant 
 still remains indebted to them in the sum of four thousand six 
 hundred and forty-nine J^u dollars ($4,649.80). 
 
 Wheeefoee, by reason of the premises the plaintiffs demand 
 judgment against said defendant for the said sum of four thous- 
 and six hundred and forty-nine ^^Jl. dollars ($4,649 -^i-^), with 
 interest thereon from the 26th day of June, 1880, and costs of 
 this action. " 
 
 The " bought and sold " note put in evidence was : 
 Sale Memo. 
 
 " St. Louis, Feb'y 2d, 1880. 
 "Sold Terre Haute Car & M'f'g Co. for account Pope & 
 Bros., 300 tons ISTo. 1 Calder, at $29 cash, in bond, New Orleans, 
 subject to ocean risks. 
 
 " Accepted : T. H. C. & M'f'g Co., 
 
 "ByJ.B. Hagee, Ft." 
 
 Ill the Supreme Court, at the trial, the defendant's counsel 
 moved to dismiss the complaint on the grounds (1) that it did 
 not allege when the contract was to be performed, and (2) that 
 it did not allege performance, or offer or tender of performance 
 within the time. 
 
 The motion was denied, and judgment was entered upon a 
 verdict for plaintiff. 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. 
 Andrews, J. \_at^(-r reciting the groimds of defendant's 
 motion] : The plaintiffs did not offer to amend the complaint, 
 
I. Causes of Action at Law. (1) Express Contracts. 25 
 
 Pope V. TeiTe Haute Car & Mfg. Co., 107 N. Y., 61. 
 
 and no amendment was made at any stage of the trial. We think 10 
 the motion should have been granted. There is no allegation in 
 the complaint as to the time within which the contract was to be 
 performed by delivery of the iron, and no time is mentioned in 
 the written contract. The law supplies the omitted term, and 
 the contract in legal effect was an engagement on the part of the 
 ■plaintiffs to deliver within a I'easonable time. (Benjamin on 
 Sales, § 683, note and eases cited; 2 Pars, on Con., 535, and 
 cases cited.) The promise of the plaintiffs to sell and deliver 
 the iron, and of the defendants to receive and pay therefor, were 
 nmtual and concurrent, and neither party can maintain an action 
 against the other for a breach of the contract without proving 
 performance on his part. It was, therefore, necessary, as matter 
 •of proof, that the plaintiff should show that he delivered, or 
 ■offered to deliver, the iron within a reasonable time, for this was 
 his contract, and whatever is essential to a cause of action must 
 be averred. The principle is very clearly stated in Osborne v. 
 Lawience (9 Wend., 135), in Avhich the court says : " The time 
 when a promise is to be performed is always material and must 
 be stated according to the truth, and proved as stated, whether it 12 
 be upon the rc-iuest of the plaintiff, or upon a particular day, or 
 in a reasonable time." The complaint alleges that the iron 
 arrived in New Orleans, and that the plaintiffs notified the 
 defendant and tendered delivery and demanded payment. But 
 there is no averment when the iron arrived, or was tendered, or 
 when by the contract it was to be delivered, or that delivery was 
 tendered within a reasonable time, nor is any fact stated from 
 which it can be inferred that the plaintiffs in that respect had 
 performed their contract. The allegation that the plaintiffs 
 " duly ordered the shipment," does not answer their obligation. 
 Their contract was to deliver in a reasonable time, and the 
 undertaking and its pef ormance should have been alleged. The 
 ■circumstance that they " duly ordered the shipment," or that the 
 vessel was delayed by stress of weather, or similar facts, might 
 have been relevant on the issue of performance. The difficulty 
 ds that the complaint does not show that the defendant was 
 -bound to accept or pay for the ii'on, because it neither sets out 
 ^;he plaintiffs' undertaking as to the time of delivery, or its per- 
 
26 Abbott's Select Cases on Code Pleading. 
 
 Golden Gate Co. v. Jackson, 13 Abb. N. 0., 476. 
 
 14 formanee, wliich was, in part, the consideration of the promise 
 of the defendant. The defect in the complaint was not waived 
 because the objection was not taken by demurrer or answer. 
 (Code, § 499.) The plaintiffs did not apply for an amendment, 
 but took the risk of the sufficiency of the complaint, and cannot 
 on this appeal be relieved from their position. (Tooker v. 
 Arnoux, 76 JST. Y., 397 ; Southwick v. First Nat. Bank, 84 
 id., 420.) • 
 
 Other questions have been arguqd, but as the point already 
 
 15 considered is decisive of this appeal, it becomes unnecessary 
 to consider them. 
 
 The judgment should be reversed and a new trial ordered. 
 All the judges concurred. 
 Judgment reversed. 
 
 GOLDEN GATE CO. v. JACKSON. 
 
 iV. y. /Supreme Ot., Special Term, First D&p., May, 188^.. 
 [Reported in 13 Abb. N. C., 476.] 
 
 1. To sustain an attachment in an action on contract, the specific sum due 
 
 must be established by proof, not merely averred. Hence, if plaintiff 
 by adopting the wrong measure of damages claims too much, the 
 attachment must be vacated. 
 
 2. Where the plaintiff stated his cause of action as for the seller's breach 
 
 of agreement to take and pay for goods sold to him, and without any 
 indication that the goods were to be manufactured for the purpose of 
 the contract, — Held, that as he claimed damages in the amount of the 
 contract price instead of claiming the difference between the contract 
 and the market price, his attachment could not be sustained. 
 
 1 Motion to vacate attachment. 
 
 Plaintiff sued on a contract to sell and deliver machines to the 
 defendant, on the defendant's failure to receive and pay for the 
 articles and obtained an attachment against defendant's prop- 
 erty as a provisional remedy under the Code of Civil Procedure. 
 
 Barrett,. J. The point is well taken that the damages are 
 not liquidated by the affidavit. An attachment cannot be re- 
 duced, consequently a general averment of damage, as in a com- 
 
I. Causes of Action at Law. (1) Express Contracts. 27 
 
 •Note on the Seller's Actions on the Contract of Sale. 
 
 plaint, will not do. The specific sum must be established by 
 proof, not merely averred. 
 
 Here the plaintiff sues for the contract price, claiming that as 
 his damage. But such is not his damage. His damage is the 
 difference between the contract and the market price of the 
 property at the time for delivery (Billings v. Vanderbeck, 23 
 Barb., 546 ; Davis v. Shieds, 24: Wend., 322 ; Sedg. on Dam., 
 260). This rule is not affected by the foreign cases cited by 
 plaintiff. The case of Bement v. Smith (15 Wend., 493) was 
 explained in Billings v. Vanderbeck, etc. [supra) as applicable 
 to work and labor, as where a machine is manufactured for the 
 vendor. 
 
 But here it is not averred that the machines were to be 
 manufactured for defendant. The affidavit specifies only an 
 agreement to sell and deliver, non constat, but from an existing 
 stock of machines. It is not necessary, therefore, to consider 
 the other points, as, for the reasons given, the plaintiff has not 
 shown by affidavit that he is entitled to recover the sum stated. 
 
 Motion granted, with costs. 
 
 NOTE. OlS" THE SELLER'S ACTIONS ON THE CON- 
 TRACT OF SALE. 
 
 The distinction between a contract for sale and one for production or 
 manufacture is important by reason of the fact that the provision of the 
 Statute of Frauds as to sales- does not apply to the latter, and the pro- 
 vision as to contracts by their terms not to be performed within one year, 
 is not liliely to apply to the former. If the contract of a portrait painter 
 were deemed a contract of sale because the property in the canvas and 
 the oils and pigments thereon must sooner or later pass to the sitter, the 
 statute inight be fatal to an oral contract by reason of the amount of the 
 payment agreed. 
 
 The New York rule is to inquire wliether the claimant's skill was the 
 thing bargained for ; if so, the allegation should be of services and 
 materials found, and not of sale. Passaic Mfg. Co. v. Hoffman, 3 Daly, 
 495; Warren Chem. Co. v. Holbrook, 118 N. Y., 586, 593. 
 
 Different views prevail in some other states. See Tiedeman on Sales, 
 Sec. 58. 
 
 Under a complaint for goods sold, etc., a recovery for work and labor 
 in producing them cannot be had against objection unless it is a case for 
 
28 Abbott's Select Cases on Code Pleading. 
 
 Note on the Seller's Actions on the Contract of Sale. 
 
 amendment. Schrimpton & Sons v. Dworsky, 21 N. Y. Supp., 461 ; s..c. 
 2 Misc., 133 ; 49 State Eep., 29. 
 
 Action for price. If the goods have not only been sold but also 
 delivered, both facts should be alleged. 
 
 If the delivery was made pursuant to agreement, not to defendant or 
 his agent, but to a third person — as in the case of goods ordered by one as 
 the responsible party for the benefit of another who is to receive them — 
 it is better to allege the transaction, according to the fact, that plaintiff 
 bargained and sold them to the defendant, and at defendant's request 
 delivered them to the third person. But such an agreement and delivery 
 can be proved under the usual allegation of sale and deliverj' to defend- 
 ant, unless defendant shows that he was surprised by the variance. 
 Rogers v. Verona, 1 Bosw., 417. 
 
 If there was no delivery, the allegation should be that plaintiff bar- 
 gained and sold to defendant, etc. 
 
 The three actions, one of which the seller of personal property may 
 have against a buyer who refuses to accept the goods, are : (1) The seller 
 may store the property for the buyer and sue for the purchase price ; or 
 (2) he may sell the property as agent for the buyer and recover any 
 deficiency resulting ; or (3) he may keep the property as his own and 
 recover the difference between the contract price and the market price at 
 the time and place of delivery. 
 
 These remedies apply even to such intangible or complex property as a 
 share in a partnership ; and they apply to executory as well as executed 
 sales ; but in executory sales a valid tender, and a refusal, would be neces- 
 sary before the seller could sue. Van Brooklen v. Smeallie, 140 N. Y. , 79 ; 
 s. c. 35 N. E., 415, citing Hayden v. Demets, 53 N. Y., 426; Dunstan ij. 
 McAndrew, 44 N. Y., 72 ; Mason v. Decker, 72 N. Y., 595. 
 
 There are several considerations to be weighed by the attorney in 
 advising his client which of these remedies to pursue. 
 
 (1) If the seller sues for the purchase price — 
 
 He may elect this remedy even though the goods are perishable ; he is 
 not bound to look out for the buyer's interest and resell them (Hunter v. 
 Wetsell, 84 N. Y., 549). 
 
 In this action he cannot recover storage charges on the goods, for it is 
 urged that in storing the goods he is only preserving his own lien on them 
 (per McAdam, J., in Dreyfuss v. Foster, 3 N. Y. Supp. 54; s. c. 19 N. Y. 
 St. Rep., 683). 
 
 If the seller elects this remedy, he is bound to deliver the goods when- 
 ever they are demanded, upon payment of the price (Hayden v. Demets, 
 53 N. Y., 426). 
 
 (2) If the sellor sells the property as the buyer's agent and sues for 
 any deficiency — 
 
 The sale need not be at auction, unless that is the customary method 
 of selling the property in question (Van Brocklen v. Smeallie). Whether 
 or not the sale is at auction, notice to the defaulting buyer of the time 
 and place of sale is unnecessary (Pollen v. LeRoy, 30 N. Y., 556) ; all that 
 
I. Causes of Action at Law. (1) Express Contracts. 29 
 
 Farley v. Browning, 15 Abb. N. C, 301. 
 
 the buyer can require is that the seller shall be diligent to obtain the 
 best price possible for the g-oods, and that the sale shall be within a rea- 
 sonable time (Sherwood v. Ribbons, 6 N. Y. "Week. Dig., 231). The sale 
 need not be in the name of the buyer (Smith v. Pettee, 70 N. Y., 13), and 
 if it is at auction the buyer will not be deemed injured by the mere fact 
 that the seller bought ia the property by bidding higher than anyone 
 else (Austin v. Hartwig, 49 Super. Ct. [N. Y.], 256). 
 
 In this action the seller may recover any expenses incurred in keep- 
 ing the propei'ty (McEachron v. Randies, 34 Barb., 301) ; including expense 
 of insuring it (Lewis v. Greidei-, 51 N. Y., 831). 
 
 (3) Where the seller keeps the goods and sues for the difference in 
 price — 
 
 He may deliver the same goods to other parties on contracts made 
 prior to that with the buyer, and the price received on such contracts 
 is no evidence of the market value of the goods (Cauda v. Wick, 100 
 N. Y., 127). 
 
 Whichever remedy the seller elects to pursue, his election once made 
 binds him. Having adopted one remedy, he cannot afterwards recede 
 from the position taken and pursue a different remedy (Bradford v. 
 Crocker, 60 N. Y., 627 ; Dreyfuss v. Foster, supra). 
 
 FARLEY V. BEOWE'ING. 
 
 JVew Yorh Common Pleas, General Term ; January, 188o. 
 
 [Reported in 15 Abb. N. C, 301.] 
 
 1. Although one who has performed a special contract for work and 
 materials may recover the stipulated price without pleading the con- 
 tract, provided it has been fully performed so that only the duty to 
 pay the money remains, yet he must prove performance of the con- 
 tract, whether he sues for work, etc., generally, or pleads the special 
 contract. 
 
 3. Where he sues without setting up the special contract, an admission 
 in the answer, that he had done work and furnished materials (there 
 being a denial of value), does not excuse him from proving that he had 
 done all the work required by the special contract produced in evi- 
 dence, nor preclude the defendant from giving evidence to the con- 
 trary. 
 
 Appeal from a judgment for tlie plaintiff, entered on the 
 verdict of a jury at the Special Term, and from an order striking 
 out defendant's counterclaim. 
 
 The action was brought by Patrick Farley against William H. 
 Browning, in the Seventh District Court of New York city, and 
 was removed under the statute to the Court of Common Pleas. 
 
30 Abbott's Select Cases on Code Pleading. 
 
 Farley v. Browning, 15 Abb. N. C, 301. 
 
 The complaint alleged : 
 
 "I. That heretofore and on and between February 24, 1882, 
 and October 31, 1882, the plaintiff performed certain work, labor 
 and services for the defendant, in the digging and excavating of 
 certain trenches on the north side of Sixty-third street, between 
 Fourth and Madison avenues, in the city of New York, for the 
 purpose of erecting certain houses thereon, and also furnished, 
 at defendant's request, materials, to wit : building stone, to be 
 used in the erection of said houses. 
 
 " II. That said materials so furnished, and labor and services 
 performed, were reasonably worth the sum of $2,200, which the 
 defendant promised and agreed to pay therefor. 
 
 " III. That defendant has paid on account thereof, the sum 
 of $2,000, leaving a balance due and owing plaintiff from defend- 
 ant of the sum of $200, no part of which has been paid, though 
 duly demanded." 
 
 The answer of defendant set forth : 
 
 " I. He admits the 1st allegation or paragraph of said com- 
 plaint as therein alleged. 
 
 " II. He denies the 2d allegation or paragraph in said com- 
 plaint. 
 
 " III. He denies the 3d allegation or paragraph of said com- 
 plaint." 
 
 The fourth paragraph of the answer also pleaded for a separate 
 defense, that plaintiff had entered into a written contract with 
 defendant, annexed to the answer, and that he had failed to per- 
 form it, and made a counterclaim therefor. The matter pleaded 
 in the fourth paragraph, " and constituting counterclaims against 
 the plaintiff," was stricken out on motion, on the ground that 
 defendant could not, at least without leave of court, interpose 
 new defenses to those interposed in the District Court. 
 
 The jury found for the plaintiff, and from the judgment 
 entered thereon defendant appealed. 
 
 Ya:s Hoesen, J. The error in the charge of the judge was 
 caused by a misconstruction of the pleadings. The answer does 
 not admit that the work for which a special contract had been 
 made had been duly performed ; it merely admits that the plaint- 
 iff had done work and furnished materials for, and at the request 
 
I. Causes of Action at Lavj. (1) Express Contracts. 31 
 
 Farley v. Browning, 15 Abb. N. C, 301. 
 
 of tlie defendant. The judge erroneously construed the answer 
 as making an admission that the plaintiff had done all the work, 
 that the written contract that was produced in evidence (though 
 it had not been mentioned in the complaint), required him to do. 
 In consequence of this misconstruction of the pleadings, the 
 judge fell into the error of instructing the jury, " that the ques- 
 tion to be decided is, not whether the work was done or not, but 
 whether a promise was made. If the jury find a promise was 
 made, the plaintiff is entitled to a verdict."' 
 
 In point of fact, the chief question in .the case was, has the 
 plaintiff fully performed the work mentioned in the written 
 contract ? The plaintiff declares on one of the common counts 
 in assumpsit. This he had a right to do, provided that he had 
 fully completed the special contract. The rule is that indebitatus 
 ussunvpsit will lie to recover the stipulated price due on a special 
 contract, where the contract has been completely executed, so 
 that only a duty to pay the money remains. It is essential that 
 the plaintiff should prove that the special contract has been per- 
 formed upon his part (Jewell v. Schroeppel, 4 Cow., 566 ; Farron 
 V. Sherwood, 17 N. Y., 227; Hosley v. Black, 28 N. Y., 438 ; 
 Hurst V. Litchfield, 39 N. Y., 377 ; Higgins v. Newton, &c. E. 
 E. Co., 66 N. Y., 606). 
 
 The plaintiff undertook to prove performance, and he offered 
 evidence for that purpose. The defendant then offered to prove 
 that the work had never been finished. The court ruled that he 
 could not be allowed to show that the contract had not been per- 
 iormed, but notwithstanding that ruling, the defendant was 
 afterwards permitted to give a good deal of testimony to show 
 that the plaintiff had failed to do the work that the contract had 
 provided for. It might perhaps be said that the action of the 
 court in allowing the defendant to prove that the contract had 
 ■not been performed, obviated the exception taken to the ruling 
 that such proof could not be admitted, but there is still the 
 exception taken to the instruction to the jury, that it was of no 
 consequence whether the contract had been performed or not. 
 This instruction was, as I have said, erroneous, and because of it, 
 judgment must be reversed. 
 
 In his note to Cutter v. Powell (2 Smith's Lead. Cas.), Mr. 
 
32 Abbott's Select Cases on Code Pleading. 
 
 Sohencke v. Rowell, 3 Abb. N. C, 343. 
 
 1 ( ) Wallace says, " where there has been a special contract, the whole 
 of which has been executed on the part of the plaintiff, and. the 
 time of payment on the other side is passed, a suit may be brought 
 on the special contract, or a general assumpsit may be maintained ; 
 ana in the last case the measure of damages will be the recom- 
 pense fixed by the special contract. If, however, the special con- 
 tract be open, and there be no fault or omission on the part of 
 the defendant indebitatus assumpsit will not lie." 
 
 The plaintiff cannot free himself from the obligation of prov- 
 ing his case, by changing the form of his pleading. If he sues 
 
 ^^ upon the special contract, he must prove performance, and so he 
 must do, if he resorts to an indebitatus assumpsit. 
 
 The judgment should be reversed, and a new trial ordered, 
 with costs to abide the event. 
 
 Dalt, C. J., and Laeremoee, J., concurred. 
 
 Judgment reversed. 
 
 Note. — In Atkinson v. Collins, 9 Abb. Pr., 353, the complaint alleged 
 services generally, defendant setting up that the work was done under a 
 special contract. It was proven at the trial that a special contract had 
 been entered into, which provided that, when the work was completed 
 and accepted by certain school officers plaintiff was to be paid ; it was 
 also proven that the work had never been accepted by such officers. Held, 
 that the complaint was properly dismissed. 
 
 SCHEInX'KE v. eowell. 
 
 JVeio Yorh Common Pleas, General Term ; June, 1877. 
 [Reported in 3 Abb. N. C, 342.] 
 
 1. A complaint in an action on a contract in which the determination of a 
 
 third pei'son on a question between the contracting parties is a condi- 
 tion precedent — e. g., on a building contract containing the usual 
 requirement of an architect's certificate — is bad on demurrer if it does 
 not allege the making of such determination, or sufficient ground for 
 dispensing with it. 
 
 2. Wliere a building contract requires the approval of the work by the 
 
 architect and his certificate to tliat efl^ect, the performance of the 
 work and the production of the certificate are both prerequisites to 
 any recovery, unless withheld by "fraud," or "collusion," or "in bad 
 faith." A formal approval and acceptance by the architect without a 
 certificate are not enough. 
 
I. Causes of Action at Law. (1) Express Contracts. 33 
 Schencke v. Eowell, 3 Abb. N. C, 3437. 
 
 3. The allegation in a complaint that an architect's certificate is " unrea- 
 
 sonably " withheld by liim, is not a sufficient justification for not ob- 
 taining- it. 
 
 4. Nor is u, mere alleg-ation of plaintiff's complete performance or of 
 
 defendant's acceptance of the work sued for, enough to dispense with 
 alleging- a certificate. 
 
 5. The architect's acceptance of an3' substitute for tliat which the contract 
 
 called for, if substantially variant from its terms, unless by authority 
 of the employer, is not enough to sustain an action ; and even the 
 employer's acceptance of inferior or different work must be supported 
 by some new consideration, as, for example, an agreement to accept 
 such inferior work with deductions for defects agreed upon, in order 
 to be deemed as part or entire performance. 
 
 William M. Schencke sued George P. Ro-well and Charles N. 
 Kent to recover an alleged balance of $550, on a building con- 
 tract, -svhereby the plaintiff was to erect a building on the Cen- 
 tennial grounds, in the city of Philadelphia, for the defendants ; 
 and also to recover $528.4-1 for extra -work and materials fur- 
 nished about said building. 
 
 The amended complaint alleged : 
 
 " That on or about February 24, 1S76, plaintiff and defendant 
 entered into an agreement of -which a copy is hereto annexed, 
 marked ' Schedule A,' and hereby made a part of this com- 
 plaint." 
 
 " That the plaintiff duly performed and fulfilled all the condi- 
 tions and requirements of said agreement, to be by him per- 
 formed by the terms thereof." 
 
 " That the j^laintiff has requested the architect in said agree- 
 ment mentioned, to give the certificate mentioned in said agree- 
 ment, but said architect unreasonably neglects and refuses to 
 give the same." 
 
 " That the defendants have duly accepted the work performed 
 by the plaintiff under and by virtue of said agreement, &c., and 
 that they had paid $6,000 on account thereof." 
 
 There was also a second cause of action for extra work and 
 materials. 
 
 " Schedule A," referred to in the complaint, was an agreement 
 for building, in the usual printed form, with special provisions 
 .added in writing, and was under seal. It provided that the 
 
34 Abbott's Select Cases on Code Pleading. 
 
 Schencke v. Rowell, 3 Abb. N. C, 3437. 
 
 plaintiff would " on or before the first day of May, 1876, well 
 and sufficiently erect and finish the new building on the Centen- 
 nial grounds, agreeably to the drawings and specifications rcade 
 by M. J. Morrill, and signed by the said parties and hereunto 
 annexed, Avithin the time aforesaid, in a good, workmanlike and 
 substantial manner, to tlie satisfaction and under the direction of 
 the said M. J. Morrill, to be testified by a writing or certificate 
 under the hand of the said M. J. Morrill," for |6,550. 
 
 It further provided for payments, as follows, viz.: 1st. When 
 the frame was raised, $800 ; 2d, when enclosed, §1,500 ; 3d, 
 when finished, except boxes and painting, §1,700; 4th, when 
 completed and accepted, $2,550. 
 
 " Provided, that in each of the said cases, a certificate shall be 
 obtained and signed by the said M. J. Morrill." 
 
 Then followed provisions as to alterations, extra work, etc., 
 not material to the decision. 
 
 The defendants demurred to the first cause of action (stated 
 above), on the ground that it did not state facts sufficient to con- 
 stitute a cause of action. 
 
 At Special Term this demurrer was overruled, and judgment 
 ordered for plaintiff, with leave to defendants to amend on 
 terms. 
 
 Defendants appealed from this order. 
 
 27ie General Term reversed the order. 
 
 Robinson, J. In contracts for the performance of work 
 under the supervision of an architect, which, to entitle the 
 contractor to payment for work done, not only require its 
 completion according to the terms of the contract, but also its 
 approval by, and a certificate of, the architect to that effect, the 
 performance of the work and the production of the certificate 
 are both prerequisites to any recovery. 
 
 A formal approval and acceptance of the architect " would 
 not relieve the plaintiffs from their agreement to perform the 
 work according to the plans and specifications" (Glacius v. 
 Black, 50 N. Y., 150). 
 
 "While the architect's certificate is thus made essential and is 
 otherwise indispensable to any right of recovery, its non- 
 
I. Causes of Action at Law. (1) Express Contracts. 35 
 
 Schencke v. Eowell, 3 Abb. N. C, 3427. 
 
 production may be excused when withheld "by fraud or collusion, 8 
 or in had faith (Thomas v. Fleury, 26 IST. Y., 26 ; Barton v. 
 Hermann, 11 Abb. Pr. N. S., 378). 
 
 The requirement of such certificate being for the benefit and 
 protection of the employer, he may by some definitive or 
 expressive act, waive the necessity for its production. A mere 
 allegation of his acceptance of the work done has no legal 
 significance. Everything done in the progress of the work 
 contracted for, if known to or recognized by the employer, is to 
 be deemed accepted in part performance ; and notwithstanding 9 
 any such allegation as is made in the present case, " that the 
 defendants duly accepted the work performed by plaintifE under 
 and by virtue of said agreement," the complaint presents no 
 suggestion that the entire work as performed was accepted as a 
 full compliance with the requirements of the contract. 
 
 "Without this, no waiver of an architect's certificate of com- 
 plete compliance (so far as it gave assurance of the fact) could 
 be deemed to be made. 
 
 This action was brought to recover a part ($550) of the last 
 and final payment of $2,550, which was to be made when the 10 
 •whole work was " completed and accepted," and it is true such 
 completion and acceptance is alleged in these precise and 
 general terms, but as to the certificate of the architect as to this 
 final payment that the work had been so completed " in a good, 
 worlcmanlihe, and substantial manner, to his satisfaction and 
 under his direction^'' as required by the contract, none such is 
 alleged to have been given. 
 
 The certificate of the architect being indispensable to any 
 recovery (so far as material), unless withheld for fraud or 
 collusion or in had faith, the allegation that it was so withheld 
 " unreasonably," has never been accepted as a justification for 
 its non-production. Every principle upon which the architect's 
 determination and adjudication in this respect is deemed 
 operative under the contract, rejects any such " vnreasanahle" 
 action as without the consideration of the parties, or the 
 obligations of their contract. The architect, so far as it commits 
 any matter to his judgment, is accepted as an umpire between 
 them (Smith v. Briggs, 3 Den., 73 ; Butler v. Tucker, 24 "Wend., 
 
36 Abbott's Select Cases on Code Pleading. 
 
 Sohenoke v. Eowell, 3 Abb. N. C, 3427. 
 
 12 449 ; "Wyekoff v. Meyers, 44 IST. Y., 145), and his mere refusal, 
 when his impartial judgment dictates it, confers upon the 
 contractor no right of recovery, even if, by other witnesses, he 
 should be able to maintain that he had substantially performed 
 the work. 
 
 The best judgment of the architect upon the matter so 
 committed to his determination has been agreed upon as the 
 test of the performance ; and neither party can reject or 
 repudiate his certificate given on the one side or his refusal to 
 give it on the other, upon mere allegations or testimony 
 ^° tending to show that his action had been unreasonable." His 
 entire refusal to act would throw upon the courts the duty of 
 acting in his stead ; but until divested of the power as conferred 
 upon him by the parties, by death, incapacity, resignation or 
 estoppel to act, the parties have agreed to accept either his 
 certificate or his refusal to certify to the work done by the 
 contractor as a final judgment between them. Under these 
 considerations the complaint was defective in substance. 
 
 First. The mere allegation of complete performance of the 
 14 work did not confer any right of action for want of the 
 architect's certificate. 
 
 Second. This was not supplied by the averment that the 
 architect had " unreasonably " refused such certificate. 
 
 Third. The mere allegation that the defendants had duly 
 accepted the work performed by plaintiff under and by virtue 
 of said agreement added nothing in extenuation or avoidance of 
 the necessity of such certificate, without further allegation that 
 such work was so accepted, not only in comphance with the con- 
 tract, but was also received as a full performance (Glacius v. 
 1"^ Black, 50 N. Y., 153). 
 
 The acceptance by the architect of any substitute for that 
 which the contract called for, if substantially variant from its 
 terms, could not be justified (except through authority of the 
 employer), nor can the acceptance by the employer of inferior 
 or different work than such as was contracted for be deemed or 
 accredited as part or entire performance, except upon some new 
 consideration, operating between the parties ; any agreement to 
 accept any such imperfect or incomplete work with deductions 
 
I. Causes of Action at Lau\ (1) Express Contracts. 37 
 
 Hosley v. Black, 28 N. Y. 438. 
 
 for defects agreed upon, would be binding (Glacius v. Black, 1 6 
 supra). 
 
 But without it, the idea that the mere declarations of an 
 intention or purpose to waive any right to damages already 
 accrued is wholly unavailable as a defense thereto or as against 
 the assertion thereof. 
 
 Under these circumstances it follows that the complaint was 
 defective in the foregoing particulars. 
 
 The order overruling the demurrer should therefore be re- 
 versed and judgment given for the defendants, unless the 
 plaintiff within twenty days from the service of a copy order to 
 be entered herein, amend his complaint and pay the costs of the 
 trial on the demurrer and of this appeal (to be taxed by the 
 clerk), and for failure to so amend and pay such costs that 
 defendants' have judgnient final. 
 
 C. P. Daly, Ch. J., and J. F. Daly, J., concurred. 
 
 HOSLEY V. BLACK. 
 
 ISfew YorJc Coiort of Appeals, 1863. 
 
 [Reported in 38 N. Y., 438.] 
 
 1. In an action on contract, if the complaint alleges performance by- 
 
 plaintiff of the conditions on his part, and he proves substantial 
 performance, a waiver of strict performance may be proved, amend- 
 ment for that purpose being allowed by the court ; terms to be 
 imposed if necessary in furtherance of justice.* 
 
 2. If the complaint is general, for services,, the contract being used as 
 
 evidence only, amendment is not necessary to let in evidence of such 
 excuse. 
 
 Plaintiff sued for services of himself and wife in teaching 
 school. 
 
 The complaint (which was modelled on the common law forms 
 of declarations in assumpsit) for a first cause of action, charged 
 that the two defendants, with another person named, were 
 trustees of a specified school district at a time named, and 
 
 * Compare Crandall v. Clark, 7 Barb. 169 ; Holmes i\ Holmes, 9 N. Y., 
 525; Lester v. Jewett, 11 N. Y., 453; Wheeler v. Garcia, 40 N. Y., 584; 
 Smith V. Poillon, 87 N. Y., 590 ; Woolner v. Hill, 98 N. Y., 576. 
 
38 Abbott's Select Cases on Code Pleading. 
 
 Hosley v. Black, 38 N. Y., 438. 
 
 einplojed plaintiii to teach school in their district, with his wife 
 as assistant, for a specified period and compensation, and alleged 
 performance on his part, and that the third person, not Joined as 
 defendant, had ceased to be a trustee. 
 
 The second count alleged generally that defendants were 
 indebted for services rendered by himself and wife \in respect 
 of the same period^ and repeated that the third person not 
 joined had ceased to be trustee. 
 
 The other counts it is not necessary to state. 
 
 On the trial defendants moved to dismiss on the ground that 
 one Kichardson, the present third trustee, was a necessary party. 
 Plaintiff had a verdict. 
 
 The Supreme Court at General Term, upon substantially the 
 same grounds as those assigned by the Court of Appeals in the 
 following opinion, affirmed judgment on the verdict. Defend- 
 ants appealed. 
 
 The Court of Appeals affirmed the judgment. 
 
 Balcom, J. The objection to the evidence given by the 
 plaintiff to show that the defendants consented that Saturdays 
 should be counted in ascertaining the length of time the plaintiff 
 taught the school, was placed upon the ground that it was not 
 competent to show a waiver of the performance of the contract to 
 teach the school, imder the allegations of the complaint. 
 
 The technical rule undoubtedly is, that under a complaint 
 setting out a contract and averring its performance by the 
 plaintiff, evidence in excuse for non-performance is not admis-, 
 sible. (Oakley v. Morton, 11 N. Y., 25.) But this rule is of very 
 little consequence ; for the plaintiff may amend his complaint 
 and then give the evidence. (Code, § 173 ; Dauchy v. Tyler, 15 
 Plow. Pr., 399.) It is true that he must submit to such terms 
 " as may be proper ; " but terms are not often imposed for they 
 are seldom necessary in the furtherance of justice. 
 
 In this case no amendment of the complaint was necessary to 
 entitle the plaintiff to give the evidence excusing him from 
 opening the school on Saturdays. The complaint contains seven 
 distinct claims or counts, three of which are similar in substance 
 
I. Causes of Action at Laxo. (1) Express Contracts. 39 
 
 Hosley v. Black, 28 N. Y., 438. 
 
 to the coimt of indebitatus assiompsit for work and labor, used 
 prior to tlie Code of Procedure. That count always was suffi- 
 cient to authorize a recovery for work and labor performed 
 under a contract not under seal, unless the party performing the 
 work and labor had failed to fulfill the contract. (4 Wend., 
 285 : 11 id., 479 ; 22 id., 576 ; 1 Cow. Tr., 2d ed., 124 ; 2 id., 
 635 and 1128.) This court held in Farron v. Sherwood (17 N. 
 Y., 227), that the Code has not changed the former rule of plead- 
 ing ; that a party who has wholly performed a special contract on 
 his part may count upon the implied assumpsit of the other party 
 to pay the stipulated price, and is not bound to declare specially 
 upon the agreement. The same rule was held in the following 
 cases : Allen v. Patterson (7 N. Y., 476); Keteltas v. Myers (19 
 JSr. Y. R, 231) ; Moffet v. Sackett (18 id., 622.) The plaintiff 
 taught the school thirteen weeks for the first three months, and 
 twenty-six weeks for the last six months. This was time enough 
 to make the two terms, construing the word month to mean a 
 ■calendar and not a lunar month, as the statute seems to require. 
 (1 R. S., 606, § 4.) The fact that the plaintiff's wife was absent 
 Monday mornings washing till ten or eleven o'clock in the fore- 
 noon, and a few days while sick, and that the plaintiff himself 
 was absent one day attending a Buchanan mass meeting, and 
 two days before the board of supervisors as candidate for county 
 commissioner of schools, his wife keeping the school in his 
 absence was not a substantial breach, by the plaintiff of the con- 
 tract to teach either three months or six. This was a trifling 
 matter. The school was kept during the time either the plaint- 
 iff or his wife was absent. Both were not away at the same 
 time, and the attention of the judge was not particulai-ly called 
 to these absences at the trial ; nor was it shown during which 
 term they occurred. I am therefore of the opinion the judge 
 was right in holding that the plaintiff performed the contract on 
 his part. 
 
 The defendants were the only trustees of the school district 
 at the time the action was commenced ; and there was no evi- 
 dence given that Thomas Richardson had become a third trustee 
 at the time of the trial, and it was not conceded by the plaintiff 
 that he was such trustee. The complaint showed upon the face 
 
40 Abbott's Select Casiis on Code Pleading. 
 
 Parry v. American Opera Co., 19 Abb. N. C, 369. 
 
 10 thereof that the action was brought against only two trustees. 
 But the defendants did not demur to it on that ground, or 
 object in tlieir answer on that ground to the plaintiff maintaining 
 the action. The objection that a third trustee should have been 
 made a defendant was therefore waived. (Code Pro., § 144 ; 
 id., 14Y.) 
 
 [Hemarks overruling some other objections to evidence are 
 here omitted.] 
 
 All the judges concurred, except Selden, J., who dissented 
 as to some of these latter questions of evidence. 
 
 PARRY V. AMERICAN OPERA CO. 
 
 JVew York City Court, General Term, 1887. 
 [Reported in 19 Abb. N. C, 269.] 
 
 1. A servant who is wrongfully discliarged from employment before the 
 term for which he was hired expires, his wages having been paid 
 in fall up to his discharg-e, has but one cause of action for breach of 
 the contract of hiring, and can have but one recoverj' of damages 
 therefor. 
 
 3. Where plaintiff was hired for twenty-five weeks, and was discharged 
 after eight weeks' service, — 'Held, that a recovery of judgment for 
 the damages sustained for the two weeks following his discliarge, 
 bai-red any further action for damag'es for the remaining fifteen 
 weeks for which he was )\ired, although his services, if they had been 
 rendered, were to be paid for in weekly installments. 
 
 1 Appeal from a judgment entered upon a verdict for the 
 plaintiff directed by the court at the trial. 
 
 William Parry sued the American Opera Company, Limited, 
 for damages for breach of a contract, alleging that the defendant 
 engaged him to act as its assistant stage director during the 
 operatic season of ISSG-T, for twenty-five or more weeks, begin- 
 
 2 ning in October, 1886 ; that on December 11th he was discharged, 
 after eight weeks of service, and sutfered damage including the 
 loss of salary, for the remaining sex'enteen weeks. The com- 
 plaint admitted that since his discharge plaintiff had recovered 
 judgment against defendant " for two weeks of said salary to 
 December 25th, 1886." 
 
I. Gmoses of Action at Law. (1) Express Contracts. 41 
 Parry v. American Opera Co., 19 Abb. N. C, 369. 
 
 At the trial the defendant put in evidence the judgment roll 
 in the prior suit between the parties, the complaint therein 
 showing that after his discharge he had tendered his services to 
 defendant, which were refused ; that he was unable to procure 
 other employment, and demanding "judgment for the salary due 
 and owing him for the said two weeks under said contract," etc. 
 
 The demand of the complaint in the present action was " for 
 the damages so caused by the wrongful refusal to fulfill the said 
 contract, and for all loss and injury resulting to him there- 
 from," etc. 
 
 Defendant's request to direct a verdict in its favor was 
 refused, and thereupon plaintiff's motion for a direction in his 
 favor was granted. 
 
 From the judgment entered upon the verdict, defendant 
 appealed. 
 
 McAdam, Ch. J. Services were actually rendered under tlie 
 contract of employment until December 11, 1886, to which time 
 salary was paid. The plaintiff was on that day discharged, by 
 means of which he was prevented from rendering any further 
 services under his contract. 
 
 The plaintiff's appropriate remedy under such circumstances 
 was an action for wrongful discharge, founded on the breach by 
 the defendant (Moody v. Leverich, i Daly, 401, 408 ; Howard v. 
 Daly, 61 IST. Y., 362 ; s. c. 19 Am. E., 285); in which form of 
 action lie is entitled to recover " for the loss or injury occa- 
 sioned " up to the time of trial (Bruell v. Colell, 1 City Ct. R., 
 308 ; Everson v. Powers, 89 IST. Y., 527). 
 
 The cause of action arose at the time of the wrongful dis- 
 charge, and there can be but one recovery for the breach, 
 although the services (if they had been rendered) were to be paid 
 for in weekly installments. One action is sufficiently compre- 
 hensive to embrace all the damages suffered, and the law will not 
 permit the cause of action to be split up into parts so as to 
 permit of a number of suits for substantially the same cause. 
 The plaintiff herein recovered a judgment on the contract for the 
 loss from December 11, 1886 (the day of the discharge), up till 
 December 25, 1886. This recovery was founded on the breach 
 
42 Abbott's Select Cases on Code Pleading. 
 
 Pairy v. American Opera Co., 19 Abb. N. C, 369. 
 
 7 because it was conceded by the printed case that no services 
 whatever were rendered during this period. The judgment so 
 recovered is a complete bar to any further recovery founded on 
 the same breach, that is, the wrongful discharge (see cases 
 before cited). 
 
 The request to direct a verdict for the defendant should have 
 been granted. It was error to have directed a verdict for the 
 plaintiff. For this error the judgment must be reversed and a 
 new trial ordered, with costs to the appellant to abide the event. 
 
 ;8 Beowne and Hall, JJ., concurred. 
 
 Note [from 1 Univ. Law Rev., 53.] — The right of a servant to recover 
 for a breach of the contract of service is ably discussed in Olmstead v. 
 Bach (Md., 1893), 37 Atl. Eep., 501. The court holds that a contract of 
 hiring- for a year is an entire contract, which is not rendered divisible by 
 a subsidiary provision for weekly payments. The employee under such a 
 contract, upon a wrongful discharge before the expiration of the year, has 
 only two [independent] remedies at law. He may treat the contract as 
 continuing and bring an action against the master for breaking it by dis- 
 charging him, and this action lies whether his wages are paid up to the 
 time of his discharge or not ; or if his wages are not paid up to the time 
 
 Q of his discharge, he may treat the contract as rescinded, and sue his 
 employer on a quantum meruit for the services actually rendered. When 
 the servant's wages have been paid in full up to the time of his discharge, 
 as in the case at bar, he has no option as to which of these remedies he 
 may pursvie. He is confined to an action for the recovery of damages 
 which he has sustained by a breach of the contract ; whether he brings 
 his action immediately upon his discharge, or waits until the period of the 
 contract has expired, his action is an action for a breach of the contract. 
 The measure of damages will be the loss or injury occasioned by that 
 breach, and one recovery on such claim, whether the damages be denomi- 
 nated "loss of wages" or "damages for breach" is a bar to a future 
 recovery. 
 
 10 The rule is stated to be different where there has been no dismissal of 
 the servant, and the only breach of the contract consists in the failure of 
 the master to pay, when due, the wages or installments of wages actuallj' 
 earned. In such a case, the contract not having been broken bj' the dis- 
 missal of the servant, and he not having been prevented from performing 
 his work, and the relation of master and servant still continuing-, an 
 action on the contract could be maintained to recover the salary or wages 
 due for a past stated period. Recovery in such an action would not be a 
 bar to a futuie recovery for a subsequent dismissal. But to hold that an 
 action brought by the servant after dismissal, liis wages having- been 
 paid in full until his dismissal, is an action for wages, and so not a bar to 
 a future recovery for dismissal, would be to hold that the servant is en- 
 
I. Causes of Action at Law. (1) Express Contracts. 43 
 
 Parry v. American Opera Co., 19 Abb. N. C, 369. 
 
 titled to recover for " constructive services," a doctrine repudiated in H 
 England, where it had its origin, as well as in this country, and declared 
 in Howard v. Daly, 61 N. Y., 363 ; s. u. 19 Am. E., 385, to be "so opposed 
 to principle, so clearly hostile to the great mass of authority-, that it 
 cannot be accepted." 
 
 The same rule has been applied in New York, in Parry v. American 
 Opera Co. (the case in the text), and in Ohio in James v. Allen Countj', 44 
 ■Ohio St.. 326; s. c. 35 Am. L. Reg., 531, cases nearly parallel to Olmstead 
 V. Bach. 
 
 The result of the authorities may be stated thus : 
 
 (1.) If before ser\'ices have been rendered or wages earned under the 
 contract, the employer discharges or refuses to receive the employee, the -i o 
 latter cannot sue for wages, but his remedj' is onlj' for damages by breach 
 of the contract. 
 
 Howard v. Daly, 61 N. Y.. 362. 
 
 (3.) If after services have been rendered and paid for, the employer 
 "wrongfully dismisses the emploj'ee before any further sei-vices have been 
 Tendered, the remedy is the same, only an action for damages. 
 
 Olmstead v. Bach, supra. 
 
 Keedy v. Long, 71 ild., 392; 18 Atl. Rep., 704. 
 
 (3.) It, after services have been rendered which all remain unpaid for, 
 the emplos'er wrongfully discharges the employee, the latter may either, 
 ia) treat the contract as rescinded and sue for the value of his services, 
 which would not then be controlled by the limit of rate fixed by the 1" 
 contract, for he would be entitled to recover a quantum meruit ; or, 
 (6) he may sue on the contract for wages for services actually ren- 
 dered (in which case he is bound by the contract rate), and he may also 
 bring a separate action, or join in the same action, his demand for dam- 
 ages for the wrongful discharge. 
 
 Olmstead r. Bach, supra. 
 
 Perry v. Dickerson, 85 N. Y., 345. 
 
 (4.') If, after services have been rendered, some of ivhich have been 
 jpaid for, and others remain unpaid for, there is a wrongful discharge, 
 the remedy is to sue on the contract for those unpaid for, and to join in 
 the same action, or bring a separate action for, the demand for damages ... 
 for wrongful dismissal. 
 
 Perry v. Dickerson, 85 X. Y., 345. 
 
 The cause of action for wages under the contract, and that for wrongful 
 dismissal are distinct (id.). 
 
 Recovery of damages for wrongful dismissal only, does not bar a sub- 
 sequent action for wages previously earned under the contract by services 
 actually rendered {id.). 
 
 But there can be but one recovery for damages for a wrongful dismissal; 
 and all the damages up to the time of trial may be included. 
 
 Olmstead v. Bach, supra. 
 
 Parry v. American Opera Co. (in the text). 
 
44: Abbott's Select Cases on Code Pleading. 
 
 Bank of British North Am. v. Delafield, 126 N. Y., 410. 
 
 BANK OF BEITISH NOETH AM. v. DELAFIELD. 
 
 A^ew York Court of Appeals, June, 1891. 
 [Reported in 126 N. Y., 410.] 
 
 1. It seems, that the rule that an action of a legal nature cannot be main- 
 tained by a portion of a firm against another member, for breach of 
 contract or for wrongful act on the part of the latter until after a 
 final accounting and balance struclc between them, and an express 
 promise to pay — does not preclude an action by a portion of the firm 
 to recover a loan of firm money made to one member of it ; for the 
 law upon an ordinary simple loan even to a partner, implies a promise 
 to pay it at the time stated or upon demand, without going into an 
 accounting. 
 
 3. Even were it otherwise, if on the trial of the action the accounts are 
 examined sufficiently to show tliat the defendant is indebted to the 
 firm in a much larger sum than the loan sued for, the action can be 
 maintained. 
 
 3. So held, even where the action was by an assignee of the demand, it 
 not being claimed that a full accounting in which all the partners, 
 should be parties would show a different state of indebtedness. 
 
 Aetion to recover for money lent. 
 
 The allegations of the complaint were : 
 
 That on or about the month of December, 1887, the firm or 
 co-partnership of Wm. T. Coleman & Co., of San Francisco, ad- 
 vanced and lent to the defendant at his request the sum of 
 $25,000. 
 
 That on April 26, 1888, said sum had not been repaid by the 
 defendant, and was then due and owing from the defendant to 
 said firm, and on that day the said firm duly assigned and trans- 
 ferred said indebtedness to this plaintiff. 
 
 That on May 4, 1888, the plaintiff gave the defendant due 
 notice of said assignment, and on that day duly demanded pay- 
 ment of said sum of §25,000 from the defendant, but no part 
 thereof has been paid, and there is now due and. owing from the 
 defendant to the plaintiff the sum of i?25,000, with interest 
 from May 4, 1888. 
 
 Wheeefoee, etc. 
 
 Upon the trial it appeared that defendant (residing in New 
 York) was a member of the California firm of Wm. T. Cole- 
 
I. Causes of Action at Law. (1) Express Contracts. 45 
 
 Rank of British North Am. v. Delafield, 126 N. Y., 410. 
 
 man & Co. He requested of his firm leave to draw $25,000, but 
 tlie other partnei's refused; they however offered to lend him 
 that sum. Thereafter he drew a check in the firm name for 
 that sum and deposited it to his own credit in his personal bank 
 account. He now claimed that the transaction was not a loan, 
 but was drawn by him as matter of right, on account. 
 
 At Circuit, plaintiff had a verdict. 
 
 The Supreme Court at General Term afilrmed the judgment 
 thereon. Defendant appealed to the Court of Appeals. 
 
 Peckham, J. Upon the question whether the money which 
 the plaintiff seeks to recover was a loan to the defendant from 
 the firm of which he was a menaber, or was money drawn by 
 him under a claim of right from the firm treasury in New York, 
 we think there was evidence to warrant a finding that it was a 
 loan, and was so received by the defendant. 
 
 The learned trial judge found that it was a loan. ~So time 
 -was specified for its repayment, and it became due upon demand. 
 
 The defendant claims that no action at law by a portion of a 
 firm can be maintained in case of a breach of contract and of a 
 ^Tongf ul act by another member against such other member, 
 unless upon an express promise to pay and after a final account- 
 ing and a balance struck. This may be true ; but the case is one 
 ■where the member sued has been guilty of a wrongful act, and 
 a breach of his duty, and has, for instance, converted funds to 
 his personal use by payment of his debts, which belonged to the 
 firm. These are the general characteristics of the cases cited by 
 the defendant's counsel.* 
 
 Here is a case, however, where a loan of money belonging to 
 the firm had been made to one member of it, and the law, upon 
 an ordinary simple loan, even to a partner, implies a promise to 
 pay it at the time stated, or upon demand, without going into an 
 accounting. The eases where an express promise to pay has 
 been required were those where from the facts no implied 
 promise to repay would be raised, excepting upon an accounting 
 and a balance struck. 
 
 * See Payne v. Freer, 91 N. Y., 43; Richardson v. Bank of England, 
 4 Myl. I. & C, 165 ; Bouton v. Bouton, 40 How. Pr., 317. 
 
46 Abbott's Select Cases on Code Pleading. 
 
 Bank of British North Am. v. Delafleld, 136 N. Y., 410. 
 
 7 Thus Judge Allen, in Crater v. Bininger (45 X. Y., 545 at 
 548), says that an action will not lie by one member of a partner- 
 ship against another upon an implied promise, and if the plaintiff 
 had paid the demands against the firm he could not have main- 
 tained an action against his associates upon the implied promise 
 to repay him. In such case the promise implied is to repay the 
 amount that may be found due after an accoimting. But one 
 partner can maintain an action against his copartner upon an 
 express promise, although connected with partnership business. 
 He refers to G-ridley v. Dole (4 E". Y., 486), which was a case 
 where one of two partners, after a dissolution, advanced money 
 to the other upon his promissory note, to pay partnership debts, 
 the assets of the late firm being in the hands of the member 
 receiving the money. It was held he could recover upon this 
 express obligation to repay, but if no such obligation had been 
 taken, it would have been the case of one partner advancing 
 money to pay, or paying demands against the firm, and in such 
 case he could not recover back the whole or any part of the 
 money in an action against his copartners, because the action 
 
 9 would be upon an implied promise, and that implied promise 
 was only that the other partners would pay what was due him 
 after an accounting had been taken to ascertain the state of the 
 partnership matters, and the balance, if any, that might be due 
 him. "Where, however, the facts proved raise an implied prom- 
 ise to repay upon demand the very sum which has been loaned, 
 I think an action can be maintained thereon just as well as iipon 
 an express promise to do the very thing which the law implies 
 without sach express promise. 
 
 But be that as it may, we have here the further facts tiiat the 
 indebtedness from the defendant to the firm was assigned by it 
 to the plaintiff, and upon the trial an examination into the firm 
 accounts was had so far as to show the defendant indebted to the 
 firm in a sum largely in excess of the money sued for by the 
 plaintiff. That an assignee could recover upon the indebtedness 
 arising from the loan, after proof of the state of the partnership 
 accounts, and that defendant was indebted to it in a greater sum 
 than the amount assigned, can admit of no doubt. In our union 
 of legal and equitable remedies in the same tribunal, and after 
 
1. Causes of Action at Law. (1) Express Contracts. -±7 
 
 Bank of British North Am. v. Delafield, 126 N. Y., 410. 
 
 ■what may be termed an examination in the nature of an account- 11 
 ing has been had, it is a matter of no importance that it -was 
 carried on in what would be termed an action at law. There is 
 no claim now made that there has been but a partial accounting 
 or that in consequence of such partial accounting the defendant 
 has been found indebted to the firm in a greater sum than would 
 have appeared if a full and complete accounting had been had, 
 and greater than will appear when a full and complete account- 
 ing comes to be had between the uiembers of the firm in an 
 action wherein they are all parties and where the judgment will 12 
 bind them all. We think the plaintiff showed enough to main- 
 tain its action in this respect. 
 
 These views would lead to an affirmance of the judgment 
 were it not for the erroneous admission of one piece of evidence 
 which we see no available answer to. 
 
 [After dismissing the question of evidence.] 
 
 Judgment reversed and a new trial ordered, for error in the 
 admission of evidence. 
 
 Note. — In Esdaile v. "Wuytaclv, 25 Abb. N. C, 474, Held, error to dis- 13 
 miss — on the ground that an action at law would not lie — a complaint 
 alleging' a dissolution by mutual consent of a former partnership, between 
 plaintiff and defendant, an agreement that all partnership liabilities 
 should be borne and paid equally, and that plaintiff had paid all the part- 
 nership liabilities ; and seeking judgment against the defendant for his 
 half thereof. The court held that the action did not involve investiga- 
 tion or settlement of the affairs of the partnership. 
 
48 Abbott's Select Cases on Code Pleading. 
 
 Hoboken Beef Co. v. Loeffel, 23 Abb. N. C, 93. 
 
 HOBOKEN BEEF CO. v. LOEFFEL. 
 
 2Vew York Supreme Court, General Term, 1889. 
 
 [Reported in 33 Abb. N. C, 93.] 
 
 1. Arrest may be ordered, under Code Civ. Pro., § 549, as amended in 1886, 
 
 in an action on contract, if a fraud such as is mentioned in the statute 
 be also alleged, although not with damage. 
 
 2. The fact that the pleader, after stating a cause of action on contract, 
 
 adds, in compliance witli that provision, allegations showing a fraud 
 which is ground for arrest, does not change the nature of the cause of 
 action, but will avail to sustain the arrest.'-^ 
 
 Appeal from an order denying a motion to vacate an arrest. 
 
 Van Beunt, P. J. The appellant in his points has stated the 
 ground of the motion to set aside the order of arrest obtained 
 herein to be that the complaint states a cause of action on eon- 
 tract and does not allege fraud with damage. 
 
 *NOTE ON INCIDENTAL ALLEGATIONS OF FRAUD. 
 
 Tliis question is one of much practical importance, and has hung in 
 doubt in the minds of many of the profession since the recent amendment 
 requiring the complaint to state the facts constituting the ground of arrest. 
 
 The decision in the text seems clearly to accord with the words of tlie 
 statute ; and it will be found to accord also with justice to suitors and the 
 convenience of tlie profession, when the results which would follow any 
 other decision are traced out, as indicated in 2 Abb. New Pr. & F. , 355, note. 
 
 A similar principle is applied where a plaintiff has occasion to allege a 
 fraud of defendant, not for the purpose of obtaining- arrest, but by way of 
 anticipating and avoiding a bar which defendant could otherwise rely on ; 
 as where the defendant induced plaintiff to take notes on time, by false 
 representation, and plaintiff sues without delay, and alleges the false repre- 
 sentations as entitling him to do so. Here his action is on contract solely, 
 notwithstanding he alleges and must prove the fraud. Wiegand v. Sichel, 
 4 Abb. Ct. App. Dec, 593 ; affi'g 84 Barb., 84 ; Roth v. Palmer, 27 Barb., 653 
 and cases cited. So where he sues for money paid by him under an execu- 
 tory contract, and alleges fraud as the ground on which he is entitled to 
 rescind and to recover on the implied contract to repay. In all such cases 
 his cause of action is on contract, although he may be bound to prove the 
 fraud in order to recover. 
 
 So also where he sues for price of goods and alleges breach of the buyer's 
 stipulation to give notes, as a reason for not waiting the expiration of the 
 term of credit, his action is not thereby made one for tlie breach of that 
 stipulation, but is still onlj' an action for the price of the goods. See Lee 
 V. Decker, 6 Abb. Pr. N. S., 392 ; Wills v. Simmonds, 8 Hun, 189. 
 
I. Causes of Action at Lmv. (1) Express Contracts. 49 
 Hoboken Beef Co. v. Loeffel, 23 Abb. N. O., 93. 
 
 In view of this statement of the gronnd upon which the 
 appellant founds his motion, it is not at all necessary to consider 
 the allegations contained in the complaint, because he concedes 
 that if an order of arrest may be obtained in an action upon con- 
 tract, which does not allege fraud with damage, this appeal is not 
 well taken. 
 
 It seems to us that a very brief consideration of section 549 of 
 the Code disposes of the objection. That section provides that 
 the defendant may be arrested in an action brought for either of 
 the following causes, and subdivision 4 is as follows : 
 
 " In an action upon contract express or implied, other than a 
 promise to marry, where it is alleged in the complaint that the 
 defendant was guilty of a fraud in contracting or incurring the 
 liability." 
 
 An order of arrest may issue, therefore, in actions on contract 
 where the cause of action is simply on contract ; but in such cases 
 it is necessary that the complaint should contain something more, 
 namely, an allegation that in incurring the liability on the con- 
 tract which was sued for the defendant was guilty of a fraud. 
 The action need not be to recover damages because of the fraud. 
 If the defendant was guilty of fraud in incurring the liability on 
 contract, which forms the subject of the action, and it is so alleged 
 in the complaint, then the right to arrest follows. 
 
 In the case at bar, the complaint sets up a cause of action for 
 goods sold and delivered, and it also contains allegations that in 
 order to induce the plaintiff to make such sale, and with intent 
 to defraud it of the goods so sold, the defendant falsely and fraud- 
 ulently represented to the plaintiff that he owned certain real 
 estate in the county of Hudson, in the state of New Jersey, and 
 that said real estate was free and unincumbered, and that the 
 plaintiff relying upon said representations, and being deceived 
 thereby, was induced to sell to the defendant the goods therein 
 before mentioned ; that said representations were false and untrue, 
 and known by defendant to be false and untrue ; that the defend- 
 ant did not own said real estate at the time of making the repre- 
 sentations, nor did he own any other real estate in said county. 
 These were complete and perfect allegations of fraud, and the 
 fact that the complaint does not seek or allege damages by reason 
 
 4 
 
50 Abbott's Select Cases on Code Pleading. 
 
 Blank v. Hartshoi-n, 37 Hun, 101. 
 
 of the fraud, does not in any way interfere with the right of 
 arrest ; because in an action iipon contract, where the complaint 
 alleges that the defendant was guilty of a fraud in incurring the 
 liability, an order of arrest may issue. These are the allegations 
 in this complaint. The action is upon contract, and it is alleged 
 that the defendant fraudulently and for the purpose of deceiving 
 the plaintiff, made certain allegations in regard to his responsi- 
 bility which were false. This clearly constituted a fraud, and 
 thereby brought the complaint within the provisions of the Code ; 
 and the order should be affirmed, with §10 costs and disburse- 
 ments. 
 
 Baetlett, J., concurred. 
 
 Ordered accordingly. 
 
 BLANK V. HAETSHORN. 
 
 JVew York /Supreme Court, Fifth Department, 1885. 
 [Reported in 37 Hun, 101.] 
 
 1. In an action £or labor and services alleged to have been performed 
 under a special contract at an agreed j)rice, if it appears that, from 
 the circumstances of the case, it is doubtful whether the alleged con- 
 tract can be satisfactorily established, the spirit of the Code does not 
 prevent the adding of a count for the same labor and services upon a 
 quantum meruit. For where it can be seen that the statement of 
 each cause of action is probably needful in order to prevent a failure 
 of justice in consequence of a. variance between the pleading and the 
 proof, such statement, provided it be plain and concise, should not 
 be regarded as " unnecessary repetition," within the meaning of the 
 Code. 
 
 3. So, where there is reasonable doubt upon the facts whether plaintiff 
 should claim as original contractor or as assignee of one who was 
 privy to the transaction, he may, after alleging a cause of action on a 
 contract with himself, allege the same contract as made with the 
 third person and assigned to him. 
 
 Appeal from an order. 
 
 Plaintiff having a claim to compensation from the defendants 
 for pasturage, etc., of cattle, but, being uncertain as to some 
 details of the transaction to be developed by the evidence, stated 
 three causes of action in his complaint. 
 
I. Causes of Action at Law. (1) Express Contracts. 51 
 Blank v. Hartshorn, 37 Hun, 101. 
 
 The first count alleged that from abont lirst of May, 1884, to 
 1st January, 1885, the pkiutiif pastured, fed and took care of, 
 and furnished hay and other feed for, fifty-two head of cattle 
 belonging to the defendants, at the defendants' request, and that 
 such pasturing, etc., was reasonably worth $600. The second 
 count of the complaint alleged that the plaintiff pastured a like 
 number of cattle belonging to the defendants, under a special 
 agreement made between the plaintiff and the defendants, about 
 1st May, 1SS4-, by the terms of which the defendants agreed to 
 take said cattle to the city of New York, and sell them on or 
 before 1st October, 1884, and after deducting the purchase price 
 of the cattle and the cost of transportation, to pay the plaintiffs 
 two-fifths of the remainder of the proceeds of the sale. 
 
 The third count alleged a like agreement made between the 
 defendants and one Peters, and that Peters had assigned his 
 cause of action thereunder to the plaintiff. 
 
 The Supreme Court at Special Term, on motion of defend- 
 ant, made before trial, required plaintiff to elect on which count 
 he would go to trial, and to amend his complaint accordingly ; 
 and ordered that if he failed to elect, his complaint should be 
 stricken out. 
 
 The General Term reversed the order. 
 
 Smith, P. J. [after recapitulating the facts'] : " Except in one 
 particular hereinafter mentioned, the three counts relate to the 
 same ti'ansaction. On that ground the respondent's counsel con- 
 tends that the pleading violates the mandate of the Code, that 
 the complaint must contain " a plain and concise statement of 
 the facts constituting each cause of action, without unnecessary 
 repetition. (Sec. 481, sub. 2.) But there may be more than 
 one cause of action arising out of the same transaction, and if 
 the several causes of action are such as may be united under 
 section 484, their joinder does not necessarily vitiate the com- 
 plaint. Where it can be seen that the statement of each cause 
 of action is probably needful in order to prevent a failure of 
 justice, in consequence of a variance between the pleading and 
 the proof, we think sucli statement, provided it be plain and 
 concise, should not be regarded as " unnecessary repetition " 
 
52 Abbott's Select Cases on Code Pleading. 
 
 Blank v. Hartshorn, 37 Hun, 101. 
 
 within the meaning of the Code. Thus, in an action for labor 
 and services alleged to have been performed under a siDecial 
 contract at an agreed price, if it appears that, from the circum- 
 stances of the case, it is doubtful whether the alleged contract 
 can be satisfactorily established, we think that the spirit of the 
 Code does not prevent the adding of a count for the same labor 
 and services upon a quantum meruit. In the present ease the 
 first count is of that nature and it embraces a period from the 
 1st of October, 1884, to 1st of January, 1885, not covered by 
 the special agreement as set out in the other two counts. Upon 
 these grounds we think the first and second counts may be per- 
 mitted to stand. 
 
 As to the necessity of the third count the plaintiff, in his aifi- 
 davit used on the motion, avers that the farm on which he 
 pastured the cattle was rented by Peters for the plaintiff's use ; 
 that the contract with the defendants set out in the complaint 
 was first negotiated and talked over by Peters and the defend- 
 ants when the plaintiff was not present, and that it will probably 
 be a question on the trial whether the plaintiff can claim under 
 the contract, as the undisclosed principal of Peters, or as his 
 assignee. In these circumstances we think the third count also 
 should be allowed to stand to enable the plaintiff to present the 
 several lines of proof upon which he relies. 
 
 By this disposition of the matter the defendants cannot be 
 harmed, except in being deprived of the opportunity of non- 
 suiting the plaintiff for a variance in proof, or of driving him to 
 a motion for leave to amend. A special object of the Code is to 
 remove all such meshes and pitfalls from the path of litigants. 
 The defendants may interpose as many defenses as they have to 
 each cause of action, in the same manner and with the same 
 effect as if such cause of action stood alone. 
 
 These views are in harmony with the cases of Longprey v. 
 Yates (31 Hun, 432), decided in the old Fom-th Department, 
 and the authorities there cited. In Velie r. Insurance Company 
 (12 Abb. N. C, 309, s. c. 65 How. Pr. E., 1), Westbeook, J., 
 speaking of the different grounds of recovery presented by the 
 two counts in that case, said : " If either or both are tried, the 
 proof upon each ground of recovery stated may be close and con- 
 
I. Causes of Action at Law. (1) Express Contracts. 53 
 
 Spear v. Downing, 13 Abb. Pr., 437. 
 
 flicting. A jury of twelve men may be divided in opinion as to 10 
 which one is established, while all may unite, some for one 
 reason and some for another, in the conclusion that the plaintiff 
 is entitled to recover." * And the Court of Appeals has held 
 in a recent case, that " it is not necessary that a jury, in order to 
 find a verdict, should concur in a single view of the transaction 
 disclosed by the evidence ; if the conclusion may be justified 
 upon either of two interpretations of the evidence, the verdict 
 cannot be impeached by showing that part of the jury proceeded 
 upon one interpretation and a part upon the other." (Murray v. 11 
 Ins. Co., 96 N. Y., 614.) 
 
 We think the order should be reversed and motion denied, 
 with ten dollars costs and disbursements. 
 
 Baekee, Haight and Beadley, JJ., concurred. 
 
 Order reversed, with ten dollars costs and disbursements, and 
 motion denied. 
 
 SPEAE V. DOWNING. 
 
 Supreme Court, Tfiird Department ; General Term, 1861. 
 [Reported in 13 Abb. Pr., 437.] 
 
 1. Substantial anji radical defects in a complaint may be reached under 
 the general objection in a demurrer, that it does not state facts suffi- 
 cient to constitute a cause of action. 
 
 3. Section 163 of the Code of Procedure (Code Civ. Pro., §534), ^yhich pro- 
 vides a mode of pleading upon instruments for the payment of money 
 only, applies merely to instruments apparently valid on their face. 
 
 3. An instrument in the following form : " Troy, August 4th, 1846. I 
 
 hereby agree to pay Miss A. Y. twenty dollars per month, during 
 her natural life, for her attention to my son, J. S. M. (Signed) B. M." 
 is not a promissory note. 
 
 4. Such an instrument expresses no consideration, since it affords no pre- 
 
 sumption that the services referred to were rendered in pursuance of 
 
 *In that case, plaintiff had brought an action against an insurance 
 company, to recover an amount of insurance, alleging in one count the 
 issuance of the policy, and in a second count a contract by defendant to 
 insure and to issue a policy. A motion to compel the plaintiff to elect 
 upon which count he would rely for a recovery was denied, the judge 
 commenting upon the difficulty in deciding whether a policy had actually 
 been issued or onlj' an agreement to insure and to issue a policj'. 
 
54 Abbott's Select Cases on Code Pleading. 
 
 Spear v. Downing, 13 Abb. Pr., 437. 
 
 a previous request of the promisor, or that they were beneficial to 
 him. 
 
 5. Where a consideration is not implied, or a request is essential to the 
 
 defendant's liability, it must be specially averred in pleading. 
 
 6. The rule of construing a pleading under the Code most favorablj' to the 
 
 pleader, is not applicable in regard to the fundamental requisites of a 
 cause of action. 
 
 Appeal by defendants from order of Special Term, overruling 
 demurrer to complaint. 
 
 Th,e complaint alleged that one Benjamin Marshall, in con- 
 sideration of the services therein mentioned, made and delivered 
 to the said plaintiff, then a single woman by the name and de- 
 scription of Miss Alice Yourt, his promissory note or instrument 
 in writing, in the words and figures f oUo'n'ing : 
 
 Teoy, August 4th, 1846. 
 I hereby agree to pay Miss Alice Yourt twenty dollars per 
 month, during her natural life, for her attention to my son, 
 John Stanton Marshall. Benjamin Maeshall. 
 
 The complaint then proceeded to allege the death of Benjamin 
 Marshall on the 2d of December, 1858 ; the grant of letters tes- 
 tamentary to the defendant ; that at the time of his death sixteen 
 monthly payments agreed to be made by the instrument afore- 
 said remained due and unpaid, amounting to the sum of 8320 ; 
 that since his decease twenty-one monthly payments up to the 
 1st of September, 1860, had become due and payable to said 
 plaintiff amounting to the sum of §420 — no part of which has 
 been paid though duly demanded ; and demands judgment for 
 both said sums of $320 and. $420 with interest on the monthly 
 installments, together with costs of the action. 
 
 The defendants demurred to the complaint on the ground that 
 the same did not state facts sufllcient- to constitute a cause of 
 action and specified the following defects. 1. That the com- 
 plaint contained no allegation of the performance or bestowraent 
 of attention. 2. Xor of the nature, extent or \-alue of such at- 
 tention, nor that it was of any value.* 
 
 *The objections need not now be specifically set forth, when the ground 
 of demurrer is the insufficiency of the pleading. Code Civ. Pro., § 490. 
 
I. Causes of Action at Law. (1) Express Contracts. 55 
 
 Spear v. Downing, 13 Abb. Pr., 437. 
 
 Tlie court at Special Term rendered judgment for the plaintiff 
 on the demurrer ; the defendants appealed. 
 
 HoGEBOOM, J. I think the complaint is not insufficient for 
 either of the specific defects named in the demurrer. I tliink 
 the fair inference is that the services or attentions had been 
 already rendered. The omission to state their nature, extent and 
 value, if necessary to be stated, was a defect to be reached by 
 motion, under the section 160 of the Code, and not by demurrer. 
 
 But I think substantial and radical defects in the complaint 
 may still be reached under the general allegation that the com- 
 plaint does not state facts sufficient to constitute a cause of action. 
 (Code, § 144 ; Durkee v. Saratoga E. R. Co., 4 How. Pr., 226 ; 
 White V. Brown, 14 ib., 282 ; Haire v. Baker, 1 Seld., 359 ; 
 Conn. Bank v. Smith, 9 Abb. Pr., lYS; s. c. 17 How. Pr., 487.)- 
 
 This brings us to the question principally argued before us, to 
 wit ; whether the complaint on its face contains the elements of 
 a good cause of action. 
 
 This depends mainly upon the construction to be given to 
 section 162 of the Code, which provides that in an action or de- 
 fence founded upon an instrument for the paynrent of money 
 only, it shall be sufficient for a party to give a copy of the instru- 
 ment, and to state that there is due him thereon from the adverse 
 party, a specific sum which he claims. 
 
 The instrument in question comes within the literal descrip- 
 tion of the kind of instrument mentioned in this section ; for it 
 is an instrument for the payment of money only. But obviously,, 
 something more is necessary. 
 
 It would seem that it should be an instrument on its face ap- 
 parently valid, certainly one not clearly void ; for then the 
 instrument would nullify itself. 
 
 This instrument is not a promissory note because it was not 
 payable at all events. The death of Alice Yojirt within a month 
 after the date of the instrument would have defeated any re- 
 covery. (Prindle v. Carruthers, 15 X. Y., 430.) In the language 
 of the Court of Appeals '' it is necessary, therefore, that the 
 promise should, from the complaint, appear to have been made 
 upon consideration." (75.) 
 
56 Abbott's Skleot Cases on Code Pleading. 
 
 Spear v. Downing, 12 Abb. Pr., 437. 
 
 There is no allegation of consideration in the complaint inde- 
 pendent of that, if any, which appears upon the face of the 
 instrument. That consideration as alleged is " for her attention 
 (paid or given) to my son, John Stanton Marshall." 
 
 To make defendants liable, this attention must have been 
 bestowed either in performance of a request previously made, or 
 must have been in its nature beneficial to the party promising, 
 so as to operate as a reasonable and probable consideration for 
 the promise. (Ingraham v. Gilbert, 20 Barb., 152 ; Ehle v. Jud- 
 son, 24 Wend., 97, 98 ; Goulding v. Davidson, 28 Barb., 438 ; 
 ^ Wilson V. Baptist Ed. Soc, 10 Barb., 308 ; Gould's Pleadmg, 
 1Y6, sec. 15.) 
 
 Here, certainly no request whatever is averred, and I think 
 not necessarily or fairly implied. The instrument is quite as 
 consistent with the idea that the services were performed 
 without any request at all, or at the request of John Stanton 
 Marshall, as at the request of the testator. 
 
 It seems to me that this should not be left to inference. The 
 request is a prerequisite to the liability, and I think the pleader 
 10 should aver it. While pleadings are not to be condemned for 
 want of form, and are to be liberally construed, I think substan- 
 tial defects are not to be disregarded. We are not to uphold a 
 pleading simply because a state of facts might exist against what 
 is probable, which would justify an action. 
 
 The same considerations apply to the other alternative. I do 
 not see that the services are presumed to have been beneficial to 
 Benjamin Marshall. They were rendered to another person, his 
 son, not alleged nor presumed to have been a minor, or in a 
 situation to make it obligatory upon the father to support him. 
 
 If every fact fairly inferable from the terms of this writing, 
 were sjjread out on the face of this complaint in the shape of 
 distinct and positive allegations, the complaint would not have 
 stated a good cause of. action. If Benjamin Marshall had de- 
 clared orally in so many words what he has thus expressed in 
 writing, I think no one would have supposed that he rendered 
 himself liable to an action. 
 
 We ought not, I think, to extend the application of section 
 162 beyond the probable intent of the legislature, or to give a 
 
I. Causes of Action at Laiv. (1) Express Contracts. 57 
 
 Spear v. Downing, 13 Abb. Pi'., 437. 
 
 party the benefit of a cause of action by this indirect mode of 12 
 averment, M-lien lie would not have had it, if he had put his alle- 
 gations in proper form, and in express terms. Some rules of 
 pleading, in the confusion and anarchy introduced by the Code, 
 must still be observed and one of them is or ought to be, that 
 where a consideration is not implied, or a request is " essential 
 to the defendant's liability, it is the gist of the action and must 
 be specially averred." (Gould's Pleadings, 176.) 
 
 The case of Prindle v. Carruthers (15 N. Y., 425), is not in 
 conflict with the views here expressed. There the consideration 
 " for value received" appeared from the face of the instrument, 
 and was moreover held to have been argumentatively inferable 
 from the extrinsic allegation that the defendant made his con- 
 tract in writing. (14 Ih., 431.) 
 
 It is suggested that the rule, that where a contract is susceptible 
 of a two-fold construction, one of which will make it valid and 
 the other void, the legal presumption is in favor of the validity 
 of the contract, may help the plaintiff in this case. The rule 
 turns rather upon a question of evidence or presumption, than of 
 pleading. If the question here turned upon the nature of the 14 
 services rendered the rule would apply. But it turns upon the 
 question for whom or at whose request were the services rendered, 
 and the absence of any allegation on this point was never, that I 
 am aware of, supposed to be aided or cured by this rule. 
 
 It is further suggested that the rule of construing a pleading 
 under the Code contrary to what it was before, is to construe it 
 most favorably to the pleader. I do not admit the existence of 
 the rule to this unqualified extent. It may be admissible on 
 questions of f6rm, but it can not be applicable in regard to the 
 fundamental requisites of a cause of action. 
 
 The order of the Special Term should be reversed with costs, 
 and judgment rendered in favor of the defendants on the de- 
 murrer, with leave to the plaintiff to amend her complaint on 
 payment of costs. 
 
 Gould, P. J., concurred. 
 
 Pkckham, J., dissented. 
 
58 Abbott's Select Cases on Code Pleading. 
 
 Carnwright v. Gray, 127 N. Y., 92. 
 
 CARNWEIGHT v. GEAY. 
 
 JVew York Court of Appeals, 1891. 
 
 [Reported in 127 N. Y., 93.] 
 
 1. A promissory note must contain the positive engagement of the maker 
 
 to pay at a cei-tain definite time, and the agreement to pay must not 
 depend on any contingency, but be absolute and at all events. 
 
 2. The fact that an instrument is made payable at a specified time after 
 
 the death of the maker does not prevent its being a valid promissory 
 note. 
 .3. It is not necessary under the N. Y. Statute (1 R. 8. 768), in actions upon 
 promissory notes, either to aver or prove considei'ation ; the rule 
 applies whether the note is negotiable or not, and whether it expresses 
 value received or not. 
 
 Action against defendants as executors. 
 
 The complaint alleged : That Samuel P. Frehgh, on the 2d 
 day of September, 1871, became and was indebted to plaintiff in 
 the sum of fifteen hundred dollars for moneys lent by plaintiff to 
 said Freligh, and that on said 2d day of September, IS 71, to 
 secure the payment of said sums and as evidence of said 
 indebtedness and in consideration thereof, the said Samuel P. 
 
 Freligh, at , on said 2d day of September, 1871, made, 
 
 executed and delivered to plaintiff his certain promissory note or 
 obligation in writing, of which the following is a copy, viz.: 
 
 " QoAEEYViLLE, September 2d, 1871. 
 Thirty days after death I promise to pay to Cornelius W 
 Carnwright fifteen hundred dollars with interest. 
 
 Samuel P. Feeligh." 
 
 That plaintiff is still the holder and owner of said promissory 
 note or written obligation, and that no part thereof, or of the said 
 money consideration has been paid, and that the said sum of 
 fifteen hundred dollars, with interest, from September 2d, 1871, 
 is due and owing to the plaintiff therefor and thereon. 
 
 The complaint then showed the death of said Freligh, defend- 
 ants' qualification as his executors, plaintiff's demaad upon them 
 for the payment of the note after the same became due and 
 payable and their refusal so to do. 
 
 For a second cause of action the complaint alleged the making 
 
I. Causes of Action at Law. (1) Express Contracts. 59 
 
 Cam Wright v. Gray, 127 N. Y,, 93. 
 
 and delivery to plaintiff "for value received" of a similar note 
 by the deceased, wherein " for value received " the said Freligh 
 " for value received " promised to pay, etc. 
 
 Judgment was demanded for fifteen hundred dollars and 
 interest. 
 
 The defendants denied the making of the note, alleged that if 
 ever made it was made without consideration, and therefore, 
 void, and that if ever made, it was paid during the lifetime of 
 said Freligh. 
 
 The plaintiff produced witnesses who testified to the genuine- 
 ness of the deceased's signature, and put the note in evidence. 
 He then rested. The court denied defendants' motion for a non- 
 suit, made upon the ground that plaintiff had failed to establish 
 a valid contract against the estate, and had not proved that the 
 instrument introduced in evidence had any consideration. 
 
 At Circuit plaintiif had a verdict. 
 
 The General Term of the Supreme Court affirmed the judg- 
 ment, on grounds similar to those presented in the following 
 opinion of the Court of Appeals. 
 
 The Court of Appeals affirmed the judgment. Brown, J. 
 When the plaintiff rested his case, and again, at the close of the 
 testimony, the defendant moved to dismiss the complaint upon 
 the ground that no proof had been given that the instrument 
 sued upon had any consideration. These motions were denied 
 and the court instructed the jury that the instrument was a 
 promissory note and imported a consideration, and that the 
 burden rested upon the defendants to show that it was without 
 consideration. 
 
 The exceptions to these rulings present the principal question 
 argued upon this apjjeal. 
 
 The statute of this state in reference to promissory notes pro- 
 vides as follows (1 R. S., Y68) : 
 
 " Sec. 1. All notes in writing, made and signed by any person, 
 whereby he shall promise to pay to any other person or his order, 
 or to the order of any other person, or unto the bearer, any sum 
 
60 Abbott's Select Cases on Code Pleading. 
 
 Carnwrig-ht v. Gray, 127 N. Y., 92. 
 
 s of money therein mentioned, shall be due and payable as therein 
 expressed ; and shall have the same effect and be negotiable in 
 like manner as inland bills of exchange, according to the custom 
 of merchants. 
 
 " Sec. i. The payees and indorsees of every such note payable 
 to them or their order and the holders of every such note paya- 
 ble to bearer, may maintain actions for the sums of money 
 therein mentioned, against the makers and indorsers of the same, 
 respectively, in like manner as in cases of inland bills of exchange 
 
 and not otherwise." 
 9 
 
 Our statute is a substantial re-enactment of the statute of 
 
 Anne (3 and 4 Anne, c. 9), which provided that : '•' All notes 
 
 signed by a person promising to pay to another his, her or their 
 
 order or to bearer " should be construed to be by virtue thereof 
 
 due and payable to any such person to whom the same is made 
 
 payable, etc., etc. 
 
 This statute was held by the courts of England to include 
 within its terms a non-negotiable note (Smith v. Kendall, 6 
 D. & E., 123 ; Burchell v. Slocock, 2 Ld. Eaym., 154.5 ; 3 Kent's 
 10 Com., 77). 
 
 In the case first cited Lord Kenyon ■ said : " A note may be 
 made payable to ' A ' or bearer, ' A' or order, or to ' A' only.'' 
 Similar decisions were made by the courts of this state under 
 our own statute (Downing v. Backenstoes, 3 Caines, 137 ; Pres- 
 ident V. Hurtin, 9 Johns, 217 ; Kimball v. Huntington, 10 Wend., 
 675 ; Hall v. Farmer, 5 Denio, 484). 
 
 lo Downing v. Backenstoes, a non-negotiable note was de- 
 clared on as within the statute, and the defendant demurred on 
 the ground that the declaration did not allege the transaction 
 and consideration upon which the note was given. The court 
 gave judgment for the plaintiff saying : " The very point was 
 settled in Green v. Long (April Term, 179 S) in conformity to 
 the adjudications in Westminster Plall." 
 
 In President v. Hurtin it was said : " The note set forth is a 
 good promissory note within the statute, though it has no words 
 bearer or order. This is the established English law and the 
 same rule is recognized by this court." 
 
 In Kimball v. Huntington the action was upon a due bill in 
 
I. Causes of Action at Law. (1) Express Contracts. 61 
 
 Carnwright v. Gray, 137 N. Y., 93. 
 
 this form : " Due Kimball and Kenston, three hundred and 12 
 twenty-five dollars payable on demand." Judge Nelson said : 
 " The instrument is a promissory note within the statute. 
 Neither the acknowledgment of value received or negotiable 
 words are essential to bring it within the statute." (See also 
 Carver v. Hayes, 4Y Me., 257 ; Franklin v. March, 6 JST. H., 364.) 
 
 No authority is cited in the courts of this state or of England 
 holding that a non-negotiable note is not within the terms of the 
 law cited, and we are of the opinion that the language of our 
 statute includes a note payable to a person without words of 
 negotiability. 
 
 The instrument sued upon being, therefore, a promissory note 
 within the statute of this state, it follows that it imports a con- 
 sideration. By the express terms of the statute the sum of 
 money therein mentioned is declared to be " due and payable as 
 therein expressed." That it is " due and payable " according to 
 its terms is the legal conclusion which the court must draw from 
 the instrument itself. A valid contract is thus declared to exist, 
 and of course a consideration must be imphed. Hence " value 
 received" need not appear on the face of the note, as those 14 
 words express only what the law implies. (Hatch v. Trayes, 11 
 Ad. & EL, 702 ; Hall v. Farmer, 5 Denio, 484. ) The efEect of 
 laws which make promissory notes negotiable, or which author- 
 ize actions of debt upon them, though non-negotiable, is to take 
 them out of the common law rule which requires that every 
 contract must be shown by the party who sues upon it, to be 
 supported by a consideration, and enables the holder to maintain 
 an action thereon without alleging or proving a consideration. 
 In other words a consideration is implied from the character of 
 the instrument (Peasley v. Boatwright, 2 Leigh, 195 ; Hatch v. 
 Trayes, sujpra). 
 
 The English statute was enacted to settle the controversy that 
 prevailed, whether under the customs of merchants promissory 
 notes were negotiable. 
 
 They were thereby declared to be assignable or indorsable 
 over in the same manner as inland bills of exchange were, accord- 
 ing to the customs of merchants, and holders were empowered 
 to maintain actions thereon in the same manner as they might 
 
62 Abbott's y elect Cases on Code Pleading. 
 
 Carnwright v. Gray, 137 N. Y., 92. 
 
 16 do upon any inland bill of exchange made or drawn according 
 to the custom of merchants. 
 
 Our statute contains similar provisions. Promissory notes and 
 inland bills of exchange were, by virtue of these laws, put upon 
 an equality. They were made negotiable if they contained 
 words of negotiability, but whether negotiable or not, and 
 whether they expressed value received or not, it was no longer 
 necessary in actions thereon to aver and prove consideration. 
 
 Such was and is the rule as to inland bills of exchange. 
 (1 Daniel on Negotiable Inst., § 161 ; Raubitschek v. Blank, 80 
 ^"^ N. Y., 479 ; Averett's Admrs, v. Booker, 15 Gratt, 163 ; Wells «. 
 Brigham, 6 Cush., 6.) 
 
 And the same rule under the statute was made applicable to 
 promissory notes. (Townsend v. Derby, 3 Metcalf , 363 ; Dean v. 
 Carruth, lOS Mass., 242 ; Bank of Troy v. Topping, 9 Wend., 277 ; 
 13 id., 557; Chitty on Bills [9th Am. Ed.], 78-181; Paine v. 
 ISTalke, 57 How. Pr., 273 ; Story on Promissory Notes, § 51 ; 
 3 Kent's Com., 77, 78; 1 Parsons on Conts. [6th ed., 249]; 
 1 Parsons on Bills, 193.) 
 18 The statute does not require a note to express vahie received 
 upon its face, and no definition of such an instrument requu-es 
 the expression of that fact. 
 
 The note sued upon, although by its terms payable after the 
 death of the maker, was a valid instrument. 
 
 A promissory note is defined to be a written engagement by 
 one -person to pay absolutely and unconditionally to another 
 person therein named, or to the bearer, a certain sum of money 
 at a specified time or on demand. (Story on Prom. Notes, § 1 ; 
 Coolidge V. Buggies, 15 Mass., 387.) 
 ^ It must contain the- positive engagement of the maker to pay 
 at a certain definite time and the agreement to pay must not 
 depend upon any contingency, but be absolute and at all events. 
 
 Tried by this standard the instr\iment set out in the complaint 
 was a valid promissory note. The fact that it was payable after 
 the death of the maker did not affect its character. (3 Kent's 
 Com., 76.) 
 
 It follows from these views that the motion to dismiss the 
 complaint was properly denied, and there was no error in the 
 
I. Causes of Action at Law. (1) Express Contracts. 63 
 
 Carnwi'ight v. Gray, 127 N. Y., 92. 
 
 charge of tlie court. The point made by the appellant that the 20 
 court erred in its charge as to the burden of proof on the ques- 
 tion of consideration, assuming the evidence pro and con upon 
 that question was given, was not raised at the trial. The propo- 
 sition made by the defendant at the close of the judge's charge, 
 and the only one to which an exception appears in the record, 
 was as follows : 
 
 " In order that there may be no doubt about our position we 
 ask the court to charge the jury that there has been no evidence 
 given of consideration, and to direct a verdict for the defendant 
 upon that ground." 21 
 
 The defendant having thus squarely planted himself on the 
 ground that there was no evidence of consideration, and asked 
 the court to direct a verdict in his favor, cannot now claim that 
 there was evidence for the jury and that he was entitled to a 
 difEerent instruction from that given. The defendant's claim all 
 through the trial was that the note did not import a consideration, 
 and that the plaintifE could not recover without proof of that 
 fact, and his motion to dismiss the complaint and direct a verdict 
 in his favor, and his exceptions to the charge, all sharply present 
 that question ; but he nowhere claimed that he had given evi- 22 
 dence which, if believed by the jury, overcame the presumption 
 • arising in favor of the note. 
 
 This clearly appears from the statement I have quoted. 
 
 The exceptions to the admission of evidence present no error 
 and the judgment should be affirmed. 
 
 All the judges concurred, except Follett, Ch. J., and Vann, J., 
 dissenting, and Paekee. J., not voting. 
 
 Judgment affirmed. 
 
64 Abbott's Select Cases on Code Pleading. 
 
 Keteltas v. Myers, 19 N. Y., 231. 
 
 KETELTAS v. MYERS. 
 
 JVew Yorh Court of Appeals, 1869. 
 
 [Reported in 19 N. Y., 231, rev'g 3 E. D. Smith, 83.] 
 
 1. The complaint alleged that defendant, on a day specified, for value 
 received, made and delivered to plaintiff, his promissory note in writ- 
 ing, and payable to plaintiff's order, and indorsed by him [setting 
 forth a copyl ; that there was due and owing plaintiff the said supi of 
 [specifying it], with interest thereon from [specifying date]. Held, 
 sufficient ; and that a demurrer on the ground that it was not stated 
 that plaintiff' was owner of the note, or that there had been a breach, 
 or that anything was due or owing upon it, or from defendant was 
 frivolous. 
 
 3. "Due" is sometimes used to express tlie mere state of indebtment, 
 and then, is an equivalent to owed or owing ; sometimes to express 
 the fact that the debt has become payable. 
 
 Action on a promissory note. 
 
 Tlie allegations of the complaint were as follows : 
 
 " 1st. Tliat the defendant, on the first day of Jaly, 1853, for 
 
 value received, made and delivered to the said plaintiff his 
 
 promissory note in writing, and payable to the order of the 
 
 plaintiff, and indorsed by him, of which the following is a copy : 
 
 JSTew Yoek, July 1st, 1853. 
 
 " Sixty days after date, I promise to pay to the order of 
 Eugene Keteltas, two hundred and four 6Y-100 dollars, for value 
 received. James Myees, Je. 
 
 )S204.67. 661 Water sireet." 
 
 That there is due and owing the said plaintiff the said sum of 
 two hundred and four 67-100 dollars, with interest thereon from 
 the second day of September, one thousand eight hundred and 
 fifty-three. 
 
 Wheeefoee the plaintiff demands judgment against the said 
 defendant for the said sum of two hundred and four 67-100 dol- 
 lars, with interest from the 2d day of September, 1853." 
 
 The Code of Procedure then in force provided : 
 
 §166 [2]. In an action or defense founded upon an instrument 
 for the payment of money only, it shall be suflicient for a party 
 to give a copy of the instrument, and to state that there is due 
 
I. Causes of Action at Law. (1) Express Contracts. 65 
 
 Keteltas v. Myers, 19 N. Y,, 231. 
 
 to him thereon from the adverse party a specified sum, which he 4 
 claims. 
 
 Section 534 of the Code of Civil Procedure, by which the 
 above provision is superseded, is as follows : 
 
 % 53i. 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 specitied sum, 
 
 which he claims. Such an allegation is equivalent to setting 
 
 forth the instrument, according to its legal effect.* 
 
 o 
 
 The Cohort of Common Pleas at Special Term sustained a 
 demurrer to the complaint on the ground of insufliciency. 
 
 The court held that plaintiff's title was snfKciently shown 
 because there was no averment of a transfer of the note by 
 indorsement ; the mere statement that plaintiff indorsed the note 
 without alleging a delivery amounted to nothing. 
 
 But there was no averment of a breach ; nor " that the sum 
 was due and owing //"om the defendant^ 
 
 The General Term affirmed the judgment, on the same grounds. 6 
 
 I'he Court of Appeals reversed the judgment. 
 
 Allen, J. There are four grounds of objection specified in 
 the demurrer. The first is that it does not appear, and is not 
 stated or averred, that the plaintiff is the owner or holder of the 
 note in the complaint mentioned. The allegation is, that the 
 defendant, on the 1st day of July, 1853, for value received, made 
 and delivered to the plaintiff his promissory note, etc. The alle- 
 gation that the note was made to the plaintiff would have been a 
 sufficient averment of ownership, without averring a delivery. 1 
 (Y Term E., 596; 5 East, 476 ; 10 How., 275 ; 12 id., 452.) But 
 it is unnecessary to dwell on this point, as the court below held it 
 not well taken, and it was not insisted upon, but rather aban- 
 doned, on the argument here. 
 
 The second ground of demurrer is, " that it does not appear, 
 and is not stated or averred, that the same or any part thereof 
 
 *The section is merely permissive, and tlie pleader is not confined to 
 this mode of pleading. Mayor, etc., v. Doody, 4 Abb. Pr., 137. 
 
66 Abbott's Sef-ect Cases on Code Pleading. 
 
 Keteltas v. Myers, 19 N. Y., 231. 
 
 8 remains unjmid ;''' and the third ground is, "that it is not 
 stated that any sum is due or owing upon if." 
 
 The making and delivery of the note to the plaintiff is averred, 
 and after setting out a copy of it, by wliich it appears it was 
 dated on the 1st day of July, 1853, and was payable to the order 
 of the plaintiff at sixty days, and was for the sum of !t>20i.67, the 
 complaint further avers " that there is due and owing said plaint- 
 iff, the saiil sum of §'^U4.67, with interest thereon from 2d of day 
 September. 1S53." The amount averred td be due is the exact 
 
 sum mentioned in the note, and the claim of interest is from the 
 q 
 
 2d day of September, 1853, the day the note became due, at 
 which time, and not before, interest was chargeable. The words 
 " said smn'^ referred most clearly to the note and the money 
 mentioned in it, and are equivalent to averring that there was due 
 upon it, or thereon, the sum mentioned in it, Avith interest. The 
 defendant promised to pay the plaintiff a certain sum. The note 
 is evidence of that sum, and a true copy is set out. If the note, 
 or any part, had been paid, that was matter of defence to be set 
 up in the answer. It was outstanding, as the complaint shows, 
 10 and that imputes a subsisting liability. (Story on Prom. INotes, 
 § 106 ; Lake v. Tyson, 6 N. Y., 2 Seld. 461.) The case of Allen 
 V. Patterson, 7 N. Y. (3 Seld., 476), settles the present in favor 
 of the defendant and that very sum is alleged to be due to the 
 plaintiff. 
 
 The court below, in coming to the conclusion that there was 
 no sutlicfent breach stated in the complaint, remarked that there 
 is no allegation that the note has become payable, or that it is 
 due. But the learned judge, who wrote so elaborately on that 
 point, seemed to have overlooked the fact that a copy of the 
 note was set out in the complaint under Section 162 of the Code, 
 in which it appeared that it was dated 1st of July, 1853, and was 
 payable sixty days after date, to the order of the plaintiff, show- 
 ing upon its face that it had become payable, and was due before 
 the commencement of the action. All that was necessary to 
 state additionally was, that there •was due to the plaintiff thereon, 
 from the defendant, the amount of the note. This is done, in 
 the present ca^u, in eipiivalent words, about which there can be 
 no mistake or mi>leading of the party; and the allegations 
 
I. Causes nf Action at Law. CI) Express Contracts. 67 
 
 Palmer v. Smedley, 6 Abb. Pr. R., .205. 
 
 should have been liberally construed, with a view to substantial 12 
 justice between the parties. (Code, § 159 ; 7 N. Y., 480.) 
 
 Tke court below admitted that the objections to the complaint 
 were strictly technical, and that under the present system of 
 pleading, such technicality should not be encouraged further 
 than is necessary for the due and orderly administration of justice. 
 In our opinion, they should have decided in conformity to those 
 views. They should have gone further — they should have 
 declared the demurrer frivolous, as we now do. \^ 
 
 The judgment must be reversed, and judgment rendered for 
 the plaintiff with costs. 
 
 All the judges concurred. 
 
 Ordered accordingly. 
 
 PALMER V. SMEDLEY. 
 
 JYew Yorh Supreme Court., Special Term., 1858. 
 
 [Reported in 6 Abb. Pr. R., 303 ; aff'd without opin., 28 Barb., 468.] 
 
 1. Complaint held bad on demurrer which — after setting out the note in 
 suit and alleg'ing its assignment to plaintiff — alleged that the note 
 was the property of the assignor, who was the lawful owner and 
 holder thereof. 
 
 3. The presumption of law which would arise from the allegation of 
 plaintiff's possession of the note is rebutted by the averment that the 
 assignor is the lawful owner and holder. 
 
 The complaint alleged an assignment l)y an association known 
 as Antioch College of its estate, etc., to plaintiff in trust to col- 
 lect its debts. It then averred that on April 5, 1851, the de- 
 fendant made his promissory note for the sum of $100, payable 
 September 1, 1852, and delivered the same to the said Antioch 
 College ; that the note had never been paid ; that it was then in 
 the possession of the plaintiff as the property of the said Antioch 
 College, w/wcA i«(2s the lawful oivner and holder thereof ; and 
 that there was due on said note $135.53. 
 
 A second cause of action alleged defendant's subscription to 
 the stock of the college in a specitied sum, which had never 
 been paid, and that there remained due and owing to said col- 
 lege the amount of said subscription. 
 
68 Abbott's Select Cases on Code Pleading. 
 
 Cohu V. Husson, 113 N. Y., 662; aff'g 14 Daly, 200. 
 
 Plaintiff demanded judgment for both sums. Defendant de- 
 murred on the ground that the complaint did not state facts 
 sufficient to constitute a cause of action, 
 
 Davies, J. As to the first cause of action, it is clearly defect- 
 ive. It not only does not aver that the plaintiif is the real party 
 in interest, but avers that the note sued on is not the property of 
 the plaintiff and that he is not the lawful owner and holder of 
 the same, but that it is the property of another, and which other 
 is the lawful owner and holder thereof. This is in direct con- 
 flict with section 111 of the Code. [Code Civ. Pro., i? 449.] 
 
 The presumptions of law which would arise from the fact that 
 the plaintiff, being in possession of the note, is the lawful owner 
 and holder thereof, is rebutted by the averment that he is not 
 such lawful owner and holder. 
 
 In reference to the second cause of action, there is no aver- 
 ment of any indebtedness to the plaintiff by reason of the mat- 
 ters therein stated, or of any right therein on his part to demand 
 of the defendant the money therein mentioned. The averment 
 is, that the amount of the subscription is now due and owing to 
 the said college, thus negativing any indebtedness to the plaintiff. 
 
 COHU V. HUSSON. 
 
 JVew York Court of A])peals, 1889. 
 
 [Repoi-ted in 113 N. Y., 663 ; aff'g 14 Daly, 200.] 
 
 1. The omission in a complaint on a promissory note setting forth the 
 
 note and alleging that plaintiffs were the owners thereof, in the short 
 form given by Code Civ. Pro., § 534, to allege also, as required by that 
 section, that it was executed by defendant, or that a specified sum 
 was due plaintiff thereon, is cured by an answer expressly admitting 
 defendant's execution of the note, not alleging payment, but setting 
 up as a defense, want of consideration. 
 
 2. After judgment in favor of plaintiff, the complaint might be deemed 
 
 amended. 
 
 3. A complaint in an action by administrators alleged that letters of ad- 
 
 ministration were duly issued and granted to plaintiffs by the 
 surrogate of a speciBed county, and that they duly qualified, etc.— 
 Held, sufficient as against an objection taken at the trial, although it 
 did not set forth the facts showing that the suri-ogate had jurisdiction. 
 
 Action on a promissory note. 
 
I. Causes of Action at La'jo. (1) Express Contracts. 69 
 
 Cohu V. Husson, 113 N. Y., 662; aff'g 14 Daly, 300. 
 
 The allegations of the complaint, were as follows : 
 I. — That the plaintiffs are lawful owners and holders of a 
 ■certain promissory note of which the following is a copy : 
 
 $750.00. New Yoek, Deer. 11th, 1878. 
 
 " Five months after date I promise to pay to the order of Mr. 
 " Henry S. Cohu, seven hundred and fifty dollars at the 
 " Brooklyn Bank, in the City of Brooklyn, value received. 
 
 "New Yoek, 11/14, '79. Joseph Husson." 
 
 II. — That thereafter and before the commencement of this 
 action said Henry S. Cohu died intestate, and that on the 11th 
 day of May, 1883, letters of administration upon the estate of 
 said Henry S. Cohu, deceased, were duly issued and granted to 
 these plaintiffs by the surrogate of the city and county of New 
 York, appointing the plaintiffs administrators to all the goods 
 and chattels and credits which were of said deceased, and that 
 the plaintiffs thereupon duly qualified as such administrators^ 
 and entered upon the discharge of the duties of their said office. 
 
 III. — That no part of said note has ever been paid. 
 
 Wheeefoee, etc. 
 
 The answer, omitting formal parts, was as follows : 
 
 I. — That the note in suit had no legal inception, because, that 
 for their mutual accommodation, the plaintiffs' intestate, on or 
 about the 4th day of December, 1878, exchanged promissory notes 
 with the defendant for the sum of seven hundred and fifty 
 dollars, under the agreement that the said plaintiffs' intestate 
 should pay the promissory note he gave this defendant, and this 
 defendant should pay the promissory note which he gave the 
 said plaintiffs' intestate, which is the note in suit, and neither 
 was to have any validity as against the other, unless so 
 respectively paid ; that this defendant used the said plaintiffs' 
 intestate's note, which is of the same amount, date and time of 
 payment as the note in suit, and transferred the same to George 
 B. Eipley & Co. with this defendant's endorsement thereon. 
 That, at the maturity of the last mentioned note, the said 
 plaintiffs' intestate did not pay the same, but the same was pro- 
 tested for non-payment, and this defendant was duly notified, 
 as indorser thereon, by the said George B. Eipley & Co., who. 
 
70 Abbott's Select Cases on Code Pleading. 
 
 Cohu V. Husson, 113 N. Y., 662; aff'g 14 Daly, 300. 
 
 up to the commencement of this suit were, and had been, and 
 are holders thereof, and claim to enforce the same against this 
 defendant, whereby the consideration of the promissory note, 
 now in suit in this action, before the death of the said intestate, 
 and ever since, has wholly failed, and the said plaintiffs' intestate 
 was not, up to the time of his death, nor the said plaintiffs, as his 
 legal representatives, been bona-fide holders thereof for value, or 
 compelled to pay the same.* 
 
 II. — For a second and further defense, and by way of counter- 
 claim, this defendant says, that, on the 11th day of August, 1879, 
 the said intestate made his certain promissory note, of which the 
 following is a copy : 
 
 New York, August 11th, 1879. 
 
 Two months after date I promise to pay to the order of 
 Joseph Husson, seven hundred and fifty dollars, at — value 
 received. Henry S. Cohu. 
 
 That he delivered the same for value to this defendant, who 
 ever since has been the lawful owner and holder thereof ; that, 
 at maturity, and before his death, the said intestate did not pay 
 the same, and the amount thereof is now due this defendant, 
 with interest thereon, from the time of its maturity, and he 
 claims to offset the same against any demand the said plaintiff 
 may sustain against this defendant, on the cause of action herein, 
 and to have judgment against the said plaintiffs, as adminis- 
 trators, etc., of the said intestate, for the said amount with the 
 lawful interest thereon. 
 
 Wherefore, this defendant praj's that the said complaint may be 
 dismissed with costs, and that he may have judgment on this 
 counterclaim, herein, with costs. 
 
 Defendant raised the objection that the complaint neither 
 pleaded the note according to common-law rules nor complied 
 with the conditions of the short method of pleading on instru- 
 ments for the payment of money only given by Code Civ. Pro. 
 § 534, which is as follows : " Where a cause of action, defense, 
 or counterclaim, is founded upon an instrument, for the pay- 
 ment of money only, the party may set forth a copy of the 
 
 * That this portion of tlie answer presents no legal defense, see Eioe 
 V. Grange, 131 N., Y. 149. 
 
I. Causes of Action at Law. (1) Express Contracts. 71 
 
 Cohu V. Husson, 113 N. Y., 663; aff'g 14 Daly, 200. 
 
 instrument, and state that there is due to him tliereon, from the 9 
 adverse party, a specified sum, which he claims. 
 
 Such an allegation is equivalent to setting forth the instrument 
 according to its legal effect. " 
 
 The Court of Common Please at the Trial Term., upon the 
 verdict of a jury, entered judgment for the plaintiff. 
 
 The General Term affirmed the judgment, making no ruling 
 however on the question of pleading. 
 
 The Court of Appeals, affirmed the judgment. .. „ 
 
 Eael, J. [after stating the suljstance <f the pleading said'\: ''It 
 is true that the complaint is not in compliance with section 534 of 
 the Code, as it does not state that there is due to the plaintiffs 
 on the note from the defendant a specified sum which they 
 claim. They simply allege that they are lawful owners and 
 holders of the note, and set it out. They do not allege that it 
 was executed by the defendant, nor do they allege that any sum 
 whatever is due thereon to them. But this defect in the 
 complaint is cured by the answer, in which the execution of the 
 note by the defendant is admitted. And there is no allegation H 
 that it has been paid. Therefore, even if the complaint woald 
 have been held defective, if demurred to, the defect was cured 
 by the answer, and the complaint may now be deemed amended. 
 (Code, §< 721-723 ; Bate v. Graham, 11 N. Y., 237; Pratt v. H. 
 k E. E. Co., 21 id., 305; Haddow v. Lundy, 59 id., 328.) 
 
 " It was also claimed that the complaint was defective because 
 it did not allege facts showing that the surrogate of New York 
 County, by whom plaintiffs were appointed administrators, had 
 jurisdiction to appoint them. But the allegation in the com- 
 plaint is that the letters of administration were duly issued and 
 granted to the plaintiffs by the surrogate appointing them 
 administrators of all the goods, chattels and credits of the 
 deceased, and that they duly qualified as such, and entered upon 
 the duties of their office. These allegations must be held suffi- 
 cient as against an extremely technical objection taken for the 
 first time at the trial " {Ruling as to insufficiency of evidence, 
 omitted here.] 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 b 
 
12 Abbott's Select Cases on Code Pleading. 
 
 Colliding V. Gandall, 1 Abb. Ct. of App. Dec, 423. 
 
 CONKLING V. GANDALL. 
 
 JVew York Court of Appeals, 1864.. 
 
 [Reported in 1 Abb. Ct. of App. Dec, 43.3.] 
 
 In an action against an indorser of negotiable paper, the complaint must 
 state the facts necessary to charge him as such ; and an averment of 
 demand and notice is not dispensed with by giving a copy of the 
 instrument and alleging the sum due, in the short form allowed by 
 Section 163 of the Code of Procedure yCode Civ. Pro., §534] for 
 pleading instruments for the payment of money only.* 
 
 Jonas and Theodore Conkling sued James R. Gandall, as in- 
 dorser, and George L. Burdick and Charles Finn, as makers of a 
 note. The allegations of the complaint were as follows : 
 
 " That the defendants, Burdick and Finn, made their certain 
 co-partnership promissory note in the words and figures follow- 
 ing, that is to say : [Copy of Note made hy Burdick and Finn 
 to the order of Gandall.'] 
 
 " That the said note was indorsed as follows : 
 
 " ' J. R. Gandall, Salem, Washington Co., K Y.' 
 
 " That such indorsement was so made by the above named de- 
 fendant, James R. Gandall. 
 
 " That the said plaintiffs are now the owners and holders of 
 the said promissory note, and that the whole amount thereof, 
 with interest, is due from the said defendants thereupon. 
 Wherefore, etc." 
 
 Gandall, who alone appeared, demurred on the ground, among 
 others, that the complaint did not state facts sufficient to consti- 
 tute a cause of action, in that it did not aver presentment of said 
 note for payment, demand or refusal, or protest, or notice to de- 
 fendant Gandall. 
 
 The Special Term overruled the demurrer. 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. 
 
 Weight, J. This judgment, I think, cannot be sustained. A 
 
 * This ovemiluB in effect, Roberts ■». Monisoii, 11 N. Y. Lej;. Obs. 60, and sustains Alder r. 
 Bloomingdale, 1 Duer. 601; s. c. 10 N. Y. Leg. Obs., S63; Cottrell i. Conkliu, 4 Duer., 45; 
 Marshall v. Rockwood, 13 How. Pr., 43S; Lord r, Chcesbroiigli, 4 Sandf. G06. 
 
I. Causes of Action at Law. (1) Express Contracts. 73 
 
 Conlding- v. Gandall, 1 Abb. Ct. of App. Dec, 423. 
 
 complaint, under the Code, must contain " a plain and concise 
 statement of the facts constituting a cause of action " (Code of 
 Pro., § li^), and it may be demurred to if it does not (§ 144). 
 No cause of action was stated against the defendant Gandall. 
 The only allegation affecting him is, that he indorsed a promis- 
 sory note for two hundred and fifty-six dollars and fifty-eight 
 cents, made by the firm of Burdick & Finn, payable to his order 
 at the bank of Fort Edward, four months after date, which the 
 plaintiffs own and hold. This is not stating a cause of action 
 against an indorser. The mere fact of indorsement of a negoti- 
 able promissory note gives no right of action, nor entitles the 
 holder to recover against the indorser. Without resorting to the 
 contract of the indorser, which the law implies, the indorsement 
 of such a note is nothing but an order upon the maker to pay its 
 contents to the lawful holder. Such a note, although indorsed, 
 contains no promise to pay on the part of the person indorsing 
 it. His contract is conditional, not absolute, and depends on 
 facts outside of the written instrument. He promises to pay 
 only on condition that the holder shall present the note for pay- 
 ment, and, if payment is refused, notice shall be given to him at 
 the time and in the manner required by law. This demand of 
 payment and notice of dishonor, or facts by which they are ex- 
 cused, must be proved on the trial, to establish his liability, and 
 facts thus necessai-y to be proved, as they constitute in part the 
 cause of action, must be averred in the complaint. 
 
 The complaint, therefore, as against the appellant Gandall, was 
 insufficient and bad on demurrer, unless the requirements of 
 section 142 are dispensed with by another section of the Code of 
 Procedure. 
 
 It is provided in section 162, chapter 5, of the Code, entitled 
 " General rules of pleading " [re-enacted in substance in Code 
 Civ. Pro., %63Ji^, that " in an action or defense, founded upon 
 an instrument for the payment of money only, it shall be sufii- 
 cient for the party to give a copy of the instrument, and to state 
 that there is due to him thereon from the adverse party, a speci- 
 fied sum which he claims." The precise intention of the legisla- 
 ture, or the framers of the Code, in this provision, is not clear, but 
 certainly it was not meant that a complaint should be good, that 
 
74 Abbott's Select Cases on Code Pleading. 
 
 Conkling v. Qandall, 1 Ablj. Ct. of App. Dec, 433. 
 
 8 merely set forth a copy of the instrument, with a statement that 
 there was due to the plaintiff thereon, frona the person named as 
 a defendant, a specific sum, \vithout averring that the defendant 
 executed or delivered the instrument, or that it belonged to the 
 plaintiff, or in any way averring the defendant's liability or the 
 plaintiff's title. Such a mode of pleading would be so loose, 
 vague and indefinite, that it is not to be assumed that the legisla- 
 ture intended to sanction it. This, however, would follow if the 
 clause is not to be read in connection with section 142, but con- 
 strued alone and Htnctly. How are issues to be framed under 
 such a complaint, or one dispensing with the requirements of 
 section 142? Take the present case. The instrument is a 
 promissory note ; three parties are impleaded as defendants ; a 
 copy of the instrument is given, accompanied by a statement 
 that there is due thereon, from the persons named as defendants, 
 a specified sum which the plaintiff claims, and there is nothing 
 more. The defendants may interpose by answer a denial, but 
 what issue or issues will be thereby framed % There is but a 
 single fact alleged, and that in the most general form, upon 
 
 10 which an issue can be taken ; viz., that there is due from the de- 
 fendants to the plaintiffs, upon the instrument, the sum named. 
 "Would denying this put in issue the making of the note by 
 Burdiek & Finn as copartners, and the plaintiff's title to \ti 
 Manifestly not. Nor did the pleader in this case so understand 
 it. It is averred that Burdiek & Finn made the notes as co- 
 partners, a copy of which is set out ; that the defendant Gandall 
 indorsed it, and that the plaintiffs are the owners and holders ; 
 all of which was unnecessary if the provisions of section 142 are 
 dispensed with by section 162, where the " action is founded 
 upon an instrument for the payment of uioney only." Althoiigh 
 the intended purpose of the last clause of section ir)2 is not 
 clear, I am inclined to the opinion that it was meant that where 
 the action or defence was founded upon an instrument for the 
 payment of money only, instead of setting forth the instrument 
 according to its legal effect in the bod}' of the complaint or 
 answer, it should be sufiicieuD for the party to give a copy of it. 
 Be this, however, as it may, it is too improbable to suppose that 
 it was intended, in any class of actions, tliat a complaint should 
 
I. Causes of Action at Law. (1) Express Contracts. 75 
 
 Conkling v. Gandall, 1 Abb. Ct. of App. Dec, 433. 
 
 be good, that did not, upon its face — either by direct averment, 12 
 or by giving a copy of tlie instrument upon which the action 
 was founded, with allegations connecting the parties with it — 
 show a cause of action ; or which did not contain material allega- 
 tions to that end, on which issue might be taken, or on which, if 
 issue was not taken, judgment would legally pass against the im- 
 pleaded parties by default. In this case the instrument (a copy 
 of which is given) purports to be for the payment of money ; 
 but without the averment that it was made by Burdick & Finn, 
 named as defendants, as copartners, and unless plaintiffs' title to 
 it appears in some way (neither of which facts is to be implied 
 from the instrument itself) there would be no statement of a 
 cause of action by the plaintiff against them. There is certainly 
 no cause of action shown, where the facts upon which a plaintiii 
 grounds his right to recover against a party, whom he may 
 choose to implead as a defendant, do not affirmatively, or by im- 
 plication, appear upon the face of the pleadings. 
 
 Beyond question, the complaint we are considering was suffi- 
 cient against the defendants, Burdick & Finn. Their liability 
 and the plaintiffs' title appear affirmatively or by implication in li 
 the pleading. It is alleged that as copartners they made a certain 
 promissory note, of which a copy is given, instead of stating the 
 legal effect of the instrument ; and that the plaintiffs are the 
 owners and holders thereof, and that the whole amount is due. 
 Nothing more was required. The instrument itself declares the 
 liability of its makers. It contains an absolute promise of the 
 makers to pay a sum of money to its lawful holder at the time 
 specified. There are no conditions to the promise. The instru- 
 ment is evidence of the amount of the debt, and the effluxion of 
 time by its terms fixes their habihty. If the plaintiffs have title '-^ 
 to the note at its maturity, they are the parties to whom the 
 obligation of absolute payment is due. By proof on the trial of 
 the making of the note by the firm, and the plaintiff's title to it, 
 their right to recover as against the makers is established. But 
 it is not so as against the defendant Gandall. Alleging and 
 proving simply that he indorsed a note payable to his order 
 would create no liability on his part to the holder. The law im- 
 plies no contract to pay absolutely from the mere indorsement of 
 
'76 Abbott's Select Cases ox Code Pleading. 
 
 Conkling- v. Gandall, 1 Abb. Ct. of App. Dec, 433. 
 
 16a negotiable promissory note. Gandall's indorsement is averred 
 in this complaint, and nothing more affecting him. If this fact 
 had been put in issue and proved on the trial, the plaintiffs 
 would not have been entitled to recover against him. His 
 promise is conditional, and his liability depends upon facts out- 
 side of the instrument on vs^hich his indorsement is made. An 
 action as against him is founded on something more than an 
 instrument for the payment of money only, even though it 
 should be considered that section 162 of the Code would em- 
 brace the ease of the makers of a promissory note, whose prom- 
 ise is contained in the contract evidenced by the instrtiment 
 itself. Payment of the note must be first properly demanded of 
 the makers, and due notice given to the indorser before any 
 legal liability attaches to the latter. A complaint that does not 
 aver facts, entitling the plaintifE to recover against a party, which 
 do not appear in the instrument set forth, nor are to be implied 
 therefrom, must be defective. If it be necessary as against an 
 indorser (which it unquestionably is) to establish his liability, to 
 prove a demand of payment and notice of dishonor of the note, 
 
 18 it is incumbent upon the pleader to state these facts, otherwise 
 the cause of action is defectively stated. 
 
 Whatever, therefore, may have been the legislative purpose 
 in the enactment of section 162, it was not intended to include 
 the case of a party whose liability was not absolutely fixed by 
 and expressed in the instrument, but depended for its ever 
 attaching on conditions precedent. Nor do I think in any case, 
 even in that of the makers of a promissory, note, the effect of the 
 section is to dispense with the requirements of section 142. A 
 complaint that did not aver the making of a promissory note, of 
 which a copy was given, by the persons sought to be charged as 
 makers, nor show that the plaintiff was the owner and holder, 
 would in my judgment be bad on demurrer. If this were not 
 so, the system of pleading inaugurated by this Code would be 
 immeasurably more vague and indefinite than that which it 
 assumed to supplant. 
 
 The judgment should be reversed. 
 
 A majority of the judges concurred for reversal. 
 
I. Causes of Action at Law. (1) Express Contracts. 77 
 
 Chemical National Bank v. Carpentier, 9 Abb. N. C, 301. 
 
 Ingeaham, J., delivered a dissenting opinion, relying on 20 
 Keteltas v. Myers, 19 N. Y., 231"; andPrindlew. Carruthers, 15 
 id., 425, as sustaining the complaint. 
 
 Judgment reversed. 
 
 CHEMICAL NATIONAL BANK «. CAKPENTIEE. 
 
 New York Supreme Court, Special Term, 1881. 
 
 [Reported in 9 Abb. N. C, 301.] 
 
 1. An averment in a complaint that a note, at the instance of the holder 
 "was duly presented for payment, and payment thereof demanded 
 and refused," is sufficient to charge an iudorser, although it does not 
 allege the place where the note was payable. 
 
 3. The demurrer to the complaint held, on a motion to strike it out, not 
 to be absolutely frivolous, although not deemed such that it ought to 
 be sustained after argument. 
 
 Motion to strike out demurrer to complaint as frivolous. 
 
 Action against tlie maker and indorser of a promissory note. 
 The defendant, Carpentier, the last indorser, demurred on the 
 grouad of insufficiency, and argued that it was not alleged in the 
 complaint that the plaintiff gave any consideration for the note ; 
 and that it was not alleged that when the note becam^e due 
 plaintiff presented the same for payment to, or demanded pay- 
 ment thereof from the maker or any person or corporation 
 authorized to pay the same. 
 
 Babeett, J. The only ground of demurrer which seems to 
 amount to anything here is that which attacks the averment as 
 to presentation. 
 
 The complaint charges due presentment, but not due present- 
 ment to the maker nor at the place where the note was payable ac- 
 cording to its tenor. There is a conflict of authority upon this 
 point. Several cases hold it to be necessary to aver presentment to 
 the maker or at the place of payment (Spellman v. Weider, 5 How. 
 Pr., 5 ; Price v. McClare, 6 Duer, 544 ; affirming 3 Abb. Pr., 254) ; 
 others hold an allegation of due presentment to be sufficient 
 within the provision of the Code as to the manner of pleading 
 conditions precedent (Adams v. Sherrill, 14 How. Pr., 297 ; 
 "Woodbury v. Sackrider, 2 Abb. Pr., 405). The latter I think 
 
78 Abbott's Select Cases on Code Pleading. 
 
 Cook V. Warren, 88 N. Y., 37. 
 
 4 the better view, and if I were hearing the demurrer as an issue 
 of law, lay impression is that I should so hold. But I am 
 clearly of opinion that the demurrer is not absolutely frivolous, 
 and consequently that the present motion should be denied with 
 $10 costs to abide the event. 
 
 Again trial of demurrer at Special Term. 
 Van Voest, J. [after reiterating the rule that the original 
 consideration expressed in the note is enough to entitle the 
 ^ ■plaintiff as the owner to recover upon it] : In regard to the 
 second ground of demurrer there is an apparent conflict of 
 authority. But I agree with Justice Barrett in the opinion ex- 
 pressed by him when this case was before him at chambers, that 
 the averment in the complaint that the note, at the instance of 
 the holder, " was duly presented for payment, and payment 
 thereof demanded and refused," was sufficient. 
 
 I think that such statement in the complaint is a sufficient 
 6 averment of the performance of the condition precedent neces- 
 sary to charge an indorser under the provisions of the Code. 
 (Code, §. 533 ; Femer v. Williams, 37 Barb., 9 ; s. c, 14- Abb. 
 Pr , 215 ; Adams v. Sherrill, 14 How. Pr., 297.) 
 
 There should be judgment for the plaintiff on the demurrer. 
 
 COOK V. WARREN. 
 
 JVew York Court of Ap2)eals, 18S3. 
 
 [Reported in 88 N. Y., 37.] 
 
 A demurrer is not frivolous if any argument is needed to sustain it.* 
 A complaint in an action on a promissory note against the maker, H, 
 and indorsers, W and Y, which, after averring the making, indorsement 
 and delivery, due presentation for payment, and demand and refusal 
 thereof, adds,— whereupon it was " duly protested for non-payment; 
 of all of which the said H had due notice," states no cause of action 
 against the indorsers, as there is no allegation of notice to them ; the 
 averment of due protest of a note is not equivalent to an allegation 
 of notice. 
 Where a word used in pleading has different meanings, one the result 
 of judicial or statutory definition, and the other founded simply upon 
 
 * And 6ee Clicmiciil Nat. Bunk v. Cai-pentier, ante p. 78. 
 
I. Causes of Action at Laio. (1) Express Contrf.cts. T9 
 
 Cook V. Warren, 88 N. Y., 37. 
 
 an inaccurate popular use, the latter can only be adopted in constru- 
 ing' the pleading if it plainly appears from other averments or the 
 whole tenor of the paper that sucli was the sense in which it was 
 employed. 
 
 Action on a promissory note. 1 
 
 The allegations of the complaint were : 
 
 " That the defendant, Thomas D. Hammond, on the 8th day 
 of December, in the year 1877, at Mayville, N. Y., made his 
 promissory note in writing, dated that day, whereby, l^y the 
 name of T. D. Hammond, six months after date, for value 
 received, he promised to pay to W. P. Whiteside, or order, six 
 hundred dollars at the banking office of Gifford & Co., with 
 interest, and that the same was duly indorsed by the said defend- 
 ants, Whiteside and Warren, and that said Hammond then and 2 
 there delivered the same to the said plaintiff. 
 
 " That M'hen the said note became due, the same was duly pre- 
 sented at said banking office, the place where the same was 
 made payable, for payment, and payment thereof then and there 
 duly demanded, which was refused, whereupon the said note 
 was then and there duly protested for non-payment ; of all of 
 which the said Hammond had due notice." 
 
 The defendants, Whiteside and Warren, the indorsers, 3 
 demurred on the ground that the complaint did not state facts 
 sufficient to constitute a cause of action against them. 
 
 The Snjjrifine Court at Special Term granted a motion made 
 by plaintiff for judgment on the demurrer as frivolous, on the 
 ground that, although the complaint did not allege that the in- 
 dorsers were given notice of the non-payment of the note, the 
 question must be determined by the meaning given to the words 
 " then and there duly protested for non-payment. " That in 
 Coddington v. Davis, 1 IST. Y., 189, it (the word protest) was 
 held to " include all those acts which by law are necessary to 
 charge an indorser." The giving of notice to the indorser of 
 presentment and non-payment is one of the acts necessary 
 by law. 
 
 The General Term affirmed the judgment, without opinion. 
 
80 Abbott's Select Cases on Code Pleading. 
 
 Cook V. Warren, 88 N. Y., 37. 
 
 The Court of Appeals reversed the judgment. 
 
 Finch, J. We do not think this demurrer was frivolous. To 
 justify an order which so determines, or a judgment founded 
 upon such decision, the demurrer must be not merely without 
 adequate reason, but so clearly arid plainly without foundation 
 that the defect appears upon mere inspection, and indicates that 
 its interposition was in bad faith. If any argument is required 
 to show that the demurrer is bad, it is not frivolous. (Youngs v. 
 Kent, 46 IST. Y., 672 ; Dixon 0. Co. v. N. Y. Steel Works, 57 
 Barb., 447.) In this case the argument has not even satisfied us 
 that the demurrer was not good. The complaint was on a 
 promissory note, of which Hammond was maker, and Whiteside 
 and Warren were indorsers. The complaint alleges the making 
 of the note, the indorsement thereof, and its delivery by the 
 maker to the plaintiff, its due presentation for payment, demand 
 and refusal thereof, and then adds, " Whereupon the said note 
 was then and there duly protested for non-payment ; of all of 
 which the said Hammond had notice." Here there was not only 
 no express averment that notice of protest for non-payment was 
 given to the indorsers, but the averment that such notice was 
 given to the maker tends to exclude the idea of an intention to 
 aver a notice given also to the indorsers. It is claimed that the 
 allegation that the note was " duly protested for non-payment," 
 was itself a sufficient allegation of a notice to the indorsers. The 
 only authority for this doctrine, as applied to a pleading, appears 
 to be a decision at General Term (Woodbury v. Sackrider, 2 
 Abb. Fr., 402), which was itself founded upon Coddington v. 
 Davis, decided in this court. (1 W. Y.. 186.) The question in 
 the latter case was not one of pleading, but upon the construction 
 of a letter waiving protest. Reading the letter in the light of 
 the surrounding circumstances, it was very proper to give a 
 broad and popular signification to its terms. Upon the same 
 principle it is' easy also to say that a statement in the notice sent, 
 that the note had been protested for non-payment, was sufficient 
 to include payment duly demanded and refused, since such 
 protest implies the previous demand and refusal. (Youngs v. 
 Lee, 12 N. Y., 554.) But these cases do not settle the rule of 
 pleading, nor directly support the doctrine advanced in the 
 
I. Causes of Action at Law. (1) Express Contracts. 81 
 
 Cook V. Warren, 88 N. Y., 87. 
 
 single case which is brought to our notice, and which holds a 9 
 pleading like this sufficient. That case, resting upon no 
 pertinent authority, must be tested by sound principle, applicable 
 to the question. Thus tested, it is not easily justified. We 
 ■ought not to encourage loose or ambiguous pleading. The 
 •complaint is required to state, plainly and concisely, the facts 
 constituting a cause of action. The pleader may not aver a 
 legal conclusion as an equivalent for the groupe of separate facts 
 from which it is an inference. The allegation should be such, 
 and so stated, as to permit a distinct traverse and evolve a definite 
 issue. Although pleadings are to be construed liberally, that 
 does not necessarily mean that they sliall be held to say what 
 they do not, nor that words which have a fixed legal meaning, 
 settled by the common law or by statute, shall be enlarged or 
 modified by an inaccurate popular use. Such use is apt to be 
 shifting and variable ; adequate for ordinary parposes, but not so 
 stable or precise as to safely crowd out and take the place of 
 legal definitions which furnish a more accurate and unvarying 
 standard. The suggestions all tend toward a conclusion that this 
 demurrer was well taken, and the complaint defective as alleged. 11 
 By the common law, and by statutory definition, a protest is one 
 thing, and a notice of it to indorsers is quite another ; and a 
 note may be protested without notice of such protest being given 
 to the indorsers. The one act does not necessarily assume or 
 imply the other. Where the same word has different 
 meanings, one the result of judicial or statutory definition, and 
 the other founded simply upon an inaccurate popular use, the 
 latter only can be adopted in construing a pleading where it 
 plainly appears from other averments or the whole tenor of the 
 paper that such was the sense in which it was employed. It is 
 not intended to question or deny the doctrine of Allen v. 
 Patterson (7 JST. Y., 476), that under the liberal rule of con- 
 struction established by the Code, a word capable of two 
 diiferent meanings should have a reasonable construction, and be 
 ,so construed as rather to support than defeat the pleading. That 
 is true as a general rule where the use of the word in dispute is 
 purely ambiguous, but where it has a fixed legal meaning, and 
 other parts of the complaint indicate that it is used in that sense, 
 
 6 
 
82 Abbott's Select Cases on Code Pleading. 
 
 Cook V. Warren, 88 N. Y., 87. 
 
 13 and there is nothing from which an intention to use it in a 
 different or popular use can be fairly implied, there is no such 
 ambiguity as requires an arbitrary choice of meanings to support 
 the pleading, and the sense plainly intended must prevail. 
 "Where a contrary rule would end it might be difficult to foresee. 
 It would introduce doubt and ambiguity in the room of certainty 
 and precision, and make a pleading lose its utility as a means of 
 accurately evolving an issue to be tried. It is plain that the 
 pleader in the present case did not himself understand that his 
 averment of due protest covered all the facts necessary to fix the 
 indorsers, for he alleged every one of those facts, separately and 
 in detail, except the last. The indorsement of the note, its 
 maturity and due presentment, the demand of payment and re- 
 fusal, the protest for non-payment, and the unnecessary allegation 
 of service of notice of non-payment on the maker, were all 
 stated; everything in fact except the one remaining circumstance 
 of notice to the indorsers. 
 
 It is better to adhere to definite and fixed standards in pleading, 
 and as far as possible encourage so much of system and accuracy 
 15 as is consistent with the liberal rule of the Code ; and thus to 
 require such a plain statement of the fact as will be unambignout, 
 present issues clearly, enable them to be distinctly and 
 plainly traversed, and avoid legal conclusions as a substitute for a 
 whole group of issuable facts. We think it is the better opinion 
 in this case that the complaint was insufficient, and the demurrer 
 well taken. 
 
 The judgment should be reversed, and the motion to strike 
 out the demurrer as frivolous be denied with costs. 
 
 All the judges concurred. 
 ■^^ Judgment reversed, and ordered accordingly. 
 
I. Causes of Action at Law. (1) Express Contracts. 83 
 Pahqviioque Bank v. Martin, 11 Abb. Pr., 291. 
 
 PAHQUIOQUE BA]S[K: v. MAETIIST. 
 
 New York Supreme Court, Special Term, 1860. 
 [Reported in 11 Abb. Pr., 291.] 
 
 1. Notice to an indorser of a note of the non-payment thereof, is not 
 sufficient to cliarge him. He must have notice of presentment or de- 
 mand and non-payment. 
 
 3. In a complaint against an indorser, an allegation that the note was 
 duly presented and payment demanded, but it was not paid, and due 
 notice of non-payment was given, etc., is insufficient on demvirrer. 
 
 Action on a promissory note. The defendant Martin, sued as 1 
 an indorser thereon, demurred. 
 
 The contents of the complaint sufficiently appear in the 
 opinion. 
 
 Bonnet, J. This action is against defendant Martin as in- 
 dorser of a promissory note. The complaint, to which the defend- 
 ant has demurred, states, among other things, that the note was 
 duly presented for payment, and payment thereof demanded, 
 but it was not paid ; that the note was thereupon duly protested 2 
 for non-payment, " and due notice of such non-payment was 
 given to the defendants," Martin and others. 
 
 Notice of non-payment only, is, neither directly nor by impli- 
 cation, notice of presentment or demand, and consequently is 
 not notice of the dishonor of the note within a proper meaning 
 of the word. To make an indorser liable, he must be notified in 
 proper time that the bill or note which he has indorsed has been 
 dishonored. (Cook v. Litchfield, 5 Sandf ., 330 ; s. c. 5 Seld., 279 ; 
 Coddington v. Davis, 1 Comst, 186 ; Edw. on Bills, 593, and 3 
 cases cited.) 
 
 This statement in the complaint is, in my judgment, defective. 
 The other allegations to which objection is made are, in my 
 opinion, sufficient. 
 
 Judgment for defendant. 
 
84: Abbott's Select Cases on Code Pleading. 
 
 Mechanics' Bank v. Straiten, 3 Abb. Ct. of App. Dec, 269. 
 
 MECHANICS' BANK v. STEA.ITON. 
 JVew York Court of Appeals, 1867. 
 [Reported in 3 Abb. Ct. ot App. Dec, 269.] 
 
 1. The words " or order," " or bearer," and "bearer," in notes, bills and 
 
 checks are words of negotiability, and the use of either of them 
 makes the paper negotiable, although impersonal words be used in 
 place of naming a payee ; and if such impersonal words be used, it is 
 negotiable by delivery without indorsement. 
 
 2. In an action ag'ainst the maker of negotiable paper, payable to bearer, 
 
 it is sufficient, after alleging that defendant drew it, to allege, that it 
 was transferred and delivered to plaintiff, without saying by whom, 
 if it be also alleg-ed that the transfer was for value, and that plaintiff 
 is the owner. » 
 
 The Meclianics' Bank of the city of New York sued John 
 Straiton, Charles G. Sandf ord and Thomas J. Kaynor, in the 
 Sxipreme Court, as drawers of a bank check. The allegations of 
 the complaint were as follows, omitting averment of plaintiffs 
 incorporation and defendants' co-partnership : 
 
 That, at the city of New York, on June 4, 1860, the said 
 defendants, by their said- firm name of Straiton, Sandford & Co., 
 drew their certain bank check or draft, of which the following is 
 a copy : 
 
 \_Dat6 and number.'] 
 
 Bank of the Eepublic : Pay to bills payable, or order, one 
 thousand dollars. [Signatwe.] 
 
 That said check or draft was afterward, for a valuable con- 
 sideration, transferred and delivered to the plaintiff, whereby 
 said plaintiff became, and is now, the holder and owner thereof. 
 
 That said check was, after such transfer to the plaintiff, and 
 on its behalf, duly presented, &c. \_IIere fvlJoiced tlie usual 
 allegations of non-payment and noticeP\ 
 
 The defendants demurred, on the ground that the check was 
 not negotiable, and that the complaint did not state facts suffi- 
 cient to constitute a cause of action. The demurrer was over- 
 ruled at Special Term. 
 
 The Supreme Court at General Term held, that as the paper 
 was payable to a fictitious payee, it \s'as therefore in effect pay- 
 
I. Causes of Action at Law. (1) Express Contracts. S5 
 
 Mechanics' Bank v. Straiten, 3 Abb. Ct. of App. Dec, 269. 
 
 able to bearer and that the allegation that it was transferred and 4 
 delivered to plaintiff for value, was a sufficient averment, in con- 
 nection with the other facts appearing by the comijlaint, that the 
 paper was put in circulation by the drawers ; citing 15 N. Y., 
 425. They accordingly affirmed the judgment. Defendants 
 appealed. 
 
 The Court of Aj)peals affirmed the judgment. 
 
 ScEUGHAM, J. The rules which establish the negotiability of 
 commercial paper apply to bank checks as to other bills of ex- 
 change, and the doctrine that when such instruments are made ^ 
 payable to the order of a fictitious payee, they are to be con- 
 strued and treated as payable to bearer, is too well settled to 
 admit of serious question. In the great case of Gibson v. Minet, 
 1 H. BL, 569, the determination proceeded upon the ground that, 
 according to the true intent and meaning of the parties, the bill 
 was intended to be made payable to bearer. 
 
 The words " or order," " or bearer," and " bearer," in notes 
 or bills, are words of negotiability, without which or other 
 equivalent words the instrument will not possess that quality, g 
 and therefore the use of either of these expressions by the 
 drawer of a bill or maker of a note, must be regarded as indi- 
 cating his intentions that the paper shall be negotiable. 
 
 By naming the persons to whose order .the instrument is pay- 
 able, the maker manifests his intentioji to limit its negotiability 
 by imposing the condition of indorsement upon its first transfer. 
 But no such intention is indicated by the designation of a 
 fictitious or impersonal payee, for indorsement under such cir- 
 cumstances is manifestly impossible ; and words of negotiability, 
 when used in connection with such designations, are capable of * 
 no reasonable interpretation except as expressive of an intention 
 that the bill shall be negotiable without indorsement — i. e. , in 
 the same manner as if it had been made payable to bearer. 
 
 It was not, before the Code, necessary for the holder of an 
 instrument payable to bearer, to allege or prove in an action 
 against the maker the transfers through which he derived his 
 title (2 Greenl. on Ev., § 161, and cases there cited ; 3 Phill. on 
 Ev., 4 Am. ed., 191) ; and it certainly is not now. 
 
86 Abbott's Select Cases on Code Pleading. 
 
 Gfroehner v. McCarty, 2 Abb. N. C, 76. 
 
 The engagement is to pay to the bearer ; and that the plaintiff 
 is such is one of the material elements of his cause of action. 
 
 The fact must, therefore, be stated in his complaint, and its 
 statement will be a sufficient allegation of his title ; for it , is 
 the fact, and not evidence of the fact, which is required to be 
 pleaded. 
 
 It is not only stated in the complaint in this action that the 
 plaintiff is the holder and owner of the check, but also that it 
 was transferred and delivered to him for a valuable considera- 
 tion, and that he became its owner and holder by virtue of that 
 transfer and delivery. This cannot be true unless the drawerof 
 the check transferred and delivered it directly to the plaintiff, or 
 to some other person by or through whom it was transferred to 
 the plaintiff ; and this averment, if an allegation of a transfer and 
 delivery by the drawer is necessary, is sufficient on demurrer, 
 within the cases of People ex rel. Crane v. Pyder, 12 N". Y. 
 (2 Kern.), 433, and Prindle v. Carruthers, 15 id., 4:25. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 GFROEHNER v. MoCAETY. 
 
 City Court of BrooMyn ; General Term, 1876. 
 
 [Reported in 3 Abb. N. C, 76.] 
 
 1. A complaint by payee against indoi-ser sufficiently shows that defend- 
 
 ant indorsed to give credit with the maker, if it alleges that, at the 
 time of making the note, defendant indorsed it for the purpose of 
 giving credit thereto, and that it was delivered so indorsed to the 
 plaintiffs. 
 
 2. In an action against a married woman as indorser, an allegation that 
 
 she had a separate estate, and that, by indorsing' the note as alleged, 
 she intended to and did charge her separate estate with the payment 
 thereof, and that the consideration of the note went for the benefit of 
 her separate estate, is sufficient. 
 
 1 Appeal by defendant from judgment overruling demurrer to 
 complaint. 
 
 This was an action by Louis P. Gfroehner, and others, against 
 Jacol> and Jennie Shepard, to recover the amount of a promis- 
 
I. Causes of Action at Law. (1) Express Contracts. 87 
 
 Gfroehner v. McCarty, 2 Abb. N. C, 76. 
 
 sory note, made by the defendant Jacob Shepard, payable to the 
 order of the plaintiffs, and indorsed by the defendant Jennie 
 Shepard at the time the note was made. 
 
 The allegation of the complaint in respect to such indorse- 
 ment is as follows : " That at the time of making the said note 
 the defendant Jennie Shepard was a married woman, and the 
 wife of the defendant Jacob Shepard, and was and is seized and 
 possessed of a separate estate, and at the time of the making of 
 said note, and for the pm'pose of giving credit thereto, said 
 defendant Jennie Shepard indorsed said note, and in and by 
 said indorsement she intended to and did charge her separate 
 estate with the payment thereof, and that the consideration of 
 said note went for the benefit of her said separate estate." 
 
 The defendant Jennie Shepard demurred to the complaint 
 upon the ground that it did not state facts suflicient to constitute 
 a cause of action, and appealed from the order overruling de- 
 mui-rer and the judgment entered thereon. 
 
 Reynolds, J. The appellant is right in the position, that as 
 a general rule the indorser of a note payable to the order of 
 another is presumed to have intended to become liable as second 
 indorser, and is not liable upon the note to the payee, who is 
 supposed to be the first indorser. But this presumption may be 
 rebutted by showing that the indorsement was made to give 
 the maker credit with the payee ; in which case the party so 
 making it became liable as first indorser (Coulter v. Richmond, 
 69 ]Sr. Y., 478). 
 
 That is what is substantially alleged in the complaint in this 
 action. It is stated that the defendant Jennie Shepard, at the 
 time of the making of the note, indorsed the same for the pur- 
 pose of giving credit thereto, and that said note was delivered so 
 indorsed to the plaintiffs. In such connection the allegation 
 that the indorsement was for the purpose of giving credit to 
 the note must mean that it was to give the maker credit with 
 the payee ; that is, she became security for the maker. The 
 case is thus brought mthin a line of decisions, one of which is 
 cited above. 
 
 The further allegations of the complaint show the con- 
 
88 Abbott's Select Cases on Code Pleading. 
 
 Draper v. The Chase Mfg. Co., 2 Abb. N. C, 79. 
 
 sideration for the contract thus made by said defendant, and 
 that the contract was made in such form as to bind her, a 
 married woman. It is alleged that the consideration of the 
 note was for the benefit of her estate, and that by the endorse- 
 ment she charged her separate estate with the payment of the 
 note. These facts, 'if proved, establish her liability (see Yale v. 
 Dederer, 18 IST. Y., 265 ; 22 id., 450 ; Owen v. Cawley, 36 id., 
 600 ; Ballin v. Dillaye, 37 id., 35). 
 
 Judgment affirmed. 
 
 McCuE, J., concurred. 
 
 DEAFER V. THE CHASE MANUFACTUEIXG 
 COMPANY. 
 
 ]V. Y. Supreme Court, First Department ; Special Term, 1877, 
 
 [Reported in 2 Abb. N. C, 79.] 
 
 Where, ia an action by the payee of a promissory note against an indor^er, 
 it was alleged in the complaint that after the making of the note it 
 was indorsed by the defendant, and thereupon transferred for value 
 to the plaintiff ; Held, on demurrer to the complaint, that this was 
 not a sufficient averment to admit proof to rebut the presumption that 
 the payee was the first indorser, and therefore not liable to him. 
 There should have been an allegation that the plaintiff parted with 
 value upon credit of the indorsement in order to hold the defendant 
 liable. ■' 
 
 Action on a promissory note against the maker and an alleged 
 indorser. 
 
 The complaint, after alleging the incorporation of the defend- 
 ants, alleged that on the 10th day of August, 1875, at the city of 
 New York, the defendant Frank W. Allen made a certain prom- 
 issory note in writing, bearing date on that day, and thereby for 
 value received promised to pay the plaintiff or order the sum of 
 two hundred and fifty dollars ; and the defendant, the Chase 
 Manufacturing Company, afterwards indorsed the said promis- 
 sory note, and the same was thereupon for value received trans- 
 ferred to said plaintiff, who was the lawful owner and holder 
 thereof. 
 
 * Compare preceding case. 
 
I. Causes of Actioti at Law. (1) Express Contracts. 89 
 Draper v. The Chase Mfg. Co., 3 Abb. N. C, 79. 
 
 The complaint contained proper allegations of protest and 
 notice of non-pajanent to cliarge defendant as indorser. 
 
 The defendant company demurred to this complaint upon the 
 ground that it did not state facts sufficient to constitute a cause 
 of action, and claimed that, the plaintiff being the payee of the 
 note, the complaint contained no sufficient allegation to admit of 
 proof to overcome the presumption that the Chase Manufactur- 
 ing Company intended by their indorsement only to become 
 liable as second indorser, and so not liable to the payee. 
 
 Yan Beunt, J. \cifter stating the facts'] : It is the well settled 
 rule in this state that, in order to overcome such presumption, 
 the payee must show that the note was thus indorsed to give 
 credit to the note with the jjayee, and that the payee has parted 
 with value upon the ci-edit of such indorsement (Herrick v. Car- 
 man, 12 Johns., 160; iKelson v. Dubois, 13 id., 1Y5 ; Campbell 
 V. Butler, 14 id., 349; Hall v. Newcomb, 7 Hill, 416; Moore v. 
 Cross, 19 E". Y., 227 ; Bacon v. Burnham, 37 id., 614 ; Phelps v, 
 Yischer, 50 id., 69 ; Coulter v. Kichmond, 59 id., 478). 
 
 It is as well settled that the complaint must allege every fact 
 which it is necessary the plaintiff should prove in order to 
 recover (Kelsey v. Western, 2 IST. Y., 506 ; Conkling v. Gandall, 
 1 Abb. Ct. App. Dec, 423). 
 
 The allegation in the complaint that the Chase Manufacturing 
 Company afterwards indorsed the said promissory note, and that 
 the same was thereupon for value received transferred to the 
 plaintiff, it seems to me, is wholly insufficient to admit of proof 
 to rebut the presumption above referred to. There is no allega- 
 tion that the company indorsed the note to give credit to it with 
 the payee, nor that the payee parted with anything upon the 
 credit of such indorsement. The allegations contained in the 
 complaint that the note was, after indorsement for value 
 received, transferred to the plaintiff, contained no allegation 
 that that value was parted with upon credit of the indorsement, 
 which allegation is essential to a recovery. 
 
 Demurrer sustained. 
 
90 Abbott's Select Cases on Code Pleading. 
 
 Note on Actions on Paper Payable on Demand. 
 
 NOTE ON ACTIONS ON PAPEE PAYABLE ON 
 
 DEMAND. 
 
 1 A bill of exchange, or note, payable on demand, is payable immedi- 
 ately, and no demand is necessary before suing the maker. Tied, on 
 Com. Paper, § 310, and cas. cit ; Wheeler v. Warner, 47 N. Y., 519; (a 
 provision that the note bears interest does not change the rule.) 
 
 This principle of dispensing with a demand before suit, is not confined 
 to bills and notes, but applies to all express agreements to pay money, if 
 absolute, even though at a specified time and place. Tied, on Com. 
 Paper, § 310, and c^s. cit. Locklin v. Moore, 57 N. Y., 360, affg 5 Lans., 
 307 ; (agTeement to pay, for goods sold, at defendant's store on a speci- 
 fied day.) 
 
 The only effect of qualifying a promise to pay by the mere specifying 
 
 2 of demand at a fixed time and place, is, that if the debtor is ready with 
 the money at that time and place, and no demand is made, he is ex- 
 onerated from paying- costs and interest for subsequent time, provided he 
 keeps ready, pa3'S the money into court when sued, and pleads these facts 
 in his answer. Tied, on Com. Paper, § 310, and cas. cited ; Locklin v. 
 Moore, 57 N. Y., 360. 
 
 Readiness at the time and place, and oSer to pay at the trial is not 
 enough. Locklin v. Moore {above). 
 
 A note payable on demand, or «n any terms which make it payable, 
 absolutely at the will of the holder, is immediately due, for the purpose 
 of suing the maker, and therefore for the setting- the statute of limita- 
 •^ tions running in favor of the maker. Wheeler v. Warner, 47 N. Y., 519 ; 
 Howland v. Edmonds, 24 N. Y., 307; (note by a member of a mutual insur- 
 ance company, expressed to be payable "in such portions and at such 
 time or times as the directors * * * may * * * require.' Such a 
 note is intended as a cash security). 
 
 Otherwise, of an assessment or call on a subscription for stock. Glenn 
 V. Marbury, 145 U. S., 499. 
 
 Compare Code Civ. Pro., § 410, statute (where right exists) running 
 from the time the right to make demand is complete. 
 
 On a note payable on demand with interest, demand of maker is neces- 
 4 sary in order to charge an indorser. Tied, on Com. Paper, § 310, and 
 cas. cit.; Merritt v. Todd, 23 N. Y., 28. 
 
 For this purpose the demand is too late, it it be delayed until the 
 statute of limitations has run in favor of the maker. After the statute 
 has run, demand on the maker cannot avail to charge the indorser. 
 Shutts V. Fingar, 100 N. Y., 539. 
 
 If a note is payable at a particular place, actual demand there is neces- 
 sary in order to charge the indorser. Tied, on Com. Paper, § 310, and 
 cas. cit. Demand by letter is not enough. Parker v. Stroud, 98 N. Y., 
 379. 
 
I. Causes of Action at Law. (1) Express Contracts. 91 
 Graham v. Camman, 13 How. Pi\ , 360. 
 
 If the oonti-aot is to deliver "on surrender of this receipt" a demand 
 and tender of the receipt is essential in an action for breach of the con- 
 tract. Ganley v. Troy City Nat. Bk., 98 N. Y., 487, 495. 
 
 Where the contract makes demand a condition of plaintiff's right — as 
 on a continuing- bailment, the statute of limitations does not begin to run 
 against an action on the contract (as distinguished from an action for con- 
 version) until from time of demand. Code Civ. Pro., § 410, subd. 3 ; Gan- 
 ley V. Troy City Nat. Bk., 98 N. Y., 487, 498. 
 
 As to a fiduciary who is entitled to have demand made on him, the 
 statute begins to run against an action for money or property received or 
 detained, from the time when he who had a, right to demand had actual 
 knowledge of the facts on which that rig-ht depends. Code Civ. Pro., 
 § 410, subd. 1. 
 
 GEAHAM V. CAMMAN. 
 
 I^ew YorTc Superior Court, General Term, 1856. 
 
 [Reported in 5 Duer, 697 ; s. c. 13 How. Pr., 360.] 
 
 1. A complaint held good on demurrer which stated substantially that on 
 a day specified an account was stated between the parties, and that 
 upon such statement a si^ecifled balance was found due from the 
 defendant to the plaintiff, which balance defendant thereupon agreed 
 to pay, but has refused so to do. 
 
 3. A demurrer on the ground that the complaint does not state facts 
 sufficient to constitute a cause of action raises onlj' such objections as 
 render it bad on general demurrer at common law, or bad for want of 
 equity in chancery. 
 
 3. If defendant requires a greater degree of certainty in the complaint, 
 his remedy is to move that it be made more definite and certain. 
 
 Action on an account stated. 
 
 The complaint was as follows : 
 
 That the defendant, on the 10th of May, 1855, became and 
 was indebted to the plaintiff in the smn of $446.25, upon. a 
 balance of an account stated, and then due and owing to this 
 plaintiii ; and which the said defendant then and there agreed 
 and promised to pay, but that he has neglected and refused to 
 pay the same, except the sum of $150 paid by him to the 
 plaintiff on the 22d day of August, 1855, on account of the 
 aforesaid balance of indebtedness. And further, that the 
 
92 Abbott's Select Cases on Code Pleading. 
 
 Graham v. Camman, 13 How. Pr., 360. 
 
 defendant remains indebted to the plaintiff in tiie sum of 
 $296.25, with interest, etc. For that amount and costs judg- 
 ment is demanded. 
 
 Defendant demurred, assigning as ground that the complaint 
 did not state facts sufficient to constitute a cause of action. 
 
 At Special Term the demurrer was overruled. 
 
 Defendant appealed. 
 
 The Court at General Term affirmed the order. 
 
 Hoffman, J. [after stating above facts] : We think the com- 
 plaint, although loosely drawn, may, upon general demurrer, be 
 treated as stating substantially that on the 10th of May, 
 1855, an account was stated between the plaintiff and defend- 
 ant ; and that, upon such statement, a balance of $446.25 was 
 found due to the plaintiff from the defendant. A promise ta 
 pay this balance is averred, a payment of 8130 on account, a 
 refusal to pay the rest, and an allegation that the residue, viz., 
 $296.25, is now justly due from the defendant. 
 
 This case cannot be well distinguished from that of Cudlip v. 
 Whipple, in this court (1 Abb. Rep., 106). The difference is 
 only in the omission to state the nature of the items of the 
 account, viz., for money paid, laid out and expended. It was 
 not alleged that the account had been stated. That case was 
 decided upon Allen v. Patterson (3 Seld., 496), holding that a 
 complaint in an action for the recovery of goods sold, substan- 
 tially in the old form of a declaration in indebitatus assumpsit^ 
 was good under the code. 
 
 The old form of a declaration on an account stated is found in 
 2 Chitty Pig., 90. It was : " That, whereas the defendant had, 
 on, etc., at, etc., accounted with the plaintiff of and concerning 
 divers sums of money from the defendant to the plaintiff, before 
 that time due and owing and then in arrear and unpaid ; and 
 upon such accounting the said defendant was then and there 
 found in arrear and indebted to the plaintiff in the sum of 
 
 $ , and thereupon, being so indebted, he promised to 
 
 pay, etc." 
 
 It is obvious that the sixth subdivision of the 144th Section of 
 
I. Causes of Action at Lav\ (1) Express Contracts. 93 
 
 Graham v. Camman, 13 How. Pr., 360. 
 
 of the Code as to demurrers [Code Civ. Pro., §488, Subd. 8] 
 lias been framed from the form of the general demurrer at com- 
 mon law or in equity. Such must have gone to the whole 
 oause of action and be for matter of substance, not of form. 
 (See Chitty on Pleading, 664, and cases.) 
 
 In Eiehards v. Beairs (28 Eng. L. & Eq. Eep., 157), the ques- 
 tion was under the 50th Section of the common law procedure 
 act,, which is substantially the same as the 6th subdivision 
 referred to. The court say that the question was whether the 
 declaration would have been good upon general demurrer before 
 the act, and it was held bad upon that ground. Compton, J., 
 said : " If we are to hold pleadings good where the parties do 
 not choose to say what they mean, we should be getting into the 
 region of ambiguity and uncertainty, which would be a worse 
 ■evil than that which the statute intended to remedy." 
 
 The rule was well stated in Eiehards v. Edich (17 Barb., 260). 
 A demurrer under the 6th subdivision applies only to such 
 defects as would render the count bad upon general demurrer at 
 law, or bad for want of equity in chancery. The complaint, 
 therefore, to be overthrown by such a demurrer must present 
 defects so substantial in their nature and so fatal in their charac- 
 ter as to authorize the court to say, taking all the facts to be 
 admitted, that they furnished no cause of action whatever. 
 Where the demurrer admits facts enough to constitute a cause 
 of action, the complaint will be sustained ; and if the defendant 
 requires a greater degree of certainty than is found in the com- 
 plaint, he must seek his relief by a motion under the Code that 
 the pleading be made more certain and definite. 
 
 We consider the rule as thus stated to be a true and beneficial 
 one ; and it is so to be regarded in this court. 
 
 Order of Special Term overruling demurrer affirmed. 
 
 Woodruff and Boswoeth, JJ., concurred. 
 
94 Abbott's Select Cases on Code Pleading. 
 
 Fowler v. N. Y. Indemnity Ins. Co., 26 N. Y., 433. 
 
 FOWLEE V. ]Sr. Y. INDEMNITY INS. CO. 
 
 Neiu York Court of Appeals, 1863. 
 
 [Reported in 36 N. Y., 423.] 
 
 1. In an action on a fire policy the complaint must show that the 
 
 plaintiff had an insurable interest in the property insured. 
 
 2. If it shows that plaintiff is an assignee of the policy, and that the 
 
 insurable interest was in the assignor at the time the policy was 
 issued, and that the assignment of the policy to plaintiff was before 
 the loss, it must also show that plaintiff had acquired an insurable- 
 interest in the property at the time of the loss. 
 
 3. Otherwise, it seems, of a marine policy. 
 
 1 Action on a fire policy. 
 
 Tlie allegations of the complaint were : 
 
 [I.] That the defendants are a corporation, duly incorporated 
 nnder the laws of the State of New York, having full power and 
 authority to make the contract hereinafter set forth. 
 
 [II.] That in and by a certain policy of insurance duly issued 
 by the said defendants, and numbered 2002, and duly signed by 
 the president and secretary of said defendants, and duly counter- 
 
 ^ signed by the agent of the company at Newburgh, in the county 
 of Orange, on the 6th of Jantiary, 1853, the defendant, in con- 
 sideration of the sum of thirty dollars, to them paid by Kobert 
 Caldwell, of [e^c.J, did insure him against loss or damage by fire 
 to the amount of two thousand dollars on his [describing the 
 structm'es] , and the said defendants, in and by the said policy of 
 insurance, did promise and agree to make good unto the said 
 Robert Caldwell, his executors, administrators and assigns, all 
 
 3 such loss or damage not exceeding in amount the sum insured as 
 aforesaid, as should happen by fire to the property as therein and 
 herein specified during the term of one year from the 6th day of 
 January, 1853, to the 6th day of January, 1854, the said loss or 
 damage to be estimated according to the true or actual value of 
 said property at the time such loss or damage should happen, 
 and to be paid within sixty days after notice and proof thereof, 
 made in conformity to the condition annexed to the said policy, 
 provided, and upon the condition in said policy mentioned and 
 
I. Causes of Action at Law. (1) Express Contracts. 95 
 
 Fowler v. N. Y. Indemnity Ins. Co., 36 N. Y., 433. 
 
 expressed, as by the said policy of insurance, reference being 
 thereunto had, will more fully appear. 
 
 [III.] That on or about July T, 1853, and while said contract 
 of insurance was remaining in full force and effect, the said 
 [designating the structures] mentioned in said policy of insur- 
 ance, were destroyed by iire, excepting portions of the walls of 
 said three-story building and parts of said water-wheel. 
 
 [IV.] That the true and actual cash value of the said [struct- 
 ures'], so destroyed by fire, at the time of the destruction thereof 
 was at least the sum of $.3,400 — and that the loss sustained by 
 such fire was at least the sum of $2,200. 
 
 [Y.] That on the sixth day of January, 1853, the said Robert 
 Caldwell hereinbefore named, by and with the written assent 
 and approval of the defendants duly made, given and indorsed 
 in said policy, to which assent and approval the plaintiff prays 
 ■ leave to refer, duly assigned and transferred to the plaintiff, his 
 executors, administrators and assigns, all the right, title and 
 interest of said Robert Caldwell in and to the aforesaid policy 
 of insurance. 
 
 [Vl.J That on the twelfth day of July, 1853, the said Robert 
 Caldwell made and executed to Chauncey F. Belknap, of New- 
 burgh, Orange County, a general assignment of all his property, 
 real and personal, in trust for the payment of his debts. 
 
 [VII.] That the plaintiff is now, and at the time of the 
 destruction by fire of said property, insured, as aforesaid, was, 
 the lawful owner and holder of said policy of insurance, and as 
 the lawful owner and holder of the claim and demand arising 
 and accruing against the defendant because of the destruction 
 by fire of the property mentioned in said policy, and is entitled 
 to have, demand and receive from the defendants the amount of 
 the loss or damage sustained by the destruction of the property 
 aforesaid by fire as aforesaid. 
 
 [VIII.] That plaintiff has performed and complied with the 
 conditions of the said contract of insurance on the part of the 
 said Robert Caldwell, or his assigns, to be kept and performed. 
 
 [IX.] That after the destruction of said property by fire as 
 aforesaid, the plaintiff forthwith gave notice thereof to the 
 defendants, and within a reasonable time thereafter, and as soon 
 
96 Abbott's Select Cases on Code Pleading. 
 
 Fowler v. N. Y. Indemnity Ins. Co., 26 N. Y., 432. 
 
 •8 as possible, to wit, on the IStli day of July, 18.53, the plaintiff 
 delivered to the defendants as particular an account of said loss 
 as the nature of the case would admit, which account was signed 
 by the said Robert Caldwell and verified by his oath, declaring 
 the same to be true and just ; and on the 22d day of August, 
 1853, the plaintiff delivered to the defendants a further account 
 of said loss, which account was signed by the said Robert Cald- 
 well, with his own hand, and verified by his oath, declaring the 
 same to be true and just, which said account contained all the 
 particulars required to be stated therein by the conditions 
 annexed to said policy, and the account herein first mentioned 
 was accompanied with the afiidavit of two disinterested respecta- 
 ble persons, not contiguoiis to the place of the fire, and not con- 
 cerned in the loss as creditors or otherwise, or related to the 
 insured or sufferer, to the effect that they had made due inquiry 
 into the cause and origin of the fire, and also as to the value of 
 the property destroyed, and that they were acquainted with the 
 circumstances and character of the said insured, and they verily 
 believed that he had really, and by misfortune, and without 
 
 10 fraud or evil practice, sustained by such fire loss and damage to 
 the amount of not less than $2,200 on the said property insured 
 as hereinbefore set forth, and was likewise accompanied by a 
 certificate of a resident magistrate to the effect that he was 
 acquainted with the two persons making such affidavit, and that 
 he believed them to be men of honor and integrity ; and that 
 the statement and account herein secondly mentioned, and so 
 signed and verified, stated that the withholding of the payment 
 of the amount due and owing on the said polic}' of insurance 
 from the plaintiff, the assignee of the same, would greatly 
 prejudice the interest of the said Robert Caldwell, the assignor 
 thereof, and was accompanied by the written assent of the said 
 Chauncey F. Belknap, assignee of said policy as aforesaid, that 
 the plaintiff might receive the amount of said policy from the 
 defendants ; and this complaint further shows that the with- 
 holding of the payment to the plaintiff of the amount insured 
 as aforesaid, to wit, the sum of $2,000, will prejudice the 
 interests of the assignor of said policy from the defendants. 
 [X.] That although more than sixty days have elapsed since 
 
I. Causes of Aotion at Law. (1) Express Contracts. 97 
 
 Fowler v. N. Y. Indeninity Ins. Co., 26 N. Y., 432. 
 
 the said notice and proof were delivered to the defendants, yet 12 
 the defendants have hitherto wholly' neglected and refused, and 
 still do neglect and refuse, to pay the plaintiff the amount of 
 said policy of insurance. 
 
 [XI.] That the defendants, by reason of the premises, have 
 become and are indebted to plaintiff in the sum of $2,000, with 
 the interest thereon, from the 18th day of September, 1853. 
 
 FoK WHICH SUM of moncy with interest as aforesaid the plaint- 
 iff demands judgment against the defendants, besides the costs 
 of suit. 
 
 Defendants demurred, assigning as ground that the complaint 
 " does not state facts sufficient to constitute a cause of action." 
 
 13 
 
 I'he Supreme Court at Special Tenn (Beown, J.), overruled 
 the demurrer, holding (1) that the allegation that the policy was 
 on " his " (Caldwell's) " three-story building," etc., was a sufK- 
 cient allegation that Caldwell had an insurable interest, and that 
 his interest was as owner. 
 
 (2) That in alleging the assignment it was not necessary to 
 state any consideration. ^^ 
 
 The General Term affirmed the judgment without further 
 opinion. 
 
 The Court of Appeals reversed the judgment. 
 
 Daviks, J. The radical defect in the complaint is, that it con- 
 tains no averment of interest, either in the plaintiff or in his 
 assignor, in the subject matter of the insurance. This court, in 
 the case of Euse v. Mutual Benefit Life Insurance Company 
 (23 N. Y., 516), distinctly enunciated the proposition that a 
 
 policy obtained by a party who has no interest in the subject of 
 msurance is a mere wager policy. It was said in that case that, 
 aside from authority, this question would seem to be of easy 
 solution. Such policies, if valid, not only afford facilities for a 
 demoralizing system of gaming, but furnish strong temptations 
 to the party interested to bring about, if possible, the event in- 
 sured against. In respect to insurances against fire, the obvious 
 temptation presented by a wagering policy to the commission of 
 the crime of arson, has generally led the courts to hold such 
 
 7 
 
 !> 
 
98 Abbott'k Select Cases on Code Pleading. 
 
 Fowler V. N. Y. Indemnity Ins. Co., 26 N. Y., 422. 
 
 16 policies void, even at common law. It was so held in England 
 at an early day by Lord Chancellor King, in Lynch v. Dalzell 
 (4 Bro. P. C, 431 ), and by Lord Hardwicke in Saddlers' Com- 
 pany V. Budcock (2 Atk., 557); and the courts in this country 
 have generally acquiesced in and approved of the doctrine. In 
 this state such policies would fall under the condemnation of 
 our statute avoiding all \vagerd and gambling contracts of every 
 sort ; but they would, no doubt, also be lield ■^'oid, independently 
 of the statute, at common law. In Howard v. The Albany In- 
 surance Company (3 Denio, 301), Beonson, Cli. J., asserted the 
 necessity of an interest in the assured in all cases, referring, in 
 support of the doctrine, not only to the statute, but to the decis- 
 ions of Lords King and Hardwicke (supj^a); and, in this latter 
 case. Judge Brouson insisted that, in fire policies, the assured 
 must have an interest at the time of the loss, as well as when 
 the contract is made. I understand the same doctrine to be dis- 
 tinctly affirmed by this court in the case of Murdock v. Chenango 
 Mutual Insurance Company (2 JST. Y., 210), viz., that upon a 
 policy against loss by fire, no recovery can be had unless the 
 
 18 insured has an interest in the subject insured at the time of the 
 loss ; and an established rule in pleading was enunciated in that 
 case, that the plaintiff or plaintiffs must aver every fact necessary 
 to show a right to recover, and every such necessary averment 
 must be proved. 
 
 In Peabody v. "Washington County Mutual Insurance Com- 
 pany (20-Barb., 340), the plaintiff, Peabody, sued as assigiie'e on 
 a policy issued to his assignor, one Kiggs, who was also a co- 
 plaintiff. The complaJnt averred the insurance on the property 
 of Riggs and the assignment of the policy to Peabody as collat- 
 
 ^^ eral security. Demurrer, on the ground that the complaint did 
 not state facts suflicient to constitute a cause of action. The 
 court held the demurrer well taken as to the plaintiff, Peabody, 
 as it did not appear by the complaint that he had any interest 
 at any time in the property insured, and this was fatal to his 
 right to recover ; and the court repeats the well-established rule,_ 
 that the insured must not only have an interest in the subject 
 matter of the insurance at the time of insuring, but also at the 
 time the loss happens — (citing 3 Kent's Com., 371, 375, 4th ed.) 
 
I. Causes of Action at Lau\ (1) Express Contracts. 99 
 Fowler v. N. Y. Indemnity Ins. Co., 36 N. Y., 433. 
 
 The interest of the assignee must be stated in tlie complaint, 20 
 as well as the fire and other necessary facts, to make out a cause 
 of action. (Granger v. Howard Ins. Co., 5 Wend., 202.) The 
 learned judge who delivered the prevailing opinion in support 
 of the complaint in the Supreme Court, says, it is not ordinarily 
 necessary for the plaintiff to allege in Ms complaint anything 
 which he is not bound to prove in order to make out his case. 
 Hence, he says, it was held, and he believes very generally, that 
 an averment of interest is unnecessary in declaring on a policy 
 of insurance — citing, as authorities, Nantes v. Thompson (2 East, 
 385, per Grose, J.) ; Clendening v. Church (3 Caines, 141) ; Bii- "^ 
 chanan v. Ocean Insurance Company (6 Cow., 332). He says it 
 is true that all these cases were before the passage of our statute 
 to prevent betting and gaming. All of these cases, as is shown 
 in the case of Freeman v. Fulton Fire Insurance Company (1-1 
 Abb. , 398), decided by the General Term of the second district 
 since this demurrer was overruled, were cases of marine insur- 
 ance. In such cases an averment of interest was imnecessary, 
 for such policies were valid as wager policies, although the 
 plaintiff in fact had no interest in the subject insured. It fol- 22 
 lows, therefore, that neither an averment nor proof of interest 
 could be required to sustain a recovery on such a policy. (Bu- 
 chanan y. Ocean Ins. Co., su^ra.) 
 
 In the case of F]-eeman v. Fulton Fire Insurance Company 
 {supra), the Supreme Court held a complaint defective which 
 did not contain on averment that the plaintiff had an interest in 
 the thing insured at the time of the loss, unless the claim was 
 assigned to him after the loss. In the present case, the policy 
 was assigned before the loss ; and, therefore, before the plaintiff 
 could recover, he must prove his interest, and such proof being ^"^ 
 essential, the interest must be averred in the complaint. 
 
 The judgment of the General and Special Terms must be re- 
 versed, and judgment for defendant, with costs. The plaintiff 
 to have leave to apply to the Supreme Court to amend his com- 
 plaint in proper terms. 
 
 All the judges concurred. 
 
 Ordered accordingly. 
 
100 Abbott's Select Cases ok Code Pleading. 
 
 Brown v. Champlin, 66 N. Y., 214. 
 
 BROWN V. CHAMPLm. 
 
 New York Coiirt of Appeals, 1876. 
 [Reported in 66 N. Y., 214.] 
 
 1. A complaint on a sealed bond need not state who was the real as dis- 
 
 distinguished from an apparent principal in the obligation to secure 
 which it was given. 
 
 2. An instrument or transaction maybe pleaded by stating it according to 
 
 its legal effect. 
 
 3. The complaint alleged the making of a bond by defendants, and its 
 
 assignment by the obhgors to plaintiff. The evidence showed that 
 defendants made it for accommodation to enable tlie obligees to obtain 
 a loan from the assignee, now plaintiff, and that the obligees before 
 assigning it were required to indorse their consent to be jointly liable 
 with the obligors. Held, not a variance, as defendants could not 
 have been misled. 
 
 1 Action on a bond. 
 
 The allegations of the complaint were : 
 
 First.— Tl}\&i heretofore and on or about the 17th day of June, 
 1869, the defendants, Oliver H. P. Champlin, Seth Clark, Edwin 
 A. Holbrook, Salmon Shaw and Henry S. Cunningham, executed 
 under their hand and seal, and delivered to Frederick W. Breed 
 and Charles E. Young a bond bearing date on that day in the 
 penal sum of $10,00.J, with a condition thereunder written in 
 
 2 substance, that if the obligors in the said bond, their heirs, execu- 
 toi-s, administrators should pay or cause to be paid to the obligees 
 in the said bond named, their executors, administrators or assigns 
 the sum of $5,000 on or before the 15th day of August next 
 thereafter following, then the said bond to be void, otherwise to 
 be and remain in full force as by the said bond ready to be pro- 
 duced as this court shall direct, will more fully appear. 
 
 That thereafter and on or about the 17th day of June, 1869, 
 g the said Frederick W. Breed and Charles E. Young, did for a 
 valuable consideration to them in hand, paid by this plaintiff, 
 sell, assign, transfer to this plaintiff the said bond and the money 
 and moneys due and to become due thereon ; that the plaintiff is 
 now the sole, true and lawful owner and holder of the said bond ; 
 that of the moneys secured to be paid by the said bond, there is 
 now due and remaining unpaid the sum of $975 and interest 
 
I. Causes of Action at Law. (1) Express Contracts. 101 
 
 Brown v. Champlin, 66 N. Y., 314. 
 
 thereon from the first day of May, 1873 ; that no action or pro- 
 ceeding has ever been brought, instituted or taken to recover the 
 moneys so, as aforesaid, due and unpaid on the said bond Oc- any 
 part thereof. 
 
 Second. — For a second and further cause of action herein 
 against the defendants, the plaintiff states the following facts. 
 That heretofore and on or about the 17th day of June, 1869, at 
 the city of Buffalo, Erie county, and state of Kew York, the 
 defendants, Seth Clark, Edwin A. Holbrook, Salmon Shaw, 
 Oliver H. P. Champlin and Henry S. Cunningham, covenanted 
 with Frederick W. Breed and Charles E. Young, under their 
 hands and seals, to pay to the said Frederick W. Breed and 
 Charles E. Young, or their assigns, the sum of $4,000 on or 
 before the 16th day of August next thereafter with interest 
 thereon from the date thereof. That thereafter, and on or about 
 the 17th day of June, 1869, the said Frederick W. Breed and 
 Charles E. Young, the owners and holders of said bond, did for a 
 valuable consideration to them in hand, paid by this plaintiff, sell, 
 assign and transfer the said bond and the money and moneys due 
 and to grow due thereon to this plaintiff : that there is now due 
 and unpaid on said bond the sum of $975 and interest thereon 
 from the first day of May, 1873. 
 
 That the plaintiff is now the sole, true and lawful owner and 
 holder of the said bond ; that there is now due and owing this 
 plaintiff by these defendants the sum of $975 and interest there- 
 on from the first day of May, 1873 ; that payment has been 
 demanded ; that the defendants neglect to pay the same ; where- 
 fore and by reason of the facts above stated the plaintiff demands 
 a judgment herein against the defendants for the sum of $975 
 and interest thereon from the first day of May, 1873, and the 
 cost of this action. 
 
 At the trial in the Supreme Court it appeared that a joint 
 stock company, in which Breed and Young were stockholders, 
 desired a loan, and obtained it by inducing the obligors to exe- 
 cute their bond to Breed and Young, and that defendants, after 
 signing the bond and before it could be assigned to plaintiff, 
 made it a condition that, before it should be delivered. Breed and 
 Young should execute pn indorsement declaring themselves to be 
 
102 Abbott's Select Cases on Code Pleading. 
 
 Brown v. Champlin, 66 N. Y., 314. 
 
 8 jointly liable in all respects with, the original makers, which they 
 did by an indorsement not under seal. Judgment for plaintiff. 
 
 The General Term, without opinion, affirmed the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Chuech, Ch. J. The learned counsel for the defendants asks 
 for a reversal of the j adgment in this action, upon three grounds ; 
 1. That the recovery was for a different cause of action from, 
 that set forth in the complaint. 2. For usury. 3. For defect of 
 parties defendant. 
 
 The first ground is clearly untenable. The complaint contains 
 two counts. The first alleges the making and delivery by 
 defendants of a bond in the penal sum of $10,000, conditioned 
 to pay Breed & Young $5,000, and an assignment for value by 
 the latter to plaintiff. The second count alleges that the defend- 
 ants covenanted under their hands and seals to pay Breed & 
 Young $4,000, which covenant was assigned by the latter to 
 plaintiff for value. The recovery was substantially for the cause 
 of action set forth, although some of the circumstances as proved 
 10 and found attending it were not averred. 
 
 It is found that the defendants and Breed and Young were 
 stockholders in a North Carolina gold mining company, and 
 agreed with the plaintiff' for a loan to the company of §1,000, to 
 be secured by a mortgage of the company upon its real estate in 
 North Carolina, and the bond of the defendants. The omission 
 to state the relation of the parties to the company and the 
 application for the loan, or that Breed and Young were nominal 
 obligees only, or all the terms of the assignment, or that the loan 
 was made to the company, did not make a failure of proof of the 
 cause of action set up in the complaint, nor a substantial variance, 
 and certainly not one which could have misled the defendants. 
 It is unnecessary to set forth the evidence or the circumstances 
 attending the transaction. It is sufticient to charge the legal 
 effect of a transaction, contract or instrument in writing. 
 
 {The part of the opinion not relating to the pleading is here 
 omitted.] 
 
 All the judges concur. Folueb, J., absent. 
 
 Judgment affirmed. 
 
I. Causes of Action at Law. (1) Express Contracts. 103 
 
 Bostwick V. Van Voorhis, 91 N. Y., 358. 
 
 BOSTWICK V. VAN VOORHIS. 
 
 New York Court of Appeals, 18S3. 
 [Reported in 91 N. Y., 353.] 
 
 1. The provision of 3 R. S., 378 (5th ed., vol. 3, p. 661 ; 6th ed., vol. 8, p. 
 
 641), i; 5, lormerly in force — requiring specific breaches to be assigned 
 in actions on bonds conditioned otherwise than for payment of money 
 — was sufficiently complied with by a general allegation of acts which 
 are contrary to the condition, though withovit specifying times, 
 places, amounts, etc. 
 
 2. If not sufficient, tlie remedy is by motion to make more definite and 
 
 certain, or for particulars. 
 
 The material allegations of the complaint were [after 
 altegmg the incorporation of the hank of which pla,iiitiff 
 loas receiver'] : That after the said organization ons Alex- 
 ander Bartow made application for the appointment of cashier, 
 and therewith presented his bond, duly executed by hiinself and 
 specified persons, as follows : [the hoiid, set forth in the 
 comjjlaint in full, was in the xvsual form of a joint and several 
 bond, in the penal sum of $30,000, and conditioned as follows] : 
 " The condition of this obligation is such that, whereas the 
 above bounden, Alexander Bartow, has been duly appointed 
 cashier of the said JSTational Bank of Fishkill, now if the said 
 Alexander Bartow shall well, honestly and faithfully discharge 
 the duties of such cashier, rendering at all times his undivided 
 care and services to said bank, and shall obey the orders and 
 directions of the president and directors of said bank lawfully 
 given, and shall at all times account for and pay over all moneys 
 which have come, now are, or hereafter may come into his 
 hands, belonging to said bank, and shall keep true and accurate 
 books of all the affairs of the said bank intrusted to him, then 
 the above obligation to be void, or else to remain in full force' 
 and virtue. [Rest omitted here.] 
 
 That said bond was accepted by said bank, and saia Bartow 
 entered upon his duties as cashier. 
 
 III. Tliat said Alexander Bartow, during the time he con- 
 tinued to act as such cashier, did not honestly and faithfully 
 discharge the duties of such cashier, and did not render at all 
 
104 Abbott's Select Cases on Code Pleading. 
 
 Bostwick V. Van Voorhis, 91 N. Y., 353. 
 
 times liis individual care and services to said bank, and did not 
 obey the orders and directions of the president and directors of 
 said bank lawfully given, and did not at all times account for 
 and pay over all moneys which came into his hands, belonging 
 to said bank, and did not keep true and accurate books of all the 
 affairs of the said bank entrusted to him. But, on the contrary 
 thereof, the said Alexander Bartow paid out the moneys of said 
 bank fraudulently to various persons, without any suflBcient 
 vouchers or security therefor, and fraudulently permitted 
 various persons to overdraw their accounts without any security, 
 and fraudulently altered and falsified the accounts and books of 
 said bank so as to conceal said fraudulent doings, and has refused 
 to pay over to the president and directors of said bank large 
 sums of money, to wit., $100,000 and over, refusing- to account 
 for the same, to the damage of the said National Bank of 
 Fishkill of $100,000. 
 
 [The remaining allegations are not material to the present 
 inquiry\. 
 
 The former statate, 2 K. S., 3Y8 (5th ed., vol. 3, p. 661 ; 6th ed., 
 ^ol. 3, p. 641) § 5, requiring plaintiff to " assign specific breaches " 
 is as follows : 
 
 " When an action shall be prosecuted in any court of law 
 upon any bond for the breach of any condition other than the 
 payment of money, or shall be prosecuted for any penal sum for 
 the non-i3erformance of any covenant or written agreement, the 
 plaintiff in his declaration shall assign the specific breaches for 
 which the action is brought." 
 
 The present statute. Code Civ. Pro., § 1915, is as follows : 
 
 § 1915. A bond in a penal sum, executed within or without 
 the state, and containing a condition to the effect that it is to be 
 void upon performance of any act, has the same effect for the 
 purpose of maintaining an action or special proceeding, or two 
 or more successive actions or special proceedings thereupon, as 
 if it contained a covenant to pay the sum or to perform the act 
 specified in the condition thereof. But the damages to be 
 recovered for a breach, or successive breaches, of the condition, 
 cannot, in tlie aggregate, exceed the penal sum, except where 
 the condition is for the payment of money ; in which case they 
 
9 
 
 I. Causes of Action at Law. (1) Express Contracts. 105 
 
 Bostwick V. Van Voorhis, 91 N. Y., 353. 
 
 cannot exceed the penal sum, with interest thereupon from the 
 time when the defendant made default in the performance of 
 the condition. 
 
 The General Term of the Supreme Court refused to consider 
 whether the form in which the breaches were assigned in the 
 complaint was imperfect, holding that it was a mere question of 
 pleading, which may be waived by a failure to object in time. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, J. [after reciting the condition of the hondl : Upon 
 the argument before us several objections to the recovery were 
 urged upon our attention, which we will' consider separately. 
 First. It is said that the complaint should have been dismissed 
 because it did not assign specific breaches of the bond. This 
 objection is based upon section 5, article 2, title 6, chapter 6, 
 part 3, of the Revised Statutes, which provides that "when an 
 action shall be prosecuted in any court of law upon any bond 
 for the breach of any condition other than for the payment of 
 money, or shall be prosecuted for any penal sum for the non- 
 performance of any covenant or written agreement, the plaintiff 10 
 in his declaration shall assign the specific breaches for which 
 the action is brought." The counsel for both pai-ties assumed 
 that this provision of the statutes was in force when this action 
 was commenced in 1877 ; and, without determining whether it 
 was or not, we think it was sufticiently complied with. It was 
 alleged in the complaint that Bartow did not honestly and faith- 
 fully discharge his . duties as cashier ; that he did not render at 
 all times his individual care and services to the bank ; that he 
 did not obey the directions of the president and directors of the 
 bank, lawfully given ; that he did not at all times account for ^ 
 and pay over all moneys which came into his hands belonging to 
 the bank, and did not keep true and accurate books of all the 
 affairs of the bank intrusted to him ; but that, on the contrary 
 thereof, he paid out the moneys of the bank fraudulently to 
 various persons, without any sufficient vouchers or security 
 therefor, and fraudulently permitted various persons to over- 
 draw their accounts without, any security, and fraudulently 
 altered and falsified the accounts and books of the bank so as to 
 
ion Abbott's Select Cases on Code Pleading. 
 
 Hopper V. Town of Covington, 118 U. S., 148. 
 
 12 conceal sucli fraudulent doings, and that he has refused to pay 
 over to the president and directors of the bank large sums of 
 money, to wit, $100,000 and over, refusing to account for the 
 same, to the damage of the bank, $100,000. 
 
 These allegations of breaches of the bond on the part of 
 Bartow were a sufficient compliance with the statute. If they 
 were not, no reason was thereby furnished for dismissing the 
 complaint. The defendant could have applied to the court, by 
 motion, to have them made more specific and definite, or for a 
 
 13 bill of particulars. 
 
 [The residue of the ojnnion does not involve any question of 
 pleading.^ 
 
 All the judges concurred. 
 Judgment affirmed. 
 
 HOPPEE V. TOWN OF COVINGTON. 
 
 United States Supreme Court, 1886. 
 [Reported in 118 U. S., 148.] 
 
 1. In an action on negotiable bonds issued by a town which had bepQ 
 
 authorized to make sucli bonds for specified purposes only, it is not 
 enough for ihe plaintiff to aver in general terms that the town iva& 
 authorized to issue the bonds in suit ; but he must state the facts 
 which bring the case within the special authority. 
 
 2. A complaint in such a case is demurrable if, as to this point, it onlj^ 
 
 alleges that defendant was a municipal corporation, existing under 
 the laws of the state, with full power and authority pursuant to those 
 laws, to execute negotiable commercial paper, and that pursuant to 
 those laws it executed the bond sued upon, and does not show the pur- 
 pose for which the bond was made. 
 
 3. A demurrer admits only facts well pleaded. 
 
 4. An allegation cannot avail which is inconsistent with a fact of which 
 
 the court can take judicial notice. 
 
 Action in the United States Circuit Court for the District of 
 Indiana, upon municipal bonds issued by the defendant, the town 
 of Covington. 
 
 The Original Complaint, after describing the parties, merely 
 alleged that the defendant had executed her certain bond No. li 
 and attached thereto a coupon No. Y, a copy of which said coupon 
 
I. Causes of Action at Laio. (1) Express Contracts. 107 
 
 Hopper V. Town of Covington, 118 U. S., 148. 
 
 is filed herewith and made part hereof, marked Exhibit A, by 
 the terms of which said coupon defendant promised to pay to the 
 bearer thereof, etc., etc., etc., stating terms, default, and that 
 plaintiff is holder, etc. A copy of the coupon was then set forth. 
 
 A second paragraph alleged another coupon in the same way. 
 
 A third paragraph enumerated sixty other coupons, and a stipu- 
 lation of the attorneys was annexed that to avoid unnecessary 
 repetition the complaint should be treated as if each coupon had 
 been pleaded in a separate paragraph with a copy attached. 
 
 Defendant demurred. 
 
 Plaintiff then served an Amended Complaint in which, after 
 describing the parties, he alleged " that heretofore, to wit, on 
 Oct. 1, 1870, the defendant, by its board of trustees, upon a 
 petition to said board of trustees of the citizen owners of five- 
 eighths of the taxable property of the said town," as evidenced 
 by the assessment roll [etc., etc., detailing the proceedings], exe- 
 cuted its bonds, numbered respectively, 11, 15, [etc., etc., describ- 
 ing them and the coupons annexed, and enumerating those pur- 
 chased by plaintiff, and annexing a copy of one as typical of the 
 form of all, and claiming judgment upon all.] 
 
 A similar stipulation was annexed. 
 
 An Amended and Supplemental Complaint was afterwards 
 filed by plaintiff, in which, after describing the parties as before, 
 he alleged, " That said defendant is a municipal corporation, or- 
 ganized and existing under and by virtue of the laws of the state 
 of Indiana, with full power and authority, pursuant to the laws 
 of said state, to execute negotiable commercial paper ; that pur- 
 suant to the laws of said state regulating the execution of such 
 negotiable commercial obligations said defendant, on the first day 
 of October, 1870, by its pi'oper oificers and agents, executed its 
 negotiable commercial bond payable to bearer ten years after 
 date, at the Farmers' Bank in Covington, Indiana, which bank 
 was then a bank of deposit and discount at said town of Coving- 
 ton, Indiana ; that thereafter and before the maturity of said 
 bond plaintiff purchased the same for a valuable consideration, 
 and is still the owner thereof ; a copy of said bond is tiled here- 
 with and hereby made part of this complaint, marked Exhibit A." 
 
108 Abbott's Select Cases on Code Pleading. 
 
 Hopper V. Town of Covington, 118 U. S., 148. 
 
 This complaint then alleged that the plaintiff was the owner 
 of a specified number of other bonds of precisely like tenor and 
 effect ; except that they were differently numbered, and that 
 twenty of them were for one hundred dollars each [stating the 
 numbers and amounts of each'], "that he purchased each and 
 all of said bonds before maturity, for a valuable consideration. 
 Plaintiff says that said bond, Exhibit ' A,' and each of said other 
 bonds, is past due wholly unpaid ; Wheeefoee plaintiff 
 prays judgment for twenty thousand dollars against said defend- 
 ant, and for all proper relief." 
 
 This complaint also contained a count, with similar allegations, 
 upon coupons for interest, attached to such bonds at the time of 
 their execution, annexing the form as Exhibit B. A stipulation 
 similar to those before made was annexed. 
 
 The defendant demurred to this complaint because among 
 other things (1) it was insufficient in law ; (2) it " does not allege 
 under what law or for what purpose the bonds and coupons 
 sued on were issued ;" (3) it " contains no allegation showing 
 authority in defendant to make the bonds and coupons sued 
 upon ; " and (4) " the allegation of power and authority in the 
 defendant to make the bonds and coupons in suit is a legal 
 conclusion. Lastly, insufficiency of facts to constitute a cause 
 of action. 
 
 The Circuit Court sustained the demurrer and gave judg- 
 ment for defendant. 
 
 Plaintiff brought error. 
 
 The Supreme Court affirmed the judgment. 
 
 Gray, J. The town of Covington had no general power to 
 issue negotiable bonds. If the general statute of Indiana of 
 June 11, 1852, under which it was incorporated, conferred any 
 power upon towns to issue bonds, it was only for certain munic- 
 ipal puqjoses therein specified ; and the general statute of May 
 16, 1869, authorized towns to issue bonds for the purchase and 
 erection of lands and buildings for school purposes only. 1 Ga- 
 vin & Hord's Stat., 623-626 ; Davis' Supplt., 116. 
 
 The bonds in suit containing no statement of the purpose for 
 which they were issued, and no recital which can bind the town 
 
I. Causes of Action at Law. (1) Express Contracts. 109 
 
 Hopper V. Town of Covington, 118 U. S., 148. 
 
 by way of estoppel, anyone suing upon the bonds is bound to 10 
 allege and prove the authority of the town to issue them.* 
 
 The plaintiff relies on the statement of Mr. Justice Swatne in 
 Gelpcke v. Dubuque, 1 Wall., 175, 203, repeated by him and 
 by Mr. Justice Clifford in later cases, that " when a corporation 
 has power, under any circumstances, to issue negotiable securi- 
 ties, the bona fide holder has a right to presume they were is- 
 sued under the circumstances which give the requisite authority, 
 and they are no more liable to be impeached for any infirmity 
 in the hands of such a holder than any other commercial paper," 
 Supervisors v. Sehenck, 5 Wall., 772, 784 ; Lexington v. Butler, 
 14 Wall., 282, 296 ; San Antonio v. Mehaffy, 96 U. S., 312, 314 ; 
 Macon County v. Shores, 97 U. S., 272, 279. 
 
 But the circumstances thus spoken of were the preliminary 
 facts requisite to the exercise of the power, not the limits, fixed 
 by law, of the objects and purposes for which the power could be 
 exercised at all. In each of the cases cited, the defects sug- 
 gested were in the requisite preliminary proceedings, and the 
 bonds sued on appeared by recitals on their face to have been 
 issued according to law. When the law confers no authority 12 
 to issue the bonds in question, the mere fact of their issue can- 
 not bind the town to pay them, even to a purchaser before 
 maturity and for value. Marsh v. Fulton County, 10 Wall., 
 676 ; East Oakland v. Skinner, 94 U. S., 255 ; Buchanan v. 
 Litchfield, 102 U. S., 278; Dixon County v. Field, 111 U. S., 
 83 ; Hayes v. Holly Springs, 114 TJ. S., 120 ; Daviess County 
 V. Dickenson, 117 U. S., 657. 
 
 A demurrer admits only facts, and facts well pleaded. The 
 town having but a limited authority to issue bonds for certain 
 purposes, it is not enough for the plaintiff to aver in general ^^ 
 terms that the town was authorized to issue the bonds in suit ; 
 but he must state the facts which bring the case within the 
 special authority. There is nothing in this declaration,,or in the 
 copies of instruments annexed to and made a part of it, which 
 shows, or has any tendency to show, for what purpose the 
 bonds were made. The averment, that the defendant is a 
 
 * By later decisions, recitals in the bond are not enough to raise an es- 
 stoppel. Sutliff V. Lake Co. Comrs., 147 U. S., 330 and cas. cit. 
 
110 Abbott's Select Cases on Code Pleading. 
 
 Milliben v. W. U. Tel. Co., 110 N. Y., 403. 
 
 14 municipal corporation under the laws of Indiana, " with full 
 power and authority, pursuant to the laws of said state, to exe- 
 cute negotiable commercial paper," if understood as alleging a 
 general power to execute negotiable commercial paper is incon- 
 sistent with the public laws of the state, of which the courts of 
 the United States take judicial notice. The averment, that the 
 bonds held by the plaintiff were executed pursuant to the laws 
 of the state, is but a statement of a conclusion of law, which is 
 not admitted by demurrer. The declaration is fatally defective 
 for not stating the facts necessary to enable the court to judge 
 for itself whether that conclusion of law has any foundation in 
 fact. Pumpelly v. Green Bay Co., 13 Wall., 166, 1^5 ; Cragin v. 
 Lovell, 109 U. S., 194 ; Kennard v. Cass County, 3 Dillon, 147 ; 
 Broome v. Taylor, 76 N. Y., 564 ; Cotton v. Xew Providence, 
 18 Vroom, 401. 
 
 Judgment affirmed. 
 
 MILLIKEN V. WESTEEN UNIOlSr TEL. CO. 
 
 JVew York Court of Appeals, 1888. 
 [Reported in 110 N. Y., 403; rev'g 53 Super. Ct. (J. & S.) 111.] 
 
 1. A complaint is not demurrable merely because the facts demurred to 
 
 are imperfectly or informally or arg-umentatively stated. 
 
 2. Upon demurrer the question is upon the sufficiency ot the facts wliich 
 
 may fairly be collected from the pleading demurred to, considered to- 
 gether with whatever inferences may fairly be drawn from them. 
 
 3. A complaint against an ocean telegraph company, after alleging that 
 
 plaintiff had sent by it a message to his agent in France, alleged that 
 plaintiff, when expecting an answer by cable to the message he had 
 previously sent, inquired at defendant's office and was told that no 
 answer had been received, although it had been received ; and that 
 defendant, according to its usual custom, registered his address and 
 promised to forward an answer if or when received, and defendant 
 declined to receive payment therefor in advance, though offered by 
 plaintiff; and failed to forward an answer which was actually re- 
 ceived. — Held, that it stated a good cause of action, either upon the 
 contract made by defendant with plaintiff's agent in France, or upon 
 its contract with plaintiff in New York. 
 
 4. The rule that a principal may maintain an action upon a parol contract 
 
 made by his agent with a third person, although the agency is not 
 
I. Causes of Action at Law. (1) Express Contracts. Ill 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 disclosed at the time of making the contract, applies inactions against 
 telegraph companies. 
 5. The law will generally imply a promise to pay, where one person has 
 rendered valuable services to another at his request. 
 
 Action on contract for failure to deliver a telegraphic message. 
 
 The allegations of the complaint were : 
 
 I. That plaintiff was at all the times hereinafter mentioned, 
 and still is a dramatic writer, translator and dealer and broker 
 in American and foreign plays. 
 
 II. Upon information and belief that the "Western Union 
 Telegraph Company, the above named defendant, is a domestic 
 corporation duly existing under and by virtue of the laws of the 
 state of New York. 
 
 III. That the principal business of defendant is to receive 
 and transmit messages by telegraph over certain lines of wire 
 running through the state of New York and into and through 
 certain states and counties contiguous thereto, and to deliver 
 the same and to receive, transmit and deliver messages from 
 abroad transmitted by submarine telegraph cables in connection 
 with its lines of wire and proper facilities operated by it for that 
 purpose ; and the confidence with which the public is invited 
 to and does repose in the care with which defendant conducts 
 its said business is a source of large profit and gain to said de- 
 fendant. 
 
 IV. And the said defendant held out and represented to the 
 world and to this plaintiff, that it would condiict its said busi- 
 ness with reasonable care, diligence and dispatch, and that it 
 would transmit, receive and deliver telegraphic and cable mes- 
 sages in as diligent, competent and correct manner with all con- 
 venient speed. 
 
 Y. And plaintiff, relying upon said inducements and repre- 
 sentations, entered into a contract with said defendant, as herein- 
 after set fortli. 
 
 VI. That plaintiff on the 15th day of December, 1883, was 
 applied to by a person who then desired to purchase from plaint- 
 iff a certain French play or dramatic composition entitled " Pot 
 Bouille," owned by parties in the city of Paris, in the repubhc 
 of France, and then being produced and exhibited in that city ; 
 
 1 
 
112 Abbott's Select Cases on Code Pleading. 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 and said applicant was then willing to pay plaintiflE for said play 
 the sum of $3,000, but plaintiff was, at the time said application 
 was made to him, ignorant of the facts as to whether he could 
 purchase said play, and the price he would be required to pay 
 therefor,; and in order to ascertain said facts plaintiff did on 
 said 15th day of December, 1883, send a cable message to 
 Thomas Linn, plaintiff's agent in Paris, which said message was 
 as follows, to wit. : " What is the lowest price at which you can 
 buy ' Pot Bouille ' ? " And said Linn received said message 
 promptly and forwarded a reply to plaintiff, addressad " Mentor, 
 New York,'' which said reply plaintiff subsequently learned was 
 received by defendant, and was in defendant's possession on the 
 17th day of December, 1883. 
 
 That plaintiff called at defendant's office on said ITtli day of 
 December, 1883, and inquired if defendant had received a mes- 
 sage addressed " Mentor, New York ; " and plaintiff was in- 
 formed by defendant that it had not received such message, but 
 said defendant then represented and stated to plaintiff that any 
 message sent by cable from Paris to New York would be re- 
 ceived by and through defendant in New York ; but said de- 
 fendant did not then, nor at any time thereafter, deliver said 
 message to plaintiff, although plaintiff alleges upon information 
 and belief that said message, directed as aforesaid, was then in 
 the possession and custody of defendant. 
 
 Plaintiff further says that on said 17th day of December, 
 1883, he requested defendant to register the name and address 
 of plaintiff in order that said message might be promptly deliv- 
 ered to plaintiff, and defendant then and there, pursuant to its 
 custom and in the regular course of its business, did register the 
 name and address of plaintiff in a book kept by defendant for 
 such purpose, as follows, to wit. : " Mentor, New York, James 
 F. Milliken, No. 19 West Twenty-fourth street. New York 
 City ; " and plaintiff then informed defendant that he was ex- 
 pecting a message from Paris, addressed " Mentor, New York," 
 and that he believed said message had been sent and should be 
 in the possession and custody of defendant ; and that said mes- 
 sage was of great importance to plaintiff, and involved a transac- 
 tion with regard to the sale of a play by plaintiff, and said trans- 
 
T. Causes of Action at Law. (1) Express Contracts. 113 
 
 Millikent;. W. U. Tel. Co., 110 N. Y., 403. 
 
 action involved a large sum of money; and that plaintiff could U 
 do nothing with regard to it until he had received said message ; 
 and defendant then and there promised and agreed to and with 
 the plaintiff that defendant would send such message, without 
 delay, to plaintiff, at No. 19 West Twenty-fourth street, in said 
 city of New York, if said message had been received or should 
 be received by defendant ; and defendant held out and repre- 
 sented to plaintiff, as hereinbefore set forth, that defendant 
 would deliver said message to plaintiff safely, promptly and with 
 diligence and dispatch ; and plaintiff, relying upon said repre- 
 sentations and inducements, and reposing confidence in the care 
 with which defendant conducted its said business, as aforesaid, 
 did then and there contract and agree with defendant for the 
 delivery of said message by defendant to plaintiff, and said de- 
 fendant undertook and agreed to and with this plaintiff to de- 
 liver said message to plaintiff at Xo. 19 West Twenty-fourth 
 street, in the city of New York, safely, promptly and with dili- 
 gence and dispatch ; and plaintiff then offered to pay and reward 
 said defendant in advance for said service and for registering 
 plaintiff's name and address, but said defendant then declined to 11 
 receive or accept pay or reward. 
 
 A^II. That defendant received said message and reply, ad- 
 dressed " Mentor, New York," prior to the 19th day of Decem- 
 ber, 1883, as plaintiff is informed and believes, but said defend- 
 ant, not regarding its said promise and undertaking, and well 
 knowing the importance of said message, did not take due care 
 to deliver said message to plaintiff, as agreed, although thereafter 
 frequently solicited and requested to do so by plaintiff ; and did 
 not then deliver said message to plaintiff, nor at any time after- 
 wards, but, on the contrary, the defendant so negligently and 
 carelessly conducted itself with respect to said message and the 
 delivery thereof that, by and through the mere carelessness, 
 negligence and improper conduct of the defendant, its servants 
 and employees said message was never delivered to p]aintiff,and 
 is still in the possession and custody of defendant ; and by reason " 
 of the premises in that behalf, and in consequence of the negli- 
 gence of defendant as aforesaid, and not through any negligence 
 or fault of this plaintiff, plaintiff lost the sale of said play, and 
 
114 Abbott's Select Cases on Code Pleading. 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 13 suflEered tliereby loss and damage in a large sum of money, to 
 wit, in the sum of $1,400 ; and jjlaintiff alleges that he has since 
 ascertained tlie fact to be that said message contained information 
 tliat plaintiff could purchase and secure said play at a price not 
 to exceed 8,000 francs ; and plaintiff alleges that if defendant 
 had delivered said message to plaintiff, as agreed, plaintiff would 
 have sold said play for $3,000, and would have realized thereby 
 a profit of not less than $1,400. 
 
 Wherefore plaintiff demands judgment against defendant 
 for $1,400 witli interest from January 1, 1884, besides the costs 
 of tliis action. 
 
 Defendant demurred on the ground that the complaint did not 
 state facts sufficient to constitute a cause of action. 
 
 The Superior Court at Special Term sustained the demurrer, 
 holding that there was no contract shown, nor any privity of 
 contract, nor any consideration moving to the defendant sufficient 
 to support an action. 
 
 7'he General Term affirmed the judgment, on the view that 
 the averments of the complaint did not show that the so-called 
 contract was supported by any consideration ; that it was not 
 averred that the promise to deliver the message was made in 
 consideration of the reward or the promise to pay a reward. 
 Nor did the complaint aver a legal duty ujDon defendant, either 
 in general or to the plaintiff particularly, to deliver the message 
 upon which an implied contract to do the duty would arise. 
 
 The Court of Appeals reversed the judgment. 
 
 KuGEE, Ch. J. The questions involved in this appeal are 
 raised by a demurrer to the complaint, alleging tliat it does not 
 state facts sufficient to constitute a cause of action. 
 
 'Both the Special and General Terms sustained the demurrer, 
 and ordered judgment for the defendant. We are of the opinion, 
 however, that the complaint does state a cause of action. 
 
 It must be assumed at the outset that the facts stated therein, 
 as well as such as may by reasonable and fair intendment be 
 implied from the allegations made, are true. It is not sufficient, 
 to sustain a demurrer, to show that the facts are imperfectly 
 
 15 
 
I. Causes of Action at Law. (1) Express Contracts. 115 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 or informally averred, or that the pleading lacks definiteness and IT 
 precision, or that the material facts are argumentatively stated. 
 (Lorillard v. Clyde, 86 N. Y., 384; Marie v. Uarrison, 83 id.,1-^.) 
 If, from the facts stated, it appears that the defendant incurred 
 a liability to the plaintiff, whether arising upon contract or from 
 an omission to perform some legal duty or obligation resting 
 upon it, the complaint should be sustained, whether the plaintiff 
 has set forth the legal inferences which may be implied from 
 the facts stated, or not. (White v. Madison, 26 N.Y., 117.) The 
 present system of pleading does not require that the conclusions 
 of law should be set forth in the pleading, provided that the 
 court can see, from any point of view, from the facts stated that 
 , a legal obligation rested upon the defendant. (Eno v. AVood- 
 worth, 4 N. Y., 249.) 
 
 The inquiries in this case are, first, whether the defendant was 
 competent to enter into the contract alleged by the complaint to 
 have been made ; and, secondly, whether a valid contract was 
 made between it and the plaintiff to do or perform the service 
 undertaken by it. 
 
 The first question may be briefly disposed of, as no point is j^g 
 made as to the competency of the defendant to contract to 
 deliver telegraphic messages to persons addressed ; and the sole 
 inquiry is, therefore, whether the complaint shows that it has 
 made a valid contract to do so. 
 
 The demurrer concedes that an agreement was made by 
 which the defendant promised to deliver a message expected to 
 be received by it from the plaintiff's agent in Paris, addressed 
 " Mentor, New York," to the plaintiff, at his residence, as soon 
 as the same should come into its possession. 
 
 The facts alleged show that the plaintiff had made arrange- "' 
 ment with his agent in Paris to obtain information upon busi; 
 ness in which the plaintiff was solely interested, and transmit it 
 by telegraph to New York to the address of " Mentor." It 
 also appears that the message was really intended for the plaint- 
 iff, and that it was duly received by the defendant, but was not 
 delivered by it. 
 
 The sole claim of the defendant, therefore, is reduced to the 
 contention that the complaint does not show a good or sufiicient 
 
116 Abbott's Select Cases on Code Pleading. 
 
 Milliken v. W. U. Tel. Co., llO N. Y., 403. 
 
 'Jl consideration for its promise to deliver such message, and that 
 no legal duty rested upon it to deliver the same to the plaintiff. 
 We think that this complaint, under the rules of law applicable 
 to questions raised by demurrers, does state a cause of action on 
 the part of the plaintiff against the defendant. We can see no 
 reason why the defendant is not liable to the plaintiff upon the 
 contract made by it with his agent in Paris for the transmission 
 and delivery of the message. So far as appears, the plaintiff was 
 the only party interested in the business to which the message 
 related, and the only person who could be benefited by the per- 
 
 ^^ formance of that contract. It is quite obvious, from the aver- 
 ments in the complaint, that the defendant secured possession 
 of the message under a contract to transmit and deliver it to the 
 person answering the description of its address, in Kew York. 
 (Baldwin v. U. S. Tel. Co., 1 Lans., 125 ; Leorard v. JST. Y., etc., 
 Tel. Co., 41 ]Sr. Y., 644.) If the defendant had been unable, 
 by reason of the fictitious address, to identify the person for 
 whom it was intended ; it would have been a sufficient excuse for 
 its non-delivery, but this difiiculty was obviated before the duty 
 
 23 of delivery fell upon the carrier, by the information, given to, 
 and accepted by it, as satisfactory evidence of the identity of the 
 person for whom it was intended. The rule that a principal is 
 entitled to maintain an action upon a contract made by his agent 
 mtli a third person, although the agency is not disclosed at the 
 time of making the contract, has many illustrations in the re- 
 ported cases, and is elementary law. (Coleman v. Bank of 
 Elmira, 53 N. Y., 388 ; Briggs v. Partridge, 64 id., 357 ; Ford 
 V. Williams, 21 How. [U. S.], 288 ; Dykers v. Townsend, 24 
 IvT. Y., 57.) This principle has been frequently applied in 
 
 " actions against telegraph companies, and is now the settled law 
 of this country in respect to such corporations. (De Rutte v. 
 N. Y., Albany and Buffalo E. M. Tel. Co., 1 Daly, 547; Leon- 
 ard V. Tel. Co., 41 N. Y., 544 ; N. Y. & W. P. Tel. Co. v. Dry- 
 burg, 35 Pa., 30(» ; Baldwin v. Tel. Co., 1 Lans., 128.) 
 
 In Leonard v. Telegraph Company an action was sustained on 
 account of a change made in the language of a telegram passing 
 between two of the plaintiff's agents, by which a loss was in- 
 flicted upon their common principal. In Playford v. United 
 
I. Causes of Action at Law. (1) Express Contracts. 117 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 Kingdom Electric Telegraph Company (L. R., 4 Q. B., 706), in 25 
 an action Vronght by the person receiving the message against 
 the telegraph company for having negligently changed the 
 terms of the dispatch, in course of transmission, whereby the 
 plaintiff suffered damage by acting upon it as received, it was 
 held that the company Was under no contract obligation to the 
 plaintiff to deliver the message correctly, but it was conceded if 
 the senders had been the agents of the plaintiff in the business 
 to which the message related, that a recovery could have been 
 had. Some of the authorities in this country go still further 
 and hold that a telegraph company rests under a legal duty to 
 the person to whom a message is addressed, when he is the party 
 solely interested, to transmit it correctly and deliver it to him ; 
 but it is unnecessary in this case to pass upon that question, 
 and we, therefore, express no opinion upon it. (De Rutte «. 
 Tel. Co., siqrra ; Wadsworth v. W. IT. TeL Co., 3S Alb. 
 L. Jour., 87.) 
 
 We are, therefore, of the opinion that the plaintiff could 
 avail himself of the obligation of the original contract for the 
 transmission of the message, and recover, for a breach thereof, 27 
 such damages as he might be able to show he had suffered from 
 the alleged breach. "We are also of the opinion that, aside from 
 the contract referred to, the complaint states a valid contract 
 between the plaintiff and defendant, made at New York in 
 anticipation of the arrival of the message at that place. It 
 alleges that the plaintiff stated to the defendant that he was 
 expecting a message from Paris addressed "Mentor, New York," 
 and was the individual intended by such address, and requested 
 the defendant to deliver it to him at his residence in that city. 
 The plaintiff then offered to pay for such service in advance, "' 
 which the defendant declined to accept, but entered plaintiff's 
 name in its register as that of a person entitled to receive mes- 
 sages addressed to " Mentor," and promised to deliver such mes- 
 sage, in accordance with such request, at plaintiff's residence 
 when received by it. That this was a service which the defend- 
 ant was authorized to contract to perform is obvious from the 
 usual course of telegraphic business and the necessities of the 
 case. The fact that defendant had contracted with another pei'- 
 
118 Abbott's Select Cases on Code Pleading. 
 
 Milliken v. W. U. Tel. Co., 110 N. Y., 403. 
 
 29 son to transmit and deliver the same message, especially as it 
 claims tliat it did not thereby come nnder any legal duty to the 
 plaintiff to seek him out and deliver the message, would not 
 preclude it from making a contract with the person addressed, 
 for a special mode of delivery to him. If the plaintiff, intending 
 to go to a distant city, had contracted with defendant to repeat 
 such message to him there, could there be a doubt as to the 
 validity of such a contract ? And we think it equally within the 
 contractual power of a telegraph company to agree to such special 
 delivery, either without or within the limits of its usual delivery, 
 with the person expecting to receive a particular message. It is 
 said, however, that there is no consideration alleged for this 
 promise. 
 
 If it can fairly be inferred from the facts alleged that the 
 parties expected compensation to be made for the services prom- 
 ised, and the payment of such agreed comj^ensation could be 
 enforced by the promise, a sufficient consideration appears for 
 the undertaking. There is no doubt but that reciprocal promises 
 are a valuable consideration for each other, and that the law will 
 
 31 usually imply a promise to pay for valuable services rendered to 
 a party upon his request. (Pollock on Cout., 161 ; Coleman v. 
 Eyre, 45 N. Y., 38 ; Briggs v. Tillotson, 8 Johns., 304.) That it 
 was expected by the parties that the plaintiff should pay for the 
 delivery of the message is obvious from his offer to do so in 
 advance, and although this was waived by the defendant that 
 did not preclude it from demanding and enforcing the collection 
 of payment for services performed by it in pursuance of plaint- 
 iff's request. If the complaint had, in terms, alleged a promise 
 to pay for such services, this would have authorized a finding of 
 such promise upon proof of the facts stated in the complaint ; 
 and we think that, upon demuri-er, the law will imply such a 
 promise, and that the complaint must, therefore, be held to have 
 alleged a good cause of action. (Marie v. Garrison, supra ; Eno 
 V. "Woodworth, sujva ; Justice v. Lang, 52 IST. Y., 323.) For 
 the reasons stated we think the demurrer should have been over- 
 ruled. 
 
 The judgments of the courts below are, therefore, reversed, 
 and the demurrer overruled, and the defendant have leave to 
 
I. Causes of Action at Law. (1) Express Contracts. 119 
 
 Catlin V. Adirondack Co., 11 Abb. N. C, 377. 
 
 answer the complaint upon payment of all costs and disburse- 33 
 ments accruing since the demurrer was interposed. 
 
 All the judges concurred ; Eael, J., on second ground stated 
 in opinion. 
 
 Judgment reversed. 
 
 CATLIN V. ADIEOXDACK COMPANY. 
 
 JSfeio York Court of Appeals, 1880. 
 [Reported in 11 Abb. N. C, 377.] 
 
 1. The liability of a common carrier for the non-delivery of goods may be 
 
 enforced by an action in either of the forms formerly known as 
 assumpsit or tort, at the option of the pleader. 
 
 2. Where tlie summons was in the form of an action for money on a 
 
 contract, and the complaint alleged that the defendant's business was 
 to carry g'oods for hire, the deliveiy of goods to defendant, payment 
 of charges, the undertaking of defendant to deliver, and the loss of 
 goods of the amount claimed, with interest, — Held, that the action 
 was upon contract. 
 
 3. An action against a common carrier for the non-delivery of goods, in 
 
 the form of an action on contract, is not an action for an "injury to 
 property" within Code Civ. Pro., § 549, so as to warrant an execu- 
 tion against the person. 
 
 Plaintiff sued defendant to recover for goods taken from 
 plaintiff's trunks, while in defendant's custody for the purpose 
 of transportation. 
 
 The allegations of the complaint were as follows : " That, at 
 the several times hereinafter mentioned, the defendant was a 
 corporation, duly created and existing undei- the laws of the 
 state of New York, and engaged in carrying goods for hire. 
 That on or about the twenty-second day of November, 1872, 
 the plaintiffs delivered to and left in the possession of the de- 
 fendant, at the station of Hadley, in Saratoga county, New 
 York, three trunks, to bo conveyed as freight to Rye, Westchester 
 county. New York. 
 
 " That the defendant undertook and became responsible to the 
 plaintiffs for the due and safe transport of said tnmks to their 
 said destination. That said trunks were unduly delayed in trans- 
 portation, to the great annoyance and inconvenience of the 
 
120 Abbott's Select Cases on Code Pleadi^'G. 
 
 Catlin V. Adirondack Co., 11 Abb. N. C, 377. 
 
 plaintiffs, and were not delivered at their said destination at 
 Rye till on or about the ninth day of December, 1872, having 
 thus been about eighteen days in transportation, that should not 
 have occupied more than four or five days at the very most. 
 That after said trunks had been received by the plaintiffs at their 
 destination aforesaid, and the charges for their transportation 
 duly paid, it v^as found that each and every one of said three 
 trunks had been broken open since their delivery to the defend- 
 ant, and while said defendant was responsible to the plaintiffs 
 for their safety, and numerous articles, of the aggregate value 
 of $1:00, unlawfully taken therefrom. Wherefore," etc. 
 
 The plaintiffs first recovered judgment. It was afterwards 
 reversed on appeal. On a new trial the complaint was'dismissed, 
 and defendant entered judgment for costs. An execution 
 against the projjerty of jilaintiff being returned unsatisfied, an 
 execution was issued ' against his person. The plaintiff was 
 arrested and held in custod}^ until he paid the money to the 
 sheriff. 
 
 At Special Term, Pottee, J., granted an order vacating the 
 execution against the person, and directing the sheriff to return 
 the money collected under it, for the reasons stated in his opinion 
 given below. 
 
 T/ie Genei'al Term of the Supreme Court held that this com- 
 plaint was not on contract, but in tort ; and reversed the order. 
 Other facts aj)pear in the opinion of Pottee, J. 
 
 The Court of Appeals unanimously reversed the decision of 
 the General Term, and adopted the opinion of the Special Term, 
 which was as follows : 
 
 Pottee, J. This is a motion to set aside an execution issued 
 against the person of plaintiff, upon a judgment against him by 
 defendant for the costs of this action, upon the ground that the 
 gravamen of the complaint is a breach of contract, and not a 
 tort. 
 
 The liability of a common carrier for the non-delivery of goods 
 intrusted to him for carriage may be enforced by an action in 
 either of the forms formerly known as assumpsit or tort, at the 
 option of the pleader. 
 
I. Causes of Actum at Laiv. (1) Express Contracts. 121 
 Catlin V. Adirondack Co., 11 Abb. N. C, 377. 
 
 The rules of liability and defence were tlie same in each. If 7 
 the pleader chose to predicate it upon contract, he would allege 
 a contract, the consideration, and the breach or non-fulfillment 
 of it. 
 
 If he chose to predicate it upon tort, he -svoi^ld allege the 
 custom of the realm, the loss by conversion, etc. Certain inci- 
 dents are peculiar to each form of action. In the former was to 
 be observed the same rule as to joinder of parties as in other 
 actions upon contract. In the latter the same rules in that re- 
 spect applied as to actions for tort. 
 
 So, too, since the act to abolish imprisonment for debt and the 
 adoption of the Codes, there has been a distinction in the execu- 
 tions issuable in the different forms of action. 
 
 In the former, execution can only issue against the 2Droperty% 
 In the latter, it may issue against the person of the party. 
 "Whether this action belongs to one or the other of these classes 
 depends upon the form of the summons, and especially upon the 
 allegations in the complaint. The evidence upon the trial is not 
 before me on this motion. 
 
 The summons is in the form prescribed in an action for money ;) 
 upon contract. The complaint alleges that the defendant was 
 engaged in carrying goods for hire, the delivery to defendant of 
 -certain trunks by the plaintiff, to be conveyed to Eye. That de- 
 fendant undertook for the safe transport of said trunks to their 
 destination. That the charges for their transportation were dulv 
 paid. While in defendant's possession, and while they were re- 
 sponsible for the safety of said trunks, articles of the value of 
 $400 were taken therefrom, and a demand for judgment for that 
 sum, with interest thereon from the time the trunks and their 
 contents were delivered to and received by defendant. 
 
 These are essential allegations of an action upon contract, and 
 in an action upon tort the essential allegations of the complaint 
 are that defendant was a common carrier, the custom appertain- 
 ing thereto, and his duty as such, the loss of goods through de- 
 fendant's negligence or conversion, and the damages sustained 
 by plaintiif by reason of the loss of his goods. These allegations 
 are wanting in the complaint in this case. 
 
 On the contrary, the gist of the action is the non-fulfillment of 
 
122 Abbott's Select Cases on Code Pleading. 
 
 Dalzell V. The Fahys Watch Case Co., 138 N. Y., 285. 
 
 11 the undertaking or contract to carry and deliver safely, as alleged 
 in the complaint. 
 
 ^ly conclusion is, that the action is upon contract, and as no 
 order of arrest has been oljtained, for any matters incident to or 
 extrinsic to the contract, neither party to it (if the defendants 
 are not a corporation) can be arrested upon execution issued in 
 it. I think these views are supported by Bank of Orange v. 
 Brown, 3 Wend., 1.5S ; Campbell v. Perkins, 8 ]Sr. Y., 430 ; Brown 
 V. Treat, 1 Hill, 225. 
 
 Motion to set aside execution granted. 
 
 DALZELL V. THE FAHYS AVATCH CASE CO. 
 
 Xeio Yorh Court of Appeals, 1893. 
 
 [Reported in 138 X. Y., 285.] 
 
 1. Allegations of a pleading are to be liberally construed with a view to 
 
 substantial justice between the parties. 
 
 2. A complaint held good as against demurrer, which specified certain 
 
 letters patent issued to plaintiff, averred that those patents were the 
 same mentioned in an agreement annexed ; that under such agree- 
 ment plaintiff duly assigned to defendant, or for its vise, and at it^ 
 request, the said patents ; that defendant, under said patents and 
 agreement, had made and sold large quantities of the articles covered 
 thereby ; that defendant had received net profits amounting to a speci- 
 fied sum, that plaintiff has demanded his half thereof, but that de- 
 fendant has refused to pay that share to him. 
 
 1 Action for a share of net profits realized from the manufact- 
 ure and sale of patented articles. 
 
 The allegations of the complaint were as follows : 
 I. On infonnation and belief that at all the times hereinafter 
 mentioned the defendant was and still is a corporation duly 
 created, organized and existing under the laws of the State of 
 Xew York. 
 
 IL That heretofore there were issued, in due form of law, 
 
 2 unto this plaintiff by the United States of America five several 
 Letters Patent, as follows: \^Siiec{fijing themby numbers and 
 date of ixHue.] And being the same Letters Patent mentioned 
 
I. Causes of Action at Law. (1) Express Contracts. 123 
 
 Dalzell V. The Fahys Watch Case Co., 138 N. Y., 285. 
 
 in the contract duly made, executed and delivered interchange- 
 ably between the parties hereto, a copy of said agreement being 
 hereunto annexed and made a part hereof. 
 
 That thereafter and under and by virtue of said annexed con- 
 tract in that behalf, this plaintiff did, on or about December 27, 
 1887, duly assign, transfer and set over unto the defendant, or 
 for its use, and at its request, the Letters Patent aforesaid. 
 
 That thereafter and ever since, the defendant, as plaintiff is 
 informed, verily believes and alleges, has manufactured and sold 
 under said Letters Patent and contract, upwards of one million 
 two hundred and fifty thousand of the commodities thereby cov- 
 ered and referred to, and that after all the deductions authorized 
 by said agreement from the proceeds of such sales, there re- 
 mains received by defendant and being net profits, the sum of 
 one hundred and fifty thousand dollars. 
 
 That plaintiff has duly and fully ^done and performed all the 
 matters and things by him to be done and performed under said 
 contract on his part, and from said defendant demanded his said 
 moiety of net profits thereunder accordingly, but the defendant 
 has refused to pay over said moiety nor account thereof, to 
 plaintiff's damage seventy-five thousand dollars. 
 
 Wheeefoee plaintiff demands judgment against defendant for 
 seventy-five thousand dollars, besides the costs and disbursements 
 of this action. 
 
 The annexed contract recited that Dalzell had obtained a 
 number of Letters Patent for improvements in watch cases, in 
 which the company was desirous of securing an interest, and 
 contained an agreement on the part of Dalzell to assign to the 
 company all his interest in all inventions and Letters Patent 
 obtained thereon, now had, or thereafter acquired by future 
 inventions and patents relating to the company's business, " pro- 
 vided the said Fahys Watch Case Company may desire to manu- 
 facture under said Letters Patent, and shall require in writing 
 the said Dalzell so to assign said patent or patents." In con- 
 sideration, the company agreed to furnish all necessary capital 
 and to divide net profits " arising from the sale of the said 
 goods so manufactured under patents aforesaid after deducting 
 
I 
 
 10 
 
 121 Abbott's Select Cases on Code Pleading 
 
 Dalzell V. The Fahys Watch Case Co., 138 N. Y., 385. 
 
 all costs and expenses, including cost of manufacture, selling, 
 bad debts, etc." 
 
 Defendant demnrred on the ground that the complaint did 
 not state facts sufficient to constitute a cause of action. 
 
 The Special Term of the Superior Court sustained the 
 demurrer on the grounds : (1) That the complaint failed to 
 show performance on plaintiff's part of the conditions precedent 
 under the agreement, of assigning the inventions as well as 
 patents on request. (2) That there was no sufficient allegation 
 that plaintiff had assigned all the letters patent he had pro- 
 cured. (3) That the allegation of an assignment " to defendant, 
 or for its use and at its request " was not a compliance with the 
 agreement to assign " to the Fahys Watch Case Company," and 
 the statement that " it was under and by virtue of said annexed 
 contract " is contradicted by the face of that contract. It was 
 further held that the general allegations of performance of con- 
 ditions precedent are not to be deemed to embrace matters as 
 to which plaintiff has specifically pleaded. 
 
 The General Term of the Superior Goxi,rt affirmed the judg- 
 ment on the opinion of the Special Term. 
 
 Tlie Court of Appeals reversed the judgment. 
 
 Eaul, J.' The complaint is clearly sufficient. It contains a 
 plain and precise statement of facts constituting the plaintiff's 
 cause of action. It specifies five patents which were issued to 
 him at the dates mentioned, and avers that those patents are the 
 same that are mentioned in the contract annexed to the com- 
 plaint ; that under the contract the plaintiff did at a date men- 
 tioned duly assign, transfer and set over to the defendant, or for 
 its use and at its request, the patents mentioned ; that it has 
 manufactured and sold under the patents and contract a large 
 quantity of the commodities covered by and referred to in the 
 patents; and that after all the deductions authorized by the 
 contract, there remained net profits received by it amounting to 
 the sum of $150,000 ; that he has demanded his half of such 
 net profits ; that it has refused to pay that share to him, and he 
 
I. Causes of Action at Law. (1) Express Contracts. 125 
 
 Dalzell V. The Fahys Watch Case Co., 138 N. Y., 385. 
 
 demands judgment. So far as we can perceive this complaint is 11 
 absolutely unassailable. It is quite true as contended by the 
 defendant that the plaintiflE was bound to assign to it not only 
 the letters patent, but all the inventions. We may assume that 
 the plaintiff has not assigned the inventions, but we cannot 
 assume that he has refused to do so. The averment in the com- 
 plaint is that upon the request of the defendant he assigned the 
 patents, and that it has used them and made the net profits by 
 the use of them. It has, therefore, had the substantial benefit 
 of the agreement thus far. If the plaintiff's assignment was not 
 as full and complete as it was entitled to have, it should have 
 refused to accept it, or to use the patents, and then it could have 
 compelled him to perform his contract, or have sued him for 
 damages. But having taken an assignment of the patents under 
 the agreement, and used them, it cannot refuse to pay the share 
 of the profits stipulated in the contract. If it now wishes an 
 assig[iment of the inventions, it miist demand it, and if refused, 
 it may compel the assignment by suit or recover damages for 
 the .refusal ; or it may retransfer the patents to the plaintiff and 
 refuse further to use them. But it cannot retain the patents 13 
 and use them without any liability to pay the stipiilated com- 
 pensation for their use. So, too, if the defendant has suffered 
 any damages because the plaintiff has refused to assign the in- 
 ventions it may interpose a counterclaim for such damages in' 
 this action. 
 
 The agreement requires the plaintiff to assign the patents to 
 the defendant, and it is claimed that the complaint is defective 
 because it alleges that he assigned, transferred and set over the 
 patents " to the defendant, or for its use." But it is alleged 
 that the assignment was thus made at its request. It certainly 
 would be a performance of the contract on the part of the 
 plaintiff if, at the request of the defendant, it assigned the 
 patents to some person for its use, and it thereafter used them 
 and had the benefit of them. It is quite hypercritical to say that 
 the letters patent mentioned in the complaint are not those 
 referred to and contemplated by the contract. It is alleged that 
 they were issued to the plaintiff ; that they are the same letters 
 patent mentioned in the contract ; that the patents were assigned 
 
126 Abbott's Select Cases on Code Pleading. 
 
 Thomas v. Nelson, 69 N. Y., 118. 
 
 15 to tlie defendant at its request in pursuance of tlie contract, and 
 that it used them. What further allegations were needed ? 
 
 This complaint cannot be condemned as insufficient without 
 applying rules for its construction more stringent than have ever 
 prevailed in this state, in despite of a provision of the Code 
 (§ 519), which requires the allegations of pleadings to be liberally 
 construed, with a view to substantial justice between the parties. 
 
 The judgment of the General and Special Terms should be 
 reversed and judgment given for the plaintiff upon the 
 1 g demurrer, with costs, with leave, however, to the defendant, 
 within, twenty days after the filing of the remittitur in the court 
 below, iipon payment of all the costs subsequent to the demurrer, 
 to answer the complaint. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 THOMAS V. NELSON. 
 
 Ifeiv Yorh Court of Appeals, 1877. 
 
 [Reported in 69 N. Y., 118.] 
 
 1. The allegations of the complaint implied a written lease for seven 
 
 years. — Held, no error to allow proof of a parol lease for such term, 
 and subsequently to allow the complaint to be amended so as to aver 
 a parol letting. 
 
 2. It seems, that under the complaint as originally framed, an oral lease 
 
 could have been proved ; that the variance would be immaterial. 
 
 3. It seems, that an oral lease for more than one year, declared to be void 
 
 by the Statute of Frauds, is entirely void ; yet if the tenant enters 
 under it and occupies, he may be compelled to pay for the use and 
 occupation of the premises. 
 
 1 Action to recover rent under a lease. 
 
 The allegations of the complaint were as follows : 
 That in the month of IVLarch, 1873, he [plamfif] leased to 
 the defendant, Charles Nelson, the premises, known as No. 271 
 Broadway, in the city of Brooklyn, for the term of seven years, 
 from the first day of May, 1873, at the rent of fourteen hundred 
 dollars per annum for the first three years, and fifteen hundred 
 dollars per annum for the last four years of said term ;. said rent 
 
I. Causes of Action at Law. (1) Express Contrabts. 127 
 
 Thomas v. Nelson, 69 N. Y., 118. 
 
 to be in equal monthly payments ; that said defendant on or 
 before said first day of May, 1873, entered into possession and 
 occupation of said premises, in pursuance of said letting and 
 renting; said defendant has not paid the rent for the said 
 premises which became due and payable on the first day of 
 June, July, Aiigust, September, October, November and Decem- 
 ber, 1873, and on the first days of January, February, March 
 and April, 1874, amounting in all to the sum of one thousand 
 two hundred and eighty-three dollars and twenty-six cents. 
 
 That said plaintiff on or aboiit the first day of September, 
 1873, duly assigned and transferred all his claim and demand 
 for the rent for the months of May and June, to Joseph Maujer 
 of said city, who has re-assigned the same to him, who is now 
 the lawful owner thereof. 
 
 Wherefore, etc. 
 
 At Trial Term plalntiEf had a verdict. 
 
 The General Term of the City Court of BrooTdyn affirmed 
 the judgment. 
 
 Tke Court of Appeals aflfirmed the judgment. 
 
 Eael, J. This was an action to recover rent for the occupancy 
 of certain premises situated in the city of Brooklyn, under an 
 alleged lease from plaintifif to defendant. The plaintiff re- 
 covered, and the defendant seeks upon this appeal to reverse 
 his judgment upon several grounds, which I will examine 
 separately. 
 
 "First. In his complaint the plaintiff alleges a leasing for the 
 term of seven years. On the trial he proved the following 
 memorandum, signed by himself : " I am to give Mr. Nelson a 
 lease of building 271 Broadway for seven years, first three years 
 at $1,400 per year, and four years at $1,500 per year." This 
 memorandum does not embody the contract between the parties, 
 and was not intended to. It simply embraces the main features 
 of the lease, and plainly indicates that a formal lease was 
 subsequently to be executed, embodying the agreement which the 
 parties had made. The allegations of the complaint were such 
 as to imply a valid written lease for seven years, and, hence, when 
 
128 Abbott's Select Cashes on Code Pleading. 
 
 Thomas v. Nelson, 69 N. Y., 118. 
 
 the plaintiff, upon the trial, attempted t:) show the parol agree- 
 ment for a lease for seven years, the defendant objected that 
 such a lease was not alleged, but the court permitted the 
 plaintiff to prove the parol lea^e, saying, if necessary, that he 
 would allow an amendment of the complaint. After the verdict 
 the defendant made a motion upon the minutes of the court for 
 a new trial. Plaintiff was permitted to enter judgment and his 
 other proceedings were stayed and the hearing of the motion 
 was adjourned for about a month, when it was heard and 
 denied; and the court then made an order allowing the com- 
 plaint to be amended by averring a verbal letting for seven 
 years. I am of opinion that under the complaint as originally 
 framed, a verbal lease for seven years or for one year could have 
 been proved. It woiild have been merely a case of immaterial 
 variance, which could not have misled the defendant. But even 
 if this were not so, the subsequent allowance of the amendment 
 at Special Term was proper. The facts being then all out and 
 before the court, it could allow an amendment to conform the 
 pleadings to the proof. 
 
 Second. As the written memorandum was not of itself the 
 contract between the parties, the plaintiff had the right to prove 
 it by parol, and, in doing so, violated none of the rules of 
 evidence as to written agreements. He proved a parol letting 
 for seven years. The statutes require that such a lease shall be 
 in writing. The court ruled upon the trial, and in its charge to 
 the jury, that such a lease, although invalid for the term of 
 seven years, was valid for the term of one year ; and to these 
 rulings there was no exception. Hence the error, if any, cannot 
 be complained of here. The statute (:? K. S., 135, § 8) declares 
 that a parol contract for leasing land for a longer period than one 
 year shall be void. While such a contract is void, yet, if the 
 tenant enters under it and occupies, he may be compelled to pay 
 for the use and occupation of the premises. (Schuyler i'. 
 Leggett, 2 Cow., (160 ; People v. Kickert, 8 id., 22(i ; Anderson v. 
 Prindle, 23 Wend., 616; Lounsbery v. Snyder, 31 K Y., 511; 
 Greton v. Smith, 33 id., 245 ; Lockwood v. Lockwood, 22 Conn. 
 ■425.) But it is difficult to perceive how such a contract, 
 declared to be void by the statute, can be held to be valid for a 
 
I. Cavses of Action ai Law. (1) Express Contracts. 129 
 
 Hurliman v. Seckendorf, 9 Misc., 264. 
 
 single hour, or upon what principle a tenant, entering under a 10 
 void lease, could be compelled, by virtue of the lease, to pay for a 
 longer period than he actually occupied. The question as to 
 the liability of the defendant for the rent for one year, could 
 not be raised by the motion to non-suit, as he had occupied the 
 premises for a portion of the year. 
 
 [HuUngs on an acceptance iy plaintiff of a surrender of the 
 ■premises, and defendants right to abandon because of untenant- 
 dble condition, are here omitted.'] 
 
 Fifth. The plaintiff in his complaint alleged that he assigned 
 the rent for the months of May and June to one Maujer, and that 
 Maujer had re-assigned the rent to him. On the trial there was 
 no proof of the assignment or re-assignment, and nothing was 
 said about either until the judge had charged the jury, when the 
 defendant's counsel requested him to charge that the plaintiff 
 could not recover for these two months, which request was 
 refused. In this there was no error. All the allegations on the 
 subject in the complaint must be taken together, and they show 
 plaintiff entitled to the rent. 
 
 No other questions need consideration. Upon the assumption 12 
 assented to at the trial that there was a lease binding for one 
 year, no error was committed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 HUELIMAN V. SECKENDORF. 
 
 City Court of BrooMyn, General Term, 189If. 
 
 [Reported in 9 Misc., 264.] 
 
 1. In an action to recover an instalment of rent under a lease providing 
 
 for payment of rent in advance, defendants admitted making- the 
 lease and their refusal to pay the amount demanded, but denied that 
 plaintifE had " duly performed all the conditions of the lease on his 
 part," and that under the lease the specified sum had become due. Held, 
 that all the material allegations of the complaint were admitted. 
 
 2. Where rent is due and payable in advance on the first day of a month, 
 
 plaintiff's cause of action accrues and is complete on that day, not- 
 withstanding he has covenanted to furnish his lessees with heat and 
 power for that month. 
 
 9 
 
130 Abbott's Select Cases on Code Pleading. 
 
 Hurliman v. Seckendorf, 9 Misc., 364. 
 
 3. An allegation that " under and by virtue of said lease there became 
 
 due on a specified day a specified sum," the rent for said month " con- 
 stitutes " merely a conclusion of law, which defendants may disregard 
 without affecting the real issues in the action. 
 
 4. The party who would fail if no evidence was given has the right to open 
 
 and close. 
 
 5. The right to open and close is a substantial right, lor the denial of 
 
 which judgment must be reversed. 
 
 Action for rent. 
 
 The facts fully appear in the opinion. 
 
 OsBOENE, J. Plaintiff brought this action to recover one 
 month's rent of certain premises leased by him to defendant.?. 
 Defendants, by their answer, admitted the lease, and set up 
 sundry affirmative defenses and counterclaims, to which plaintiff 
 replied, denying the same. Plaintiff obtained a verdict in his 
 favor ; and from the judgment entered thereon and the order 
 denying motion for a new trial, as well as from the exceptions 
 taken on the trial, defendants take this appeal. 
 
 At the commencement of the trial the defendants claimed that 
 they were entitled to the affirmative and to the right to open 
 and close. Their motion in this regard was denied, and the de- 
 fendants duly excepted. 
 
 With a view of determining if this exception was well taken, 
 it becomes our duty to examine the pleadings in this case, for 
 the question as to which party is entitled to the affirmative must 
 be wholly determined by the pleadings. (Ontario Bankw. Judson, 
 123 K Y., 279.) 
 
 The first paragraph of the complaint alleges the copartnership 
 of the defendants. 
 
 The second paragraph alleges " that the plaintiff heretofore, 
 by an indenture made between him and the defendants, bearing 
 date May 19, 1890, leased to the said defendants certain premises 
 in said lease mentioned, to wit, the basement of the brick build- 
 ing situated on the northerly side of "Wallabout street, near Lee 
 avenue, in the city of Brooklyn, and known as Nos. 171 to 1S7 
 Wallabout street, together with steam heating and power, as in 
 said lease specified, for the term of twenty-three months, com- 
 mencing on or about June 1, 1890, at the yearly rent of $1,320, 
 
I. Cause of Action at Law. (1) Express Contracts, 131 
 
 Huiliman v. Seckendorl', 9 "Misc., 264. 
 
 payable monthly in advance on the first day of each and every 
 month, which rent the said defendants covenanted and agreed to 
 pay in manner as aforesaid." 
 
 Paragraph III. alleges " that the plaintiff has dnly perf jrmed 
 all the conditions of said lease on his part." 
 
 Paragraph IV. is " that under and by virtue of said lease there 
 became due on September 1, 1890, the sum of SHO, the rent 
 for said month, which the defendants have failed and refused to 
 pay." 
 
 Then follows the prayer for judgment for §110, with interest 
 from September 1, 1890, besides the costs of this action. 
 
 By their answer, paragraph I., defendants " admit the allega- 
 tions contained in paragraph I. of the complaint" (the copartner- 
 ship of the defendants); "they admit making the lease in the 
 complaint mentioned, a copy of which lease is hereto annexed 
 and made part of this answer, and marked Schedule A, and they 
 further admit that they refused to pay the amount demanded in 
 the complaint." By paragraph II. " they deny each and every 
 allegation in said complaint contained not hereinbefore specific- 
 ally admitted." Then follow various affirmative defences, 
 setting up that plaintifE failed to supply them with steam heat, 
 power, etc., as he had covenanted to do, a rescinding of the lease, 
 surrender, fraud and deceit in inducing them to make the lease, 
 and claims for expenditures in fitting up the premises, loss of 
 profits, etc. 
 
 Plaintiff's reply denied the matters constituting counterclaims. 
 It will thus be seen that the defendants admitted their copart- 
 nership and the making of the lease in question, and their refusal 
 to pay the amount demanded in the complaint ; their denial of 
 the other allegations mentioned in the complaint, " not herein- 
 before admitted," can only refer to the remaining allegations of 
 the complaint, to wit : " III. That the plaintiff has duly per- 
 fonned all the conditions of said lease on his part," and "that 
 under and by virtue of said lease there became due on September 
 1, 1890, the sum of $110, the rent for said month." 
 
 The last mentioned allegation constitutes merely a conclusion 
 of law which it was unnecessary to insert in the complaint, and 
 which the defendants could have disregarded without affecting 
 the real issues in the action. 
 
132 Abbott's Select Cases on Code Pleading. 
 
 Hurliman v. Seckendorf, 9 Misc., 264. 
 
 9 Nor were the allegations in paragraph III. of the complaint 
 essential to plaintiff's cause of action ; they were not matters 
 which plaintiff was hound tcf allege or prove, and the fact that 
 they were denied l)y defendants did not have the effect of put- 
 ting plaintiff to his proof on those points. (Phillips v. Brown, 
 20 Wkly. Dig., 155.) If it were necessary to go further to 
 illustrate the statement that the allegation of performance of the 
 conditions of the lease was not essential to plaintiff's cause of 
 action, we have hut to remember that the rent sued for was due 
 and payable in advance on the first day of September for the 
 use of the leased premises for that month, and plaintiff's cause 
 of action accrued and was complete on that day, notwithstanding 
 that he had covenanted to furnish defendants with certain steam 
 heat and power for their use during that month. Plaintiff's 
 cause of action arose on the agreement to pay rent in advance, 
 and he had a right to bring suit to recover the rent, if not paid 
 on the first day of the month, regardless of anything he had 
 agreed to do during that month. This being so, plaintiff's cause 
 of action became complete immediately on default in payment, 
 11 and he was not called upon to allege, nor could he then truthfully 
 allege, the performance of any conditions which remained for 
 him yet to perform. That he did not commence suit till after 
 the month had expired did not and could not affect the state- 
 ment of his right of action that had already accrued. 
 
 It will thus be seen that no material allegation of the com- 
 plaint was denied. The making of the lease was admitted, and 
 the refusal to pay the amount demanded in the complaint. 
 Plaintiff, in a such case, was not bound to prove occupation or en- 
 joyment (Gilhooley v. Washington, 4 N. Y., 217 ; Salmon w. 
 1^ Smith, 1 Saund., 202, 203, n. 1) or to give any proof. 
 
 The rule, well settled by abundance of authority, is that the 
 party who would fail if no evidence were given shall open and 
 close. (Bailey Onus Probandi, 607.) Applying that rule to the 
 pleadings in this action, it will be seen that, if the defendants 
 gave no evidence to support their aflirmative defenses, it would 
 be the duty of the trial court to direct a verdict for the plaintiff. 
 The lease was admitted, and the covenant therein to pay rent 
 monthly in advance, and the refusal to pay the September rent. 
 
I. Causes of Action at Law. (1) Express Contracts. 133 
 
 Coit V. Planer, 51 N. Y., 647. 
 
 These coustituted all, the essential facts on which plaintiff sought 13 
 to recover. The matters of defense set forth in the answer were 
 affirmative, and the burden was on the defendants to sustain 
 those defenses. (Smith v. Sergent, 67 Barb., 243, 246.) 
 
 We are of the opinion that the affirmative was with the 
 defendants, and that the denial of their right to open and close 
 was the denial of a substantial right ((Jonselyea v. Swift, 102 N. 
 Y., 604), and that their exception was well taken. 
 
 This conclusion renders it unnecessary for lis to examine any 
 of the other exceptions. 14 
 
 The judgment' and order denying new trial should be reversed, 
 and new trial ordered, with costs to abide the event. 
 
 Van Wyck, J., concurs. 
 
 Judgment and order reversed, and new trial ordered, with 
 costs to abide event. 
 
 COIT V. PLANER. 
 
 New YorTi Court of Appeals, 1873. 
 [Reported, by memorandum only, in 51 N. Y., 647.] 
 
 1. To uphold the action for use and occupation, it is necessary that the 
 
 actual or constructive relation of landlord and tenant should exist. 
 
 2. In an action for use and occupation the complaint alleged plaintiff's 
 
 ownership of the premises, that he informed defendants that if they 
 occupied the premises after a specified date the rent would be a 
 specified sum, and that defendants continued their occupation; the 
 defendants admitted these allegations. Held, that the facts clearly 
 showed the conventional relation of landlord and tenant, and the law 
 would imply that the defendants assented to the terms imposed and 
 agreed to pay the rent named. 
 
 3. An assignment of a lease may be inferred from evidence that the al- 
 
 leged assignees took possession from the original lessees, and occupied 
 the premises for the remainder of the term. 
 
 Action for use and occupation. 
 
 At the trial the defendant moved to dismiss the complaint 
 because it did not state facts sufficient to constitute a cause of 
 action. Motion denied ; exception taken. 
 
 Plaintiff moved for judgment upon the pleadings. Motion 
 granted ; exception taken. 
 
134 Abbott's Select Cases on Code Pleading. 
 
 Coit V. Planer, 51 N. Y., 047. 
 
 2 Plaintiff had judgment for the amount demanded. 
 
 TAe General Tena of the Sajyerior Court affirmed the judg- 
 ment, holding that all the facts were admitted which were re- 
 quired to make out plaintiff's case ; that no issue was raised 
 except the assignment, and as to that, it being averred in the 
 complaint, and admitted, that defendants went into possession, 
 an assignment 7//'M/7« /■«£■«'« was established. 
 
 The Court of Appeals affirmed the judgment. 
 
 Eael, J. Neither party upon the trial offered any proof. 
 Both parties seem to have rested upon the pleadings, the 
 defendants claiming that the complaint should be dismissed as 
 not stating facts sufficient to constitute a. cause of action, and 
 the plaintiff claiming that he was entitled to judgment upon the 
 facts admitted in the pleadings. The only question therefore, 
 for us to consider is whether upon the pleadings, the plaintiff 
 was entitled to the judgment which the court awarded him. 
 
 As to the rent which accrued subsequently to May 1, 1S66, 1 
 do not see how the plaintiff's right can well be questioned. 
 4 The complaint alleged that the premises belonged to the plaint- 
 iff, and that he informed the defendants that if they occupied the 
 premises after May 1, the rent would be four hundred dollars 
 per year, payable quarterly, and the defendants continued theii' 
 occupation. From these facts the law will imply that the 
 defendants assented to the terms imposed and agreed to pay 
 the rent named (Despard v. "Walbridge, 15 X. Y., 374.) These 
 facts clearly show the conventional relation of landlord and 
 tenant wliich is held to be necessary to uphold the action 
 for use and occupation. In the absence of anything showing 
 the duration of the prior lease it must be held to have 
 terminated on the first of May as the statute in reference to 
 leases in the City of Kew York gives it that termination*. (1 
 
 *1 R. S., 744 (4 id., 8th ed., 2456), § 1. 
 
 "Agreements for the occupation of lands or tenements, in the city 
 of New York, which shall not particularly specify the duration of such 
 occupation, shall be deemed valid until the first daj- of May next after 
 the possession under such ag'reement shall commence, and the rent under 
 such ag-reement shall be payable at the usual quarter days for tlie pay- 
 ment of rent in the said city, unless otherwise expressed in the agreement." 
 
I. Causes of Action at Law. (1) Express Contracts. 135 
 
 Coit V. Planer, 51 N. Y., 647. 
 
 E. S., 744.) The holding after that was upon the new lease 
 implied from the facts alleged. 
 
 Upon the facts alleged, prior to Februaiy 1, 1866, the rela- 
 tion of landlord and tenant existed as to the premises between 
 the plaintiff and Planer & Kayser. They expressly agreed to 
 pay him for the rent of the premises one hundred and fifty 
 dollars quarterly, and they occupied under this agreement and 
 paid the rent to February 1. It is then alleged that they 
 assigned the lease to the defendants, who went into possession 
 and occupied the premises thereafter during the remainder of 
 the term. The assignment is denied, but the ownership, lease, 
 possession and occupancy are admitted. It is not denied by the 
 counsel for the defendants that if the lease or balance of the 
 term was assigned to them, they are liable for the rent in this 
 action for use and occupation. The assignment put them in 
 privity both of estate and contract with the lessor, and made 
 them liable for the rent just as the original lessees were. 
 
 The defendants put in issue the assignment to them and hold 
 it was necessary for the plaintiff to prove this to enable him to 
 recover for the quarter's rent. This he could do by proving 
 directly the fact of assignment, or by showing facts from which 
 it would be inferred. It has long been well settled that an 
 assignment may be inferred by proof that the alleged assignees 
 took the possession from the original lessees and occupied the 
 premises for the remainder of the term. (Armstrong v. 
 Wheeler, 9 Cowen, 88 ; Bedford v. Leshum, 30 N. Y., 453 ; 
 Quackenbos v. Clark, 20 Wend., 555.) These facts are admitted 
 in the pleadings and hence the plaintiff had nothing to prove to 
 entitle him to recover. Under their denial, the defendants 
 could have given any competent proof that they did not take an 
 assignment of the lease. But they offered no such proof and 
 did not ask to give any. The rights of the parties on both sides 
 seem to have been submitted to the court upon the pleadings. 
 After the motion of the defendant to dismiss the complaint had 
 been denied, plaintiff's counsel moved for judgment upon the 
 pleadings, and the court granted the motion and defendants' 
 counsel excepted. This is all the case shows took place at the 
 trial. The decision of the court upon the pleadings was right. 
 
136 Abbott's Select Cases on Code Pleading. 
 
 Note on the Landlord's Remedies for Rent. 
 
 10 and whether it was or not is the only question raised by the 
 exception. If the defendants liad desired to prove anything, 
 they should have offered their proof or expressed a desire to do 
 so, and if the court had rejected the proof or ruled that no proof 
 could be given, the defendants could have had an exception that 
 might have been available. 
 
 The judgment must be affirmed, with costs. 
 
 All the judges concurred. 
 
 NOTE OJSr THE LANDLORD'S REMEDIES FOE RENT. 
 
 1 Sealed lease. If the rent is claimed by virtue of a sealed lease, the ac- 
 
 tion should be on the instrument. McKeon v. Whitney, 3 Den., 453, and 
 in New Yoi'k this may be, even though the lease be for life. (1 E. S., 747 
 [4 id., 8ed.,3458] §19.) 
 
 On a sealed lease the action must be in the name of the covenantee, 
 even though he was a mere agent. (Schaefer v. Henkel, 7 Abb. N. C, 1 ; 
 s. >.-. 75 N. Y., 378.) 
 
 Unsealed written lease. If the plaintiff relies on a written lease un- 
 sealed, he should sue on the instrument, unless he is prepared to prove 
 use and occupation, in which case also he had better sue on the written 
 lease, and allege occupation ; he can then, even should proof of the 
 writing fail, recover upon proof of such use and occupation. (Thomas v. 
 Nelson, supra ; Prial v. Entwistle, 10 Daly, 398.) 
 
 Several sums due on the same instrument, if due and payable before 
 the action is commenced, constitute a single cause of action within the 
 rule in Secor v. Sturgis (p. 5 of this vol.), and if any is omitted, a subse- 
 quent action therefor will be barred by the recovery of the part of such 
 sums in the first action. (Jex v. Jacob, 19 Hun, 105 ; s. c. more fully 7 
 Abb. N, C, 453.) And the principle is the same, whichever action is com- 
 menced first. 
 
 3 Oral letting, if for a term not exceeding one year from the commence- 
 
 ment of the term, is valid, though made before the commencement of the 
 year. (Young v. Dake, 5 N. Y., 463). And an oral letting may be proved 
 under an allegation of a written lease, unless defendant shows surprise, to 
 his prejudice. (N. Y. Code Civ. Pro., § 539; s. p. Bedford v. Terhune, 30 
 N. Y., 453.) 
 
 Use and occupation. An action for the reasonable value of use and 
 occupation lies where there was no sealed lease, and Avhere the conven- 
 tional relation of landlord and tenant existed; ('. e., an intention on the 
 part of both to stand in that relation (Preston v. Hawley, 101 N. Y., 586), 
 
I. Causes of Action at Law. (1) Express Contracts. 137 
 Note on the Landlord's Remedies for Rent. 
 
 and the tenant actually occupied, and under cii-cumstances that do not 
 imply that the landlord intended the occupation to be free of rent. (Coit 
 V. Planer, supra.) 
 
 Under a complaint for such use and occupation, plaintiff can prove an 
 unsealed, but not a sealed lease, stipulating to pay the rent, and use it as 
 evidence of the amount to be paid. (1 R. S., 748 [4 id., 8 ed., 3459] § 36.) 
 
 If defendants were in as assignees of the unexpired term, the court can 
 allow amendment to allege the facts showing privity, in place of the alle- 
 gation resting on use and occupation, if defendant is not surprised to his 
 prejudice. (Bedford v. Terhune, 30 N. Y., 453.) 
 
 Tenant holding over. In tenancies for a term fixed by the lease, or by 
 law, for the want of a valid lease as to the term, the rights of the parties 
 are determinate. The landlord in such lease has the right of an election. 
 He may, if the tenant does not vacate the premises at the end of the 
 term, treat him as a wrongdoer and bring ejectment, or take summary 
 proceedings under the statute to remove him from the premises (see Code 
 Civ. Pro., §§ 3231, 3332), and he is not required, before doing so, to serve 
 the tenant with any notice to quit (Park v. Castle, 19 How. Prac, 29, and 
 the cases there cited), or the landlord may waive his right to the immedi- 
 ate possession, and the wrong of the tenant in remaining beyond the ex- 
 piration of the term, and recover of him the rent for another year, for the 
 tenant by i-emaining over has, by implication, become a tenant for another 
 year from the expiration of his term. (§31, McAdam L. & T., citing 
 Schuyler v. Smith, 51 N. Y., 309; Mack v. Burt, 5 Hun, 38; Conway u. 
 Starkweather, 1 Denio, 113.) So absolute is the implication from holding 
 over for a few days only, of a hiring for another year, that the tenant will 
 not be excused from the payment of rent, even where he gave the land- 
 lord notice before the end of the term that he did not intend to hire for 
 another year, and had hired other premises, which would be ready for his 
 occupancy in a few days. (Schuyler v. Smith, supra; Adams v. City of 
 Cohoes, 137 N. Y., 175, 182.) 
 
 Defendant a trespasser. If defendant was holding over, after the 
 expiration of the term, the landlord has an election to treat him as 
 thereby assenting to the position of a tenant, including the obligation to 
 pay rent. (Schuyler v. Smith, 51 N. Y., 309 ; Smith v. Allt, 4 Abb. N. C, 
 305; s. c. 7 Daly, 492.) 
 
 In such case it is the better practice to allege the facts, rather than to 
 rely on the general allegation of use and occupation. (Schuyler v. Smith 
 above cited). 
 
 If defendant was holding in any other capacity than a tenant — as for 
 for instance, a purchaser holding over after forfeiture of his contract, or a 
 trespasser having entered adversely, the landlord can sue in tort for 
 damages for the trespass and dispossession ; or lie may waive the tort by 
 stating the facts, alleging the reasonable value of the use and occupation, 
 
138 Abbott's Select Cases on Code Pleading. 
 
 Hernandez v. Stilwell, 7 Daly, 360. 
 
 and recover as on contract. But for this purpose, the better opinion is 
 tliat he sliould allege the facts so as to show unjust enrichment of defend- 
 ant. (Lazarus v. Phelps, 152 TJ. S., 81, and see cases on Constructive Con- 
 tracts, p. 149 of this vol.) 
 
 The remedj"- to disiDossess a tenant, or purchaser holding over, a tres- 
 passer or a squatter, is by a special proceeding. (X. Y. Code Civ. Pro., 
 §§ 2331, 2232), or by an action of ejectment (id., § 1502.) 
 
 An assignee of the lessor and covenantee, the grantee of the demised 
 lands, or the remainder man or reversioner coming- in after the lessor's 
 estate has terminated, and their heirs and personal representatives, have 
 the same remedies as the assignor, grantor, or lessor. (1 R. S., T47 [4 id., 
 8th ed., 2459], ;; 38.) 
 
 An assignee of the lessee is liable directlj' to the landlord or his assigns 
 by virtue of the privity of estate. (Bedford v. Terhune, supra.) 
 
 HERNANDEZ v. STILWELL. 
 
 JVew York Common Pleas, General Term, Jan,uary, 1878. 
 
 [Reported in 7 Daly, 860.] 
 
 The complaint on a guaranty so qualified that the obligation of the 
 guarantor is dependent on some endeavor to obtain payment from the 
 principal — as in case of a guaranty of " the ultimate payment" of the 
 instrument must allege facts as to demand or other effort to collect 
 from the principal, and notice thereof to defendant. 
 
 The facts stated in tlie complaint are thus indicated in the 
 appeal papers. 
 
 I. That one Eichard Remington, on the 18th day of Decem- 
 ber, 1868, made his bond for the payment of twenty thousand 
 dollars, one year after date, to wit, on the 18th of December, 
 1869. 
 
 II. That the defendant simultaneously, for one dollar, and 
 other good and valuable considerations guaranteed the ultimate 
 payment of the sum named therein, together with interest and all 
 lawful charges, or so much thereof as should he due and owing. 
 
 III. That prior to the 30th day of July, 1875, there had been 
 paid of the sum named in said bond $2,963.33 as interest, 
 and $220. .52 as principal. 
 
 IV. That there is now due on said bond to plaintiff §19,'r79.i8 
 with interest thereon from July 30, 1875. 
 
I. Causes of Action at La ii\ (1) Express Contracts. 139 
 
 Hernandez v. Stilwell, 7 Daly, 360. 
 
 Defendant demnrred for insufficiency. 
 
 At Special Term the demurrer was overruled. 
 
 The Court at General Term reversed the order. 
 
 CiiAELEs P. Daly, Chief Justice. Tlie defendant's obligation 
 was a conditional undertaking. He guaranteed the ultimate 
 payment of the sum of money named in the bond given by 
 Remington to the plaintiff, together with interest and all Iwmful 
 charges, or so much thereof as might be due and owing. He 
 did not engage as principal. His obligation imposed upon him 
 no daty but the ultimate payment, if Remington failed to pay, of 
 what might be due on the bond, with interest and all lawful 
 charges. It was a guaranty. He says : " I expressly guarantee^'' 
 which is to engage for the payment of a debt, or the performance 
 of a duty by another. (Durham v. Manrow, 2 N. Y., 549; De 
 CoUyer on Guaranties, p. 38.) A promise that if Remington did 
 not pay the bond, that he would, guaranteeing " the ultimate 
 Ijayment " implies a default, or something which is to proceed, 
 before he who guarantees is ultimately bound, or the word 
 ultimate in the connection in which it is used has no meaning ; 
 and we are bound to give their ordinary meaning and full effect 
 to the words used by the guarantor. (Bissell v. Ames, 17 Conn., 
 127; "White v. Reed, 15 id., 457; Crist v. Burlingame, 2 Barb., 
 351 ; Leggett v. Humphreys, U. S. IST. S., 66 ; Shore v. "Wilson, 
 5 Scott IST. R., 1037 ; Story on Promissory Notes, § 472, pp. 599 
 to 603; § 474, p. 614; 2 Parsons on Contracts, 505; Broom's 
 Legal Maxims, 456, 6th Amer. ed.). 
 
 Where the words are ambiguous, they are to be construed 
 most strongly against the guarantor (Mayer v. Isaac, 6 Mees & 
 "W., 605), for it is his fault if they are so. But there is no 
 ambiguity in the words " the ultimate payment," the word 
 ultimate having a definite meaning, which is that another is to be 
 resorted to, and if he makes default or cannot pay, the debt is 
 secured by the ultimate liability of the defendant. This appears 
 to me to be the plain meaning of the language, and implies some 
 endeavor or diligence on the part of the creditor to secure the 
 debt from the principal debtor— at least a demand of the debt 
 from him — his failure to pay and notice to the guarantor, that 
 
14(1 Abbott's Select Oases on Code Pleading. 
 
 Hf.'iTiandez v. Stilwell, 7 Daly, 360. 
 
 Y be may at once take such measures as may be within his power 
 to secure or indemnify himself. (2 Parsons on Contracts, pp. 
 25, 27 and 28, eth ed.; Foote v. Brown, 2 McLean, 369 ; Oxford 
 Bank v. Ilaynes, s Pick., 423 ; Story on Promissory 'ISTotes, .^,^460, 
 472.) I do not say that it requires that the creditor shall exhaust 
 the ordinary legal remedies against the principal debtor to 
 enforce the payment of the debt, as in the cases of a guaranty of 
 the collection of a debt. (Craig ?;. Parkis, 40 N. Y., 181); but 
 the instrument contemplates the probability of such a procedure 
 on the part of the creditor ; as it provides not only for the 
 ultimate payment of the sum named in the bond, with interest, 
 or so much of it as shall be due and owing, but also the payment 
 of all la'mful cJiarfjes. All that is recoverable upon the bond is 
 what may be due upon it, with interest ; and this additional 
 undertaking for the payment of all lawful charges would appear 
 to contemplate such lawful charges as the creditor may be put to 
 by his effort, in good faith, to compel the payment of the bond 
 by the principal debtor. The fact of such an additional under- 
 taking goes very far to show that the engagement was meant to 
 
 9 be one of guaranty — an engagement that if Remington failed to 
 or did not pay, the defendant would pay. That this was what 
 was intended, further appears by what is put in the di?junctive, 
 or " so much " of the sum of money named in the bond '• as shall 
 be due and owing," implying that there might be a payment of 
 a part of the sum by the principal debtor, and that the defend- 
 ant's engagement is for the ultimate payment of the residue, 
 with interest, and all lawful charges. 
 
 The word guaranty may be used when the engagement is an 
 original and absolute one to pay the debt, when it becomes due. 
 But that construction is put upon it only when it is plain that 
 that was the intent of the parties (Brown v. Curtiss, 2 N. Y., 
 2i!.5 ; Durham v. Manrow, id., .534) ; as where the engagement 
 was in fact to pay the guarantor's own debt l)y means of the 
 note of a third person, the payment of which he guaranteed, and 
 which it was held, in the cases last cited, was not, within the 
 statute of frauds, a special promise to answer for the debt, 
 default or miscarriage of another ; the rule in determining 
 whether the instrument is an original undertaking or a guaranty 
 
I. Causes of Action at Law. (1) Express Contracts, lil 
 
 Hernandez v. Stilwell, 7 Daly, 360. 
 
 being, that the language used is to be so interpreted as to ascer- ] 1 
 tain and give effect to the real intention of the parties (Crist v. 
 Burliugauie, 62 Barb., 351 ; "White v. Eeed, 15 Conn., -iST). 
 "Where a party therefore gives to his creditor, for the payment 
 of his own debt, a promissory note of another, and writes upon 
 the back of the' note : " I guarantee the payment of the within," 
 it is not a conditional but an absolute u.ndertaking that he will 
 pay the note to the creditor when it becomes due, being himself 
 indebted to the creditor in the full amount of the note. That is 
 what is necessarily meant in such a case by the word guaranty ; 
 for being primarily liable to the creditor for the full amount of 
 the note, the intent cannot have been that he was to pay the 
 amount only in the event of the failure or inability of the 
 maker to pay it. But there is nothing of this kind averred 
 in the complaint to give to the word guaranty a meaning other 
 than, and different from, what the word ordinarily implies. If 
 the bond were payable in instalments, then the word ultimate 
 might be understood as meaning an ultimate and absolute 
 engagemeat to pay the whole or whatever might remain due 
 upon it. But it was not. It was entered into on the 18th of 13 
 December, 1868, and was for the payment of the full sum of 
 S20,000, with interest, on the 18th of December, 1869 ; the 
 interest being payable semi-annually, so that there is nothing 
 upon the face of the bond itself to give to the word ultimate a 
 special signification in connection with the instrument, or to 
 qualify the ordinary meaning of the word guarantee. 
 
 " The law," said Chief Justice Marshall, in Russell v. Clark (7 
 Cranch, 90), " will subject a man having no interest in the trans- 
 action to pay the debt of another, only when his undertaking 
 manifests a clear intention to bind himself for that debt. 
 "Words of doubtful import ought not, it is conceived, to receive 
 that construction. It is the duty of tlie individual who contracts 
 with one man, on the contract of another, not to trust to 
 ambiguous phrases and strained constructions, but to require an 
 explicit and plain declaration of the obligation he " (meaning the 
 one entering into the obligation) " is about to assume."' And 
 Justice Story, in Lawrence v. McCalmot, in reference to such 
 obligations, remarks that words are not to be forced out of their 
 
142 Abbott's Select Cases on Code Pleading. 
 
 Hernandez v. Stilwell, 7 Daly, 360. 
 
 15 natural meaning, but should receive a fair and" reasonable inter- 
 pretation. 
 
 The real inquiry, says Hosmek, Ch. J., in Hall v. Rand (8 
 Conn., 560), is, what was the intention of the defendant ; and to 
 ascertain this his words must be taken in their popular and 
 obvious sense ; that is, the true meaning of the contract which 
 readily presents itself to a man of plain understanding on read- 
 ing it attentively and impartially ; and not that which is elabo- 
 rated with effort. 
 
 In Tuton v. Thayer (47 flow. Pr., 180), the defendant guaran- 
 teed the payment and collection of a note with costs, if any 
 made. It was held that both words were to be taken together ; 
 that it was not a guarantee solely of the collection of the note ; 
 and that therefore it was not necessary to entitle the plaintiff to 
 exhaust his legal remedy against the debtor ; but that if he did 
 so, the defendant, as he had guaranteed the collection, would, as 
 in a guaranty for collection, be answerable, not only for the 
 debt, but also fox the costs incurred in the attempt to collect 
 from the principal debtor ; but it being a guaranty both of pay- 
 
 17 ment and collection, the holder had his election to proceed in 
 the first instance either against the maker or against the 
 guarantor ; and if he did proceed against the former and failed 
 to collect, he had his remedy against the guarantor for the 
 expenses incurred; as well as for the debt. All that can be 
 regarded as held in that case is, that in such a guaranty it is not 
 necessary to exhaust the legal remedy against the principal 
 debtor before resorting to the guaranty. It does not hold that 
 this was an absolute and unconditional undertaking to pay the 
 debt ; but recognizes that the relation existed there of a 
 
 ^'^ principal debtor and a guarantor ; and for all that appears in 
 the case, the defendant may have been notified of the failure of 
 the maker to pay the note upon which his guaranty to pay it 
 would become absolute. 
 
 In Seaver v. Bradley (6 Me. (6 Greenl.), 60, 64), the instru- 
 ment sued upon was in these words : " I will be ultimately 
 accountable to you for the sum of §150, if the said Heald shall 
 purchase goods of you, and should fail to pay you for them." 
 Heald purchased a bill of goods on a credit of six months, and 
 
I. Causes of Action at Law. (1) Express Contracts. 143 
 
 Hernandez v. Stilvvell, 7 Daly, 360. 
 
 failing to pay for them, after the expiration of that time, the 1& 
 creditor notified the guarantor of the amount sold to Heald on 
 the faith of the guaranty, and his failure to pay. It was argued 
 in that case that the guarantee was absolute ; but the court held 
 that it was not ; that the undertaking was conditional. Mellon, 
 C. J., said that the word " ultimate " meant, in that case, that 
 the guarantor would pay if the defendant did not comply with 
 the terms of his engagement ; and the defendant having had 
 due notice of the advances that had been made on the faith of 
 the guaranty, and that the debtor had failed to pay for the 
 goods, as he had agreed, at the expiration of six months ; that 
 the guaranty, which was before conditional, became absolute 
 when the guarantor was notified of what was advanced on the 
 guarantee ; and that Heald had failed to keep his engagement ; 
 and this notice having been given before the action was brought, 
 that the plaintiff could recover on the guaranty. The question 
 in the case was, whether the guarantor had been duly notified, 
 there having been some delay in consequence of legal proceed- 
 ings against the debtor. The court held the notice to be sufficient, 
 as no injury had arisen to the guarantor by the delay and the 21 
 action was sustained. 
 
 In the present case, gathering the intent from the language 
 used, I understand the obligation to mean that the defendant is 
 to be liable if Remington fails or is unable to pay the bond 
 when it falls due, as the original and principal debtor ; and that, 
 to recover against the defendant, it was necessary to aver that 
 payment of the bond had been demanded of Kemington, or that 
 he was insolvent, or unable to pay, or something of that kind ; 
 and that the defendant was duly notified thereof, where- 
 upon his obligation to pay became absolute. 
 
 I think, therefore, that the demurrer to the complaint should 
 have been sustained, and that the. order overruling it was 
 erroneous. JSTo injury can arise from such a construction, as the 
 guarantee expresses that it was upon a suificient consideration. 
 
 Joseph F. Daly, J., concurred. 
 
 Order reversed. 
 
 TTie General Term order thereupon entered sustained the 
 demurrer with costs and gave plaintiff leave to amend. 
 
IM Abbott's Select Cases on Code Pleading. 
 
 Cordier v. Thompson, 8 Daly, 173. 
 
 COEDIER V. THOMPSON. 
 
 New Yorl: Common Pleas, General Term, December, 1878. 
 [Reported in 8 Daly, 172.] 
 
 1. If the complaint alleges plaintiff's appointment as executor or adminis- 
 trator, and shows a cause of action in the representative capacity, the 
 omission of the word " as," in designating the plaintiff, may he disre- 
 garded, for it will not mislead. 
 
 3. The complaint of an executor or administrator on an instrument which 
 shows that it was non-negotiable and delivered to the decedent as 
 payee, need not allege that it has come to plaintiff's possession. 
 
 3. The complaint on an unqualified guaranty written under a note and 
 expressed to guaranty "the above obligation," need not allege demand 
 on the guarantor, nor, it seems, notice of the default of the principal. 
 
 1 The complaint was as follows : 
 
 Maeine Couet of the City of New Yoek. 
 
 ' \ 
 
 Josephine Coediee, Administratrix of 
 tlie goods and chattels of Eosine 
 Cordier, deceased, 
 
 J against 
 
 Heney Thompson. 
 
 / 
 
 The plaintiff complains of the defendant and respectfully 
 shows the court. 
 
 I._That on or about the 20th day of July, A. D. 1S75, 
 Eosine Cordier at the instance and request of one Jane Ferrero, 
 3 did loan and advance unto the said Jane Perrero the sum of 
 two thousand dollars. 
 
 II. — That upon such loan and advance of money, to wit, on 
 20th of July, A. D. LSTS, the said Jane Ferrero did execute and 
 deliver a certain instrument in writing bearing date on that day, 
 wherein and whereby she acknowledged indebtedness of the 
 above mentioned sum of two thousand dollars and agreed to 
 return or repay the same within two years from the date thereof. 
 
I. Causes of Action at Law. (1) Express Contracts. 145 
 
 Cordiei" v. Thompson, 8 Daly, 172. 
 
 to wit, the 20tli of July, A. D. 1877, and the defendant did 
 tlien and there in writing on the said instrument promise and 
 agree on the same day and year and guarantee unto said Rosine 
 Cordier the performance of the obligation above mentioned on 
 the part of said Jane Ferrero ; and the said acknowledgement of 
 debt by the said Jane Ferrero, and guai-antee to pay the same by 
 the defendant were, upon the loan of said sum of two thousand 
 dollars of said Eosine Cordier, duly delivered and transferred to 
 her. 
 
 III.— That previous to the 20th day of July, A. D. 1877, the 
 sum of six hundred dollars was paid upon the said obligation, 
 leaving due thereon, on that day, a balance of fourteen hundred 
 dollars. 
 
 IV. — That the said balance of fourteen hundred dollars was 
 not paid by the said Jane Ferrero on that day whereon the same 
 was due and payable, to wit, 20th July, A. D. 1877, but that 
 she made default therein, of all which, due notice was given to 
 the defendant, Henry Thompson. 
 
 Y. — That the said sum of fourteen hundred dollars is still due 
 and unpaid with interest thereon from the 20th day of July, 
 A. D. 1877. 
 
 VI. — That in the month of December, A. D. 1876, the said 
 Eosine Cordier, then being a resident of the city of New York, 
 did depart this life intestate, unmarried and withoiit issue ; and 
 that on or about the 20th day of July, A. D. 1877, the Surrogate 
 of the city and county of New York did appoint the plaintiflE 
 administratrix of the goods, chattels and credits of said Eosine 
 Cordier, deceased, and that said plaintiff has duly assumed the 
 duties and charge of said office of administratrix. 
 
 Wheeefoee, the plaintiff demands judgment against the said 
 defendant for the sum of fourteen hundred dollars and interest 
 thereon from the 20th day of July, A. D. 1877, besides the costs 
 of this action. 
 
 Defendant demurred for insufficiency and the demurrer was 
 overruled. 
 
 10 
 
146 Abbott's Select Cases on Code Pleading. 
 
 Cordier v. Thompson, 8 Daly, 172. 
 
 S Ai the trial he relied on the same objection, and a verdict 
 against him was directed. 
 
 The Court at General Term aiiirmed the ]n.dgment. 
 Van Hoesen, J. Although the plaintifE does not expressly 
 aver that she brings the action in her capacity as administratrix^ 
 and although the addition of the words " administratrix of the 
 goods and chattels of Kosine Cordier " in the title of the com- 
 plaint is a mere descriptio personi(e, I think a fair construction 
 of the pleading shows that the plaintiff sued in her representa- 
 
 9 tive character. There is no doubt that a good pleader will never 
 omit" to place the word as between the surname of his client and 
 the word administrator whenever he brings suit for the legal 
 representative of an intestate. It has been said that the word 
 as was, in such a case, indispensable (Henshall v. Roberts, 5 East., 
 ] 54), but it would be a departure from the system of pleading 
 established in New York if we should revive the strictness of 
 the common law forms. Pleadings are to be liberally construed 
 with a view to substantial justice (Code Civil Proc, § 519), and 
 
 -, r. courts will not search for flaws if the substance of a good cause 
 of action, or of a good defence, is stated by the pleader with 
 suflicient clearness to apprise adverse parties of the issues to be 
 tried. It is conceded that the complaint is not defective in its 
 allegations of the making and the delivery of the instrument 
 made by Mrs. Ferrero, and of the guaranty thereof made by the 
 defendant. It is alleged that both the instrument and the guar- 
 anty were delivered to one Kosine Cordier at the time of the 
 loan to Mrs. Ferrero, and then there are averments of the death 
 of Eosine, of her residence in the city of Xew York at the time 
 
 11 of her death, of her intestacy, of the time, place and manner of 
 the appointment of the plaintifl: as her administratrix by the 
 surrogate of the city and county of New York, and of the 
 entering of the plaintiif upon her duties as administratrix. 
 These allegations would be useless, and worse than useless, unless 
 the plaintiff were suing in her representative character, and they 
 are pleaded so that the defendant could take issue upon them. 
 (Sheldon v. Hoy, 11 How. Pr., 12 ; White v. Joy, 13 N. Y., S3.) 
 The defendant could not fail to understand that the plaintiff 
 
I. Causes of Action at Law. (1) Express Contracts. 147 
 Cordier v. Thompson, 8 Daly, 172. 
 
 was proceeding as administratrix to collect a demand which he 12 
 owed Rosine Cordier in her lifetime, and which the plaintiff 
 alleged to be part of the estate of the deceased. She stated' 
 every fact essential to the establishment of her title as adminis- 
 tratrix, and if the facts alleged were all proved at the trial, would 
 it not be a mere mockery of justice if the plaintiff, with the 
 note in her hands, should be turned out of court for failing tO' 
 use a technical expression, which, if used, would not have aided 
 the defendant's defence 'i The case of Hallett v. Harrower (33' 
 Barb., 537) is directly in point, and it disposes of the defendants 
 first ground of appeal. 
 
 The objection that the complaint does not allege that the 
 paper sued upon is the plaintiff's and in her possession, is not 
 tenable. The paper was non-negotiable and delivered to the 
 plaintiff's intestate. If it had been parted with by the intestate' 
 or by the plaintiff, it was for the defendant to show the fact 
 (Peets V. Bratt, 6 Barb., 664). 
 
 The most serious question in the case is, whether the guaranty 
 of the defendant is an absolute or merely a contingent under- 
 taking. I think it must be construed to be a guaranty of pay- li 
 ment, and, therefore, an absolute understanding. The principal 
 instrument is a non-negotiable promissory note. It is a promise 
 to pay Rosine Cordier, absolutely and at all events, the sum of 
 two thousand dollars two years after date. 
 
 The consideratiou for the note is expressed upon its face,, 
 being the loan of fifteen hundred dollars in cash, and the trans- 
 fer of a note for five hundred dollars, payable November 12th, 
 1875. It is agreed that that note shall be accepted by ]Mrs. 
 Ferrero, the borrower, as so much cash. It is not to be accounted 
 for, nor does the obligation to pay Eosine depend upon Mrs. 
 Ferrero's success in collecting it. She agrees to pay two thous- 
 and dollars at the end of two years, absolutely and at all events. 
 Upon that note at the time the money is lent, the defendant 
 writes: "I guarantee the above obligation, Henry Thompson.'' 
 What obligation is it that he guarantees? That of paying 
 Rosine the money borrowed at the expiration of two years. 
 There is no condition expressed and none implied. His guaranty 
 is not of Mrs. Ferrero's responsibility, but that she shall pay at 
 
lis Abbott's Select Cases on Code Pleading. 
 
 Cordier v. Thompson, 8 Daly, 173. 
 
 16 maturity. Upon a guaranty like that, he was not entitled to 
 demand and notice, but became liable to pay the very instant 
 that Mrs. Ferrero was in default. (Brown v. Curtiss, 2 X. Y., 
 227, 228; Barhydt v. Ellis, 45 N. Y., 110; Allen v. Eightmere, 
 20 John. 336.) 
 
 None of the other points taken by the appellant seem to me to 
 require comment. 
 
 The judgment should be aiBrmed with costs. 
 
 Chaeles p. Daly, Ch. J., concurred. 
 
 Judgment aiBrmed with costs. 
 
I. Causes of Action at Law. (2) Constructive Contracts. 149 
 Eeed v. McConnell, 133 N. Y., 425. 
 
 REED V. McCONNELL. 
 
 New Yorh Court of Appeals^ 1892. 
 
 [Eeported in 133 N. Y'., 425.] 
 
 It seems that where a cause of action is imperfectly stated, or on the trial 
 a variance is disclosed between the pleadings and the proof, not affect- 
 ing' the essential nature of the claim asserted, tlie court lias ample 
 power to grant I'elief without turning a party out of court. 
 
 But where the allegation of the complaint is unproved, not in some par- 
 ticular or particulars only, but m its entire scope and meaning, it is 
 not a case of variance, but a failure of proof; and no judgment can be 
 rendered in favor of the plaintiff upon the pleading as it stands. 
 
 The complaint alleged a contract and its breach and claimed damages. 
 At the trial plaintiff proved a contract void under the Statute of 
 Frauds. Held, error to allow him without amendment to recover the 
 value of the property received thereunder by the defendant. 
 
 A cause of action founded on a contract to recover damages for its breach 
 is fundamentally different from a cause of action to recover the value 
 of property received thereon by the party who afterwards repudiates 
 it as void by the Statute of Frauds. 
 
 The substance of the allegations of the complaint appears in i 
 the opinion of the court. 
 
 At Circuit, plaintiff had judgment after trial by court with- 
 out a jury. 
 
 The General Term of the Supreme Court reversed the judg 
 ment for error in computing damages. 
 
 Andrews, J. [after disjMsing of anotlier question]: There 
 is an insuperable difBculty in the way of the plaintiff on this 
 appeal. He lias been allowed to recover upon a cause of action ^ 
 not alleged in the complaint. He sought in his pleading to 
 recover damages for the breach of an alleged contract. He 
 failed to establish that any valid contract was made, for the 
 reason that the contract proved was void by the Statute of 
 Frauds. It is substantially admitted by the plaintiff that the 
 contract sued upon is within the statute, but it is contended on 
 his behalf that the defendants having on the trial insisted upon the 
 statute as a bar to the enforcement of the contract, the plaintiff 
 was entitled to recover in this action the value of any property 
 
150 Abbott's Select Cases on Code Pleading. 
 
 Reed v. McConnell, 133 N. Y., 425. 
 
 received thereunder by the defendants from the plaintiff. The 
 defendants on the trial contended that this was a new and dif- 
 ferent cause of action, not within the pleadings, and inconsistent 
 ^^'ith the cause of action alleged in the complaint. The plaint- 
 iff made no application for amendment. The trial judge over- 
 ruled the contention of the defendants and awarded to the 
 plaintiff, among other things, the sum of $12,500, as the value 
 of a bark contract, which the court found was a contribution of 
 the plaintiff to the tannery enterprise, which was the subject of 
 the void contract. 
 
 For a proper understanding of the question some of the essen- 
 tial facts should be stated. The complaint contained two causes 
 of action. Thejirst was for work, labor and services, and money 
 paid and materials furnished by the plaintiff in building a tan- 
 nery on premises of the defendants. The complaint, for a second 
 ■cause, of action, alleged that the work, labor and services, and 
 the money and materials mentioned in the first cause of action, 
 were rendered and furnished "under an agreement ^\ith the 
 defendants that they would take the plaintiff as an equal partner 
 with the defendants in the tannery business to be carried on at 
 the said tannery ; that after the completion of said tannery by 
 the plaintiff the defendants refused to take the plaintiff in as 
 said partner, although often requested so to do, by means 
 whereof the plaintiff has been damaged in the sum of fifteen 
 thousand dollars, whereof the plaintiff demands judgment," etc. 
 This was plainly a cause of action for damages for the breach by 
 the defendants of the contract to admit the plaintiff as a partner 
 in the tannery business. The nature of the alleged contract, 
 whether verbal or written, was not alleged in the complaint. 
 The answer denied the contract alleged and interposed several 
 defences and counterclaims. On the trial the plaintiff, in sup- 
 port of the second cause of action, gave evidence tending to 
 show that in March, 18Y7, the plaintiff solicited the defendants 
 to build a tannery on premises for which he had a contract of 
 purchase. The plaintiff at the same time held a verbal option 
 from one Griffin to purchase from the latter 50,000 cords of 
 bark from his lands in the vicinity for the price of fifty cents a 
 cord. It was thereupon verbally agreed between the plaintiff 
 
I. Causes of Action at Law. (2) Constructive Contracts. 151 
 
 Reed v. MoConnell, 133 N. Y., 435. 
 
 and defendants that the defendants should furnish the plaintiff 7 
 the money necessary to complete the purchase of the tannery 
 site and erect the tannery. The plaintiff was to cause the pro- 
 posed site to be conveyed to the defendants and to give the de- 
 fendants the benefit of his verbal option from Griffin for the 
 purchase of the 50,000 cords of bark and procure Griffin to enter 
 into a contract with them for the sale of the bark on the terms 
 of the vei'bal option. The plaintiff was to superintend the build- 
 ing of the tannery and when completed was to conduct the tan- 
 nery business therein for the defendants and was to receive as 
 his compensation $1,000 a year and one third of the net profits. 
 The tannery site was conveyed to the defendants ; the plaintiff 
 procured Griffin to enter into a contract with the defendants to 
 sell to them the 50,000 cords of bark at the price of fifty cents a 
 cord. The tannery was built and the plaintiff conducted the 
 business therein until October, 1878, when, as is found by the 
 trial judge, the defendants in violation of their contract and 
 without cause discharged him and refused further to carry out 
 their contract with him. The evidence shows that it was con- 
 templated that this arrangement between the parties was to 9 
 continue twelve years, that being the period which would, as 
 supposed, be required to exhaust the bark purchased of Griffin. 
 The plaintiff, as part of his case, was permitted, against the 
 objection of the defendants that the evidence was incompetent 
 and immaterial, to show the value of the bark contract. On the 
 assumption that the contract between the plaintiff and the de- 
 fendants was valid, the evidence was competent. The contract 
 had been wrongfully broken by the defendants. By the contract 
 the plaintifi: was to share in the profits of the business. The fact 
 that the defendants had a favorable contract for the supply of ^ 
 the tannery with bark might properly be considered in determin- 
 ing what the profits of the business would have been and the 
 loss sustained by the plaintiff from the breach of the contract of 
 employment. When this evidence was introduced no question 
 had been specifically raised as to the validity of the contract 
 under the Statute of Frauds, either in the pleadings or on the 
 trial. But at the conclusion of the plaintiff's evidence the defend- 
 ants moved to dismiss the complaint as to the second count, on 
 
152 Abbott's Select Cases on Code Pleading. 
 
 Eeed v. MoConnell, 133 N. Y., 425. 
 
 11 tlie ground that the contract proved was void under the statute, 
 and also to strike out all the evidence as to the bark contract as 
 immaterial. The motions were denied and exceptions were duly 
 taken. Upon the conclusion of the evidence the plaintiff's 
 counsel insisted that, " the contract being void by the Statute of 
 Frauds, the plaintiff is entitled to recover the value of his contri- 
 bution to the tannery enterprise " and among other items the 
 value of the bark contract. This claim was resisted by the 
 counsel for the defendants on the ground that, the plaintiff, hav- 
 ing failed to establish the cause of action on the contract, was not 
 
 12 • " ■ 
 
 entitled to recover, on the theory that the contract being void, the 
 
 defendants were liable for the value of property contributed by 
 the plaintiff thereimder. The trial judge overruled the conten- 
 tion of the defendants and awarded judgment for the plaintiff, 
 which included the sum of $12,500, the value as found of the 
 bark contract. 
 
 The recovery was in violation of the rule that no judgment 
 can be sustained in favor of a plaintiff on a cause of action not 
 alleged in the complaint, unless the defendant, by his silence or 
 
 13 conduct, acquiesced in the trial of the new and different cause of 
 action upon which the judgment proceeded. 
 
 The tendency of modern legislation justly favors a liberal con- 
 struction of pleadings in the interest of substantial justice. The 
 Code requires that the allegations of a pleading shall be liberally 
 construed, to promote this object. (Code. § 519.) The courts, 
 adopting the new spirit, no longer apply the technical and 
 artificial rules which formerly prevailed, whereby the rights of 
 parties were often subordinated to the mere form in which they 
 were asserted. But the rule that a party coming into court 
 asserting one cause of action cannot recover on another and dif- 
 ferent one, is unchanged. It is essential to the orderly adminis- 
 tration of justice and the protection of the rights of litigants. 
 Lawyers could never safely advise their clients, and parties would 
 frequently be misled if any other rule was admitted. Whei-e a 
 cause of action is imperfectly stated, or on the trial a variance is 
 disclosed between the pleadings and the proof, not affecting the 
 essential nature of the claim asserted, the court ha? ample power 
 to grant relief without turning a party out of court. But where 
 
1. Causes of Action at Low. (2) Constructive Contracts. 153 
 
 Reed v. McConnell, 133 N. Y., 435. 
 
 the allegation of the complaint is unproved, not in some particu- 15 
 lar or particulars only, but in its entire scope and meaning, it is 
 not a case of variance, but a failure of proof, and no judgment 
 can be rendered in favor of the plaintiff upon the pleading as it 
 stands. This is the statute rule and was the rule of the courts 
 before the statute. The authorities ujjon these general proposi- 
 tions are numerous. We refer to some recent ones only. (South- 
 wick V. First Nat. Bank, 84 IST. Y., 420 ; Truesdell v. Sarles, 104 
 id., 167.) 
 
 Testing the present case by these rules, it is clear that the 
 judgment rendered for the plaintiff for the value of the' bark 
 contract was erroneous. The plaintiff alleged a contract in his 
 second count and its breach, and demanded damages in the sum 
 of $15,000. It turned out on the trial that he had no contract 
 and, therefore, that the defendants could not have broken any con- 
 tract with the plaintiff. The cause of action alleged was not 
 only not ma'de out, but was affirmatively disproved. There was 
 no basis for any recovery by the plaintiff on his second cause of 
 action. The cause of action should have, therefore, been dis- 
 missed. But he was allowed to recover, notwithstanding his 17 
 failure to prove the contract he alleged, because, in acting under 
 the void contract, he had, pursuant to its terms, transferred cer- 
 tain property to the defendants, and it is claimed that the de- 
 fendants, having insisted that the contract was void under the 
 statute, they were bound to restore to the plaintiff any property, 
 or the value of any proijerty, they had acquired from and tlirough 
 him in pursuance of the contract and before its repudiation. 
 
 The general principle that a party to a void contract cannot 
 repudiate it and retain what he has received from the other 
 under it, is well settled. (Day v. IST. Y. C. E. E., 51 K Y., 583 ^^ 
 and cases cited.) The law in such case will raise an implied as- 
 sumpsit in favor of the other party to accomplish justice and 
 prevent fraud. But a cause of action founded on a contract to 
 recover damages for its breach, and a cause of action to recover 
 the value of property received thereon by the party who after- 
 wards repudiates it as void by the Statute of Frauds, are funda- 
 mentally different. The claim that there was no valid contract, 
 and that, therefore, there is a right of action for die value of 
 
154: Abbott's Select Cases on Code Pleading. 
 
 Reed v. McConnell, 133 N. Y., 425. 
 
 19 the property received under it, is totally inconsistent with a 
 claim to enforce the contract and to recover upon it. It is quite 
 immaterial that the value of the bark contract may have been a 
 material fact in support of the cause of action alleged, or that it 
 supplied a basis for recovery in an action brought upon the theory 
 that the contract was void. This action was not brought upon 
 that theory, and because facts are developed in the trial of one 
 cause of action which suggests a right of recovery in an action 
 for a different cause, this does not authorize the substitution of 
 the latter cause for the one alleged. The argument urged by 
 
 ^ the appellant that the defendants waived their rights by not ob- 
 jecting speciiically to the evidence of the value of the bark con- 
 tract when it was first offered on the ground of the statute, is not, 
 we think, tenable. They objected generally that the evidence 
 was incompetent and immaterial. When the plaintiff rested 
 they took the point that the contract proved was void by the 
 statute. The plaintiff had ample notice of the ground taken. 
 He applied for no amendment of the complaint, bat, on the con- 
 trary, insisted that he was entitled to recover the value of the 
 
 21 bark contract under the pleadings as they stood. 
 All the judges concurred. 
 Judgment afiirmed. 
 
 Note : In Southwick v. First National Bank, 84 N. Y., 420, it was held: 
 1. Under a. complaint alleging that defendant undertook to collect a 
 draft and apply its proceeds to a specified purpose, and tliat he collected 
 the draft but failed so to apply tlie proceeds, although requested so to do, 
 plaintiff cannot, against objection at the trial, recover on the theory of a 
 conversion, or a payment to defendant by mistake. 
 
 2. An amendment of the complaint after a recovery at the trial cannot 
 be allowed in such a case, for it would substantially change the claim. 
 
 3. A cause of action for breach of a promise to pay a debt is different 
 from a cause of action for money paid to defendant under mistake, or for 
 conversion of the money ; especially when the only demand alleged was a 
 demand for the performance of the promise. 
 
 4. A party has a right to rely upon the frame and contents of his adver- 
 sary's pleading, and to object at the trial to litigating a different cause of 
 action, even though he may have been apprised from other sources than 
 the pleading that such other claim was made. 
 
 In delivering the opinion of the court. Earl, J. , said upon the ques- 
 tion of amendment : 
 
 Here, although the defect in the complaint was pointed out in due time 
 
 22 
 
I. Causes of Action at Law. (2) Constructive Contracts. 155 
 
 Freer v. Denton, 61 N. Y., 493. 
 
 upon the trial, no amendment was asked for or ordered. This is not a 23 
 case where the pleadings can, after the trial, be conformed to the proof, 
 as such an amendment would change substantially the claim of the plaintiff 
 as alleg'ed. This is not a case of mere variance or mere defect, but a case 
 of failure to prove the cause of action alleged in its entire scope. Plead- 
 ings and a distinct issue are essential in every system of jurisprudence, 
 and there can be no orderly administration of justice without them. If a 
 party can allege one cause of action and then recover upon another, his 
 complaint will serve no useful purpose, but rather to ensnare and mislead 
 his adversary. ***** 
 
 It is no answer to this objection that the defendant was probably not 
 misled in its defense. A defendant may learn outside of the complaint ^ . 
 what he is sued for and thus may be ready to meet plaintiff's claim upon ^ 
 the trial. He may even know precisely what he is sued for when the 
 summons alone is served upon him. Yet it is his right to have a com- 
 plaint, to learn from that what he is sued for and to insist that that shall 
 state the cause of action which he is called upon to answer, and when a 
 plaintiff fails to establish the cause of action alleg-ed the defendant is not 
 to be deprived of his objection to a recovery by any assumption or upon 
 any speculation that he has not been injured. 
 
 FEEEE V. DENTON. 
 
 Ifew York Commission of Ajijyeals, 1875. 
 [Reported in 61 N. Y., 493.] 
 
 1. An action to recover back money paid by plaintiff, is not the less an 
 
 action on contract by reason of allegations in the complaint showing 
 that the payment was induced by defendant's fraud. 
 
 2. Where the complaint to recover back money paid, alleged a contract 
 
 between the parties for a sale by defendant to • plaintiff, and that 
 defendant by fraud induced plaintiff to make the contract, and to pay 
 the money in question upon it, and also that defendant was unable to 
 perform, refused to perform, and repudiated the contract, — Held, that 
 here were two causes of action, and plaintiff could recover on proving 
 the breach, without proving the fraud.* 
 ■3. The objection that the causes of action were not separately stated, 
 must be taken, if at all, by motion. 
 
 Action by purchaser against vendor, after breach by the latter, 1 
 to recover back money paid. 
 
 * Under the preeeut statute (C. C. P., §549), if, in an action upon contract, express or implied, 
 plaintiff incorporate - among the allegations of the complaint a charge of fraud on defendant's 
 part in contracting, or incurring the liability, or subsequently disposing of his property, he 
 cannot recover on the trial of the action unless he proves such allegations. 
 
 But they may be struck out by leave to amend on the trial. 
 
156 Abbott's Select Cases on Code Pleading. 
 
 Freer v. Denlon, 61 N. Y., 492. 
 
 The complaint alleged : 
 
 " That ^laintifE and defendant entered into a contract on the 
 day of the date thereof, in the words and figures following, to 
 wit : 
 
 \IIere. was set forth a contract for the sale and conveyance iy 
 the defendant, to the plaintiff, of a specified farm, described as 
 " including the Ahm. SchoonmaJcer lot,"] 8800 to be paid on or 
 before July 1, 1869, and the balance of the price on or before 
 April 1, 18Y0, deed to be given on receiving such payment. 
 
 " That to induce the plaintiff to enter into said contract the 
 defendant falsely and fraudulently, prior to the making of said 
 contract, represented to the plaintiff that he was the owner of or 
 authorized to sell the premises which in said contract are called 
 the Abm. Schoonmaker lot, and which said lot contained about 
 seventy-five acres. 
 
 " That the plaintiff, relying on said representations, was induced 
 to enter into and execute said contract, and to pay to the said 
 defendant the first installment mentioned in said agreement, to 
 wit, the sum of $800, which was made July 1, 1869. 
 
 " That at the time when the said defendant made the said 
 representation, and at the time when he received from the said 
 plaintiff the said sum of $800, the defendant well knew that the 
 representa ions which he had made to the plaintiff in regard to 
 the said Abm. Schoonmaker were false, said defendant not 
 being then tlie owner nor authorized to contract to sell the same, 
 nor has he ever been such owner, nor authorized to contract for 
 the sale thereof, and the plaintiff alleges that such representations 
 were made expressly to cheat and defraud the plaintiff. 
 
 " That said defendant has never carried out the said contract 
 or been able to do so, and has expressly refused to carry out the 
 same, and finally notified the plaintiff prior to the commence- 
 ment of this suit that he (said defendant) would neither carry 
 out said contract or refused to repay [sic] to the said plaintiff 
 the said sum of §800, or any part thereof. By means of the 
 premises herein mentioned the said plaintiff has sustained great 
 loss and injury." 
 
 As a separate cause of action the complaint stated a claim for 
 $4,000 damages for fraudulently inducing plaintiff to enter into 
 
I. Causes of Action at La%o. (2) Constructive Contracts. 157 
 
 Freer v. Denton, 61 N. Y., 493. 
 
 the contract, and refusing to perform, thus depriving plaintiff of 6 
 his bargain, and putting him to great expense, etc. 
 
 On the trial it appeared that on March 22, 1870, plaintiff was 
 ready and offered to perform, and demanded a conveyance, but 
 that defendant vcas unable to give title to the Schoonmaker lot, 
 and absolutely refused to perform, and expressly repudiated tlie 
 contract. The' action was commenced the next day. 
 
 At Giro alt plaintiff had a verdict. 
 
 The General Term of the Supreme Gourt affirmed the judg- 7 
 ment. 
 
 The Gommission of Appeals affirmed the judgment. 
 
 Eael, C. The plaintiff did not prove the frauds alleged in 
 the complaint, and no question of fraud was submitted to the 
 jury. If, therefore, this was, under the complaint, necessarily 
 an action of fraud, the plaintiff should have been defeated. 
 
 Upon the facts stated in the complaint, the plaintiff could 
 recover the money paid by him upon either one of two theories : 
 (1) He could avoid and repudiate the contract on the ground of 8 
 the fraud alleged, and recover back the money, because it had 
 been obtained from him by fraud, and the defendant had no 
 right to retain it; or (2), he could rescind the contract, because 
 the defendant refused to perform and repudiated the same, and 
 thus held his money without any consideration therefor. 
 
 Upon either theory the action is based upon the promise to 
 pay back the money implied by law (Byxbie v. Wood, 21 N. Y., 
 607), and is one, therefore, upon contract. An action for money 
 had and received lies, in all cases, where one has had and 
 received money belonging to another without any valuable " 
 consideration given on the receiver's part, for the law construes 
 this to be money had and received for the use of the owner only, 
 and implies that the person so receiving promised and undertook 
 to account for it to the true owner ; and in case a defendant be 
 under an obligation, from the ties of natural justice, to refund 
 money, the law implies a debt, and gives this action founded on 
 the equity of the plaintiff's case. (3 Bl. Com. 163 ; Cobb v. 
 Dows, 10 N. Y., 335 ; Moses v. Macferlan, 2 Burr., 1005.) No 
 
158 Abbott'8 Select Cases on Code Pleading. 
 
 Freer v. Denton, 61 N. Y., 492. 
 
 10 error was, therefore, committed at the Circuit in the holding 
 that the plaintiff was not bound to prove his allegations of 
 fraud. 
 
 The facts stated in the complaint showed two causes of action, 
 one to recover back the money paid, because the defendant 
 refused to perform and repudiated the contract, and this was 
 made out without proof of any fraud ; and another to recover 
 back the money paid, on the ground that it was obtained from 
 the plaintiff by fraud. These two causes of action could be 
 united in the same complaint, but should have been separately 
 stated. No objection was, however, made that they were not 
 thus stated, and such an objection could only be made by 
 motion. (Bass v. Comstock, 38 N. Y., iil.) 
 
 The only other question to be considered is, whether the 
 action could properly be commenced before the 1st day of 
 April, 1870. It is the settled law of England that if, before the 
 time appointed for performance of a contract, one party gives 
 notice to the other that he will not perform the same, and 
 repudiates the same, the other party may treat the contract as 
 
 12 broken, and at once commence an action to recover his damages 
 as for a breach thereof. (Hockster v. Delatour, 2 E. & B., 6Y8 ; 
 Danube and Black Sea Co. v. Xenos, 13 C. B. [IST. S.], 825 ; Frost 
 V. Knight, Y4 Law Reports, 111.) And this doctrine, while it 
 may not be regarded as settled, has received some coimteuance 
 in this State. (Burtis v. Thompson, 12 N. Y., 246.)* 
 
 But it is not necessary to invoke this doctrine to uphold the 
 judgment in this case. The contract provides for the payment 
 of $800, " on or before the 1st day of July. 1869, and the 
 balance on or before the 1st day of April, 1870," and that the 
 party of the first part, on receiving payment " at the time and in 
 the manner" mentioned, would, execute the conveyance. The 
 plaintiff had, therefore, the right to make the payment, and 
 demand the deed before the 1st day of April, and thus fix the 
 time of performance by defendant before that date. The plaint- 
 iff having shown his readiness and offer to perform, and a 
 refusal by the defendant to perform, in March, before the 
 
 * See also Howard v. Daly, 61 N. Y., 363, now our leading case. 
 
I. Causes of Action at Law. (2) Constructive Contracts. 159 
 
 Eggers V. Klussmann, 16 Abb. N. C, 326. 
 
 commencement of this action, had the undoubted right to li 
 commence this action before the 1st day of April, for a breach 
 of the contract, or to recover back the money paid by him. 
 
 I am, therefore, of opinion that the judgment should be 
 afiBrmed, with costs. 
 
 Reynolds and Dwight, CC, concurred. 
 
 LoTT, Cli. C. and Geay, C, dissented. 
 
 Judgment affirmed. 
 
 EGGERS V. KLUSSMAlSrJS'. 
 
 Ifew York Supreme Court, Special Term, 1885. 
 
 [Reported in 16 Abb. N. C, 336.] 
 
 A complaint merely alleging plaintiff's wager, and deposit pursuant 
 thereto with the defendant as a, stakeholder, and demand for the 
 amount and refusal prior to the action, without alleging the nature of 
 the wager or where it was made, is demurrable for not stating facts 
 sufficient to constitute a cause of action. 
 
 Demurrer to complaint. 
 
 Plaintiff sued to recover money deposited with defendant 
 upon a 'wager. 
 
 The complaint alleged : " That on or about October 26, 1884, 
 plaintiff made a wager with one J. E. D. Bosche, and in pursu- 
 ance of said wager he deposited with defendant as stakeholder 
 upon said wager or bet the sum of one thousand dollars, and that 
 thereafter, and on or about November 18, 1884, and before the 
 commencement of the aetiouj he demanded the return of said 
 deposit from defendant, which was refused." 
 
 The statutes of this State provide : "All wagers, bets or stakes 
 made to depend on any race, or upon any gaming by lot or 
 chance, or upon lot, chance or casualty, or unknown or contin- 
 gent event whatever shall be unlawful. All contracts for or on 
 account of any money or property or thing in action so wagered, 
 bet or staked shall be void." (1 R S., 662 [3 liL, 8 ed., 2218], § 8.) 
 '' -^°y person who shall pay, deliver or deposit any money, 
 property or thing in action, upon any event of any wager or bet 
 
160 Abbott's Select Cases on Code Pleading. 
 
 Eggers V. Klussmann, 16 Abb. N. C, 236. 
 
 herein proliibited, may sue for and recover the same, of the 
 winner or person to whom the same shall be paid or delivered, 
 and of the stakeholder or other person in whose hands shall 
 be deposited any such wager, bet or stake, or any part thereof, 
 whether the same shall have been paid over by such stakeholder 
 or not, and whether any such wager be lost or not." {Id., § 9.) 
 " The two last sections shall not be extended so as to prohibit or 
 in anyway affect any insurance made in good faith for the 
 security or indemnity of the party insured, and which are not 
 otherwise prohibited by law ; nor to any contract on bottomry 
 or repondentia." (Id. § 10.) 
 
 Defendant demurred to the complaint on the ground that it 
 did not state facts sufficient to constitute a cause of action. 
 
 Lewis, J. It does not appear by the complaint what the wager 
 was, where it was made, where the money was deposited with 
 defendant, or whether the demand was made before the money 
 was paid over by the stakeholder to the winner. 
 
 All wagers are not illegal at common law. (1 Whart. on Contr., 
 § 449.) If illegal, it is because they are made so by statute. 
 Wagers are made illegal by the statute of this State, and money 
 deposited may be recovered of the stakeholder even after he has 
 paid it to the winner. Aleatory contracts are not prohibited by 
 the statutes of the state of Louisiana. (Grayson v. "Whatly, 15 La. 
 Ann., 525.) 
 
 Courts cannot take judicial notice of laws of other States not 
 according to the common law. (Holmes v. Broughton, 10 TTend., 
 75 ; Harris v. White, 81 IST. T., 532, 534.) 
 
 As the plaintiff has no remedy at the common law to recover 
 back money deposited upon wager, he must recover, if at all, by 
 force of a statute, and must by his complaint bring himself 
 within its provisions. (Langworthy v. Broomley, 29 How. Pr., 92 ; 
 Cole V. Smith, 4 Johns., 193 ; McKeon v. Caherty, 3 Wend., 494.) 
 
 The place being material, and the pleading being silent in 
 regard thereto, the presumptions are against the pleader. (Cruger 
 V. Hudson Paver K. K. Co., 12 N. Y., 190, 201.) 
 
 If the deposit was made without the political jurisdiction of 
 the State of New York, there is nothing in the complaint show- 
 
I. Causes of Action at Law. (2) Constructive Contracts. 161 
 
 Krower ■;;. Reynolds, 99 N. Y., 245. 
 
 ing that there is any law of the State, territory or country where 7 
 the deposit was made giving a cause of action to plaintiff. 
 Demarrer sustained. 
 
 KROWEK V. REYNOLDS. 
 
 New York Court of Appeals, 1885. 
 
 [Reported in 99 N. Y., 245 ; rev'g- 19 Weekly Dig., 383.] 
 
 1. The objection that facts constituting several causes of action are com- 
 
 niing-led as if a single cause, is waived if not taken by motion. 
 
 2. A plaintiff may join in his complaint different causes of action, even 
 
 though inconsistent in theory, provided only that they all belong to 
 one of the classes mentioned in section 484 of the Code. 
 
 3. In a complaint based on a foreign judgment, alleg-ations relating to a 
 
 covenant on which that judgment was based, are not to be construed 
 as an attempt to set out an independent cause of action on such cove- 
 nant, where an averment material to such cause of action is wanting, 
 and where the allegations, though not necessary, are proper, con- 
 sidering the complaint as an action on the judgment. 
 
 The allegations of the complaint were as follows : 
 
 That on or about the 18th day of January, 1875, one Marshall 
 F. Shaw executed under his hand and seal, and delivered to one 
 "William O. Capron, a bond in the penal sum of $10,000, with a 
 condition that if said Shaw should pay to said Capron or his 
 assigns the sum of $5,000 upon the 18th day of January, 1877, 
 with interest thereon at the rate of seven per centum per annum, 
 payable semi-annually, without fraud or delay, then the said 
 obligation should be void, otherwise it should remain in full 
 force and virtue. 
 
 That at said time, as collateral security for the payment of 
 said bond, according to the terms thereof, the said Shaw duly 
 executed, acknowledged and delivered "to the said Capron a 
 mortgage by which he did grant and convey to the said Capron, 
 as security as aforesaid, certain real estate therein described and 
 situate in the city of Bergen, County of Hudson and State of 
 New Jersey. 
 
 That said mortgage was duly recorded in the office of the 
 
 11 
 
162 Abbott's Select Cases on Code Pleading. 
 
 Krower v. Reynolds, 99 N. Y., 345. 
 
 clerk of said county, in book of mortgages 115, at page 453, on 
 the 2d day of February, 1875. 
 
 That on or about the 28th day of January, 1875, said Capron, 
 by an instrunjent in writing under his hand and seal, for a valu- 
 ble consideration, duly assigned said bond and mortgage to said 
 Levi Oudkirk, which assignment was on the 2d day of February, 
 1875, duly recorded in said office, in book 24 of assignments of 
 mortgages, at page 525. 
 
 That on or about the 8th day of April, 1876, said Shaw and 
 his wife, by a deed duly executed, acknowledged and delivered 
 by them, to the defendant, granted and conveyed to him in fee a 
 part of said real estate, which said deed was accepted by said 
 defendant. 
 
 That said deed contained a provision that said real estate was 
 so conveyed subject to said mortgage, and the said defendant 
 did, by the terms thereof, in consideration of said conveyance, 
 assume and agree to pay the same. 
 
 That he thereby became liable to the said Oudkirk for the 
 payment of the same. 
 
 That on or about the 31st day of July, 1877, said Oudkirk 
 duly commenced an action in the Court of Chancery in the State 
 of ISTew Jersey, which said court is a court of general jurisdic- 
 tion, duly created by the laws of said State, against said Shaw 
 and said Eeynolds and others, by process of subpoena duly issued 
 in said action, which was duly served upon the defendant therein, 
 and that such proceedings were thereupon duly had in said ac- 
 tion ; that on or about the 26th day of October, 1877, the plaintiff 
 recovered a judgment, which was duly given by said court against 
 the defendant, for the sum of $5,053.78, no part of which has 
 been paid. 
 
 That by the law of the said State the interest upon the same 
 runs at the rate of seven per centum per annum. 
 
 That said judgment was so recovered upon the said liability 
 created by the said deed to said Eeynolds. 
 
 And he alleges that thereafter said Oiidkirk died, leaving a 
 last will and testament. 
 
 And that thereafter and on or about the 7t]i day of April, 
 1880, said will was duly admitted to probate by the Surrogate 
 
I. Causes of Aotion at Law. (2) Constructive Contracts. 163 
 
 Krower v. Reynolds, 99 N. Y., 845. 
 
 of the county of Kings, and letters testamentary thereon were 7 
 there duly granted and issued to these plaintiffs, who thereupon 
 drly qualified and accepted said trust, and entered upon the duties, 
 thereof, and ever since have been and still are the executors of 
 said will. 
 
 Wherefore, the plaintiffs demand judgment against the 
 defendants for $5,053.78, and the interest thereon from the 26th 
 day of October, 1877, besides the cost of this action. 
 
 The allegations of the answer were : 
 
 First. — Defendant admits the execution of the deed by Mar- s 
 shall F. Shaw and wife mentioned in the complaint, and the 
 recording thereof, and that the same contained a clause which 
 has been claimed, by interested parties, to make him personally 
 liable for the mortgage debt, but whether such clause was sufli- 
 cient to create such liability he has no knowledge or information 
 sufficient to form a belief thereof. 
 
 Second. — He admits the execution of the bond and mortgage 
 mentioned in the complaint, and the recording of the latter, and 
 the assignment of both to Oudkirk, as set forth in the complaint, D 
 but he alleges that, as he is informed and believes, the said mort- 
 gage and bond were given and held as security for $4-, 200 only, 
 and not for $5,000, and that said Oudkirk paid only .§1,200 
 therefor, and that the same was never a lien upon said premises, 
 for more than $4,200 as the principal sum, and that the same was 
 given as a security for such moneys as the mortgagee should loan 
 or advance from time to time to the mortgagor, not exceeding 
 $5,000, and that the sum actually so loaned or advanced did not 
 exceed $4,200. 
 
 And further answering, as to the allegations of the complaint 
 respecting the commencement of an action by Levi Oudkirk in 
 the Court of Chancery of New Jersey, and as to the service of a 
 subpoena or any process, in any manner, for the commencement of 
 the said action against the defendant, or any other person, and 
 as to the recovery of the judgment mentioned in the complaint 
 against the defendant, and as to the lawful rate of interest in 
 said State being seven per cent., and as to the making and prov- 
 ing of the will of said Oudkirk, and the appointment of the 
 
164 Abbott's Select Cases on Code Pleading. 
 
 Krower v. Reynolds, 99 N. Y., 245. 
 
 11 plaintiffs as executors thereof, he denies that he has any knowl- 
 edge or information thereof, or of any or either of them, to form 
 
 ;a belief as to them or any or either of them, and he denies that 
 isaid action was duly commenced against him, and that any 
 isubposna or other process in said action has ever been served 
 
 upon him, and he denies that said court ever acquired jurisdic- 
 
 .tion to render said judgment against him. 
 
 [The second defence and conclusion are here omitted.^ 
 
 Upon the trial, the plaintiffs proved the issuing of the letters 
 
 12 testamentary, and rested. 
 
 Defendant's attorney moved for a non-suit on the ground of a 
 failure to prove the cause of action set forth in the complaint, or 
 lo prove any cause of action. 
 
 The Supreme Court at Circuit denied the motion ; and after 
 Tcceiving defendant's evidence directed a verdict for the plaintiff, 
 and ordered the exceptions to be heard at General Term in the 
 first instance. (C. C. P., § 1000.) 
 
 13 The General Term denied defendant's motion, made upon the 
 exceptions, for a new trial, and directed judgment to be entered 
 for plaintiff upon the verdict. \_After stating siAstan ce of the 
 ■pleading the opinion of the court continued .•] " We discover no 
 -error in the ruling. The complaint alleged facts constituting a 
 ■cause of action arising out of the agreement in the deed, and 
 ^those facts were not denied in the answer. 
 
 " True, the complaint did not set out the language of the deed, 
 but it averred that by the terms of the deed the defendant agreed 
 to pay, and that averment was not denied. 
 -^■^ " The defendant having answered the complaint and denied 
 the validity of the judgment, as against himself, could not be 
 heard at the trial to assert that the complaint showed that his 
 liability upon the agreement was merged in the judgment. 
 
 " Nor could he object that the suit was brought without leave 
 of the court after an action to foreclose the mortgage (even if 
 that objection is available under our statute where the foreclos- 
 ure action is brought in a foreign State ; a point we do not decide), 
 for the reason that such objection maybe raised by answer in the 
 
I. Causes of Action at Law. (2) Constructive Contracts IGS- 
 
 Krower v. Reynolds, 99 N. Y., 245. 
 
 nature of a plea in abatement. (McKernan v. Robinson, 84 N. 15' 
 Y., 105.) And, not being so raised, is waived."' 
 
 \_The rest of the opinion did not discuss any question of plead- 
 ing.] 
 
 Judgment ordered for plaintiff. 
 
 The Court of Appeals reversed the judgment. 
 
 Andeews, J. Judgment in the action was recovered against 
 the defendant upon his covenant in his deed from Shaw to 
 assume and pay the mortgage on the granted premises, executed 
 by Shaw to (Japron. The trial judge in substance ruled that the 
 complaint set forth two causes of action, one upon the covenant 
 and the other upon the deiiciency judgment against Keynolds^ 
 founded on the covenant, rendered by the New Jersey court in. 
 an action for the foreclosure of the Capron mortgage, in which 
 Reynolds was joined as a party defendant. The defendant insists 
 that only one cause of action was set forth in the complaint, to- 
 wit, a cause of action on the judgment and that the plaintiff 
 having failed to prove a valid judgment against him, the com- 
 plaint should have been dismissed. This presents the main IT 
 question on this appeal. The allegations in the complaint are 
 embraced in a single statement, or count, and if it embraces two 
 causes of action, the pleading does not conform to the require- 
 ment of the Code. (§ 483.) But an omission to separate twO' 
 different causes of action in a complaint is a defect to be 
 corrected on motion. If the defendant proceeds to trial without 
 making his motion, the defect, being in a matter of form only, 
 and not affecting a substantial right, will be disregarded. (Code, 
 § Y23.) The question to be determined is whether the complaint 
 in substance set forth two causes of action, or a cause of action °'' 
 on the judgment only. It alleges the making of the bond and 
 mortgage by Shaw to Capron, an assignment to Oudkirk, the 
 plaintiffs' testator; the subsequent purchase of the mortgaged 
 premises by Reynolds, the defendant, the assumption by him of 
 the mortgage, and his covenant to pay the same in consideration 
 of the purchase and conveyance, the subsequent commencement 
 by Oudkirk of an action to foreclose the mortgage in the Court. 
 of Chancery in New Jersey, alleged to be a court of general 
 
166 Abbott's Select Cases on Code Pleading. 
 
 Krower v. Rej'aolds, 99 N. Y., 245. 
 
 19 jurisdiction, against Shaw, Reynolds and others by process duly 
 issued and served on the defendants therein, in which action 
 judgment was duly recovered by the plaintiff against Reynolds 
 on the 26th day of October, 1877, for $5,0.53.78, on his liability 
 on his covenant, the death of Oudkirk and the appointment of 
 the plaintiffs as his executors. The complaint concludes by 
 demanding judgment against Reynolds for $5,053.78, with inter- 
 est from October 26th, 1877, the date of the judgment. It is to 
 be observed that upon the facts stated in the complaint, the 
 covenant was merged in the judgment and no subsequent action 
 on the covenant could be sustained. This consideration is not 
 decisive upon the point in controversy, because a plaintiff may 
 join in his complaint different and even inconsistent causes of 
 action, provided only that they all belong to one of the classes 
 mentioned in section 484 of the Code. But the fact that an 
 action on the covenant could not be maintained after a judgment 
 had once been rendered thereon has a material bearing upon the 
 construction of the pleading. The pleader has blended in a 
 single statement the averments of the making of the covenant 
 
 21 and the subsequent recovery of a valid judgment thereon. Did 
 he intend to set forth in this single statement two inconsistent 
 causes of action, or only one cause of action, that is to say, a 
 cause of action on the judgment, inserting the allegations as to 
 the bond and mortgage, and the assumption of the debt by the 
 defendant and his covenant to pay the mortgage, only by way of 
 introduction or inducement to the final fact, viz., the recovery of 
 the judgment i This latter seems the most natural and reason- 
 able construction of the pleading. There is another material 
 consideration. The complaint does not contain the averments 
 necessary to a complete cause of action on tlie covenant. It 
 alleges the making and the consideration of the covenant, and 
 that the defendant thereby became liable to pay the mortgage. 
 But there is no breach alleged. This was necessary. (Marie v. 
 Garrison, 83 N. Y., 23.) There is no averment that the mort- 
 gage had not been paid or that Reynolds had failed to perform 
 his covenant. If the averments in respect to the judgment 
 should be eliminated, the complaint would have been demurrable, 
 as not stating facts sufficient to constitute a cause of action. If 
 
I. Causes of Action at Law. (2) Constructive Contracts. 167 
 
 Krower v. Reynolds, 99 N. Y., 345. 
 
 the parties had gone to trial on a complaint so framed, an amend- 23 
 ment would doubtless have been allowed, but the point here is 
 whether allegations proper, if not necessary, to a cause of action 
 on the judgment, by way of inducement, are to be construed as 
 intended to set up an independent cause of action, and this when 
 a material averment to such cause of action is wanting. The 
 answer of the defendant admitted the facts alleged in the com- 
 plaint as to the making of the covenant, bnt denied the judgment 
 and set up certain facts by way of equitable defence thereto. On 
 the trial the plaintiffs made no attempt to prove the judgment 
 alleged, in the complaint, but rested on proof of their appoint- 
 ment as executors. The defendant thereupon moved for a non- 
 suit on the ground that the plaintiffs had not proved the cause of 
 action set forth in the complaint. 
 
 We think the motion should have been granted. We fully 
 approve of the rule that pleadings should be Kberally construed, 
 with a view to promote substantial justice, but we are of opinion 
 that the complaint in this case, fairly construed, sets forth a 
 single cause of action upon the judgment and does not embrace 
 a cause of action on the covenant. 25 
 
 The judgment should be reversed and a new trial granted. 
 
 AH the judges concurred. 
 
 Judgment reversed. 
 
 Note.— The short form allowed by Code Civ. Pro., g 532, of alleging- 
 judgments and determinations of courts and officers of special and limited 
 jurisdiction to be alleged as "dulj' given or made," is applicable to al- 
 leging a judgment or other determination of a Federal court or ofBcev 
 when pleaded in a state court. It is the better opinion that such provision 
 is also applicable to judgments and other determinations of courts or 
 •ofHcers of sister states. (Abb. Br. on PL, §§ 379, 285, and cas. cit.) 
 
 Where the court rendering the judgment is one of general jurisdiction, 
 the facts showing jurisdiction need not be alleged. This was the rule at 
 common law, and has not been changed in the Code. (id. , §§ 277, 278 ; 2 
 Chitt. PL, 414. 
 
168 Abbott's Select Cases on Code Pleading. 
 
 Everitt v. Conklin, 90 N. Y., 645. 
 
 EVERITT V. CONKLIN. 
 ]Vew York Court of Appeals, October, 1882. 
 [Memorandum in 90 N. Y., 645.] 
 
 1. A complaint stating the details of the circumstances under which the 
 
 plaintiff paid money to defendant's use, is not bad because of stating 
 those circumstances so as to present an alternative as to the legal 
 theory of the transaction, if on either alternative defendant is bound 
 ex aequo et bono to return the money. 
 
 2. The complaint showed that plaintiff's assignor made a note for defend- 
 
 ant's accommodation and afterward paid it, and alleged that even if it 
 should be found (as defendant might claim) that the note was applied 
 on a contract between the parties, yet tlie contract was meanwhile 
 duly rescinded, and therefore plaintiff was still entitled to recover the 
 money. Held, a proper mode of pleading the alternative grounds of 
 recovery. 
 
 3. In such a case it is not error to refuse to require the plaintiff at the 
 
 trial to elect upon which theory he would proceed. 
 
 PlaintifE sued defendant in a county court, and alleged : 
 
 I. — Tliat the defendant is a resident of the county of 
 Chemung. 
 
 II. — Upon information and belief, that on or about Nov. Sth, 
 1876, one John G. Copley and the defendant entered into an 
 agreement in writing [of which a copy was here setfortK^ , by 
 which agreement ConMin sold a farm to Copley, at a stipulated 
 price per acre, amount to be fixed after survey, and 810,000 
 payable in three months from the date of the agreement, §10,000 
 more about a year after, and the balance still later ; the parties 
 agreeing " that upon the payment of the first $10,000 " the deed 
 should be given. 
 
 III. — That after the execution of said contract and before any 
 payment was due thereunder, to wit, on or about the 19th day of 
 December, 1876, the said John G. Copley executed and 
 delivered to the defendant his promissory note in writing, dated 
 on that day, whereby he promised to pay to the order of James 
 R. Conklin, the defendant, five hundred dollars, three months 
 after date, with interest. That said note was so executed and 
 delivered by the said John G. Copley to the defendant, at the 
 
I. Causes of Action at Law. (2) Constructive Contracts. 169 
 
 Everitt v. Conklin, 90 N. Y., 645. 
 
 defendant's request, for the purpose of enabling the defendant 
 to discount the same and raise money thereon for his own use. 
 That at the time of the execution of said note, said Copley was 
 not and never since has been indebted to the defendant in any 
 sum whatever, and said Copley never received anything for said 
 note. That said note was so executed and delivered solely as an 
 accommodation note, but it was agreed that the amount thereof, 
 with accrued interest, might be deducted by said Copley from 
 the said sum of ten thousand dollars, which was to fall due from 
 said Copley to defendant upon said contract three months from 
 its date, if said Copley chose so to do. 
 
 That soon after the execution and delivery of said note and 
 before its maturity the defendant endorsed said note and trans- 
 ferred the same to Lewis M. Smith and Henry L. Bacon, who 
 thereupon became the lawful owners and holders thereof. 
 
 That said note was not paid at its maturity, bu.t was protested 
 for non-payment, and notice thereof duly given to the defendant. 
 \The complair.t then alleged at some length the fact that judg- 
 ment was recovered' hy the indorsees against the nbaTcer under an 
 arrangement with the payee, indorser^that the judgment should he 
 collected of the maker if possible, and, if not, the indorser would 
 pay it with the costs and expenses ; that after execution returned 
 unsatisfied against the maker supplementary proceedings were 
 had against- him, and he subsequently paid the judgment and 
 interest, and the costs of the supplementary proceedings amount- 
 ing in all to the sum 'f $578.98.'] 
 
 IV. — That the said John G. Copley w^as ready and willing to 
 perform the conditions of said written contract hereinbefore set 
 forth, on his part, three months from the date thereof, when by 
 the terms of said contract the defendant was to execute and 
 deliver the deed as in said contract provided; and the said 
 Copley to pay the said defendant ten thousand dollars, and to 
 execute and deliver to the defendant a bond and mortgage for 
 the balance of the purchase price of said farm ; but the defend- 
 ant did not perform on his part, and was unable to convey to 
 said Copley the fee simple of said farm, free and clear from all 
 incumbrances of every description, as by said contract he had 
 agreed to to, and that at the time when, by the terms of said con- 
 
lYO Abbott's Select Cases on Code Pleading. 
 
 Everitt v. Oonklin, 90 N. Y., 645. 
 
 1 tract, said deed was to be delivered and said farm so conveyed to 
 said Copley, said farm was, and ever since has been, incumbered 
 with [here the incumbrances were described in detail and the 
 complaint continued], and by reason of such incumbrances the 
 said J ohn G. Copley rescinded said contract, and demanded that 
 the defendant pay said note and the judgment which was re- 
 covered thereon as hereinbefore stated, and at the time when 
 said Copley paid said judgment and costs, as hereinbefore 
 alleged, the said defendant was present, and the said Copley 
 stated to him that the same was for defendant to pay, and that 
 he paid it because he was compelled so to do, and that he should 
 make the defendant repay the same to hirn ; and that the defend- 
 ant repeatedly requested said Copley to pay the same. That 
 said Copley demanded of the defendant that he repay to him the 
 sum so paid out ; but the defendant refused so to do. 
 
 v.— That shortly after the execution of the said agreement 
 between said John G. Copley and James E. Conklin, the defend- 
 ant, and on or about December 30th, 1876, said Copley, at the 
 defendant's request, and on his written order, paid Whitfield 
 ^ Farnham, the surveyor, who surveyed the said farm, for his ser- 
 vices in making such survey the sum of ten dollars. 
 
 YI. — That by reason of the matters hereinbefore alleged, the 
 defendant became indebted to said John G. Copley in the sum 
 of $588.98, no part of which has ever been paid. 
 
 VIL— That before the commencement of this action the said 
 John G. Copley, duly sold, assigned and transferred to this 
 plaintiff the said indebtedness, of the defendant to him, and all 
 of his right of action against the defendant arising therefrom and 
 ^^ growing out of the matters aforesaid, and this plaintifE is now the 
 lawful owner thereof. 
 
 "Wheeefoee, etc. 
 
 At the trial in the County Court the plaintiff had a verdict ; 
 and defendant moved for a new trial. 
 
 Dexter, J., County Judge, on denying the motion, said, in 
 respect to the question of pleading : 
 
 If it be assumed that the complaint sets forth two causes of 
 
I. Causes of Action at JLaw. (2) Constructive Contracts. lYl 
 
 Everitt v. Conklin, 90 N. Y., 645. 
 
 action that could not be properly joined, the defendant should 11 
 have demurred, and, having failed to do so, lie has waived the 
 misjoinder and could not take advantage of it at the trial. 
 (Blossom V. Barrett, 37 IST. Y., 434.) 
 
 If it be assumed that there are certain allegations in the com- 
 plaint that are irrelevant or redundant, then the defendant should 
 have moved to strike out, and by omitting so to do, and answer- 
 ing the same, he must be held as having -accepted the issues thus 
 made. (Quintard v. Newton, 5 Robt., 22 ; Kellogg v. Baker, 15 
 Abb. Pr., 286.) ^^ 
 
 The first issue between the parties was whether the note was 
 to apply as a payment, or was for the accommodation of the de- 
 fendant. 
 
 The complaint anticipates the defence that it was a payment, 
 and alleges the rescission of the contract before the maturity of 
 the note and before the money was paid by Copley. 
 
 The sixth subdivision of the complaint avers that by reason of 
 the matters hereinbefore alleged, the defendant became indebted 
 to said Copley in the sum of $588.98, no part of which has been 
 paid. 13 
 
 Thus the ground of recovery is placed upon all the facts in the 
 complaint set forth, and the defendant by his answer having 
 admitted or joined issue upon all of them, we do not think the 
 defendant at the trial had the right to require the plaintiff to be 
 limited to a part of the issues thus made in his proofs or his 
 grounds of recovery. 
 
 The plaintiff did not introduce evidence inconsistent with his 
 claim that the note was an accommodation note. He only claimed 
 that, even if the defence set up was true, he was still entitled to 
 recover on the ground that the contract upon which it was 
 claimed he had given the note was rescinded, and by the default 
 of the defendant before he had paid the money on the judgment 
 recovered on the note ; and in so doing he kept within the 
 issues made by the' pleadings, and which issues the defendant 
 had accepted by going to trial thereon. 
 
 "We therefore conclude that no error was committed in refus- 
 ing to require the plaintiff to elect what theory he would base 
 his right of recovery upon, and confine him thereto in his proofs. 
 
172 Abbott's Select Cases on Code Pleading. 
 
 Everitt v. Conkliti, 90 N. Y., 645. 
 
 15 The Supreme Court at General Term affirmed the judgment 
 and order on substantially the same ground without discussing 
 the question of pleading in detail. 
 
 The Court of Appeals affirmed the judgment and order. 
 
 Finch, J. We agree with the learned counsel for the appel- 
 lant in the fundamental propositions of his argument, that there 
 was but a single cause of action stated in the complaint, and that 
 it could not be displaced on the trial by one different and incon- 
 sistent with it, and not within the scope of the pleading. But 
 
 16 we disagree with him as to what the essential cause of action 
 stated in the complaint really was. He describes it as an action 
 to recover moneys paid on an accommodation note. We deem 
 it an action for money had and received by the defendant to the 
 use of the plaintiff's assignor, and which, ex aequo et hono, the 
 defendant ought not to retain. The details of fact and the 
 special circumstances which go to establish and prove this cause 
 of action, may be very various and differ widely while yet such 
 cause of action may remain the same. It was upon such a theory 
 
 1 Y that the complaint was framed. Practically, the plaintiff said : 
 The defendant has got nfiy money without any consideration and 
 without any legal or equitable right to retain it, and refuses to 
 pay it back on demand ; and this is true ; because I made and 
 paid a note for his accommodation ; and even if it should be 
 found, as he is likely to claim, that the note was applied on a 
 land contract, still I insist that my cause of action remains and 
 the money was mine and not his ; because I rescinded that con- 
 tract, as I lawfully might, and so am still entitled to recover for 
 money had and received. We can see no impropriety in such a 
 
 18 mode of pleading. It states all the facts, and states them con- 
 sistently with one cause of action and one right of recovery, 
 whether the facts out of which it arose are found to be in accord 
 with either the plaintiff's or the defendant's version of them. 
 There is, therefore, no ground for the complaint that the trial 
 court submitted to the jury the double question whether the 
 note was accommodation paper ; and, if not, and found to have 
 been applied on the contract, whether the latter had been law- 
 fully rescinded for the failure of the defendant to perform, so 
 
I. Causes of Action at Law. (2) ■ Constructive Contractg. 173 
 
 Everitt v. Conklin, 90 N. Y., 645. 
 
 that the cause of action to recover back the money paid, re- 19 
 mained. And it follows also that tlie trial court was right in 
 refusing to require plaintifE to elect whether he would proceed 
 upon the theory of an accommodation note or that of a payment 
 on the contract. 
 
 But a further objection is taken. The defendant's counsel 
 asked the court to charge that, " If the agreement tO pay $3,000 
 before the 1st of January was made at or before the making of 
 this land contract, and this five hundred dollar note was a pay- 
 ment in pursuance of said agreement, then it was a payment 
 upon the contract." The court declined to charge further than 
 or differently from what it had already charged, and an exception 
 was taken. This refusal is now alleged as error, and upon the 
 ground that, whether the agreement was valid or not, its exist- 
 ence was material upon the question whether the note was in 
 fact given to apply upon such promised payment. But it is 
 apparent that the fact of such an agreement antedating the note 
 in existence when that instrument was made is all that was 
 material for the purpose declared. If such an agreement was 
 in fact made before the note was executed it is of no consequence 21 
 whether it was concluded before or after the land contract was 
 signed. Now the defendant was allowed to prove and did prove 
 that such an agreement was made at the time the land contract 
 was executed, but after its signature, and also Copley's admis- 
 sions of that fact. On the other hand, Copley testified that the 
 agreement was conditioned upon his being able to get the money. 
 Both pai'ties conceded that the agreement antedated the note and 
 was in existence when that was made ; and the controversy 
 between them respected not its date, but its terms. JSTow the 
 
 99 
 
 trial court called the attention of the jury to Conklin's claim of 
 the existence of this agreement and repeated to them his version 
 of what it was, and submitted to them the question whether the 
 note was without consideration or was applied upon the land 
 contract. The defendant got the full benefit of his claim that 
 such an agreement antedated the note ; and that was all that was 
 hiaterial to characterize the latter transaction. Substantially, the 
 court had already charged the defendant's proposition except as 
 to the date of the agreement. All the parties agree that the 
 
ITi Abbott's Select Cases on Code Pleading. 
 
 Everitt v. Oonklin, 90 N. Y., 645. 
 
 23 conversation about the advance of the three thousand dollars 
 occurred after the contract was executed. The defendant's wit- 
 nesses proved that explicitly, and Copley says the same thing. 
 He testifies that it was after the contract was signed, though 
 before a duplicate was made and he got his copy. The court 
 steadily refused to admit evidence of an agreement preceding the 
 contract ^vhich varied its terms, and there was no evidence in the 
 case of such an agreement. Indeed, the defendant's counsel 
 expressly claimed that the agreement to advance B-'',000 upon 
 the land contract was " consummated after " that contract was 
 made, although some conversation on the subject preceded it 
 (fol. 91 of case). And the defendant himself so testified. The 
 request to charge, therefore, was properly refused for the double 
 reason that it assumes that the agreement for an earlier payment 
 was made " at or before " the land contract ; and also because 
 the material part of the request, that if the note was given in 
 pursuance of that agreement it was a payment upon the contract, 
 had already been substantially charged. Whether the note was 
 so given was expressly submitted to the jury, and thev were told 
 
 25 that if it was, if Copley made it for the purpose of applying on 
 the contract, then the jury must come to the next question in 
 the case and determine whether the contract was rescinded. 
 There was, therefore, no error in the charge in this respect, and 
 the exclusion of the conversations preceding the contract was 
 defensible for the reason that they were wholly immaterial, 
 since the agreement as to an advance was conceded by the defend- 
 ant's counsel to have been consummated after the land contract 
 was executed, and he was permitted fully to prove its existence 
 and terms. We think the recovery was right. 
 The judgment should be affirmed with costs. 
 
I. Causes of Action at Law. (2) Constructive Contracts. 175 
 Roberts v. Ely, 113 N. Y., 128. 
 
 HOBEKTS V. ELY. 
 
 Neto York Court of Appeals, 1889. 
 
 [Reported in 113 N. Y., 138.] 
 
 1. Money which the seller of goods collected from insurance, upon destruc- 
 tion of the goods before delivery, and belonging equitably to the 
 buyer,* constitutes a cause of action for money had and received ; and 
 the statute of limitations runs accordingly, 
 
 3. Whenever one person has money which he cannot conscientiously 
 retain from another, the latter may recover it in this foi-m of action, 
 if the mode of trial, and the relief which can be given in a legal action 
 are adapted to the exigencies of the particular case, and the trans- 
 action is capable of adjustment by that procedure, without prejudice 
 to the interests of third persons. 
 
 3. Privity of contract is not essential. 
 
 4. The action lies irrespective of whether the original possession by de- 
 
 fendant was riglitf ul or wrongful. 
 
 5. The fact that there was a relation of trust between the parties does not 
 
 I'equire a resort to equity. 
 
 6. Nor does the fact that plaintiff is ignorant of the amount received, and 
 
 asks an accounting, if the amount depends on simple facts ascertain- 
 able as readily in a legal as in an equitable action, f 
 
 7. In such a case the limitation applicable to legal causes of action must 
 
 apply. 
 
 This action was against executors. 
 
 The features of the complaint essential to the question of 
 pleading may be concisely stated thus : 
 
 I. That in the month of, etc. [about ten yeoA-s before the com- 
 men^ement of the action], one G. and plaintiff purchased from 
 the testator 1,611 half chests of tea at the agreed price of 
 $14,000, said tea then being in the custody of a speciiied corpo- 
 ration. 
 
 II. That about the same time it was agreed between G. and 
 plaintiff and said company, that the company should hold the tea 
 in store for them and insure it for their benefit to the amount of 
 the cost value ; that it was subsequently represented to them 
 
 * As to who bears the fire risk pending an executory contract, see note in 28 Abb. N. C, .S49. 
 
 t But an equitable action may lie, and the equitable limitation apply, if the complaint shows 
 tiiat defendant was under a fiduciary duty to Iteep and rendei' accounts. Carr v. Tbompeon, 87 
 N. Y., 160 ; Marvin v. Brooks, 94 id., 71. 
 
176 Abbott's Select Cases on Code Pleading. 
 
 Roberts v. Ely, 113 N. Y., 138. 
 
 that it had so insured the tea and rendered them an account 
 charging the premium thereon as paid. 
 
 III. That subsequently [about nine years he/ore suit] a speci- 
 fied part of the tea was destroyed by fire in the custody of the 
 company. 
 
 IV. That the total value of all the tea destroyed, including 
 that of G. and the plaintiff, and thus insured, was about $78,000, 
 of which about one-seventh belonged to G. and the plaintiff. 
 That the company settled with the decedent for all the tea de- 
 stroyed, including the tea of G. and the plaintiff ; and he, about 
 eight years before suit, received, by reason of the destruction of 
 their part of the tea, about $8,000, and was instructed to account 
 therefor to G . and the plaintiff, the exact amount thus paid being 
 unknown to plaintiff. 
 
 V. That the testator, instead of paying over to G. and the 
 plaintiff their share of the insurance moneys, wrongfully appro- 
 priated it to his own use, in fraud of their rights. 
 
 After alleging death and the appointment of defendants as the 
 executors, and assignment to plaintiff by G. of all his claim, the 
 complaint alleged demand made by him upon the defendants 
 for an accounting and for payment of the sum to be found 
 due. 
 
 VI. That the fact of such wrongful appropriation was unknown 
 to plaintiff or G. until a few months before the commencement 
 of the action. 
 
 Wherefore plaintiff demanded judgment for an accounting, 
 and that the defendants pay over the amount to be found due 
 with interest from the time the testator received the money. 
 
 The answer set up, among other things, the statute of limita- 
 tions by alleging " that this action was not commenced within 
 six years after the alleged cause of action alleged in the com- 
 plaint had accrued." 
 
 At the trial the complaint was dismissed. 
 
 T/ie Stijn-eme Court at Qeneral Term affirmed judgment for 
 defendants, and plaintiff appealed. 
 
I. Causes of Action at Law. (2) Constructive Contracts. Ill 
 
 Roberts v. Ely, 113 N. Y., 138. 
 
 The Court of Appeals affirmed the judgment. T 
 
 Andrews, J. [after stating the faotsl : Upon all tlie circum- 
 stances the plaintiff insists that when the insurance money was 
 paid to Ely he took it, impressed with a trust in favor of Geiger 
 & Co. to the extent of their interest in the teas destroyed by the 
 fire, as represented in the fund received, and was equitably 
 bound to account to Geiger & Co. for their equitable interest. 
 
 Assuming that the plaintiff is right in his construction of the 
 facts, the case falls within the familiar doctrine that money in 
 the hands of one person, to which another is equitably entitled, ., 
 maybe recovered in a common law action by the equitable owner 
 upon an implied promise arising from the duty of the person in 
 possession to account for and pay over the same to the person 
 beneficially entitled. The action for money had and received to 
 the use of another is the form in which courts of common law 
 enforce the equitable obligation. The scope of this remedy has 
 been gradually extended to embrace many cases which were 
 originally cognizable only in courts of equity. Whenever one 
 person has in his possession money which he cannot conscien- 
 tiously retain from another, the latter may recover it in this form «) 
 of action, subject to the restriction that the mode of trial and 
 the relief which can be given in a legal action are adapted to 
 the exigencies of the particular case, and that the transaction is 
 capable of adjustment by that procedure, without prejudice to 
 the interests of third persons. ]\'o privity of contract between 
 the parties is required, except that which results from the cir- 
 cumstances. (Mason v. "Waite, 17 Mass., 560.) The right on the 
 one side, and the correlative duty of the other, create the neces- 
 sary privity, and justify the implication of a promise by the de- 
 fendant to do that which justice and equity require. It is im- 
 material, also, whether the original possession of the money by 
 the defendant was rightful or wrongful. It is sufficient that the 
 duty exists on his part, created by the circumstances, to account 
 for and pay it over to the plaintiff. 
 
 ]M"or is this form of action excluded, because in a general sense 
 
 there is a relation of trust between the parties arising out of the 
 
 transaction. There are many cases of trust cognizable only in 
 
 a court of equity. The cases of express trusts of property are 
 
 13 
 
178 Abbott's Select Cases on Code Pleading. 
 
 Roberts v. Ely, 113 N. Y., 128. 
 
 11 generally of this kind. The duty of the trustee to the cestui que 
 trust, to perform the trust and to account according to its terms 
 and conditions, is as a general rule enforceable only in an equit- 
 able action. The necessity of taking an account, the frequent 
 complexity of details, the separate and varied interests often 
 affected, and the necessity of molding the relief to suit the cir- 
 cumstances, render the procedure of courts of equity peculiarly 
 suitable in the administration of formal trusts, and in many cases 
 indispensable to the ascertainment and enforcement of the rights 
 and obligations of the parties. But the fact that money in the 
 hands of one person is impressed with a trust in favor of another, 
 or that the relation between them has a trust character, does not, 
 ipso facto, exclude the jurisdiction of courts of law. The gen- 
 eral rule that trusts are cognizable in equity and are enforceable 
 only in an equitable action, is subject to many exceptions, " as, 
 for instance, cases of bailments, and that larger class of cases 
 where the action for money had and received for another's use 
 is maintained ex aequo et hono." (Story's Eq. Jur., § 60; Comstock, 
 J., Lawrence v. Fox, 20 N". Y., 278.) 
 
 13 The present case falls within the exception. Upon the plaint- 
 iff's theory of the facts, Geiger & Go. were the equitable owners 
 of a pro rata part of the insurance money received by Ely. That 
 firm and Ely were aloae interested in the question, as it is con- 
 ceded that Ely was entitled to all the money received, subject 
 only to the claim of Geiger & Co. 'The only accounting re- 
 quired was such as was necessary to ascertain the extent of the 
 interest of Geiger & Co., and that depended upon simple facts 
 as readily ascertainable in a legal as in an equitable action. The 
 case, therefore, presented a cause of action, upon a liability im- 
 
 1^ plied by law, and it was subject to the limitation of six years, 
 prescribed by section 91 of the Code of Procedure, in force 
 when the cause of action arose. The money was paid to Ely in 
 1871, and the facts were known to Geiger & Co. at or soon after 
 that date. The action was commenced in 1881. Assuming that 
 an equitable action could be brought to enforce the liability 
 claimed, it would still be subject to the limitation of six years. 
 (Matter of JSTeilley, 95 N. Y., 390.) The plaintiff cannot avoid 
 the application of the statute by treating the actual appropriation 
 
I. Causes of Action at Law. (2) Constructive Contracts. 179 
 
 Chapman r. Forbes, 133 N. Y., 533. 
 
 of the money by Ely in 1874 as tlie cause of action. The right 15 
 of Geiger & Co. to recover the money was perfect from the 
 time of its actual receipt by Ely in 1871. (Lillie v. Hoyt, 5 Hill, 
 395.) 
 
 The judgment should be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 CHAPMAN V. FOEBES. 
 
 New YotIc Court of Appeals, 1890. 
 
 [Reported in 133 N. Y., 533 ; rev'g 56 Hun, 646.] 
 
 1. An action for money had and received, even when founded upon 
 equitable principles, is an action of a common law nature, and in no 
 respect a suit in equity, whether it depends upon a promise to pay 
 the money to plaintiff or on the fact that the money came to defend- 
 ant from such source and under such circumstances that in equity he 
 ought to pay it over. 
 
 S. The plaintiff in an action of a comifnon law nature cannot be compelled 
 upon the defendant's application to bring in, as additional parties de- 
 fendant, third persons who claim the samemoneys from him adversely 
 to plaintiff. 
 
 The following statement of the substance of the complaint 
 gives such allegations as are essential to the questions raised : 
 
 PlaintifE sued as executor of Aurelia Palmer, who, before her 
 death, had been induced by fraud to part with property of hers, 
 and who, on suing to recover it, had compromised on the pay- 
 ment of $2,500 to her attorney, one Breen. That the attorney 
 Breen was insolvent and carried oif the money, and that Breen's 
 brother assisted or connived in the wrong. That the defendant 
 in the present action, Forbes, acted as counsel for said Breen 
 when the latter was indicted for larceny of the money, and also 
 acted as attorney for Aurelia Palmer, the plaintiff's testatrix, 
 before her death. That by defendant's suggestion and consent, 
 given while so acting as the decedent's attorney, the decedent 
 gave plaintiff a deed of trust of her property, and a full power 
 of attorney to manage all her affairs and collect all claims. 
 
180 Abbott's Select Cases on Code Pleading. 
 
 Chapman v. Forbes, 123 N. Y., 532. 
 
 VII. ' ' That after the said Breen [the former attorney^ was 
 indicted, and prior to, plaintiff's appointment as such trustee, and 
 on or about March 1, 1883, the defendant herein received from 
 said Breen [the/ormer attorney'] either personally or through his 
 said brother [naming hiin] acting for said [former attorney'] the 
 sum of $1,200, which said sum was part of the money belonging 
 to the deceased, and converted as aforesaid by said Breen [the 
 former attorney] and that said money was paid to and received 
 by the defendant herein, for said deceased, to whom it rightfully 
 belonged." 
 
 [Then followed allegations in the usual form, of the death, the 
 will and the letters issued to plaintiff ^ 
 
 X. " That plaintiff has duly demanded the sum of $1,200 from 
 the defendant, both as her trustee, in conformity with the powers 
 vested in him by said deed of trust and power of attorney above 
 referred to, which authority was known to defendant at the time 
 of said demand, and also as executor prior to the commencement 
 of this suit ; but the defendant has refused to pay the same to 
 plaintiff, and still wrongfully, and in fraud of the rights of 
 plaintiff and said deceased, retains the said sum of $1,200 and 
 the whole thereof. 
 
 " "Wheeefoee, The plaintiff demands judgment against the 
 defendant for the sum of $1,200, with interest thereon from 
 March 1, 1883, and costs." 
 
 The answer of defendant denied the material allegations of 
 receipt to the use of plaintiff's testatrix, and of demand, conver- 
 sion, etc. It also alleged that he received the money from T. H. 
 Breen, as the money of said T. H. Breen, and held it, as his 
 agent, to be paid over only on the performance, on the decedent's 
 part, of certain conditions imposed by T. H. Breen, which con- 
 ditions were not performed. 
 
 That upon the refusal to perform such conditions defendant, 
 by agreement with T. H. Breen, acquired a lien upon the money 
 for certain services performed by him, and that he still holds and 
 claims such lien against such funds. 
 
 That subsequently T. II. Breen made a general assignment of 
 all his property to one Frederick "Williams for the benefit of his 
 
I. Causes of Action at Law. (2) Constructive Contracts. 181 
 
 Chapman v. Forbes, 133 N; Y., 533. 
 
 creditors, and tliat "Williams now claims such fund and has 7 
 brought an action, which is now pending against him, for it. 
 
 Upon the pleadings and an affidavit to the truth of the answer, 
 and a stipulation of William's attorney consenting that he be 
 made a party, defendant moved for an order bringing in Will- 
 iams as a defendant, under the following section of the Code of 
 Civil Procedure : 
 
 § 452. The court may determine the controversy as between 
 the parties before it, where it can do so without prejudice to the 
 rights of others, or by saving their rights ; but where a complete 
 determination of the controversy cannot be had without the 
 presence of other parties, the court must direct them to be 
 brought in. 
 
 And where a person, not a party to the action, has an interest 
 in the subject thereof, or in real property, the title to which 
 may in any manner be affected by the judgment, and makes 
 application to the court to be made a party, it must direct him 
 to be brought in by the proper amendment. 
 
 At Special Term the court deemed the action to be of an q 
 equitable character, and therefore granted the order. 
 
 The General Term affirmed the order without opinion. 
 
 The Court of Appeals reversed the order, holding it was not, 
 in this case, a discretionary one, and that the court below had no 
 power to make it. 
 
 Peckham, J. Under the old system of pleading the plaintiff, 
 upon the facts set out in the complaint herein, might have 
 brought his action of assumpsit or of debt. 
 
 An action of debt would lie though there was only an implied ^^ 
 promise, such as to pay over money had and received by defend- 
 ant to the use of the plaintiflE, though paid to defendant without 
 the command of plaintiff. (3 Comeyn's Digest, Title " Debt "; 
 (A. g.) Implied; 1 RoUe's Abrg. 597, line 25; 1 Chitty on 
 Plead., 108.) 
 
 An action of assumpsit as for money had and received would 
 also lie on an implied promise. (1 Chit, on Plead., 99, 100.) 
 There was a slight difference in the form of declaration in the 
 
182 Abbott's Select Cases on Code Pleading. 
 
 Chapman v. Forbes, 133 N. Y., 533. 
 
 11 action of assumpsit and that of debt for money had and received. 
 In the former the declaration upon the common count was very 
 brief. It contained among others the allegation that the 
 defendant was indebted to the plaintiff for money had and re- 
 ceived, and that in consideration of such debt the defendant 
 promised the plaintiff to pay him upon request the sum stated. 
 The expressed promise was averred even though the plaintiff 
 relied only upon an implied promise arising from the circum- 
 stances he should prove. But in the action of debt the pleader, 
 although he stated the indebtedness of the defendant precisely 
 in the same way as in assumpsit, yet omitted the allegation of a 
 promise on the part of defendant. (1 Chit, on Plead., 341-361.) 
 In neither was it necessary to state the circumstances out of 
 which the debt arose, further than that it was for money had 
 and received by the defendant to the plaintiff's use. Moses v. 
 Macferlan, 2 Burr., 1005, 1010, per Lord Mansfield.) Judging 
 the complaint in this action by these rules, it would appear to 
 partake more of the character of an action of debt for money 
 had and received by defendant to the plaintiff's use than that of 
 
 13 assumpsit, because there is nowhere alleged therein a promise by 
 defendant to pay the amount received by him to the plaintiff, 
 and a promise to pay the money is always alleged in the 
 assumpsit action. 
 
 Both forms of action were resorted to for the purpose of 
 collecting a debt due from defendant to plaintiff, and such 
 indebtedness was alleged in the declaration in each action. (1 
 Chit, on Plead., 341-361.) In each case the action was one at 
 law, and yet when brought in either form for money had and 
 received, each depended upon precisely the same equitable rules. 
 Whether the action were debt or assumpsit, the plaintiff's case 
 depended upon the question to which party, plaintiff or defendant, 
 does the money ex aequo et bono belong 1 If to the plaintiff, it 
 was because the facts created an indebtedness to him from 
 defendant. In this respect the action has been frequently 
 stated to be an " equitable one," that is one depending upon 
 general principles of equity for the maintenance of the plaintiff's 
 claim to the money. (Kingston Bank v. Eltinge, 66 IS". Y., 625 ; 
 2 Wait Law & Prac. [5th ed.] 391.) It is the most favorable 
 
I. Causes of Action at Law. (2) Constructive Contracts. 183 
 
 Chapman v. Forbes. 133 N. Y., 533. 
 
 way in which a defendant can be sued ; he can be liable no 15 
 further than the money he has received, and against that he may 
 go into every eqiaitable defense upon the general issue ; he may 
 claim every equitable allowance, etc.; in short, he may defend 
 himself by everything which shows that the plaintiff ex aequo 
 et hono is not entitled to the whole of his demand or any part of 
 it (Moses V. Macferlan, s^ipra, 1012.) 
 
 This case is cited with approval in Eddy v. Smith (13 Wend., 
 488). 
 
 The nature of the action was before this court in the recent 
 case of Eoberts v. Ely (113 N. Y., 128), and it was therein stated 
 to be a common-law action, although depending upon equitable 
 principles for its maintenance. It was further therein stated 
 that the fact that the money came into the hands of the defend- 
 ant impressed with a species of trust to repay to the plaintiff, did 
 not alter the character of the action or deprive a court of law of 
 jurisdiction thereof. But although the. action may be generally 
 described as one of an equitable character, it never was in any 
 aspect a suit in equity. 
 
 And in the particular case before the court there is no such \'J 
 relation of trust between the parties as would render the cause 
 of action cognizable in equity. Equitable relief is not demanded, 
 nor is a case made by the complaint for granting any relief of an 
 equitable nature. 
 
 The distinction made by the learned judge at Special Term 
 between an action where the defendant has promised or agreed 
 to pay to the plaintiff the money in controversy, and an action 
 based upon the fact that the money came to defendant from 
 such a source, and under such circumstances that in justice and 
 equity he ought to pay it over to the plaintiffs is not very ^° 
 material. In case assumpsit under the old system had been 
 adopted, such a promise would have been alleged, while, if the 
 action had been debt, the allegation of a promise would have 
 been omitted. But the cause of action in either case would 
 have been the same. 
 
 That an action is of an equitable nature does not make it an 
 action in equity. 
 
 When, in an action for money had and received, all the facts 
 
184 Abbott's Seleot Cases on Code Pleading. 
 
 Chapman v. Forbes, 123 N. Y., 533. 
 
 19 show that the plaintiff is ex aequo ei iono entitled to recover, his 
 right to recover is a legal one and maintaiaable in a court of 
 law. The action being one at law, there would formerly have 
 been no right on the part of defendant to compel the plaintifE to 
 bring in any other party. If he did not allege a good cause of 
 action against a defendant the latter could demur, and if a good 
 cause of action were alleged, but not proved, the plaintiff would 
 have been either nonsuited or a verdict ordered for the 
 defendant. 
 
 If the necessary parties were not present the defendant could, 
 by plea in abatement, take advantage of that fact. The judg- 
 ment for the defendant on such a plea, whether on an issue of 
 fact or of law, was that the plaintiff's " writ be quashed." (1 
 Chit, on Plead., 466.) 
 
 In a suit in equity the rule was different, and in that court all 
 persons who were interested in the question involved in the liti- 
 gation, and upon whose interest the decree might have any effect, 
 were proper or necessary parties, according to circumstances. 
 (Small V. Attwood, Tounge, 458 ; Pomeroy's Kem. & Rem. 
 
 21 Rights, § 488, et seq. and cases cited in notes.) In this condition 
 of the practice in the two courts of law and equity the Code of 
 Procedure was adopted, and the material part of section 122 
 thereof reads as follows : " The court may determine any con- 
 troversy between the parties before it when it can be done 
 without prejudice to the rights of others or by saving their 
 rights; but when a complete determination of the controversy 
 cannot be had without the presence of other parties the court 
 must cause them to be brought in." The decisions of our com-ts 
 have been quite uniform that the section above quoted referred 
 
 '^ to parties in what, under tlie old practice, would have been suits 
 in equity, and that it was never intended to make it incumbent 
 upon a plaintiff in an action at law to sue any other than the 
 parties he should choose. (Sawyer v. Chambers, 11 Abb. Pr., 
 110 ; M'Mahon v. Allen, 12 How. Pr., 39 ; Webster v. Bond, 9 
 Hun, 437.) These cases were decided under the old Code, but 
 section 452 of the new Code uses substantially the same 
 language, and adds a further provision which will be noticed 
 hereafter. 
 
I. Causes of Action at Law. (2) Constructive Contracts. 185 
 
 Chapman v. Forbes, 133 N. Y., 533. 
 
 {^The opinion then proceeded to review the cases on the prin-'iZ 
 ciples hy which third persons are hrought in ; and held that the 
 Tule does not apply in an action of a common law nature.] 
 
 All the judges concurred in reversing the order. 
 
 Note. — In the subsequent case of Rosenberg v. Salomon, 144 N. Y., 93, 
 the court held that although the defendant in a common law action can- 
 not require the plaintiff to bring in another person, the second clause of 
 § 453 authorizes the court to grant the application made by the third 
 person to be alloiced to come in. In other words the first of the above 
 paragraphs in § 452 applies only in equity actions, the second applies in 
 &\1 actions 
 
186 Abbott's Select Cases on Code Pleading. 
 
 Agnew V. Brooklyn City Eailroad Co., 20 Abb. N. C, 335. 
 
 AGNEW V. BEOOKLYN CITY EAILROAD CO. 
 
 Brooklyn City Court, General Term, 1887. 
 [Reported in 30 Abb. N. C, 335, with note.] 
 
 An allegation that defendants' servant, driving their horse-car at a time 
 and place specified, so negligently and carelessly managed his team 
 tliat the horse knocked her down and injured her leg, is sufficiently 
 definite and certain. To state more information would be to plead 
 evidence. 
 
 Appeal from an order. 
 
 By the Court — Van Wyck, J. This is an appeal from an 
 order denying a motion to tiave the complaint made more 
 definite and certain. 
 
 The plaintiff, a child of five years, alleges that while she was 
 in the act of crossing Sackett Street, on the cross-walk, the 
 driver of a one-horse street car so negligently and carelessly 
 managed his team, that the horse knocked her down, and injured 
 her leg. 
 
 This is certainly a plain and concise statement of the facts 
 constituting her cause of action, as required by Code Civil Pro., 
 § 481. The defendant insists that under section 546 the Court 
 should compel her to state what act of commission or omission of 
 the driver was negligent. The meaning and application of the 
 allegation are definite and certain ; it distinctly states negligence 
 in the management and control of the team, viz.: That the 
 driver brought his horse in contact with this plaintiff when, by 
 the exercise of ordinary care, he could have prevented it. 
 Plaintiff could not furnish in her pleadings more information in 
 relation to the fact thus set forth, unless she pleaded the evi- 
 dence by which she expects to prove this fact. This is never 
 desirable ; the form of this complaint is to be commended. 
 
 If the defendants make out a case in which they are entitled 
 to the evidence, or parts of it, they ought to appeal to the pro- 
 visions of the Code allowing the examination of a party before 
 trial, or compelling the party to furnish a bill of particulars 
 [§§ 531, 8Y0]. 
 
 We see no reason for disturbing the discretion of the court 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 187 
 
 Donner v. Ogilvie, 49 Hun, 329. 
 
 below exercised in denying the motion of defendant. (Reardon 4r 
 V. K Y. C. Co., 50 N. Y. Supr. Ct. [J. & S.], 514.) 
 
 The order should be affirmed, with $10 costs and dis- 
 bursements. 
 
 DONNER V. OGILYIE. 
 
 New YorTc Supreme Court, First Department, June, 1888. 
 
 [Reported in 49 Hun, 229.] 
 
 A complaint to charge the lessor of rooms in a tenement house with 
 damages by reason of an injury sustained by a member of the family 
 of the hirer, from the unlit condition of the premises for the use for 
 which it was let, is not sufficient, unless it alleges either that defend- 
 ants knew or had reason to know the dangerous condition and failed 
 to disclose it, or that they had agreed to repair it and did not, or 
 facts showing that the dangerous structure was such as to be a 
 nuisance, or that it was in a part of the building of which the lessor 
 retained care and control, to be used for the benefit of the tenants 
 generally. 
 
 Action for negligence. 
 
 The amended complaint was as follows: 
 
 Trial desired in the county 
 of New York. 
 
 EsTHEE DoNSEJB, by her Guardian ad 
 litem, Alexander Cauldwell 
 
 against 
 
 Clinton Ogilvie and Ida M. IngersoU, 
 individually and as executor and ex- 
 ecutrix of the last will and testa- 
 ment of William li. Ogilvie, deceased, 
 Benjamin F. Hahn and Henry Schu- 
 macher. 
 
 1 
 
 The plaintiff as and for an amended complaint herein alleges 
 upon information and belief, as follows : 
 
 I. — That heretofore and prior to the times hereinafter 
 mentioned, William H. Ogilvie died seized of the premises here- 
 
188 Abbott's Select Cases on Code Pleading. 
 
 Donner v. Ogilvie, 49 Hun, 229. 
 
 inafter mentioned, leaving a last will and testament, which was 
 duly recorded in the office of the Surrogate of the county of 
 JSTew York, on the 3d day of November, 1882, in and by which 
 said last will and testament, the defendants, Clinton Ogilvie and 
 Ida M. IngersoU, were nominated and appointed as executor and 
 executrix of said will. 
 
 II. — That the said defendants, Ogilvie and IngersoU, were the 
 children of said testator, and his next of kin and heirs-at-law. 
 
 III. — That in and by said will of said testator the premises 
 hereinafter mentioned were devised by said testator to the said 
 defendants, Ogilvie and IngersoU. 
 
 IV. — That on the 3d day of January, 1883, letters testamen- 
 tary were duly issued by said Surrogate of the county of New 
 York to the defendants, Clinton Ogilvie and Ida M. IngersoU, as 
 executor and executrix of said last will and testament of "William 
 H. Ogilvie, deceased, who respectively duly qualified as such 
 and entered upon the discharge of their duties as such, and con- 
 tinue so to act, and as such, assumed possession and control of 
 the property and assets of the said testator. 
 
 V. — That among other property and assets left by the said 
 testator were the premises known as No. 94 Sheriff street, in the 
 city of New York, consisting of a rear tenement house occupied 
 at the times herein mentioned by a number of tenants, of which 
 said executor and executrix assumed control. 
 
 VI.— That thereafter and prior to the 22d day of April, 1887, 
 the said defendants, Ogilvie and IngersoU, leased the said 
 premises to the defendants, Benjamin F. Hahn and Henry 
 Schumacher, for a term of years. 
 
 VII. — That while the said premises were in the possession of 
 the defendants certain of the rooms thereof were let and rented 
 to Charles Donner, the father of this plaintiff, from mftnth to 
 month, at an agreed compensation or rental, without any covenant 
 on the part of the said Charles Donner to repair said premises. 
 
 VIII. — That under said letting and hiring at the times herein- 
 after mentioned the said rooms were occupied by the parents of 
 the plaintiff, with whom this plalntiS, an infant, under the age 
 of fourteen years, was residing. 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 189 
 Donner v. Ogilvie, 49 Hun, 229. 
 
 IX. — That immediately in front of the rooms so occupied by T 
 this plaintiff and her parents, as aforesaid, there was a platform 
 about fourteen feet, more or less, above the ground or yard nec- 
 essary to be used for ingress and egress to and from the said 
 rooms, and intended for use in connection with said rooms. 
 
 X. — That at the time of the leasing of the said premises by 
 the defendants, Ogilvie and Ingersoll, to the said defendants, 
 Hahn and Schumacher, the said platform was in the same state 
 and condition as at the time of the accident herein mentioned. 
 
 XI. — That the said defendants, in violation and disregard of § 
 their duty and of the rights of this plaintiff, wrongfully and 
 negligently failed to properly guard or protect the said platform, 
 and permitted the same to become and remain in an improper, 
 unsafe and dangerous condition ; so that this plaintiff, on the 22d 
 day of April, 188Y, while in the proper and lawful use of the 
 said rooms and platform, without any fault or contributory negli- 
 gence on her part or that of her parents, fell from said platform 
 into the yard below, solely because of the negligence of the 
 defendants and the improper, insufficient and negligent manner 
 in which the said platform was constructed, guarded and kept, ' 
 and its unsafe, improper and dangerous condition. 
 
 XII. — That by reason of the premises this plaintiff sustained 
 severe and, as she is advised and believes, permanent injuries, 
 and became and remained sick for a long period of time, and 
 greatly suffeied in body and mind to her damage in the sum of 
 $15,000. 
 
 XIII. — That this plaintiff is an infant under the age of four- 
 teen years, and by order duly made by this court and entered on 
 the 28th day of May, 1887, before the commencement of this 10 
 action, Alexander Cauldwell was duly appointed guardian ad 
 litem of the plaintiff, to commence and prosecute this action. 
 
 Wherefore, plaintiff demands judgment against the defendants 
 for the sum of $15,000, with interest thereon, from the 22d day 
 of April, 1887, besides the costs and disbursements of this action. 
 \_8ignatur6 and address of'\ Plaintiff's attorney. 
 
 The defendants, Ogilvie and Ingersoll, demurred on the ground 
 
190 Abbott's Select Casks on Code Pleading. 
 
 Donner v. Ogilvie, 49 Hun, 329. 
 
 11 that the complaint did not state facts sufficient to constitute a 
 cause of action. 
 
 The Supreme Court at Special Term overruled the demurrer 
 and defendants' appeal. 
 
 The Supi'eme Court at General Term reversed the judgment. 
 
 Baktlett, J. The contents of the amended complaint in this 
 action may be summarized as follows : The defendants, Ogilvie 
 and IngersoU, owned and controlled the premises 94 Sheriff 
 
 12 street, in the city of E^ew York, which consisted of a rear tene- 
 ment house occupied by a number of tenants. Prior to April 
 22, 1887, they leased these premises to the defendants, Hahn and 
 Schumacher, for a term of years. While the premises were in 
 the possession of the defendants (no particular defendants being 
 specified) certain rooms therein were let and rented to the plaint- 
 iff's father from month to month at an agreed rent, without any 
 covenant by the tenant to repair. The rooms were occupied by 
 the parents of the plaintiff, with whom she, being an infant un- 
 der fourteen years of age, resided. Immediately in front of the 
 
 13 rooms was a platform about fourteen feet above the yard, and 
 necessary to be used for ingress and egress to and from the 
 rooms, and intended for use in connection with the rooms. When 
 leased by the defendants Ogilvie and IngersoU to the defendants, 
 Hahn and Schumacher, the platform was in the same condition 
 as at the time of the accident, which is the subject-matter of the 
 action. The defendants negligently failed to properly guard and 
 protect the platform, and permitted it to become and remain in 
 an improper, unsafe and dangerous condition, so that the plaint- 
 iff, on April 22, 1887, while in the proper and lawful use of the 
 
 ^'^ rooms and platform, without contributory negligence, fell from 
 the platform into the yard below, solely because of the negligence 
 of the defendants, and the improper, unsafe and negligent man- 
 ner in which the said platform was constructed, guarded and 
 kept, and its unsafe, improper and dangerous condition. The 
 plaintiff sustained severe and permanent injuries, to her damage 
 $15,000. 
 
 This, I think, is a fair statement of the substance of the com- 
 plaint. The defendants Ogilvie and IngersoU have demurred on 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 191 
 
 Donner v. Ogilvie, 49 Hun, 339. 
 
 the ground that the complaint does not state sufficient facts to 15 
 constitute a cause of action, and have appealed from an inter- 
 locutory judgment at Special Term overruling their demurrer. 
 The first impression gained from reading over the complaint is 
 that the pleader intended to allege a letting of the entire premises 
 by the defendants Ogilvie and Ingersoll to the defendants, Hahn 
 and Schumacher, vrhereby the former parted entirely with all 
 control over the property, and that the letting to the plaintiff's 
 father was by the defendants Hahn and Schumacher alone. But 
 the learned counsel for the defendants argues that the allegation 
 in the seventh paragraph, that the premises were in the possession 
 of the " defendants " when the rooms were let to the plaintiff's 
 father, means that they were in possession of all the defendants, 
 and hence that all are liable for the condition of the platform 
 which resulted in the plaintiff's injuries. It might be said in 
 answer to this that the complaint does not really allege a letting 
 by any of the defendants, for it does not necessarily follow from 
 the averment that the defendants were in possession of the 
 premises when certain rooms were rented, that they themselves 
 were the parties with whom the tenant made his contract. "We 17 
 will not dispose of the case, however, upon any such refinements, 
 but will adopt the view most favorable to the plaintiff, which is 
 that the complaint alleges a letting to the father hy all the 
 defendants. Assuming that the father thus stands in the direct 
 relation of tenant to all the defendants, let us inquire whether 
 they can be held liable for injuries to his child by reason of the 
 unsafe, unguarded and dangerous condition of the platform in 
 front of his rooms at the time of the letting. 
 
 It is not charged that the defendants knew, or had reason to 
 know, the platform to be dangerous for any use for which they 
 let it, and failed to disclose its condition, or that they had agreed 
 to repair it, or make .it safe, and omitted to do so. Hence they 
 cannot be deemed liable, under the rule which was applied in 
 Carson v. Godley (26 Penn St., Ill), where the defendant let a 
 storehouse with the knowledge that it was unfit for the uses to 
 which the lessees manifestly intended to put it, and omitted to 
 insert any word of caution or restraint in the lease Nor can the 
 defendants, be regarded as negligent under the authority of 
 
192 Abbott's Select Cases on Code Pleading. 
 
 Dormer v. Ogilvie, 49 Hun, 229. 
 
 19 Davenport v. Euckman (37 N. Y., 568, 574), where it appeared 
 that there was an express agreement by the lessor to put the 
 premises in repair, which agreement had not been kept. Neither 
 do the averments of the complaint suffice to make out such a 
 condition of the platform as to amount to a nuisance for the 
 effects of which the defendants might continue responsible after 
 the letting. A structure may be unguarded and unsafe, and 
 dangerous for the use of a child, and yet not be a nuisance. 
 
 In Bold V. O'Brien (12 Daly, 160) the landlord of a tenement 
 house was held to be liable for an injury to his tenant arising out 
 
 " of a defect in a portion of the premises outside that occupied by 
 the plaintiff, and over which the landlord retained control ; and 
 it is sought to bring this case within the principle of that and 
 other similar decisions. But here it is not alleged that any of 
 the defendants retained control over the platform, and indeed 
 there is a distinct intimation to the contrary in the averment 
 that the structure was immediately in front of the rooms rented 
 to the plaintiff's father, and was intended for use in connection 
 therewith. This would rather imply that the platform was let 
 
 21 to him with the apartments. 
 
 There appears to be nothing, then, to take the case at bar out 
 of the ordinary rule that no warranty is implied on the part of 
 the lessor of a dwelling that it is safe and convenient. (Jaffe v. 
 Harteau, 56 ISl. Y., 398.) The law which should control the dis- 
 position of this demurrer is stated with such perfect clearness in 
 Edwards v. N. Y. & Harlem R. E. Co. (98 IST. Y., 245, 249), that 
 we need only quote a few sentences from that case : " If a landlord 
 lets premises and agrees to keep them in repair, and he fails to 
 do so, in consequence of which anyone lawfully upon the prem- 
 
 ■^^ ises suffers injury, he is responsible for his own negligence to the 
 party injured. If he demises premises, knowing that they are 
 dangerous and unfit for the use for which .they were hired, and 
 fails to disclose their condition, he is guilty of negligence which 
 will in many cases impose responsibility upon him. If he creates 
 a nuisance upon his premises and then demises them, he remains 
 liable for the consequences of the nuisance as the creator thereof, 
 and his tenant is also liable for the continuance of the same nuis- 
 ance. But where the landlord has created no nuisance, and is 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 193 
 
 City of Buffalo v. Holloway, 7 N. Y., 493. 
 
 guilty of no wilful wrong or fraud or culpable negligence, no 23 
 case can be found imposing any liability upon him for any injury 
 suffered by any person occupying or going upon tbe premises 
 during the term of the demise." 
 
 None of the authorities cited by the respondent are in conflict 
 with this statement of the law, and if they were they would have 
 to yield to it as the latest utterance of the court of last resort on 
 the subject. 
 
 The interlocutory judgment must be reversed, and the appel- 
 lants must have judgment on their demurrer, with costs, with 24 
 leave to the plaintiff to amend on the usual terms. 
 
 Yan Beunt, p. J., and Macombeb, J., concurred. 
 
 Judgment reversed and judgment ordered for appellants on 
 demurrer, with costs, with leave to plaintiff to amend on usual 
 terms. 
 
 CITY OF BUFFALO v. HOLLOWAY. 
 
 Meiv Yorle Court of Appeals, 1862. 
 [Reported in 7N. Y., 493.] 
 
 ] . An allegation that under a contract, the terms or substance of which are 
 not stated, " it became and was the diity of defendant to " do a speci- 
 fied act is insuflBcient on demurrer. 
 
 3. The facts creating the duty must be alleged. 
 
 Action by city of Buffalo against a contractor who had con- 
 structed a sewer for the city, to recover from him a sum which 
 the city had been compelled to pay to one Tripp, who fell into 
 the sewer excavation while the work was going on, in conse- 
 quence of the omission to put up guards. 
 
 The complaint did not state the provisions of the contract 
 under which defendant did the work. Its allegations sufficiently 
 appear in the opinion. 
 
 Defendant demurred for insufiiciency of facts to constitute a 
 cause of action. 
 
 The Supreme Court at Special Term overruled the demurrer. 
 13 
 
194 Abbott's Select Casks on Code Pleading. 
 
 City of Buffalo v. Hollo way, 7 N. Y., 493. 
 
 The General Term reversed the judgment and sustained the 
 demurrer. 
 
 The Court of Appeals affirmed this latter decision. 
 
 Jewei't, J. {after stating facts, and the general principle that 
 the contractor is not liable to the city in such case unless he stipu- 
 lated to guard the excavation^: 
 
 The city of Buffalo was bound to exercise its right in con- 
 structing the sewer in a careful and prudent manner, so as to 
 avoid injury resulting to others from it ; and if it were prudent 
 and necessary to erect, maintain and keep lights, guards and bar- 
 riers about, and in the vicinity of the place excavated during the 
 progress of the work, in order to protect and prevent persons 
 lawfully traveling and passing along the street from unavoidably 
 falling into the pit or hole and thereby sustaining injury, it was 
 its duty to do so, and consequently it is liable for injuries occa- 
 sioned by the want of such proper precautionary measures. As 
 between the city of Buffalo and the defendant, the obligation of 
 the latter extended no farther than to perform his part of the 
 contract made for the construction of the sewer according to its 
 terms, with reasonable skill, and consequently, he is only liable 
 to the city to compensate it for such injuries as it sustained 
 for want of the exercise of such skill in the performance of his 
 contract in that manner. 
 
 The complaint states that " for the purpose of constructing the 
 sewer, the defendant excavated the earth in or near the middle of 
 Elk street, near the east end of the bridge on the canal slip, in 
 such manner as to make a deep pit or hole near the east end of 
 the bridge, about twelve feet in length along the middle of the 
 street, of the width of about four feet and of the depth of about 
 fifteen feet, and that it then became and it was the duty of the 
 defendant while the pit or hole remained open, in the use of due 
 care, to have erected and maintained lights, guards and barriers 
 about and in the vicinity of the pit or hole, to prevent and pro- 
 tect persons lawfully traveling and passing in, along and upon 
 Elk street, from and against unavoidably falling therein ; that 
 while the pit or hole was open, the defendant wrongfully, care- 
 lessly, negligently and improperly left it unguarded, and while 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 195 
 
 City of Buffalo v. HoUoway, 7 N. Y., 493. 
 
 SO left, etc., Mr. Tripp, while lawfully passing along and upon 7 
 Elk street, unavoidably fell into it, by means whereof he was 
 greatly hurt," etc., and afterwards sued the city of BuflFalo for 
 such injuries and recovered against it a certain sum, etc., there- 
 for, which the said city had paid, etc. 
 
 It will be observed that it is not stated or alleged in the com- 
 plaint that it was not necessary for the defendant, in order to con- 
 struct the sewer, in pursuance of the terms of his contract to 
 excavate the pit or hole in every respect as it was done, or that 
 there was anv lack of skill manifested in executing the contract 
 in that respect. The complaint, instead of stating facts and cir- 
 cumstances to show that it was the duty of the defendant to erect 
 and keep up lights, guards and barriers while the pit remained 
 open, assumes that such was his duty, and proceeds at once to 
 allege a breach of this duty. The difficulty is, the want of any 
 statement of facts from which such duty arises. For an allega- 
 tion of the duty is of no avail, unless from the rest of the com- 
 plaint the facts necessary to raise the duty can be collected. If 
 the excavation to construct the sewer in the street in question 
 was such as to make it necessary and proper to erect lights, 9 
 guards and barriers in the vicinity to render the passing of the 
 street safe while open, it unquestionably was the duty of the' 
 city of Buffalo to have caused such precautionary measures to be 
 taken. The city might have contracted with the defendant to 
 take such measures ; in that event the duty as between him and 
 the city would have devolved upon him, and he would have been 
 liable for all the consequences resulting to it for any neglect on 
 his part in observing liis stipulations in that respect ; or the city 
 may have judged the measures unnecessary, and therefore 
 omitted to provide for them in its contract with the defendant, ^^ 
 or if otherwise, the city might have chosen to contract for the 
 doing of that service with some other person. In either case the 
 defendant would owe no such duty to the city, whatever liability 
 he miglit have incurred to others, who suffered by the digging of 
 the pit and leaving it open, without such measures having been 
 taken to guard against the danger which there was in passing in 
 the street (Seymour v. Maddox, 5 Eng. L. & Eq., 265 ; 1 Chitty 
 E., 370, edit. 1 812 by Day). 
 
196 Abbott's Select Cases on Code Pleading. 
 
 Davis V. N. Y., Lake Erie & Western R. R. Co., 30 Abb. N. C, 230. 
 
 11 The complaint should contain a plain, concise statement of the 
 facts constituting a cause of action (Code, § 142). In my opinion 
 the complaint in this case comes short of that. The defendant 
 was at liberty, by § 144 of the Code, to demur to it when it ap- 
 peared upon its face that it did not state facts sufficient to consti- 
 tute a cause of action. The judgment, therefore, should be 
 affirmed. 
 
 DAYIS V. ]Sr. Y., LAKE ERIE & WESTERIST R. R. CO. 
 
 Buffalo Suj>erior Court, January Term, 1886. 
 
 [Reported in 20 Abb. N. C, 230 ; again in 110 N. Y., 646.] 
 
 1. Under an allegation that the locomotive, by the explosion of which 
 
 plaintiff was injured, was not safe and proper, by reason of which he 
 suffered the said injuries, evidence that the coal furnished was unfit and 
 could not be used with safety upon this locomotive is not competent, 
 although it appears also that by a different construction such unfit 
 coal might have been safely used, and that good coal would have been 
 used on this locomotive with safety. 
 
 2. The particular in which the defendants were guilty of negligence of its 
 
 duty toward the plaintiff is necessarily alleged, and defendant has a 
 right to rely upon such particular as the only one involved in the 
 issue to be tried. 
 
 3. In an action for negligence an amendment which assigns as the 
 
 particular cause of the casualty a different defect in structui-e or 
 materials from that specified in the original complaint is not the 
 introduction of the new cause of action. 
 
 First.— K-^^esl from a judgment and order refusing a new 
 trial. 
 
 Plaintiff sued for damages for injuries suffered by him while 
 in the defendants' employment as locomotive engineer. 
 
 The complaint alleged that the defendant so neghgently, 
 carelessly and unskillfully conducted its business that it failed to 
 supply the plaintiff with suitable and safe appliances for the 
 conduct of its business, and failed to keep the same in repair, as 
 was proper and necessary to do, to secure the safety of said 
 plaintiff, " that said defendant was negligent and careless in that 
 behalf as alleged, in this, that while the said plaintifl was engaged 
 in the discharge of his duties as engineer, the defendant failed 
 
I. Causes of Action at Law. (3) Torts :— l^egligence. 19Y 
 
 Davis V. N. Y., Lake Erie & Western R. R. Co., 30 Abb. N. C, 330. 
 
 to furnish a safe and proper locomotive engine witli which to do 
 said work, but that the said locomotive so furnished plaintiff was 
 out of repair, defective, insecure and dangerous to persons 
 upon it * * by reason of whicla defective condition and lack 
 of repair, the said plaintiff, while engaged in the performance of 
 his duty, was hurled violently out of the window of the cab of 
 the said locomotive by an explosion of gas in the fire-box of said 
 locomotive, upon the ground, and received thereby severe and 
 permanent injuries." 
 
 The plaintiff testified on the trial that while he was at work 
 with his engine, hauling a train of freight cars, his engine " blew 
 out and got stopped up ; she blew fire, gas and smoke out into 
 the cab, and blew me out on to the ground," and that thereby 
 his leg was broken, and he suffered the injuries complained of. 
 He further testified that the netting over tlie smoke-stack of the 
 engine got stopped up ; and that caused the engine to blow out ; 
 that he had not examined the netting, but that he knew that it 
 was liable to get stopped up, and that the netting was used upon 
 the smoke- stack of all engines to prevent fire and sparks from 
 escaping, and burning property along the line of the railroad. 
 
 He did not testify to any defect in the engine, or any want of 
 repair thereof which caused the injury. 
 
 After proving the nature and extent of his injuries, the plaintiff 
 called as a witness, one Stephens, who, at the time of the 
 accident, was employed by defendants as an engineer upon one 
 of its locomotives, and who, having testified that he was familiar 
 with the kind of coal in use by defendants at the time in question, 
 was asked by plaintiff's counsel what kind of coal it was. 
 
 The defendants' counsel objected to the question as irrelevant 
 and immaterial, and because the complaint contained no allega- 
 tion that the fuel furnished for use by plaintiff on his engine was 
 improper, or of a defective quality. The objections were over- 
 ruled, and the witness was allowed to testify to the quality and 
 kind of coal used on plaintiff's engine. 
 
 He was asked by plaintiff's counsel how the coal was, as to 
 being screened or dirty, and mixed with foreign substances. 
 Defendants' counsel objected to the question as immaterial and 
 irrelevant, and because the complaint contained no allegation 
 
198 Abbott's Select Cases on Code Pleading. 
 
 Davis V. N. Y., Lake Erie & Western R. E. Co., 20 Abb. N. C, 230. 
 
 T that the fuel furnished for use on plaintiff's locomotive was im- 
 proper, or of defective quality. The objection was overruled, 
 and the witness answered that the coal was not screened ; that 
 the netting used on the engine had the same sized meshes as the 
 netting in general use on defendants' locomotives ; that he had 
 had experience of the danger of using "that kind of netting with 
 that kind of coal. He further testified, under similar objection 
 by defendants' counsel, that the netting that was used on de- 
 fendants' road, in connection with the kind of coal that was used, 
 was not a safe and suitable instrumentality to do business with 
 upon the engine used by plaintiff ; that if a larger netting was 
 used with that kind of coal, there would be no difficulty ; and 
 that if with the netting used on that engine, a better quality of 
 coal were used, there would be no difficulty. 
 
 Several other witnesses called by the plaintiff, who had been 
 employed by defendants upon its locomotives, were allowed to 
 testify, under defendants' objection, that the quality of the coal 
 used on defendants' engine was defective and bad, unsafe and 
 unfit for use with the netting used on defendants' engines; 
 
 9 though they also testified that it was a standard netting in use 
 upon all the defendants' engines, and on those of other railroad 
 companies, and that it was a safe and proper netting if a good 
 quality of coal was used upon the engine. 
 
 No testimony was given that would warrant the conclusion 
 that there was any defect in the netting of the engine run by 
 plaintiff if the coal furnished him for use thereon had been of 
 good quality and fit for such use. 
 
 At the trial, plaintiff had a verdict, and judgment having been 
 
 10 entered, an order denying a motion for a new trial having been 
 also made, defendants appealed. 
 
 Smith, Ch. J. [after stating the facts'] : It is entirely clear 
 to my mind that the court erred in permitting the plaintiff to 
 pro 70 that the coal furnished for use upon his engine was of bad 
 quality, and unsafe and unfit for such use. As we have seen, 
 the complaint contained no allegation touching the kind or 
 quality of fuel furnished plaintiff. On the contrary, the com- 
 plaint alleges that the engine furnished to plaintiff was out of 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 199 
 
 D.ivis V. N. Y., Lake Erie & Western R. R. Co., 20 Abb. N. 0., 330. 
 
 repail-, defective, insecure and dangerous, by reason of which 11 
 the plaintiff suffered the injuries complained of. On the trial 
 the plaintiff attempted to prove that the netting upon his engine 
 was defective, insecure and dangerous. He could only prove 
 that when coal not screened, dirty, and of a kind and quality 
 unfit for use was employed, the netting was unsafe and defective, 
 but his own witnesses testified that the netting was safe and proper 
 for use with a good quality of coal. When, therefore, the court 
 allowed the plaintiff to abandon the charge in the complaint, 
 that the engine was defective and unsafe, and to prove instead 
 that the fuel used on the engine was of a bad quality, that it 
 could not be used with safety upon an engine properly con- 
 structed and in good condition, he compelled the defendants to 
 meet an issue not made by the pleadings, and which it did not 
 come into court to try ; and the jury were allowed by the admis- 
 sion of this improper evidence to find a verdict for the plaintiff, 
 because the fuel furnished him was not of good quality, but was 
 unfit and unsafe for use upon liis engine. 
 
 If the complaint had not' specified in what particular the de- 
 fendants were guilty of negligence, or failure to do its duty 13 
 towards the plaintiff, it would have been deemed defective, and 
 the plaintiff could have been compelled to state in his complaint 
 specifically the negligence or neglect of duty which caused the 
 injury for which he sued. And in stating the facts requisite to 
 make liis complaint sufficient in this respect, he was bound to 
 state them truly, so that the defendants might know with what 
 fault or Avrong they were charged, and come to the trial prepared 
 to meet the charge. The very object of written pleadings is to 
 frame the issues so that the parties may know what questions are 
 to be tried, and make preparation therefor ; and this purpose is 
 frustrated and manifest injustice is done if, on the trial, the 
 party is allowed to abandon the issues deliberately framed, and 
 substitute other and different ones. The defendants, no doubt, 
 were bound to furnish the plaintiff a safe and proper kind of 
 coal to use upon his engine ; and had the complaint contained 
 proper allegations on that subject, either originally or by proper 
 amendments, a verdict based upon those allegations, and suitable 
 proofs supporting them, would not be disturbed. 
 
200 Abbott's Select Cases on Code Pleading. 
 
 Davis V. N. Y., Lake Erie & Western R. E. Co., 20 Abb. N. C, 230. 
 
 15 I have not considered other questions made by defendsfnt in 
 this case, because the error of the court in permitting evidence 
 to be given to support an issue iirst raised on the trial, renders it 
 necessary to grant a new trial, upon which, with amended plead- 
 ings, or otherwise, those questions may not arise. 
 
 The judgment and order appealed from should be reversed, 
 and a new trial granted, costs to abide the event. 
 
 Second. — Appeal from an order allowing an amendment after 
 trial and order for new trial. 
 1" The plaintiff then applied at Special Term for lea^■e to amend 
 the complaint. 
 
 The substantial allegations of the proposed amended complaint 
 were as follows : 
 
 That the plaintiff is a resident of the city of Buffalo, county 
 and state aforesaid, and oh or about the 25th of July, 1881, was 
 in the employ of said defendant, upon one of defendant's en- 
 gines, as an engineer, in the city of Buffalo, and that it was the 
 duty of the defendant to supply the said plaintiff with suitable 
 11 and safe means, materials and appliances for the conduct of the 
 business in its ordinary run, and for any extraordinary occasions 
 that may be reasonably anticipated, and keep the same in repair. 
 
 That yet the defendant, not regarding its duty in that regard, 
 so negligently, carelessly and unskillfuUy conducted the said 
 business that it failed to supply the said plaintiff with suitable 
 and safe means, materials and appliances in the conduct of said 
 business, and failed to keep the appliances in repair, as was 
 proper and necessary to do to secure the safety of said plaintiff, 
 of which the said plaintiff was ignorant, but of which the said 
 18 defendant had due and timely notice. 
 
 That the said defendant was negligent and careless in that 
 behalf as alleged, in this, that while on the day and place afore- 
 said, the said plaintiff was engaged in the discharge of his duties 
 as engineer, the defendant failed to furnish a safe and proper 
 locomotive engine ^\\i\\ which to do said work ; but that the 
 said locomoti\'e so furnished plaintiff was out of repair, defective, 
 insecure and dangerous to persons upon it ; and also the defend- 
 ant failed to furnish proper means and materials and fuel for use 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 201 
 
 Davis V. N. Y., Lake Erie & Westeru R. E. Co., 30 Abb. N. C, 230. 
 
 ■on said engine, but furnislied means and materials and fuel for 19 
 use on said engine whicli were unfit and unsafe and dangerous 
 to those upon the said engine ; all of which was well known to 
 the defendant, but unknown to this plaintiff, and by reason of 
 which defective condition, and lack of repair, and the said use 
 of the unsafe and unfit and dangerous means, materials and fuel 
 so furnished by the defendant as aforesaid, an explosion of gas 
 was caused in the fire-box of said locomotive, by means of which 
 the said plaintiff, while engaged in the performance of his duty, 
 was hurled violently out of the window of the cab of the said 
 locomotive, upon the ground, and received thereby severe and 
 permanent injuries. 
 
 The Special Term of the Superior Court allowed the amend- 
 ment, on the ground that no new cause of action was thereby 
 set up. 
 
 The General Term of the Superior Court affirmed the order 
 made at Special Term on the same ground. 
 
 The Court of Af peals affirmed the order of the General 21 
 Term. 
 
 Eael, J. These allegations did not constitute a new cause of 
 action ; the plaintiff still based his right to recover upon the 
 same injury caused to him at the same time and place by the 
 wrong of the defendant, and all that was added in the amended 
 complaint were additional specifications of the same wrong. 
 The plaintiff, when he framed his original complaint, may have 
 been mistaken as to the cause of the effects from whicli he suf- 
 fered the injury, but he was not mistaken as to his cause of 
 action. 
 
 It is a fair test, to determine whether a new cause of action is 
 alleged in the amended complaint, that a recovery had upon the 
 original complaint would have been a bar to any recovery under 
 the amended complaint. If the plaintiff had, however, been 
 beaten or nonsuited upon a trial under the original complaint, 
 because of the insufficiency of the allegations therein contained, 
 the judgment entered would not ha-s-e barred a recovery under 
 the amended complaint, because the judgment in such a case 
 
202 Abbott's Select Cases on Code Pleading. 
 
 Ehrgott V. Mayor, etc., of N. Y., 96 N. Y., 265. 
 
 23 would not have passed against the plaintiff upon the merits. 
 There is no doubt that the court may, at Special Term, allow an 
 amendment of a complaint by introducing therein even a cause 
 of action barred by the statute of limitations. But in such case 
 the defendant must not be deprived of his defense of the statute. 
 
 As the court had power, in the exercise of its discretion, to 
 allow this amendment, we have no jurisdiction to review its dis- 
 cretion, and this appeal should, therefore, be dismissed, with 
 costs. 
 
 All the judges concurred. 
 
 Appeal dismissed. 
 
 EHEGOTT V. MATOE, ETC., OF NEW TOEK. 
 
 JVew Yo7'k Court of A^ppeals, 1884- 
 [Reported in 96 N. Y., 265.] 
 
 1. A general allegation of great bodily injury and consequent continuing 
 disability, lets in evidence of any particular, such as resulting disease 
 of the spine. 
 
 3. If not deemed enough to inform defendant, his remedy is by motion to 
 make definite and certain, or for particulars. 
 
 ^ Action for negligence. 
 
 Plaintiff had a verdict at the trial. 
 
 The Supreme Court at General Term, reversed the judgment. 
 
 The Court of -Appeals reversed the General Term's decision, 
 and gave judgment for plaintiff. On the question of pleading, 
 Eael, J., said : " Upon the trial, plaintiff gave evidence tending 
 to show that he had a disease of the spine of a permanent nature 
 as the result of his injuries. This evidence was objected to by 
 the counsel for the city, on the ground that the plaintiff had not 
 alleged such a result from the injury in his complaint. 
 
 " We think the complaint is sufficient. It alleges that he 
 suffered great bodily injury ; that he became, and still continues 
 to be sick, sore and disabled ; that he was obliged to spend large 
 sums in attempting to cure himself, and was prevented for a 
 long time from attending to his business, and that he was other- 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 203 
 
 Gumb V. 23d St. R. R. Co., 114 N. Y., 411. 
 
 wise injured, to his damage $25,000. These allegations are 
 sufficient to authorize proof of any bodily injury resulting from 
 the accident, and if the defendant desired that they should be 
 more definite, it could have moved to have them made more 
 specific, or for a bill of particulars." 
 
 \_The rest of the opinion was not in relation to qxiestions of 
 pleading.] 
 
 All the judges concurred. 
 
 Order reversed and judgment affirmed. 
 
 GUMB V. TWENTY-THIED ST. R. E. CO. 
 
 JVew York Court of Appeals, 1889. 
 
 [Reported in 114 N. Y., 411.] 
 
 1. Under a general allegation only sucli damages as necessarily and 
 
 immediately flow from the injury can be proved. 
 
 2. The fact that in consequence of the personal injuries alleged, plaintiff 
 
 was obliged to expend money ia hiring others to carry on his business, 
 is special damages, and must be specially alleged. 
 
 Action for negligence. 
 
 Plaintiff had a verdict. 
 
 The Superior Court at General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. On the ques- 
 tion of pleading, Follett, J., delivering the opinion of the court, 
 said : " The plaintifE was permitted to testify, over defendant's 
 objection, that the evidence was not within the issue ; that while 
 suffering from his injury he employed two men to work in his 
 place, paying them $12 and $15 per week each, $135 in the 
 aggregate. When a plaintiff alleges that his person has been 
 injured and proves the allegation, the law implies damages, and 
 he may recover such as necessarily and immediately flow from 
 the injury (which are called general damages) under a general 
 allegation that damages were sustained ; but if he seeks to recover 
 damages for consequences which do not necessarily and immedi- 
 ately flow from the injury (which are called special damages), 
 he must allege the special damages which he seeks to recover. It 
 
204 Abbott's Select Cases on Code Pleading. 
 
 Fisher v. Rankin, 25 Abb. N. C, 191. 
 
 3 is not alleged in the complaint that the plaintiff expended money 
 in hiring others to work in his place ; the defendant had no 
 opportunity of contradicting the evidence, and its reception was 
 error. Gilligan v. N. Y. & Harlem K. E. Co., 1 E. D. Smith, 
 4.53 ; Stevens v. Rodger, 25 Hun, 54 ; Whitney «. Hitchcock, 4 
 Denio, 461; 2 Thompson on Negligence, 1250, §§ 32, 33; 2 
 Sedg. on Dam., Yth ed., 606; 1 Chitty's PL, 16th Am. ed., 411, 
 515 ; Mayne on Damages, chap. 17 ; Heard's Civil PL 310-314. 
 For this and other errors the judgment was reversed. 
 All the judges concurred except Beadley, J., dissenting. 
 
 FISHER V. RANKIlSr. 
 
 New York Supreme Court, First Department, General Term, 
 December, 1889. 
 
 (Reported in 35 Abb. N. C, 191.) 
 
 1. A complaint for damages for personal injuries occasioned by the negli- 
 gence and carelessness of defendant in failing to keep a sidewalk in 
 safe and proper condition, will not sustain a recovery on the ground 
 that defendant unlawfully interfered with the previous condition of 
 such sidewalk, rendering it unsafe and a public nuisance.* 
 
 3. An amendment changing- a complaint for negligence to one for the 
 creation of a nuisance, entirely changes the ground of action, and 
 will not be allowed on the trial, nor subsequently upon the argument 
 of an appeal. 
 
 1 Re-argument of an appeal by defendant from a judgment in 
 favor of plaintiff entered upon a verdict. 
 
 Daniels, J. The appeal in this action has already been heard 
 and decided by this General Term, but upon an application 
 made by the defendant a re-argument has been ordered. This 
 direction for the re-hearing of the appeal proceeded to some 
 
 2 extent upon the case of Wasson v. Pettit, 49 Hun, 166. The 
 appeal has been again argued pursuant to this direction, and the 
 point taken in support of it has now been made mainly dependent 
 upon the construction to be placed upon the complaint in the 
 action. 
 
 *As to stating same injury in several forms as separate causes of 
 action, see 24 Abb. N. C, 326. 
 
I. Causes of Action at Law. (3) Torts : — ISTegligence. 205 
 Fisher v. Rankin, 25 Abb. N. C, 191. 
 
 It was for a personal injury sustained by the plaintiflE in falling 
 upon the sidewalk on Forty-eighth street in front of premises 
 owned by the defendant. This walk had been excavated to 
 receive a concrete filling, and then to be covered by an asphalt 
 or other smooth surface. 
 
 The plaintiff was passing along the walk on July 15, 1884, 
 and stepped upon that which had been excavated, and upon 
 which a rough surface of cinders, ashes and broken stone had 
 been placed. In endeavoring to pass along this part of the walk 
 she fell and received severe injuries. The court in submitting 
 the case to the jury placed the plaintiii's right to maintain the 
 action wholly upon the question whether, under the defendant's 
 authority or employment, an unlawful excavation had been made 
 in the sidewalk rendering it unsafe for use and substantially a 
 public nuisance. Her right to maintain the action was in no 
 respect made dependent upon the finding of fact by the jury 
 that the defendant was chargeable with negligence for the con- 
 dition in which this part of the walk had been placed. Upon 
 that subject the charge was that it was not a case in which the 
 jury could take into account the subject of negligence at all ; but 
 that it depended upon the unlawful interference of the defend- 
 ant with the previous condition of the walk. The defendant 
 excepted to the submission of the case in this form to the jury, 
 and claimed that without amending the pleadings they could not 
 proceed on that theory. 
 
 Whether this exception was well taken depends wholly upon 
 the construction to be placed upon the complaint, for no state- 
 ment or admission contained in the defendant's answer enlarged 
 the scope of the action as the complaint had been made to 
 describe it. By the complaint it was stated that the defendant 
 was the owner of the premises wliere the injury took place, and 
 that the plaintiff was lawfully passing along the sidewalk in 
 front of the premises, and that while in the act of passing as 
 aforesaid she stepped upon a flag-stone placed on said sidewalk, 
 when the said stone suddenly gave way from under her feet, and 
 the plaintiff was thereby violently precipitated to the ground. 
 Then it is stated that from her fall she had received the injuries 
 for which remuneration was demanded in the action. And after 
 
206 Abbott's Select Cases on Code Pleading. 
 
 Fisher v. Rankin, 35 Abb. N. C, 191. 
 
 7 that the complaint proceeded and stated : that the said injuries 
 were caused wholly by the carelessness and negligence of the 
 defendant, in that, among other things, he failed to keep the 
 said sidewalk in a safe and proper condition, but on the contrary 
 permitted it to be and remain in an unsafe and dangerous state 
 and condition, all of which the defendant well knew or ought to 
 have known. 
 
 That this plaintiff did not, through any fault or negligence on 
 her part, contribute to the said injuries. There was no state- 
 ment or averment whatever that the defendant had unlawfully 
 
 " made or authorized the excavation in the sidewalk. But what 
 he was charged with having done were acts and omissions which 
 in judgment of law were careless or negligent, and no facts 
 whatever were stated in the complaint characterizing what had 
 been done as an unlaM'^ful interference with the surface or any 
 other part of the sidewalk. 
 
 It is plainly evident that the cause of action set forth in the 
 complaint depended wholly upon the charge made against the 
 defendant that this unsafe condition of the walk had been brought 
 
 9 about wholly by his carelessness and negligence. And that 
 presented a case entirely different from the case which the court 
 in this manner submitted to the jury. A very manifest distinc- 
 tion in the law, as well as the facts, exists between the case 
 stated in the complaint and that upon which the right of the 
 plaintiff was made to depend in this submission of the action. 
 
 In Dickinson v. Mayor, etc., 92 N. Y., 584, this distinction 
 was clearly maintained. For it was there said as to that case 
 that " this was not an averment for keeping, maintaining and 
 suffering a nuisance, but merely for negligence in not removing 
 
 ^ the ice and snow. The complaint was not for a positive wrong 
 committed by the defendant, but for an injury sustained by 
 reason of defendant's negligence. The authorities establish a 
 distinction between an action for wrong and an action for 
 negligence." {Id., 588.) And under a complaint alleging one 
 cause of action, the plaintiff is clearly disabled by this principle 
 from recovering for another not mentioned or referred to in any 
 manner in the jjleading. If slie could recover at all, her right 
 to do so was restricted to the case contained in her complaint. 
 
I. Cmoses of Action at La'jo. (3) Torts :— Negligence. 20T 
 
 Lamming v. Galusha, 135 N. Y., 239. 
 
 (Steyens v. Mayor, etc., 84 JST. Y. 296, 305 ; Day v. Town of New J 1 
 lots, 107 Id., 148, 154-5 ; Neudecker v. Kohlberg, 81 Id., 296, 
 S05.) That she did not do in this case as it was submitted to the 
 jury, and the exception taken, by the defendant is well founded. 
 
 It has been urged by the plaintiff's counsel that this may be 
 obviated by so amending the complaint as to make it conformable 
 to the theory of the case on which it was submitted to the jury- 
 But an amendment or change of that description cannot be 
 made upon the trial, or after the trial upon the argument of an 
 appeal. For the effect of that would be to change the action 3^2 
 from one cause to another and different ground of action. And 
 such a change cannot be, under the authorities, made to support 
 the judgment from which an appeal had been taken. (Davis v. 
 N. Y., Lake Erie, etc., E. E. Co., 110 N. Y., 646.) 
 
 In this respect the amendment or change would not be sup- 
 ported by anything which was said in Harris v. Tumbridge, 83 
 N. Y., 92. For it was there conceded that a new cause of action 
 could not be introduced into the case by an amendment either 
 at the trial or upon an appeal. The only manner in which the -. ., 
 error in the submission of the case can be corrected is by a new 
 trial, and for that reason the judgment and order should be 
 reversed and a new trial ordered, with costs to the appellant to 
 abide the event. 
 
 Van Beunt, P. J., and Baerett, J., concurred. 
 
 LAMMING V. GALUSHA. 
 
 New Yorh Court of Appeals, October, 189%. 
 
 [Reported in 135 N. Y., 239.] 
 
 1. In an action for an injunction and damages as relief against the unauthor- 
 
 ized use of a highway by a railroad company, the plaintiff may unite 
 with this cause of action for a nuisance a demand for damages for a 
 personal injury to himself by a passing train. 
 
 2. Continuous injuries to plaintiff's real property by the maintenance of a 
 
 nuisance, and injuries to his person on a single particular occasion 
 caused by the same nuisance, may be joined in one action, for they 
 are transactions' connected with the same subject of action. 
 
 The elements of the complaint were as follows : 
 
208 Abbott's Select Cases on Code Pleading. 
 
 Lamming v. Galusha, 135 N. Y., 239. 
 
 Plaintiff was owner of premises on the Kidge Road and of 
 half of the bed of the road : 
 
 The road, a highway on which he had an easement of free 
 passage : 
 
 For several years defendants had unlawfully maintained a 
 steam railroad along said road, and upon plaintiffs said premises : 
 
 The track was so laid as to hinder vehicles, and upon an 
 embankment unlawfully made for the purpose : 
 
 Resulting obstruction of the highway by mud, water and 
 snow : 
 
 Plaintiff frequently thereby compelled, in coming and going, 
 to turn into the fields, and to perform labor and incur expense 
 in getting to and fro : 
 
 His access to his premises from the highway rendered difficult 
 and dangerous : 
 
 Defendants customarily ran trains at a high, dangerous, and 
 unnecessary rate of speed ; engines customarily emitting large 
 clouds of smoke, burning cinders and steam, and making fright- 
 ful noises : 
 
 And defendants frequently stopped imusually long trains, 
 extending in front of plaintiff's premises, cutting off his access. 
 
 The part of the complaint on which the decision turned was 
 as follows : 
 
 " That on or about the 4th day of August, 1888, plaintiff, in 
 the ordinary prosecution of his said business, was riding along 
 said North avenue in his own market or produce wagon, and 
 driving his own horse attached thereto, and going toward the 
 north ; that said horse was a quiet and well trained animal, 
 accustomed to steam railroads and cars, and that plaintiff was 
 driving with due care ; that plaintiff had reached a point about 
 midway between Norton street and the Ridge road ; that there- 
 upon one of said locomotive engines and trains, operated by 
 defendants, approached from the south, running at a high rate 
 of speed and making alarming noises with the escape of steam 
 and otherwise, and without abatement of said speed or noises, ran 
 past plaintiff ; that the approach of said train greatly frightened 
 said horse, and, as said train passed, said horse got beyon 
 plaintiff's control, and turned quickly, overturned said wagon 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 209> 
 
 Lamming- v. Galusha, 135 N. Y., 239. 
 
 and threw plaintiff violently out of said wagon and to the 
 ground ; that said horse, in his fright and struggle to escape, 
 stepped upon plaintiff's head, shoulder and the lower part of hi& 
 body, wounding and bruising plaintiff." [^Here followed details-, 
 of his jihysical injuries.] 
 
 The complaint then went on to show : That defendants intend 
 to continue such wrongful maintenance of the road and opera- 
 tion of trains : 
 
 Plaintiff thereby in addition to the bodily injuries described' 
 has been totally excluded (with excepted periods) from more 
 than one-third of his easement, and the residue has been greatly 
 impaired ; he has been hindered in getting to market ; sale of 
 sand, etc., been lessened, house endangered, value of premises 
 diminished, and family put in fear, to his damage already 
 suffered $10,000 : 
 
 That the aforesaid acts constitute a nuisance of special injury 
 to plaintiff, that there is no adequate remedy at law, and that 
 without injunction he could only be relieved by a multiplicity of 
 actions, the special injury is irreparable, will increase, and dam- 
 ages cannot be adequate. 
 
 Whekefoee, an injunction and $10,000, or such other sum as 
 it may appear he is entitled to^ down to the time of trial, is 
 demanded. 
 
 Defendants demurred, assigning misjoinder of action for 
 damages by wrongful entry, with action for injury to personal 
 property, and action for injury to person, and an action to abate 
 a nuisance. 
 
 At Sjpeoial Term, Adams, J., overruled the demurrer on sub- 
 stantially the same grounds as explained in the opinion of the 
 Court of Appeals hereinafter given. 
 
 The Court at General Term reversed the judgment oh the 
 ground that the complaint appeared to present a cause of action 
 for negligence causing injury to the person, with a cause of 
 action for relief from a continuing nuisance. 
 
 Plaintiff appealed. 
 14 
 
210 Abbott's Select Cases on Code Pleading. 
 
 Lamming v. Galusha, 135 N. Y., 239. 
 
 9 The Court of Appeals reversed the decision of the General 
 Term. 
 
 Andrews, J. The question presented by the demurrer is 
 ■whether in an action for maintaining a nuisance in constructing 
 and operating a steam railroad in a public highway without 
 authority, brought by the owner of lands injuriously affected by 
 the road, and whose property rights are invaded thereby, in 
 which the plaintiff demands relief by way of injunction and 
 special damages to his real property, occasioned by the nuisance, 
 he may claim in the same action damages for a personal injury 
 sustained from the operation of the road, without negligence on 
 his part, from being thrown from a wagon while driving along 
 the highway on which the railroad was constructed, in conse- 
 quence of his horses being frightened by the noise of a passing 
 engine and train, and escaping from his control. 
 
 The demurrer is for an alleged misjoinder of these causes of 
 action. The allegations in the complaint relating to the personal 
 injury are not separated from the other allegations therein relat- 
 ing to the injury to the real property, so as in form to constitute 
 
 11 a separate cause of action, but are blended with them. But a 
 defendant is not deprived of the right to demur to a complaint 
 for misjoinder of causes of action distinct in themselves, and 
 which cannot be united because they are not separately stated or 
 numbered. (Golding v. Utley, 60 JST. Y., 427.) It is well settled 
 that any unauthorized and continuous obstruction to a public 
 highway constitutes a public nuisance (Denio, J., Davis ■y. Mayor, 
 etc., 14 N. Y., 524), and an action for damages lies in favor of 
 any person sustaining a special injury in his person or property 
 therefrom against the party who erected or maintained it. There 
 can be no doubt that the plaintiff could have brought an ordinary 
 legal action for damages for personal injury based upon the alle- 
 gations in the complaint. The complaint contains no allegation 
 of negligence on the part of the defendants in the operation or 
 management of the train at the time of the alleged injury. Nor 
 was this necessary. Negligence of the defendant is not ordinarily 
 an essential element in an action for damages sustained by reason 
 of a nuisance. The action is founded on the wrongful act in 
 creating or maintaining it, and the negligence of the defendant, 
 
I. Clauses of Action at Law. (3) Torts: — Negligence. 211 
 
 Lamming v. Galusha, 135 N. Y., 339. 
 
 unless in exceptional cases, is not material. (Congreve v. Smith, 13 
 18 ]Sr. Y., 82 ; Clifford v. Dam, 81 id., 56. The General Term 
 seems to have been under a misapprehension in supposing that 
 the complaint set out a cause of action for the physical injury of 
 the plaintiff, based on negligence. This was not the gravamen 
 of the complaint.) The complaint alleges the unlawful obstruc- 
 tion of the highway, and then follows an enumeration of the 
 injuries sustained by the plaintiff to his real property by reason 
 of the nuisance, and of the physical injury, stating time, place 
 and circumstances. If the sole cause of action was the personal 
 injury, the plaintiff would be confined to the ordinary action for 
 damages and could not maintain a claim for equitable relief by 
 injunction. In that case the legal remedy for the wrong siiffered 
 by the plaintiff would be complete and adequate. An action by 
 a private person to restrain the continiiance of a public nuisance 
 will only lie when the nuisance and the injury suffered are con- 
 tinuous, affecting the value of his property or the exercise of his 
 personal rights, or impairing his health and comfort in connec- 
 tion with the enjoyment of property. In such case to prevent 
 multiplicity of actions and to give final relief, he may invoke the 15 
 equitable power of the court. But the possibility that a traveler 
 injured on the highway by a railroad train unlawfully thereon 
 may, on some future occasion, be subjected to a similar injury, 
 does not entitle him to maintain an action for an injunction. But 
 the question here is whether a plaintiff having a cause of action 
 which entitles him to an injunction restraining the maintenance 
 and operation of the railroad by reason of its continuous inter- 
 ference with his rights of property may unite with the demand 
 for equitable relief by injunction and for damages for such inter- 
 ference, a claim for damages for a personal injury suffered on a ^" 
 particular occasion from the same wrongful appropriation and 
 use of the highway ; or in other words, whether he may unite in 
 a single action all his claims, legal and equitable, which arise in 
 consequence of the same general cause, viz., the nuisance main- 
 tained by the defendant. This is a question of procedure 
 governed by the course and practice of the court, or by the 
 statute, if made the subject of statute regulation. 
 We are of opinion that the causes of action were properly 
 
21'i Abbott's Select Cases on Code Pleading. 
 
 Lamming v. Galusha, 135 N. Y., 239. 
 
 17 united under § 484 of the Code of Civil Procedure, which 
 authorizes the plaintifE to unite in his complaint two or more 
 causes of action, whether such as were formerly denominated 
 legal or equitable, or both, in the cases specified, and among 
 others : " Sub. 9. Upon clahns arising out of the same transac- 
 tion or transactions connected with the same subject of action 
 and not included within one of the foregoing subdivisions." The 
 subject of the action in this case was the injury committed by 
 tjhe defendants in maintaining a public nuisance which subjected 
 the plaintiff to injuries specified, viz.: injury to real property 
 and personal injury. The injuries were distinct in character, 
 and while the injury to the real property was continuous, a 
 physical injury was consummated when first inflicted. But they 
 both proceeded in a general sense from the same wrong, the 
 unlawful obstruction of the highway by the defendant, and they 
 were all, we think, " transactions connected with the same sub- 
 ject of action " within the meaning of § 483, and may properly 
 be redressed in a single action. This conclusion is in harmony 
 with the general principle of equity jurisprudence, which aims 
 
 10 at complete and final relief in a single action in respect of all 
 matters between the same parties, growing out of the same gen- 
 eral transaction. It is supported by the significant language of 
 the court in Chapman v. City of Kochester (110 N. Y., 276), 
 which was an action to restrain the pollution of a stream and for 
 damages. Danforth, J., said : " Moreover the plaintiff is found 
 to have sustained a special injury to his health and property from 
 the same cause, and we find no reason to doubt that he is entitled 
 not only to compensation for damages thereby occasioned, but 
 also to such judgment as will prevent the further perpetration 
 
 ^^ of the wrong complained of." (See also Shepard v. Man. E'way 
 Co., 117 N. Y., 442.) These views lead to a reversal of the judg- 
 ment of the General Term and an afiirmance of the judgment of 
 the Special Term, with costs. 
 All the judges concurred. 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 213 
 Note on the Distinction between Negligence, Nuisance, etc. 
 
 NOTE ON THE DISTINCTION IN PLEADING, 
 
 BETWEEN NEGLIGENCE, NUISANCE, 
 
 AND WILLFUL ACT. 
 
 [From 35 Abb. N. C, 195.] At common law, in an action on the case 
 fov damages, the question whethei- the pleader regarded the cause of ac- 
 tion as negligence or nuisance was deemed of very little importance, if 
 any, so far as concerns the ground of recoverj"- at the trial (See Panton i\ 
 Holland, 17 Johns., 93 ; Adsit v. Brady, 4 Hill, 630) ; and the distinction is 
 not much explained in the books. But under the Code it frequently con- 
 fronts the practitioner. 
 
 The importance of this distinction, which cost the plaintiff his verdict 
 in the case in the text, is enhanced by several practical considerations. 
 
 I. The Limitation. — First, the period fixed by the statute of limitations 
 within whicli to bring actions for negligence may differ from that fixed for 
 nviisance or willful act. 
 
 Code Civ. Pro., § 383, subd. 5, provides that an action for a personal 
 injury, resulting from negligence, shall be commenced within three years 
 after the cause of action has accrued. 
 
 Code Civ. Pro., § 883, subd. 3, provides that an action for an injury to 
 property shall be commenced within six years after the cause of action 
 has accrued. 
 
 This distinction, made by the g-eneral statute of limitations, turns on 
 the thing injured, rather than on the cause of injury, although it is true 
 that in the one the ground is more commonly damag-e by neg'ligence, and 
 that in case of nuisance the damages are more commonly to property. 
 
 But the short limitation of actions against cities in this state of over 
 50,000 inhabitants (L. 1888, c. 801) is confined to personal actions for negli- 
 gence. 34 Abb. N. C, 293. The short limitation of actions against villag'es, 
 however, for personal injuries is not confined to those for negligence. 
 L. 1889, p. 608, c. 440. 
 
 (See Webber v. Herkimer, etc. Street Ry. Co. (1888), 109 N. Y., 311 ; s. c. 
 15 State Rep., 263, where a carrier's liability for an injury to a passenger 
 was held barred by the limitation for negligence, even though the action 
 be in form on contract. 
 
 And compare Maxson v. Del., L. & W. Ry. Co. (1889), 113 N. Y., 559 ; 
 s. c. 31 State Rep., 767.) 
 
 It may perhaps be a question which limitation applies when the struc- 
 ture or business is lawful, but becomes a nuisance by defendant's negli- 
 gence in managing it. 
 
 II. Notice or demand before suit. — Besides the familiar rule that as 
 against the mere continuer of a nuisance created by others notice is neces- 
 sary, it is important to observe that statutes in this state require presenta- 
 tion of claim to certain municipalities as a preliminary to some actions 
 founded on negligence, but do not require it in those founded on a nuis- 
 ance. 
 
214 Abbott's Select Cases on Code Pleading. 
 
 Note on the Distinction between Negligence, Nuisance, etc. 
 
 Frankel v. City of New York, 18 State Rep., 241 ; s. c. 3 N. Y. Supp., 
 294. Here, on the question of the necessity of the presentation of a claim 
 to the city before suit, it was urged on behalf of the plaintiff that the 
 action was not for negligence, but for damages caused by the existence of 
 a nuisance ; and that, therefore, the act of 1886 could not apply, as in 
 terms it is limited to actions arising from negligence. Patterson, J.,, 
 said : " The complaint does not sustain this contention. It is not charged 
 that the alleged nuisance was created by the city, or its officers or em- 
 ployees, but that the city negligently suffered it to remain after notice of 
 its existence. The city is not liable for injuries caused by obstructions 
 placed in the highway by third parties until after notice, actual or con- 
 structive. Hume V. Mayor, etc., 47 N. Y., 639. Upon such notice being 
 given, it becomes the duty of the city to remove the obstruction, or cause 
 it to be removed. Failure to do this is negligence. As against the other 
 defendants, a cause of action is set forth, based upon a placing of a nui- 
 sance in the highway. Their liability arises independently of negligence. 
 Congreve v. Smith, 18 N. Y., 79 ; Congreve ■;;. Morgan, id., 84 ; Irvine v. 
 "Wood, 51 id., 234. But as to the city it would be responsible on the theory 
 of its negligence.'' 
 
 III. Legal or equitable relief. — The remedy afforded for injuries inflicted 
 by negligence does not, as does that for nuisance often and for willful acts 
 sometimes, include equitable relief. The only remedy for negligence is 
 damages recoverable in an action of a legal nature. Nuisance is relieved 
 against, also, in a common law action for abatement and in an equitable 
 action for damages, injunction, or abatement, or all, as the case may be. 
 
 IV. Right of trial by jury. — As a consequence there is a somewhat ob- 
 scured distinction as to the right of trial by jury. An action for negligence 
 is always thus triable as matter of right. An action for nuisance, if framed 
 as an equitable action, is not within the constitutional right of trial by 
 jury. Compare Parker v. Laney, 1 Supm. Ct. (T. & C), 590 ; rev'd in 58 
 N. Y., 469 ; Hubbard v. Russell, 34 Barb., 404 ; Brown v. Woodvvorth, 5 id., 
 550 ; Waggoner v. Jermain, 3 Den., 306 ; Van Bergen v. Van Bergen, 3 
 Johns., Ch. 373; Peck i;. Elder, 3 Sandf., 139 n; Neward v. Lee, 3 Sandf., 
 281; Ellsworth v. Putnam, 16 Barb., 565; Corues v. Harris, 1 N. Y., 238. 
 The right is given by statute in this state (Code Civ. Pro., § 968) in actions 
 " for a nuisance," without any express qualification. But the courts con- 
 strue this clause as applicable only to the actions for such relief as might 
 have been had at common law ; and if the action is framed for an injunc- 
 tion, a jury trial is no more matter of right than it was before the Code. 
 Cogswell V. N. Y. & New Haven R. R. Co., 105 N. Y., 819 (engine-house 
 adjoining a city residence) ; Olmsted i\ Rich, 6 N. Y. Supp., 836 (keeping 
 bees). 
 
 V. Contributory negligence. — The defence available in an action for 
 negligence, that the plaintiff's negligence concvu-red in producing the 
 injury complained of is not available in an action for a willful wrong. 
 
 VI. Tests of the distinction between the causes of action. — There are 
 many cases in which the practitioner may well pause to consider whether 
 
I. Causes of Action at Law. (3) Torts: — Negligence. 215 
 
 Note on the Distinction between Negligence, Nuisance, etc. 
 
 he should allege negligence or nuisance. The owner of a house opens the 9 
 street to lay his water pipes or construct his coal hole, and omits to guard 
 and light the excavation ; should the gist o£ an action for an injury sus- 
 tained by a passer-by, be nuisance or negligence ? Is the pleader bound 
 under the doctrine of the case in the text to indicate his theory of the 
 •action? Is it not enough that he state the facts as held in Laflin Rand 
 Powder Co. v. Tierney (111.), 33 Northeast Rep., 389, or must he choose his 
 ground in the law also, and commit himself to it in the complaint ? The 
 city builds a sewer which dischai-ges sewage directly on plaintiff's lot. 
 Must plaintiff indicate in his pleading whether he claims for negligence, 
 as Hardy v. City of Brooklyn, 90 N. Y., 485, or nviisance or for trespass, 
 as in Seifert v. City of Brooklyn, 101 N. Y., 136 ; affi'g 15 Abb. N. C, 97 ; 
 . and Chapman v. City of Rochester, 109 N. Y., 301; affi'g 33 Weekly Dig., 434. 10 
 
 (Compare Ehrgott v. Maj'or, etc., of N. Y., 96 N. Y., 364 ; rev'g 66 How. 
 Pr., 161, Cohen v. Mayor, etc., of N. Y., 113 N. Y., 533 ; Vogel v. Mayor, 
 etc., of N. Y., 93 N. Y., 10). 
 
 Or is the delict of the owner a nuisance, and that of the municipality in 
 not removing it negligence? (Compare People ex rel. Bentley v. Mayor, 
 etc., 18 Abb. N. C, 133 — where mandamus was issued to compel the 
 authorities to remove a sidewalk obstruction because it was a nuisance — 
 with Kuntz v. City of Troy, 104 N. Y., 344, wliere the city was held liable 
 for negligence to a person injured by such an obstruction.) 
 
 May the same cause of injury be a nuisance considered as a cause of 
 action against the creator of it, and only negligence as a cause of action 
 against one who neglected the duty of interfering to remove it? If so an H 
 excavation in the highway may require the action against tlie maker of it 
 to be for nuisance, but an action against the liighway officer having 
 funds, or the town or city, to be for neg-ligence. 
 
 In Cleveland (City of) i'. King, 133 U. S., 395, the Supreme Court of the 
 United States cut across this distinction, putting the recovery against a 
 municipal corporation for injury caused by an obstruction created by 
 private individuals, upon the ground of liability for negligence ; but 
 citing as authority Cardington v. Frederic, 46 Ohio, where it was held 
 that such an action was " an action for a nuisance." 
 
 Dickenson v. Mayor, etc., of N. Y., 93 N. Y., 584; affi'g 38 Hun, 354, 
 accords with the language of tlie Supreme Court in Cleveland v. King, 
 above cited. 
 
 Some minor distinctions are traceable, which may aid sometimes in 
 determining these questions. The term nuisance implies something of 
 continuity, persistence of conduct, or permanence of position or structure. 
 The shock of a single blast by a contractor using too heavy a charge would 
 be regarded as negligence ; the jar of a continuity of shocks caused by a 
 steam engine too heavy for the building makes the running of the engine 
 a nuisance. A single shriek of a locomotive whistle if injurious, is action- 
 able on the ground of negligence, if at all. The customary and habitual 
 shrieking in a crowded city is actionable as a nuisance. The same dis- 
 tinction is observable in respect to willful wrong. A single aspersion may 
 
 12 
 
216 Abbott's Select Cases on Code Pleading. 
 
 Note on the Distinction between Negligence, Nuisance, etc. 
 
 13 be slander ; habitual aspersion, whether slanderous or not, may be a nuis- 
 ance, as constituting a common scold. 
 
 It is not strange that writers on nuisance have declared the word to be 
 undeflnable, so shadowy is the border-land between these several classes 
 of wrongs. But a careful examination of the representative cases cited 
 below will justify us in saying that the word as now used in the law may 
 be Justly defined as a continuing use of property or covu-se of conduct, 
 which, even if it would be rightful wei-e the act done an isolated one, is 
 by reason of the proximity of others, a violation of the duty of good 
 neighborhood, no matter whether it be careful, negligent or willful. 
 
 It will aid in solving such questions as these to consider what are the 
 essential elements in each cause of action. Actionable negligence con- 
 
 li sists in the omission to fulfil a duty of care. The complaint must allege 
 facts which show Ihat defendant was under a duty to take some degree 
 of care in view of danger to plaintiff's property or person ; and that he or 
 his servants failed to do so to plaintiff's injury. If this be shown, intent 
 is not material except on the question of damages. The right of recovery 
 exists whether the omission was inadvertent or willful, or whether it was 
 inadvertent on the part of the employer and willful on the part of the 
 servant. It is true that some authorities have held that if willfulness is 
 alleged there can be no recovery for negligence ; but the better opinion 
 is that if facts showing an omission of due care be alleged and proved the 
 addition of an unproved allegation of willfulness does not vitiate. 
 
 Nuisance on the other hand is a vise of property or a course of conduct 
 
 •1-5 which violates a duty of good neighborhood ; and negligence and willful- 
 ness are alike immaterial, unless it may be on the question of damages. 
 A bone boiling- establishment in a remote and isolated place is rightful ; 
 but if the town of residences grows out to it, it may be a duty of good 
 neighborhood to cease the use of the place for such offensive work ; and 
 the fact that the owner is as careful as possible, and has no intent to 
 injure others will not justify the continuance of a process which prox- 
 imity has made noxious to the community. 
 
 The law of negligence is growing up out of the increasing duty of care 
 upon all persons in the increasingly crowded communities and increas- 
 ingly dangerous instrumentalities of modern times. The law of nuisance 
 is growing up out of the increasing necessary restrictions on otherwise 
 
 •^" lawful conduct and uses of property in such community. Negligence 
 usually consists in the manner of doing a thing, whether the thing in 
 itself be lawful or unlawful. Nuisance consists in the thing itself con- 
 sidered in its proximity to other persons, whether the manner of it be 
 careful or careless. 
 
 VII. Examination to enable to frame complaint.— For the right to 
 examine defendant, to enable plaintiff to frame his complaint, see 2 Abb. 
 New Pr. & F., 419. 
 
 VIII. Amending at the ti-ial.—The doctrine of the text that these are 
 different causes of action precludes amending from one to the other at 
 the trial. 
 
I. Causes of Action at Law. (3) Torts : — ^Kegligence. 217 
 Reining v. City of Buffalo, 102 N. Y., 308. 
 
 But if one is suflficiently alleged, other allegations connected therewith 17 
 and not necessary to tliat cause of action, but appropriate and even suffi- 
 cient to establish another cause of action, may be allowed to be struck 
 •out at the trial. 
 
 Thus in an action for nuisance alleg-ations of a trespass may be got rid of. 
 
 And in action for negligence allegations of willful wrong may be 
 ■dropped. 
 
 For cases selected for their aptness in illustrating some of these distinc- 
 tions, see 25 Abb. N. C, 199. 
 
 EEmiJSG V. CITY OF BUFFALO. 
 
 Nev} York Court of Appeals, 18S6. 
 
 [Reported in 102 N. Y„ 308.] 
 
 The complaint in an action against the city of Buffalo must contain an 
 allegation of the previous presentation of the claim declared on, to 
 the Common Council, and that forty days had expired since such 
 presentation. 
 
 The provision of the charter that no action against the city shall be 
 broug'ht until that time has elapsed since such presentation, creates a 
 condition precedent to the commencement of an action, and makes the 
 presentation and lapse of time a part of the cause of action.* 
 
 The Legislature have power to impose such a condition. 
 
 'Compliance with this condition must be alleged and proved. 
 
 Action for damages caused by change of grade. 
 
 The allegations of the complaint were : 
 
 That the defendant, the city of Buffalo, is a municipal corpora- 
 tion, duly organized, created and existing under and by virtue of 
 an act of the Legislature of the State of New York, entitled " An 
 Act to Revise the Charter of the City of Buffalo," passed April 
 28, 1870, and the various acts amendatory thereof ; and that the 
 defendant, the New York, Lackawanna & Western Railway Com- 
 pany, is a corporation duly organized and existing under the laws 
 of the State of New York as a railroad corporation, and as such 
 is engaged in constructing and operating a railroad in the city of 
 Buffalo. 
 
 That Commercial and Water streets and Maiden Lane, herein- 
 
 * See note on tbe effect of statutes prohibiting the bringing of an action except upon the 
 perrormance of some condition, such as demand presentation of claim, or audit, in 24 Abb., N. 
 C, 293. 
 
218 Abbott's Select Cases on Code Pleading. 
 
 Reining v. City of Buffalo, 103 N. Y., 308. 
 
 after mentioned, are and for many years past have been public 
 streets, duly created, laid out and existing in tbe city of Buffalo ; 
 and that it is the duty of the defendant, the city of Buffalo, 
 under the said act of incorporation and the various acts amenda- 
 tory thereof, " to prevent and abate all nuisances"' in said city, 
 " to prevent encroachments upon projections over, injury to or 
 the encumbering of the streets, alleys and public grounds," of 
 said city, "and to abate all nuisances therein;" and that for 
 such purposes and the performance of such duty, in and by such 
 act of incorporation and the various acts amendatory thereof, it 
 is given full power and authority. 
 
 That for many years last past the plaintiffs have been, and 
 that they now are, the owners in fee of the following described 
 premises, situate in said city, that is to say : [Description of 
 jyremises.~\ 
 
 That within the last four months the defendant, the Wew 
 fork, Lackawanna & Western Railway Company, acting with 
 the consent and authority of the defendant, the city of Buffalo, 
 given by and through its Common Council, on or about the 
 thirteenth day of February, 188i<, has entered upon the Commer- 
 cial and Water streets aforesaid, the said being paved streets of 
 said city, and unlawfully torn up the pavements therein, and 
 constructed in the same a rampart or embankment of earth and 
 stone of about the height of eight feet, suppoi-ted in its place by 
 a wall of masonry; which rampart or embankment occupies 
 about three-fourths of the entire carriageway, in and along the 
 entire front of the plaintiff's property aforesaid, and reduces the 
 width of such carriageway in and along the entire front of the 
 plaintiffs' premises aforesaid to the width of about ten feet, 
 narrowing the same so much that it is impossible for wagons and 
 vehicles of the size commonly used upon the streets of said city 
 to pass one another on said streets in front of the plaintiffs' 
 premises aforesaid, when traveling in opposite directions. 
 
 That tlie plaintiffs' premises aforesaid are situate in one of the 
 busiest portions of said city, and that for many years past, while 
 the plaintiffs have been the owners thereof, the same have been 
 occupied by a large and valuable four-story brick building, used 
 by the plaintiffs as a store and dwelling house, and that they 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 219 
 
 Reining v. City of Buffalo, 103 N. Y., 308. 
 
 have carried on therein for many years the business of selling 
 groceries and provisions and other goods ; and that such business, 
 until the construction of such rampart or embankment, was large 
 and profitable to the plaintiffs ; and that since the construction 
 of such rampart or embankment, and in consequence thereof, the 
 business aforesaid has been greatly injured, diminished and rend- 
 ered much less profitable than before. 
 
 That by reason of the construction of such rampart or embank- 
 ment aforesaid, not only is the passage of people in wagons and 
 other vehicles in front of the plaintiffs' premises aforesaid 
 obstructed and interfered with, but the sidewalks in front of the 
 same are thereby rendered liable to be blocked up and encum- 
 bered in the winter season by snow drifting into the space 
 between such rampart or embankment and the plaintiifs' build- 
 ing aforesaid. 
 
 That prior to the construction of such rampart or embank- 
 ment, the plaintiffs' premises aforesaid were of the value of 
 twenty-five thousand dollars and upwards, and by reason of such 
 construction they have been reduced in value at least twenty 
 thousand dollars. 
 
 The plaintiffs further state that such rampart or embankment 
 so constructed in said streets constitiites and is an encroachment 
 and incumbrance thereon, and a nuisance ; that the plaintiffs are 
 the owners of the fee of said streets as far as from the front of 
 their premises aforesaid to the outer line of said street ; and that 
 the defendant, the New York, Lackawanna & Western Eailway 
 Company, in the construction of said rampart or embankment, 
 has taken the same for the purpose of its railroad, without any 
 proceeding for the condemnation thereof, and without paying to 
 the plaintiffs any compensation therefor. 
 
 And the plaintiffs further state that since the construction of 
 said rampart or embankment in said streets and the obstruction 
 of and encroachment thereon, in consequence thereof, the 
 defendant, the city of Buffalo, has failed to remove the same or 
 to attempt such removal. 
 
 Wheeefoee the plaintiffs claim judgment against the defend- 
 ants for the sum of twenty thousand dollars and interest thereon 
 from the date hereof, besides the costs of this action. 
 
 10 
 
220 Abbott's Select Cases on Code Pleading. 
 
 Reining v. City of Buffalo, 103 N. Y., 308. 
 
 11 Defendant clemui'red on the ground that the complaint did 
 not allege presentation of the claim, and that forty days had 
 expired before suit brought. 
 
 The Court below granted judgment for defendant on the 
 demurrer. 
 
 The General Term, affirmed it without opinion. 
 
 The Court of Appeals affirmed the judgment. 
 
 RuGEE, Ch. J.: The sole question presented by this appeal is 
 
 12 whether the complaint, in an action against the city of BufEalo, 
 should contain an allegation of the previous presentation of the 
 claim declared on to its Common Council, and that forty days 
 had expired since such presentation. The clause of the city 
 charter requiring such a proceeding reads as follows : " No 
 action to recover or enforce any claim against the city shall be 
 brought until the expiration of forty days after the claim shall 
 have been presented to the Common Council in the manner and 
 form provided." (§ Y, tit. 3. chap. 519, Laws of 1870.) 
 
 The inquiry is whether this provision was intended to operate 
 as a condition precedent to the commencement of an action, or 
 simply to furnish a defense to the city in case of an omission to 
 make such demand. "We think the plain language of the statute 
 excludes any doubt on the subject. 
 
 It absolutely forbids the prosecution of any action until the 
 proper demand has been made. It attaches to all actions 
 whatsoever, and by force of the statute becomes an essential 
 part of the cause of action, to be alleged and proved as any other 
 material fact. It does not purport to give the city a defense 
 14 dependent upon an election to iise it, but expressly forbids the 
 institution of any suit until the preliminary requirements have 
 been complied with. The plain intent of the requirement was 
 to protect the city from the costs, trouble and annoyance of legal 
 proceedings, unless after a full and fair opportunity to investi- 
 gate and pay the claim, if deemed best, they declined to do so. 
 
 It is not in such a case necessary that a thing required should 
 constitute one of the elements of a common law action, for if 
 the Legislature have made even a step in their remedy a condi- 
 tion of its prosecution, it is essential not only that it should be 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 221 
 
 Reining v. City of Buffalo, 102 N. Y., 308. 
 
 taken, but that it should be affirmatively alleged and proved 15 
 by the plaintiff. It is competent for them to attach a 
 condition to the maintenance of a common law action as 
 well as one created by statute, and, when they have done 
 so, its averment and proof cannot safely be omitted. The 
 Court, in Nagel v. City of Buffalo (34" Hun, 1), in considering 
 the statute in question, seemed to think its requirement 
 was in the nature of a condition subsequent or proviso, 
 having no necessary connection with the proper statement of a 
 cause of action, but we think they erred in their conception of 
 the nature of the provision. Neither its language or object is 
 analogous to those provisions authorizing the defense of the 
 statute of limitation, or other special and particular defenses 
 constituting conditions subsequent, which may or may not occur 
 in particular cases, and must, therefore, be averred to authorize 
 the court to take cognizance of them. Here the requirement 
 exists, independent of proof, in every case, and is made to 
 precede the institution of any suit whatever. Its performance 
 cannot for any purpose be presumed, but must, to be availed of, 
 be alleged and proved. The language is "that no action" 17 
 " shall be brought" until, etc., and constitutes an express prohibi- 
 tion against the action, until performance of the condition. A 
 non-compliance with this requirement can be raised by the 
 defendant, at any stage of the action, when it is called upon to 
 act in the case. 
 
 The general rules of pleading applying to such cases are 
 elementary and hardly need citations to illustrate them. 
 
 It was said by Judge Denio in Howland v. Edmonds (24 
 N. Y., 307) : " If the defendant's liability depends upon the per- 
 formance of a condition precedent, it is very plain that no action 
 will lie until it be performed, and a request or demand of the 
 thing claimed may and frequently does constitute such a condi- 
 tion to the obligation of the defendant. When that is the case, 
 such demand before suit brought must be averred and proved to 
 enable the plaintiff to maintain the action." The rule is also 
 illustrated by the decision in Graham v. Scripture (26 How. Pr. 
 501), where, in an action upon a judgment, which was prohibited 
 by statute, except upon leave of the court iirst had, it was held 
 
222 Abbott's Select Cases on Code Pleading. 
 
 Reining v. City of Buffalo, 102 N. Y., 308. 
 
 19 that tlie allegation of siich leave must be averred and proved by 
 the plaintiff. It was held in Taylor v. Mayor, etc. (83 N. Y., 
 625), that a similar provision in the charter of New York con- 
 stituted a condition to the maintenance of an action against 
 the city, although in that case it was also held that it did not in 
 terms apply to the use of a claim by way of set-off, or recoup- 
 ment in an action brought by the city against the claimant. The 
 case of Porter v. Kingsbury is analogous to the case in hand. 
 There suit was brought upon an undertaking on appeal which 
 the statute directs shall " not be maintained " until ten days 
 after service of notice of the entry of judgment of afErmance 
 upon the appellant. It was held that performance of the 
 requirement was a condition precedent and must be alleged in the 
 complaint. (§ 1309, Code of Civ. Pro.; Porter v. Kingsbury, 5 
 Hun, 597; afhrmed 71 N. Y., 588.) There the act required to 
 be performed constituted no part of the cause of action, but was 
 provided, as in this case, to shield the parties liable from cost 
 and trouble in case of their willingness to pay the claim without 
 suit, after notice given. It is immaterial whether a condition be 
 
 21 imposed in the statute giving a right of action, or be provided 
 by contract, or exists by force of some principle of common or 
 statute law, the complaint must, by the settled rules of pleading, 
 state every fact essential to the cause of action as well as those 
 necessary to give the court jiirisdiction to entertain the particu- 
 lar proceeding. 
 
 The dicta in Minick v. Troy (83 N. Y., 514, 516) with refer- 
 ence to a similar requirement, that it was necessary for the 
 plaintiff to " show in the first instance that the claim for which 
 the action was brought was presented to the comptroller," 
 
 "-" accords with these views, and is further supported by the case 
 of Fisher v. Mayor, etc., (67 N. Y., 73), where the liability arose 
 under the statute authorizing the city to acquire lands by right 
 of eminent domain. The act there provided for compensation 
 by the city, and authorized suit to be brought therefor upon an 
 award, and "after application first made to the mayor." etc., 
 " for payment." It was held that this requirement constituted 
 a condition precedent to the maintenance of an action. The 
 liability to pay in that case existed by force of the Constitution, 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 223 
 
 Mayor, etc., of New York v. Dimmick, 20 Abb. N. C, 15. 
 
 and tlie statute only regulated the method by which the amount 23 
 was to be determined, and the mode of enforcing payment 
 thereof. The case does not in principle seem to be distinguish- 
 able from that under discussion. 
 
 We also referred to a number of decisions in the courts of our 
 sister states upon statutes quite similar to that of the Buffalo 
 charter, in which the want of an allegation of presentation and 
 demand has been held demurrable. (Jones v. Minneapolis, 31 
 Minn. 230 ; Benware v. Pine Yalley, 53 "Wis., 52*7 ; Maddox v. 
 Kandolph Co., 65 Ga., 216 ; Marshall Co. v. Jackson Co., 36 Ala., 24 
 613.) We agree with the conclusions reached in those cases. 
 
 The judgment appealed from should be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 MAYOR, ETC., OF NEW YOEK v. DIMMICK. 
 
 iY Y. Sujpreme Court, Special Term, 1887. 
 [Reported in 20 Abb. N. C, 15.] 
 
 1. A municipal corporation may maintain an action against a property 
 
 owner for damages sustained by reason of being compelled to pay a, 
 judgment recovered against it for an injury caused by the defective 
 condition of the 
 property owner* 
 
 2. A complaint by the city against the property owner, alleging that the 
 
 person injured commenced an action against the plaintiff, and re- 
 covered a judgment; and that the injuries for wliich the judgment 
 was obtained were caused by the negligent act of the defendant, is 
 sufficient, on demurrer although it does not allege all the facts whioli 
 would justify a recovery by the person injured against the city, such 
 as notice to the city of the defect.f 
 
 Demurrer to the complaint for insufficiency. 
 
 *Tlie generally accepted theory of these actions by the one liable ^er mfwtuniam to recover 
 ■over from the one liable by his own fault is subrogation, that is to say, that they are actions for 
 tort, in which the recovery against plaintiff is the measure of damages, rather than actions on 
 constructive contract for money paid to his use. See City of Rochester v. Campbell, 153 N. Y., 
 405 ; rev'g 55 Hun, 138. Compare Bailey v. Bussing, 88 Conn., 455, and Bank of Utica v. Childs 
 6 Cow., 338, and note in 30 Abb. N. C, 180. 
 
 tThe question of the effect of the former judgment as evidence is or may be a quite dif- 
 ferent question. See City of Cohoes v. Morrison, 4a Hun, 216. 
 
 The former judgment may be conclusive in its own favor in the second action, so far as it 
 establishes the liability of the city, but it does not necessarily conclusively establish the 
 Jiability of the present defendant, although he had notice to defend. 
 
224 Abbott's Select Cases on Code Pleading. 
 
 Mayor, etc. of New Yox-k v. Dimmick, 20 Abb. N. C, 15. 
 
 The complaint alleged that the defendant had negligently- 
 allowed a conductor pipe on a house owned and managed by 
 him to become and remain out -of repair, so that the water 
 gathered therein, was poured upon the sidewalk, both from the 
 spout and leaks in that part of the pipe which was attached to 
 the house ; that in February, 1885, the water, so poured upon 
 the walk, became frozen and rendered the highway uneven and 
 dangerous ; that by reason of the unsafe condition of the walk, 
 one Koerner suffered injuries, for which he recovered damages 
 from the city in a suit brought in the Supreme Court ; that the 
 city incurred certain expenses in the defence of said action ; 
 that payment of the judgment and expenses was demanded but 
 refused ; and the relief demanded was for the amount of the 
 said judgment and the amount expended by the city in said 
 action. 
 
 The defendant demurred to the complaint, upon the ground 
 that it did not state facts sufficient to constitute a cause of 
 action. 
 
 Ingeaham, J. The facts alleged in the complaint and 
 admitted by the demurrer establish that the defendant main- 
 tained a nuisance in the public street of the city of Kew York, 
 and that, in consequence of such wrongful act, plaintiff sus- 
 tained damage by being compelled to pay a judgment recovered 
 against it by one Koerner, and for the amount of such damages 
 the complaint demands judgment. 
 
 In Village of Port Jervis v. First National Bank (96 N. Y., 
 550, 555 ; aff'g 31 Hun, 107), it was held, that "this liability 
 grows out of the affirmative act of the defendant, and renders 
 him liable not only to the party injured, but also immediately 
 liable to any party who has been damnified by his neglect. 
 Liability in such case is predicated upon the negligent character 
 of the act which caused the injury, and the general principle of 
 law which makes a party responsible for the consequences of his 
 wrongful conduct." 
 
 The foundation of the liability, therefore, depends upon the 
 wrongful act of the defendant. If in consequence of his negli- 
 gence the street became unsafe, he would be responsible to any 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 225 
 
 Hawxhurst «. Mayor, etc., of New York, 15 Abb. N. C, 181. 
 
 person injured, whether the city had notice of the unsafe condi- 
 tion of the street or not. The plaintifE stands in the position of 
 having been compelled to pay the damages caused by the wrong- 
 ful act of the defendant ; and, having been compelled to pay 
 such damages, it asks to recover from the person whose wrongful 
 act caused the injury the amount that it has been compelled. ta 
 pay ; and the wrongdoer cannot complain because the complaint 
 does not allege all the facts that would justify a recovery against 
 the plaintifE so long as the complaint alleges the facts that show 
 that the defendant is liable for the injuries for which the plaint- 
 ifE was made liable. 
 
 The allegation that the person injured commenced an action 
 against the plaintiff and recovered a judgment, and that the 
 injuries for which the judgment was obtained were caused by 
 the negligent act of the defendant, is sufficient. 
 
 PlaintifE should, therefore, have judgment on the demurrer, 
 with costs, with leave to the defendant to withdraw the de- 
 murrer and answer within twenty days on payment of costs. 
 
 HAWXHURST v. MAYOE, ETC., OF NEW YORK. 
 
 New York Supreme Court, Special Term, 1885. 
 
 [Reported in 15 Abb. N. C, 181.] 
 
 Where two municipalities are jointly chargeable with the duty of main- 
 taining a bridge or highway, an action will lie against either on an, 
 allegation of the joint duty and joint neglig'ence. 
 
 Demurrer to complaint, on the ground of a defect of parties 
 defendant. 
 
 This action was brought against the Mayor, Aldermen and 
 Commonalty of the city of New York to recover damages for 
 an injury sustained by the plaintiff, in consequence of a defect 
 in the bridge known as Williams bridge, which it was the joint 
 duty of the city and of the county of Westchester to main- 
 tain. 
 
 The contents of the complaint are fully stated in the opinion. 
 15 
 
226 Abbott's Select Cases on. Code Pleading. 
 
 Hawxhurst v. Mayor, etc., of New York, 113 Abb. N. C, 181. 
 
 Lawrence, J. It is too well settled to be a question that, for 
 a personal injury occasioned by the negligence of several persons, 
 there is a separate liability as well as a joint one, and that the 
 person injured may at his election sue both or either of the 
 wrongdoers. 
 
 In this case it is alleged that the defendants were jointly with 
 'Certain other parties charged and chargeable with the duty of 
 maintaining, rebuilding, repairing and caring for a certain bridge, 
 inown as "Williams bridge, across the river Bronx, which in part 
 forms one of the boundaries of said city of New York, and of 
 keeping the said bridge and the approaches thereto in a good 
 and safe condition. 
 
 That in the latter part of the year 1881, the defendants, in 
 ■discharge of the aforesaid duty, jointly with said other parties, 
 caused said bridge to be repaired and rebuilt, and in so doing 
 caused the flooring and timbers of said bridge to be removed 
 and the said bridge and its approaches otherwise made unsafe and 
 unfit for passage, and were there charged and chargeable with 
 the duty of erecting and maintaining in the said public street, 
 road and highway, at the said approaches to said bridge, suitable 
 and sufiicient barricades, lights, etc., so that persons lawfully 
 passing over said public street, road and highway, in the night 
 time, might be warned of the unsafe condition of the bridge 
 and its approaches. That the defendants, jointly with said other 
 parties, wholly failed in the said last mentioned duty, and, on or 
 about December 24, 1881, negligently and carelessly suffered 
 and allowed the said bridge and the easterly approach thereto, to 
 be and remain wholly open and unprotected and without any 
 barricade, light, etc., for the warning or protection of travelers, 
 as aforesaid. That the plaintiff, in the evening of December 21, 
 1881, in the night time, was lawfully passing along said public 
 street, road or highway, into the city of New York, from the 
 county of Westchester, in entire ignorance that said bridge or 
 its approaches were in any other than a perfectly safe condition, 
 and open and suitable and safe for travel, and by reason of the 
 said negligence of the defendants, the plaintiff, without any 
 fault or negligence on his part whatsoever, fell off and over the 
 said easterly abutment of said bridge, etc., and was thereby 
 
I. Causes of Action at Law. (3) Torts : — Negligence. 227 
 
 Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C, 181. 
 
 greatly damaged. The defendants demur on the ground that 
 there is a defect of parties defendant, in that the parties alleged 
 in paragraph second of the said complaint to be jointly charge- 
 able with the defendants with the duty of maintaining the 
 bridge therein referred to, are not made parties to the action. 
 
 I am of the opinion that the demurrer should be overruled. 
 
 The duty of the city of New York to maintain and keep in 
 repair the bridge in question jointly with the county of West- 
 chester, is imposed by Chapter 163, of the Laws of 1880, which 
 provides that the public bridges over the Bronx river, between 
 the city and county of New York and the county of Westchester, 
 which are now built or which may hereafter be built, shall be 
 built and maintained and kept in repair by the said city and 
 county of New York and the county of Westchester, and the 
 expense of building or repairing any of said bridges shall be a 
 joint charge upon the city and county of New York and the 
 county of Westchester. It will be perceived from the allegation 
 of the complaint, that the work of repairing had been entered 
 upon by the defendants jointly with other parties, and that the 
 ■alleged accident to the plaintiff arose from the negligent per- 
 formance of that duty. I find nothing which takes this case oiit 
 of the operation of the general principle laid down in the cases 
 heretofore cited, and the numerous other cases to the same effect, 
 which are to be found in the books. Assuming that both the 
 authorities of Westchester county and the authorities of the city 
 •of New York were guilty of negligence, they were either 
 jointly or severally liable at the option of the injured party. In 
 the language of Allen, J., in Barrett v. Third Ave. R. B. Co. 
 (45 N. Y., 631) : " If both were negligent in a manner and to a 
 degree contributing to the result, they are jointly and severally 
 liable." 
 
 I have examined the eases referred to by the learned counsel 
 to the corporation, and do not think there is anything contained 
 in them which should induce me to hold that this case should 
 not be disposed of upon the authority of the cases heretofore 
 cited. The case of Theall v. Yonkers (21 Hun, 265, 267), is 
 cited by the counsel to the corporation in support of the demur- 
 rer. But that case, which was a case in relation to a bridge be- 
 
228 Abbott's Select Cases on Code Pleading. 
 
 Hawxhurst v. Mayor, etc., of New York, 15 Abb. N. C, 181. 
 
 10 tween the city (formerly town) of Yonkers and the town of 
 East Chester, was disposed of upon two grounds, the first of 
 which was, that if it was the defendant's duty to keep the bridge 
 in repair, the evidence showed and the referee had found tliat 
 the defendant was not chargeable with any notice of the defect 
 in the bridge which caused the accident. The second point was 
 that, under the Act of 1841, Chapter 225, as amended by the 
 Laws of 1857, ch. 383, the city and town were jointly liable, and 
 such liability could only be enforced by action against the mem- 
 bers of the Common Council of Yonkers and the Commissioners 
 of Highways of East Chester, jointly. It is plain from an exami- 
 nation of the case, that the decision of the second point was not 
 necessary for the adjudication of the rights of the parties, the 
 case having already been disposed of in favor of the defendant 
 upon the first point. If, however, that case is to be regarded as 
 going to the extent which is claimed by the counsel to the cor- 
 poration, it seems to me to be opposed to the decisions of the 
 court of last resort already referred to, and upon that point I 
 cannot follow it as an authority. 
 
 The demurrer will, therefore, be overruled. 
 
I. Causes of Action at Law. (3) Torts : — Cou version. 229 
 Berney v. Dvexel, 33 Hun, 84. 
 
 BEENEY V. DEEXEL. 
 
 Wew York Supreme Court, First Department, ISSlf,. 
 
 [Reported in 33 Hun, 34 ; affirmed in 33 Hun, 419.] 
 
 1. In an action by the residuarj' legatees of a testator dying domiciled in 
 France, for the conversion by defendants of property possessed by 
 him at his death, an allegation " that, under and by virtue of the laws 
 of France," the title to the property in question vested immediately 
 upon testator's decease in the plaintiffs, is an allegation of title as a. 
 fact, not as a legal conclusion, and sufficiently shows ownership in 
 plaintiffs. 
 
 3. Even if an allegation that by the will, etc., defendants "had legal 
 notice of the illegality and invalidity of the title of the defendants' 
 assignor " to the property, be a mere conclusion of law, and insufficient 
 as an allegation of notice, so that proof of demand and refusal would 
 be necessary to maintain the action — yet, if followed by an allegation 
 that the defendants have converted the property to their own use, the 
 conversion is sufficiently alleged as against demurrer ; for under the 
 latter allegation plaintiffs have a right to prove a demand and refusal 
 or other facts to show an actual conversion. 
 
 3. Pleadings are not now to be strictly construed against the pleader ; and 
 
 allegations which sufficiently point out the nature of the pleader's 
 claim are sufficient on demurrer, it, under them, he would have a right 
 on the trial to give all evidence necessary to establish the claim. 
 
 4. The provision of Code Civ. Pro., § 488 — making a misjoinder of parties 
 
 plaintiff, a distinct ground of demurrer, — and § 490 — requh-ing a 
 demurrer to distinctly specify the objection or ground of demurrer, 
 and a demurrer for misjoinder of parties plaintiff (and for two other 
 grounds) to point out specifically the defect relied on, —an objection 
 that one of the plaintiffs has no right of action can no longer be taken 
 under a demurrer merely for not stating facts sufficient to constitute 
 a cause of action. 
 
 5. To raise such objection, the demurrer must be for misjoinder of plaint- 
 
 iffs, and specify the plaintiff who, as defendant contends, has no cause 
 of action. 
 
 Action for conversion. 
 
 The allegations of the complaint were : 
 
 First. — That on or about the second day of November, 1864, 
 Eobert Berney, who was then domiciled and resided in Paris, 
 made his last will and testament, bearing date on that day, 
 executed at Croydon, in England, in conformity with the laws 
 
230 Abbott's Select Cases on Code Pleading. 
 
 Berney v. Drexel, 33 Hun, 84. 
 
 of Great Britain, being in the words and figures following, to 
 wit : 
 
 [Here followed a copy of the will and of a codicil.'\ 
 The second paragraph stated testator's death and the relation- 
 sh ips of the plamtvff's to hi in and added : 
 
 That the said Robert Berney left him surviving no nephews 
 or nieces, children of his said brother and sisters, except the 
 plaintiffs above named, and John Berney and James Berney, 
 children of the testator's brother, James Berney, both of whom 
 have since died intestate, without issue, and that all said plaint- 
 iffs are of the age of twenty-five years, and upwards. 
 
 Third. — The plaintiffs further show, that under and by virtue 
 of the laws of France, where the testator had his domicile, the 
 title to all the personal property of which said testator was 
 possessed at the time of his decease, vested immediately there- 
 after in the plaintiffs other than the plaintiff Louise Berney, and 
 in said John Berney and James Berney, Jr. (both of whom are 
 now deceased), the residuary legatees named in said will, their 
 title being subject, however, to the payment of the particular 
 legacies by said will bequeathed and of the annuities therein 
 given ; and that upon the death of the said John Berney and 
 James Berney, Jr., their interest in said property vested in their 
 surviving brothers and sister. 
 
 Fourth. — The plaintiffs further show, that Messier St. James, 
 whose full name is Felix Amedee, Messier Collet de St. James, 
 one of the executors named in said will, who was domiciled and 
 resided in Paris, being well aware that the title to the property 
 of which Eobert Berney died possessed, was, by the laws of 
 France, vested in the plaintiffs as aforesaid, procured James 
 Berney, another of the executors named in said will, to apply for 
 the probate of said will and codicil in Montgomery county, in 
 the state of Alabama, although the said Eobert Berney was not 
 domiciled in Alabama at the time of his decease, and never had 
 been domiciled in that state, nor a resident thereof, and although 
 he had left no property therein, and although the said court had 
 no jurisdiction whatever in the premises, the said court, never- 
 theless, assumed such jurisdiction, induced thereto by some con- 
 
I. Causes of Action at Law. (3) Torts :— Conversion. 231 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 trivance of the said Messier de St. James and James Berney, and 
 thereupon granted probate of said will and codicil, and issued 
 letters testamentary thereupon to the said James Berney. 
 
 And the plaintifi's further show that, acting under the said 
 illegal and invalid letters .testamentary, and in pursuance of the 
 said arrangement previously contrived by the said Messier de St. 
 James, the said James Berney sent to him, the said St. James, a 
 power of attorney purporting to empower him to sell any property 
 belonging to the estate. That said power of attorney was execu 
 ted by the said James Berney in the city of New York, only four 
 days after the said will was offered for and admitted to probate, 
 and letters testamentary issued by the Probate Court of 
 Montgomery county, Alabama. 
 
 And the plaintiffs show that the said St. James, acting under 
 the said pretended power of attorney, authorized Cazade, Crooks 
 & Reynaud. of the city of New York, to take all the necessary 
 steps to cause the Secretary of the Treasury of the United States 
 to transfer to bearer, or alter from nominal bonds and scrips in- 
 to bonds and scrip payable to bearer, certain bonds and scrips of 
 the United States funded loan of 1881, standing registered on 
 the books of the Treasury Department in the name of said Robert 
 Berney, and which formed part of his estate at the time of his 
 death. That said bonds were twenty-two in number, and of the 
 par value (in the aggregate) of $200,000, four of said bonds, 
 numbered respectively. \_Here followed the numhers and de- 
 nominations]. 
 
 That said bonds at the time of the death of Robert Berney 
 were in his possession in the city of Paris, but that after his 
 death the said Messier de St. James in some way acquired pos- 
 session of said bonds in said city of Paris and transmitted the same, 
 with the said illegal and invalid power of attorney, to the said 
 Cazade, Crooks & Reynaud, who, acting under said power, on or 
 about the 22d day of June, 1876, assumed to sell and deliver the 
 said bonds to the defendants, trading in the city of New York 
 under the firm of Drexel, Morgan & Co. That said sale was 
 without the written or other consent of the testator's widow, 
 Louise Berney, and without her knowledge. 
 
 That all the particular legacies given by said will had been 
 
232 Abbott's Select Cases on Code Pleading. 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 10 paid prior to such sale, and the sale was not necessary to carry 
 out any of the provisions of the will, nor were the proceeds of 
 sale applied to any such purpose, but the same were misappro- 
 priated by the said St. James to his own use. 
 
 And the plaintiffs are informed and believe that by the said 
 will and codicil, and the several powers of attorney hereinbefore 
 mentioned (copies of which are annexed), marked, respectively, 
 Exhibits A and B, the said defendants had legal notice of the limit- 
 ations on the power of sale, and of the illegal and invalid 
 character of the title to said bonds assigned by said Cazade, 
 Crooks & Eeynaud. 
 
 The plaintiffs further show that the defendants had converted 
 the said bonds to their own use, and that the same were of the 
 value of two hundred and sixty thousand dollars. 
 
 Wheeefoee, the plaintiffs demand judgment against the 
 defendants, and each of them, for the sum of two hundred and 
 sixty thousand dollars, with interest from the twenty-second day 
 of June, 1875, besides the costs of this action, which is to be tried 
 in [N'ew York county. 
 
 12 
 
 Defendants demurred on the following grounds : 
 
 1. That the plaintiffs have not legal capacity to sue, for that 
 they are not the executors or trustees of the will of Robert 
 Berney in the complaint mentioned, and have at no time acquired 
 by or from said executors or trustees, by assignment or other- 
 wise, any right to or ownership of the United States bonds iu the 
 complaint mentioned, and also for that, by the terms of said will, 
 annuities were given to one Eliza Ozier, the plaintiff, Louise 
 Berney, and a certain coimtess of Perregaux, during their re- 
 spective lives, and his estate charged with the payment thereof, 
 and it does not appear that the said annuities have been satisfied. 
 
 2. That there is a defect of parties defendant in that James 
 Berney and the said Eliza Ozier and Countess of Perregaux are 
 not made parties defendant. 
 
 3. That the complaint does not state facts sufficient to con- 
 stitute a cause of action. 
 
 The Supreme Court at Special Tvrm, (Macombee, J.) over- 
 ruled the demurrer. After recapitulating the contents of the 
 
I. Causes of Action at Law. (3) Torts: — Conversion. 233 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 -complaint, concluding with the fact that the sale of the bonds 14: 
 was unnecessary and contrary to the will, the learned judge said : 
 
 From all these facts so specifically alleged, together with the 
 exhibits which are attached to and made part of the complaint, 
 it is apparent, as has already been stated, that the action is simply 
 in trover to recover damages for the conversion of personal 
 property. All other allegations are matters of evidence, except 
 those which are irrelevant. The analysis of the complaint, 
 though disclosing much that could properly be omitted in a 
 common law action, shows that all the essential parts of a 
 ■declaration in trover have been complied with by the plaintiffs. 
 There is a distinct allegation that by the French law " the title 
 to all the personal property of which the testator was possessed 
 at the time of his decease vested immediately thereafter in the 
 plaintiffs " and in those to whose rights the plaintiffs have 
 succeeded. This is not an allegation of law; it is an allegation 
 of fact. It is an issue of fact tendered by the plaintiffs to the 
 defendants, and the truth of it is admited by the defendants in 
 their demurrer. A general averment of ownership in the 
 complaint is sufficient. (Heine v. Anderson, 2 Duer, 318.) 16 
 
 The further objection is made by the defendants' counsel that 
 no demand has been made upon the defendants for the possession 
 of the bonds. ISTo demand, in my judgment, need be alleged, 
 where there is an allegation of an actual conversion of personal 
 property. A demand and a refusal may be proper evidence of a 
 conversion in a case where the original possession of the defend- 
 ants was lawful ; here the original taking constituted a conversion, 
 and no demand is necessary. The allegation " converted to their 
 ■own use " would, as it seems to me, be proper and suitable alike 
 in the case of an original wrongful taking, and in a case of 
 wrongful withholding of personal property. (Pease v. Smith, 61 
 ISr. Y., 477; Cormier v. Batty, 9 J. & S., 70; Farmers' and 
 Traders' Bank v. Farmers' and Mechanics' Bank, 60 IST. Y., 40.) 
 
 The Supreme Court at General Term affirmed the judgment. 
 
 Davis, P. J. The questions presented by the demurrer 
 depend wholly upon the sufficiency of certain allegations in the 
 complaint. 
 
 After setting forth the will and codicil of Eobert Berney, 
 
 17 
 
234 Abbott's Select Cases on Code Pleading. 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 18 which appears to have been made and published in England,, 
 while he was domiciled and residing in Paris, the complaint 
 avers that the said Robert Berney departed this life on the 19th 
 of November, 1874, at Paris, and, in substance, that at the time 
 of his death the domicile of the testator was at Paris, Prance, 
 and that he left him surviving the plaintiff, Louise Berney, who 
 is the widow of said Berney, and the several other plaintiffs, 
 who are his sole surviving nephews and nieces, and who are all 
 of the age of twenty-five years and upwards. The- complaint 
 
 then avers that " under and by virtue of the laws of France, 
 
 19 ... 
 
 where the testator had his domicile, the title to all the personal 
 
 property of which said testator was possessed at the time of his 
 decease vested immediately thereafter in the plaintiffs other 
 than 'the widow * * * the residuary legatees named in said 
 will, their title being subject, however, to the payment of the 
 particular legacies by said will bequeathed, and of the annuities 
 therein given." 
 
 The first question presented is whether this averment is a 
 sufficient allegation of ownership to entitle the plaintiffs to 
 
 20 maintain an action to recover for the conversion of a portion of 
 the personal propei'ty of which the testator was possessed at the 
 time of his death. The Special Term held that it was sufficient 
 upon demurrer, and we are of opinion that that conclusion is 
 correct. 
 
 It is necessary in an action to recover for conversion that the 
 plaintiff should show by his complaint title to the property 
 alleged to be converted, or his right to the possession thereof. 
 Either of these is sufficient to entitle him to maintain the action. 
 In this case the averment is of title under and by virtue of the 
 " laws of France. This, it is alleged, is an allegation of a legal 
 proposition or conclusion, and not of a fact. We are of opinion, 
 however, that it is an allegation of fact, under which, at the 
 trial of the issue, the plaintiffs would be at liberty to prove the 
 laws of France, for the purpose of establishing the fact that the 
 title to the personal property vested immediately upon the 
 decease of the testator in them ; and, on that fact being so 
 proved, the legal result would be that such title would draw to 
 it the right of possession and show full authority to maintain the 
 
I. Causes of Action at Law. (3) Torts : — Conversion. 235 
 
 Berney v. Drexel, 33 Him, 34. 
 
 action. The title would presumptively draw to it the right of 22' 
 possession, and show the right to maintain an action against an 
 alleged wrongdoer. 
 
 The complaint proceeds, then, to allege facts showing that one 
 James Berney had fraudulently obtained possession of the prop- 
 erty in question by virtue of letters testamentary procured in 
 the court of another state having no jurisdiction, and that, hav- 
 ing such fraudulent possession, through his attorneys has sold 
 and transferred certain bonds the property to the defendants. 
 Having thus carried the property into the possession of the 
 defendants, the complaint alleges that, by the will and codicil 
 and the several powers of attorney, copies of which are annexed 
 to the complaint, the said defendants had legal notice of the 
 limitations on the power of sale and of the illegal and invalid 
 character of the title of said bonds assigned to them ; and they 
 further allege that the defendants have converted the said bonds 
 to their own use. What force is to be given to the allegations 
 of notice, in the form in which it is averred, it is not necessary 
 to determine. That averment probably presents a question of 
 law, inasmuch as it is substantially an allegation that the will 24 
 and codicil and the several powers of attorney contained in 
 themselves " legal notice of the illegality and invalidity of the 
 title of the defendants' assignor to the said bonds assigned." 
 The Special Term considered that the suiEciency of the allega- 
 tion of conversion depended wholly upon the averment that " the 
 defendants have converted the said bonds to their pwn use." 
 
 Assuming it to be a correct pj'oposition that the allegations of 
 the complaint are not sufficient to show that the bonds came into 
 the possession of the defendants with any notice or knowledge of 
 the want of title in their assignor, so that upon such allegations 
 alone an action for the conversion could not be maintained with- 
 out proof of a demand before bringing the action, nevertheless, 
 if such allegations were followed with the sufficient averment of 
 conversion to entitle the plaintiff to put in evidence facts show- 
 ing an actual conversion, that would be sufficient upon demurrer 
 to uphold the complaint. The allegation of conversion to their 
 own use is one of fact. It will admit, upon a trial, of evidence 
 that the defendants not only received the bonds imder the 
 
236 Abbott's Select Cases on Code Pleading. 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 ^Q assignment in the manner stated in the complaint, but that they 
 subsequently disposed of them under such circumstances as will 
 uphold the action against them, assuming the plaintiffs to have 
 been the real owners of the bonds ; or to admit proof of any 
 other fact necessary to constitute a conversion. So that the 
 plaintiffs would be entitled, under that allegation, if the bonds 
 still remain in the hands of the defendants, to prove a demand 
 and refusal in order to charge them with a conversion if that 
 proof becomes necessary. Where conversion is alleged as a fact, 
 in general terms, that is sufficient to admit of any evidence on 
 the trial of issue joined that tends to establish such conversion ; 
 and the plaintiff is not bound to allege the particular act or acts 
 which constitute conversion in an action of this character. We 
 are of opinion, therefore, that the learned judge at Special Term 
 correctly disposed of the question which arises upon this branch 
 of the demurrer. The question upon which we have the most 
 doubt is as to whether the averment of the laws of France, 
 under which the plaintiffs claim their title, should not have been 
 more precise and formal ; but we are inclined to think that the 
 28 Special Term did not err in holding that, under that a^'erment 
 in the present form, the laws of France could be so proved as to 
 support the allegation of title upon an issue of fact. 
 
 Pleadings are not now to be strictly construed against the 
 pleader, and averments which sufficiently point out the nature 
 of the pleader's claim are sufficient if, under them, upon a trial 
 of the issues, he would be entitled to give all the necessary evi- 
 dence to establish the claim. We think, therefore, the judgment 
 upon the demurrer should be affirmed, with leave, however, to 
 answer over in the usual time, and on the usual terms as to costs. 
 
 Daniels and Haight, J J., concurred. 
 
 Judgment affirmed, with leave to answer in twenty days after 
 service of order on the usual terms. 
 
 The defendants moved for a re-argument before the General 
 Term. 
 
 The General Term held to tlieir former decision and denied 
 the motion. 
 
 Davis, P. J. [after recapitvlating the grounds of demurrer]: 
 The substantial question presented on this motion is whether on 
 
I. Causes of Action at Law. (3) Torts : — Conversion. 237 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 these assignments of grounds of demurrer it can be urged that 30 
 the demurrants are entitled to judgment on the ground that it 
 appears by the allegations of the complaint that there is a mis- 
 joinder of parties plaintiff. This question was not presented on 
 the former argument by counsel, nor was it considered by the 
 court. The allegations of the complaint do show that the title of 
 the cause of action, and the right to maintain the same, are vested 
 in the several plaintiffs other than the plaintiff Louise Berney, 
 who otherwise appears by the complaint to have an interest in 
 the estate of her deceased husband as a beneficiary in trust, if 
 the other plaintiffs recover. The long and short of it is that she 
 is improperly joined as a plaintiff. 
 
 Section 488 of the Code of Civil Procedure specifies when a 
 defendant may demur to a complaint and on what grounds. The 
 fifth ground so specified is " that there is a misjoinder of parties 
 plaintiff." Section 490 declares that the demurrer must distinctly 
 specify the objections to the complaint; otherwise, it may be 
 disregarded. And it further provides that an objection taken 
 under the fifth, sixth and seventh subdivisions " must point out 
 specifically the particular defect relied upon." 32 
 
 In order, therefore, to take advantage by demurrer of the 
 misjoinder of Mrs. Berney as a plaintiff in this action, it was 
 necessary that the defendants should not only assign as a ground 
 of demurrer " that there is a misjoinder of the parties plaintiff,"' 
 but have proceeded to point out that the plaintiff Louise Berney 
 is improperly joined with the other plaintiffs, because she is 
 shown to have no cause of action jointly with them ; but that 
 the sole cause of action set forth in the complaint is averred to 
 be in the other plaintiffs exclusive of her. A demurrer with 
 such an assignment and specification would probably have been 
 sustained both at the Special Term and on appeal. 
 
 It is insisted, however, that the point can be taken under the 
 general assignment made under the eighth subdivision of the 
 section, to wit, " that the complaint does not state facts sufficient 
 to constitute a cause of action," because the complaint shows 
 affirmatively that the cause and right of action are not vested in 
 all the parties plaintiff. There would be greater force in this 
 contention if it were not for the fact that the present Code 
 
238 Abbott's Select Cases on Code Pleading. 
 
 Berney v. Drexel, 33 Hun, 34. 
 
 34 makes the misjoinder of plaintiffs a special ground of demurrer, 
 and requires that when that objection is taken the demurrant must 
 proceed to ' ' point out speciiically the particular defect relied 
 upon." If that had been done in this case the plaintiffs could 
 have amended the complaint by dropping out the name of Mrs. 
 Berney altogether; or by transferring her name, if for any 
 reason it was desirable to continue her as a party, to the rank of 
 defendant. They are deprived of that opportunity if it be held 
 at this stage of the case that the same point may be made under 
 the eighth subdivision of section 488. 
 
 Besides, it may be answered that the eighth subdivision of 
 the section does not reach any such defect. It is aimed only at 
 a failure to state any cause of action in the complaint. Where 
 several plaintiffs imite in bringing an action and state in their 
 complaint facts which do constitute a cause of action in favor of 
 one or more, but not of all the plaintiffs, a demurrer based upon 
 an assignment of the eighth ground of the section must be over- 
 ruled, because the defect is not that the complaint does not state 
 facts sufficient to constitute a cause of action, but that it fails to 
 56 show that the cause of action thus staged belongs to all the 
 plaintiffs — which is quite another thing and belongs to another 
 subdivision of the section. 
 
 Assuming, as we do, that the court did not err in holding that 
 facts sufficient to constitute a cause of action are stated in the 
 complaint, it necessarily follows that a reargument would be 
 quite unavailing to the demurrants and should therefore be 
 denied, with the usual costs of a motion. 
 
 Beady and Daniels,- JJ., concurred. 
 
 Motion denied with ten dollars costs. 
 
I. Causes of Action at Law. (3) Torts: — Deceit. 239 
 Whitner «. Perhacs, 25 Abb. N. C, 130. 
 
 WHITNEE V. PEEHACS. 
 
 New York Supreme Court, First District, Special Term, 1890. 
 
 [Reported in 25 Abb. N. C, 180.] 
 
 1. A complaint for damages for false representations, inducing plaintiff to 
 pvirohase stock in a corporation and to render services to it, states but 
 a single cause of action having two items of damage. 
 
 3. In sucli case the plaintiff will not be required, on motion, to make more 
 definite and certain the allegations as to the items of damage sus- 
 tained. The remedy is by motion for a bill of particulars.* 
 
 Motion by defendant for and order that plaintiff be required 
 to serve an amended complaint wherein she shall set forth and 
 number her alleged cause of action for deceit in the sale of 
 shares of stock, and shall set forth separately in another count, 
 and number the same, her statement of the facts constituting her 
 alleged cause of action for breach of contract to employ plaintiff 
 and for work, labor and services performed by plaintiff; also 
 that the complaint be made more definite and certain by stating 
 the particular nature and grounds of special damages alleged to 
 have been sustained by reason of defendant's misrepresentation. 
 
 The action was brought by Mary A. E. Whitner against Emil 
 M. Perhacs. The complaint alleged that plaintiff purchased of 
 defendant certain shares of the stock of a corporation of which 
 defendant was president. That plaintiff was personally unac- 
 quainted with the financial condition of such company, and 
 
 * Judges have differed in their views as to what laclc of information is to be supplied by 
 particulars and what by motion to make more definite and certain. The principle which affords 
 -a test is this : If the pleading alleges intelligibly all that is necessary to a good cause of action 
 or a good defence, and satisfies the rules of good pleading; but, by reason of the generality of a 
 proper allegation the adverse party cannot safely prepare for trial without unnecessary labor or 
 expense unless informed of the particulars by proof of which the pleader intends to support his 
 general allegation, the court may properly require the pleader to inform his adversary what 
 those particulars are, and may, on the trial, exclude evidence of particulars not so specified. 
 If, on the other hand, the pleading does not allege intelligibly all that is necessary, but is 
 ambiguous, equivocal or depends for its sufficiency on implication or inferences, then the 
 court may order the pleader to make his allegations more definite and certain. The one remedy 
 -amplifies, by convenient specification, what is already well alleged in a general charge. The 
 other substitutes for matter capable of misconstruction an amended statement which is not 
 ■capable of misconstruction. 
 
 In any case where the practitioner is in doubt which is his proper remedy, he may proceed 
 in the alternative, and move for an order that the adversary furnish a bill of particulars, or 
 ■that he make his pleading more definite and certain. 
 
 For the forms, see 2 Abb. New. Pr. & F., 469-485. 
 
240 Abbott's Select Cases on Code Pleading. 
 
 Whitner v. Perhacs, 25 Abb. N. C, 130. 
 
 defendant stated to her that it was doing a very large and prof- 
 itable business, that the stock was fully paid for, that the indebt- 
 edness was only $3,500, that the machinery was owned by it^ 
 that its accounts and bills receivable aggregated §13,000, and 
 that plaintiff could draw $30 a week for services she proposed to 
 render in case she should purchase the stock. That such repre- 
 sentations were untrue and were made with intent to defraud 
 plaintiff and induce her to purchase the stock. The complaint 
 alleged in detail the falsity of the various representations and 
 stated that plaintiff gave all her time to the business for over a 
 year, and was enabled to draw only $350 in all ; that plaintiff 
 has been damaged in the sum of $9,000, etc. 
 
 Ingraham, J. There is but one cause of action set up in the 
 complaint, that is an action for damages caused by the fraudulent 
 misrepresentations made by defendant. The fact that there are 
 two items of damage, one the amount paid by plaintiff for the 
 stock, and one the value of the services rendered to the corpora- 
 tion, does not make two causes of action. The motion to sepa- 
 rately state the causes of action denied. Nor should the plaintiff 
 be required to make the complaint more definite and certain, as 
 to the items of the damage alleged to have been sustained by 
 plaintiff. If information is sought upon that ground, the proper 
 remedy is by a bill of particulars, and not a motion to make the 
 complaint more definite and certain. Motion should therefore 
 be denied, with $10 costs. 
 
 For a good statement by way of counterclaim of a cause of 
 action for deceit, see Rothschild v. "Whitman, post, p. i^il. 
 
I. Causes of Action at Law. (3) Torts : False Imprisonment. 241 
 Sheldon v. Lake, 9 Abb. Pr. N. S., 306. 
 
 SHELDON V. LAKE. 
 
 New York Common Pleas, Special Term, 1871. 
 
 [Reported in 9 Abb. Pr. N. S., 306.] 
 
 1. A complaint alleging- that defendant assaulted the plaintiff, dragged 
 him violently through the public streets, imprisoned him in the cus- 
 tody of the sheriff, and restrained him of his liberty without probable 
 or reasonable cause, whereby he was wounded, injured in credit, and 
 hindered in business, states but one cause of action.* 
 
 3. Such allegation of the several parts of one continuous transaction are 
 not irrelevant nor redundant. 
 
 3. But an allegation that such acts were in violation of law, not being a 
 traversable allegation, is irrelevant and redundant, and should be 
 struck out on motion.f 
 
 Motion to compel plaintiff to amend his complaint, or to strike 1 
 out parts. 
 
 The allegations of the complaint were as follows : 
 That on March 23, 1870, at^the city of New York, the de- 
 fendant with force and arms assaulted the plaintiff and with 
 great force and violence, pulled and dragged about the said 
 plaintiff, and also, then and there forced and compelled the said 
 j)laintiff to go from a certain place in said city into the public 
 streets thereof, and then and there, forced and compelled him to ^ 
 go in and along divers puMic streets in said city, and then and 
 there imprisoned the said plaintiff, and put him in the custody of 
 the sheriff of the county of New York, and detained him for the 
 period of several days in said custody, and restrained and de- 
 prived the said plaintiff of his liberty without any reasonable or 
 probable cause whatsoever. 
 
 And said plaintiff further says, that all of the said malicious 
 acts aforesaid were contrary to the laws and customs of this 3 
 
 '^ A complaint alleging that defendant led plaintiff into making a hard and unconscionable 
 lease, and then, after plaintiff had sown crops, etc., tamed him off, and procured his arrest on a 
 malicious charge of embezzlement, and took possession of his household goods, etc., and that 
 all these acts were in pursuance of defendant's plan to defraud plaintiff, states but one cause of 
 action. In such a case it is not necessary to allege termination of the prosecution complained 
 of as malicious. In this respect the action is for abuse of process. Bebinger v. Sweet, 1 Abb. 
 N. C, 263. 
 
 t It is doubtful whether now a motion merely to strike out a conclusion of law would be sus- 
 tained, it is so well settled that it is not admitted by failing to deny it. 
 
 16 
 
2i2 Abbott's Select Cases on Code Pleading. 
 
 Sheldon v. Lake, 9 Abb. Pr. N. S., 306. 
 
 state, and in violation of the same, and against the will of the 
 said plaintiff, whereby the said plaintiff was not only greatly 
 hurt, bruised, and wounded, but was also thereby then and there 
 greatly exposed and injured in his credit and circumstances, and. 
 was then and there hindered and prevented from performing 
 and transacting his affairs and business, by means -whereby, said 
 plaintiff says he has sustained damages to the amount of ten 
 thousand dollars. 
 Whkeefobe, etc. 
 
 The defendant moved to strike out parts of the complaint, 
 especially those indicated above by italics, as irrelevant and 
 redundant ; or, if more than one cause of action was intended to 
 be set up, that the complaint be made more definite and certain, 
 and the causes of action be separately stated, and distinctly num- 
 bered. 
 
 It was conceded by the plaintiff's attorney, on the motion, 
 that the action was for false imprisonment, and that alone. 
 
 Robinson, J. The motion to strike out parts of the complaint 
 as irrelevant and redundant is denied, except the sentence here- 
 after quoted. 
 
 The several statements of the plaintiffs as to the acts com- 
 plained of, have relation to but one continuous transaction, 
 alleged with special circumstances of injury or aggravation as to 
 each step in the progress of the affair, and they constitute a 
 single cause of action for injury to the person, with or without 
 force, in the several occurrences related in the pleading. 
 
 They do not constitute separate causes of action. The plaintiff 
 could not sue and recover for the assault first alleged, as for the 
 act of dragging him through the streets, or for the false imprison- 
 ment lastly alleged, and again maintain another action for any of 
 the other matters attending his arrest and imprisonment. (Far- 
 rington v. Payne, 15 Johns., 432 ; Fetter v. Beale, 1 Salk., 11.) 
 
 The Code of Procedure permits the joinder of separate causes 
 of action for injuries, with or without force, to the person (§167, 
 subd. 3); and the court could consolidate such actions as might 
 have been originally joined ; but such power is in no way decisive 
 as to the entirety of causes of action, if separately and indepen- 
 
I. Causes of Action at Law. (3) Torts : False Imprisonment. 243 
 
 Sheldon v. Lake, 9 Abb. Pr. N. S., 306. 
 
 dently stated, and occurring on different occasions, or as to what 8 
 
 might constitute different causes of action. To allow the uniting 
 
 in one statement, of a cause of action, consisting of different 
 
 trespasses (where they all substantially arose out of the same act), 
 
 such as the statement of an assault, an assault and battery and 
 
 false imprisonment, does not prejudice the defendant, since he 
 
 may in his answer confess, deny or justify each separate act ; 
 
 while to regard them as separate causes of action and subjects of 
 
 different suits, would be allowing an unwarrantable splitting up 
 
 of controversies. 
 
 9 
 
 The several subjects of complaint having reference to an 
 entire, although continuous transaction, their joinder as. one is 
 properly allowed without charge of irrelevancy or redundancy. 
 
 The case disclosed by the complaint is one of injury to the 
 person, bwA prima facie actionable. 
 
 The allegation that such acts are " contrary to the laws of the 
 state, and in violation of the same {contra jpacem regis)" was, 
 under the old system of pleading, regarded as mere matter of 
 form, and not traversable (1 Chitty PL, 422 ; Gardner v. Thomas, 
 14 Johns., 134). It is equally so under the Code, as a mere mat- 10 
 ter of form, or conclusion of law, and is not necessary or proper 
 to be stated. The rights of the pai-ties are to be judged solely 
 by the facts stated ; and the allegations last above quoted ought 
 to be stricken out as irrelevant and redundant. 
 
 ]N^o costs are allowed. 
 
 Order accordingly. 
 
244 Abbott's Select Cases on Code Pleading. 
 
 Rothschild V. Whitman, 132 N. Y., 473. 
 
 EOTHSCHILD v. WHITMAN. 
 
 JV^ew York Court of Appeals, 1892. 
 [Reported in 132 N. Y., 472.] 
 
 1. In an action for malicious prosecution or false imprisonment, the claim 
 
 upon which such previous prosecution was founded is not a proper 
 counterclaim. 
 
 2. The complaint was for a malicious action and arrest on an order therein, 
 
 which order it was alleged was vacated as illegal and without jurisdic- 
 tion. The answer set up as a counterclaim that plaintiff, as manager 
 of a firm, by deceit induced defendants to sell the firm goods on 
 credit, and secretly shipped them away and disposed of them, to de- 
 fendant's damage, some months before the suit for malicious prose- 
 cution ; and that this constituted part of the grounds for the order of 
 arrest, which was vacated not because the allegations on which it was 
 granted were untrue, but because of a misjoinder of causes of action. 
 Held, that the claim for damages for deceit (though the inducement 
 to the action and arrest), arose out of neither, but existed independ- 
 ently of both ; that it was not the cause, but rather the reason or 
 pretext of the action and arrest ; so that the claim and counterclaim 
 did not arise out of the same transaction. 
 
 An action for malicious prosecution. 
 
 Tlie complaint was as follows : 
 
 I. That, on or about September 1st, 1887, the plaintiff was 
 engaged in business in the city of New York, county and State 
 of New York, as manager of the dry goods business of Maier 
 Rothschild, and was, on or about said date, conducting the said 
 business as manager. 
 
 II. That, on or about said date, the defendants not having any 
 just or probable cause of action against the plaintiff, did then and 
 there wrongfully and maliciously begin an action against the 
 plaintiff, and' did cause to be issued out of the Supreme Court of 
 the State of New York, in and for said county, a certain alleged 
 order of arrest in an action in which the defendants were plaint- 
 iffs, and placed the same in the hands of the sheriff of the city 
 and county of New York for service, and did thereupon cause 
 the plaintiff to be taken into custody by the said sheriff there- 
 under, and held to bail in the sura of ten thousand dollars, and 
 that plaintiff was kept in custody under said pretended order of 
 
I. Causes of Action at Laio. (3) Torts: — Mai. Pros., etc. 245 
 
 Rothschild v. Whitman, 132 N. Y., 472. 
 
 arrest by the said sheriff for about a week, and was compelled to, 
 and did, disburse large sums of money, aggregating one thousand 
 dollars, in and about said arrest, and to counsel ; and that plain ti£E, 
 by reason of said arrest, was compelled to give up said business, 
 and was greatly injured in his good name and credit among mer- 
 chants in the city of New York, and elsewhere, and among his 
 friends and acquaintances, and suilered greatly in body and mind 
 by reason of the disgrace attendant thereon. 
 
 III. That thereafter, and upon the motion of this plaintiff, the 
 said alleged order of arrest was duly vacated by said Supreme 
 Court, and upon the ground that the same was illegal, unauthor- 
 ized, and that the court had not jurisdiction to grant the same, 
 and an order was duly entered thereon, on or about the 29th 
 day of December, 1887, and defendant discharged thereunder, 
 and that said proceeding has been wholly and finally terminated 
 in favor of the plaintiff and against the said defendants by final 
 order of said court. 
 
 IV. That by reason of the premises plaintiff suffered damages 
 in the sum of fifty thousand dollars. 
 
 Whebefoee, plaintiff demands judgment against the defend- 
 ants for his damages aforesaid, in the sum of fifty thousand 
 dollars, with interest thereon from said date, besides the costs of 
 the action. 
 
 The answer contained denials, and, for a further defence and 
 by way of counterclaim, alleged : 
 
 YI. That the defendants, at the times hereinafter mentioned, 
 were copartners, doing business under the firm name of "Whit- 
 man, Creighton & Co. 
 
 YII. That the plaintiff, Abraham Rothschild, was connected 
 in business with the copartnership of C. M. Eothschild & Co. 
 prior to the 28th day of September, 1887, and during the year 
 1886, the said C. M. Rothschild & Co. being a partnership under 
 the name of Charles M. Eothschild and Jacob M. Eothschild, 
 doing business at No. 40 White street, in the city of New York, 
 and that the said Abraham Eothschild was actual manager of the 
 business of said firm. 
 
2i6 Abbott's Select Cases on Code Pleading. 
 
 Rothschild v. Whitman, 133 N. Y., 473. 
 
 7 YIII. That ill the months of January and February, 1887, 
 the plaintiff induced these defendants to sell and deliver to the 
 said firm of C. M. Rothschild & Co. goods and merchandise of 
 the value of §2,790.23. 
 
 IX. That the said Abraham Rothschild, the plaintiif in this 
 action, induced these defendants to make said sale, well knowing 
 and intending that the said firm of C. M. Rothschild & Co. 
 would not and could not pay these defendants for said goods, 
 and the said Abraham Rothschild induced and effected said sale 
 
 o by fraud and deceit as follows, to wit: The said firm of C. M. 
 Rothschild & Co. and the said Abraham Rothschild made 
 various false and fraudulent statements of the financial standing 
 of the said fij-m of C. M. Rothschild & Co. to various mercantile 
 agencies in l^ew York City, well knowing and intending that 
 the said agencies should communicate the same to their 
 customers, and that a large and fictitious and unwarranted credit 
 would thereby be obtained for the said firm of C. M. Rothschild 
 &Co. 
 
 X. That the goods pm-chased from these defendants were 
 ^ purchased on a credit of sixty days. 
 
 XI. That by means of such false and fictitious credit the said 
 Abraham Rothschild purchased and caused to be delivered to 
 the firm of C. M. Rothschild & Co. merchandise aggregating in 
 value at least the sum of $200,000, part of which merchandise 
 was the goods sold by these defendants to the said C. M. Roths- 
 child & Co. 
 
 XII. That, after receiving such merchandise, and before the 
 same had been paid for or the term of credit thereon had 
 
 10 expired, the said C. M. Rothschild & Co. and Abraham Roths- 
 child, with intent to cheat and defraud their creditors, and in 
 execution of their intention not to pay for the goods pm-chased 
 from these defendants, secretly shipped away, concealed, sold 
 and otherwise disposed of nearly all the entire stock of 
 merchandise so obtained upon credit aforesaid. 
 
 XIII. That on or about the 23d day of March, 1SS7, the 
 balance of stock not removed from the said store, amounting to 
 aboiit $10,000, was taken upon attachment issued in a suit 
 brought by John Claflin and others. 
 
I. Causes of Action at Law. (3) Torts: — Mai. Pros., etc. 247 
 
 Rothschild v. Whitman, 183 N. Y., 473. 
 
 XIY. That thereafter this plaintiff, on or about April 10th, 11 
 188T, reopened a store which had theretofore been occupied by 
 C. M. Eothschild & Co., and commenced and conducted a 
 business of the same character as had been conducted by him 
 for C. M. Eothschild & Co., under the name of Maier Eothschild, 
 and in that business received the proceeds of the merchandise 
 which had been secretly shipped away and disposed of from the 
 store of the said Charles M. and Jacob M. Eothschild, and 
 received large quantities of the merchandise which had been 
 secreted by the plaintiff and the said C. M. Eothschild & Co., as 
 aforesaid ; and these defendants allege that the said Abraham '^ 
 Eothschild aided and abetted the said C. M. Eothschild & Co. 
 in their purchase and receipt of the said goods from these 
 defendants, and in their false and fraudulent representations 
 with regard to their credit, and in the concealing and carrying 
 away of the said goods, well knowing that the said representations 
 were false and untrue, and that the purchase and receipt of said 
 goods was • fraudulent, and that the same were not to be paid 
 for, and that the same have not been paid for, although 
 demanded. 13 
 
 XV. That these defendants had no knowledge of the falsity 
 of said representations, and sold the said goods and merchandise 
 and delivered the same to this plaintiff for C. M. Eothschild & 
 Co., being deceived and thereby induced by their said represent- 
 ations and the said actions of the said Abraham Eothschild. 
 
 XVI. That the said C. M. Eothschild and Jacob M. Eoths- 
 child are wholly and totally insolvent. 
 
 XVII. That the defendants have been damaged by the 
 matters herein alleged in the sum of $2,790.23, with interest 14 
 from February 26th, 1887. 
 
 XVIII. That the matters hereinbefore alleged constitute part 
 of the grounds and one of the causes of action for which the 
 arrest of . the plaintiff, complained of in this action, was made, 
 and that the vacating of said arrest was not on the ground that 
 said allegations were untrue, but because of a misjoinder of 
 causes of action and parties. 
 
 Wheeefoee, these defendants demand judgment that the 
 
248 Abbott's Select Cases on Code Pleading. 
 
 Rothschild v. Whitman, 133 N. Y., 473. 
 
 15 complaint may be dismissed and that the defendants may have 
 judgment against the plaintiff for their said damages of said 
 counterclaim and their costs. 
 
 The plaintiff demurred to the alleged counterclaim contained 
 in the answer on the ground that " it does not constitute a cause 
 of action arising out of the contract or transaction set forth in 
 the complaint as the foundation of the plaintiff's claim, nor is it 
 connected with the subject of the action." 
 
 The Sajpreme Court at Special Term (O'Brien, J.) overruled 
 the demurrer. 
 
 The Court at General Term reversed the ruling and sustained 
 the demurrer, holding that, as the complaint alleged a cause of 
 action both for false imprisonment and also for malicious prose- 
 cution, the defendant had a right to proceed on the one most 
 favorable to himself, i. e., that this action is one for malicious 
 prosecution ; but that even in that view of the complaint, the 
 counterclaim is not connected with the subject of the action, but 
 is wholly separate and distinct. 
 
 The Court of Appeals affirmed the judgment. 
 Yann, J. A counterclaim must tend in some way to defeat 
 or diminish the plaintiff's recovery, and must be either (1) a cause 
 of action arising out of the contract or transaction set forth in 
 the complaint as the foundation of the plaintiff's claim, or con- 
 nected with the subject of the action, or (2) in an action on con- 
 tract, any other cause of action on contract existing at the com- 
 mencement of the action. (Code Civ. Pro., § 501.) The coun- 
 terclaim in question is a cause of action tending to diminish the 
 ^° plaintiff's recovery, and to that extent, conforms to the require- 
 ments of the statute. As this is not an action on contract, before 
 we can determine that the counterclaim should stand as a plead- 
 ing, we must ascertain whether it arose out of the transaction 
 set forth in the complaint, and if it did not, whether it is con- 
 nected with the subject of the action within the meaning of the 
 Code. What is the transaction set forth in the complaint as the 
 foundation of the plaintiff's claim ? It is the commencement of 
 an action against him, with malice and without probable cause, 
 
I. Causes of Action at Laio. (3) Torts : — Mai. Pros., etc. 249 
 
 Rothschild v. "Whitman, 133 N. Y., 473. 
 
 and his an'est therein under process that -was afterwards set aside l^ 
 as illegal. What is the counterclaim ? A cause of action for 
 damages caused by deceit in the purchase of goods on credit. 
 The deceit was practiced and the goods obtained in January, 
 1887, while the action was commenced and the arrest made in 
 the following September. 
 
 While the deceit was the inducement to the action and arrest, 
 it ai'ose out of neither, because it preceded both and existed 
 independently of both. Although it was the alleged ground of 
 the action and arrest, it was not the cause of either, but was 
 rather the pretext or ostensible reason. A groundless and mali- "" 
 cious prosecution is caused by the act of commencing the action, 
 not by the reasons given for commencing it. An illegal arrest, 
 such as that in question, is caused by the issuing and service of 
 the order of arrest, not by the facts recited therein. There is no 
 relation of cause and effect between an illegal act, or the deter- 
 mination to do one, and the excuse alleged for doing it. We 
 think that the claim and counterclaim did not arise out of the 
 same transaction, and that the plaintiff's claim rests upon an 
 entirely different foundation from the defendants' counterclaim. 21 
 Each was a separate and distinct wrong and a transaction by 
 itself. 
 
 The question remains whether the counterclaim was connected 
 with the subject of the action, or, in other words, with the facts 
 constituting the plaintiff's cause of action. (Chamboret v. Gagney, 
 2 Sweeney, 378; Lehmair v. Griswold, 8 J. it S., 100.) 
 
 The complaint and answer set forth independent torts, differ- 
 ing radically in nature and committed upon occasions widely 
 sepai'ated. Whether the subject of the action is malicious pros- 
 ecution, or false imprisonment, it is distinct and independent of ' 
 the claim of the defendants. There is no necessary or legal con- 
 nection between the two. It is not like an action for convertins; 
 wood and a counterclaim for waste in cutting the same wood 
 (Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 552\ or where 
 certain goods are the subject of the action and a claim is made 
 for the value of the same goods (Thompson v. Kessel, 30 N. Y., 
 388), or where a mutual claim is made to a trademark (Glen it 
 Hall Mfg. Co. V. Hall, 61 N. Y., 226). 
 
250 Abbott's Select Casks on Code Pleading. 
 
 Rothschild V. Whitman, 133 N. Y., 472. 
 
 23 On the contrary, the effort is here made to set up one tort 
 committed in January against another committed in September, 
 tlie one being for an injury to property and the other for an 
 injury to the person. The circumstance that the deceit which 
 constituted the former was the pretext or excuse for perpetrating 
 the latter, establishes no such connection as to satisfy the statute, 
 any more than if A slanders B on the Fourth of July and B 
 thrashes him for it at Christmas. (Schnaderbeck v. Worth, 8 
 Abb. Pr., 37; Fellerman v. Dolan, 7 id., 395 ; Askins v. Heams, 
 
 24 3 id., 184, 187.) 
 
 The judgment should be afSrmed, with costs, with leave to 
 the defendants to amend their answer within twenty days, upon 
 the payment of costs. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
I. Causes of Action at Laio. (3) Torts:— Libel. 251 
 
 Fleischmann v. Bennett, 87 N. Y., 231. 
 
 FLEISCIlMANISr v. BENNETT. 
 
 New Yorli Court of Ajjj)eals, 1881. 
 [Reported in 87 N. Y., 231, aff'g- 23 Hun, 300.] 
 
 1. An innuendo does not enlarge the matter set forth specially in other 
 parts of the complaint. It only explains the application of the words 
 employed. When not justified by the antecedent facts to which it 
 refers, so that rejecting- it, the words are not actionable, a demui'rer 
 lies. 
 
 3. Thoug-h it is not necessary under Code Civ. Pro., § 535, to state extrinsic 
 facts showing the application of defamatory matter to the plaintiff, a 
 general averment that it was published of and concerning him is not 
 sufficient if other allegations setting forth the cause of action show it 
 was not of or concerning him. 
 
 3. While the section 535 of the new Code dispenses with the necessity of 
 averring-, in detail, the facts which evince who was the person in- 
 tended, it does not authorize the plaintiff to prosecute his action after 
 he has made a complete denial of his connection with, and of the ap- 
 plication of the facts stated in the alleged libelous matter to himself 
 on which it is founded. 
 
 ■4. In an action for libel by publishing the statements concerning a speci- 
 fied establishment carried on by persons having the same name as 
 plaintiff, allegations in the complaint that plaintiff had no connection 
 with such persons, but was engaged in a different business, held to 
 show that he had no cause of action, and that the complaint was 
 not aided by an averment that the publication was of and concerning 
 the plaintiff, nor by the usual innuendo " meaning the plaintiff" in- 
 .serted in connection with the libellous words which did not appear to 
 refer to him. 
 ■ 5. Where, in an action for libel, one count in the complaint is upon several 
 distinct articles, published at different times, which are separately 
 numbered, and treated by the plaintiff as separate causes, plaintiff 
 cannot aid a deficiency in one by claiming that the others are set 
 out as matter of inducement onlj-. 
 
 Action for libel. 
 
 The eomplaint alleged : 
 
 " I. That the plaintiff, prior to and at the time of the commis- 
 sion of the grievances hereinafter mentioned, was engaged in 
 business in the city of New York, at the corner of Broadway 
 and Tenth street, as proprietor of the ' Vienna Model Bakery,' 
 and conducted the business of a bakery and restaurant upon 
 said premises. 
 
252 Abbott's Select Cases on Code Pleading. 
 
 Fleischmann v. Bennett, 87 N. Y., 231. 
 
 " 11. That, until then, this plaintiff had always maintained a . 
 good reputation and credit, and had never been guilty of any 
 violations of the laws of this state, nor been in any manner a 
 copartner, owner or agent in any business or calling such as de- 
 scribed in the libel hereinafter set forth, or in the production of 
 milk, or distillery swill, so called, or distillery waste or grain, or 
 ownership or care of cows, or keeping of cows, or feeding of 
 cows, or guilty of any of the offences charged against him in the 
 libel hereinafter set forth ; nor, until the publication thereof, was 
 he ever suspected to be. 
 
 " III . That the business of this plaintiff as bakery and restaurant 
 keeper has always depended largely on the good reputation and 
 credit of this plaintiff, and on the personal trust reposed in him 
 and in the said articles manufactured and sold by him ; and that 
 this plaintiff, up to the publication of the said libel hereinafter 
 set forth, possessed a valuable and lucrative business and custom. 
 
 " IV. That, at the time hereinafter mentioned, the defendant 
 was the editor, publisher and proprietor of the JVew York Herald, 
 a newspaper published daily at the city of New York. 
 
 " V. That, on the 13th day of May, 1877, the defendant, well 
 knowing the premises, maliciously composed and published con- 
 cerning the plaintiff and concerning the premises, in said news- 
 paper, the false and defamatory matter following, to wit : \_Tke 
 following e-Btraot shows sufficiently the points upon lohich the 
 decision ticrned^ 
 
 " Another Huge Swill Milk Factory Exposed (meaning the 
 distillery of Gaff, Fleischmann & Co., and that this plaintiff was 
 one of the owners and proprietors of the cows referred to in 
 said article). The Horrors of Blissville; 800 Diseased Cows Fed 
 on Distillery Slops. 12,800 Quarts of Lacteal Poison Daily ; 
 Shall This Go On ? (meaning by this plaintiff, and that he was 
 one of the proprietors of the said cows, and conducted the said 
 business of delivering or selling milk, which was, or had been, 
 poisoned by this plaintiff, and said firm of Gaff, Fleischmann & 
 Co., and meaning that he was a member of said firm.)" 
 
 \_In the same manner the residue of the article was set forth,, 
 with similar innuendoes applying it to the plaint iff. 1 
 
I. Causes of Action at Law. (3) Torts: — Libel. 253 
 Fleischmann v. Bennett, 87 N. Y., 231. 
 
 " YII. And the plaintiff further shows, that on the lith day 
 ■of May, 1877, the defendant, well knowing the premises, did 
 maliciously compose and maliciously publish, concerning the 
 plaintiff, in said newspaper, a certain further article, containing 
 the false and defamatory matter following, to wit : \_In the 
 same manner as above another separate artide was set forth 
 which in terms related to the ' Blissville swill milk sheds,^ and 
 ■innuendoes were here also inserted applying the defamatory 
 statements to the plaintiff .'] 
 
 Other alleged libelous articles were also set out, which it is 
 not necessary here to state. 
 
 Defendant demurred to the portions of the complaint contain- 
 ing the first and second articles, which were claimed to be 
 separate and distinct causes of action, on the ground that it 
 appeared by those portions of the complaint that the articles 
 were not published of and concerning the plaintiff, and so that 
 they stated no cause of action. 
 
 The Supremq Court at Special Term overruled the demurrer, 
 and an interlocutory judgment was entered for plaintiff. 
 
 The General Term reversed the judgment, holding that the 
 :articles complained of had no reference either to the plaintiff or 
 his business. That to constitute an actionable hbel, an import- 
 ant element is its application to the plaintiff', which is not con- 
 tained in the complaint objected to by this demurrer. 
 
 The Court of Appeals affirmed the judgment. 
 
 MiLLEE, J. The complaint in this action sets forth, as causes 
 -of action separately, six distinct articles, published at six different 
 iimes. A demurrer is interposed to the first two causes of 
 action, the articles set forth in which do not name the plaintiff. 
 The alleged ground of demurrer, so far as these two causes of 
 -action are concerned, is that each one is self -contradictory, inas- 
 much as it alleges that the article stated was published of and 
 •concerning the plaintiff, while it elsewhere contradicts this aver- 
 ment by allegations which are entirely at variance and inconsist- 
 ■<ent with it. 
 
 The counsel for the defendant insists that the complaint shows 
 
25i Abbott's Select Cases on Code Pleading. 
 
 Fleisclimaiin v. Bennett, 87 N. Y., 231. 
 
 lo affirmatively that the article set out as the first cause of action 
 was not published of, or concerning the plaintiff, and as it 
 answers itself, the demurrer was well taken. In determining 
 the question presented, it is important to examine the complaint 
 for the purpose of ascertaining the nature of the allegation 
 stated and the basis upon which it is constructed. At the outset 
 it alleges that the plaintiff was in business at a certain place, 
 which is named, and had conducted the business stated upon said 
 premises. After the usual allegation that he had maintained 
 a good reputation and credit, it proceeds to state that he had never 
 been guilty of any violation of the laws of this state ; nor in any 
 manner a copartner, owner or agent in any business or calling 
 such as is described in the libel hereinafter set forth, or in the 
 production of milk, or distillery swill, so called, or distillery 
 Avaste or grain, or the ownership or care of cows, or the keeping 
 of cows, or the feeding of cows, or of any of the offences charged 
 in the libel set forth. 
 
 Immediately afterward follows the allegation of the publication 
 of the libel, which is set forth verhatim, and a perusal of which 
 
 [•) discloses that such a business as the complaint alleges that the 
 plaintiff had not been engaged in, was condacted by the firm of 
 Gaff, Fleischmann & Co., and that the libelous matter related to 
 this business, and to the last-named firm, and to no other person 
 or persons ^vho are not members of that firm. The libel referred 
 to was evidently directed against, and intended to embrace the 
 persons mentioned. The complaint nowhere negatives the 
 averment that the firm of Gaff, Fleischmann & Co. were the 
 parties engaged in the business n;entioned therein ; and under 
 such a pleading, therefore, it cannot be claimed that any other 
 
 ^■'persons besides the members of the firm were referred to, or 
 intended to be included in the libelous charges made. As the 
 libel neither describes nor refers to the plaintiff, nor to the busi- 
 ness in which he was engaged, but names a different business, 
 and a firm of which in a preceding portion of the complaint it is 
 alleged he is not, and never was a mamber, it is manifest that 
 the plaintiff cannot in any way be connected with the libelous 
 matter set forth. 
 
 Instead of averments that the plaintiff was engaged in the 
 
I. Causes of Action at Law. (3) Torts ; — Libel. 255 
 
 Fleischmann v. Bennett, 87 N. Y., 231. 
 
 business named, and was a member of the iirm so engaged, it is 14 
 denied on the start, and stated to the contrary, that he was 
 engaged in another and a different kind of business. Under the 
 allegation in the complaint as to plaintiff's business, and that 
 he was not connected in any form with the business described in 
 the libel, with a statement of the publication showing on its face 
 that it did not relate to, and was not published of and concerning 
 the plaintiff, it is not apparent in what form or upon what theory 
 the portions of the complaint demurred to can be upheld. 
 
 The learned counsel for the plaintiif, however, claims that it „ 
 is not a necessary ingredient of the libel that the person in- 
 tended should be named ; and it is a question for the jury to 
 determine whether the publication referred to the plaintiff and 
 caused him injury. "While, no doubt, an action for libel may be 
 maintained where the plaintiff is described in the libelous matter, 
 directly or indirectly, without his name, and is pointed out so 
 that it is capable of direct proof that he was intended ; yet 
 where the allegations negative such a conclusion and show to the 
 contrary, this rule has no application. There is no principle 
 which authorizes the introduction of any such evidence, where, 16 
 on the face of the complaint, it is clearly apparent that the libel- 
 ous words do not relate to, and have no connection with the 
 plaintiff or his business as stated therein. 
 
 The authorities cited by the learned counsel for the appellant 
 have no application when the complaint plainly shows that the 
 plaintiff was not intended as is the fact here. The omission of 
 the name, or an ambiguous description of the person, or even 
 words used in an uncertain and doubtful sense which require 
 extrinsic evidence to explain, may be rendered sufficiently 
 certain by the proper averments with a colloquium (Folkard's * 
 Starkie on Libel, §43i); but there are no such allegations in the 
 complaint as brings the case at bar within the rule laid down. The 
 averment that the publication was of and concerning the plaintiff 
 does not, we think, obviate the difliculty, inasmuch as the 
 previous allegation as to the plaintiff's business, and that he was 
 not engaged in the business described in the libel, shows that it 
 could not and did not relate to the plaintiff, and hence it is not 
 applicable to the facts set forth in the pleading. 
 
250 Abbott's Select Cases on Code Pleading. 
 
 Fleischmann v. Bennett, 87 N. Y., 231. 
 
 18 The defects wliich exist as to the first alleged cause of action 
 are not obviated or cured by the innuendo which afterwards 
 recurs, " meaning the plaintiff," for the language of the libelous 
 article will not bear any such interpretation when considered in 
 connection with other averments which allege that the plaintiff 
 was engaged in other business and had no connection with the 
 firm of Gaff, JFleischmann & Co. 
 
 Under the Code of Civil Procedure, §535, it is not necessary 
 to state any extrinsic facts for the purpose of showing the appli- 
 cation of the defamatory matter to the plaintiff ; and the question 
 in regard thereto is covered by the averment that it was published 
 of, and concerning the plaintiff, and when such averment can be 
 held to apply, and is not as in this case contradicted and rendered 
 nugatory by other allegations. The innuendoes here are falsified 
 by averments that the plaintiff was engaged in other business, 
 that he was never in the milk business, nor a partner of Gaff, 
 Fleischmann & Co. The libelous articles assail the proprietors of 
 the Blissville milk establishment and their agents. The plaintiff 
 denies all connection or association with that concern, and thus 
 
 OQ asserts that he is not one of the persons intended by the libel. It 
 was aimed and directed against the firm, and not against plaintiff, 
 who claims he had nothing to do with them, and hence he could 
 not be injured thereby. An innuendo does not enlarge the 
 matter set forth specially in other portions of the complaint. It 
 only explains the application of the words employed. When not 
 justified by the antecedent facts to which it refers, so that, reject- 
 ing it, the words are not actionable, a demurrer will lie. (Caswell 
 V. Eaymond, 2 Abb. Pr., 193 ; Blaisdell v. Eaymond, 14 id., 
 446-458 ; Fry v. Bennett, 5 Sandf., 65.) 
 
 "21 While the section of the new code cited dispenses with the 
 necessity of averring in detail the facts which evince who was 
 the person intended, it does not authorize the plaintiff to prose- 
 cute his action after he has made a complete denial of his 
 connection with, and of the application of the facts stated in the 
 alleged libelous matter to himself on which it is founded. It 
 cannot, we think, be fairly claimed that the statement that the 
 name was familiar sufficiently points to the plaintiff so as to 
 indicate that he was intended, or that from this or any other 
 
I. Causes of Action at Law. (3) Torts: — Libel. 257 
 
 Fleischmann v. Bennett, 87 N. Y., 331. 
 
 allegation referred to there was any question of fact for the jury 22 
 as to whether the plaintiff's bread was alluded to. 
 
 In regard to the article set forth as the second cause of action, 
 mo cause of action is made out for the same reasons which 
 affect the first cause of action. It is aimed at and denounces 
 the management described, and the Blissville Distillery, giving 
 details as to the offensive character of the same, and referring to 
 the statute and citing the same as applicable to Gaff, Fleisch- 
 mann & Co. It makes no charge against the plaintiff and does 
 not connect him with the copartnership. 
 
 It does not distinctly allege that the firm named are the 
 owners, but leaves the inference to be drawn, from the previous 
 reference to them, that they were the owners, and the com- 
 plaint, as already stated, absolutely denies that the plaintiff was 
 a member of any such firm, or that he was the owner of the 
 Blissville establishment, or had any interest whatever in any 
 such business. 
 
 By this denial it is manifest, as a matter of law, that neither 
 of the articles can be held to apply to the plaintiff. It may also 
 be remarked that the second article cannot be regarded as having 24 
 any defamatory application to any person who is not a member 
 of the firm. The count, in the complaint referred to, we think, 
 cannot be upheld upon the ground that it contains but one cause 
 of action, and is not susceptible of any such construction. It is 
 divided into several parts, alleges several distinct causes of 
 action, arising out of several articles published on different dates, 
 each of which is separately numbered and is treated as such by 
 the plaintiff. It cannot, therefore, be regarded as embracing only 
 one separate and distinct cause of action. It is not apparent in 
 what manner the plaintiff could unite these several and distinct 
 libels as one single cause of action ; nor is there any ground for 
 claiming that either one of the articles is set out as a matter of 
 inducement to the others, or any of them. Regarding the 
 language employed, the intention of the pleadings to be derived 
 ■therefrom, and the various libels which constitute the gravamen 
 of the action, there is no reason for claiming that but one cause 
 of action is set forth. 
 
 The allegation of the plaintiff as to the causes of action de- 
 17 
 
258 Abbott's Select Cases on Code Pleading. 
 
 Caldwell v. Raymond, 3 Abb. Pr., 193. 
 
 26 murred to is that the libelous articles published related to him- 
 self, while on their face it is clear that they had no reference 
 either to him or to the business in which he was engaged. 
 
 We think the General Term was right in its judgment, and 
 that the same should be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 CALDWELL v. EAYMOND. 
 
 JV. Y. Supreme Court, Fourth District, Special Term, ISoo. 
 
 [Reported in 2 Abb. Pr,, 193.] 
 
 1. The complaint in an action for libel consisting in words not on their 
 face libelous, must distinctly aver the extrinsic fact on which plaintiff 
 relies to show the alleged libelous character of the words complained 
 of ; and it is not sufficient that this fact is alleged byway of innuendo. 
 
 3. The complaint in such case must also show that the defendant had 
 actual knowledge of the particular extrinsic fact relied on ; and it is. 
 not sufHoient to allege that the words were published "falsely and 
 maliciously." 
 
 3. The complaint must also show special damage. 
 
 Joseph W. Caldwell sued Henry J. Eaymond, Fletcher 
 
 ^ Harper, Jr., and Edward B. Wesley, proprietors and publishers 
 
 of the New York Daily Times for an alleged libel. The article 
 
 complained of was an ordinary advertisement of marriage, which 
 
 was as follows : 
 
 " Married— Joseph W. Caldwell to Elizabeth Ehle, late of 
 New York." 
 
 To the original complaint in the action the defendants 
 demurred on the ground that it did not state facts sufficient to 
 constitute a cause of action. The plaintifE then served an 
 amended complaint, which, after averring that defendants were 
 the proprietors of the newspaper in which the advertisement 
 appeared was as follows: * * * "That said defendants 
 intending and maliciously contriving to injure the said plaintiff 
 in his good name, fame and credit, and to bring him into public 
 scandal, infamy and disgrace with and among his neighbors and 
 other good and worthy citizens, and cause it to be suspected 
 
I. Causes of Action at Law. (3) Torts : — Libel. 259 
 
 I Caldwell v. Raymond, 3 Abb. Pr., 198. 
 
 and believed by those neighbors and citizens that said plaintiff 
 had been and was guilty of the offences and misconduct herein- 
 after mentioned to have been committed by him, the said defend- 
 ants did on the 30th day of June, 1855, carelessly, negligently, 
 falsely and maliciously compose and publish and cause to be 
 published in the said newspaper, of and concerning the said 
 plaintiff, a false, scandalous, malicious, and defamatory libel, 
 containing among other things the false, scandalous, malicious 
 and defamatory and libelous matter following, of and con- 
 cerning the said plaintiff, that is to say, "Married : Joseph W. 
 Caldwell," said plaintiff meaning, "to Miss Elizabeth Ehle, 
 late of New York," meaning a public prostitute known by that 
 name. That said Elizabeth Ehle is and was a public prostitute, 
 and well known to be so, thereby intending to charge that said 
 plaintiff had been guilty of marrying a prostitute. Ey means of 
 the committing of said grievances by the said defendants, the 
 said plaintiff has been and still is greatly injured in his good 
 name, and fame, and credit, and brought into public scandal, 
 infamy and disgrace with and among his neighbors and other 
 good and worthy citizens, to the damage of said plaintiff of five 
 thousand dollars." 
 
 To this amended complaint, also, the defendants demurred, 
 assigning the same ground as before. The demurrer was argued 
 at the Plattsburgh Special Term. 
 
 James, J. On the argument of this demurrer the defendants' 
 counsel insisted that the publication set forth in the complaint 
 had no injurious or defamatory meaning, and urged the follow- 
 ing as the grounds why the complaint was insufficient and de- 
 fective : 
 
 1. The extrinsic fact, by means of which the plaintiff seeks to 
 show the words libelous, viz., that Elizabeth Ehle was a public 
 prostitute, should be distinctly and independently averred in the 
 complaint, so that the defendants can traverse the allegation. 
 
 2. The complaint should have averred that the extrinsic fact 
 relied on was known to the defendants at the time of the publi- 
 cation. 
 
 3. The complaint should have averred special damage. 
 
260 Abbott's Select Cases on Code Pleading. 
 
 Caldwell r. Raymond, 2 Abb. Pr., 193. 
 
 7 I. — That the publication, on its face, bore no injurious or 
 defamatory meaning will not be disputed, and it is a well settled 
 rule in pleading in actions of this character, that when the words 
 used by the defendant do not, of themselves, convey the mean- 
 ing which the plaintiff would attribute to them, and such mean- 
 ing results only from some extrinsic matter or fact, such ex- 
 trinsic matter or fact must be alleged in the complaint and 
 proved on the trial. It was therefore necessary for the plaintiff 
 in this case distinctly to aver the extrinsic fact upon which he 
 relied to make the publication libelous. 
 
 It is insisted that this has not been done, and that the extrinsic 
 matter is only suggested by way of innuendo. If the defendants 
 are right in this, then the complaint is defective, because it is not 
 enough to allege by way of innuendo distinct and independent 
 averments in aid of the charge, and to rely upon such iimuendo to 
 authorize the jury to determine the character of the charge. An 
 innuendo does not enlarge the matter set forth in the other 
 portions of the complaint ; it is only explanatory of the matter 
 already charged, and does not extend the sense of the words be- 
 
 9 yond their natural import, unless accompanied by a distinct 
 averment or colloquium, or other introductory allegation to which 
 it may properly have reference. (1 Saund., 243, n. 4.) The rule 
 in this case has not been changed by the Code. Section 164 
 only dispenses with the allegation of extrinsic facts showing the 
 application of the words to the plaintiff. When a publication 
 can be determined as libelous only by reference to extrinsic 
 facts, the existence of such facts must now, as formerly, be 
 averred in the complaint. (Pike v. Van Wormer, 5 How. Pr. R., 
 171 ; 6 lb., 99 ; Fry v. Bennett, 5 Sand., 54.) The only portion 
 
 ^ of the complaint in this action which suggests any extrinsic 
 matter or fact calculated to render the publication objectionable, 
 is that which states that the defendants published "the libelous 
 matter following of and concerning the said plaintiff," that is to 
 say, " Married : Joseph W. Caldwell " (said plaintiff meaning) 
 " to Miss Elizabeth Ehle, late of New York " (meaning a public 
 prostitute known by that name) ; that said Elizabeth Ehle is and 
 was a public prostitute, and well known to be so; thereby intend- 
 ing to charge that said plaintiff has been guilty of marrying a 
 
I. Causes of Action at La'x. (3) Torts: — Libel. 201 
 
 Caldwell v. Raj'mond, 2 Abb. Pi-., 193. 
 
 prostitute." The pleader may have intended the last sentence 11 
 as an averment of the extrinsic fact, but it cannot be so treated. 
 To give it the character of a distinct averment it would be nec- 
 essary to supply the words, " And the said plaintiff further 
 avers." In that case it would not make sense, and besides the 
 averment of the extrinsic fact would follow the innuendo, while 
 the rule of pleading is uniform that such averments must pre- 
 cede the innuendo. To make the passage bear any connected 
 sense whatever the Avhole must be treated as an innuendo, and 
 read thus : " Married : Joseph W. Caldwell (said plaintiff 
 meaning) to Miss Elizabeth Ehle, late of New York (meaning a 
 public prostitute known by that name, and that sai4 Elizabeth 
 Ehle is and was a public prostitute, and well known to be so, 
 thereby intending to charge that said plaintiff had been guilty of 
 marrying a prostitute)." There being no distinct averment of 
 the extrinsic fact from which it is sought to make the publication 
 libelous, the complaint is defective and the demurrer well taken. 
 
 II. — The second point is " that the complaint should have 
 averred that the extrinsic fact relied on was known to the de- 
 fendants at the time of the publication." It contains no such 13 
 averment. I have heretofore said that this publication, of itself, 
 contains no injurious meaning towards the plaintiff. Marriage is 
 lawful and the law does not imply that parties to such contracts 
 are persons of bad character, and no presumption of constructive 
 malice, or malice in law, can arise from the bare publication of 
 such a marriage notice. Presumption of malice can only arise 
 when the publication, on its face, is capable of conveying an in- 
 jurious meaning, or producing an injurious effect. Every man is 
 presumed to foresee and intend all the mischievous consequences 
 that may justly be expected to flow from his vohmtary acts. 
 
 The cases of constructive malice are exclusively such as involve 
 words capable of bearing in themselves a libelous meaning. The 
 law in such cases reasonably presumes that the defendant meant 
 to say exactly what he did say. But the law presumes no more 
 than this ; and when a hidden defamatory meaning is sought to 
 be attributed to words in themselves innocent, and on their face 
 containing no such sense, by extrinsic facts outside and inde- 
 pendent of the publication itself, the knowledge of such facts 
 
262 Abbott's Select Cases on Code Pleading-. 
 
 Caldwell v. Raymond, 3 Abb. Pr., 193. 
 
 15 must be shown by averment and proof to have existed in the 
 breast of the defendant at the time of publication. This princi- 
 ple is substantially held in Smith v. Ashley (11 Mete., 367), and 
 Dexter v. Spear (4 Mass., 115). A publisher may be liable for 
 the publication of an article clearly libelous, which was inserted 
 in his paper without his knowledge or consent ; but not when he 
 is not shown and cannot be presumed to have known that the 
 article was intended to bear an injurious meaning. It is true 
 that it is averred that the defendants published the words 
 " falsely and maliciously," but that is not sufficient when the ex- 
 trinsic fact relied on to make the publication libelous is 
 independent of the words published ; in such cases the pleader 
 should bring home to the defendant a knowledge of that fact. 
 
 III. — The defendants' third point is that the plaintiff should 
 have averred special damage. This he has not done. The law 
 in this state is now well settled that when the court can discern 
 an injxirious meaning in the plain and natural purport of the 
 publication itself, some damage is to be presumed ; but when the 
 words are not, in their natural and obvious construction, inju- 
 
 17 rious, the plaintiff must aver and prove special damage. It was so 
 held in Cooper v. Stone (2 Den., 299), and followed in Bennett 
 V. Williamson (4 Sand., 60). In the former case, the Chancellor, 
 in delivering the opinion of the court, said : " To sustain a 
 private action for the recovery of a compensation in damages for 
 a false and unauthorized publication, the plaintiff in such action 
 must either aver and prove that he has sustained some special 
 damage from the publication of the matter charged against him, 
 or the natiire of the charge itself must be such that the court 
 can legally presume he has been degraded in the estimation of 
 his acquaintances, or of the public, or has suffered some loss, 
 either in his property, character or business, or in his domestic or 
 social relations, in consequence of the publication of such 
 charge." There is nothing in the nature of the publication set 
 forth in this complaint from which the court can legally pre- 
 sume that any of the consequences above set forth would flow. 
 Special damage should have been averred. 
 
 Judgment for the defendants on demurrer, with leave to 
 plaintiff to amend, on payment of costs. 
 
I. Causes of Action at Law. (3) Torts: — Trespass. 263 
 Sprague v. Parsons, 14 Abb. N. C, 320. 
 
 ^PRAGUE V. PARSONS. 
 
 New York Common Pleas, Special Term, 1881^. 
 [Reported in 14 Abb. N. C, 320.] 
 
 1. The complaint in an action to recover damages for a trespass in levying 
 
 void or irregular process need not aver malice or want of probable 
 cause. 
 
 2. An allegation that the attachment was illegal, unauthorized and void, 
 
 is not sufficient on demurrer, for it states a conclusion of law only. 
 
 3. An allegation that the attachment has been vacated for irregularity is 
 
 sufficient to sustain the action, although the rule of damages may be 
 different from that applicable in the case of a void attachment. 
 
 Demurrer to complaint. 
 
 Daniel J- Sprague sued William H. Parsons and others for 
 damages sustained by the issuing of a void attachment and levy 
 thereof by the sheriff, in an action in the Supreme Court, brought 
 by these defendants as plaintiffs against this plaintiff and others 
 as defendants, to charge them with liability for the debts of the 
 McKillop & Sprague Company, of which it was claimed that 
 such defendants were trustees. The complaint alleged the above 
 matters, and that the attachment was vacated and set aside in said 
 action, and alleged damages, etc. Defendants demurred on the 
 ground that the complaint does not state facts sufficient to con- 
 stitute a cause of action. 
 
 J. F. Dalt, J. The complaint is sufficient. There is no need 
 to aver malice or want of probable cause in suing for damages 
 sustained by the levying of a void or irregular attachment. A 
 process being void, the party who sets it in motion and all who 
 aid him are trespassers. (Kerr v. Mount, 28 N. Y., 659; Wliele v. 
 Butler, 61 id., 245 ; Day v. Bach, 87 id., 56 ; see also in this 
 court, Wehler v. Haviland, 42 How. Pr., 399 ; 4 Daly, 550.) 
 
 The action may be maintained if the process be irregular only, 
 on proof that it has been set aside. The complaint avers that 
 fact, and is sufficient in such an action. But the rule of damages 
 may be different in such a case from the rule in case of an abso- 
 lutely void attachment (Day v. Bach, above). The complaint 
 here is not good as a pleading in an action of the latter class. 
 
264: Abbott's Select Cases on Code Pleading. 
 
 Langdon v. Guy, 91 N. Y., 661. 
 
 The allegation that the attachment was " illegal, unauthorized 
 and void," is a statement not of fact, but of a conclusion of law. 
 (Hammond v. Earle, 58 How. Pr., 426, 437-8.) The plaintiff 
 will have to amend if he desires to prove on the trial that the 
 attachment was void. But as a complaint in an action upon an 
 attachment voidable for irregularity, the complaint is good be- 
 cause it avers that the attachment has been vacated. 
 
 The demurrer is therefore overruled with costs. Leave to 
 defendant to answer on payment of costs. 
 
 LANGDON V. GUY. 
 
 JVew York Court of Appeals, 1883. 
 
 [Reported in 91 N. Y., 661.] 
 
 A complaint alleging that defendant wrongfully and unlawfully entered 
 plaintiff's premises and there assaulted him, and an answer consisting 
 of a general denial and an allegation that the premises belonged to 
 and were in possession of a third person, and that plaintiff, on the day 
 stated in the complaint, wrongfully entered and assaulted such o^vner, 
 which assault defendant, being in the employ of the latter, rightfully 
 resisted, do not put title to land in issue, if no injury to the freehold is 
 alleged nor any damages to the premises claimed. 
 
 Action of trespass. 
 
 The allegations of the complaint were : 
 
 That on the 6th day of September, 1879, at the town of Kings- 
 bury, in the county of Washington and State of New York, the 
 said defendant wrongfully and unlawfully entered upon the 
 premises of the plaintiff, and into his dwelling-house, and then 
 and there wrongfully and unlawfully did beat, bruise, wound 
 and ill-treat this plaintiff, and vindictively and without the 
 slightest provocation or cause, did deliberately, in a brutal man- 
 ner, strike this plaintiff upon his head and other parts of his per- 
 son, and did seize and drag this plaintiff, and drag him out of his 
 said dwelling-house, and did tear and injure the clothes of this 
 plaintiff, and did attempt to handcuff and imprison this plaintiff, 
 and did do him other bodily injuries, whereby he sustained dam- 
 ages to the amount of $1,000. 
 
I. Causes of Action at Law. (3) Torts: — Trespass. 265 
 
 Lang-don v. Guy, 91 N. Y., 661. 
 
 Wheeefoee plaintiff demands judgment against the defendant 3 
 for $1,000, besides costs and disbursements of tbis action. 
 
 The answer contained the following defenses : 
 
 First. — A general denial. 
 
 Second. — "And for a second and separate defense, said defend- 
 .ant avers that one Henry D. Langdon was the owner of and in 
 possession of a certain house in Kingsbury, Washington county, 
 ISTew York, on the 6th day of September, 1879 ; that on that day 
 the plaintiff wrongfully and unlawfully entered said house and 
 assaiilted said Henry D. Langdon and his wife ; that this defend- 
 ant, who was then in the employ of said Henry D. Langdon, by 
 the order and direction of said Henry D. Langdon, as he lawfully 
 might do, resisted the said plaintiff in his assault upon said 
 Henry D. Langdon and his wife, and in the defense of Henry D. 
 Langdon and his wife removed said plaintiff from said liouse. 
 using no unnecessary force ; which is the same act charged in the 
 complaint." 
 
 The third defense is a repetition of the second defense, except 
 that defendant alleges himself to be a deputy-sheriff of Washing- 5 
 ton county, and that on said day plaintiff wrongfully entered the 
 dwelling-house of one Langdon and assaulted him, and that, as 
 such deputy slieriff, defendant removed the plaintiff from the 
 house without unnecessary force. 
 
 At the trial plaintiff recovered a verdict of $25, and- then 
 moved for an allowance of full costs on the ground that the title 
 to land was put in issue by the pleadings. 
 
 He relied on the following provisions of the Code Civ. Pro.: 
 
 § 3228. When plaintiff entitled to costs of course. The 
 plaintiff is entitled to costs of course, upon the rendering of a 
 final judgment in his favor, in either of the following actions : 
 
 1. An action, triable by a jury, to recover real property, or an 
 interest in real property, or in which a claim of title to real 
 property arises upon the pleadings, or is certified to have come 
 in question upon the trial. 
 
 2. An action to recover a chattel. But if the value of the 
 chattel, or of all the chattels, recovered by the plaintiff, as fixed, 
 together with the damages, if any, awarded to him, is less than 
 
10 
 
 266 Abbott's Select Cases on Code Pleading. 
 
 Langdon v. Guy, 91 N. Y., 661. 
 
 fifty dollars, the amount of his costs cannot exceed the amount of 
 the value and the damages. 
 
 3. An action specified in subdivisions first, third, fourth, or 
 fifth of section two thousand eight hundred and sixty-three of 
 this act. But if, in an action to recover damages for an assault, 
 battery, false imprisonment, libel, slander, criminal conversation, 
 seduction, or malicious prosecution, the plaintiff recovers less 
 than fifty dollars damages, the amount of his costs cannot exceed 
 the damages. 
 
 4. An action, other than one of those specified in the forego- 
 ing subdivisions of this section, in which the complaint demands 
 judgment for a sum of money only. But the plaintiff is not 
 entitled to costs, under this subdivision, unless he recovers the 
 sum of fifty dollars or more. 
 
 The Special Term of the Supreme Court granted the motion, 
 on the ground that the complaint charged a trespass upon real 
 property belonging to the plaintiff, as well as an assault, the 
 answer denied the allegations and alleged' ownership and poses- 
 sion in another, and that consequently plaintiff's right to posses- 
 sion was brought in question, was material, and might be decisive 
 of the question as to whether the act complained of was an assault 
 or not. 
 
 The General Term afiirmed the order of the court below 
 without opinion. 
 
 The Court of Appeals reversed the order. 
 
 Danfoeth, J. We think title to land is not brought in ques- 
 tion by the pleadings. No injury to the freehold is alleged in 
 the complaint, nor are damages claimed for entering upon the 
 premises. The injury for which indemnity is sought was to the 
 person, and the defense set up was that the acts complained of 
 were committed in the defense of certain parties, who, being first 
 assaulted by the plaintiff, requested the assistance of the defend- 
 ant as their servant. Upon the face of the papers nothing more 
 appears than a simple assault and battery, and justification ; and 
 as no certificate was given that the title to lands came in ques- 
 tion upon the trial, and the recovery was less than §50, we think 
 
I. Causes of Action at Lmc. (3) Torts: — Trespass. 26T 
 
 Whatling v. Nash, 41 Hun, 579. 
 
 the plaintiff was entitled to no more costs and damages. (Code, 11 
 § 3228, subd. 1 and 3.) 
 
 It is true the complaint alleges that the defendant wrongfully 
 ■entered the plaintiff's grounds and house and there committed 
 the assault, and the answer, besides a general denial, avers that 
 one Henry D. Langdon, was the owner of the house, but these 
 allegations seem mere matters of description, and not facts upon 
 which the right of either party depends. The violence of neither 
 was exerted to obtain or defend possession of title. 
 
 WHATLING V. JSTASH. 
 
 New York Sujyreme Court, Fifth Depaiiment, 1886. 
 [Reported in 41 Hun, 579.] 
 
 1. In a complaint for trespass to real propei-ty, a cause of action for enter- 
 ing on plaintiff's land under water and taking, and carrying away fish, 
 may be joined with one for a like entry on his land and catching and 
 killing animals. 
 
 ■3. Both these are for injuries to real property. 
 
 3. The added allegations of injuries to personal property are not separate 
 
 causes of action, but mere matter in aggravation of damages. [Com- 
 pare the next two cases.] 
 
 4. A demurrer for misjoinder of causes of action does not avail to raise 
 
 the objection that two joinable causes are pleaded in one commingled 
 statement. 
 
 The defendant demurred to the complaint (1st) for misjoinder 1 
 of causes of action, and (2d) for insufficiency. 
 
 The Special Term overruled th6 demurrer. On the argument 
 at General Term the second ground was practically abandoned. 
 
 The General Term now affirmed the judgment. 
 
 Smith, P. J. {cifter saying that the second ground was unten- 
 able^ : As to the first ground it is true that the complaint sets 
 forth two distinct caitses of action, but they are such as may 2 
 properly be joined in one complaint, as they are both for al- 
 leged injuries to real projjerty. One is for a wrongful entry upon 
 plaintiff's land under water, about April or May, 1881, and 
 wrongfully taking and carrying away fish therefrom ; the other, 
 
268 Abbott's Select Casks on Code Pleading. 
 
 Gilbert v. Pritchard, 41 Hun, 46. 
 
 for alike entry on plaintiff's land in the year 1882, and catching 
 and killing muskrats thereon. The allegations of injuries to per- 
 sonal property are not, as the appellant's counsel seems to suppose, 
 statements of separate causes of action, but are mere averments 
 in aggravation of the wrongful entry. (Van Leuven v. Lyke, 1 
 N. Y., 515 ; Howe v. Willson, 1 Den., 181 ; Dunckle v. Kocker, 
 11 Barb., 387 ; Clark v. Van Vrancken, 20 id., 278 ; Gilbert v. 
 Pritchard, 41 Hun, 46.) 
 
 The question whether the two causes of action for trespass- 
 quare clausum should be stated in separate counts and separately 
 numbered is not before us. 
 
 The judgment should be aiSrmed, with costs, with leave to the 
 defendant to withdraw the demurrer and answer the complaint 
 within twenty days, etc., on payment of the costs of the demurrer 
 and of this appeal. 
 
 Baekee, Haight and Beadley, JJ., concurred. 
 
 So ordered. 
 
 GILBERT V. PEITCHAED. 
 
 New Yorh Supreme Court, Fifth Department, 1886. 
 
 [Reported in 41 Hun, 46.] 
 
 In a complaint alleging trespass to real property, allegations of injuries to- 
 grass and crops, and of assault and battery of plaintiff, then and there 
 committed, are not separate causes of action, but are properly stated 
 in aggravation of the trespass. [Co'tnpare the preceding and the next 
 case.] 
 
 1 The Special Term, on defendant's motion, ordered plaintiff to ■ 
 separately state and number as separate causes of action, allega- 
 tions of trespass to land and allegations of injury to grass, crops 
 and person. 
 
 The General Term, now reversed the order. 
 
 Smith, P. J. The iirst count in the complaint alleges an as- 
 sault and battery ; the second alleges that defendants broke 
 plaintiff's close, on a day stated, and then and there trod down, 
 the grass and crops and assaulted and beat the plaintiff. The 
 
I. Causes of Action at Law. (3) Torts : — Trespass. 269 
 
 Gilbert v. Pritchard, 41 Hun, 46. 
 
 -second count, as well as the first, alleges but one cause of action. 
 It is what, under the old nomenclature, was known as trespass 
 quare clausum /regit, the injury to the grass and crops and to the 
 plaintiff's person being stated, not as separate causes of action, but 
 in aggravation of the trespass. Instances of this form of plead- 
 ing were familiar under the old practice. (Van Leuven v. Lyke, 
 1 ]Sr. Y., 515 ; Howe v. Willson, 1 Denio, 181 ; Dunckle v. 
 Kocker, 11 Barb., 387 ; Clark v. Van Vrancken, 20 id., 278.) 
 And as there is nothing in the Code prohibiting a party from al- 
 leging in one count every item of damage he may have suffered 
 from a single trespass, that form of pleading is still good. 
 
 The order appealed from should be reversed and the motion 
 ■denied, with ten dollars costs and disbursements of the appeal. 
 
 Baekee and Beadley, J. J., concurred ; Haight, J., not sitting. 
 
 Order reversed, with ten dollars costs and disbursements, and 
 motion denied. 
 
 Note. — A different view was taken in Gunn v. Fellows, N. Y. Supreme 
 '•Court, Fourth Department, 1886, reported in 41 Hun, 257. It was there 
 "held (1) that in a complaint alleging trespass to real property and injuries 
 "to personal property on the premises, additional allegations of assault and 
 battery then and there committed on plaintiff must be deemed an addi- 
 !tional cause of action within the rule requiring separate causes of action 
 "to be separately stated and numbered. (3) The remedy against such, a com- 
 iplaint is not demurrer, but motion to compel separate statement and 
 •numbering. (3) It seems that the common-law rule is that matter which 
 -itself would sustain an action cannot be pleaded merely in aggravation, 
 ;and is in force under the Code. (4) The rule as to costs, where there is a 
 recovery as to one and not as to the other cause of action, is an additional 
 .reason for maintaining this practice. 
 
 In nine cases somewhat similar to the two preceding cases in the text, 
 fbrought by the same plaintiff against various members of the same party 
 of ti'espassei-s, the complaint in each alleged trespass and injury to the 
 -dwelling occupied by plaintiff, and injury to furniture, and assault and 
 battery on her person, laying damages at $5,000. 
 
 The defendant in each case moved to compel plaintiff to state the as- 
 .-sault as a separate cause of action from the trespass to real and personal 
 property. 
 
 The Special Term denied the motion, on the ground that only one cause 
 •of action was alleged, viz., trespass. 
 
 The General Term now reversed the order. 
 
 Hardin, P. J. : Section 483 of the Code of Civil Procedure requires "the 
 statement of the facts constituting each cause of action " to be " separate 
 
270 Abbott's Select Casks on Code Pleading. 
 
 Guan V. Fellows, 41 Hun, 357. 
 
 and numbered," when "the complaint sets forth two or more causes of 
 action." The remedy for an omission to comply with the requirement of 
 that section is by motion and not by demurrer. (Bass v. Comstock, 38 
 N. Y., 31 ; s. c. 36How., 383 ; Freer v. Denton, 61 N. Y., 496.) If causes of 
 action are improperly united the remedy is by demurrer, whether properly 
 separated and numbered or not. (Goldberg- i'. Utley, 60 N. Y., 437.) The 
 facts sta;ted in the first branch of the complaint, under the former system 
 of pleading-, would have justified a classification of the action as one for 
 trespass. That term, "in its most extensive signification, includes every 
 description of wrong." (1 Chitty's Pleadings, 166.) It was an action " for 
 injuries committed with force." 
 
 The same author says: "And the plaintiff may, in a declaration in 
 trespass, unite a count for the battery or seduction of his servant, per 
 quod servitium amisit, with a count for battery of the plaintiff himself. 
 * * * However, if these injuries be joined with a count in trespass, 
 then each should be stated to have been committed vi et armis." (1 
 Chitty's Pleadings, 300.) 
 
 The same learned author, at page 398, Volume 1, says : " Thus, in tres- 
 pass for breaking and entering a house, the plaintiff may, in aggravation 
 of damages, give in evidence the debauching of his daughter, or the bat- 
 tery of his servants under the general allegation alia enormia, etc., and 
 yet the matter may be stated specially ; but he cannot under the alia 
 enormia give in evidence the loss of service or any other matter which 
 would of itself hear an action, for if it would, it should be stated spe- 
 cially." (1 Chitty's Pleadings, 397 ; Handy v. Chatfield, 83 Wend., 3.5.) 
 
 In Richardson v. Northrop (66 Barb., 87), MuLLix, J., says : "The rules 
 of pleading at common law required distinct causes of action of the same 
 nature to be stated in separate counts ; and the joinder in the same 
 count of several distinct causes of action was consequently fatal on 
 demurrer." 
 
 We think the requirement of § 483 of the Code of Civil Procedure that 
 " the statement of the facts constituting each cause of action must be 
 separate and numbered " was violated by the pleader who drew the com- 
 plaint now before us. The first part of the complaint states a cause of 
 action for breaking and entering the plaintiff's dwelling house and injuring- 
 the building and property and furniture, which allegations make out a 
 distinct and separate cause of action, and the statement in that regard 
 should have been separated and numbered ; and tlie other portion of the 
 complaint contains a "statement of the facts constituting" another cause 
 of action for assault and battery to and upon the person of the plaintiff, 
 and such "statement of facts" should have been numbered and separated 
 from the first cause of action. 
 
 We, therefore, differ from the Special Term and its order which denied, 
 the defendant's motion on the "ground that but one cause of action, 
 namely, trespass, is alleged in the complaint." (Code of Civil Pro., §^ 
 481, 483; Case v. Nhepard, 3 Johns. Cases, 39; Benedict v. Seymour, 6 
 How., 398; Wiles v. Suydam, 64 N. Y., 175; Pomeroy's Remedies and 
 
I. Causes of Action at Law. (3) Torts : — Trespass. 271 
 
 Gunn V. Fellows, 41 Hun, 357. 
 
 Rights, §§ 453, 463 ; Anderson v. Hill, 53 Barb., 338 ; Langdon v. Guy, 91 ]0 
 N. Y., 660 ; Fisher v. Conway, 31 Kan., 18 ; Durkee v. S. & W. R. R. Co.; 
 4 How. Pr., 336; Gooding v. McAllister, 9 How., 133; Zimmerman v. 
 Shreever, 37 Alb. Law Jour., 499.) 
 
 Our attention is called to Van Leuven v. Lyke (1 N. Y., 517), which was 
 an action for trespass for injury to plaintiff's animals by defendant's ani- 
 mals, and the damages were described in the complaint, and it was not 
 alleged or proven that defendant had knowledge of the vicious propen- 
 sities of his animals. It was held damages could not be recovered. It 
 does not aid the respondent here. 
 
 "We have looked into the other cases cited by the respondent and do not . 
 find anything in conflict with the views already expressed. In case the 
 plaintiff recovers less than fifty dollars for trespass, a different rule as to H 
 costs would be applicable than would prevail in an action where the 
 recovery was for an assault and battery for less than fifty dollars. In 
 case the causes of action are separately stated and numbered, confusion 
 and difficulties in regard to the rule respecting costs may be avoided. 
 (Code, §§ 3338, 3334.) 
 
 We think the order appealed from in this and the other eight cases 
 should be reversed, with ten dollars costs and disbursements in one case, 
 and the motion granted in all the cases, with ten dollars costs of motion 
 in one case, plaintiff to serve amended complaints within ten days from 
 the service of a copy of this order. 
 
 BOARDMAN and FOLLETT, JJ., Concurred. 
 
 Orders reversed, with ten dollars costs and disbursements in one case, 
 and the motion granted in all the cases, with ten dollars costs of motion 
 in one case, plaintiff to serve amended complaints within ten days from 
 the service of orders. 
 
 N. B. — Section 3338 of the Code of Civil Procedure is quoted in Lang- 
 don V. Guy, p. 364, of this volume. 
 
 Section 3334 is as follows : In an action specified in section three thous- 
 and two hundred and twenty-eight of this act, wherein the complaint sets 
 forth separately two or more causes of action upon which issues of fact 
 are joined, if the plaintiff recovers upon one or more of the issues, and 
 the defendant upon the other or others, each party is entitled to costs 
 against the adverse party, unless it is certified that the substantial cause j^o 
 of action was the same upon each issue ; in which case the plaintiff only 
 is entitled to costs. Costs to which a party is so entitled must be in- 
 cluded in the final judgment by adding them to, or offsetting them against, 
 the sum awarded to the prevailing party ; or otherwise, as the case 
 requires. But this section does not entitle a plaintiff to costs in a case 
 specified in subdivision fourth of section tliree thousand two hundred and 
 twenty-eight of this act, where he is not entitled to costs, as prescribed in 
 that subdivision. 
 
272 Abbott's Select Cases on Code Pleading. 
 
 Buckel V. Suss, 38 Abb. N. C, 37. 
 
 BUCKEL V. SUSS. 
 
 JVew York Superior Court, Trial Term, 1S92. 
 
 [Reported in 38 Abb. N. C, 27.] 
 
 \Husband and wife; action for enticement. ^ A wife's action for damages 
 for the enticing- away of her husband, is based upon the loss of the 
 consortium or conjugal society of her husband, and is not maintaina- 
 ble where the wife has voluntarily left her husband and lives apart 
 from him under a separation agreement entered into under sanction 
 of the court.* 
 
 Motion for new trial. 
 
 This action was brought by Elizabeth Buckel against Anna 
 Suss to recover damages for enticing away plaintiff's husband 
 and wrongfully depriving plaintiff of the " comfort, society, con- 
 sort, aid and assistance of her said husband." The complaint 
 alleged that the acts occurred in and about the month of May, 
 1885, while the plaintiff was living and cohabiting with her said 
 husband in the city of New York and while they were living 
 together as man and wife. The answer denied the material alle- 
 gations of the complaint, alleged the consent and privity of the 
 plaintiff to the acts complained of, and set up the statute of limi- 
 tations. At the conclusion of the evidence on both sides, the 
 complaint was dismissed. Further facts are fully stated in the 
 opinion. 
 
 McAdam, J. The plaintiff is concluded by the nature of her 
 action as set forth in the complaint, which is for " enticing away 
 the plaintiff's husband," and the form of complaint used is that 
 found in 1 Abbott's Forms, p. 504, No. 608. It is not for 
 " crim. con." in which the words " debauched and carnally 
 knew" are necessary allegations. (McCall's Forms, 3d ed., p. 270, 
 No. 435 ; 1 Abbott's Forms, p. 504, No. 609.) So considered, 
 the plaintiff is without a cause of action, for, according to her 
 own testimony; she cohabited with her husband, until, by the 
 advice of her counsel, she left his home, hired rooms in another 
 house, and brought an action in the Supreme Court for a limited 
 
 * See note at the end of this case. 
 
I. Causes of Action at Law. (3) Torts : — Seduction, etc. 273 
 
 Buckel V. Suss, 38 Abb. N. C, 37. 
 
 divorce which resulted in July, 1888, in an agreement for sepa- 
 ation, by and with the sanction of the court, whereby her hus- 
 band agreed to pay her alimony at the rate of $1,000 per year, 
 payable monthly. While the wife's right to maintain an action 
 for enticing away the husband is now affirmatively established in 
 this state (Bennett v. Bennett, 116 N. Y., 584), the enticing must 
 be clearly proved. An action for harboring a husband or wife 
 is maintainable without the element of " crim. con." (2 Hilliard 
 on Torts, ith ed., 510), but the harboring means something more 
 than receiving a visit or casually entertaining a guest ; it means 
 some act or influence by which the husband or wife is induced 
 to remain away from home, or encouraged in some manner to 
 desert the companionship of his or her life partner. (Warner v. 
 Warner, IT Abb. N. C, 224.) 
 
 There was no enticing away of the plaintifli's husband, but a 
 voluntary departure from him by the plaintiff, followed by the 
 agreement for separation, " by judicial sanction," in July, 1888, 
 the consequence of which is to discharge the defendant from all 
 liability for harboring the plaintiff's husband, if her conduct rises 
 to the gravity of such an offense. This results from the nature 
 of the damages recoverable and the effect of a legal separation 
 upon marital rights. 
 
 The damages recoverable are for the loss of the " society, com- 
 fort and assistance" of the husband or wife. (Selwyn's N. P., 6; 
 Bigelow on Torts, 153 ; Bennett v. Bennett, supra.) Where the 
 wife sues, she must rely upon the loss of consortium or conjugal 
 society of the husband {lb.), and these things are renounced by a 
 legal separation (Eeeves Dom. Eel., Ed. of 1867, p. 175), for 
 while united in form, the parties are divided in fact ; " they are 
 thrown npon society in the undefined and dangerous character 
 of a wife without a husband and a husband without a wife." 
 (Evans v. Evans, 1 Hagg. Cons. K., 36, 37.) The spirit of the 
 marriage contract, all that dignifies and ennobles it, is gone ; the 
 letter alone remains. 
 
 For the reasons stated, voluntary contracts for separation have 
 
 in many cases been held illegal, unless entered into after actual 
 
 separation, and made through the intervention of a trustee, or 
 
 hy sanction of the court. A deed of separation executed in con- 
 
 18 
 
274 Abbott's Select Cases on Code Pleading. 
 
 Buckel V. Suss, 38 Abb. N. 0., 27. 
 
 8 templation of and as an inducement to a future separation is 
 void. (Florentine v. "Wilson, Hill and D. Supp., 303.) This is be- 
 cause the law does not encourage husbands and wives to separate. 
 Although a contract for future separation is void, it is valid if 
 made after separation. (Galusha v. Galusha, 116 N. Y., 635; Allen 
 V. Affleck, 64 How. Pr., 380.) Judge Cowen, in People v. 
 Mercien (3 Hill, 410), calls these articles ''a kind of divorce 
 which the courts cannot very well, at this day, gainsay." In 
 other words, whenever legal ground for separation exists, the 
 parties may agree to it without compelling the court to hear 
 the grievance and award a decree, for what the court would be 
 required to do, the parties may themselves do. An agreement 
 of separation, followed by an immediate actual separation, is 
 valid, and the covenant on the part of the husband to pay install, 
 ments to a trustee for the support of the wife and their children, 
 is enforceable in an action by the trustee (Clark v. Fosdick, 118 
 N. Y., 7; s. c. 27 State Kep., 750; 28 id., 349); and, in the ab- 
 sence of a provision in the agreement to that effect, the act of 
 the wife in subsequently obtaining a divorce, no alimony being 
 
 10 awarded, will not terminate the obligation of the husband to pay 
 the installments. (/6.) 
 
 The case was tried on the theory that the separation between 
 the plaintiff and defendant was by decree of the coui-t. It ap- 
 pears now that it was effected by agreement, under sanction of 
 the court. The legal result is in either case the same, and the 
 circumstances required no more than passing notice, although 
 technically the plaintiff is hound ly the theory on which the case 
 was tried. (Frear v. Sweet, 118 IST. Y., 454.) 
 
 In Weedon v. Timbrell (5 T. K., 357) it was ruled by Lord 
 Kenyon that actions of this description, being founded on the 
 injury which the husband has sustained in the deprivation of the 
 comfort, society and assistance of his wife (an allegation to that 
 effect being always inserted in declarations of this kind as being 
 material and substantial), the consequence must be that when the 
 husband voluntarily relinquishes the comfort, society and assist- 
 ance of his wife, by consenting to a separation from her, he can 
 suffer no loss from her incontinency whilst such separation con- 
 tinues. (See Bright on Husb. and W., 351 ; Fry v. Derstler, 2 
 
L Causes of Action at Law. (3) Torts :^Seduction, etc. 275 
 
 Distinction between an Action for Enticing Away and Harboring. 
 
 Yeates, 278 ; Roper Plus, and Wife, 322 ; Bartelot v. Hawker, 12 
 Peake N. P. C, 11* ; Hodges v. Windham, ib., 39*; 4 Yin. Ab., 
 173 ; 2 Stark Ev., 698 ; Shelf on Mar. and Div., c. 6, p. 608.) 
 
 If the action had been brought for " crim. con.," *. e., corrupt- 
 ing the mind and affection of the plaintiff's consort, a brief 
 review of rules regulating such actions and the authorities in 
 regard thereto, to which attention has been called by the plaint- 
 iff's counsel, might have been necessary ; but as " crim. con." is 
 not charged, these matters, like the " flowers that bloom in the 13 
 Spring, have nothing to do with the case," and require no com- 
 ment. The motion for a new trial must be denied. 
 
 NOTE ON THE DISTINCTION BETWEEN AN ACTION 
 
 FOE ENTICING AWAY AND HAEBORING A 
 
 WIFE OR HUSBAND AND ONE FOR 
 
 CRIMINAL CONVERSATION. 
 
 The distinction between the two actions is so well defined that a suit for 
 enticing away the wife and the recovery of a judgment therein will not 
 bar a separate action by the husband for " crim. con." (Schnell v. Blohm, 
 40 Hun, 378). 
 
 While one action may comprehend the two subjects, there are many 
 cases which do not comprehend both. For example, the father of a 
 female, believing her to have been ill treated by the husband, may iavite 
 her to return to his home, and may keep her there. This might be a case 
 of enticing away and harboring (see Barnes v. Allen, 1 Abb. Ct. App. 
 Dec, 111, rev'g 30 Barb., 603), but clearly not of crim. con., which con- 
 sists in the act of corrupting the mind and body. The preceding opinion 
 treats fully the question of enticement. The question of crim. con. 
 involves other considerations. 
 
 Buller says : " The action lies for the injury done to the husband in 
 alienating the wife's affections ; destroying the comfort that he had from 
 her company; and raising children for him to support and provide for." 
 (Buller's N. P., 36.) The injury has always been described as committed 
 with force and constraint, the wife having no power to consent. (2 Chitty, 
 p. 641, n. ; Selwyn's N. P., 10.) In form, it is an action for trespass vi et 
 armis; but, in substance, an action on the case for the seduction of the 
 wife, the alienation of her affections from her husband, and exposing him 
 to shame, ridicule, and the hazard of maintaining a spurious issue. It 
 proceeds upon the fiction that a wife has no will, and could not have con- 
 sented to the adultery. (Reeves Dom. Bel., Ed. of 1867, p. 139.) The hus- 
 
276 Abbott's Select Cases on Code Pleadinc}. 
 
 Distinction between an Action for Enticing Away and Harboring. 
 
 band's right to recover against the wife's seducer is not barred by his con- 
 tinuing to hve with her after knowledge of her infidelity, and the reason 
 given is that the husband may forgive his wife, and yet he may not for- 
 give the author of her defilement, and of his loss, wrong and injury. 
 (Sikes V. Tippens, 43 Alb. L. J., 177.) 
 
 Benj. V. Abbott, in his law dictionai'y, describes the action as "the tort 
 of debauching or seducing of a wife ; " and the offence of persuading away 
 a person's wife was made indictable in England. (3 Edw. I, c. 13; 3 
 Black. Comm., 189.) The woman was evidently supposed to be the 
 weaker vessel, for no safeguards were thrown around the husband, who 
 was regarded as the master and the man, capable of protecting himself. 
 Indeed, the law seemed to regard the masculine as the seducer, the 
 feminine or wife, the- victim; so much so that in nearly all legal works the 
 subject of " crim. con." is considered under the head of seduction. "Crim. 
 con." may, therefore, be accepted as a species of seduction in which the 
 arts and wiles and designs of the seducer play a prominent part. If force 
 is actually used, the real offence is " rape," and it is by reason of the 
 incapacity alone of the wife to consent (as against the husband) that 
 " crim. con." has ever been regarded as trespass ri et armis, a fiction 
 that has caused much difference of opinion among law writers as to 
 whether the injury wliich is clearly consequential should be technically 
 denominated "case" or "trespass." 
 
 The action has been considered one of trespass (Selwyn's N. P., 10), yet 
 in effect it is in case (Macfadzen v. Olivant, 6 East, 387 ; Sanborn v. Neilson, 
 5 N. H., 814), the wrong not being immediate, but consequential. Either 
 form of action may be adopted, however, case being preferred by some 
 authors. (2 Hilliard on Torts, 4 ed., 506, 507.) The theory that the woman 
 was the seduced and the man the ravisher vi et armis, so impressed itself 
 on these actions that it was for a long time supposed that a wife could not 
 maintain "crim. con.," and it was so held in Van Arnum v. Ayres (67 
 Barb., 544) ; Logan v. Logan (77 Ind., 558), and other cases. In England 
 the question is still unsettled. (Lynch v. Knight, 9 H. L., 577.) In this 
 state the wife's right to maintain the action is now affirmativelj' estab- 
 ished. (Bennett v. Bennett, 116 N. Y., 584.) 
 
I. Causes of Action at Law. (3) Torts : — Replevin. 277 
 Schofield V. Whitelegge, 12 Abb. Pr. (N. S.), 330. 
 
 SCHOFIELD V. WHITELEGGE. 
 
 JSfew York Court of Apjieals, 1872. 
 
 [Reported 13 Abb. Pr. (N. S.), 330.] 
 
 In an action to recover the possession of personal property wrongfully 
 detained, the complaint must allege a general or special ownership in 
 the plaintiff. 
 
 Appeal from a judgment. 
 
 Cyrus Schofield sued James H. Whitelegge in the New York 
 Superior Court, to recover the possession of personal property. 
 
 The allegations of the complaint were as follows : 
 
 " The above-named plaintiff, for a complaint in this action, 
 alleges that the above-named defendant has become possessed of 
 and wrongfully detains from this plaintiff the following property, 
 that is to say : one rosewood Ernest Gabler piano, No. 6604 
 (Ernest Gabler, maker), of the value of four hundred dollars. 
 
 ," "Wherefore the plaintiff demands judgment against the said 
 defendant for a return, and for damages," etc. 
 
 The answer was a specific denial. 
 
 At the trial the complaint was dismissed as not stating facts 
 sufficient to constitute a cause of action. 
 
 The Court at General Term affirmed the judgment (reported 
 in 10 Abb. Pr., N. S., 104). 
 
 Plaintiff appealed. 
 
 The Court of Appeals affirmed the judgment. 
 
 FoLGEE, J. The complaint in this action does not, in terms 
 show any right or title in the plaintiff' upon which the former 
 action of replevin would lie. That action could be maintained 
 only by one who had the general or a special property in the 
 thing taken or detained. That property must have been averred 
 in the declaration, or it would not have sufficed the plaintiff's 
 purpose. (Pattison v. Adams, 1 Hill, 126. See also Bond v. 
 Mitchell, 3 Barb., 304 ; Vanderburgb v. Valkenburgh, 8 id., 217.) 
 
 The chapter of the Code of Procedure, of " The Claim and 
 Delivery of Personal Property," was intended to supply the pro- 
 
278 Abbott's Select Cases on Code Pleadins. 
 
 Schofleld V. Whitelegge, 12 Abb. Pr. (N. S.), 320. 
 
 visional relief which was theretofore obtained in the action of 
 replevin. (See Commissioners' Keport, p. 169.) There was no 
 intention to change the requisites to maintain the action. There 
 was no change made. Indeed, the Code, as reported, expressly 
 required an affidavit from the plaintiff, where a delivery was to 
 be made, that he was the owner of the property, or lawfully 
 entitled to the possession thereof, by virtue of a special property 
 therein. (Commissioners' Eeport, p. ITO, § 182, subd. 1.) And 
 so it now is (Code, § 207).* Nor is it less necessary now than 
 formerly for the plaintiff to aver the facts which constitute his 
 cause of action. He must allege facts and not evidence. He must 
 allege facts and not conclusions of law. The plaintiff here alleges 
 that the defendant wrongfully detains from him the chattel in ques- 
 tion. If indeed that be true, then it must be that the plaintiff has a 
 general or special property in the chattel and the right of imme- 
 diate possession. But unless he has that general or special 
 property and right of immediate possession, it cannot be true 
 that it is wrongfully detained from him. The last, the wrongful 
 detention, grows from the first, the property, and the right of 
 possession. The last is the conclusion. The first is the fact 
 upon which that conclusion is based. It is the fact which in 
 pleading must be alleged. "Where facts are stated in a pleading 
 which militate with a conclusion of law therein stated, the state- 
 ment of facts will prevail. (Jones v. PhcBuix Bk., 8 N. Y. 
 [4 Seld.], 228 ; Robinson v. Stewart, 10 id. [6 Seld.J, 189). And 
 is not the statement of a conclusion of law, without a fact averred 
 to sustain it, an immaterial statement? 
 
 The plaintiff says that the defendant wrongfully detains from 
 him the piano. The fact involved in that statement is that he 
 detains it. Granted, then, that he detains it, why is it wrongful ? 
 Because the plaintiff is the owner by general or special right of 
 property, and entitled to the immediate possession. But these 
 are the facts which are to be shown. They have not been 
 averred. How then can they be shown ? The plaintiff claims, 
 however, that the averment in the answer denying the detention 
 and denying ownership in the plaintiff, puts in issue these facts, 
 and that the defect in the complaint is cured by that averment. 
 
 * For the present statute, 1895, see Code Civ. Pro., § 1690, etc. 
 
I. Causes of Action at Law. (3) Torts: — Replevin. 279 
 
 Schofleld V. Whitelegge, 12 Abb. Pr. (N. S.), 330. 
 
 He cites Bate v. Graham (11 N. Y. [1 Kern.J, 237). But there 8 
 ihe allegation in the answer was the affirmation of the very fact 
 which it was objected the complaint should have averred. There 
 the omission from the complaint was of an allegation that the 
 defendant maintained that a certain assignment of an insolvent 
 debtor was not fraudulent. The answer of the defendant made 
 the very averment which was omitted from the complaint, and 
 the omission of which was the ground of the defendant's objec- 
 tion to the complaint. The court well held that the complaint 
 might have been amended, for both parties at the trial were 
 maintaining the same fact. Here, however, the parties do not 
 seek to maintain the same fact ; and that which the answer avers, 
 is the direct opposite of that which the plaintiff must establish to 
 recover. Would the plaintiff take the averment of the answer 
 into his complaint as a part of its allegations ? Then he would 
 allege that he is not the owner of the property, and that the 
 defendant has not detained it from him. And then his comT 
 plaint would show him without cause of action. (See Pelton v. 
 "Ward, 3 Caines, 73.) 
 
 The same considerations are applicable to the lack of the aver- 10 
 ment of a demand and refusal, if the plaintiff's case is to depend 
 upon a wrongful detention, without a wrongful taking in the 
 first instance. The case of Levin v. Russell (42 N. Y., 251) is 
 cited by the appellant. There are two facts which make it inap- 
 plicable here. There was in it no motion to dismiss the com- 
 plaint for its insufliciency, and proof was made at the trial, 
 without objection of facts, making a cause of action. 
 
 Again ; the complaint did not allege that the property was 
 that of the plaintiff. This does not appear in the report of the 
 case in 42 N. Y.; and from the statement there one would think 
 that the complaint was without an allegation of the plaintiff's 
 ownership. On referring to the printed case, as it is found in 
 the series of bound volumes of cases in this court, in the state 
 library, the averment reads thus : " The following goods and chat- 
 tels of the plaintiff^' This is in exact accordance with a prec- 
 edent for a declaration in replevin. (Pattison v. Adams, supra.) 
 
 The judgment should be affirmed, with costs to the respondent, 
 udges concurred. 
 
280 Abbott's Select Cases on Code Pleading. 
 
 Halsey v. Gerdes, 17 Abb. N. C, 395. 
 
 HALSEY V. GEEDES. 
 
 -ZT. Y. Supreme Court, First District, Special Term, 1886. 
 [Reported in 17 Abb. N. C, 395.] 
 
 1. A complaint in ejectment alleging that the plaintiff is seized in fee of 
 
 tlie premises in question, that defendants are in possession thereof 
 and withhold the same from the plaintiff is sufficient on demurrer. 
 
 2. The averment of seizin in fee is equivalent to an averment of the right 
 
 to immediate possession, and therefore the defendant's possession and 
 withholding are necessarily wrongful, and an allegation to that effect 
 is not required.* 
 
 Demurrer to complaint. 
 
 Fanny Halsey sued Jotn F. G-erdes in ejectment for certain 
 premises in the city of New York. 
 
 The complaint alleged " That the plaintiff is seized in fee of 
 the following described premises (describing them). That the 
 defendants are in possession thereof and withhold the same from 
 her," and demanded judgment: I. For the possession of said 
 premises. II. For the sum of $1,000, plaintiff's damages by the 
 withholding of the same." 
 
 Baerett, J. The case upon which defendants rely (Moores v. 
 Lehman, 52 Super. Ct. [J. & S.] 283), is not supported by the 
 authorities. It is well settled that an allegation of " seizin in 
 fee," followed by an averment of an unlawful withholding, is 
 sufficient on general demurrer. (Ensign v. Sherman, l-t How. 
 Pr. 439 ; Sanders v. Leavy, 16 How. Pr., 308 ; Walter v. Lock- 
 wood, 23 Barb., 228.) Here the word " unlawfully " is omitted, 
 but it may be treated as a conclusion of law or as surplusage. 
 (Payne v. Treadwell, 16 Cal., 220.) The averment of seizin in 
 fee is equivalent to an averment of the right tp immediate pos- 
 session. (1 "Washb. Eeal Prop., 58 ; Jenkins y. Fahey, 73 N. Y., 
 355, 361, and cases there cited ; Bouvier's Law Diet. ; Abb. 
 Law Diet.) The plaintiff being entitled to immediate possession, 
 as implied from the seizin in fee, the defendant's possession and 
 withholding are necessarily wrongful. If otherwise, they must 
 
 * Moores t!. Lehman (68 Super. Ct. [J- & S.], 283), and Alvord ». Hetsel (Supm. Ct., Mont- 
 gomiTj' Sp. T., 2 How., Pr. N. S., 88) are to the contrary. 
 
I. Cmises of Action at Law. (3) Torts : — Ejectment. 281 
 
 Ciason V. Baldwin, 129 N. Y., 183. 
 
 set up tlie facts from which they claim the right to withhold + 
 and retain possession. 
 
 The demurrer must be overruled with costs, and with leave 
 to defendants to answer within twenty days upon payment of 
 such costs. 
 
 CLASON V. BALDWIK 
 
 New York Court of Appeals, 1891. 
 [Reported in 139 N. Y., 183.] 
 
 1. When title is shown to have been derived from a person whose title and 
 
 whose right to possession is not disputed, it is in intendment of law, 
 accompanied by a right of possession which secures to the apparent 
 owner constructive possession and the rig'ht to recover it by an action 
 of ejectment, from a person withholding it without title. [This point 
 was discussed and ruled below, and though not directly discussed on 
 appeal was involved and necessarily confirmed in the affirmance.'] 
 
 2. The premises in suit in ejectment were occupied by tenants, and not 
 
 by the defendant herself, and only the latter was made a party. 
 Held, that notwithstanding the provisions of Code Civ. Pro., § 1502, 
 the non-joinder must be set up by answer ; and defendant's failure to 
 do so waived her objection. 
 S. Under the provisions of the Code of Civil Procedure a claim for rents and 
 profits subsequent to the commencement of the action is recoverable 
 in ejectment under the allegation of damages for the withholding of 
 possession. 
 
 Action in the nature of ejectment, brought under the N. T. 
 ■Code of Civil Procedure. 
 
 The allegations of the complaint were : 
 
 1st. That the plaintiff is seized in fee and entitled to the imme- 
 diate possession of the following described premises, viz.: [Jlere 
 the complaint contained a description as in a deed.'] 
 
 2d. That the defendant wrongfully withholds the possession 
 thereof from said plaintiff. 
 
 Wheeefoee, the plaintiff demands judgment : 
 
 1st. For the possession of said premises. 
 
 2d. For the sum of $5,000, the plaintiff's damages for the 
 withholding of the same, besides costs. 
 
282 Abbott's Select Cases on Code Pleading. 
 
 Clason V. Baldwin, 129 N. Y., 183. 
 
 The contents of the answer were : 
 
 The defendant for answer : 
 
 Denies each and every allegation in said complaint contained. 
 
 And for a second separate and further defence this defendant 
 alleges that neither the plaintiff nor her ancestors, predecessors 
 or grantors were seized or possessed of the lands and premises 
 described in the complaint, or any part thereof within twenty 
 years before the commencement of this action. 
 
 Wheeefoeb, defendant demands judgment dismissing the 
 complaint with costs. 
 
 At the trial the jury found a verdict as follows : That the 
 plaintiff is the owner of the fee and entitled to the possession of 
 the premises : and found as damages for the withholding of the 
 same the sum of $3,942.50. 
 
 The General Term of the Supreme Court, while of opinion 
 that the record title was sufficient as establishing constructive 
 possession, and that defendant's omission to plead the non-joinder 
 of the actual occupant waived the objection of non-joinder; yet 
 held that damages for withholding possession could not be recov- 
 ered unless especially alleged in the complaint, citing Lamed w. 
 Hudson, 57 K Y., 131. 
 
 On this point the Supreme Court said : 
 
 " It is as important that the right to recover the damages after 
 the action has been commenced should be made to appear by the 
 complaint, as it is that it should lay the foundation for such 
 damages as accrue previous to the event, to entitle the plaintiff tO' 
 recover them. The defendant was to be informed of the fact, to 
 supply her with an opportunity to be prepared with proof, if 
 that could be obtained, to contest it upon the trial. That was 
 not secured in this instance. And both the evidence proving the 
 damages and the ruling allowing their recovery were errone- 
 ously sanctioned at the trial. [Reported in 37 State Rep., 213.] 
 The Supreme Court therefore reversed the jiidgment as to- 
 those damages. 
 
 Both parties appealed, plaintiff claiming the reversal as to 
 damages to be error, and the defendant claiming that the rulings- 
 agailnst him were error. 
 
I. Causes of Action at Law. (3) Torts : — Ejectment. 283 
 
 Clason V. Baldwin, 139 N. Y., 183. 
 
 The Court of Appeals modified the judgment. 
 
 Geat, J. This action was for the recovery of the possession of 
 certain real property in New York City, and judgment was 
 entered by the plaintiff upon a verdict which awarded that 
 recovery and also a sum of money as the rental value of the 
 premises from the commencement of the action to the day of 
 trial. The General Term affirmed so much of the judgment 
 as gave to the plaintiff the possession of the premises; but 
 reversed that portion of it which awarded damages for the with- 
 holding of the possession. Both parties have appealed to this 
 court. 
 
 Upon the defendant's appeal, the objection discussed by her 
 counsel is that the complaint should have been dismissed, 
 because the defendant was not the actual occupant of and was 
 not proved to have claimed any interest in the premises at the 
 time of the commencement of the action, and that possession was 
 not shown in the plaintiff or her ancestors. 
 
 We are quite satisfied .with the disposition which was made by 
 the General Term of this objection, and but a brief review of 
 the principal point is called for. As an action to recover real 
 property, the contest is necessarily over the title to it, and while 
 § 1502 of the Code of Civil Procedure requires that, where the 
 complaint demands immediate possession, the occupant of the 
 property must be made defendant in the action, the following 
 section provides that any other person claiming title to, or the 
 right to the possession of, the property as landlord, etc. , may be 
 joined as defendant in the action. In this case the defendant's 
 tenants occupied the premises, when the action was commenced, 
 and might have been made parties defendant; and they must 
 have been made so, in order that a judgment of possession might 
 be executed. But not having made the tenants defendants and 
 electing to sue the landlord alone, it followed that the issue for 
 trial was that raised by the pleadings. The landlord was a proper 
 party, and if she omitted to object to the defect of parties in the 
 way provided for by the Code, in this case by answer, as the 
 defect did not appear on the face of the complaint, the effect 
 was to leave the action to be tried upon the question of the plaint- 
 iff's title and right to the possession. 
 
 10 
 
28i Abbott's Select Cases on Code Pleading. 
 
 Clason r. Baldwin, 129 N. Y., 183. 
 
 11 No decision, that I am aware of, in this court militates against 
 this view. 
 
 If the plaintifE in ejectment does not sue the tenant, but does 
 his landlord, and the latter joins issue and, by his omission to so 
 plead, waives the defect of non-joinder of the tenant, the con- 
 sequence is that a recovery of the land cannot be enforced as 
 against the tenant's occupancy ; but the judgment has determined 
 the title to the land, as between the parties, to be in the plaintifE. 
 Here the complaint simply alleged plaintiff's seizin in fee and 
 her right to the immediate possession of the described property, 
 ^ and that the defendant wrongfully withheld its possession from 
 the plaintifE. The landlord, the sole defendant, in answering, 
 denied each of these allegations and set up a new defence of the 
 statute of limitations. 
 
 Thus, while a necessary party under the Code may have been 
 omitted as a defendant, a proper party to the action, in the 
 person of the landlord and one whose presence was necessary 
 for the determination of the questions of title, was a defendant, 
 and she elected to appear and defend alone upon the issue made 
 13 as to plaintifE's title and right to the land and that she, the 
 defendant, was wrongfully withholding its possession. There 
 was no error in holding her, upon the trial, to the issues as then 
 presented. The case of Finnegan v. Carraher (47 N. Y., 493) is 
 quite in point upon the question. 
 
 Upon the question of defendant's possession of the premises 
 in question there was sufficient evidence of acts of ownership to 
 warrant the submission of the question to the jury, and it was 
 settled by their verdict. As to the legal title of the plaintiff it 
 is unnecessary to add to the opinion of the General Term. 
 
 Upon the plaintiff's appeal the question is presented as to her 
 right to recover damages for the withholding of the possession, 
 measured by the annual rental of the premises from the date of 
 the commencement of the action to the time of the trial. This 
 question the General Term has determined adversely to the 
 plaintiff, holding, on the authority of Larned v. Hudson (57 N. 
 Y., 151 ), that such a cause of action should have been set out in 
 the complaint and that it wf* not sufficient for their recovery 
 that damages were included in the demand for judgment. 
 
I. Causes of Action at Law. (3) Torts: — Ejectment. 285 
 
 Clason i\ Baldwin, 129 N. Y., 183. 
 
 Hence, tliey held it was error to admit evidence of such damages 15 
 and for the trial court to rule that they might be recovered, and, 
 pro tanto., they modified the plaintiff's judgment. 
 
 In so holding I think the General Term have misapprehended 
 the effect of the changed provisions of the Code of Civil Pro- 
 cedure. Lamed v. Hudson did hold that a claim for damages 
 for the withholding of the possession was distinct from a claim 
 for rents and profits during the time ; but the ruling in that case 
 was expressly based, upon the provision of the then existing 
 Code, the 167th section of which permitted to be united in the 
 same complaint several causes of actions arising in such a case 
 out of " claims to recover real property, with or without damages 
 for withholding thereof, and the rents and profits of the same." 
 That language, it was held, recognized the fact that a claim 
 for damages for withholding real estate, demandable and recover- 
 able in an action for the recovery of the land itself, does not 
 include, but is distinct from a claim for the rents and profits of 
 it during the time the possession is wrongfully withheld. In 
 enacting the present Code of Civil Procedure, section 167 was 
 replaced by section 484, and the subdivision of the old section 17 
 167, referred to, was modified so as to leave out from it the 
 words, " and the rents and profits of the same." The omission 
 of this part of the former subdivision after the court in Lamed 
 V. Hudson had given to it such significance, when considered in 
 connection with the enactment of present sections 1496 and 1497, 
 must be taken to indicate the intention of the Legislature to 
 modify the rule as deduced from section 167. Those sections 
 occur in the article entitled as " action to recover real property." 
 Section 1496 provides that in such an action " the plaintiff may 
 demand in his complaint and, in a proper case, recover damages 
 for withholding the property." Section 1497 then reads ; 
 " Those damages include the rents and profits or the value of 
 the use and occupation of the propsrty when either can legally 
 be recovered by the plaintiff." 
 
 These sections were new enactments and I cannot perceive 
 any particular usefulness in the change, unless to obviate the 
 effect of the construction placed upon section 167 of the old 
 Code. I think the effect of these sections is to make all the 
 
286 Abbott's Select Cases on Code Pleading. 
 
 Clason V. Baldwin, 139 N. Y., 183. 
 
 10 recoverable damages incidental to the establishment of the 
 plaintiff's title to the property. While formerly that damage 
 for withholding the possession, which was regarded as an element 
 of mere injury, was incidental to the recovery of the title, and 
 a claim for rents and profits, or for the value of the use and 
 occupation, was a distinct and separate claim ; under the present 
 procedure, if the plaintiff recovers the judgment establishing his 
 title, the incidental damages which he may then recover under 
 his demand do include the rents and profits, or the value of the 
 
 20 use and occupation. These latter items of damage are to .be 
 computed from the commencement of the action brought to 
 recover the property. I doubt that these sections of the present 
 Code would authorize a recovery of rents and profits, or of the 
 value of the use, as a part of the damages, for a time prior to 
 the commencement of the action. That perhaps would be 
 stretching their significance as a rule of recovery, but as a part 
 of the damages for continuing to withhold the real property 
 after the bringing of the action I think the plain reading of the 
 
 i). sections warrants the recovery under the demand. The com- 
 mencement of tl;e action, with the demand in the complaint for 
 damages for the withholding of the possession, was sufficient to 
 apprise the defendant to prepare to meet the plaintiff's proofs as 
 to all the damages which the withholding comprehended in 
 fact. The evidence upon the trial, therefore, was competent ; 
 its admission was not error and the instruction of the trial judge 
 was correct. 
 
 So much of the judgment of the General Term as modified 
 the judgment entered upon the verdict of the jury should be 
 
 ~ reversed, and the judgment so entered should be aflirmed, with 
 costs to the plaintiff at the General Term and in this court. 
 All the judges concurred. 
 Judgment modified and, as modified, affirmed. 
 
II. Causes of Action in Eqmtij. (1) Accounting. 287 
 Ensign v. Nelson, 21 Abb. N. C, 331. 
 
 ENSIGN V. NELSON. 
 
 NeiD York Supreme Court, General Term, First Department / 
 
 June, 1888. 
 
 [Reported in 21 Abb. N. C, 321; s. c. 49 Hun, 216.] 
 
 1. In an action for an accounting upon an agreement by which the defendant 
 was to secure advertising contracts to be turned over to the plaintiff for 
 performance by him, the profits to be equally divided ; and under 
 which agreement the defendant collected the amounts due upon the 
 contracts and failed to account therefor with the plaintiff, although 
 he had agreed to do so, — Held, that the facts authorized an order of 
 arrest against defendant — a non-resident — pursuant to Code Civ. Pro., 
 § 550.* 
 
 3. Where the plaintiff has a riglit to require defendant to account in the 
 action, right to arrest is not impaired by the fact that the balance to 
 be recovered by ^raaZ judgment could be collected by execution ; for 
 a direction of the court that defendant state and file an account, if not 
 obeyed, is enforceable by proceedings for contempt. | 
 
 3. An interlocutory judgment containing such a direction would be within 
 
 the meaning of Code Civ. Pro., §550 — providing that a defendant 
 may be arrested in an action wherein the judgment demanded requires 
 the performance of an act the neglect or refusal to perform which 
 would be punishable as a contempt.* 
 
 4. An order of arrest under Code Civ. Pro., §550, is a substitute for the 
 
 writ of ne exeat, which was abolished by Code Civ. Pro., § 548. 
 
 Appeal from an order denying a motion to vacate an order of 1 
 arrest and from an order allowing the submission of the plaintiff's 
 complaint as new proof to oppose the motion to vacate. 
 
 The plaintiff, Herman L. Ensign, commenced this action 
 against the defendant, Erederick Tracy Nelson, to obtain an ac- 
 counting of moneys alleged to have been received by the defend- 
 
 * Code Civ. Pro., §560, is as follows: "A defendant may also be arrested in an action 
 wherein the judgment demanded requires the performance of an act the neglect or refusal to 
 perform which would be punishable by the court as a contempt, where the defendant is not a 
 resident of the State, or, being a resident, is about to depart therefrom, by reason of which non- 
 residence or departure there is danger that a judgment or an order requiring the performance of 
 the act will be rendered ineffectual." 
 
 + See note to case of Blanchard v. Jefferson, post, as to the distinction between an action on 
 an account, and an action for an accounting. 
 
288 Abbott's Select Cases on Code Pleading. 
 
 Ensign v. Nelson, 21 Abb. N. C, 321. 
 
 ant, and as to whicli the plaintiff alleged that a positive balance 
 thereof would be found to be due to the plaintiff upon an ac- 
 counting. 
 
 The plaintiff obtained upon a summons and affidavits, and 
 undertaking, an order of arrest against the defendant, pursuant 
 to Code Civ. Pro., § 550, on the ground that the defendant was 
 a non-resident, and that by reason of such non-residence there 
 was danger that a judgment or order requiring the defendant to 
 account would be rendered ineffectual. 
 
 The said affidavits and the complaint alleged in substance that 
 the plaintiff and defendant entered into a written agreement, 
 whereby the defendant was to secure advertising contracts and 
 turn them over to the plaintiff for execution ; that they were to 
 share the profits equally ; that the defendant procured four ad- 
 vertising contracts which the plaintiff' executed, making all the 
 necessary disbursements, to which the defendant contributed 
 nothing; that the defendant had collected certain specified 
 amounts due upon the said contracts, but that the plaintiff had 
 no knowledge as to how much more the defendant had collected ; 
 and that it had been agreed that the defendant should render an 
 account of the said collections as soon as made, but that although 
 duly demanded he had never rendered any account thereof to 
 the plaintiff ; and the complaint demanded judgment, (1) as an 
 interlocutory judgment, that the defendant be decreed to render 
 an account of the moneys collected, and to produce all the 
 vouchers in his possession or under his control, relating to said 
 collections ; (2) that plaintiff have final judgment for the amount 
 which might be found due him. 
 
 The plaintiff's affidavits further showed that the plaintiff' made 
 diligent but unavailing efforts to find the defendant within this 
 State for a period of over a year prior to the arrest ; and also 
 alleged facts tending to show want of good faith on the part of 
 the defendant in failing to render any account. 
 
 The defendant was arrested under the order, after which he 
 moved to vacate the same upon the ground that the order was 
 illegal and void because of the alleged insufficiency of the affi- 
 davits (on which it was made) to constitute such an action as 
 would warrant the granting of such aji order. 
 
II. Causes of Action in Equity . (1) Accounting. 289 
 Ensign v. Nelson, 21 Abb. N. C, 331. 
 
 He also submitted an atfidavit in support of the motion to 
 vacate, stating that he had demanded an account of the trans- 
 actions of the business from the plaintiff, who had refused to 
 furnish it ; and that he was employed in JSTew York City by a 
 firm thereof, and resided in Philadelphia. 
 
 The motion came on for a hearing, and after its submission, but 
 before the decision thereof, the plaintiff moved to be allowed to 
 submit the complaint in the action as a part of the papers, in 
 opposition to the motion to vacate, which motion the defendant 
 opposed. 
 
 The Court at Sj^ecial Term denied the motion to vacate the 
 order of arrest, and granted the motion allowing the submission 
 of the complaint as a part of the motion papers, in opposition to 
 the defendant's motion to vacate the order of arrest, but rendered 
 no opinion. 
 
 From both of these orders the defendant appealed. 
 
 The Court at General Term affirmed the decision. 
 
 Daniels, J. The order of arrest was made by the court under 
 section 650 of the Code of Civil Procedure. This authorizes the 
 court to make the order in an action wherein the judgment 
 demaaded would require the performance of an act the neglect 
 or refusal to perform which would be punishable by the court as 
 a contempt, and the defendant is not a resident of the State, or, 
 being a resident, is about to depart therefrom, by reason of which 
 non-residence or departure there might be danger that the judg- 
 ment or order requiring the performance of the act would be in- 
 effectual. The action was brouglit for an accounting upon an 
 agreement between the parties, by which the defendant agreed 
 to secure the exclusive control of the advertising of responsible 
 parties, and to turn over their contracts to the plaintiff for per- 
 formance by him, the parties agreeing to share equally the net 
 profits which might accrue from the advertising begun and exe- 
 cuted in that manner. It was stated in the affidavits that the 
 contracts had been obtained for printing and had been performed 
 under this agreement, and that the defendant had collected the 
 amounts due for the services rendered, and had failed to account 
 with the plaintiff concerning the same. It was also stated that 
 
 19 
 
;^90 Abbott's Select Cases on Code Pleading. 
 
 Ensign v. Nelson, 21 Abb. N. C, 331. 
 
 10 tlie defendant did not reside within this State, but was a resident 
 of Philadelphia, in the State of Pennsylvania. 
 
 These facts presented a presumptive right of action against 
 the defendant and a case in which an order for his arrest and 
 detention might be made by the court. And it did not follow, 
 because the balance recovered by the judgment could be collected 
 by execution, that the defendant could not be arrested under 
 the order. 
 
 Whether the parties are to be regarded strictly as partners 
 
 11 between themselves, or as persons engaged in a joint enterprise 
 for mutual profit, under the agreement which they entered into, 
 is not important, for, in either view, an action for an accounting 
 could be maintained by the plaintiff against the defendant 
 (Marston v. Gould, 69 k. T., 220, 224, 225). And in the 
 regular course of proceeding in the action the defendant could, 
 and ordinarily would, be required to present and file a statement 
 of the business and of the accounts (Hathaway v. Eussell, 7 
 Abb. K C, 138 ; aflarmed in 46 Super. Ct. [J. & S.], 103). 
 
 The practice in an action for an accounting was there con- 
 
 12 sidered, and the conclusion was sustained, upon authority, that the 
 defendant, under the present system, could be required, as he 
 was under the preceding practice in chancery, to state and file 
 an account of the business and transactions of the firm, or of 
 their joint adventure. And where that direction may be given, 
 and the defendant fails to comply with it, then it could regularly 
 be enforced by the court, by the punishment of the party failing 
 to comply, for a contempt. The direction would regularly be 
 given by an interlocutory judgment, which would be a judgment 
 within the language of subdivision 4 of section 550 of the Code 
 
 13 of Civil Procedure ; * for the term judgment, as it was there 
 used, includes either an interlocutory or final determination of 
 the rights of the parties (Code of Civil Procedure, § 1200). 
 
 The order of arrest in this class of cases is a substitute for the 
 writ of ne exeat, which has been abolished by the Code. And 
 it is authorized by section 550 of the Code in an action of this 
 description, and so was a ?ie exeat held to be in cases arising in 
 
 * As the statute now stands, subdivision 4 ot § 550, here referred to, is all that remains of 
 that section. 
 
II. Catises of Action in Equity. (1) Accounting. 291 
 
 Ensign v. Nelson, 21 Abb. N. C, 331. 
 
 courts of equity (Meyer v. Meyer, 25 N. J. Equity, 28 ; Dean v. 14 
 Smitli, 23 Wis., 183). 
 
 The defendant moved to vacate the order, not only upon the 
 alleged insufficiency of the affidavits on which it was made, but 
 also on an affidavit of his own, stating that he had demanded an 
 account of the transactions of the business from the plaintiff, who 
 had refused to furnish it, and that he was in the employ of 
 Munn & Co., in the city of New York, although a resident of 
 the City of Philadelphia. This affidavit, although briefly stating 
 additional facts, vested the plaintiff with the right, under section 
 568 of the Code of Civil Procedure, to oppose the application 
 for the discharge of the order, by new j)roof tending to sustain 
 any ground of arrest recited in the order, and such additional 
 proof was produced upon the hearing, but not materially chang- 
 ing the case as it had been before presented. After the argu- 
 ment of the motion, and its subiriission to the court, an 
 application was made on behalf of the plaintiif for leave to add 
 the complaint to the additional proofs produced, and after the 
 hearing of the defendant upon that application, the order was 
 made allowing the complaint to be submitted. 16 
 
 This the court evidently had the power to do, inasmuch as 
 the motion remained undecided, and the complaint was received 
 only as an additional affidavit tending to sustain the order of 
 arrest. 
 
 \_The rest of the opinion does not relate to the question of 
 pleading.'] 
 
292 Abbott's Select Cases on Code Pleading. 
 
 Williams v. Lindblom, 68 Han, 173. 
 
 WILLIAMS V. LINDBLOM. 
 
 ]V. Y. Supreme Cov/rt, First Dept., General Term, 1893. 
 [Reported in 68 Hun, 173.] 
 
 1. Pleadings are to be construed strictly against the pleader, and if it can- 
 not be determined what has been denied, none of the allegations of 
 the complaint will be deemed to have been controverted. 
 
 3. The method of denying allegations contained between specified folios 
 condemned. 
 
 3. In an equitable action between partners, for an accounting, a personal 
 
 judgment for a sum of money cannot be entered against one partner 
 in favor of the other without determining the state of the accounts 
 between them. 
 
 4. In such an action the objection to such a judgment may be taken on 
 
 appeal although the appellant made no specific request at the trial 
 that the accounts between the partners be stated, since counsel had 
 the right to assume that a judgment wo.uld be rendered appropriate 
 to the form of the action. 
 
 Suit in equity for a partnersliip accounting. 
 
 The Referee's decision gave judgment for a definite sum of 
 money in favor of one partner against the others without deter- 
 mining the state of the accounts. 
 
 The General Term of the Supreme Court reversed the judg- 
 ment. 
 
 FoLLETT, J. The answer of Lindblom is so defective that had 
 the decision turned upon the state of the issues presented by the 
 pleadings, the defect might have proved fatal to the defendant. 
 , The answer " denies the allegations contained in said complaint 
 from the middle of the ninth foho down to the words ' anyone 
 therefore,' near the end of the twelfth folio of said complaint, 
 except," etc. The folios referred to are evidently those of the 
 original complaint, which are not identical with those of the com- 
 plaint as printed in the record, and it is impossible to ascertain 
 what is denied and what admitted. This vicious mode of plead- 
 ing has been several times condemned in reported cases. (Caul- 
 kins V. Bolton, 98 N. Y., 511 ; Baylis v. Stimson, 110 id., 621 ; 
 Crosley v. C!obb, 3 How. Pr. [N. S.j, 37; Varnum v. Hart, 47 
 
11. Causes of Aotion in Mquity. (2) Partnership. 293 
 
 Williams v. Lindblom, 68 Hun, 173. 
 
 Hun, 18-23 ; Avery v. N. Y. C. & H. E. K. E. Co., 29 State 
 Eep., 918.) Pleadings are to be construed strictly against the 
 pleader, and if it cannot be determined what has been denied, 
 none of the allegations of the complaint will be deemed to have 
 been controverted. 
 
 An action at law cannot be maintained by one partner against 
 another to recover a sum of money arising out of the partnership 
 transactions until a final accounting has been had and the amount 
 due ascertained. The case at bar is in equity for an accounting 
 between several partners, but by the decision of the referee and 
 the judgment entered thereon it was, in effect, turned into an 
 action at law, and a judgment for a definite sum of money 
 entered in favor of one partner against two others, without 
 determining the state of the accounts between the partners. 
 
 The rule for taking a partnership account in an action like this 
 is well stated by Mr. Lindley in his learned work on partner- 
 ships : 
 
 "1. Ascertain'how the firm stands as regards non-partners. 
 
 2. Ascertain what each partner is entitled to charge in account 
 with his copartners, remembering, in the words of Lord Hard- 
 wicke, that ' each is entitled to be allowed as against the other 
 everything he has advanced or brought in as a partnership trans- 
 action, and to charge the other in the account with what that 
 other has not brought in, or has taken out more than he ought.' 
 
 3. Apportion between the partners all profits to be divided or 
 losses to be made good, and ascertain what, if anything, each 
 partner must pay to the others, in order that all cross claims may 
 be settled." (2 Lind. on Partnership [3d Eng. ed.], 1031.) 
 
 This rule has been approved by several cases in this State. 
 (Neudecker v. Kohlberg, 3 Daly, 40Y ; Ehiner v. Sweet, 2 Lans., 
 386 ; Butler v. Ballard, 11 J. & S., 191 ; Sweet v. Morrison, 103 
 N. T., 235; McCall v. Moschowitz, 14 Daly, 16.) Such is the 
 rule in New Hampshire (Eaymond v. Came, 15 E". H., 201) and 
 in Massachusetts (Paine «. Paine, 15 Cray, 299). The theory of 
 this action was disregarded by the learned referee, whose decision 
 and the judgment entered thereon violate the rule that judgments 
 juust be secundum allegata et probata. 
 
 It was urged on the argument that the defendant did not, by 
 
294 Abbott's Select Cases on Code Pleading. 
 
 Dalton V. Vanderveer, 31 Abb. N. C, 430. 
 
 an appropriate request, ask the referee to state the aecounts 
 between the partners. This was unnecessary, for counsel had a 
 right to assume that a judgment appropriate to the form of the 
 action would be rendered, and it was no more necessary to make 
 a specific request than it would be, in an action for a specific per- 
 formance, to request that a judgment for money be not given, 
 but that specific relief be awarded or denied. 
 
 The exceptions taken by the appellant to the conclusions of 
 law are sufficient to raise the questions here considered. In ac- 
 countings between partners, it is not usual to award costs until 
 the final judgment is entered, when they may be paid out of the 
 fund or charged against the delinquent partner, so the question 
 of costs will be reserved until the final determination. 
 
 The judgment shoiild be reversed, and a new trial granted 
 before a new referee to be appointed by this court, with costs to 
 appellant to abide the final award of costs. 
 
 Van Brunt, P. J., and O'Beien, J., concurred. 
 
 DALTON V. VANDEEVEEE. 
 
 /Supreme Court, Special Term, 1894-. 
 [Reported ia 31 Abb. N. C, 430.] 
 
 1. Where the complaint alleges an equitable cause of action for the disso- 
 
 lution of a partnership and the appointment of a receiver, and the 
 evidence presents only a cause of action for damages for a breach of 
 a contract for services, the court cannot give judgment for damages, 
 or allow the complaint to be amended, but must dismiss the action. 
 
 2. Defendant does not waive his right to a trial by jury by failing to 
 
 demand the same, if the complaint does not set forth a cause of action 
 triable by jury, but such a cause is for the first time disclosed by the 
 evidence.* 
 
 3. Defendant is not bound to plead that plaintiff has an adequate remedy 
 
 at law in order to render such defense available against a cause of 
 action disclosed by the evidence, where the complaint set forth a 
 cause of action which, if established, would have entitled plaintiff to 
 equitable relief. 
 
 Trial by the court without a jury. 
 
 *See note at the end of this case. 
 
II. Causes of Action in Equity. (2) Partnership. 295 
 
 Dalton V. Vanderveer, 31 Abb. N. C, 430. 
 
 The action was brought by George W. Dalton against John 
 H. Yanderveer. 
 
 The opinion fully states the facts. 
 
 Gayitoe, J. The complaint alleges in sum and substance that the 
 defendant owned a tract of sixty-five acres of land, and in order 
 to secure the experience and assistance of the plaintiff in laying 
 it out in lots and streets, and selling it off by lots at auction or 
 private sale, entered into an agreement of co-partnership with 
 the plaintiif, whereby the plaintiff was given a certain interest in 
 common with the defendant in the lands and the future proceeds 
 of sales thereof ; that out of such proceeds the defendant was ■ 
 first to be paid the moneys expended in preparing the land for 
 sale by lots, as aforesaid, the agreement requiring him to advance 
 it all ; and then $3,000 an acre for the tract, after which the 
 overplus, if any, should be divided between the parties, the 
 plaintiff's share to be one-quarter ; and that, after the plaintifE 
 had so plotted and prepared the land for sale, and a large num- 
 ber of the lots had been actually sold, the defendant notified the 
 plaintiff that he dissolved the partnership, and refused to go on 
 any further with the enterprise as a joint one ; and the prayer is 
 for a judgment declaring the plaintiff to be a part owner of the 
 land, for the appointment of a receiver to sell the land, and for 
 an accounting and division. 
 
 The answer denies the co-partnership, and alleges that the 
 plaintifi: was only the employee of the defendant. 
 
 The proof shows that there was no co-partnership, but that the 
 plaintiff was employed as an agent by the defendant to prepare 
 the land for sale and sell it, as aforesaid, and that for his services 
 he was to be paid one-quarter of the overplus, as already stated ; 
 and that, after the contract had been partly performed, a large 
 number of sales having been made, the defendant discharged 
 the plaintiff. The cause of action which the proof presents is, 
 therefore, one for damages for breach of contract for services. 
 The amount already realized from sales is easily ascertained. 
 Past sales furnish evidence of the time and effort it would take 
 to sell off all of the lots, and also of the price for which the lots 
 can be sold, and it would not be diOicult to otherwise prove 
 
296 Abbott's Select Cases on Code Pleading. 
 
 Dalton V. Vanderveer, 31 Abb. N. C, 430. 
 
 5 their value ; so that no difficulty would be encountered in prov- 
 ing the damage which the plaintiff has sustained by the breach 
 of the contract. In this state of the case, may the court go on 
 and assess the damage in this action, or must the complaint be 
 dismissed ? The complaint states a case which is within the juris- 
 diction of equity, and is not an action at law, but the evidence 
 fails to sustain the complaint, and also fails to make out any case 
 which is within the jurisdiction of equity. This being so, must 
 not the complaint be dismissed '. 
 
 The origin of the High Court of Chancery in England was due 
 wholly to the inability, and, to a limited extent, the unwilling- 
 ' ness of the common law courts to entertain and give relief in 
 every case, and thus meet all the requirements of justice. The 
 common law courts paid such deference to forms and precedents 
 that they became slaves to them. Their jurisdiction was thus 
 circumscribed. They adhered to certain precise writs and rigid 
 forms of action which were not sufficiently comprehensive to 
 enable them to give adequate redress in some cases of injustice 
 and wrong, or to give any redress in many others. In such cases 
 
 7 the aggrieved person was remediless, except he could get a hear- 
 ing of the king himself. Petitions by those in such ease vrere, 
 therefore, frequently presented to the king, asking for relief of 
 him as matter of grace, because it could not be got of his courts. 
 From the fact that the king usually referred such petitions to his 
 secretary, called his chancellor, they came, in course of time, to 
 be presented to the chancellor directly by the suitors themselves ; 
 and thus, gradually, and at a time which history cannot enable 
 us to precisely fix, the Court of Chancery came to be established. 
 As is seen, its jurisdiction was wholly extraordinary. Relief 
 was afforded by it only in those cases wherein the common law 
 courts either could give no redress at all, or could not give 
 adequate redress ; and anyone coming to chancery ^^ith a case 
 which did not. need its extraordinary jurisdiction, but could be 
 adequately dealt with in the common law courts, was dismissed 
 for lack of jurisdiction. 
 
 Thus, side by side, there existed the Court of Chancery and 
 the common law courts, each with a distinct jurisdiction, the 
 test of chancery's jurisdiction in any given case being that the 
 
II. Causes of Action in Equity. (2) Partnership. 297 
 
 Dalton V. Vanderveei-, 81 Abb. N. C, 480. 
 
 suitor could either get no relief, or could not get adequate !* 
 relief, in a court of common law. And, therefore, necessarily, 
 there also grew up, not only two distinct systems of practice in 
 these courts, but also two distinct systems of substantive juris- 
 prudence, that in the Court of Chancery being the system which 
 we call equity. In the formation of the government of this 
 State these two distinct kinds of courts and systems were given 
 a place from the beginning, and the Court of Chancery liere was 
 «lothed with the general jurisdiction and powers of the High 
 Court of Chancery in England. Separate courts thus admin- 
 istered these separate systems of jurispi-udence in this State 
 until, by the Constitution of 1846, the Court of Chancery was 
 abolished and its jurisdiction and powers were devolved upon 
 the Supreme Court. From that time on the same court has 
 administered justice under both systems ; but, all the same, tlie 
 two systems have necessarily jireserved their identity and con- 
 tinue to exist. The Court of Chancery is gone, but the system 
 of equity jurisprudence remains, and is still administered, but by 
 the sanje court which also administers the common law system. 
 There is only one court to administer both systems, but they 11 
 remain distinct systems. 
 
 This much have I said because we seem sometimes to lose 
 sight of it and think otherwise. The cause of this is, no doubt, the 
 enactment in our first Civil Procedure Code of 1848, and found in 
 our present revised Code of Civil Procedure, namely : " There is 
 only one form of civil action. The distinctions between actions at 
 law and suits in equity, and the forms of those actions and suits, 
 have been abolished " (^ 3339). But this enactment relates only to 
 the two systems of practice, and has no reference to the two 
 systems of substantive jurisprudence. They still exist side by 
 side, but the separate systems of practice under which they 
 were formerly administered have been abolished, and the one 
 system of our practice statute substituted. It is in this view 
 that our Court of Appeals has said that " the distinction between 
 legal and equitable actions is as fundamental as that between 
 actions ex contractu, and ex delicto, and no legislative fiat can 
 wipe it out " (Gould v. Cayuga County Nat. Bank, 86 K Y., Y5, 
 :83) ; and again, that " the names of actions no longer exist, 
 
298 Abbott's Select Cases on Code Pleading. 
 
 Dalton V. Vanclevveer, 31 Abb. N. C, 430. 
 
 lo but we retain, in fact, the action at law and the suit in equity " 
 (Stevens v. The Mayor, etc., of New York, 84 N. Y., 304-) ; and 
 again, that " although the distinction between actions at law and 
 suits in equity is abolished, the distinguishing features between 
 the two classes of remedies, legal and equitable, are as clearly 
 marked and rigidly observed as they ever were, and this is neces- 
 sary to the administration of justice in an orderly manner and 
 the preservation of the substantial rights of suitors." (Chipman 
 V. Montgomery, 63 N. Y., 221, 230.) In a word, the forms are 
 all that are changed. The two distinct systems of justice still 
 remain, though they are administered by the same court, under 
 one system of practice. 
 
 This brings me down to saying what must be done with this 
 action. Under our existing system, both actions at law and 
 suits in equity being brought in the same court, they are in 
 regular course placed upon separate calendars by the parties 
 themselves ; namely, actions at law upon the calendar of causes 
 to be tried by a jury, and equity actions upon the calendar of 
 causes to be tried by the court without a jury. When chancery 
 
 15 existed as a separate court, if a suitor came there with a common 
 law action he was dismissed for lack of jurisdiction. But now, 
 if a plaintiff place an action at law upon the equity calendar, 
 and notice it for trial there, he may not be dismissed out of 
 court. The court may, of its own motion, refuse to hear it and 
 send it to the jury calendar ; or, if the court be willing to hear 
 it, the defendant may, nevertheless, by demanding a jury trial, 
 have the cause sent to the jury calendar ; and, if he do not so 
 demand, he waives the right to a jury trial and confers jurisdic- 
 tion upon the court to hear it without a jury ; and the rule is the 
 
 -'-'^ same whichever side has so placed it upon the calendar and 
 noticed it (Code Civ. Pro., § 1009). The cause of action stated 
 in the complaint in this action being wholly equitable, and in no 
 respect constituting an action at law, the case was properly 
 placed upon the equity calendar and noticed for trial there by the 
 parties. For the same reason, the defendant had no right to 
 demand a jury trial. 
 
 The case presented by the complaint was not one which 
 entitled the plaintiff to a jury trial, and he was bound by the 
 
II. Causes of Action in Equity. (2) Partnership. 299 
 
 Dalton V. Vanderveer, 81 Abb. N. C, 430. 
 
 complaint in that respect. It cannot, therefore, be claimed that IT 
 he has waived a trial by jury of the cause of action presented by 
 the evidence. Nor can it be said that, by failure to plead in his 
 answer that the defendant had an adequate remedy by an action 
 at law, he has waived his right to so claim now. When Chan- 
 cery existed as a separate court, and a suitor came there asking 
 for equitable relief upon a statement of facts in his till upon 
 which he could not get full, complete and adequate relief in an 
 action at law, the chancellor was free to so inform him and 
 refused to be vexed by his suit ; but, in order that the defend- 
 ant might so insist and have the suit dismissed on his motion, it ' 
 was necessary for him to so plead in his answer, in default of 
 which he was held to have waived that defence and submitted 
 the cause to chancery for equitable disposition, provided that 
 court could in the end make any such disposition of it ; and 
 such is still the rule of pleading. (Grandin v. Leroy, "2 Paige, 
 509 ; Wiswall v. Hall, 3 id, 313 ; LeRoy v. Piatt, i id., 77 ; 
 Truscott V. King, 6 N. Y., l-±7 ; Town of Mentz v. Cook, 108 
 id., 504: ; Ostrander v. Weber, 114 id., 95 ; Watts v. Adler, 130 
 id., 646.) But the fact? stated in the complaint made the action 19 
 at bar an equitable one solely, and not of legal cognizance, and, 
 therefore, the defendant could not properly have pleaded that 
 the plaintiff had an adequate remedy in an action at law. He 
 was not required to plead that upon the actual facts which the 
 plaintiff had not pleaded the plaintiff could get adequate redress 
 in an action at law. He was only required to plead to the com- 
 plaint; and the complaint being framed solely for equitable 
 relief, it being found upon trial that the plaintiff is not entitled 
 to such relief, the court cannot entertain the action to give 
 judgment for damages, or to amend the complaint so as to -^"^ 
 change the action into one at law. (Wheelock v. Lee, 74 N. Y., 
 495 ; Oakville Co. v. The Double-pointed Tack Co., 105 id., 
 658 ; Bockes v. Lansing, 74 id., 437.) 
 
 The complaint is, therefore, dismissed with costs. 
 
 Note.— The difference between the two causes of action is well illus- 
 trated in the case of Arnold v. Angell, 63 N. Y., 508 ; rev'g 35 Super. Ct. 
 (J. & S.), 27. 
 
 Upon the facts the parties being in contention whether their relation 
 
300 Abbott's Select Cases on Cobe Pleading. 
 
 Dalton V. Vanderveer, 31 Abb. N. C, 430. 
 
 21 was that of partners, or employer and employee, — Held, that these were 
 different causes of action although founded on the same facts. 
 
 In accordance with this principle it was held in a somewhat similar 
 controversy, that judgment against plaintiff in an action founded on the 
 theory of a partnership would not bar a subsequent action founded on the 
 theory of employment, because the causes of action were different. Marsh 
 V. Masterton, 101 N. Y., 401. 
 
 Compare White v. Gaines, 35 N. Y. Weekly Dig., 861 ; Floyd v. Pat- 
 terson, 72 Tex., 202. 
 
TI. Causes of Action in Equity. (8j Foreclosure. 301 
 Coulter V. Bower, 11 Daly, 203. 
 
 COULTEE V. BOWER. 
 
 Ne^jj Torh Court of Common Pleas, Special Term, 1882. 
 [Reported in 11 Daly, 303.] 
 
 1. An action to foreclose a mortgage, being an action to enforce a security 
 collateral to the bond, failure to perform the condition of the bond 
 must be alleged in the complaint. 
 
 3. A complaint which does not allege such breach is demurrable. 
 
 Action to foreclose a mortgage. 
 
 Defendant demurred, on the ground that the complaint did 
 not state facts sufficient to constitute a cause of action. 
 
 Van Beunt, J. The complaint in this action is for the 
 foreclosure of a mortgage, and alleges the giving of a bond 
 conditioned for the payment of $5,450 on the first day of May, 
 1861, with interest thereon at the rate of seven per cent, per 
 annum, and as collateral security for the payment of such 
 indebtedness, the execution and delivery to the plaintiff of a 
 mortgage upon certain premises in the complaint described, and 
 that the said mortgage contained the same condition as the said 
 bond, and in default of payment of the said sum of money, or 
 the interest that might accrue thereon or any part thereof, the 
 plaintiff was thereby empowered to sell, etc.; that the mortgage 
 was recorded ; and that there is now justly due to the plaintiff 
 upon said bond and mortgage the sum of S5,4:50, together with 
 interest thereon from the first of May, 1861. 
 
 The defendant in this action has demurred to said complaint 
 upon the ground, among others, that the complaint does not 
 state facts sufficient to constitute a cause of action. 
 
 The defect complained of is that there is no allegation of 
 default in the performance of the condition of the bond. 
 
 It is urged upon the part of the plaintiff in support of the 
 complaint that if the facts set forth are sufficient for the state- 
 ment of an indebtedness, the cause of action is complete, and 
 that upon the trial, in order that the plaintiff should make out a 
 case in the first instance, no other proof would be required than 
 the bond and mortgage themselves, and the evidence of their 
 
302 Abbott's Select Oases on Code Pleading. 
 
 Coulter V. Bower, 11 Daly, 203. 
 
 execution ; that the plaintiff is not required to allege any more 
 in his complaint than he would be obliged to prove in order to 
 make out 2k pnma facie case upon the trial. 
 
 This jDroposition is undoubtedly true ; but the fact that without 
 any denial of the execution of the bond and mortgage it would 
 be necessary for the j)laintiff to produce the bond and mortgage 
 upon the trial goes to show that the proper allegations are not 
 contained in the complaint. The fact of the possession of the 
 bond and mortgage by the plaintiff has been held to be evidence 
 and proof that there has been a default in the condition of the 
 bond, if the bond upon its face is overdue ; and the failure to 
 produce the bond upon the trial, in the absence of any evidence 
 going to excuse its non-production, has been held to entitle the 
 defendant to judgment because of the failure upon the part of 
 the plaintiff to prove that there has been a default in the 
 performance of the condition of the bond. 
 
 It might be very true that, if a suit was brought upon the 
 bond alone, an allegation of default would be unnecessary to 
 entitle a party to a recovery where the bond had become due by 
 its terms ; but in an action to foreclose a mortgage, the suit is 
 not upon the bond, but to enforce a collateral, and the collateral 
 can only be enforced in case of the failure to perform the 
 condition of the bond ; and the rule governing pleadings in 
 regard to contracts is, that if the contract is alleged to be broken, 
 the breach must be averred. This is elementary law, and the 
 contract of mortgage between the mortgagor and the mortgagee 
 is only broken on default of the performance of the condition of 
 the bond, and that breach must be alleged in order that the 
 mortgagee may enforce the security which has been given to 
 him to be enforced only upon breach of its condition. 
 
 I am of the opinion, therefore, that the demurrer is well 
 taken, and that the complaint is fatally defective in not alleging 
 the lireach in the condition of the bond. 
 
 The plaintiff, however, may have leave to amend, upon 
 payment of costs of the demurrer. 
 
 Order accordingly. 
 
II. Causes of Action in Equity. (3) Foreclosure. 303 
 Note on Pleading and Parties in Foi-eclosure. 
 
 E'OTE ON PLEADING AND PARTIES IN FORE- 
 
 CLOSUKE. 
 
 I. Pleading. 
 
 The complaint must sufficiently show the execution and delivery of the 
 bond and mortgag-e, the identity of the mortgaged premises, and such 
 default or breach as entitles the plaintiff to foreclose. 
 Coulter V. Bower, 11 Daly, 203, supra, p. 301. 
 
 It must set out all mesne assig-nments of the mortgage. 
 
 An allegation " that the plaintiff is, by several mesne assignments, now 
 the lawful holder and owner of the bond and mortgage above mentioned" 
 is insufficient to show ownership in plaintiff. 
 Rose V. Meyer, 1 How. Pr. N. S., 274. 
 
 A general allegation that the defendants [naming them] "have or claim 
 to have some interest in or lien upon the said mortgaged premises, which 
 interest or lien, if any, has accrued subsequently to the lien of the said 
 mortg-ag-e " is a sufficient statement of a cause of action against such 
 defendants — in case such iaterest is proven to be actually subsequent. 
 Doury v. Clark, 16 How., 424. 
 
 But under such an allegation prior liens are wholly unaffected, even 
 though the holder has been pei'sonally served and makes default. If plaintiff 
 joins a prior incumbrancer for the purpose of having the amount of his 
 lien determined and paid, he must so allege ; otherwise his action will be 
 deemed to seek the foreclosiag of subsequent liens, and the prior lien 
 remains unaffected. 
 
 Frost V. Koon, 30 N. Y., 428, 447. 
 
 Emigrant Ind. Sav. Bank v. Goldman, 75 id., 127. 
 
 Where a prior incumbrancer had been joined under a proper allegation, 
 and the prayer for relief asked that the amount of the prior incumbrance 
 be ascertained and paid out of the first proceeds of sale, and the holder 
 thereof was properly served and made default and the judgment follpwed 
 the praj'er for relief — Held, that he was precluded by the judgment and 
 could not maintain a subsequent action for the foreclosure of such prior 
 mortgage. 
 
 Jacobie v. Mickle, 144 id., 237. 
 
 Where the mortgagor's wife had not joined in the mortgage — Held that 
 in the absence of any averment in the complaint that the mortgage was 
 prior, or superior, or hostile, to her right or interest, her inchoate right of 
 dower in the premises was unaffected, notwithstanding the fact that she 
 was made a nominal party defendant and had been pei'sonally served and 
 interposed no defense and a regular decree of foreclosure entered. 
 Merchants Bank v. Thomson, 55 N. Y., 7. 
 
 In an action to foreclose a prior unrecorded mortgage in which the 
 holder of a subsequent and recorded mortgage is joined as a defendant, 
 the complaint need contain no special alleg-ations regarding the latter's 
 
304 Abbott's Select Cases on Code Pleading. 
 
 Note on Pleading and Parties in Foreclosure. 
 
 status, but a general allegation is sufficient that the latter has or claims- 
 to have some lien or interest upon.the mortgaged premises which, if any, 
 is subsequent to the lien of plaintiffs mortgage. 
 
 Constant v. Amer. Baptist, etc., Soc, 53 Sup. Ct., 170. 
 The prayer for judgment should specify all the relief to which plaintiff 
 believes himself entitled ; a judgment for deficiency cannot be awarded 
 against a defaulting defendant unless demanded in the complaint. 
 
 Simonson v. Blake, 20 How. Pr., 484. 
 If a deficiency judgment is demanded in the complaint, but the judg- 
 ment, entered after defendant's appearance and default, contains no pro- 
 visions therefor, the coux-t will not allow an amendment after sale. 
 
 U. S. Trust Co. V. Schleip, 31 Abb. N. C, 53. 
 
 II. Parties. 
 
 The following is an index of cases on parties in foreclosure ; the proper 
 limitations of the volume, however, prevent a presentatioii of particular 
 facts involved in each case. 
 General Principle : 
 
 As a general proposition, all persons who have or claim an interest in, 
 or lien upon, the mortgaged premises, subsequent or inferior to the lien 
 of the plaintiff's mortgage, are necessary parties. If not joined as parties, 
 defendants, their interests will remain undistributed, and they will retain 
 the right to redeem after the foreclosure sale. 
 
 Authority to join such holders or claimants of adverse interests is given 
 by §447, C. C. P. 
 
 (a.) The following are necessary parties [except where otherwise 
 specially noted] : 
 
 Plaintiff. 
 
 The mortgagee, if he continues to own the mortgage. 
 
 Emigrant Indus. Savings Bank v. Goldman, 75 N. Y. , 137. 
 The assignee thereof. 
 The executors, or administrators of deceased mortgagee. 
 
 Plaintiff or defendant. 
 2Iortgagee who has absolutely assigned is not. 
 
 Haaron v. Lyons, 30 State Rep., 416. 
 But if the assignment is by way of security, he is. 
 
 Bard v. Poole, 13 N. Y., 495. 
 
 Bloomer ■«. Sturges, 58 id., 168. 
 Pledgee of mortgage. 
 
 (But whether made a defendant or joined by the owner of the mortgage 
 as a co-plaintiff is immaterial). 
 
 Simson v. Satterloe, 64 N. Y., 657 ; aff'g 6 Hun, 305. 
 
 Defendant. 
 Present owner of equity of redemption. 
 
II. Causes of Action in Equity. (3) Foreclosure. 305 
 
 Note on Pleading and Parties in Foreclosure. 
 
 Prior owners, even the original mortgagor, are not. 9 
 
 Daly V. Burchell, 13 Abb. Pr. it. S., 364. 
 Walton V. James, 11 Weekly Dig., 508. 
 Unless some interest in tli,e equity of redemption still remains, as a right 
 to redeem after a sale under execution. 
 
 Hallock V. Smith, 4 Johns. Ch., 649. 
 Wife of owner of equity of redemption, since she has dower right. 
 
 Merchants Bank v. Thomson, 55 N..Y, 7. 
 Even in action to foreclose a purchase money mortgage, wife has an 
 inchoate right of dower in equity of redemption which is not cut off unless 
 she is made a party defendant. 
 
 Mills V. Van Voorhies, 20 N. Y., 413. 
 Wife of prior owner of equity of redemption, who did not unite in deed 10 
 with husband. 
 
 People V. Knickerbocker Life Ins. Co., 66 How. Pr., 115. 
 Owner of an estate by the curtesy. 
 
 Hecker v. Sexton, 6 State Rep., 680. 
 Assignee in Bankruptcy of Mortgagor. 
 Winslow V. Clark, 47 N. Y., 261. 
 (But not if subsequent to filing of lis pendens.) 
 Daly V. Burchell, 13 Abb. Pr. N. S., 264. 
 General Assignee. 
 
 Julien V. Lalor, 47 Hun, 164. 
 (Even after settlement of his account under a decree providing that he 11 
 is discharged on compliance witli its terms, but sucli terms not having 
 been complied with.) 
 
 Temporary receiver of corporation is not, although appointed in an 
 action by people to dissolve, which action is pending in same court. 
 Herring v. Erie R. Co., 105 N. Y., 340. 
 Devisees of the mortgaged premises. 
 
 Devisees of a subsequent mortgagee are not, although the executors 
 have brought foreclosure on the 2d mortgage and purchased at tlie sale. 
 Dockman v. Reilly, 95 N. Y., 64. 
 Executors of a subsequent mortgagee. 
 
 Lockman v. Reilly, 95 N. Y., 64. -j^,, 
 
 Legatees of the owner of the equity, where legacies are made charge on 
 land. 
 
 McGown V. Yerks, 6 John Ch., 450. 
 Remainder-men who may enforce a conveyance as a valid power in 
 trust, though the trust itself is void as a trust. 
 
 Graham v. Fountain, 3 N. Y. Supp,, 598. (Deed to trustee for 
 benefit of another for hfe and in trust to convey to surviving 
 children of cestui que trust.) 
 Infant remainder-men, notwithstanding life estates are outstanding, 
 and lite tenants are joined. 
 
 Leggett V. Mut. Life Ins. Co., 64 Barb., 23. 
 
 30 
 
u 
 
 306 Abbott's Select Cases on Code Pleading. 
 
 Note on Pleading and Parties in Foreclosure. 
 
 13 Beneflciaries a,re not, when claiming under a direction to executors to 
 sell and invest proceeds, and pay over income to. 
 
 Mut. Lite Ins. Co. v. Woods, 4 N. Y. Supp., 133. 
 Heirs at lam of deceased mortgagor or owner of equity. 
 
 Woods V. Moorehouse, 1 Lans., 405. 
 So, under agreement to hold land as security for advances, with power 
 to sell and account for surplus, which the court held to constitute an 
 equitable mortgage. 
 
 Dodd V. Neilson, 90 N. Y., 243. 
 So, although testator has given full power of sale to executors and dis- 
 posed of the proceeds arising from such sale. 
 
 Noonan v. Brennemau, 54 Super. Ct., 337 ; (contra) Graham v. 
 Livingston, 7 Hun, 11. 
 Executors of deceased mortgagor, under devise to them in trust. 
 So, under direction or power to sell. 
 
 Noonan v. Brenneman, 54 Super. Ct., 337. 
 Person named as one of two executors, but who does not quahfy or act, 
 where other qualifies and is joined, is not necessary. 
 Steinhardt i'. Cunningham, 55 Hun, 375. 
 Trustees who hold the equity must all be made parties. 
 
 Paton V. Murray, 6 Paige, 474, but see Steinhardt v. Cunningham, 
 supra. 
 -, . Cestui que trust is, when he is entitled to some direct equitable estate or 
 interest in the land as land. 
 
 Lockman v. Reilly, 95 N. Y., 65, and cases cited. 
 
 is not, where on foreclosure of junior mortgage the executor 
 
 has bought in at sale. 
 Id. 
 
 is not, in an action to foreclose mortgage given by the trustee. 
 
 Harlem, etc., Assoc, v. Quinn, 33 State Rep., 909. 
 StocMiolder of corporation mortgagor is not. 
 
 Smith V. Moquette Loom Co., 20 Weekly Dig., 342. 
 • Trustee, in an action by bondholders, after trustee's refusal to sue. 
 
 Davies v. N. Y. Concert Co., 41 Hun, 493. 
 .. r> Contingent Interests. 
 
 Mortgagor's widow holding life estate and children living at commence- 
 ment of action, are aU the necessary parties under devise of remainder to 
 children and upon death of child to its offspring. 
 Echmann v. Alt, 4 Misc., 305. 
 As a general rule, it is not necessary to make every claimant of such 
 interests a party in order to bar his claim ; but if that person who has the 
 first vested estate of inheritance, and who is in esse, is before the court 
 the judgment appears to be a bar both to his right and to the right of a 
 contingent remainder-man not a party. 
 
 Brevoort v. Brevoort, 70 N. Y., 136. 
 Thomas on Mortgages, § 734. 
 
II. Causes of Action in Equity. (3) Foreclosure. 307 
 
 Note on Pleading and Parties in Foreclosure. 
 
 Purchaser of growing trees is not — where purchase made under execu- 17 
 tion sale, and mortgagee had no notice. 
 
 Batterman v. Albright, 123 N. Y., 484. 
 All purchasers on first foreclosure are, in a second action to foreclose, 
 brought against a junior mortgagee who was omitted in first action. 
 Moulton V. Cornish, 30 Abb. N. C, 339. 
 Transferees after filing- of lis pendens are not. 
 
 Wagner v. Hodge, 34 Hun, 534. 
 (Assignee in bankruptcy). 
 
 Where deed, though prior, is not recorded till after filing of lis pendens, 
 and mortgagee had no notice. 
 
 Kiudberg v. Freeman, 39 Hun, 466. -. o 
 
 Grantee under ineffectual deed is not. 
 
 Brani v. Bi-am, 34 Hun, 487. 
 (Attempted deed by wife alone of J^ of premises held by the entirety.) 
 A city which has acquired part of mortg-aged premises for public use, is 
 not. 
 
 Hooker v. Martin, 10 Hun, 302. 
 Junior mortgagees, where such mortgages have been recorded. 
 
 Benjamin v. Elmira, etc., R. Co., 54 N. Y., 675. 
 So, even if not indexed. 
 
 Mut. Life Ins. Co. v. Dake, 1 Abb. N. C, 381. 
 But not if unrecorded, although an assignment to the present owners 
 has been recorded, 
 
 Kipp V. Brandt, 49 How., 358. 
 
 , their personal representatives, if deceased. 
 
 German Savings BanK v. Muller, 10 Weekly Dig., 67. 
 
 , their heirs are not. 
 
 Id. 
 Lessee, under recorded lease. 
 Tenant in possession under subsequent letting. 
 
 Hirsch v. Livingston, 3 Hun, 9. 
 Judgment creditors who have existent liens. 
 Reynolds v. Park, 53 N. Y., 36. 
 
 The rule is the same although it be a purchase money mortgage. 
 
 Winebrener v. Johnson, 7 Abb. Pr. N. S., 303. 
 
 The lien of a judgment on lands of judgment debtor in county where 
 
 docketed continues for ten years after filing of the judgment roll and 
 
 attaches to property then owned or subsequently acquired within the ten 
 
 years. 
 
 C. C. P., § 1251. 
 If judgment debtor dies during the existence of the lien, it is continued 
 for three years and six months after the issuance of letters upon his estate, 
 notwithstanding the expiration of ten years from filing of judgment roll. 
 Be Matteson, 50 State Rep., 375. 
 C. C. P., § 1380. 
 
 19 
 
 20 
 
308 Abbott's Select Cases on Code Pleading. 
 
 Note on Pleading and Parties in Foreclosure. 
 
 21 The lien of a justice's judgment, when duly docketed with the county- 
 clerk, is a lien on the real estate of the judgment debtor for ten years. 
 
 C. C. P., § 3017. 
 
 Re Matteson, 50 State Rep., 375 ; s. c. 31 X. Y. Supp., 576. 
 
 Waltermire v. Westover, 14 N. Y., 16. 
 
 Townsend v. Tolhurst, 33 State Rep., 21. 
 But the amount of the judgment must exceed $35 exclusive of costs. 
 
 C. C. P., § 3017. 
 A judgment entered against a party after his death, under j 763 C. C. P., 
 is not a lien on decedent's real property. 
 
 C. C. P., §1210. 
 
 Re Clark, 15 Abb., 337. 
 
 22 Creditors by simple contract are not. 
 
 Herring v. Erie R. Co., 105 N. Y., 340. 
 Unknown defendants. If any party or parties having an interest in or 
 a lien on the mortgaged premises are unknown to plaintiff, and the resi- 
 dence of such parties cannot, with reasonable diligence, be ascertained by 
 him, an order may be granted for service by publication and the parties; 
 be designated by fictitious names with a description added, identifying the 
 person intended. 
 
 C. C. P., §§451, 438. 
 Such service is valid and binding, although it appears that the unknown 
 party is an infant. 
 
 Wheeler v. Scully, 50 N. Y., 667. 
 ^3 When unknown owners are made defendants under §§ 438, 451 C. C. P., 
 and are described in the summons, the addition of the words " if any " 
 does not invalidate the process. 
 
 Abbott V. Curran, 98 X. Y., 665. 
 The affidavit upon which the order may be granted must show that the 
 names or residences are unknown to the plaintiff ; an affidavit by plaint- 
 iff s attorney that " deponent does not know " and which states no reason 
 why the affidavit is not made by plaintiff, is insufficient. 
 
 Piser V. Lockwood, 30 Hun, 6. 
 
 (6) Proper Parties : 
 
 "24: Proper parties, as distinguished from necessary parties, are those with- 
 out whose presence before the court, it will proceed in the action and 
 render judgment of foreclosure and sale, but if joined as defendants the 
 court may decree some further or special relief, or settle some contro- 
 verted question, which could not be effectually done in their absence. 
 
 A proper party may be joined by the plaintiff, or upon his own applica- 
 tion, may be allowed to intervene. 
 
 In general a claimant under a prior right cannot be joined for the pur- 
 pose of attacking the validity of such prior right, but (as for instance, in 
 tlie case of a prior mortgagee) may properly be joinecl for the purpose of 
 having the amount of the incumbrance determined, and either paid out of 
 
II. Causes of A ction in Equity. (3) Foreclosure. 309 
 
 Note on Pleading and Parties in Foreclosure. 
 
 proceeds of sale or decreed to remain a lien on the property in hands of 25 
 purchaser. 
 
 The following will illustrate who are, or are not, proper parties within 
 the above principles : 
 
 The mortgagee, in an action by his assignee, is a proper party. 
 
 Hoyt V. Martense, 16 N. Y., 331. 
 A mortgagor who has conveyed absolutely, is. 
 
 Daly V. Burschell, 13 Abb. N. S., 364. 
 Oxvner of equity, under unrecorded deed, is properly joined on his 
 application. 
 
 Johnston v. Donvan, 106 N. Y., 369. 
 Prospective grantee. Knowledge of owner's intent to convey does not 
 justify plaintiff in joining the prospective grantee. 26 
 
 Hattield v. Malcolm, 71 Hun, 51. 
 General assignee is. 
 
 Julien I'. Lalor, 47 Hun, 164. 
 Assignee in bankruptcy is, whose right is subordinate to plaintiff's. 
 
 Ostrander v. Hart, 30 State Rep., 170. 
 The representative character must plainly appear. 
 
 Landon v. Townshend, 139 N. Y., 166. 
 Guarantor of payment, is. 
 
 Griffiths V. Robertson, 15 Hun, 844. 
 So, of collection. 
 
 Vanderbilt v. Schreyer, 16 Weekly Dig., 464, 
 and under C. C. P., § 1637 ; but judgment will provide that no execution 27 
 issue against him until the return, unsatisfied, of an execution against the 
 parties primarily liable. 
 
 Leonard ■;;. Morris, 9 Paige, 90. 
 So, of payment of railroad bonds on his own application for purpose of 
 showing foreclosure unnecessary. 
 
 Merc. Trust Co. v. Rochester, etc., R. Co., 3 "Weekly Dig., 518. 
 Successors of deceased mortgagor, personally liable, are. 
 (Including legatees, devisees, heirs or next of kin, for purpose of charg- 
 ing them on statutory liability for assets received.) 
 Re Collins' Petition, 6 Abb. N. C, 327. 
 Stockholders are not, unless on their application to intervene they show 
 a defence. 
 
 Smith V. Moquette Loonx Co., 30 Weekly Dig., 343. 
 Cestuis que trust are, in foreclosure of trustee's mortgage. 
 
 Harlem, etc., Assoc, v. Quinn, 32 State Rep., 909. 
 Prior mortgagees are, so as to have amount of such prior lien deter- 
 mined by judgment. 
 
 Met. Trust Co. v. TonawandaR. Co., 18 Abb. N. C, 368. 
 Guilford v. Jacobie, 69 Hun, 430. 
 But the particular relief sought must be clearly stated in tlie complaint 
 or the prior lien will be unaffected. 
 
 Emigrants Bank v. Goldham, 75 N. Y., 127. 
 
310 Abbott's Select Cases on Code Pleading. 
 
 Note on Pleading and Parties in Foreclosure. 
 
 29 Demurrer for insufficiency overruled in 
 
 Smith V. Da vies, 4 Civ. Pro. E., 158. 
 Pendency of the action is no defence to a subsequent action by the 
 defendant on his prior mortgage. 
 
 Adams «. McPartlin, 11 Abb. N. C, 369. 
 But a judgment is a bar, where the defendant defaulted, and the amount 
 of his prior mortgage was determined by the judgment and ordered paid 
 out of the iirst proceeds of sale, in accordance with the prayer of the com- 
 plaint. 
 
 Jacobie «. Mickle, 144 N. Y., 337. 
 Claimants under prior rights other than mortgages, are not, 
 For purpose of tryiag validity of their claims. 
 
 30 Kent «. Popham, 6 Civ. Pro. R., 366. 
 
 nor should they be allowed to intervene, it their rights cannot be preju- 
 diced. 
 
 Merc. Trust Co. «. Rochester, etc., E. Co., 33 Weekly Dig., 65. 
 But a claimant under a tax sale held a proper party where it appeared 
 that statutory notice to the mortgagee was not given and the court held 
 that the tax purchaser's claim was subordinate. 
 Ruyter ®. Wickes, 4 N. Y. Supp., 743. 
 So, a prior mechanic's lienor may be properly joined to have amount of 
 lien determined and paid. 
 
 Emigrants Savings Bank c. Goldham, 75 N. Y., 133. 
 Purchaser at tax sale is. 
 
 31 Roosevelt Hospital v. Dowley, 57 How., 489. 
 
 Creditors by simple contract are not, although they claim the mortgage 
 is fraudulent and the foreclosure collusive. 
 
 Gardner v. Lansing, 28 Hun, 413. 
 Nor have they any right to be joined on application. 
 
 Herring®. Erie E. Co., 105 N. Y., 340. 
 The vendee under executory contract of sale, is. 
 
 Crooke v. O'Higgins, 14 How., 154. 
 
II. Causes of Action in Equity. (4) Partition. 311 
 Townseud v. Bogei-t, 126 N. Y., 370. 
 
 TOWNSEND V. BOGEET. 
 
 New York Court of Appeals. 
 
 [Reported in 136 N. Y., 370 ; rev'g. 35 State Rep., 76.] 
 
 1. In an action between tenants in common, for partition of real property 
 by sale and division of proceeds, it is proper to join as defendants 
 third persons who claim some right which is a cloud on the title. 
 This is not a separate cause of action, but they are properly joined by 
 reason of their making claim to the premises. 
 
 3. A general allegation that such defendants " claim some right, title or 
 interest in said premises, the exact nature of which is unknown to 
 plaintifE, and whicli is a cloud on the title to the premises " is suflB- 
 cient if the necessity of a sale be also shown. 
 
 3. If their claim is such as to be unaffected by the partition, this defence 
 
 should be pleaded by them by answer. 
 
 4. The rules of pleading in equity are broader and more elastic than those 
 
 at law, by reason of tlie inherent character of the relief which may 
 be allowed. 
 
 5. In carrying out the general rule of equity that all persons materially 
 
 interested in the subject of a suit are to be joined, a plaintiff who 
 is ignorant of the nature, extent or merits of an adverse claim may 
 join the claimant, and require him to set fortli his claim if he chooses 
 to assert it in the action. 
 
 Action for partition. 
 
 The allegations of the complaint were as follows : 
 
 I. That he, plaintiff, together with the defendants Josiah 
 Lockwood and Mary N. Townsend, are seized and possessed in 
 fee as tenants in common of all those four lots of land in said 
 city of New York which, taken together, are abutted and 
 bounded as follows : \I)esGription of p>reinises.\ 
 
 II. That the plaintiff is seized and possessed in fee of four 
 undivided tenth parts of said premises; the defendant Josiah 
 Lockwood is seized and possessed in fee of an undivided tenth part 
 of said premises, and the defendant Mary N. Townsend is seized 
 and possessed in fee of five undivided tenth parts of said 
 premises, and has an inchoate right of dower in an undivided 
 half part of said premises. 
 
 III. That the defendant Caroline Lockwood, as the wife of 
 
312 Abbott's Select Cases on Code Pleading. 
 
 Townsend v. Bogert, 136 N. Y., 370. 
 
 said Josiah Lockwood, has a contingent right of dower in one 
 undivided tenth part of said premises. 
 
 IV. That the defendants, the mayor, aldermen and com- 
 monalty of the city of New York, and the defendant Artemus 
 S. Cady, as clerk of arrears and collector of assessments in 
 said city, claim that said premises are subject to liens for arrears 
 of assessments, taxes and Croton water rents and for sales 
 therefor, and such claim is a cloud upon the title to said 
 premises. 
 
 V. That defendants Ellen J. Huntington, Carlos C. Hunting- 
 ton, Isaac Jessup and Emma F. Jessup, his wife ; Caroline A. 
 Bogert, Stephen G. Bogert, Ann Augusta Linsly, John H. 
 Linsly, Elida Jessup, Edna Jessup, Isaac E. Jessup, all individu- 
 ally, and the said Stephen G. Bogert and John H. Linsly, as 
 executors of the last will of Isaac K. Jessup, deceased, claim 
 some right, title or interest in said premises, the exact nature of 
 which is unknown to plaintiff, and which is a cloud upon the 
 title to said premises. 
 
 YI. That said premises are so situate that division or partition 
 thereof among the parties entitled thereto according to their 
 respective rights and interests cannot be had without great 
 prejudice to the owners thereof. 
 
 YII. That except the defendant, Isaac E. Jessup, all the 
 parties to said action are of full age. The lands herein 
 described are the only lands owned in common by the parties to 
 this action. 
 
 YIII. ISTo personal claim is made against any defendant. 
 
 Plaintiff demands judgment as follows : 
 
 I. That the plaintiff is seized and possessed in fee, subject to 
 the contingent right of dower to Mary IST. Townsend therein, of 
 four undivided tenth parts of said premises as tenants in 
 common with defendants Josiah Lockwood and Mary IST. Town- 
 send as co-tenants. 
 
 II. Tliat the defendant Josiah Lockwood is seized and 
 possessed in fee, subject to the contingent right of dower of 
 Caroline M. Lockwood and Mary N. Townsend therein, of one 
 
II. Causes of Action in Equity. (4) Partition. 313 
 
 Townsend v. Bogert, 126 N. Y., 370. 
 
 undivided tentli part of said premises, as tenants in common 7 
 with plaintiff and the defendant Mary IsT. Townsend, as co- 
 ienants. 
 
 III. That the defendants Mary IST. Townsend is seized and 
 possessed in fee of iive undivided tenth parts of said premises as 
 tenant in common with the plaintiff and the defendant Josiah 
 Lockwood, as co-tenants. 
 
 IV. That the defendants Ellen J. Huntington, Carlos C. 
 Huntington, Isaac Jessup and Emma F. Jessup, his wife; 
 'Caroline A. Bogert, Stephen G-. Bogert, Ann Augusta Linsly, ,s 
 John H. Linsly, Elida Jessup, Edna Jessup and Isaac E. Jessup, 
 .all individually, and the said Stephen G. Bogert and John H. 
 Linsly as executors of the last will of Isaac K. Jessup, deceased, 
 and the mayor, aldermen and commonalty of the city of New 
 York, and Artemus S. Cady, as clerk of arrears and collector 
 of assessments in the finance bureau of said city, have not, 
 nor has any or either of them, individually or collectively, or 
 officially or as executors, any right, title or interest, claim or 
 demand, of, or to, or in, or upon, or against said premises or any 
 part thereof. 
 
 Y. That said premises are so situate that a sale thereof is 
 necessary, and that said premises be sold by and under the 
 -direction of the court and conveyance given to the purchasers. 
 
 VI. That out of the moneys arising from said sale the 
 plaintiff be paid his costs of this action and of said sale. 
 
 VII. That out of the residue of the moneys arising from said 
 sale there be paid to Caroline M. Lockwood and Mary N. 
 Townsend, if they will receive the same, the value of their 
 respective contingent rights or dower in said premises upon 10 
 their executing releases of said dower rights. 
 
 VIII. That the residue of said moneys arising from said sale 
 be divided and paid four-tenths thereof to the plaintiff, and one- 
 tenth thereof to the defendant, Josiah Lockwood, and five-tenths 
 thereof to defendant, Mary N. Townsend. 
 
 IX. That it be adjudged that by said sale and conveyance, 
 pursuant thereto, the plaintiff and defendants and all persons 
 claiming through or under them, subsequent to the filing of 
 
314 Abbott's Select Cases on Code Pleading. 
 
 Townsend v. Bogert, 126 N. Y., 370. 
 
 11 notice of the pendency of this action, be barred of all right, title 
 and interest in said premises in possession, reversion, remainder 
 or otherwise. 
 
 Defenilants demurred on the ground (1) that the complaint 
 did not state facts sufficient to constitute a cause of action ; (2) 
 that there was an improper joinder of causes not affecting all 
 defendants. 
 
 The Superior Court at Special Term (Fbeedhan, J.) over- 
 ruled the demurrer " under the provisions of the Code of Civil 
 "^ Procedure applicable to this action." 
 
 The General Term reversed the decision of the Special Term, 
 and sustained the demurrer, on the ground that, imder the 
 provisions of the Code, only such persons are proper parties 
 who either have an estate in the premises, or some portion 
 thereof, or who have a lien or interest attaching to the entire 
 property, or to an undivided share or interest therein; and each 
 defendant's share or interest must appear from the complaint. 
 
 13 The Court of Appeals reversed the jvidgment of the Greneral 
 Term. 
 
 Finch, J., We are of opinion that the General Term errone- 
 ously sustained the demurrer interposed to the plaintiff's com- 
 plaint. That pleading, it is conceded, stated a good cause of 
 action for a partition as against the defendants, who held 
 undivided interests in the land as tenants in common, and none 
 of whom object to its sufficiency. It avers that the property is 
 of "such character and so situated as to make an actual partition 
 impossible, except with grave injury to the interests of the 
 owners, and, therefore, seeks a sale and division of the proceeds. 
 With that relief in view, it further alleges that other parties, 
 naming them, and being those who now demur, " claim some 
 right, title or interest in said premises, the exact nature of 
 which is unknown to the plaintiff, and which is a cloud upon the 
 title to said premises," and asks that they be adjudged to have no 
 interests in the property. 
 
 The demurrants interpose two objections : one, that the com- 
 plaint states no cause of action against them, and the other, that 
 
II. Causes of Action in Equity. (4) Partition. 315 
 
 Townsend v. Bogert, 136 N. Y., 370. 
 
 a cause of action to determine a claim against real estate is 15 
 improperly united with it in one partition. The demurrants 
 themselves demonstrate that there is no force in the second 
 objection, for they show satisfactorily that none of the conditions 
 made necessary by the Code for the maintenance of such an 
 action have been heeded, and that neither such cause of action 
 nor one to' remove a cloud has been stated in the complaint. 
 We agree mth them that neither in purpose nor result were any 
 such causes of action pleaded, and that the complaint states 
 alone a cause of action in partition. 
 
 The question, therefore, is whether, upon the allegations of 
 the complaint, the right to a partition of the property can be 
 said to affect the defendants who demur. It seems to me that it 
 can. Prima facie, and in the absence of a contrary explanation, 
 all persons who either are or claim to be interested in the 
 premises are affected by a demand for a sale and a division of 
 the proceeds, and the cause of action pleaded affects or concerns 
 them, and so becomes a good cause of action for a partition as 
 against them. That the complaint does not show what their 
 interest is, the plaintiff excuses by his ignorance of the nature 17 
 of their claim ; and that is a fault which the defendants can 
 easily repair. That the claim of an interest in the premises 
 may be false or pretended or unfounded, we are not to presume 
 in order to sustain the demurrer. It is true that the interest 
 claimed may prove to be of such a character as to be totally 
 unaffected by the partition sought. If that be so, it should be 
 asserted by answer. The presumption raised by the allegations 
 of the complaint is to the contrary ; for they are that the claim is 
 of an interest or right in the property to be sold, and such that it 
 serves to cloud the title. Presumably, that it is a claim of right '^ 
 which the partition will affect, and the parties which have made 
 such claim, and by the demurrer admit that they have, must be 
 assumed to have done so in good faith, and not falsely or 
 fraudulently. 
 
 The rules of pleading in equity, while the same in form with 
 those in actions at law, are, nevertheless, broader and more 
 elastic by reason of the inherent character of the relief which 
 may be sought and given. It has always been held as a general 
 
316 Abbott's Select Cases on Code Pleading. 
 
 Towasend v. Bogert,- 136 N. Y., 370. 
 
 19 rule in equity, that all persons materially interested, either 
 legally or beneficially, in the subje(!t-matter of a suit, are to be 
 made parties to it, so that there may be a complete decree which 
 shall bind them all. (Caldwell v. Taggart, 4 Peters, 190.) In 
 carrying out that rule it sometimes happens that a plaintiff 
 knows the fact that a third person claims an interest in the 
 subject-matter of the action, but does not know t'he nature, 
 extent or merits of the claim, which cannot, nevertheless, be 
 entirely ignored without peril to the completeness of the remedy 
 sought. In such an emergency the facts may be stated, the 
 claimant be called in as a party, and required to disclose hii^ 
 alleged interest. While bills of discovery are abolished, yet in 
 such a ease as we have described a discovery of the defendant's 
 claim is incidental to the relief sought and essential to its 
 completeness. Indeed, it has been said that every bill for relief 
 is in reality a bill of discovery, since it asks from the defendant 
 an answer as to all the matters charged in the bill. (Story's Eq. 
 Pleading, § 311.) The Revised Statutes acted upon these princi- 
 ples in framing the specific rules applicable to actions of 
 
 21 partition. (2 R. S., part 3, chap. 5, tit. 3, § 5.) The petition 
 was required to set forth the rights and titles of all persons 
 interested, " so far as the same are known to the petitioner," and 
 the rule to appear and answer required the defendants interested, 
 whether their interest was known or unknown, " to show title to 
 the proportions which they may claim " in the premises. (§ 13.) 
 "While the Code has changed the forms of pleading it has not 
 destroyed their essential characteristics except in some minor 
 degree. In providing for actions of jjartition, section 15i2 was 
 ostensibly founded upon section 5 of the Revised Statutes, and 
 
 ^^ like that section requires the rights of the parties to be stated 
 " so far as they are known to the plaintiffs." So far as they are 
 not known such interest can only be described as '' a claim," for 
 it will not do to say that the plaintiff must admit the validity of 
 an asserted interest the nature of which he does not know. 
 
 This complaint, therefore, alleged all that it could to show 
 why the demurrants were made parties, and how the cause of 
 action concerned them. The relief of a sale could only be 
 complete and effective l)y the ability to give a clear title. 
 
II. Causes of Action in Equity. (4) Partition. 317 
 
 Townsead v. Bogei-t, 126 N. Y., 370. 
 
 (Bogardns v. Parker, 7 How. Pr., 305.) Tliat result could only 23 
 be reached by bringing the claimants into court and calling 
 upon tkeni to disclose their interest or disclaim its existence, 
 and so the allegations of the complaint were sufficient prima 
 facie to extend the one cause of action to the demurrants and 
 bring them within its influence. They are either so situated as 
 to be aiiected by the decree or not affected by it. Presumably, 
 from the averments of the complaint they will be affected by it. 
 If, however, they insist that their interest may be of such a 
 character that it will not be affected by a possible sale of the 
 property, or that it cannot or ought not to be tried in the suit, it " 
 is enough to say that the plaintiff cannot negative in his 
 complaint a character of their claim of which he asserts his 
 ignorance. 
 
 If either of those conditions exist the remedy is not by a 
 demurrer. If the actual partition or sale will not aff'ect or 
 disturb the rights of the party, he may safely disregard the 
 action entirely, since no personal judgment is sought against 
 anybody ; or he may answer showing that his presence is 
 unessential and ask to have the complaint dismissed as to him. 25 
 If his interest is of a nature not subject to a trial in the 
 partition suit he may plead the facts in his answer and again 
 seek a dismissal of the complaint as against himself. And so 
 his rights may be perfectly preserved without leaving the 
 plaintiff to blunder in the dark to an impei'fect remedy. 
 
 It may be that the complaint asks some relief which cannot 
 be granted, but that does not make the complaint demurrable. 
 
 The judgment of the General Term should be reversed, and 
 that of the Special Term affirmed, v\'ith leave to the defendants 
 to answer upon payment of costs from the interposition of the ^ 
 demurrer and within twenty days after notice of the entry of 
 this judgment upon filing the remittitur. 
 
 All the judges concurred. 
 
 Judgment accordingly. 
 
318 Abbott's Select Cases on Code Pleading. 
 
 Note on Parties in Partition. 
 
 NOTE ON WHO MAT BEING PAETITION, AND WHO 
 MAY BE MADE PAETIES DEFENDANT. 
 
 The statutory modifications of the remedy by action for partition, have 
 nearly all been in the direction of inci-easing the classes of parties who 
 may bring such a suit, and the classes of persons who may be made 
 defendants. 
 
 The present state ot the law will be most clearly understood by noting 
 successively the usual condition of estates in respect to which the question 
 arises, and who are proper plaintiffs in each situation. 
 
 For important illustrations of the way in which, under these rules, 
 nearly all the equities affecting the property may be worked out and 
 adjusted, see Note on-Special Clauses in Judgment in Partition, in 20 Abb. 
 N. C, 102. 
 
 Jurisdiction. It is to be observed that the following rules as to who 
 may bring partition are not necessarily jurisdictional. They go to the 
 sufficiency of plaintiff's cause of action, or the misjoinder of plaintiffs, not 
 necessarily to the jurisdiction of the court. (Cromwell v. Hull, 97 N. Y., 
 209 ; Eeed v. Eeed, 107 N. Y., 545 ; Hasten v. Olcott, 101 N. Y., 152.) 
 
 And if the plaintiff is one who would be a proper party, and the court 
 has jurisdiction of the subject and the necessary parties have all been 
 joined, and no appeal is taken, the partition will give good title. (Reed v. 
 Eeed, 107 N. Y., 545.) 
 
 The plaintiff must be ia possession at least constructively, by holding 
 the legal title (Wainman v. Hampton, 110 N. Y., 429), unless he and 
 'his co-tenants are remainder-men and reversioners, or where he claims 
 as one of several heirs whose common ancestor died in possession and he 
 seeks to impeach that ancestor's alleged devise. Under the New York 
 Statute, as now in some other States, title may he tried in partition by 
 virtue of the statute (Code Civ. Pro. § 1543) allowing the title or interest 
 of plaintiff, and of any defendant stated in the complaint to be conti-o- 
 verted, and of any defendant as stated in his answer to be controverted 
 by any other defendant's answer. 
 
 Plaintiffs. 
 
 Case 1. Intestacy of parent. Where a sole surviving parent dies leaving 
 heirs who take as tenants in common, any heir may maintain partition 
 against the others. (Code Civ. Pro. § 1532.) It, however, in this or any other 
 class of cases plaintiff be an infant, leave of the surrogate must be first 
 had (§ 1534) ; and the fact that the infant has a genei'al guardian does not 
 entitle the guardian to sue, (§§ 468, 1686); but a guardian ad litem must be 
 appointed only by the court (§ 1535), and must give security (§ 1536) ; but 
 the infant is to be named as the plaintiff, describing him or her as suing 
 by the guardian ad litem named. (See Spooner v. Del., Lack. & "W. R. 
 Co., 115 N. Y., 22.) 
 Case 2. Devise to tenant in common or joint tenants. The like right to 
 
II. Causes of Action in Eqidty. (4) Partition. 319 
 Note on Parties in Partition. 
 
 bring partition is in devisees or grantees to whom property has been given 
 as tenants in common, or share and share alike, and to devisees orgi'antees 
 to whom it has been given in their own right in joint tenancy. (Baldwin 
 V. Baldwin, 74 Hun, 415.) 
 
 Case 3. Tenants by the entirety. Husband and wife, taking as such, 
 that is to say as tenants by the entirety, are not within the statute, unless 
 the words "joint tenants" in §| 1533 and 1533 maybe deemed in a general 
 sense to include such a tenancy. Strictly those words do not. (Stelz v. 
 Schreck, 128 N. Y., 263 ; Peckham, J., saying : " It is not a joint tenancy 
 in substance or form.") Bvit they are within the equity of the statute; 
 a,nd since husband and wife may now make partition by deed (L. 1880, p. 
 676, c. 472), there seems to be no reason whj' a court of equity should not 
 take jurisdiction where it is equitable to decree partition between them ; 
 for pai'tition in equity is founded upon the reasonableness of requiring the 
 parties to release to each other by deed, and compelling them to do so 
 when they unreasonably refuse. 
 
 Case 4. Intestacy of husband and father. 'W here a husband and father 
 dies intestate, a child may bring partition before the widow's dower has 
 been admeasured (§ 1553), in which case, if actual partition is decreed, the 
 one-third will be set off to the widow as if admeasured in the ordinary 
 way (§ 1553), and the shares of, the remainder-men in that third maybe 
 allotted among them, subject to her tenancy for life (§ 1553). If sale is 
 decreed, the court must determine whether the third shall be sold free of 
 her claim, or reserved till the termination of her life estate (§ 1567). 
 
 If dower has been assigned before partition, a, child may still bring 
 partition, joining the tenant in dower (§ 1535) and with the same result. If, 
 in either case, sale is decreed, the widow may have one-third the proceeds 
 invested for her for life (§ 1568), or may accept a gross sum in lieu (§ 1569). 
 Case 5. Devise to widow for life and remainder to children in fee. In 
 this case the widow is entitled to possession ; but either of the children 
 can maintain partition against the others, joining the widow if he please 
 (§ 1539), and the decree will be subject to her rights, unless she consents to 
 a sale (§ 1533), and the court deem it best that her interest be sold (§ 1567), 
 in which case she may have one-third of the proceeds invested for her life 
 (§ 1568), or have her life estate valued, and a gross sum paid her abso- 
 lutely (§ 1569). 
 
 The fact that a share in remainder is liable to be divested by death 
 before the termiuation of the life estate, though it may be a good reason 
 for not making actual partition, does not deprive the court of jurisdiction ; 
 and if no objection on that account be raised, a purchaser at sale gets 
 good title. 
 
 Case 6. Devise in trust for life of widow, remainder to children. If a 
 valid express trust is created, the beneficiaries of the trust while it endures 
 have not, merely as such, any estate in the lands, and as beneficiaries 
 cannot have partition. Any of the remainder-men can bring partition 
 against the others ; and the decree will be subject to the right of the 
 trustees (§ 1583), unless the trustees consent to a sale, which, of course, 
 
320 Abbott's Select Cases on Code Pleading. 
 
 Note on Parties in Partition. 
 
 () they will not do except under sanction and approval of the court for 
 reasons advantageous (or at least under circumstances making it not 
 prejudicial) to the trust estate. 
 
 But it the trustees have an absolute power to sell, especially if they 
 can distribute proceeds in lieu of land, this may or may not be a reason for 
 refusing to make partition. (Compare Mellen v. Banning, 72 Hun, 176, 
 and cas. cit.) 
 
 Case 7. Single life tenant and single tenant in remainder. Here is no- 
 situation for actual partition, and neither tenant can require sale. But if 
 either the life tenant or the remainder-man transfers his or her estate to 
 two or more other persons, then such transferees are co-tenants and may 
 have partition ag'ainst each other ; and, in a suit by transferees of the 
 \Q remainder, the life tenant or tenants may consent to a sale. 
 
 Case 8. Contest between heirs and devisees. If the heirs of a testator 
 who died in possession desire to contest a devise made by him, they may, 
 although not themselves in possession, bring partition among themselves, 
 joining also the devisees, and impeaching the validity of the devise. A 
 transferee of such a devisee may be also joined. In such an actionj 
 establishing the validity of the devise precludes partition ; establishing 
 its invalidity allows a decree against the devisee's claim and a partition 
 between the heirs. 
 
 For notes of cases, see 28 Abb. N. C, 123. 
 
 Defendants. 
 ^^ Many classes of persons are proper defendants who could not be 
 plaintiffs. 
 
 Owners of shares. " Every person having an undivided share, in 
 possession or otherwise, in the property, as tenant in fee for life by the 
 courtesy, or for years " must be a party. Code Civ. Pro., § 1538. 
 
 Life estates and terms. "A tenant in doiver, by the courtesy, for life 
 or for years of the entire property," may be a party, at plaintiff's election, 
 g 1539, and if not, is not affected by the judgment. 
 
 Bight of dower. " Every person having aright of dower in the prop- 
 erty or any part thereof, which has not been admeasured," must be a 
 party, S 1538. 
 
 Inchoate right. Before 1890 the Code contained as to inchoate right of 
 dower, this clause : "Every person having- an inchoate right of dower in 
 an undivided share in the property " must be a party, § 1538. But this 
 clause was omitted by the amendment of 1890, p. 914, c. 509. Its omission 
 does not seem to deprive the wife of her protection, and it is difficult to 
 see why it should preclude the plaintiff from joining her, for other sec- 
 tions providing for that are left unimpaired, §§ 1570, 1571. 
 
 Remainders, etc. Every person entitled to tlie reversion, remainder or 
 inheritance of an undivided share after the determination of a particular 
 estate therein must be a party,'' § 1538, and Schween «. Greenberg, 
 Hun, 354 ; Duffy v. Durant, etc., Co., 78 id., 314 ; Campbell v. Stokes, 143 
 N. Y., 23. 
 
. II. Causes of Action in Equity. (4) Partition. 321 
 Note on Parties in Partition. 
 
 Contingent interests. "Every person who by any contingency con- 13 
 tained in a devise, grant or otlierwise, Is or may become entitled to a 
 beneficial interest in an undivided share thereof" must be a party, § 
 
 1538. See notes in 26 Abb. N. C, 407 ; 18 id., 297. 
 
 Executor, etc., and creditor of necessary party. "The executors or 
 administrators and creditors of a deceased person who, if living, should 
 be a party," must be parties and the premises may be sold free from his 
 debts. § 1538 as amended in 1890. 
 
 If upon the death of one of two or more plaintiffs, or one of two or 
 more defendants pending the action, his interest passed to a third person, 
 the latter may be brought in, § 1588. 
 
 Creditors. A creditor or other person having a lien or interest which 
 attaches to the entire property may be a party, at plaintiff's election, § 14 
 
 1539, and if not is not affected by the Judgment. 
 
 A creditor having a lien on an undivided share or interest may be made 
 a party at plaintiff's election, § 1540, unless the owner of that share is 
 deceased, in which case the creditor must be made a party. 
 
 21 
 
:i'2'2 Abbott's Select Cases on Code Pleading. 
 
 Kain ■;;. Lai-kin, 141 N. Y., 144. 
 
 KAIX V. LAKKIN. 
 
 JVew York Court of Apj>eals, January, 1894- 
 [Reported in 141 N. Y., 144 ; rev'g 66 Hun, 809, and expl'g 131 N. Y., 300.] 
 
 1. Where, upon the trial of the action, the court, without taking any 
 
 proof, dismissed the complaint upon the ground that it did not state 
 sufficient facts to constitute a cause of action, an appeal presents the 
 single question wliether, in law, the complaint was sufficient as a 
 pleading to give the plaintiff a standing before the court sufficient to 
 enable him to mal5:e out his case by any proof he could. 
 
 2. In sucli a case, it is sufficiently favorable to the defendants to consider 
 
 tlie complaint as before the appellate court upon a general demurrer 
 on the g-round of insufficiencj'. 
 
 3. A demurrer for insufficiency cannot be sustained by showing that facts 
 
 ai-e imperfectly or informally alleged, or that the pleading lacks 
 definiteness and precision, or that material facts are only argumenta- 
 tively averred. 
 
 4. The complaint in a judgment creditor's action held, erroneously dis- 
 
 missed, at the opening of the trial, where it alleged in substance : 
 tlie rendering of a judgment for plaintiff against one defendant, 
 return of execution thereon unsati^Sed, that the judgment is still 
 unpaid, that, after the cause of action accrued, such defendant trans- 
 ferred the property which would be subject to the lien of the judg- 
 ment to certain co-defendant relatives without consideration, and 
 with intent to hinder, delay and defraud the plaintiff of his claim. 
 
 Judgment creditor's suit to set aside transfers by the debtor 
 of bis property, and to secure satisfaction of an unpaid judg- 
 ment. 
 
 The complaint, after alleging plaintiff's appointment as • 
 administratrix of one David Kain, deceased, proceeded : 
 
 II. That the plaintiif herein in her said representative capac- 
 ity, in an action in the Supreme Court in Ulster County, duly 
 recovered a judgment in her favor against the defendant, Patrick 
 Larkin, for the sum of -SljSlS.^S, for recovery and costs, less 
 $20, deducted on retaxation of costs, and the judgment roll 
 thereof was duly filed, and the judgment entered and docketed 
 in said Ulster County Clerk's office on the 16th day of October, 
 1890 ; that on the 22d day of N"oveniber, 1890, an execution on 
 said judgment \\'as duly issued and delivered to the sheriff of 
 
II. Cattses of Action in Equity. (5) Judg't Creditor's Suit. 323 
 
 Kain v. Larldn, 141 N. Y., 144. 
 
 the county of Ulster, where the said Patrick Larkin then resided 
 and yet resides, and that the said sheriff has duly returned said 
 execution wholly unsatisfied, and that said judgment remains 
 wholly unpaid. 
 
 III. That the claim and cause of action in said judgment 
 accrued, and the said defendant, Patrick Larkin, became liable 
 therefore to. the plaintiff on or about November 21st, 1886. 
 
 lY. That the said Patrick Larkin at the time said cause 
 of action accrued, and up to the time of the commencement of 
 said action, which was commenced on the 6th day of January, 
 188Y, by the service on him of the summons and complaint, was 
 the owner, seized in fee simple, and possessed of real estate of 
 the value of about $3,000, besides other personal property and 
 money in the sum of $1,404:.21, deposited in the Ulster Coun*y 
 Savings Institution. 
 
 V. That after the commencement of said action the said 
 Patrick Larkin disposed of his said property as follows, viz.: On 
 the 8th day of January, 1887, he drew out from the said Sav- 
 ings Institution the whole of his money and redcposited $1,200 
 thereof into the same Savings Institution in the name of Mary 
 Larkin, his wife, then living, who has since died ; that on or 
 about January 12th, 1887, said Patrick Lai-kin executed and 
 acknowledged a mortgage dated back to January 1st, 1887, for 
 the sum. of $3,000, given upon said real estate to his brother, 
 Michael Larkin ; that, on or about May Ist, 188t>, during the 
 pendency of said action, the said Patrick Larkin executed and 
 delivered a quit claim deed of said real estate to his daughter, 
 Maria E. Larkin, a minor, then under the age of twenty-one 
 years, the defendant herein, who resided -with him, who was his 
 only heir and next of kin, his aforesaid wife being dead ^ that 
 thereafter, on or about May 27th, 1889, the said Michael Larkin 
 executed and delivered a satisfaction to said Patrick Larkin of 
 said mortgage ; that said conveyances by mortgage and deed 
 were recorded after the said execution in the clerk's office 
 of Ulster County ; that an appeal was pending in said action. 
 May 1st, 1889, and had been noticed prior to that date by the 
 plaintiff for argument at General Term, to be held May 7th, 
 1889, at Albany, N. Y.; that said real estate is described in the 
 
324 Abbott's Select Cases on Code Pleading. 
 
 Kain v. Larkin, 141 N. Y., 144. 
 
 7 deed to said Maria E. Larkin, which is recorded in Books of 
 Deeds, No. 228, page 448, in Ulster County Clerk's office as 
 follows : [here followed a description of the realty'] 
 
 VI. That these conveyances and transfer of said real estate as 
 aforesaid were made to cover up and conceal the right and title 
 of the defendant Patrick Larkin thereto and in fact without any 
 adequate consideration therefor, with intent to hinder, delay 
 and defraud this plaintiff of her just suit, damages and claim 
 against the said Patrick Larkin. 
 
 c- VI f. That the written consideration stated in the said quit 
 claim deed of said real estate, dated May 1st, 1889, from 
 Patrick Larkin to his said daughter, Maria E. Larkin, is in these 
 words : " In consideration of natural love and affection and the 
 sftim of one dollar;" that there was a further consideration 
 therefor not written in said conveyance, made orally between 
 parties thereto at the delivery of said deed, to the effect, and 
 agreed to, that said Maria E. Larkin should take care of and 
 furnish support for the said Patrick Larkin during his old 
 age. 
 
 VIII. That said transfer of said real estate by Patrick Larkin 
 to his said daughter, Maria E. Larkin, and the considerations 
 therefor are fraudulent and void as to this plaintiff, and the 
 same were made and had by the said parties thereto with the 
 intent to hinder, delay and defraud this plaintiff of her just suit, 
 demand, damages and claim against said Patrick Larkin, and to 
 protect and save for his own use and benefit his said real estate 
 during his life, and thereafter for the sole use and benefit of his 
 said daughter and only heir, and to prevent and hinder this 
 
 \() plaintiff from collecting and receiving from the proceeds of any 
 sale of said property on execution, or otherwise, the amount 
 due her on her said judgment from said Patrick Larkin. 
 
 Wheeefoee, the plaintiff demands judgment, that the said 
 conveyance by quit claim deed, dated May 1st, 1889, made by 
 the defendant Patrick Larkin to the said Maria E. Larkin of the 
 said real estate described herein, be adjudged and declared 
 fraudulent and void as to this plaintiff, and that a receiver be 
 appointed of all the property of said Patrick Larkin, to whom 
 
II. Causes of A ction in Equity. (5) Judg't Creditoi-'s Suit. 325 
 
 Kain v. Larkin, 141 N. Y., 144. 
 
 the defendants will be directed and required to convey said real 11 
 estate, and that said receiver be directed to sell the said property 
 and to pay out of the proceeds of said property the judgment of 
 the plaintiff aforesaid, and the costs and expenses of this action, 
 and hold the balance subject to the order of the court, and that 
 such other rule, order or relief may be granted to the plaintiff 
 as may be just in the premises, besides the costs of the action. 
 
 The Special Term of the Supreme Court dismissed the 
 complaint at the opening of the trial, on the ground that it did 
 not allege facts sufficient to constitute a cause of action. 1^ 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals reversed the judgment. 
 
 O'Beien, J. At the trial of this action, upon the defendants' 
 motion, the court, vrithout taking any proof, dismissed the 
 complaint upon the ground that it did not state sufficient facts 
 to constitute a cause of action. To this ruling and direction the 
 plaintiff's counsel excepted. _ The appeal, therefore, presents 
 but a single question, and that is whether, in law, the complaint 13 
 was sufficient as a pleading to give the plaintiff a standing 
 before the court sufficient to enable her to make out her case by 
 proof if she could. The learned trial judge, as well as the 
 General Term, have apparently reached this conclusion upon 
 the theory that this court, when the case was here on a former 
 appeal, decided that sufficient facts had not been averred. 
 (Kain v. Larkin, 131 N. T., 300.) In this respect we think that 
 the learned courts below have misapprehended the legal effect 
 of that decision. A careful reading of the opinion of this 
 court upon that appeal will show that we reversed the judgment 
 then before us, rendered after a full trial, upon the ground 
 that the facts and circumstances disclosed by the record, as it 
 then appeared, did not sustain the findings and conclusion of 
 the court which set aside, as void, the conveyance and transfer 
 attacked, and not because the complaint was defective. It is 
 true, that in discussing the questions then before us, and in 
 pointing out defects in the proof, it was remarked that certain 
 facts had not been proved nor alleged, but it is nowhere 
 
326 Ajbbott's Select Cases on Code Plkading. 
 
 Kain v. Larkin, 141 N. Y., 144. 
 
 15 intimated that the complaint was defective, or that the necessary 
 facts could not have been proven under it at the trial. Our 
 decision proceeded upon the ground that the proofs, not the 
 pleading, were defective and insufficient. It will be sufficiently 
 favorable to the defendants to consider the complaint as now 
 before us upon a general demurrer upon the ground that it does 
 not state facts sufficient to constitute a cause of action. In such 
 a case the demurrer cannot be sustained unless it appears, 
 admitting all the facts alleged, that no cause of action whatever 
 is stated. The demurrer cannot be sustained simply by showing 
 that facts are imperfectly or informally averred, or that the 
 pleading lacks definiteness and precision, or that material facts 
 are only argumentatively averred. The pleading may be 
 deficient in technical language or in logical statement, but, as 
 against a demurrer or a motion of this character at the trial, the 
 pleading will be deemed to allege whatever can be implied from 
 its statements by fair and reasonable intendment. (Zabriskie v. 
 Smith, 13 iSr. Y., 330; Marie v. Garrison, 83 id., 14, 23; 
 Sanders v. Soutter, 126 id., 193.) The complaint in this case 
 
 lY clearly avers the recovery of a judgment by the plaintiff against 
 one of the defendants and the return of an execution issued 
 thereon unsatisfied ; that the judgment is still due ; that after 
 the cause of action accrued the defendant transferred his 
 property which would be subject to the lien of an execution to 
 his wife, daughter and brother by instruments particularly 
 described, and that by the death of the wife and through a 
 satisfaction of the mortgage on the real estate by the brother, 
 and a deed to her by the plaintiff, all this property has become 
 vested in and is now held by the daughter, who has been made 
 a defendant, and has answered the complaint. The complaint then 
 avers that the deed, mortgage and transfer of money in bank to 
 defendant's credit to his wife, daughter and brother, were made 
 without consideration, and with the intent to hinder, delay and de- 
 fraud the plaintiff of her claim. The relief demanded is that the 
 conveyances and transfer be set aside and declared void, and that 
 a receiver be appointed for the purpose of applying the property 
 to the payment of the judgment. For the purpose of the 
 question now before us, we can assume that these facts all stand 
 
11. Causes of Action in Equity. (5) Judg't Creditor's Suit. 327 
 
 Kain v. Larkin, 141 N. Y., 144. 
 
 admitted upon the record, and when so admitted they establish 19 
 a cause of action by a judgment creditor against the defendant 
 in the execution, and his fraudulent grantees or transferees 
 entitling him to equitable relief. A fraudulent intent on the 
 part of the grantor and grantee is averred. The evidence 
 necessary to support these allegations of a fraudulent intent may 
 be, and usually is, made up of many different facts and circum- 
 stances, but it is not necessary to insert them in a pleading, and 
 it is generally improper to do so. The pecuniary condition of 
 the defendant at the time, the extent of his property, the part 
 transferred and that retained, as well as the nature and extent of 
 the plaintiff's claim, which subsequently ripened into a judg- 
 ment, were all facts bearing on the general allegation of fraud. 
 The plaintiff could prove all these facts and circumstances under 
 her complaint. The general allegation that a conveyance or 
 transfer of property was made with the intent to hinder, delay 
 and defraud creditors is broad and sweeping in its operation and 
 effect. It involves many elements, and may, before it can be 
 deemed established, require proof of many other facts and 
 circumstances which may be given in evidence under the 2 1 
 general charge, without inserting them in the pleading. We 
 think that the plaintiff is entitled to an opportunity to prove 
 her case, and supply, if she can, the defects in the proof pointed 
 out by us in the review of the former judgment, and that the 
 direction dismissing the complaint was erroneous. 
 
 The judgment should be reversed and a new trial granted, 
 costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
328 Abbott's Select Cases on Code Pleading. 
 
 Reed v. Stryker, 4 Abb. Ct. of App. Dec, 26. 
 
 REED V. STRYKEE. 
 
 JVew York Court of Appeals, 1858. 
 [Reported in 4 Abb. Ct. of App. Dec, 36.] 
 
 A complaint by several judgment creditors, seeking to set aside several 
 fraudulent conveyances made by the debtor at various times and to 
 various persons, and to subject the property to the executions issued 
 on plaintiff's judgment and to render the assignee for the benefit of 
 creditors personally liable for violation of his trust, — states but one 
 cause of action. 
 
 The various transferees of the property may be joined as defendants, 
 although there was no privity between them. 
 
 Plaintiffs sued to set aside fraudulent conveyances made by 
 defendant Stryker; the complaint alleged the recovery of 
 several judgments against the defendant Stryker at various 
 times and in various sums by the several plaintiffs ; the issuance 
 of executions thereon, etc., and it sought to set aside as fraudu- 
 lent a conveyance by the debtor to his wife, three others at 
 various times to his mother, and a general assignment for the 
 benefit of creditors. The various transferees under the fraudulent 
 conveyances were joined as defendants, and the assignee was 
 sought to be held personally liable for violation of trust. 
 
 The defendant assignee demurred, on the ground that several 
 causes of action were improperly united ; that the matters 
 relating to the assignment to him were separate from the 
 others ; and that he had no connection with the other matters. 
 
 The Special Term overruled the demurrer. 
 
 The General Term reversed the judgment of the Special 
 Term, being of opinion that as the complaint did not allege a 
 combination, confederacy or concert of action between the 
 various transferees, there was no joint liability and the causes of 
 action were several. 
 
 The Court of Appeals reversed the judgment of the General 
 Term and affirmed that of the Special Term. 
 
 Harris, J. The single question in this case is, whether the 
 complaint contained one or several causes of action. If several. 
 
II. Causes of Action in. Equity. (5) Judg't Creditor's Suit. 329 
 
 Reed v. Sti-yker, 4 Abb. Ct. of App. Dec, 36. 
 
 there is a misjoinder, for the several causes do not affect all the 
 defendants. 
 
 The plaintiffs severally are the judgment creditors of the 
 defendant, Peter M. Stryker. Their executions are returned 
 unsatisfied. They are still in pursuit of the property of their 
 debtor. They bring this action, alleging that some of the 
 property has been fraudulently conveyed to one of the defendants, 
 some to another, and some to the third. The subject of the 
 action is the debtor's property. The object of the action is to 
 remove the illegal impediments which the defendants have 
 placed in their way, so that the property of the debtor may be 
 applied to the satisfaction of their debts. It is as much a single 
 ■cause of action, as an action to foreclose a mortgage where 
 persons having various and independant liens upon the mort- 
 gaged premises, some on one part, some on another, and still 
 others on the whole, are made defendants. They are in no way 
 connected with each other, but they are each interested in the 
 subject, or object of the action, which is to have the mortgaged 
 premises sold and the mortgage satisfied out of the proceeds; 
 and because they are thus interested, they are not only proper, 
 but necessai-y parties to the action. So, here, the plaintiffs seek 
 to have the property which they find in the hands of these 
 defendants — some in the hands of one, and some in the hands of 
 another — and which, as they allege, has been fraudulently 
 placed there, applied to the payment of their judgments. Each 
 •of the defendants has an interest in the controversy. Each is a 
 necessary party to the complete determination of the questions 
 involved in the action. 
 
 The case is not distinguishable from Fellows v. Fellows, 4 
 Cow., 682. In that case a decree in Chancery for the payment 
 of money had been obtained against John Fellows, upon which 
 an execution had been issued and returned unsatisfied. A bill 
 was then filed against him to obtain satisfaction of the decree 
 out of his property. Ilis two sons, "William and Thomas, and 
 his son-in-law, Koswell Day, were made defendants. It was 
 •alleged that the property of John Fellows had been transferred 
 by him. without consideration, and fraudulently — a part to his 
 .son William, another part to his son Thomas, and another part 
 
330 Abbott's Select Cases on Code Pleading. 
 
 Reed v. Stryker, 4 Abb. Ct. of App. Dec, 26. 
 
 S to his son-in-law Day. Each defendant demurred to the bill, on 
 the ground that he had been impleaded with the other defend- 
 ants improperly ; that the matters set forth in the bill were 
 distinct and independent of each other. The demurrers were 
 overruled by the chancellor, and upon appeal to the court for the 
 correction of errors, after a most laborious discussion, in which 
 the three justices of the Supreme Court participated, the decision 
 was unanimously affirmed. Woodwoeth, J., said : " The claim 
 against all the defendants is of the same nature. The fraud 
 alleged against them is the same. The question to be 
 decided is in every respect the same. The transfer being 
 fraudulent, the property was not changed by being put into the 
 hands of the defendants. They hold the property of the debtor 
 without title. They are, therefore, necessarily concerned in the 
 thing to be recovered, although they set up distinct interests in 
 separate parcels." Sutherland, J., says : " The general right 
 claimed by the bill is a due application of the property of John 
 Fellows to the payment of the judgment. The subject of the 
 bill and of the relief, and the only matter in litigation, is the 
 
 K ) fraud charged in the management and disposition of that 
 property, and in which charge all the defendants are implicated, 
 though in different degrees and proportions. The defendants, 
 therefore, have one common interest among them all, centering 
 in the point in issue in the cause ; and different matters of 
 different natures are not demanded by the bill. It is one 
 matter — the property of John Fellows — and the point in issue 
 upon which the rights of all the parties must depend is, whether 
 the transfer of that property to his sons and son-in-law -N^^as 
 fraudulent or not." And Savage, Ch. J., says : " Each of the 
 defendants separately, we must intend, conspired with John 
 Fellows to defraud the plaintiff by collectively taking separate 
 parts of the property and holding it for his benefit. There was 
 no privity between AVilliani Fellows and Thomas Fellows and 
 Roswell Day ; but there was privity between each of them and 
 John Fellows." 
 
 The same question was fully considered and discussed by 
 Chancellor Kent, in Brinckerhoff v. Brown, 6 Johns., Ch. 139. 
 In that case, the bill had much more of the character of 
 
II Causes of Action in Equity. (5) Judg't Creditor's Suit. 331 
 
 Reed v. Stryker, 4 Abb. Ct. of App. Dec, 26. 
 
 multifariousness than the complaint now in hand. There, as in 12 
 this case, the plaintiffs were distinct and unconnected judgment 
 creditors. The judgments were against a corporation called the 
 Genesee Manufacturing Company. The object of the plaintiffs 
 was to obtain satisfaction of their judgments out of the property 
 of the company, which, as they alleged, had been fraudxilently 
 withdrawn from thsir reach by the defendants. Some of the 
 defendants were trustees of the company, and the bill sought 
 to make them personally liable. Others were stockholders, 
 and the bill sought to have them charged with the pay- 
 ment of their unpaid subscriptions. Two of the defendants 
 had purchased personal property belonging to the company. 
 There were numerous other charges against the defendants, in 
 which their co-defendants were not shown to have any concern. 
 There was a demurrer to the bill on the ground that it was 
 multifarious. It was insisted that the matters of the bill were 
 totally distinct and unconnected. The chancellor, after review- 
 ing the facts of the case, proceeds to s,a.j that " it appears from 
 the bill that all the defendants were not jointly concerned in 
 every injurious act charged. There was a series of acts on the 14 
 part of the persons concerned in the company, all jDroduced 
 by the same fraudulent intent, and terminating in the deception 
 and injury of the plaintiffs. The defendants performed 
 different parts in the same drama. But it was still one piece, 
 one entire performance, marked by different scenes." The 
 demurrer was overruled. 
 
 In Boyd v. Hoyt, 5 Paige, 65, the bill was filed by judgment 
 creditors of Hoyt, after the return of an execution unsatisfied, 
 to reach property in the hands of the other defendants, one of 
 whom was the son, and the other the son-in-law of the debtor, * 
 and which it was alleged had been fraudulently transferred to 
 them. It did not appear that the defendants had any joint 
 interest in the property. On the contrary, it appeared that 
 the property had been received by the son and son-in-law 
 severally, and at different times. Upon demurrer for multi- 
 fariousness, the chancellor said: " So far as the bill seeks to 
 reach the property of Hoyt, which has come to the hands of the 
 other defendants respectively, without consideration, and to 
 
332 Abbott's Select Cases on Code Pleading. 
 
 Reed v. Stryker, 4 Abb. Ct. of App. Dec, 26. 
 
 1 6 have the same applied to the satisfaction of the balance due 
 upon the plaintiff's judgment, there is no foundation for the 
 objection that it is multifarious." And he added: "I have no 
 doubt that two or more persons holding the property of the 
 judgment debtor under different conveyances, or becoming 
 indebted to him at different times, or for distinct sums, may be 
 joined with him as defendants in eredittfrs' bill." See also 
 Hammond v. Hudson Kiver Iron & Machine Co., 20 Barb., 378. 
 
 Thus it appears that upon the point under consideration, the 
 tenor of the authorities is uniform and decisive. The object of 
 the suit is single. The plaintiffs, defeated in the collection of 
 
 17 their debts by the ordinary process of law, now seek to reach 
 the property of their debtor in the hands of those to whom he 
 has dishonestly conveyed it. However numerous the persons with 
 whom the property has thus been deposited, however distinct 
 the transactions by which the debtor has sought to place it 
 beyond the reach of his creditors, or however widely it may 
 have been scattered in the execution of this purpose, the effort 
 to recover the property and have it applied to the satisfaction of 
 the plaintiffs' debts, embraces but a single cause of action. 
 
 The judgment of the Supreme Court, at General Term, 
 should be reversed, and that at the Special Term affirmed. 
 
II. Causes of Action in Equity . (6) Divorce. 333 
 
 Blano V. Blanc, 67 Hun, 384. 
 
 BLANC V. BLANC. 
 
 New York Supreme Court, General Term, First Dept., 1893. 
 
 [Reported in 67 Hun, 384.] 
 
 1. The Court have power to allow a defendant in divorce to serve a sup- 
 plemental answer, setting up acts sustaining- a counterclaim for 
 divorce; though such acts were committed after the original answer 
 ■was put in. 
 
 3. So, also, of acts first discovered after the original answer. 
 
 3. It seems, that adultei-ies committed by a plaintiff after suit brought, 
 
 may be pleaded by leave of court both as a counterclaim and as a 
 defence. 
 
 4. The fact that both parties have noticed the cause for trial does not 
 
 deprive the court of power to allow either party leave to file a sup- 
 plemental pleading, if leave be asked for without negligent delay. 
 
 Action for an absolute divorce. 
 
 The allegations of the complaint, omitting names and dates, 
 were as follows : 
 
 I. That the plaintiff was married to the defendant in the city 
 
 of New York, in the State of New York, on the day of 
 
 1887, at church. 
 
 II. That the plaintiff and defendant are residents and inhabit, 
 ants of the state of New York, and were such residents and 
 inhabitants when the offenses hereinafter mentioned were com- 
 mitted. 
 
 III. On information and belief the plaintiff alleges that on or 
 
 about the months of and 18 , at the hotel known 
 
 as the No. street, in , the defendant com- 
 mitted adultery with one . 
 
 [Other acts were alleged in the same manner.] 
 
 VII. On information and belief the plaintiff further alleges 
 that between the day of 18 , and the commence- 
 ment of this action the defendant committed adultery with divers 
 persons in and elsewhere. 
 
 VIII. That such adulteries were and each of them was com- 
 mitted without the consent, connivance, privity or procurement 
 of this plaintiff. 
 
334 Abbott's Select Cases on Code Pleading. 
 
 Blanc V. Blanc, 67 Hun, 384. 
 
 XI. That five years have not elapsed since the discovery by 
 the plaintiff of the commission of said adulteries or any of them 
 by the defendant, and tliat five years have not elapsed since the 
 discovery of the said adulterous intercourse above set forth, and 
 that this plaintiff has not voluntarily cohabited with the said 
 defendant since the commission of any of the offenses above set 
 forth and the discovery thereof by the plaintiff. 
 
 X. That there is no issue of the marriage between the plaint- 
 iff and the defendant, and no decree of divorce has been 
 obtained by the defendant against this plaintiff in any of the 
 courts of any of the States or territories of the United States. 
 
 Wheeefoee, the plaintiff demands judgment against the defend- 
 ant that the bond of matrimony between the plaintiff and the 
 defendant be forever dissolved, and for such other and further 
 relief as to the court may seem just and proper, together with 
 the costs and disbursements of this action. 
 
 The defendant's original answer admitted the marriage, the 
 residence, and that there was no issue and no previous divorce, 
 and denied all other allegations of the complaint. 
 
 It then alleged as follows, except that names and dates are 
 here omitted : 
 
 Second. — For a second defence. 
 
 1. That on or about at hotel in , the plaint- 
 iff being fully informed as to the acts of adultery alleged against 
 defendant in the amended complaint herein, lived and cohabited 
 with defendant, and freely condoned said alleged acts of 
 adultery and forgave defendant therefor. 
 
 Third. — For a third defence and as a counterclaim. 
 
 1. [Here numerous charges of adultery committed by plaintiff 
 were set forth in form similar to the allegations in the com- 
 plaint.] 
 
 {Thereafter folloxoed allegations that Jive years had not elapsed 
 since discovery, etc., and that there icas no collusion, etc., no is- 
 Stie, and no divorce, in the same form as in the complaint.'] 
 
 3. That the plaintiff is seized and possessed of real and per- 
 sonal property to the amount of § , and that his annual in- 
 come is at least § . 
 
II. Causes of Action in Equity. (6) Divorce. 335 
 
 Blanc V. Blanc, 67 Hun, 384. 
 
 Wheeefoee, defendant prays judgment that the bonds of S 
 matrimony between herself and plaintiff be dissolved, and that 
 plaintiff be required to provide suitably for the maintenance and 
 support of the defendant, and for the costs of this action. 
 
 [Signature, etc.J 
 
 To this counterclaim plaintiff served a reply. 
 
 After the cause was at issue, and each party had been re- 
 quired to give the other a bill of particulars, and both had 
 noticed the cause for trial, defendant moved for and obtained 9 
 leave to serve a supplemental answer, alleging, besides all that 
 was continued in the original answer, several acts of adultery as 
 additional grounds for the counterclaim, all but one of which 
 had been committed since the original answer, and that one had 
 been discovered since the original answer. 
 
 The Court granted the motion " without prejudice to the 
 pleadings, and all the proceedings heretofore had and taken in 
 this action, issue to remain as of the date when the answer was 
 first due, and the case to retain its position on the calendar." 10 
 
 Plaintiff appealed. 
 
 2'he Supreme Court at General Term aflSrmed the order. 
 
 FoLLETT, J. Before the Codes, material facts occurring after 
 issue joined could be interposed by way of defence — mere matter 
 of resistance to the plaintiff's cause of action — in an action at 
 law, by a plea pids darien continuance (Grab. Pr., 296), or in a 
 suit in equity by a supplemental answer, or by a cross bill. (2 
 Barb. Ch. Pr., 256 ; Story's Eq. Pldg., § 90.3.) 
 
 Section 5M of the Code of Civil Procedure provides that the ■*■ ^ 
 court may permit a party " to make a supplemental complaint, 
 answer or reply, alleging material facts which occurred after his 
 fomier pleading, or of which he was ignorant when it was made. 
 The power of the court to permit the defendant to plead as a 
 defence acts of adultery committed by the plaintiff since the ac- 
 tion was begun cannot be doubted. Can such acts be pleaded as 
 a counterclaim ? It will be observed that the section of the Code 
 above referred to, does not limit the use of facts interposed by a 
 
336 Abbott's Select Cases on Code Pleading. 
 
 Blanc V. Blanc, 67 Hun, 384. 
 
 1 2 supplemental answer to the establishment of a defence to the 
 plaintiff's alleged cause of action. 
 
 In an action for a divorce the defendant may plead the adul- 
 tery of the. plaintiff as a defence, and as a counterclaim, and if 
 proved, the defendant being innocent, a divorce may be denied 
 the former and granted the latter. (Code Civ. Pro., § 1770.) 
 The right being given to the defendant to plead and prove the 
 adultery of the plaintiff, though committed subsequent to the 
 commencement of the action, it is difficult to see any good rea- 
 son for denying the defendant affirmative relief. The defendant 
 having been found innocent and the plaintiff guilty of the matri- 
 monial offense, why should the judicially established facts be 
 available only as a defence, when, by granting complete relief, 
 justice is done in one action and the delay, expense and. scandal 
 of a second suit avoided. Public policy, the interests of society 
 and of the litigants alike demand that the rights of the parties 
 should be determined in a single action, unless by so doing some 
 statute or rule of procedure settled by reported eases is violated. 
 !No statute has been cited, nor have we been able to find one 
 
 14 which prohibits the granting of such relief. The precise ques- 
 tion involved in the case at bar could not have arisen iu this 
 State before the Code of 1848, because our Court of Chancery 
 never assumed the power to grant the innocent defendant a 
 divorce for the adultery of the plaintiff, no matter whether 
 it was committed before or after the suit brought. Such relief 
 was only attainable by an original or by a cross bill. In Milner 
 V. Milner (2 Edw. Ch., 114), the application of the plaintiff for 
 leave to file a supplemental bill alleging acts of adultery by 
 _ the defendant, after the filing of the original bill, was denied. 
 This case was followed in Morange v. Morange. (2 X. Y., Mo. 
 Bull., 30.) 
 
 In Smith v. Smith (4 Paige, 432), it was held that in case a 
 plaintiff committed adultery after suit brought for a divorce leave 
 should be granted the defendant to set up the fact, as a defence, by 
 a supplemental answer or by a cross bill. This case was followed 
 in Strong t>. Strong (3 Eobt., 669 ; s. c. 28 How. Pr., 432j. When 
 the last case was decided it was a disputed question whether, 
 imder the old Code, affinnative relief could be granted in such 
 
II. Causes ofAotion in Equity. (6) Divorce. 337 
 
 Blanc V. Blanc, 67 Hun, 384. 
 
 an action to a defendant. (J. W. B. v. F. D. B., 11 IST. Y., Leg. 16 
 Obs., 350; Anon., 17 Abb., 48; Leslie v. Leslie, 11 Abb. 
 [K S.], 311; Fnllmer v. Fullmer, 6 K Y., W. Dig., 22-42; 
 R. F. H. V. S. H., 40 Barb., 9), and the report of the case does 
 not show whether the fact was allowed as a counterclaim as well 
 as a defence. In Cornwall v. Cornwall (30 Hun, 573), which 
 was an action for a limited divorce, the plaintiff was granted 
 leave to tile a supplemental complaint alleging acts of cruelty 
 committed after the commencement of the action, but it was in- 
 timated that the subsequent acts were proper in characterization 
 of the earlier acts. This case is in harmony with the decisions in 
 some of the States, which hold that acts of adultery com- 
 mitted after suit brought by the defendant with the person 
 charged in the original pleading as a, particeps oriminis may be 
 pleaded and proved for the purpose of characterizing their pre- 
 vious relations. (Browne Div., 58 ; see, also, Borham v. Borham, 
 L. R., 2 P. & D., 193.) The question now before the court was 
 not decided in any of the cases cited nor were the questions dis- 
 cussed in them nearly related to the point involved in the case 
 at bar, but they are the only decisions found in the reports of IS 
 this State which throw light on this controversy, and there being 
 no statute or decision in the way, we are of the opinion that 
 under the Code of Civil Procedure adulteries committed by a 
 plaintiff after suit brought may be pleaded by leave of the 
 court, both as a counterclaim and as a defence. 
 
 The Ecclesiastical Courts of England gave affirmative relief to 
 defendants (2 Bish. M. D. & S. S., 559), and when acts of adul- 
 tery were committed by either party, subsequent to the com- 
 mencement of the action, they could be alleged by a supple- 
 mental libel or answer, and if proved, were given the same force 
 as though alleged in the original pleading. (Barrett v. Barrett, 
 1 Hag. £c., 22 ; Webb v. Webb, id., 349 ; Middleton v. Middle- 
 ton, 2 Hag. Ec. Supp., 134; Brisco v. Brisco, 2 Add. Ec, 259.) 
 
 In New Hampshire, a supplemental complaint may be filed 
 alleging acts of adultery committed after suit brought, which, if 
 established, are a ground for a divorce. (Adam v. Adam, 20 N. 
 H., 299.) In Kentucky grounds for a divorce a mensa et thora 
 and for alimony, not existing when the original bill was filed, 
 23 
 
33S Abbott's Select Cases on Code Pleading. 
 
 Blanc V. Blanc, 67 Hun, 384. 
 
 20 may be alleged in a supplemeatal bill, and, if proved, will 
 snpport a decree. (Butler t\ Butler, 4 Littell, 202 ; Logan v. 
 Logan, 2 B. Mon., 1-1:2-148; McCrocklin v. McCrocklin, id., 
 370.) 
 
 Without attempting to reconcile Wheelock v. Lee (74 N. Y., 
 495) and Mackellar v. Rogers (109 id., 468), or to distinguish 
 them from the case at bar, we think that the fact that both 
 parties noticed the action for trial at a Special Term did not de- 
 prive the court of the power to permit a supplemental answer to 
 be served. All of the issues involved in the action, including 
 those joined by the original and supplemental pleadings, must 
 be tried before a jury unless both parties waive such a trial. 
 Part of the issues should not be tried before the court without a 
 jury, and the remainder before the court with a jury. There is 
 nothing in the record which would justify this court in holding 
 (contrary to the decision of the Special Term) that the motion 
 was not made in bad faith and for the purpose of delay. When 
 
 nn the order was granted the ease had been pending but six months, 
 and it does not appear that the defendant was negligent in not 
 moving at an earlier date. 
 
 The order should be affirmed, with ten dollars costs and print- 
 ing disbursements. • 
 Van Beunt, P. J. and O'Beien, J., concurred. 
 
ir. Causes of Action in Equity. (7) Mechanic's Lien. 339 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 ROSS V. SIMON. 
 
 W. Y. Court of Common Pleas, General Term, 1890. 
 
 [Reported in 9 N. Y. Supp., 536; s. c. 30 St. Rep., 545; rev'g. 8 N. Y. 
 
 Svipp., 3.] 
 
 1. The notice of a mechanic's Hen, filed under N. Y, L., 1885, c. 343, §§ 1, 4, 
 
 is sufficient if it contaias the names of the persons against whose 
 interests the lien is claimed, and the facts subjecting their interests 
 to the lien. 
 
 2. In an action to foreclose a mechanic's lien, an allegation that the 
 
 owner had full knowledge of the erection of the building, and con- 
 sented to the same, and to the performance of the work by plaintiff, 
 is sufficient, as against demurrer, to charge the owner's interest, 
 under the statute (L. 1885, c. 343, § 1) providing that a person 
 performing work, etc., " with the consent of the owner,'' may have 
 a lien, etc. 
 
 3. It is not necessarj' to aver how, or under what circumstances, the con- 
 
 sent of the owner was given. 
 
 Action to foreclose a mechanic's lien. 
 
 The allegations of the complaint were as follows : 
 
 First. — On information and belief, that at the times herein- 
 after mentioned the defendant John Simon was and now is 
 the owner in fee of all that certain lot of land situate, lying 
 and being in the city of New York, known by the street num- 
 ber 2007 First avemie, .and bounded and described as follows, 
 ■viz. : \_Herewas given description of the property. \ 
 
 Second. — On information and belief, that by instrument dated 
 the ti^enty-eighth day of April, 1888, and recorded in the office 
 of Register of the City and County of New York, on the thir- 
 teenth day of April, 1888, in liber 2129 of conveyances, page 
 346, the defendant John Simon leased said premises and the 
 house thereon to the defendant Ignatz Schmitt for the term of 
 twenty-one years, from the first day of May, 1S8S, who there- 
 upon took possession thereof. 
 
 Third. — On information and belief, that by instrument dated 
 the first day of September, 18S8, and recorded in said office on 
 the same day, in liber 2159 of conveyances, page 222, the de- 
 fendant Ignatz Schmitt assigned said lease to the defendant 
 
340 Abbott's Select Cases on Code Pleading. 
 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 Barbara Schmitt for the expressed nominal consideration of one 
 dollar. 
 
 Fourth. — On information and belief, that at the time herein- 
 after mentioned the defendant Ignatz Schmitt was the duly au- 
 thorized agent of the defendant Barbara Schmitt with reference 
 to the altering, repairing and erecting of the buildings on said 
 premises. 
 
 Fifth. — On information and belief, that subsequent to the 
 making of said lease a contract was entered into by and between 
 the defendants Allen B. Muir and Barbara Schmitt, whereby it 
 was agreed that said Muir should do and perform certain work, 
 labor and services, and furnish certain materials, in and about 
 the erecting, altering and repairing of the house or building on 
 the premises above described, and for which said defendant 
 Barbara Schmitt agreed to pay said Muir the sum of two thou-, 
 sand one hundred and seventy-five dollars. 
 
 Sixth. — On information and belief, that said defendant Allen 
 B. Muir duly performed all the conditions of said contract on 
 his part to be performed, and so far completed the same as to 
 become entitled, at all the times hereinafter mentioned, to receive 
 thereon a sum largely in excess of the amount of the plaintiff's 
 claim herein. 
 
 Seventh. — That on or about the seventeenth day of Septem- 
 ber, 1888, the plaintiff herein entered into a certain contract 
 in writing with said defendant Allen B. Muir, whereby plaintiff 
 agreed to do certain plastering and furnish certain materials for 
 the building on said premises (being part of the labor and ma- 
 terials required to be furnished by the contract between the said 
 Muir and Barbara Schmitt), for the sum of two , hundred and 
 forty-five dollars, of which sum one hundred and twenty-five 
 dollars was to be paid when the brown coat was on, one hundred 
 dollars when the white coat was on, and the balance when the 
 plastering was done. 
 
 Eighth. — That in pui'suance of said contracts, plaintiff did do 
 the plastering and furnish the materials, as provided for in said 
 contracts, and that the same were actually done and performed 
 in and upon said building, and plaintiff has dvily performed all 
 the conditions of said contract on his part. 
 
II. Causes of Action, in Eiiuittj. (7) Mechanic's Lien. 311 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 Ninth — That there has been paid on account of said contract 7 
 the sum of one hundred and twenty-five dollars, leaving a balance 
 due and owing of one hundred and twenty dollars. 
 
 Tenth. — That the defendant John Simon, the owner of the fee 
 of said premises, had full knowledge of the erecting, altering and 
 repairing of said buildings, and consented to the same and to the 
 performance of the labor and supplying of the materials by 
 this plaintiff as above set forth. 
 
 Elecenth. — That on or about the eighth day of November, 
 1S8S, and within ninety days after the completion of the contract 
 above set forth, plaintiff duly filed a notice of lien in writing in 
 the office of the Clerk of the City and County of New York ; 
 That said notice of lien contained the name and residence of this 
 plaintifE, the claimant, the nataire and amount of the labor and 
 service performed and the materials furnished, with the names of 
 the owner as hereinbefore given ; the name of the person by 
 whom the plaintiff was employed, together with a statement that 
 the work for which the claim was made had been actually fur- 
 nished; and contained a description of the property to be charged 
 with the lien suflicient for identification. That said notice of 9 
 lien was duly verified and complied in all respects with the 
 requirement of the Statutes of the State of New York, and that 
 on said eighth day of November, 1888, said lien was duly entered 
 and docketed by said clerk in the lien docket kept in his office. 
 A copy of said lien claim is hereto annexed. 
 
 Twelfth. — That within ten days after the filing of tlte notice 
 of lien aforesaid, plaintifi caused a copy of such notice to be 
 served upon the defendants John Simon and Barbara Schmitt. 
 
 Thirteenth. — That the defendant Y. Loewers Gambrinus 
 Brewing Company appears by the records to have a mortgage 
 on said leasehold pi-emises, and the defendants (naming other 
 persons joined as defendants) — have filed liens against said 
 premises all of which are subsequent and subordinate to the lien 
 of the plaintiff herein, and the defendant Charles H. Baxter 
 claims some interest which is subordinate to plaintiff's rights. 
 
 "Wheeefoee, plaintiff demands judgment that he be adjudged 
 to have a lien on said property for the sum of one hundred and 
 twenty dollars and interest thereon; that the defendants and all 
 
342 Abbott's Select Cases on Code Pleading. 
 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 11 persons claiming under them be foreclosed of all equity of re- 
 demption, or other interest in said premises; that the interests 
 of the defendants John Simon, Ignatz Schmitt and Barbara 
 Schmitt in said premises be sold, and that from the proceeds of 
 such sale, the plaintiff be paid the amount of his said lien and 
 interest thereon, together with expenses of sale and costs of tliis 
 action; and in case of any deficiency that paintiff have judg- 
 ment therefor against the defendant Allen B. Muir, and that 
 plaintiff may have such further judgment, decree or order as 
 may be necessary to protect his rights in the premises. 
 
 [Attaehed to the comjplaint was a copy of the notice of lien.] 
 
 The defendant Simon demurred, on the ground that the com- 
 plaint did not state facts sufficient to constitute a cause of ac- 
 tion against him. 
 
 The Special Term of the City Court sustained the demurrer. 
 
 The General Term affirmed the judgment ; the court were of 
 the opinion that the statement in the notice of lien that a lien 
 was claimed against the leasehold interest was ineffectual, 
 although the notice gave the name of the owner of the fee, to 
 create a lien against such owner's interest ; and that the allega- 
 tion that the owner consented to the repairs was not alone suffi- 
 cient. 
 
 The General Term of the Court of Common Pleas reversed 
 the judgment. 
 
 Daly, J. The owner of the premises demurred because the 
 lien, a copy of which is annexed to the complaint, did not con- 
 tain the statement that the lien was claimed against the interest 
 of the said owner ; also on the ground that the allegation in the 
 complaint that the defendant, the owner, had full knowledge of, 
 and consented to, the doing of the work, was insufficient, there 
 being no averment of any agreement or contract with him. The 
 demurrer was sustained upon both groimds. 
 
 The lien act provides that persons performing work, etc., in erect- 
 ing any house, etc., "with the consent of the owner," may have a 
 lien upon the house and lot wherein it stands, and also provides 
 that the notice of lien shall state "the name of owner, lessee, gen- 
 
II. Causes of Action in Eqioity. (Y) Mechanic's Lien. 343 
 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 eral assignee, or person in possession of the premises against whose 15 
 interest a lien is claimed." (Laws 1885, c. 342, §§ 1, 4.) In the 
 notice filed by this claimant is a statement that "the name of the 
 owner of the leasehold against whose interest a lien is claimed 
 is Ignatz Schmitt, and the owner of the fee of said premises is 
 John Simon ; that the name of the person by whom claimant 
 was employed, and to whom he furnished such materials, is IST. 
 B. Muir ; that said labor and materials were done and furnished 
 with the knowledge and consent of John Simon, the owner of the 
 fee of said premises. " The notice thus contained a statement of 
 the fact which, by statute, gives a lien upon the interest of the 
 owner, viz., that the work was done with his consent; and such 
 statement is sufficient notice to him and all others that the lien 
 given by statute is claimed against his interest. It is not pre- 
 scribed that the notice shall state, in so many words, that the lien 
 is claimed against such persons, but that the names of the persons 
 against whose interest the lien is claimed shall be given. If, 
 therefore, the names are given, and the facts subjecting their in- 
 terests to the lien are stated, the statute is satisfied. The fact 
 that it is expressly stated in the plaintifE's notice that "the names 17 
 of the owner of the leasehold estate against whose interest a lien 
 is claimed" is not exclusive and does not stop the lienor from 
 . claiming also a lien against the interest of the owner. The case 
 of Aloran v. Chase, 52 IST. Y., 346, is in point. That lease arose 
 under the Kings and Queens Counties Act of 1862 (Sess. Laws, 
 c. 478, S 3), which required the notice to state "the person 
 against whom the claim is made, the name of the owner of the 
 building, and the situation of the building;" and the notice 
 stated that "the name of the person against whom the claim is 
 made is S. B. Yreeland, and the said work and materials so fur- 
 nished was by and at the request of said S. B. Vreeland," and 
 that the owner was George K. Chase. It was held that a lien 
 was acquired thereunder against Chase, the owner, notwithstand- 
 ing the statement in the notice that the claim was against Vree- 
 land only. This case is to be distinguished from Jones vs. Man- 
 ning, 6 ]^. Y. Supp., 338, cited by appellant; for in that case 
 the decision is put upon the ground that there was nothing in the 
 notice to indicate that the lienor was seeking to place a lien upon 
 
344 Abbott's Select Cases on Code Pleading. 
 
 Ross V. Simoa, 9 N. Y. Supp., 536. 
 
 19 the interest of the party named. Here the notice fully apprises 
 all persons of the intent to charge the intej'^st of the defendant. 
 It remains to he considered whether the allegations of the 
 complaint are sufficient' as a statement of a cause of action against 
 Simon, the owner. The complaint sets forth, in substance, that 
 the defendant John Simon was and is the owner of the prem- 
 ises described in the complaint, being a lot of land in the city of 
 New York ; that he leased the lot and the house thereon for a 
 term of 21 years from May 1, 1888, to the defendant Ignatz 
 Schmitt, by instrument duly recorded; that Schmitt assigned 
 the lease to the defendant Barbara Schmitt ; that the defendant 
 Muir i3ontracted with her to do certain work, labor and services, 
 and furnish materials in and about the erecting, altering and re- 
 pairing of the house or building on the premises, for the sum of 
 $2,175, and so far completed the same as to become entitled to re- 
 ceive a sum largely in excess of plaintiff's claim,who, under contract 
 with Muir, did certain plastering and furnished materials for the 
 said building for the sum of §245, upon which there is due 8120; 
 and that the defendant John Simon, the o^svner of the fee of 
 
 21 said premises, had full knowledge of the erecting, altering and 
 repairing of said building, and consented to the same, and to the 
 performance of the labor and supplying of the materials by the 
 plain tilf as above set forth. The averment is, I think, sufficient , 
 under the statute. It is not necessary to aver how, or under 
 what circumstances, the consent of the owner was given, any 
 more than it would be necessary to set out the particulars of a 
 contract if the averment had been that the work was done under 
 or pursuant to a contract with him. In other words, the evidence 
 in support of the iillegation of consent is not to be pleaded. 
 
 ^ "What the liability, if any, of the owner may be found to be, upon 
 the facts proved, is a, wholly different question from that before 
 us, which is a matter of pleading only. Under the lien act of 
 1873, c. 489, giving a lien upon the house and lot where the work 
 is done and the materials are furnished "with the consent of the 
 owner," it was held that the simple consent of the owner is 
 sufficient, without proof of a contract by him for the improve- 
 ments. (Otis V. Dodd, 90 N. Y., 336,) In that case the lease 
 with the owner contained a covenant for the erection of the 
 
II. Causes of Action in Eguity. (Y) Mechanic's Lien. 345 
 Ross V. Simon, 9 N. Y. Supp., 536. 
 
 "buildings and improvements, which were to become a part of the 23 
 freehold, and not to be removed at the expiration of the lease ; 
 and the court approves the doctrine in Nellis vs. Bellinger, 6 
 Hun, 560, that the statute gives a lien as well where the owner 
 consents to the erection of a structure upon his land as where he 
 directly contracts for its construction ; and the decision in Husted 
 vs. Mathes, 77 N. Y., 388, where the owner simply knew of the 
 improvements made by her husband upon her land, and con- 
 sented to them ; and it was held that her simple consent avithor- .)_^ 
 ized the lien. Upon these authorities it is clear that the allega- 
 tion of consent on the part of the owner is sufficient by way of 
 pleading. We have not now to deal with the question whether 
 the facts to be proved will bring the case within the authorities 
 holding the owner liable, whether the consent proved does or 
 does not amount to an authorization of the work, as stated in 
 Ottiwell vs. Muxlow (in this court), 6 IST. Y. Supp., 518. The 
 judgment of the General and Special Terms should be reversed, 
 and the demurrer overruled, and judgment upon the demurrer 25 
 in favor of the plaintiff ordered, with costs, and if so adjudged 
 by the City Court, with leave to defendant to answer upon pay- 
 ment of costs. 
 All concur. 
 
III. Technical Rules. (1) Jurisdiction. 34T 
 
 Gilbert v. York, 111 N. Y., 544. 
 
 GILBEET V. YOEK. 
 
 Neiu York Court of Appeals, 1888. 
 
 [Reported in 111 N. Y., 544; aff'g 41 Hun, 594.] 
 
 1. The provision of Code Civ. Pro., § 481, as to the contents of a complaint 
 
 — only saying- that it must state the fa,pts constituting the cause of 
 action, and a demand of relief— is not exclusive of other necessary 
 matter. 
 
 2. In an action in a court of linaited and inferior jurisdiction, the com- 
 
 plaint must allege the jurisdictional facts, or it will be presumed that 
 the court is without jurisdiction. 
 
 3. The county courts in New York are — under the Constitution of New 
 
 York, art. 6, § 15 as amended in 1873, and Code Civ. Pro., § 340, which 
 defines the jurisdiction of county courts — courts of limited and 
 inferior jurisdiction within this rule. 
 
 4. The complaint, therefore, in an action in a county court to recover a 
 
 money judgment, must allege that the defendant is a resident of the 
 county at the time of the commencement of the action. 
 
 5. The omission of such an allegation is a g-round for demurrer ; because, 
 
 by reason of the presumption, the want of jurisdiction must be 
 deemed to appear upon the face of the complaint. 
 
 Action for goods sold. 1 
 
 The only allegations of the complaint as to defendants' 
 residence were : 
 
 That said defendants were in and during the year 1883, 
 copartners, and doing business as grocers in the village of 
 Forrestville, in said (Chautauqua) county, under the firm name 
 of W. D. York & Son. 
 
 The defendants demurred to the complaint on the grounds : 2 
 
 I. That the complaint does not state facts sufficient to 
 constitute a cause of action. 
 
 II. That the complaint does not state facts showing that the 
 court has jurisdiction of the persons of the defendants. 
 
34:8 Abbott's Seleot Cases on Code Pleading. 
 
 Gilbert v. York, 111 N. Y., 544. 
 
 III. That the complaint does not state facts showing that the 
 court has jurisdiction of tlie subject matter of this action. 
 
 IV. That it does not appear by the complaint that, at the 
 time of the commencement of this action, the defendants were 
 residents of Chautauqua county. 
 
 The County Court sustained the demurrer. 
 
 The S'ujjreme Court at General Term [to which an ajypeal 
 from a final judgment of a county court lies under §§ 131^0- 
 JpS, Code Civ. Fro.] affirmed the judgment, holding that county 
 courts, under the provision of the State Constitution of 184:6 
 (art. 6, § 15), and the Code Civ. Pro. (§ 340), are not courts of 
 general jurisdiction, but are of a special, limited, and statutory 
 jurisdiction ; that therefore jurisdictional facts must be alleged. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andrews, J. The case of Frees v. Ford (6 N. Y., 1Y6) is a 
 decisive authority upon the question presented in this record, 
 unless the rules of pleading prescribed in the Code of Civil 
 Procedure have changed the rule declared in that case, so that it 
 is now unnecessary in an action brought in a County Court for 
 the recovery of a money judgment, that the complaint should 
 aver the jurisdictional fact that the defendant at the time of the 
 commencement of the action is a resident of the county in which 
 it is brought. The Constitution of 184:6 ordained that the County 
 Courts in the several counties, except Ifew York, " shall have such 
 jurisdiction in cases arising in Justices' Courts, and in special cases, 
 as the legislature may prescribe, but shall have no original civil 
 jurisdiction, except in such special cases." By the thirtieth 
 section of the judiciary act of 184:7, passed in assmned execution 
 of this constitutional authority, jurisdiction was conferred on the 
 County Courts, of actions of debt, assumpsit and covenant, 
 where the debt or damages claimed shall not exceed $3,000, 
 "when all of the defendants, at the time of commencing the 
 action, shall reside in the county in which such court is held." 
 The action of Frees v. Ford was commenced after the passage 
 of the judiciary act, but before the enactment of the Code of 
 1848. The complaint in that case did not aver that the defend- 
 
III. Technical Rules. (1) Jurisdiction. 349 
 
 Gilbert v. York, 111 N. Y., 544. 
 
 ant resided in the county, and tlie defendant interposed a plea 
 to the jm-isdiction, and the plaintifll: demurred to the plea, the 
 intention of the parties being to present in this form, for the 
 determination of the court, the question of the constitutionality 
 of the thirtieth section of the judiciary act, the precise point being 
 whether an act of the legislature, conferring jurisdiction on the 
 County Courts in certain classes of common law actions, limited 
 only in respect of the amount claimed, and the residence of the 
 defendant, made the actions speeiiied special cases within the 
 Constitution of 1846. The constitutionality of the act was 
 afBrmed by the County Court and at the General Term, but 
 when the case came to this court the judges declined to pass 
 upon the constitutional question, but, applying the rule that on 
 demurrer judgment must go against the party who committed 
 the first fault in pleading, reversed the judgment of the courts 
 below on the ground that, assuming the constitutionality of the 
 thirtieth section of the judiciary act, nevertheless, the complaint 
 was fatally defective because it did not aver that the defendant 
 resided in the county at the commencement of the action. The 
 court in assigning the reasons for its judgment said: " The County 
 Court is not a court of general jurisdiction, as was the old 
 Court of Common Pleas ; on the contrary, it is a new court with a 
 limited statutory jurisdiction. To all such courts the rule uni- 
 versally applies, that their jurisdiction must appear on the 
 record." In this way the court avoided deciding in that case the 
 constitutional question raised, but it was afterwards decided in 
 Kundolf V. Thalheimer, 12 N. Y., 593. 
 
 The rule declared in Frees v. Ford, that the residence of the 
 defendant in the county is a jurisdictional fact which must be 
 averred in a complaint in an action in the County Court, brought 
 under the judiciary act of 1S47, would seem to be equally appli- 
 cable to an action brought since the constitutional amendment of 
 18Y3, and the enactment of section 340 of the Code of Civil Pro- 
 cedure, defining the jurisdiction of County Courts. The amend- 
 ment of 1873 declares that the County Courts shall have original 
 jurisdiction in all cases ^^'here the defendants reside in the 
 county, in which the damage claimed shall not exceed $1 ,000. 
 This language, and that of section 340 of the Code, so far as rele- 
 
 10 
 
350 Abbott's Select Oases on Code Pleading. 
 
 Gilbert ■«. York, 111 N. Y., 544. 
 
 11 vant to the present inquiry, is substantially the same as the thir- 
 tieth section of the judiciary act of 184Y, and if an averment of 
 residence of the defendant in the county was essential under the 
 act of 184T, the mere fact that the jurisdiction of County Courts 
 is now defined by the Constitution, but in language substantially 
 identical with the language of that act, would not seem to fur- 
 nish a sufficient reason for changing the rule of pleading. 
 
 But the counsel for the plaintiff relies upon sections 481, 488 
 and 498 of the Code of Civil Procedure, and especially upon 
 section 488, defining the causes of demurrer, in support of his 
 contention that in an action in the County Court an averment in 
 the complaint of the residence of the defendant within the juris- 
 diction is no longer necessary. Section 481 is the general section, 
 applicable to both the Supreme and County Court, specifying 
 what a complaint must contain, and there is no specification 
 which requires any averment as to the residence of the parties. 
 But the prescription in this section, of matters which must be 
 averred in the complaint, is not in terms exclusive. Section 488 
 authorizes a defendant to demur to a complaint where one or 
 
 13 more of eight objections specified "appear upon the face 
 thereof," and amjng these objections are objections to the juris- 
 diction. Section 498 authorizes the objections specified in sec- 
 tion 488 to be taken by answer where they do not appear on the 
 face of the complaint. It is insisted that it does not appear on 
 the face of the complaint that the defendant, at the commence- 
 ment of the action, was not a resident of the county in which the 
 action was brought, and that this jurisdictional fact may exist, 
 although not stated therein, and consequently that the absence 
 of jurisdiction not being disclosed on the face of the pleading, 
 the complaint is not demurrable under section 488, and that the 
 case is one where the objection should be taken by answer under 
 section 498. This argument is not without plausibiUty or force. 
 But when we recur to the principle upon which the validity 
 of judgments of courts of limited or inferior jurisdiction 
 is determined, we think it may fairly be held that the 
 sections of the Code referred to do not affect the 
 rule declared in Frees v. Ford. In Peacock v. Bell (1 
 Saund., 73), it is said that "nothing shall be intended to 
 
III. Technical Rules. (1) Jurisdiction. 351 
 
 Gilberts. York, 111 N. Y., 544. 
 
 be without the jurisdiction of a Superior Court but that which 15 
 specially appears to be so ; and, on tlie contrary, nothing shall 
 be intended to be within the jurisdiction of an inferior court but 
 that which is so expressly alleged." This statement of the rule 
 has been frequently approved. The rule has been applied in 
 many cases in the Supreme Court of the United States to test 
 the validity of judgments rendered in the Circuit Courts of the 
 United States. The jurisdiction of those courts of suits between 
 individuals is made, by the act of Congress of 1Y89, to depend 
 upon the ahenage of one of the parties, or upon the fact 
 that the plaintiff is a citizen of the State where the suit is 
 brought, and the defendant a citizen of another State. The Cir- 
 cuit Courts of the United States, although not inferior courts, 
 are courts of limited jurisdiction. It has been uniformly held that 
 the record of a judgment of a Circuit Court must affirmatively 
 show the existence of the jurisdictional fact, and that, unless the 
 contrary appears by the record, the presumption is that the case 
 was without its jurisdiction ; and it is further held that the ques- 
 tion may be raised for the first time on error ; and if on examin- 
 ation it is found that the record is silent as to the jurisdictional 17 
 fact, the judgment will be reversed. (Stanley -y. Prest, etc., 4 
 Dallas, 8 ; Robertson v. Cease, 97 U. S., 646 ; Grace v. Ins. Co. 
 109 id., 283 ; Continental Ins. Co. v. Ehodes, 119 id., 237.) It 
 was upon this principle that the case of Frees v. Ford was de- 
 cided. We are not aware of any case in this State which contro- 
 verts the general rule, that in a direct proceeding to review a 
 judgment of a court of limited and inferior jurisdiction the 
 record must show affirmatively that the court had jurisdiction, 
 or else the judgment will be set aside. Frees v. Ford is an 
 authority that the presumption that the inferior court is without 
 jurisdiction when the jurisdictional facts are not alleged in the 
 complaint, prevails on demurrer. What courts are to be regarded 
 as courts of limited jurisdiction, so that their proceedings shall 
 be affected by the presumption stated, is a question not always 
 free from difficulty. (People v. Bradner, 107 N. Y., 1.) But 
 that County Courts, as now organized, are of that description, is 
 a conclusion which seems to follow from the case of Frees v. 
 Ford. Construing the complaint in this action in view of the 
 
352 Abbott's Select Cases on Code Pleading. 
 
 Wheelock v. Lee, 74 N. Y., 495. 
 
 19 legal presumption, it follows that, there being no allegation 
 therein as to the residence of the defendant, there is not simply 
 an absence of any information in the complaint, one way or the 
 other, as to the fact, but an affirmative presumption, from its 
 silence upon the point, that the defendant was not a resident of 
 the county when the action was commenced, and, therefore, the 
 fact does appear on the face of the complaint that the County 
 Court did not acquire jurisdiction ; an objection which was prop- 
 erly taken by demurrer. The argument, derived from the rules 
 of pleading established by the Code, does not satisfy us that the 
 legislature intended to abrogate the presumption to which we 
 have adverted, nor do we think that the fact that the jurisdiction 
 of County Courts, of common-law actions like the present one, 
 is now prescribed in the Constitution itself, and is not dependent 
 upon the statute, takes the case out of its operation. They are 
 still courts of limited jurisdiction within the case of Frees v. 
 Ford. 
 
 These views lead to an affirmance of the judgment. 
 
 All concur. 
 
 Judgment affirmed. 
 
 WHEELOCK V. LEE. 
 
 JVew York Court of Aj>j)eals, 1878. 
 [Reported in 74 N. Y., 495 ; s. c. 3 Abb. N. C, 73, 80.] 
 
 1. A general appearance by a defendant sued in a local court — as, the 
 City Court of Brooklyn — does not waive his right to object in his 
 answer that the court has no jurisdiction of the subject matter of the 
 action, if the case is such that the only element of locality which can 
 exist, and the only means by which the cause can be brought within 
 the territorial limits of jui-isdiction of the court as a local court, is 
 the service of the summons within those limits. 
 
 2. The principle upon which this rule depends is that to extend the juris- 
 diction of the court to cases not arising within its territorial jurisdic- 
 tion, where the defendants do not reside, and are not served therein, 
 would be to deprive it of its cliaracter as a local court. 
 
 Plaintiff brought an action in the City Court of Brooklyn to 
 recover, as assignee, an excess of usurious interest, and to obtain 
 
III. Technical Rules. (1) Jurisdiction. 353 
 
 Wheelock v. Lee, 74 N. Y., 495. 
 
 possession of securities. The defendant appeared in the action 
 and demurred on the groiind of misjoinder and insufficiency. 
 The demurrer was overruled, and defendant thereafter set up by 
 answer that the action did not arise in Brooklyn but in New 
 York city ; that at the commencement thereof defendant did not 
 reside in Brooklyn ; that he never resided or had a place of busi- 
 ness there ; that the summons was served in New York city and 
 not in Brooklyn ; and that consequently the City Court of 
 Brooklyn had no jiu-isdiction of the person of the defendant or 
 of the cause of action. These allegations were substantiated by 
 the evidence and findings. 
 
 The Special Term of the City Court gave judgment for 
 plaintiff. [] 
 
 The General Term affirmed the judgment, being of opinion 
 that, although the objection would have been good if taken in 
 time, the raising and trying of an issue of law on other grounds 
 before objecting to the court's jurisdiction was a waiver of such 
 objection (citing Ogdensburg, etc., E,. Co. v. Vermont, etc., E. 
 Co. 63 N. Y. 176). 
 
 The Court of Aipeals reversed the judgment. 
 
 Eapallo, J. \on this point, said ] .■ The defendant, by put- 
 ting in a general appearance, followed by an answer setting \ip 
 the want of jurisdiction, did not waive that defence. 
 
 This was expressly decided in the case of Landers v. Staten 
 Island E. E. Co., 53 N. Y., 450-460.; s. c. 14 Abb. Pr. N. S., 
 346. 
 
 The prevailing opinion in that case sets forth fully the grounds 
 upon which it was held that the City Court was without juris- 
 diction. They are, in substance, that the City Court was a local 
 court of limited jurisdiction at the time of the adoption of the 
 judiciary article of the State Constitution in 1869, and that it 
 was continued as such, and it was even beyond the power of the 
 legislature to divest it of its local character ; that its jurisdiction 
 was limited to causes of action arising within its territorial limits, 
 and cases in which the subject of the action was situated, or the 
 party proceeded against resided or was served with process within 
 
 33 
 
354 Abbott's Select Cases on Code Pleading. 
 
 Wheelock v. Lee, 74 N. Y., 495. 
 
 those limits ; that some one or more of these elements of locality 
 must exist to confer upon the court jurisdiction of the cause. It 
 follows that where none of them exist, a mere appearance does 
 not preclude the defendant from taking the objection. Where no 
 other ground of jurisdiction exists, the service within the county 
 is a jurisdictional fact. Its omission is not cured by an appear- 
 ance, for the objection is not simply that the court has not juris- 
 diction of the person <jf the defendant, but that it has not juris- 
 diction of the cause. (Burckle ?i. Eekhart, 3 K^. Y., 132.)* 
 
 In a case in which the court had jurisdiction of the cause on 
 some of the other grounds — as, for instance, where the cause of 
 action arose within the city of Brooklyn — the general rule would 
 apply that a general appearance cures any defect in the sen^ice of 
 process to bring the defendant into court, and even the total ab- 
 sence of any service. But where, as in this case, the only ele- 
 ment of locality which can exist, and the only means by which 
 the cause can be brought within the jurisdiction of the court as a 
 local court, is the service of the summons within a certain terri- 
 tory, that rule is not applicable, but the point having been ex- 
 pressly adjudged, it is not necessary to pursue it farther. 
 
 It is further claimed that the defendant, by interposing a de- 
 murrer to the complaint, precluded himself from setting up the 
 defence of want of jurisdiction after his demurrer was overruled, 
 and the case of Ogdensburg R. E. v. Vermont B. R., 63 N. T , 
 176, is cited as sustaining that position. 
 
 In that case a demurrer was interposed on the ground that it 
 appeared on the face of the complaint that the court had not 
 jurisdiction over the defendants, they being foreign corporations 
 and non-residents. It was not held that by the fact of demur- 
 ring the defendants waived this ground of demurrer. 
 
 On the contrary the demurrer was sustained in the Supreme 
 Court and the plaintiff appealed to this court. Tlie defendants 
 moved to dismiss the appeal, which has been taken from the de- 
 cision rendered in their favor, on the ground, among others, that 
 they had not been served with process in tlie action. The case 
 was not one in which the service of process, within any particular 
 
 * See also Gibbs v. Queen Ins. Co., 63 N. Y., 114. 
 
III. Teohnioal Rules. (1) Jurisdiction. 355 
 
 Wheelock v. Lee, 74 N. Y., 495. 
 
 locality, was a fact upon wliicli the jurisdiction of the court over 9 
 the cause depended, nor was it analogous to the present case in 
 any particular. In the present case leave was granted to the 
 defendant to withdraw his demurrer and put in his answer. He 
 availed himself of this leave, and answered, setting up facts show- 
 ing that the City Court had no jurisdiction. The demurrer was 
 then out of the case and formed no part of the record (Brown v. 
 Saratoga R. R. Co., 18 IST. Y., 495). It is not available to either 
 party for any purpose, and the fact that it was once interposed 
 does not preclrde the defendant from setting up the facts which ^^ 
 he might originally liave set up by way of answer showing want 
 of jurisdiction. 
 
 For the same reason that this objection was not waived by liis 
 appearance, it is not cured by the facts that he demurred and 
 withdrew his demurrer. 
 
 The same facts existed in the case of Hoag v. Lamont 
 (60 ]^. Y., 96), but they were not deemed material, and the 
 subsequent defence by answer of want of jurisdiction was -, -. 
 sustained. 
 
 The principle upon which all these decisions rests is, that to 
 extend the jurisdiction of the City Court to eases not arising 
 within its jurisdiction, where the defendants do not reside and 
 are not served therein, would be to deprive it of its character 
 of a local court, and that some one of the specified elements of 
 locality must exist to give it jurisdiction of the cause. 
 
 Under the decision cited, the defence of want of jurisdiction 
 was established. 12 
 
 [^i ruling on another point is here omitted.^ 
 
 All the judges concurred, except Miller and Eael, JJ., 
 absent. 
 
 Judgment reversed. 
 
356 Abbott's Sei-ect Cases on Code Pleading. 
 
 Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315. 
 
 EOBINSON V. OCEANIC STEAM NAY. CO. 
 
 JVew Yorlc Court of Appeals, 1889. 
 
 [Reported in 113 N. Y., 315 ; aff'g 56 Super. Ct. (J. & S.), 108.] 
 
 1 . A non-resident of the State does not by an appointment as administra- 
 
 tor become a resident thereof, even for the purpose of suing as ad- 
 ministrator.* 
 
 2. A cause of action under the statute for causing death by uegUgenc& 
 
 or other wrongful act (C. C. P., §§ 1902-3), is for tort, and arises wher& 
 the tort was committed. 
 
 3. A non-resident administrator cannot maintain an action in the courts 
 
 of this State against a foreign corporation for negligently causing the 
 death of his intestate without the State. 
 
 4. Jurisdiction of such action cannot be conferred by any consent or 
 
 stipulation of the parties ; but the objection may be talten at any 
 stage of the action, and the court may, ex mero motu, at any time, 
 when its attention is called to the facts, refuse to proceed further and 
 dismiss the action. 
 
 The action was commenced by personal service of the sum- 
 mons upon a managing agent of the defendant corporation in 
 the city of New York. (See Code Civ. Pro., § 432.) 
 
 Defendant's attorneys served a general notice of appearance,, 
 containing a demand for a copy of the complaint. (See Code 
 Civ. Pro., §§ 421, 479.) 
 
 The elements of the complaint were as follows : 
 Defendant, an English corporation transacting part of its 
 business in New York, engaged as a common carrier across the 
 Atlantic, the owner of two specified steamers of British registry. 
 It received plaintiff's intestate as a passenger, and agreed to 
 carry her with care, etc., and she paid her passage ; at sea, 30i) 
 or more miles from New York, the two steamers collided, caus- 
 ing her death, without her fault ; defendant's negligence and 
 disregard of rules of navigation were the cause. That the 
 death occurred within the territorial limits of Great Britain ; 
 the English Statute (Ld. Campbell's Act) was then set forth, etc. 
 The surviving next of kin were then stated ; the age and quali- 
 ties of deceased, and the appointment of plaintiff as administra- 
 
 * See also Paget ». Stevens, 143 N. Y., ITi. 
 
III. Teohnioal Rules. (1) Jurisdiction. 35T 
 
 Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315. 
 
 tor iu New York. Judgment for $15,000 damages was de- 3 
 manded. 
 
 The answer put in issue numerous allegations of tlie complaint : 
 As a separate defence — alleged that the alleged injuries were 
 
 received if at all upon the high seas, and the British law did not 
 
 give an action for death there caused. 
 
 And for a second separate defence — " That the court has not 
 jurisdiction of the subject of the action." 
 
 And for a third separate defence — " That the complaint does 4 
 not state facts sufficient to constitute a cause of action." 
 
 After the cause had been put on the calendar, and noticed for 
 trial by defendant, and set down for a specified day, defendant 
 moved to vacate the summons and dismiss the complaint with 
 costs on the ground that the plaintiff as administrator did not re- 
 side in the city of New York, and that therefore the court had 
 no jurisdiction either under Code Civ. Pro., § 263, subd. 7 (as to 
 the New York Superior Court), nor under § 1Y80 (as to foreign 
 corporations). 5 
 
 The fact of non-residence was not alleged in the answer, but 
 it was shown by affidavit made in support of this motion tliat 
 plaintiff resided in Fall River, Mass., and he was so described in 
 the letters of administration, a copy of which was produced. 
 
 The Special Term of the Superior Court denied the motion, 
 holding, on the authority of McCormick vs. Penn. R. R. Co., 49, 
 N. Y., 308, that the objection of non-residence constituted a 
 matter of defence, which must be regarded as waived by a gen- 
 eral appearance and answer ; and that the action was transitory, 6 
 and in contemplation of law might be treated as having arisen in 
 New York. 
 
 The Oeneral Term reversed the order of the Special Term 
 and granted the motion, on grounds the same as those stated in 
 the following opinion of the Court of Appeals : 
 
 The Court of Appeals affirmed the order of the General 
 Term. 
 
358 Abbott's Select Cases on Code Pleading. 
 
 Robinson v. Oceanic Steam Nav. Co., 113 N. Y., 315. 
 
 T Eael, J. [after stating fads :] The claim of the defendant 
 is that as the plaintiff was a non-resident and the defendant was a 
 foreign corporation, and the cause of action did not arise within 
 the State, the court had no jurisdiction of the action, under sec- 
 tion 1780 of the'Code. The plaintiff contends that although he 
 personally resided in the State of Massachusetts within the 
 meaning of the section referred to, he was a resident of this 
 State because he was here appointed administrator. But he ^vas, 
 nevertheless, personally a non-resident. Such a person may, 
 under the statutes, be appointed an administrator, but he does- 
 not thereby become in any sense a resident of the State. (Coal 
 Company V. Blatchford, 11 Wall., 172; Matter of Page, 107 
 N. Y., 266.) The case of Leonard v. Columbia Steam Naviga- 
 tion Company, 84 N. T., 48, is not an authority upon this point 
 for the plaintiff, as in that case the defendant was a domestic 
 corporation. 
 
 It is true that the plaintiff's cause of action is transitory, and 
 that a plaintiff may bring a suit upon such a cause of action 
 wherever he may be, provided he can find a court which has 
 
 9 jurisdiction of the action and can obtain jurisdiction of the de- 
 fendant. But a cause of action, even if transitory, must always 
 arise somewhere, and this cause of action arose where the tort 
 was committed which caused the death. of the plaintiff's intestate. 
 That this is a cause of action for a tort is too clear for reasonable 
 dispute. It exists only by virtue of the statute referred to, and 
 is based entirely upon the negligence and tortious conduct 
 attributable to the defendant. We, therefore, have a case whei-e 
 the plaintiff is a non-resident, the defendant a foreign corpora- 
 tion, and the cause of action did not arise within this State, and, 
 
 10 ... .... ' . 
 
 therefore, no court within this State has jurisdiction of the action. 
 
 Under the Revised Statutes, so far as we are able to discover, 
 
 there was no provision for an action in the courts of this State 
 
 by a non-resident against a foreign corporation, and the only 
 
 provision for suits against foreign corporations was that found in 
 
 2 Revised Statutes (459, p. 15), where it was provided that suits 
 
 brought in the Supreme Court by a resident of this State against 
 
 any corporation created by or under the laws of any other State, 
 
 government or country for the recovery of any debt, claim or 
 
III. Technical Rules. (1) Jurisdiction. 359 
 
 Robinson v. Oceanic Steam Nav. Co., 113 N. Y., 315. 
 
 demand may be commenced by attachment. That provision re- 11 
 mained nntil 1 84-9, when, by section 107 of the laws of that year, 
 it was amended so as to read as follows : " Suits" may be brought 
 in the Supreme Court, in the Superior Court of the city of New 
 York, and in the Court of Common Pleas in anci for the city and 
 county of New York against any corporation created by or under 
 the laws of any other State, government or country for the re- 
 covery of any debt or damages, whether liquidated or not, arising 
 iipon contract made, executed or delivered within the State, or 
 upon any cause of action arising therein. Such suits may be 
 commenced by complaint and summons, together with an attach- 
 ment as provided by law, and such complaint and summons may 
 be served as provided by sections 113 and Hi of the Code of 
 Procedure." Under the section, as thus amended, any plaintiff 
 could commence an action against a foreign corporation upon 
 any cause of action arising within this State. In the same year 
 section 427 was added to the Code of Procedure, providing as 
 follows : 
 
 " An action against a corporation, created by or under the laws 
 of any other State, government or country may be brought in 13 
 the Supreme Court, the Superior Court of the city of New 
 York, or the Court of Common Pleas for the city and county 
 of New York in the following cases : 
 
 " 1. By a resident of this State for any cause of action. 
 
 " 2. By a plaintiff not a resident of this State, when the cause 
 of action shall have arisen, or the subject of the action shall be 
 situated within the State.'" 
 
 This section did not assiime to define all the cases in which 
 actions could be brought against foreign corporations, and did not 
 absolutely limit the power and jurisdiction of the courts men- ■*■* 
 tioned. It specified the cases in which foreign corporations 
 could compulsorily, by service of process in the mode prescribed 
 by law, be subjected to the jurisdiction of the courts. It did 
 not deprive the courts of any of their general jurisdiction. 
 
 The Supreme Court, being a court of general jurisdiction, 
 could, independently of any statute, entertain actions against 
 foreign corporations. Such corporations could, by the common 
 law, always be sued in this State by any plaintiff for any cause 
 
360 Abbott's Select Cases on Code Pleading. 
 
 Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315. 
 
 15 of action, provided jurisdiction be obtained of their persons 
 (Morawetz on Corp., § 977, and cases cited in note) ; and so it 
 was held, construing this section of the Code, in McCormick v. 
 Pennsylvania Railroad Company (49 N. Y., 303). There the 
 action was brought by a non-resident plaintiff against a foreign 
 corporation for a cause of action which arose without the State, 
 and it was held that the court could entertain the action because 
 the defendant had appeared generally in the action, and sub- 
 mitted itself to the jurisdiction of the court, the cause of action 
 being one of a class coming within its jurisdiction. Thus the 
 law remained until the Code of Civil Procedure was enacted, 
 section 1780 of which provides as follows : 
 
 " An action against a foreign corporation may be maintained 
 by a resident of the State, or by a domestic corporation, for any 
 cause of action. An action against a foreign corporation may 
 be maintained by another foreign corporation, or by a non-resi- 
 dent in one of the following cases only : 
 
 " 1. Where the action is brought to recover damages for the 
 
 breach of a contract made within the State, or relating to prop- 
 
 17 erty situated within the State, at the time of the making thereof. 
 
 " 2. Where it is brought to recover real property situated 
 within the State, or a chattel which is replevied within the state. 
 
 " 3. Where the cause of action arose within the State, except 
 where the object of the action is to affect the title to real 
 property situated without the State." 
 
 Under this section a resident of this State, a domestic corpora- 
 tion, can maintain an action against a foreign corporation for 
 any cause of action, no inalter where it arose. But an action by 
 a non-resident plaintiff against a foreign corporation can be 
 maintained only in the cases specified, and in no case for a cause 
 of action which arose outside of the State limits. The jurisdic- 
 tion of the courts is defined and limited and absolutely confined 
 to the cases specified ; and the word " only " may have been- 
 and probably was, inserted after the words " following cases '' to 
 change the rule as announced in ilcCormick i\ P. C. Railroad 
 Company. 
 
 The disci'imination between resident and non-resident plaint- 
 iffs is probably based upon reasons of public policy, that our 
 
III. Technical Rules. (1) Jurisdiction. 361 
 
 Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315. 
 
 courts should not be vexed with litigations between non-resident 19 
 parties over causes of action which arose outside of our terri- 
 torial limits. Every rule of comity and of natural justice and 
 of convenience is satisfied by giving redress in our courts to 
 non-resident litigants when the cause of action arose or the 
 subject matter of the litigation is situated ■ndthin this state. 
 
 It is not sufficient that a non-resident plaintiff should, by any 
 service of process or in any other way, obtain jurisdiction of a 
 foreign corporation ; but before the action can be maintained, in 
 any court of this State, there must also be jurisdiction of the sub- 
 ject-matter of the action. Jurisdiction of the action cannot be con- 
 ferred upon the court by any consent or stipulation of the parties. 
 The objection to the jurisdiction in such case may be taken at 
 any stage of the action, and the court may, ex mero motu, at any 
 time, when its attention is called to the facts, refuse to proceed 
 further and dismiss the action. (Cooley's Const. Lim., 398 ; 
 Davidsburg v. Knickerbocker L. Ins. Co., 90 jS^. Y., 526.) 
 
 In the case cited Danfoetu, J., said : " There are no doubt 
 many cases where the court having jurisdiction over the subject- 
 matter may proceed against a defendant who voluntarily submits 21 
 to its decision ; but where the State prescribes conditions under 
 which a court may act, those conditions cannot be dispensed 
 with by litigants, for in such a case the particular condition 
 •or status of the defendant is made a jurisdictional fact." 
 
 It is claimed, however, that section 1780 of the Code, so far 
 as it discriminates between resident and non-resident plaintiffs, is 
 repugnant to section 2 of article 4, of the federal constitution, ' 
 wherein it is provided that " the citizens of each State shall be 
 entitled to all the privileges and immunities of citizens in the 
 several States." This section makes no discrimination between ^"^ 
 citizens, but between residents and non-residents. Without at- 
 tempting to define the full scope of that constitutional provision, 
 it is sufficient to say that it has no application to a case like this, 
 and there are numerous decisions to that effect. (Adams v. Penn 
 Eank, 35 Hun, 393 ; Frost v. Brisbin, 19 Wend., 11 ; Lemmon v. 
 People, 20 N. Y., 562 ; Haney v. Marshall, 9 Md., 194; Camp- 
 bell V. Morris, 3 Harris & McHenry [Md.], 534 ; Chemung Bank 
 V. Lowery, 93 U. S., 72; McCready v. Virginia, 94 id., 396 ; 
 
o63 Abbott's Select Cases on Code Pleading. 
 
 Dodge V. Colby, 108 N. Y., 445. 
 
 23 Missouri v. Lewis, 101 id., 22.) A construction of the constitu- 
 tional limitation which would apply it to such a case as this 
 would strike down a large body of laws which have existed in all 
 the States from the foundation of the government, making some 
 discrimination between residents and non-residents in legal pro- 
 ceedings and other matters. 
 
 The order should, therefore, be aiSrmed with costs. 
 
 All the judges concurred. 
 
 Order affirmed. 
 
 DODGE V. COLBY. 
 
 JVew York Court of Appeals, 1888. 
 
 [Reported in 108 N. Y., 445, aff'g 37 Hun, 515.] 
 
 1. A complaint which states a good cause of action in trespass quare 
 elausicm /regit, is not altered in character because upon the facts 
 stated plaintiff mig-ht have recovered some of the damages alleged in 
 an action of trover, so long- as the gravamen of the charge be the 
 unlawful entering upon real estate.* 
 
 3. The doctrine that the courts of this State have no jurisdiction of an 
 action for trespass upon lands situated in other States reiterated — on 
 demurrer. f 
 
 3. A demurrer cannot be sustained on a ground not specified in it, for 
 
 Code Civ. Pro., § 490, requires the gTounds to be specificalh' stated. 
 
 4. A complaint which, after stating plaintiff's ownership of large tracts of 
 
 land in another state, alleged that defendant caused to be published 
 and widely circulated the assertion that the plaintiff was not the 
 owner, thereby preventing his sales of the lands, specif j'ing' particular 
 sales lost, and adding that the assertions were false and defamatory, 
 and made and circulated maliciously and with intent to injure plaint- 
 iff and his title, — Held, to constitute ag'ood cause of action for slander 
 of title. 
 
 5. Where the complaint joined a cause of action for trespass to real prop- 
 
 erty with a cause of action for slander of title, — Held, that a demurrer 
 on the ground of improper joinder of a cause of action of a transitory 
 nature, of \vhich the court had jurisdiction, with another for trespass 
 on lands in another State, of which the court had no jurisdiction, was 
 
 *See Gilbert c. Pritehard p. 21)8 of this vol. 
 
 rOn this point eee now to the contrary Sentenis y. Ladcw, 140 N. Y., 463, sustaining such an 
 action after voluntary appearance and trial on the merits. 
 
 In the same manner the former doctrine that an action for personal tort committed abroad 
 between foreigners was not within the jurisdiction of our courts CMolony v. Do^vs, 8 Abb. Pr., 
 aiG) was overruled in Burdick v. Freeman, 120 N. Y., 43G. 
 
III. Technical Rules. (1) Jurisdiction. 363 
 
 Dodge V. Colby, 108 N. Y., 445. 
 
 uot authorized, and did not enable the demurrant to raise the objec- 
 tion that a cause of action for slander could not be joined with one 
 for injuries to real property. 
 
 Action for slander of title and trespass on lands. 
 
 The complaint consisted of three statements, in substance as 
 follows : 
 
 Th^ first count alleged plaintiff's ownership in fee of lands in 
 the State of Georgia, which, lands were described by district 
 numbers, and alleged to consist of upwards of 300,000 acres. 
 That the defendant, and others acting in his employ, caused 
 various persons to cut timber, and to take turpentine from said 
 lands, and the said timber and turpentine were converted by 
 defendant and his agents. 
 
 The second cause of action was similarly stated as to owner- 
 ship of the land, and alleged that defendant and his agents, by 
 representing that plaintiff was not the owner of said lands, and 
 that he (defendant) would protect against plaintiff" all persons 
 committing trespasses, had instigated and induced lawless and 
 irresponsible persons to trespass upon said lands and remove 
 timber and turpentine thei-efrom. 
 
 The third count charged the defendant with circulating the 
 assertion that plaintiff was not the owner of said lands, and set 
 forth various articles which, he charged, were published at the 
 instigation of the defendant in various newspapers, in which 
 such assertion was made ; it further charged that defendant 
 intended them to be, and that they were, widely circulated in 
 various States, have become known to large numbers of persons 
 wishing to purchase from plaintiff portions of said lands, and 
 timber and turpentine therefrom, and that in consequence 
 plaintiff has lost the sales. Plaintiff then specifies persons, 
 who, among others, he alleges, were ready and willing, and 
 would have purchased lands and timber and turpentine, and 
 paid plaintiff a price specified, but that by reason of defendant's 
 said assertions he has been prevented from consummating the 
 sales. Then follows this averment: " That the plaintiff charges 
 that the statements and assertions hereinbefore mentioned, in so 
 far as they represent, either directly or indirectly, and in what- 
 ever language, that the plaintiff was not the owner of or 
 
364 Abbott's Select Cases on Code Pleading. 
 
 Dodge V. Colby, 108 N. Y., 445. 
 
 interested in tlie said lands, or that the defendant, and those for 
 whom he alleges he. is acting, did own the same, were false and 
 defamator}-, and were made and caused to be circulated and 
 published hj the defendant and by his agents maliciously and 
 with the intent to injure the plaintiff and his title to the said 
 lands." 
 
 The defendant demurred to the complaint on the following 
 grounds : 
 
 1. That the court has no jurisdiction of the subject of the 
 action. 
 
 2. That the complaint does not state facts sufficient to consti- 
 tute a cause of action. 
 
 3. That causes of action have been improperly united, viz.: 
 a cause of action for a slander of title, being a transitory action, 
 with two causes of action for trespasses on lands without the 
 State, of which the court has no jurisdiction. 
 
 The Supreme Court at Special Term overruled the demurrer 
 on the ground that " the complaint shows a cause of action. 
 Whether it can go to the full extent asked or not is another 
 question." 
 
 The General Term reversed the judgment, holding: — That 
 as to the first and second counts, a cause of action for trespass 
 was stated in each, and as the real estate upon which the tres- 
 passes were committed was situated outside the State, the court 
 had no jurisdiction. That the third count, purporting to be for 
 slander of title, was fatally defective in not alleging that the 
 denial of plaintiff's title was maliciously made. That causes 
 of action were improperly joined, for by § -±84 of the Code an 
 action for slander cannot be joined with an action for injuries to 
 real property. 
 
 The C(?t«ri! (9/ ^^joea.fe affirmed the judgment of the General 
 Term, except so far as it related to the third count, and as to that 
 reversed the judgment and affirmed that of the Sjieeial Term. 
 
 llr(jEE, Ch. J. \_after stating the groiuids of demurrer, the 
 derit<iuii at Sj>eo/al Term and- the Oenered Tern} conclusions as 
 to the jirst two causes of adion, said] : " We concur in the con- 
 
III. Technical Mules. (1) Jurisdiction. 365 
 
 Dodge V. Colby, 108 N. Y., 445. 
 
 elusions reached by that court in respect to this portion of the i) 
 complaint. The counts referred to, we think, under the liberal 
 system established by the Code, each clearly stated a good cause 
 of action in trespass quare clav^um f regit and entitled the 
 plaintiff, if sustained, to recover for all damages accruing to him 
 from the acts described therein. It constitutes no answer to 
 this proposition that the plaintiff might have recovered, upon the 
 facts stated, some of the damages alleged to have been sus- 
 tained by him in an action of trover, so long as the gravamen of 
 the charge was the unlawful intrusion u.pon his real estate. The 
 cutting and tapping of trees constituted the real basis of the 
 damages claimed. While the counts referred to, each allege the 
 ■\'alue of the timber and turpentine, claimed to have been carried 
 away from the premises of the plaintiff, this is merely inciden- 
 tal to the trespass alleged, and the complaint concludes with a 
 general prayer for judgment which would cover the damages 
 arising from the alleged unlawful entry upon the plaintiff's 
 lands and the trespasses committed thereon, as well as the inci- 
 dental damages arising from the conversion of his property. 
 
 The doctrine that the courts of this State have no jurisdiction \\ 
 of actions for trespass upon lands situated in other States is toc) 
 well settled to admit of discussion or dispute. (American Union 
 Tel. Co. V. Middleton, 80 N. Y., 408 ; Cragin v. Lovell, 88 id., 
 :^58.) The claim urged by the plaintiff, that if not permitted to 
 maintain this action he is without remedy for a most serious in- 
 jury, is quite groundless, and affords no reason for the assump- 
 tion of a jurisdiction by this court which it does not possess. 
 The plaintiff would seem to have the same remedy for the tres- 
 passes alleged that all other parties have for similar injuries. 
 His lands cannot be intruded upon without the presence in ^" 
 the State of the wTongdoer, and no reason is suggested why he 
 could not seek his remedy against the actual wrongdoers in the 
 courts having jurisdiction. His remedj' is ample, and it is no 
 excuse for assuming a jurisdiction which we do not have, that 
 the plaintiff desires a remedy against a particular person, rather 
 than one against the real perpetrators of the injury, who were ex- 
 posed to prosecution in the place where the wrong was com- 
 mitted. 
 
366 Abbott's Select Cases on Code Pleading. 
 
 Dodge V. Colby, 108 N. Y., 445. 
 
 13 We, are, however, unable to agree with the General Term in 
 the conclusion reached by it, that the third count does not state 
 a good cause of action. We are inclined to think that this 
 result was arrived at through inadvertence in failing to observe 
 the allegation in the count, that the statements alleged to be 
 slanderous " were false and defamatory and were made and 
 caused to be circulated and published by the defendant and his 
 agents maliciously and with the intent to injure the said plaint- 
 iff and his title to the said lands." The demurrer concedes the 
 truth of this allegation, and renders it improper for the court to 
 refer to the statements so alleged to be false, defamatory and 
 malicious, as the foundation of a claim that they were made in 
 good faith and in the exercise of a lawful' right on the part of 
 the defendant to assert his title to the lands referred to. 
 
 The statement in the complaint that the defendant alleged 
 that his title had been investigated by four able legal gentlemen, 
 who unanimously concurred in pronoimcing the plaintiff's title 
 bad, was precisely one of the statements which the complaint 
 alleged to have been false, defamatory and malicious, and the 
 
 15 truth of which characterization was admitted by the demurrer. 
 It was error, therefore, in the court below to refer to this state- 
 ment as proof of the propriety of the defendant's claim to be the 
 owner of the lands, or as justifying, in any degree, the alleged 
 slanderous statements. 
 
 We are of the opinion that this count of the complaint sub- 
 stantially complied vnth the requirements of the rule relating, to 
 the statement of a cause of action for slander upon title. The 
 General Term, we think, also erred in sustaining the demurrer 
 to the third count, upon the ground that there was an improper 
 joinder of causes of action. It is quite true that, under § 484 of 
 the Code of Civil Procedure, causes of actions for slander cannot 
 properly be joined with actions for injuries to real property ; 
 but this was not the ground of objection stated in the demurrer. 
 The ground there specified was that a cause of action of a transi- 
 tory nature, of which the court had jurisdiction, had been 
 united with one for trespasses upon land in another State 
 of which the court had no jurisdiction. This is not one 
 of the grounds of demurrer authorized by the Code. It is a 
 
III. Technical Mules. (1) Jurisdiction. 367 
 
 •Cragin v. Lovell, 88 N. Y., 258. 
 
 proper ground of demurrer that the court has not jurisdiction of 17 
 any specified cause of action, but this does not autliorize a de- 
 murrer, upon the ground that such causes of action are united 
 with one of which it has jurisdiction. 
 
 The first and second counts of the complaint must be held 
 bad, upon the ground that the court had not jurisdiction of 
 the subject of the action ; but no sufficient ground of demur, 
 rer has been presented to the third count, and it must, there, 
 fore, be held good. The Code requires the grounds of de- 
 murrer to be specifically stated, and when that is not done it 
 may safely be disregarded. (Code of Civ. Pro., § 490.) ^" 
 
 Our conclusion, therefore, is that the judgment of the 
 Oeneral Term should be affirmed, except in so far as it re- 
 lates to the third count, and as to that it should be reversed, 
 and that of the Special Term affirmed, without costs to either 
 party upon this appeal. 
 
 All the judges concurred. 
 
 Judgment accordingly. 
 
 CKAGIN V. LOVELL.. 
 
 New York Court of Appeals, 1883. 
 [Reported in 88 N. Y., 258 ; rev'g 22 Hun, 101.] 
 
 1. A separate defence may contain all the requisite allegations within 
 itself to make it a perfect counterclaim, or it may refer to papers 
 annexed, or to other parts of the answer, or to the complaint, with 
 the same effect as if the matter so referred to was written at length 
 therein. Such matter is to be deemed to "appear on the face" of 
 the pleading in which it is suflBciently so referred to, within the rule 
 as to demurrer. 
 
 3. The Supreme Court of this State has no jurisdiction of an action for 
 damages for waste committed to lands situated outside of the State, 
 either at common law, or under Code Civ. Pro., § 982— which declares 
 that an action for waste must be tried in the county whei-e the land 
 is situated. — So held on demurrer.* 
 
 3. A defendant cannot use as a counterclaim a cause of action of the 
 subject of which the court, before which the action is pending, has 
 no jurisdiction. 
 
 * See note to preceding case. 
 
368 Abbott's Select Cases on Code Pleading. 
 
 Cragin v. Lovell, 88 N. Y., 258. 
 
 Action for breach of contract. 
 
 This action was originally commenced against Eliza A. Quit- 
 man individually and as executrix of her sister Louise S. Quitman. 
 The original defendant died after issue was joined ; the action 
 was continued against the present defendant as her executor. 
 
 The complaint in the action alleged, that early in the year 
 18Y0, the defendant and her sister [Louise] had sold and con- 
 veyed to one Fisk, a certain plantation known as " Live Oaks,"' 
 situated in the parish of Terrebonne and State of Louisiana, for 
 the consideration of $4,500 in cash, and $18,000 in the notes of 
 Fisk, secured by a mortgage upon the plantation ; that the 
 plaintiff, at the tiine named, had a large judgment against Fisk, 
 who had absconded, and that he, as a means of satisfying the 
 judgment in part, took possession of the plantation, the legal title 
 thereto, however, remaining in Fisk ; that the plaintiff entered 
 into an agreement with the defendant and her sister, by which 
 he was to be permitted to acquire the legal title to the planta- 
 tion by paying up the notes secured by the mortgage, and then 
 foreclosing the mortgage ; that, relying upon the agreement, he 
 paid two of the notes and made various permanent improve- 
 ments upon the plantation ; that the defendant and her sister 
 subsequently violated their agreement, and the plaintifE in 
 consequence thereof, sustained damage to the amount of 
 $10,000, for which sum he demanded judgment. 
 
 The defendant in her [amended] answer, as the fourth sub- 
 division thereof, alleged : 
 
 " For a fourth and further answer, defendant alleges upon 
 information and belief that during the time while plaintiff was 
 in the possession of the said " Live Oaks," claiming to be owner, 
 and at the time the improvements on the said premises are 
 alleged to have been made by him, and while recognizing the 
 validity of defendant's lien, and as a part of the same transac- 
 tion out of which the alleged caiise of action arises, this 
 ])laintifl: unnecessarily broke, destroyed, injured and wasted the 
 said plantation, and the fences, buildings, outbuildings, fixtures, 
 appurtenances and improvement to the property, and so carried 
 (HI the business of the plantation and conducted the tillage and 
 cultivation thereof, that the same was greatly damaged in the 
 
III. Technical Rule>-. (1) Jurisdiction. 369 
 
 CragiQ V. Lovell, 88 N. Y., 358. 
 
 amount of at least $6,000, for which sum the defendant asks 5 
 judgment, and which amount she counterclaims in this action." 
 The plaintiff demurred to the counterclaim " for the reason 
 that it appears that the court has not jurisdiction of the subject 
 "thereof." 
 
 The Supreme Court at Special Term overruled the demurrer, 
 and gave judgment for defendant upon the counterclaim. 
 
 The 8uj)rem,e Court at General Term affirmed the judgment, 
 on the ground that it did not appear upon tlie face of the 
 answer that the property upon which the waste was done, was 
 situated outside of this State ; although if this fact had appeared, 
 the demurrer would have been well taken. 
 
 The Court of Appeals reversed the judgment. 
 
 Eael, J. [after recapitulating the pleading s\: 
 Section 495 of the Code of Civil Procedure provides that " the 
 plaintiff may demur to a counterclaim upon which the defendant 
 demands an affirmative judgment where one or more of the fol- 
 lowing objections thereto appear on the face of the counter- 7 
 claim," and the first subdivision is, " that the court has not juris- 
 diction of the subject thereof." 
 
 Does this objection appear upon the face of the counterclaim ? 
 We think that it does. A separate defense may contain all the 
 requisite allegations within itself to make it a perfect counter- 
 claim, or it may refer to papers annexed, or to other parts of the 
 answer, or to the complaint, and the matters thus referred to are 
 just as much a part of the counterclaim as if written at length 
 therein. The same rule is applicable in the construction of all 
 written instruments. Whatever is plainly referred to as part of ° 
 a written instrument must always be considei'ed in the construc- 
 tion thereof. Here the plantation is plainly de^cribed in the 
 complaint as situated in Louisiana, and its situation there is not 
 denied. The answer is drawn to meet the allegations contained 
 in the complaint, and plainly refers to such allegations. In the 
 second division of the answer the plantation is referred to as 
 the one known as " Live Oaks mentioned in the complaint." 
 In the third division of the answer the defendant denies 
 
 24 
 
10 
 
 370 Abbott's Select Cases on Code Pleading. 
 
 Cragin v. Lovell, 88 N. Y., 258. 
 
 that " this court has jurisdiction of the subject matter of this 
 action as to the claim for damages for improvements alleged 
 to have been made by plaintiff to real estate, situated in 
 the State Louisiana," etc., and thus it is shown that the 
 real estate which is connected with the subject of the litiga- 
 tion is situated in that State. Then in the fourth subdivision 
 of the answer containing the counterclaim, the same plantation 
 and real estate are several times referred to. 
 
 To hold under such circumstances that the real estate referred 
 to in the counterclaim is not situated in the State of Louisiana 
 requires a construction altogether too rigid and narrow, and we 
 are of the opinion that it suificiently appears upon the face of 
 the counterclaim that it is thus situated. 
 
 "We have now only to inquire whether the defendant could 
 properly allege as a counterclaim the damages sustained by 
 waste committed to land situated outside of this State. 
 
 If the defendant had sued the plaintiff upon the cause of action 
 alleged in her counterclaim, a demurrer to her complaint on the 
 ground that the court did not have jurisdiction of the subject of 
 11 the action would have been sustained. It is a general rule of 
 law that actions for injuries to real property must be brought in 
 the _forum rei sitm, and this rule of law has been, so far as I can 
 discover, uniformly sanctioned and upheld in this State. . (Story 
 on Conflict of Laws, § 554 ; Watts' Admrs. v. Kinney, 23 Wend., 
 485; s. c. 6 Hill, 82 ; American Union Telegraph Co. v. Middleton, 
 80 ]Sr. Y., 408; De Courcy v. Stewart, 20 Hun, 561.) It is a 
 mistake to suppose that this rule has been changed by section 982 
 of the Code.* That section was not intended to define the ju- 
 
 12 
 
 * § 983. Each of the following actions must be tried in the county in 
 which the subject of the action, or some part thereof, is situated : an ac- 
 tion of ejectment ; for the partition of real property ; for dower ; to fore- 
 close a mortgage upon real property, or upon a chattel leal ; to compel 
 the determination of a claim to real property ; for waste ; for a nuisance ; 
 or to procure a judgment, directing a conveyance of real property ; and 
 every other action to recover, or to procure a judgment, establishing, de- 
 termining, defining, forfeiting, annulling, or otherwise affecting', an estate, 
 right, title, lien, or other interest, in real property, or a chattel real. 
 
 But where all the real property, to which the action relates, is situated 
 without the State, the action must be tried, as prescribed in section nine 
 hundred and eighty-four of this act. 
 
III. Technioal Rules. (1) Jurisdiction. 371 
 
 Note on the Locality of a Cause of Action. 
 
 risdiction -of the Supreme Court, but simply to determine the 13 
 place of trial of actions, of which it had jiirisdiction. In the last 
 two cases above cited the actions were commenced after that sec- 
 tion took effect, and it cannot be supposed that it was overlooked 
 in the decisions of those cases. All parts of the section can have 
 effect without extending the jurisdiction of the court to actions 
 like this counter-claim, which were always regarded as triable 
 only where the cause of action arose. 
 
 But the claim is made that even if the defendant could not 
 have sued the plaintiff upon this cause of action within this State, 
 she might yet set it up as a counter-claim. By section 501 of 
 the Code a counter-claim is defined to be a cause of action against 
 the plaintiff in favor of the defendant. It must then be a cause 
 of action upon which the defendant could sue the plaintiff, and 
 which he holds and possesses against the plaintiff at the place 
 where the action is commenced. A defendant cannot avail 
 himself of a counter-claim which the court before which the ac- 
 tion is pending has no jurisdiction to try and determine. A 
 counter-claim must be a complete cause of action existing in 
 favor of the defendant where he asserts it ; otherwise he has no 15 
 counter-claim there. 
 
 It follows from these views that the judgment should be re- 
 versed, and judgment should be given for the plaintiff upon the 
 demurrer, with costs. 
 
 All the judges concurred, except Andrews, Ch. J., and Rap- 
 ALLO, J., not voting. 
 
 Judgment reversed. 
 
 NOTE ON THE QUESTION WHAT IS TO BE DEEMED 
 
 THE PLACE WHERE THE CAUSE OF 
 
 ACTION AROSE. 
 
 The question what is to be deemed the place where the cause of action 1 
 arose, may be presented for eitlier of several purposes : It may be pre- 
 sented as affecting- the jurisdiction of a local court, as in case of the 
 superior city coui-ts in actions other than those affecting real property * 
 (Code Civ. Pro., § 263, subd. 2 and subd. 7), it may be presented as affecting- 
 the jurisdiction of the Supreme Court as well as any other court, of an 
 action brought by a foreign corporation or a non-resident against a foreign 
 
372 Abbott's Select Cases on Code Pleading. 
 
 Note on the Locality of a Cause of Action. 
 
 corporation (§ 1780), and it may be presented as affecting- the question of 
 ttie proper place of trial in an action in the Supreme Court (§ 983), and, 
 where several causes of action require different places of trial, the mis- 
 joinder may be objected to on the pleadings (§ 484). 
 
 Whenever the situation of persons or property has reached such a con- 
 dition as to justify involving the judicial power by an action, a cause of 
 action is said to have arisen. If this justiciable condition is produced by 
 a single act — as for instance an assault — the time and the place are inher- 
 ent in the act itself, and proving the latter in detail proves both former. 
 It makes no difference in such case that subsequent events at the same or 
 at another place enhance or mitigate the damages. The time and place 
 of accrual are fixed at the outset, subject only to the principle that a con- 
 tinuing wrong may be deemed in some cases a continually accruing suc- 
 .cession of causes of action. (See note on the time when a cause of action 
 .accrues, in 36 Abb. N. C, 3.) If tine justiciable condition is produced by 
 .a succession of events, each necessary to the resulting condition, as in the 
 
 ■ case of a contract made by defendant and subsequently broken by him, it 
 iis clear that the time of accrual is fixed by the latest of these necessary 
 
 ■ events. 
 
 It is well to notice, in this connection, a consideration of justice which 
 inti'odoces some anomaly. In those classes of cases where a plaintiff must 
 iperfect his cause of action by some affirmative step on his own part — such 
 ;as a demand required by the terms of his contract, or a notice or presenta- 
 ition of claim against a, municipality — the act is a part of his cause of 
 action within the rules of pleading and proof ; and an action commenced 
 before he has done the act is premature ; but the act is not necessarily a 
 part of his cause of action for the purposes of the statute of limitations 
 because he otherwise might intentionally delay it till after defendant's 
 evidence as to the principal transactions had been lost. 
 
 See the cases on the question, collated particularly with reference to 
 actions on contract, in 28 Abb. N. C, 435 : 
 
 1. Some refer to the place where the contract was made. 
 
 3. Others to the place where the consideration was furnished. 
 
 3. Others still — and this is now the prevailing test — to the place where 
 the breach occurred. 
 
 There are divergent authorities as to where the breach should be deemed 
 to occur, some holding : 
 
 (a.) That the breach arises at the place wliere defendant is when he 
 refuses. 
 
 (b.) The place of refusal, or wliere plaintiff is notified of defendant's 
 refusal. 
 
 (c.) Where defendant should have performed, but did not. 
 
III. Technical Rules. (2) Joinder. 373 
 
 PoUey V. Wilkisson, 5 Civ. Pro. Rep., 135. 
 
 POLLEY V. WILKISSON. 
 
 City Court of Brooklyn, General Term, 1884.. 
 [Reported in 5 Civ. Pro. Rep., 135.] 
 
 1. A cause of action for trespass upon land, and a cause of action for con- 
 
 vereion of personal property may be united, under Code Civ. Pro., 
 § 484, subd. 9, when they both arise out of the same transaction. 
 
 2. A fair interpretation of the term "transaction" as used in the Code, 
 
 does not confine it to a single one of a series of connected acts trans- 
 piring at the same time ; it means something broad enoug-h to embi-ace 
 causes of action belonging to the different subdivisions of § 484. 
 
 3. The word " transaction," as used in § 484, is comprehensive enough to 
 
 include the breaking into a market stand, tearing down partition, fix- 
 tures, etc., locking it up and carrying away the goods and fixtures, 
 when done at the same time, these acts are all parts of the same 
 transaction. 
 
 4. Neither trespass upon real property, nor trover, is a local action. 
 
 Demurrer to complaint on the ground that causes of action \ 
 have been improperly united. The facts essential to the decision 
 sufficiently appear in the opinion. 
 
 Reynolds, J. Conceding that the 4th paragraph of the 
 complaint sets out a cause of action for trespass upon land, and 
 the 5th paragraph a cause of action for conversion of personal 
 property, I think the two may be united under subd. 9 of section 
 484 of the present Code, on the ground that they both arise out 
 of the same transaction. Taking the two paragraphs together, 
 they set out in substance that defendants violently entered upon 
 the premises lawfully occupied by plaintiff, locked him out, and 2 
 deprived him of possession, and that in so doing they broke 
 down walls and partitions, destroyed his signs and fixtures in 
 and upon the premises, and at the same time took and carried 
 away the fixtures and other personal property of plaintiff and 
 converted the same to their own use. All this, though stated in 
 separate paragraphs was one continuous transaction. A fair 
 interpretation of that term, as used in the Code, does not 
 confine it to a single one of a series of connected acts transpiring 
 at the same time, if so, each blow struck, each wall or partition 
 
374 Abbott's Select Cases on Code Pleading. 
 
 PoUey V. Wilkisson, 5 Civ. Pro. Rep., 135. 
 
 broken down, each article carried away, would be a transaction 
 by itself. It means something broad enough to embrace more 
 than one cause of action, broad enough even to embrace causes 
 of action belonging to different subdivisions of the section, for 
 the only construction I can put upon this 9th subdivision which 
 seems to me at all sensible, is that claims or causes of action 
 which are not all included in any one of the foregoing sub- 
 divisions, that is, which belong to different ones, may, notwith- 
 standing, be united, provided they arise out of the same 
 transaction or transactions connected with the same subject of 
 action. The words " not included within one of the foregoing 
 subdivisions of this section," mean not included .within one 
 only, but belonging to more than one claim — belonging to one 
 only, are already provided for ; those belonging to more than 
 one, but arising out of the same transaction, etc., are provided 
 for by subd. 9. The word " transaction " used in such a connec- 
 tion as well as in common parlance is comprehensive enough to 
 include the breaking into a market stand, tearing down partitions, 
 iixtures, etc., locking it up and carrying away the goods and 
 fixtures ; when done at the same time, these acts are all parts of 
 the same transaction. 
 
 Counsel for appellant seems to suppose, however, that the 
 concluding part of the section requires that causes of action, to 
 be united, must in all cases belong to one, and one only, of the 
 first eight subdivisions. The language is that " 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," etc. The trouble with this is that subd. 9 is one of 
 the "foregoing subdivisions" as well as the eight others, and to 
 give effect to the whole, it is necessary to hold that any and all 
 causes of action ^'■arising out of the same transaction" are a 
 class by themselves, which may be united, provided they meat 
 the other conditions contained in the closing paragraph of this 
 section. It is said, however, that these two causes of action 
 require different places of trial. Not at all — neither of them 
 are local; sections 982 to 984 of the Code regulate this subject 
 and neither trover nor trespass upon real estate is included under 
 either of these sections. The interlocutory judgment should be 
 
III. Technical Rules. (2) Joinder. 375 
 
 Nichols V. Drew, 94 N. Y., 22. 
 
 affirmed without costs, with leave to defendant to answer upon 
 the terms given in the Special Term order. 
 
 No costs of this appeal, as the question seems to be novel. 
 
 Clement, J., concurred. 
 
 NICHOLS V. DEEW. 
 
 New York Court of Appeals, 1883. 
 [Reported in 94 N. Y., 28 ; aff'g 25 Hun, 315.] 
 
 1. If a complaint contains two causes of action, one of which affects all 
 of the defendants, and the other of which does not, a defendant who 
 is not affected by both causes of action may demur ; but the proper 
 ground to assign is that there is a misjoinder of causes of action, not 
 that there is a misjoinder of parties. 
 
 2 The rule that a defendant against Whom a good cause of action is 
 alleged, may not demur because too many parties are joined, does 
 not preclude demurring to a misjoinder of causes of action where 
 parties who are necessary as defentlants as to one are not proper 
 defendants as to the other. 
 
 The elements of the first cause of action were : That the 
 defendants Drew, Young and McLane became jointly indebted 
 to plaintiff in a specified sum for the board of their workmen. 
 
 That the defendants nominally failed, and Drew conspired 
 with Churchill to cheat plaintiff out of his claim. 
 
 To that end Churchill offered to buy plaintiff's claim for 
 twenty-five cents on the dollar and made false and fraudulent 
 representations as to Drew's pecuniary condition and his own 
 motive, which he knew to be false. 
 
 That plaintiff in reliance thereon was induced to assign to 
 Churchill his claim for that price. 
 
 That in fact Drew was solvent, and the money Churchill paid 
 was furnished by Drew and the assignment turned over to 
 Drew. 
 
 Plaintiff's damages were laid at the amount of the claim less 
 the sum paid for the assignment. 
 
 The elements of the second cause of action were (after 
 repeating by reference all the allegations of the first) : 
 
376 Abbott's Select Cases on Code Pleading. 
 
 Nichuls V. Drew, 94 N. Y., 23. 
 
 That before such assignment Drew and Young represented to 
 plaintiff that there was a sum of $350 belonging to them in 
 the hands of third persons which they verbally assigned to 
 plaintiff, to be received by him in addition to the 25 cents on 
 the dollar of his claim against them. 
 
 That they requested him to sue such third persons, and he 
 did so and failed and was compelled to pay costs and expenses, 
 because whatever moneys had been in their hands had been paid 
 out under the direction of Drew, McLane and Young. 
 
 That plaintiff's claim to the sum of $250 he did not assign 
 to Churchill, but it was reserved to him as an additional induce- 
 ment to assign his claim against the other defendants. That 
 said sum had never been received by plaintiff ; and Drew, 
 Young and McLane were now indebted to him therefor. 
 
 Whekefoee, plaintiff demanded judgment for the amount 
 of the claim he had assigned, less the 25 por cent paid by 
 Churchill ; for the costs and disbursements of his suit ; that the 
 assignment be adjudged void ; and also for damages against 
 Drew and Churchill for fraud and deceit. 
 
 The defendant Drew demurred to the complaint on the 
 grounds (among others) : 
 
 " That several causes of action have been improperly united 
 in said complaint, viz.: That the first count or claim in said com- 
 plaint being founded in fraud and based on allegations of fraud 
 and being in the nature of a tort or wrong, and the second 
 count or claim being upon contract, the two are inconsistent 
 with each other." 
 
 " . . . that sai,d second cause of action, count or claim so 
 set forth in said complaint does not affect all of the parties to the 
 said action, viz.: the said defendant Churchill. 
 
 Tke Supreme Court at Special Term overrnled the demurrer, 
 holding that (as to the objection that causes of action for tort 
 and on contract were improperly united), the first cause of 
 action was not for a tort, but to set aside an agreement on the 
 ground of fraud ; that the second cause of action was on an 
 alleged contract, and that legal and equitable causes may be 
 joined in the same action ; and (as to the objection that the 
 
III. TechniGol Rules. (2) Joinder. 3Y7 
 
 Nichols V. Drew, 94 N. Y., 22. 
 
 second cause of action did not affect the defendant Churchill), 7 
 the defendant Drew, the demurrant, cannot take this objection. 
 
 The General Term reversed the decision of the court below, 
 and sustained the demurrer, on the ground that, while taking 
 the most favorable view for the plaintiff of the first causes of 
 action and assuming that it is for the recovery of the amount 
 unpaid upon the contract and that the remainder of the count is 
 framed with a view of setting aside an impediment in the way 
 of obtaining that relief, yet in the first count the defendant 
 Drew is sought to be charged as a joint contractor with the 8 
 defendants Young and McLane, and in the second count as 
 a joint contractor with Young alone. The two contracts not 
 being made by the same parties, cannot be sued on in one 
 action. (Reported in 19 Ilun, 490.) 
 
 The General Term granted a motion by plaintiff' for re-argu- 
 ment on the ground that the attention of the court not having 
 been called to Code Civ. Pro., § 490, defining the grounds of 
 demurrer, the question whether the specifications in the de- 
 murrer were insufficient to raise the point upon which the case 9 
 was decided, was overlooked. (Reported in 21 Hun, 109.) 
 
 The General Term on the re-argument adhered to their de- 
 cision reversing the judgment and order of Special Terra, and 
 ordered judgment for defendant Drew, on the demurrer, with 
 costs of the demurrer and the appeal, with leave to the plaintiff 
 to amend his complaint in twenty days on payment of costs, 
 holding that there was an improper joinder of causes of action, 
 the first count being in tort and the second on contract, and the 
 defect being specified in the demurrer. 10 
 
 The Coiort of Appeals affirmed the judgment. 
 
 Finch, J. The demurrer interposed took the specific objec- 
 tion that the first cause of action pleaded was- in tort, while the 
 second was on contract, and so there was a misjoinder of causes of 
 action. The General Term sustained the objection. It is now 
 claimed that both counts were on contract, and the first is con- 
 strued to allege a debt against Drew, McLane and Young, which 
 is sought to be recovered, while Churchill is introduced as a 
 
378 Abbott's Select Cases on Code Pleading. 
 
 Nichols V. Drew, 94 N. Y., 22. 
 
 11 party, and his and Drew's fraud alleged, solely to set aside the 
 assignment to Churchill, and restore the plaintiff to the position 
 of a creditor of the firm. But the pleading plainly avers a fraud 
 perpetrated by Drew and Churchill, whereby the plaintiff suf- 
 fered damage to the amount of seventy-five per cent, of his 
 debt. The loss of the debt as damages suffered, and not its 
 recovery upon the contract, is the substance of the pleading. 
 
 But if this were doubtful, and the first cause of action could 
 be deemed ex contractu, and aimed solely at a recovery of the 
 debt, a difficulty remains. An objection was stated in the de- 
 murrer that the second cause of action did not affect the defend- 
 ant Churchill. Although it repeats the allegations of the first 
 count, it goes on to show, and does clearly show, that Churchill 
 was in no manner affected by it ; for it avers that the moneys 
 said to be in the hands of Saunders were not included in the as- 
 signment to Churchill, but reserved therefrom, and that the 
 false statement of moneys in the hands of Saunders, and their 
 assignment to plaintiff was before the latter's assignment to 
 Churchill. Now the only pretense for making Churchill a 
 
 13 party, upon the theory that both causes of action are on contract, 
 is to set aside the assignment to him. But the Saunders money, 
 or so much of the debt of the firm as that represented, is dis- 
 tinctly averred not to have been assigned to him, so that, taking 
 as true, as we are bound to do, the allegations of the complaint, 
 it distinctly appears that to the second cause of action Churchill 
 was an entire stranger, and in no manner affected by it. The 
 Code provides (§ 484) for the joinder of causes of action, naming 
 in nine subdivisions those which may be united, but applying 
 further to those in each class the limitations that they must be 
 consistent with each other, and, except as provided by law. must 
 affect all the parties. The exception mainly relates to mortgage 
 foreclosures, as to which special provisions exist. The answer 
 made to this difliculty is that no demurrer lies for making too 
 many parties, and for such excess the party against whom a good 
 cause of action is pleaded cannot demur. But the objection is 
 not for a misjoinder of parties. It is for a misjoinder of causes 
 of action. Those arising on contract and affecting all the parties 
 njay be joined. Those arising on contract, but inconsistent with 
 
III. Technical Rules. (2) Joinder. 279 
 
 Nichols V. Drew, 94 N. Y., 33. 
 
 each other, or not affecting all the parties, cannot be joined, and 15 
 the defect may be reached by demurrer. The General Term 
 was, therefore, right in its conclusion. 
 
 We are at liberty to allow the plaintiff to plead anew or 
 amend upon such terms as are just, or if need be, to direct a sev- 
 erance of the action. (Code, § 497.) No necessity for such 
 severance is suggested, but it seems proper to allow the plaintiff 
 to amend upon terms which are just. 
 
 The judgment of the General Term should be affirmed, with 
 leave to the plaintiff to serve an amended complaint within 
 twenty days from notice of the entry of this judgment, upon 
 payment, within the same time, of costs from the service of the 
 demurrer, including those on appeal to the General Term and 
 to this court. 
 
 All concurred. 
 
 Judgment accordingly. 
 
3S0 Abbott's Select Cases on Code Pleading. 
 
 Victory Webb Pi-intin.a: Co. v. Beeclier, 26 Hun, 48. 
 
 VICTOEY WEBB PRINTING, ETC., CO. v. BEECHER. 
 
 JVeiv York Supreme Court, First Dej)a?'im,ent, 1881. 
 [Reported in 36 Hun, 48 ; aff'd in 97 N. Y., 651.] 
 
 1. Where a complaint contains separate statements of several supposed' 
 
 causes of action, eacli must be complete and sufficient in itself. A 
 general statement after the end of the last cause of action of a fact 
 essential to make each of them sufficient, but in no wise expressly 
 referred to in any of them, does not avail to aid any of them. 
 
 2. Each such incomplete cause of action is bad on a demurrer thereto. 
 
 3. A demvirrer to the whole of a complaint as a whole is not sustainable 
 
 if it contains more than one cause of action, and any one is good. 
 
 Action against trustees of a manufacturing company tO' 
 recover on their individual liability for a claim against the 
 company, because of the alleged failure of the trustees to make 
 and file an annual report. ^ 
 
 The complaint contained, in form, seven distinct counts, or 
 causes of action, expressly stated to be separate causes of action ; 
 but each of several alleged as its foundation the violation of one 
 and the same contract made by the said company, and only set 
 forth some special item of damage consequent upon such 
 breach. 
 
 A general clause, introduced at the end of the last count, and 
 in express terms made apphcable to all of them, set out a default 
 made by the trustees in filing the required statement, and that 
 they became thereby personally responsible for the debts of the 
 company before mentioned. 
 
 The first count or cause of action stated a contract for the 
 construction of a machine, for which the price was due. 
 
 The second was for the wages of a superintendent sent to put 
 it up. 
 
 The third for freight advanced in sending it. 
 
 Others were for duties, for cartage, for storage after refusal 
 to accept it, and for insurance paid. 
 
 After the seventh of these statements of supposed causes of 
 action the complaint contained a paragraph alleging that the 
 defendants were trustees of the company during a specified 
 period, and neglected, etc., to make and file an annual report as 
 
III. Technical Rules. (3) Separate Statement. 381 
 
 Victory Webb Printing Co. v. Beeoher, 26 Hun, 48. 
 
 required by the act referred to : " And the plaintifEs insist that 
 by virtue of the provisions of said act the defendants have 
 become jointly and severally responsible for the several sums 
 due to the plaintiffs as above set forth in the preceding seven 
 counts of this complaint, to each one of which this allegation is 
 intended to apply as forming part thereof." 
 
 " "Whekefobe, the plaintiffs demand judgment against the 
 defendants for the following, to wit. \^Here followed an enumer- 
 ation of the amounts claimed on the respective counts.] 
 
 The demurrer was framed as follows : 
 
 I. The defendants [names'] demur to the first alleged cause of 
 action set forth in the amended complaint upon the ground that 
 as it appears upon the face thereof, the same does not state facts 
 sufficient to constitute a cause of action. 
 
 II. The said defendants demur to the second alleged cause of 
 action set forth in the said amended complaint upon the ground, 
 that as it appears upon the face thereof, the same does not state 
 facts sufficient to constitute a cause of action. 
 
 [A demtirrei' to each of the other five counts was couched in 
 the same language.] 
 
 The Sitpreme Court at Special Term overruled the demurrer, 
 holding that the general allegation in or after the seventh count 
 rendered that good and also rendered the six preceding counts 
 good. 
 
 The General Term reversed the judgment and sustained the 
 demurrer. 
 
 Davis, P. J. The complaint sets forth several distinct causes 
 of action, some of which are alleged to have arisen upon a 
 contract for the manufacture of certain machinery ; others upon 
 the manufacture of additions to the machinery not called for by 
 the original contract; others for claims growing out of the 
 unlawful neglect and refusal of the contracting corporation to 
 accept such machinery by reason of which divers expenses were 
 incurred for storage, insurance, etc., of the same. The original 
 contract was alleged to have been made with a corporation 
 -organized by the name of " The Christian Union Company," 
 
382 Abbott's Select Cases on Code Pleading. 
 
 Victory Webb Printing Co. ■;;. Beeoher, 26 Hun, 48. 
 
 8 which corporation expired by the limitation of its charter before 
 any cause of action arose on the contract, and it is alleged that a 
 new corporation was thereafter organized having the same- 
 corporate name, which assumed the obKgations of the contract 
 and took the place of the former corporation in respect thereto. 
 The action is brought against the appellants as trustees of the 
 latter corporation to recover against them jointly and severally 
 under the provisions of section 12 of the manufacturing act of 
 1848. 
 
 It is necessary, therefore, to import an averment on that 
 subject which follows the seventh count or cause of action of 
 the complaint, into each of the several preceding causes of 
 action, to make them respectively causes of action against the 
 defendants as such trustees. 
 
 It seems impossible to treat the complaint as containing a 
 single cause of action. By its express allegations it contains 
 several ; and if it be true that the separation of them was not in 
 all cases necessary, yet, as to some portions it certainly was, and 
 the plaintiff ought not to be heard now to urge his own 
 10 inaccuracy in making the separations as a ground for defeating 
 a demurrer which adopts and follows its own division and 
 classifications. This suggestion is only made to meet the point 
 now urged, that the demurrer is bad, because not taken to the 
 complaint as a whole instead of to the several alleged distinct 
 and separate causes of action. A demurrer to the whole com- 
 plaint as a single cause of action would have been bad if either 
 of the plaintiff's alleged grounds of action presented a separate 
 cause. 
 
 \The merits were then considered, and the demurrer sus- 
 •'■-'■ tained.'] 
 
 Beady and Daniels, JJ., concurred. 
 
 The Court of Appecds aifirmed the decision of the General 
 Term, without, however, discussing the question of pleading. 
 
 Note. — A failure to comply with § 483 Code Civ. Pro., requiring- 
 causes of action to be separately stated and numbered, does not render 
 the complaint demurrable ; the objection must be taken by motion. 
 
 Freer v. Denton, 61 N. Y., 492. 
 
 Gunn V. Fellows, 41 Hun, 257. 
 
III. Technical Rules. (4) Demurrer. 383 
 
 Mavie v. Garrison, 83 N. Y., 14. 
 
 MAKIE V. GAEKISON. 
 
 JShw York Court of Appeals, 1880. 
 
 [Reported in 83 N. Y., 14 ; rev'g 45 Super. Ct. (J. & S.), 157.] 
 
 1. Special demurrers as used at common law are not used under the Code; 
 and no pleading is demurrable unless subject to an objection specified 
 in the section defining- the grounds of demurrer. 
 
 3. A demurrer to a complaint for insufficiency can only be sustained when 
 
 it appears that, admitting all the facts alleged, it presents no cause 
 of action whatever. It is not groimd of demurrer that the facts are 
 imperfectly or informally averred, or that the pleading lacks definite- 
 ness and precision, or that the material facts are only argumentatively 
 averred. 
 8. A complaint is deemed, on demurrer, to allege what can be implied 
 from the allegations therein, by reasonable and fair intendment ; and 
 facts impliedly averred are traversable in the same manner as though 
 directly averred. 
 
 4. It is sufficient that the requisite allegations can be fairly gathered from 
 
 all the averments in the complaint, though the statement of them 
 may be argumentative, and the complaint deficient in technical 
 language. 
 
 5. "When a defendant has actually received the consideration of an agree- 
 
 ment, by a voluntary performance of an act by the other party, upon 
 defendant's proposition or suggestion, such performance constitutes a 
 consideration which will upliold the defendant's promise,. 
 
 6. An agreement — between stockholders who were defending an action to 
 
 foreclose a mortgage on a railroad, on the ground of the fraudulent 
 issue of the bonds secured by it and the plaintiff — that the former 
 should cease defence, and that the latter should procure a decree, and 
 purchase at the sale, for their benefit, — Held, not illegal as involving 
 collusion to enforce an illegal debt against the company. Stockhold- 
 ers, having an interest in the propertj' about to be sold at public or 
 judicial sale, may with honest motives for the purpose of preserving 
 their interests, agree to combine or not bid against one of their num- 
 ber even though this may incidentally restrict competition upon such 
 sale. 
 
 7. An allegation of defendant's refusal to exchange as agreed, — Held, on 
 
 demurrer, to import a tender or offer by plaintiff of the thing he was 
 to give in exchange. 
 
 8. If persons having several interests in property, enter into a joint con- 
 
 tract with another person in reference thereto, they may be joined as 
 plaintiffs in an action upon the contract, although their interests are 
 several in respect to the property. 
 
 9. An allegation in a complaint that plaintiffs hold certain stock either in 
 
 their own right or in trust, — Held, simply an averment of legal title. 
 
384 Abbott's Select Cases on Code Pleading. 
 
 Marie v. Garrison, 83 N. Y., 14. 
 
 which was sufficient on demurrer, in an action on a contract in 
 reference thereto, and that it did not import a misjoinder. 
 10. The contract being with plaintiffs as individuals, their action may be 
 maintained in their own names, without setting out the trusts or 
 referring to their character as trustees. 
 
 Action for breach of contract. 
 
 Peter Marie and others sued Cornelius K. Garrison (joining 
 Jolm T. Denny as a co-defendant) for breach of contract in 
 regard to the reorganization of a railroad company. 
 
 PlaintifUs claimed that they had held in their own right and in 
 trust for others a large quantity of stock. That Garrison, hold- 
 ing a majority of the third mortgage bonds, brought foreclosure, 
 which some of the plaintiffs and others defended, alleging the 
 invalidity of the bonds. That defendant, as plaintiff in the fore- 
 closure, induced the present plaintiffs to cease defence by gi^'ing 
 them the option of taking his place as purchaser if he should 
 purchase at the sale ; and subsequently they modified this agree- 
 ment so that he should purchase absolutely, reorganize the com- 
 pany and give them a specified quantity of the new stock. But 
 that Garrison caused a third person to purchase and then effected 
 a reorganization and refused to give the stock. 
 
 The allegation of the amended complaint as to the relation of 
 the plaintiff to the cause of action was : 
 
 " 1st. That the plaintiffs above named and the defendant, John 
 T. Denny, at the several times hereinafter mentioned, owned 
 and held, either in their own right or in trust for others, with 
 full power of disposition as hereinafter related, thirty-six thou- 
 sand shares of the capital stock of the Pacific Railroad of Missouri 
 (a corporation duly created and organized under and by virtue of 
 the laws of the State of Missouri) of $100 each, amounting in the 
 aggregate to the sum of $3,600,000, at the par value of said 
 stock." 
 
 It appeared by other allegations unnecessary to recite here, 
 that the alleged contract was made with the plaintiff and Denny 
 jointly. 
 
 The allegation of performance on plaintifi^s' part was : 
 
 " The plaintiffs aver that they and the defendant Denny per- 
 formed and fulfilled all the preliminary obligations in the said 
 
III. Technical Rules. (4) Demurrer. 385 
 
 Marie v. Garrison, 83 N. Y., 14. 
 
 agreement contained and agreed to be performed on their pai't 
 and behalf ; and in consequence thereof said defendant, Garrison, 
 was enabled to procure a judgment and decree of foreclosure," 
 etc., etc. 
 
 The closing allegation of th« amended complaint was : 
 " That the defendant John T. Denny refuses his consent to 
 be joined as a plaintiff, and he is therefore made a party defend- 
 ant in this action." 
 
 The defendant Garrison demurred on these grounds : 
 
 I. That the complaint did not state facts siifficient to consti- 
 tute a cause of action against the defendant. 
 
 II. That it did not appear from the complaint that the plaint- 
 iffs, or either of them, have the legal capacity to sue this 
 defendant, inasmuch as there is no averment showing whether 
 they sued in their own right or in trust for others, nor any 
 authority for suing in trust for others, nor any specific interest 
 in plaintiffs. 
 
 III. That there was a misjoinder of parties plaintiffs, as it did 
 not appear that plaintiifs had any joint cause of action, or any 
 right to unite or anything to authorize the joining of Jacob 
 Cromwell as a plaintiif. 
 
 TV. That there was a defect of parties plaintiff, as, should the 
 complaint be construed as showing that persons other than the 
 plaintiffs and Denny were interested or beneiiciaries, then such 
 others were necessary parties plaintiff. 
 
 The New Yorh Superior Court at Special Term (Spkie, J.) 
 overruled the demurrer, holding (1) that the setting forth 
 several grounds of action on either of which defendant would be 
 liable, is not necessarily stating several causes of action ; here 
 the " subject matter " of the action is the contract, and the 
 " cause of action " is the breach. The common law rules of 
 pleading applicable to a special count are applicable under the 
 Code, viz., that facts, not inferences or evidence, are required, 
 and that a demurrer lies only where defects so substantial and 
 fatal are presented as to authorize saying that, taking all the 
 facts to be admitted, they furnish no cause of action whatever. 
 That a general allegation of performance of conditions precedent 
 
 25 
 
10 
 
 386 Abbott's Select Oases on Code Pleading. 
 
 Marie v. Gari-ison, 83 N. Y., 14. 
 
 is good by § 533, and the allegation that defendant refused to 
 fulfill his said contract and agreement showed a breach, dis- 
 pensed with tender of performance even of a condition 
 precedent, and gave an immediate right of action. 
 
 (2) That want of legal capacity to sue, in the Code grounds of 
 demurrer, does not include the objection that a plaintiff who, 
 as a natural person, is presumed to have capacity to sue, is not 
 the proper plaintiff to sue on this cause of action. 
 
 (3) That no misjoinder of plaintiffs appeared, because when- 
 ever an obligation is undertaken by two or more, or a right 
 given to two or more without words of severance, it is the 
 general presumption of law that it is a joint obligation or right.* 
 
 (4) There was no defect of parties plaintiff, for plaintiffs were 
 trustees of an express trust within Code Civ. Pro., § 449. 
 
 2^he General Term reversed the judgment, holding that the 
 
 complaint did not allege a breach; that the complaint had no 
 
 allegation of the essential fact, that the plaintiffs were ready and 
 
 able to tender, and did tender, performance on their part ; nor of 
 
 -■•^ any excuse for not tendering. 
 
 The Court of Appeals, reversed this judgment. 
 Andrews, J. Special demurrers, as known to the former 
 practice have no place in our present system of pleading. The 
 Code authorizes a denmrrer for specific causes, and no pleading 
 is demurrable unless it is subject to one or more of the objections 
 specified in the section defining the grounds of demurrer. A 
 demurrer to a complaint for insufficiency can only be sustained 
 when it appears that, admitting all the facts alleged, it presents 
 ■1 o no cause of action whatever. It is not sufficient that the facts 
 are imperfectly or informally averred, or that the pleading lacks 
 definiteness and precision, or that the material facts are only 
 argumehtatively averred. The complaint on demurrer is deemed 
 to allege what can be implied from the allegations therein, by 
 reas<inable and fair intendment, and facts impliedly averred are 
 traversable in the same manner as though directly averred (1 
 
 * Otherwise by statute, of instruments creating or transferring estates 
 inland. 1 R. S., 727, M*. Same Stat., 4 R. S. [8 ed.], 2435, § 44 
 
III. Technical Rules. (4) Demurrer. 387 
 
 Marie v. Garrison, 83 N. Y., 14. 
 
 iCliitty's PL, 713 ; Haight v. liolly, 3 Wend., 258 ; Prindle v. 13 
 Caruthers, 15 N. Y., 425). The remedy for indefiniteness is not 
 by demurrer, but by motion (Code, § 546; Seely v. Engell, 13 
 N. Y., 542). " Indefiniteness," says Chitty, " is in general only 
 matter of form " (1 Chitty's PL, 717). The rule by which, 
 under the Code, the sufficiency of a complaint is to be deter- 
 mined is stated by Denio, J., in Zabriskie v. Smith (13 N. Y., 
 330). He says : " It is sufficient that the requisite allegations 
 can be fairly gathered from all the averments in the complaint, 
 though the statement of them may be argumentative, and the 
 complaint deficient in technical language." 
 
 In the light of these rules we proceed to examine the question 
 whether the complaint in this case sets forth a cause of action. 
 It is undoubtedly essential, to sustain the complaint, that it 
 should appear therein that a valid contract was entered into by 
 Garrison, from the breach of which a right of action has accrued 
 to the plaintiffs and Denny. It is insisted on the part of Garrison 
 that the promise upon which the action is based is, so far as the 
 complaint shows, a mere nudum pactum, no valid consideration 
 therefor being averred. The oral agreement of June, 1876, upon J5 
 which the action is brought, is alleged to have been made in 
 consideration of the surrender by the plaintiiis and Denny to the 
 defendant Garrison, of the letter of March 29, 1876, and of their 
 consenting to a modification of the terms of the agreement con- 
 tained therein, and no other consideration is averred or can be 
 gathered from the terms of the substituted agreement. If the 
 contract surrendered was itself a nudejpaot, its surrender formed 
 no valid or legal consideration for the substituted promise. If, 
 on the other hand, it was binding and valid, it needs no citation 
 of authorities to show that its surrender was in law a good con- ^ " 
 sideration for the new agreement. 
 
 Does, then, the complaint show, either directly or by fair 
 inference, a valid consideration for the conditional promise of 
 the defendant Garrison, contained in the letter ? No considera- 
 tion appears in the letter itself. It shows in general terms the 
 situation of the Pacific Railroad Company and the relation of 
 the parties to it; that Garrison was the owner of a majority in 
 amount of the third mortgage bonds of the road, and that the 
 
388 Abbott's Select Cases on Code Pleading. 
 
 Marie v. Garrison, 83 N. Y., 14 
 
 17 parties to whom the letter was addressed were stockholders 
 therein, and that a foreclosure action to foreclose the third mort- 
 gage was pending at the suit of one Ketcham. The letter con- 
 tains, in substance, a promise by Garrison that if he should pur- 
 chase the road on the foreclosure, he would, upon the plaintiffs 
 organizing a successor company within six months after the pur- 
 chase and making the payments and complying with the other 
 conditions speciiied, convey the road to them. He does not bind 
 himself to purchase, but in the event that he does purchase, 
 his undertaking to convey the road on the terms stated is abso- 
 lute. In substance. Garrison agreed, in case he purchased the 
 road, to give the plaintiifs the option to take it upon the terms 
 proposed at any time within six months after such purchase. 
 
 The complaint in its introductory averments sets forth that 
 the plaintiffs and Denny " owned and held, either in their own 
 right or in trust for others with full power of disposition," 
 thirty-six thousand shares of the capital stock of the Pacific Eail- 
 road, of Missouri, of the aggregate par value of $3,600,000 ; that 
 the defendant held $2,200,000 of the $4,000,000 issue of third 
 
 19 mortage bonds, which it is alleged were of doubtful validity, 
 and were claimed by the stockholders to have been fraudulently 
 and collusively issued by the directors of the company, and 
 without the consent of the stockholders, as required by the laws 
 of Missouri ; that the defendant was solicitous to have the bonds 
 adjudicated to be valid, and that a collusive foreclosure suit, in 
 the interest of Garrison and others, was commenced by Ketcham 
 in November, ISYf), to foreclose the third mortgage, and was 
 pending, in which suit the defendant had in April, 1876, been 
 admitted as co-complainant, and had become the principal party 
 
 ^ in prosecuting the same ; that certain stockholders had intervened 
 in the suit and filed an answer and crossbill, alleging collusion 
 and fraud on the part of directors of the road in the issue of the 
 bonds ; that some of the plaintiffs had filed a petition in the fore- 
 closure suit to be made parties, and to be allowed to defend the 
 same in their own behalf, and in behalf of other stockholders ; 
 that the value of the equity of i-edemption in the road was 
 $8,000,000. Following these introductory averments of the com- 
 plaint, are paragraphs five and six, upon which the plaintiffs rely 
 
III. Teohnioal Rules. (4) Demurrer. 389 
 
 Marie v. Garrison, 83 N. Y., 14. 
 
 as containing an averment of a consideration for the defendant's 21 
 promise contained in the letter, as follows : 
 
 " Fifth.— T::h2A on or about the 29th day of March, 1876, with 
 the view of compromising said conflicting claims and establishing 
 the validity of said debt of $4,000,000 in the hands of said Gar- 
 rison (the defendant Garrison) and others of his associate 
 bondholders, and to prevent the plaintiffs from defending said 
 foreclosure suit, and in consideration of the relinquishment by 
 the plaintiffs of all further opposition to said foreclosure suit, the 
 said Garrison, the defendant, entered into an agreement with 
 plaintiffs evidenced in part by a letter written by him to some of "^"^ 
 the plaintiffs and the defendant Denny, a copy of which is 
 hereto attached, marked " A," and the same is made a part of 
 this complaint. 
 
 " Sixth. — The plaintiffs aver that they and the defendant 
 Denny, performed and fulfilled all of the preliminary obligations 
 in the said agreement contained and agreed to be performed on 
 their part and behalf, and in consequence thereof said defendant 
 Garrison was enabled to procure a judgment and decree of fore- 
 closure on or about June 6, 1876, and a, sale of said premises on 23 
 or about the 6th day of September, 1876, which sale was confirmed 
 by the court in the month of October, 1876, viz., October 6, 
 which confirmation was modified October 23, 1876." 
 
 It is not averred that the plaintiffs and Denny agreed to re- 
 linquish their opposition to the foreclosure in consideration of the 
 agreement of Garrison contained in the letter. But the aver- 
 ments contained in the paragraphs quoted do fairly import that 
 in consequence of their relinquishment of such opposition the 
 defendant Garrison was enabled to procure a judgment of 
 foreclosure and sale, and it is averred in a subsequent part of the "' 
 complaint that without their " co-operation and consent a decree 
 of foreclosure and sale would not then have been made, or made 
 at all until after a trial by the court, the result of which trial was 
 in doubt." It is not essential to the existence of a consideration 
 for the defendant Garrison's agreement, that mutuality of 
 obligation should have existed between the parties when his 
 agreement was made. The necessary consideration would arise 
 if the plaintiffs and Denny, in compliance with the proposition 
 
390 Abbott's Select Cases on Code Pleading. 
 
 Mai-ie v. Garrison, 83 N. Y., 14. 
 
 25 in his letter and in consideration of his promise therein, did in 
 fact discontinue their opposition to the foreclosure, although they 
 did not at the time bind themselves to do so. When a defendant 
 has actually received the consideration of an agreement by a 
 voluntary performance of an act by the other party, upon his 
 proposition or suggestion, such performance constitutes a con- 
 sideration which will uphold the defendant's promise. (Sands v. 
 Crooke, 46 N. Y., 564 ; Morton v. Burn, 7 Ad. & El., 25 ; Storm 
 i\ U. S., 94 U. S., 83.) The fair intendment from the allegations 
 of the complaint is that Garrison undertook to do the things 
 promised in his letter, in case the plaintiffs would relinquish the 
 opposition to the foreclosure, and that they did subsequently 
 relinquish their opposition, thereby enabling him to secure 
 judgment of foreclosure. In this view we think the complaint 
 sufficiently averred a consideration for his original promise, and 
 that the surrender of the option to purchase the road, in case it 
 should be bid off by Garrison, was a good consideration for the 
 substituted oral agreement. 
 
 By the substituted agreement. Garrison agreed to bid off the 
 
 27 road on the foreclosure sale and organize a successor company, 
 upon a basis stated in the complaint, and " deliver to said 
 plaintiffs and said Denny, in return for the amount of the stock 
 of the Pacific Railroad, so as aforesaid held by them, thirtj-six 
 thousand full-paid shares of the par value of one hundred dollars 
 each " in the new organization. 
 
 It is claimed that this agreement was illegal on two grounds : 
 First, that it was a collusive arrangement between the parties to 
 establish a fraudulent and invalid debt, and procure a sale of the 
 property of the company thereon, to the prejudice of the other 
 stockholders and creditors ; and second, that the agreement was 
 calculated to prevent competitive bidding between the parties on 
 the foreclosure sale, contrary to the general principles and policy 
 of the law. 
 
 We think that neither of these points is well taken. The 
 complaint does not allege that the third mortgage bonds were in 
 fact fraudulent. It alleges that they were of doubtful validity, 
 and then proceeds to specify various particulars in respect to 
 which it was claimed that they were invalid as before stated. It 
 
III. Teolmical Rules. (4) Demurrer. 391 
 
 Mai-ie v. Garrison, 83 N. Y., 14. 
 
 is not alleged that Garrison was a party to the fraud, if any ex- 29 
 isted, in the issue of the bonds, or that the company did not re- 
 ceive their full value, or that they were not given to secure a 
 valid debt ; nor does it appear that the mortgage debt could not 
 have been enforced in equity against the property of the com- 
 pany. The allegations of the complaint do not justify the 
 inference that the parties were colluding to enforce a fictitious 
 debt against the company, and it is difficult to see what interest 
 the plaintiffs could have had to have united in such a conspiracy. 
 
 In respect to the second ground of alleged illegality it is to be 
 observed that the magnitude of the property involved in the 
 foreclosure would naturally prevent an individual (unless pos- 
 sessed of great wealth) from bidding on the sale. The plaintiffs, 
 who together owned a large number of shares, had a right to 
 enter into any arrangement for the protection of their interest 
 not prohibited by law. This was not the ease of a combination 
 between persons having no prior interest in the property to 
 suppress bidding at a judicial sale for speculative purposes. The 
 arrangement made was, so far as appears, a reasonable and honest 
 attempt on the part of the plaintiffs, to save their property from 31 
 being sacrificed on the foreclosure. The other stockholders and 
 bondholders were at liberty to bid on the sale. The mere 
 fact that an arrangement fairly entered into, with honest 
 motives, for the preservation of existing rights and property, 
 may incidentally restrict competition at a public or judicial sale, 
 does not, we think, render the arrangement illegal. The ques- 
 tion of intent, at all events, is one for the jury, upon the whole 
 facts as they shall appear on the trial. (Marsh v. liussell, 66 
 N. y., 288 ; Phippen v. Stickney, 3 Mete, 384 ; Wicker v. Hop- 
 pock, 6 Wall., 94.) ^2 
 
 The complaint shows that the road on the foreclosure sale was 
 purchased for the defendant Garrison in the name of a third 
 party, and that he subsequently organized a new company. The 
 complaint then alleges, " that although often requested so to do, 
 the said Garrison has refused aud does refuse to fulfill his said 
 contract with the plaintiffs, and to issue or to cause to be issued 
 and be delivered to the plaintiffs thirty-six thousand shares of 
 stock in said (new) company, in exchange for the stock of the 
 
392 Abbott's Select Cases on Code Pleading. 
 
 Marie v. Garrison, 83 N. Y., 14. 
 
 ,33 Pacific Railroad, so as aforesaid held by the plaintiffs." It is 
 claimed that the complaint is defective, for the reason that it 
 shows no offer, readiness or even ability to surrender the thirty- 
 six thousand shares of old stock in exchange for the new shares. 
 This objection is unanswerable, unless a tender of the old shares 
 is implied in the averment of the refusal of Garrison to issue 
 the new shares in exchange for the stock of the old company 
 held by the plaintiffs. Bearing in mind that what is implied in 
 an averment is on demurrer to be taken as if the thing implied 
 is directly averred, and that an argumentative pleading is not 
 for that reason demurrable, we conclude, although not without 
 some hesitation, that an averment of a refusal to exchange does 
 import that the other party offered to do that without which no 
 exchange could be affected, viz., that he tendered the property 
 or thing which was the consideration of that which he was to re- 
 ceive, and which he called on the other party to deliver. 
 
 It is made a separate ground of demurrer that there is a mis- 
 joinder of parties plaintiffs. This is one of the grounds of 
 demurrer under the new Code (§ 448). This objection is predi- 
 S.") Gated in part upon the general rule that parties whose interests 
 are divided, distinct arid several, cannot unite as plaintiffs, and 
 it is asserted that the interests of the plaintiffs under the con- 
 tract sued upon were several and distinct within the rule stated. 
 
 We concur in the view of the defendant's counsel that the 
 rational construction of the pleader's allegation in the introduc- 
 tory clause of the complaint, that the plaintiffs and Denny 
 " owned and held, either in their own right or in trust for 
 others," the thirty -six thousand shares, etc., is that they held 
 shares distributively and severally aggregating that number, 
 one or more holding their shares individually, and one or more 
 holding shares in trust, or that one or more, or each, held shares 
 both individually and in trust. But we think it does not follow 
 from the individual or several ownership by the plaintiffs of the 
 shares in the old company, that their interest in the contract 
 with Garrison was several and not joint, or that Garrison's con- 
 tract was with the plaintiffs severally and distributively. 
 
 There seems to be no difficulty, in the nature of things, in the 
 plaintiffs, as owners of distinct and several shares of stock in the 
 
III. Teehnical Rules. (4) Demurrer. 393 
 
 Marie v. Garrison, 88 N. Y., 14. 
 
 same company, uniting and combining their shares in one aggre- 37 
 gate for the purpose of sale as an entire property to one person, 
 and taking from him a promise to pay them jointly a gross sum 
 equal to their aggregate interests, leaving them, as between them- 
 selves, to arrange the distribution of the fund which shall be 
 derived from the sale. The circumstances of this case show that 
 sucli an arrangement may be of great practical convenience, and 
 we know of no peremptory rule of law which forbids it. The 
 promise of Garrison was, in form, a promise to the plaintiffs 
 jointly. He entered into no undertaking to transfer to each 
 plaintifE shares corresponding with the shares held by him in the 
 ■old company. His promise was on receiving them from the 
 plaintiffs, as an aggregation of individuals, thirty-six thousand 
 .shares, to give tliem in exchange thirty-six thousand other shares. 
 The shares to be transferred by them to Garrison, and by Garri- 
 son to the plaintiffs, were to be transferred in solido. The legal 
 interest of the plaintiffs in the contract was joint, although their 
 interest in the shares to be transferred by Garrison or in the 
 damage which may be recovered may be unequal and separable. 
 The construction of the contract is, we think, precisely the same 39 
 as if the plaintiffs had been joint owners of the shares when the 
 contract was made. (See Emery v. Hitchcock, 12 Wend., 156 ; 
 Loomis V. Brown, 16 Barb., 331 ; 1 Pars, on Coat., 19, and cases 
 in note.) 
 
 It is also claimed that there is a misjoinder of causes of action 
 in behalf of trustees, with causes of action in favor of individuals, 
 and also that the complaint is defective in not setting forth 
 the trust under which the trust shares were held. But the aver- 
 ment in the complaint that the shares were held by the plaintiffs 
 either in their own right or in trust, is an averment simply of 
 legal title of the plaintiffs to the shares mentioned. The action 
 is not an action by trustees to enforce a trust, or upon a contract 
 made by the plaintiffs in a representative character. The con- 
 tract is with the plaintiffs as individuals, and we are of opinion 
 that an action may be maintained thereon by them in their own 
 names, without setting out the trust or referring to their char- 
 acter as trustees. At least it cannot appear on demurrer that the 
 plaintiffs are not entitled to maintain the action in their individ- 
 
394 Abbott's Select Cases on Code Pleading. 
 
 Johnson v. Golder, 132 N. Y., 116. 
 
 41 ual capacity. (See Merritt v. Seaman, 6 N. Y., 168 ; Melleri «. 
 Hamilton F. Ins. Co., 17 id., 615 ; 1 Chitty's PL, 3.) 
 
 Our conclusion is that the demurrer was properly overruled at 
 the Special Term. It must be admitted that the complaint is 
 indefinite and argumentative, and that material facts are obscurely 
 averred, but we think that it is not defective in substance within 
 the rules by which the sufficiency of pleadings on demurrer is 
 tested. 
 
 The judgment of the General Term should be reversed and 
 ^" the judgment of the Special Term affirmed, with leave to the 
 defendant to answer on payment of costs. 
 
 All concurred, except Finch, J., taking no part. 
 
 Judgment accordingly. 
 
 JOHNSON V. GOLDEE. 
 
 JVew York Court of Aj>peals, Second Division, 1892. 
 [Reported in 133 N. Y., 116.] 
 
 1. A demurrer will not be sustained if the reasonable and fair inferences 
 
 which can be drawn from the allegations of the pleading demurred to, 
 make out a case. 
 
 2. Thus, from an averment of the death of J. in 1880, leaving a last will 
 
 and testament which was duly probated February 13, 1880, the court 
 will infer in support of the complaint that J. died before such probate. 
 
 3. It seems, that if a more precise statement was desired, the defendant 
 
 should have moved that the complaint in this particular be made 
 more definite and certain. 
 
 Demurrer to complaint for insufficiency. 
 
 The Special and General Terras of the City Court of BrooTdyn, 
 sustained the demurrer without passing, however, upon the point 
 presented in the opinion of the Court of Appeals. 
 
 The Court of Appeals reversed the judgment. 
 
 FoLj,ETT, Ch. J. It is urged in behalf of the demurrant that it 
 does not appear upon the face of the complaint that James M. John- 
 son was the owner of the fee of the mortgaged premises and a neces- 
 sary party to the action begun by Bates, May 19, 1880, to foreclose 
 
III. Technical Rules. (4) Demnrrer. 395 
 
 Masterson v. Townshend, 133 N. Y., 458. 
 
 the first mortgage, because it is said that it is not alleged that 
 Nanette Pontau Johnson was then dead. It is averred in the 9th 
 subdivision of the complaint that she died in 1880, leaving a last 
 will and testament, which was duly probated February 13, 1880, 
 under which James M. Johnson, as it is alleged, acquired the fee 
 of the land, subject to the amount due upon the mortgage of 
 April 27, 1854, foreclosed by Bates. The death of Mrs. Johnson 
 in 1880, is alleged in positive terms, and the only inference 
 which can be drawn from the averment that the will was pro- 
 bated prior to the date when the first foreclosure action was be- 
 gun, is that the testatrix died before that time, and this is the 
 reasonable and fair inference to be inferred from the allegation. 
 This alleged defect would have been barely a suflBcient ground 
 to support a special demurrer under the practice existing prior 
 to the Codes, but under the present practice, if a more precise 
 statement was desired, the defendant should have moved that 
 the complaint in this particular be made more definite and cer- 
 tain. (Marie v. Garrison, 83 E". Y., 14 ; Lorillard v. Clyde, 86 
 id., 384; Milliken v. Western U. T. Co., 110 id., 403.) 
 
 \A ruling on another question is here omitted.^ 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 MASTERSOlSr v. TOWNSHEND. 
 
 Wew York Court of Appeals, 1890. 
 [Reported in 123 N. Y., 458.] 
 
 A demurrer does not admit a legal conclusion, nor the adversarj-'s 
 interpretation of a document jjleaded by him, but only such relevant 
 facts as are well pleaded. 
 
 In order that the complaint in ejectment show plaintiff's right to th& 
 possession of the premises in question and to the relief demanded, it 
 must disclose, on its face, such a state of facts that their admission 
 by a demurrer would leave but the legal conclusion to be drawn in his 
 favor. 
 
 In the construction of a testamentary disposition, where the language 
 is unskillful, or inaccurate, but the intent can be clearly collected from 
 the writing, it is the duty of the court to give effect to that intent,, 
 subject only to the proviso that no rule of law is thereby violated. 
 
396 Abbott's Select Cases on Code Pleading. 
 
 Masterson v. Townshend, 123 N. Y., 458. 
 
 4. This rule applied, holding that a testamentary provision, stated at 
 length in the complaint, contained a devisp by implication to P.; and 
 that it was error to overrule a demurrer to plaintiff's complaint 
 wherein he alleged a failui-e to devise and a, reversion to himself as 
 heir at law, under such testamentary provision. 
 
 1 Action of ejectment. Demnrrer for insufficiency. The facts 
 necessary to the decision fully appear in the opinion. 
 
 At the Special and General Terms of the Superior Court, the 
 complaint was held sufficient. 
 
 The Court of Appeals reversed the judgment. 
 Geay, J. In order that plaintiff's right to the possession of 
 the premises in question and to the relief he demands shall 
 
 2 appear well founded in law, his complaint must disclose, on its 
 face, such a state of facts as that their admission by the defend- 
 ant's demurrer would leave but the legal conclusion to be drawn 
 in his favor. For some undisclosed reason, the case below was 
 treated and disposed of as though by the demurrer the allega- 
 tions of the complaint, as to the legal conclusion of a title and 
 interest in the plaintiff, were substantially admitted, and the 
 testamentary devise, which lies at the foundation of plaintiff's 
 
 o claim of title, apparently went without interpretation, or consid- 
 eration. To the defendant's contention here, that the heirs at 
 law of testator have taken no title under the devise in question, 
 the plaintiff replies that they are precluded from occupying that 
 position, inasmuch as " all the allegations of the complaint are 
 admitted by the demurrer." Of course, there is nothing in such 
 a reply, for by the demurrer no admission is made save as to 
 such relevant facts as were well pleaded. There could be no 
 admission by that pleading of any legal conclusions, or of any 
 ^ interpretation placed by the plaintiff upon the devise. 
 
 The question, therefore, presents itself as to what was the 
 effect of the devise upon the title to the real estate of which the 
 testator died seized. 
 
 The devise is stated at length in the complaint, in the follow- 
 ing words : 
 
 " Third. I hereby devise and convey all my undivided one-half 
 interest in the lot of land and appurtenances situate on the corner 
 
III. Technical Rules. (4) Demurrer. 397 
 
 Masterson v. Townshend, 123 N. Y., 458. 
 
 of Fifty-fourth, street and Seventh avenue in the city of New 
 York now owned by me and my brother, Peter Masterson, jointly 
 in trust to my said executor to collect the rents, issues and profits 
 of the same and pay over six hundred dollars thereof to my wife 
 so long as she remains unmarried, and the balance of said rents 
 and profits my executors shall pay to my said brother, Peter 
 Masterson, but if, in the discretion of my said brother and my 
 said executor, it should be deemed advisable to sell said real 
 estate, then my said executor is hereby authorized to unite in a 
 sale of said premises, and is hereby empowered to execute all 
 needful conveyances for that purpose, and from the proceeds of 
 such sale pay to my wife the sum of six hundred dollars annually 
 as long as she remains unmarried, and upon her marriage, or 
 death before marriage, then all of said proceeds are to be paid to 
 my brother, Peter Masterson." 
 
 As the widow has remarried, the argument of the plaintifl: is 
 that the trust created by the will thereupon ceased, and that 
 there was no testamentary disposition made of this estate after 
 the happening of that event. He claims, therefore, that it has 
 reverted to the heirs of the testator, of whom he is one. In that 
 view we are unable to agree with him. 
 
 This is a plain case of a devise by implication, whereby, upon 
 the death of testator, his brother Peter became vested with the 
 title to the real estate, subject, only, to the trust provision made 
 for testator's widow. However incomplete the language to ex- 
 press the purpose of the testator, an intention and an understand- 
 ing on his part are evident that his brother Peter should take, as 
 devisee, the property which was the subject of disposition in that 
 clause. What the testator has imperfectly done, by way of ex- 
 pression, is effectuated by the application of well known legal 
 rules. In the construction of a testamentary disposition, where 
 the language is unskillful, or inaccurate, but the intent can be 
 clearly collected from the writing, it is the duty of the court to 
 give effect to that intent, subject only to the proviso that no rule 
 of law is thereby violated. (1 K. S. 748, § 2 ; Purdy v. Hayt, 92 
 N. Y., 454.) Courts have, from an early day, repeatedly upheld 
 devises by implication, where no gift of the premises seems to 
 have been made in the will, in formal language. (Goodright v. 
 
398 Abbott's Select Cases on Code Pleading. 
 
 Masterson v. Townshend, 123 N. Y., 458. 
 
 9 Hoskins, 9 East, 306 ; Jackson v. Billinger, 18 Johns., 368 ; 
 Matter of Vowers, 113 IST. Y., 569.) 
 
 They are justified in so doing whenever such a construction 
 expresses what the testator manifestly intended to express. The 
 presumption here of a devise to Peter by implication is so well 
 founded, as to make it one which is free from doubt in the mind. 
 The facts, which are disclosed to us, combine to raise it. There 
 is the gift of all of the rents and the profits of the land to the 
 testator's brother, after the widow's annuity is paid. There is a 
 gift to the brother of all the proceeds of a sale of the property, 
 beyond what is required for the payment of the widow's annuity. 
 Though testator left other brothers and sisters, there is no' men- 
 tion made of them. There is the further significant circumstance 
 that some power over the disposition by sale of the land is given 
 to Peter. It is true that it is an authority only to advise, or to 
 consent in the execution of the power of sale by the executor ; 
 but when we consider that fact, in connection with the fact that 
 a sale would result in vesting in him the proceeds beyond any 
 cavil and doubt, an inference arises, and one which seems irresist- 
 
 11 ible to my mind, that the testator supposed it of no consequence 
 to his brother's interests, whether the estate remained intact, or 
 was converted into money. The case is one where the presump- 
 tion is independent of conjecture. It rises beyond a mere sur- 
 mise, for it is based on circumstances which leave no hesitation 
 in the mind of the court as to what was tne testator's purpose. 
 The formal words of a devise to Peter may be absent, but it is 
 perfectly clear that it was the intention to devise the land, and 
 that would be consistent with the expressed gift of the proceeds 
 of a sale. The rule of construction being satisfied by the pres- 
 ence of the elements establishing a presumption, the courts must 
 read into the clause a devise of the land to the brother, subject 
 to the trust provision for the widow. The power of sale does 
 not affect the question of Peter's rights, other than to emphasize 
 them. In the event of its execution, the testator gives to Peter 
 all of the proceeds of the sale, not required to pay to his wife $600 
 annually during her life or widowhood. Nothing could more 
 strongly evidence a condition of mind, in which the testator be- 
 lieved his brother Peter would receive all of the estate, subject 
 
III. Technical Rules. (4) Demurrer. 399 
 
 Smith V. Holmes, 19 N. Y., 271. 
 
 to the widow's provision, and whether it remained in the shape 13 
 of realty, or was converted into money, than does this language 
 of the clause. 
 
 The judgments recovered by the plaintiff should be reversed 
 .and a judgment entered dismissing his complaint, with costs. 
 
 All the judges concurred. 
 
 Judgment accordingly. 
 
 SMITH V. HOLMES. 
 
 New York Court of Appeals, 1859. 
 [Reported in 19 N. Y., 271.] 
 
 1. On demurrer the proof of service of summons is no part of the record, 
 and cannot be referred to to fix the time of commencing the action in 
 aid of a demurrer on the ground that it was prematurely brought. 
 
 '2. The objection that the action was premature, if it does not affirma- 
 tively appear on the face of the complaint, must be taken by answer. 
 
 ■3. A complaint which shows that something is due and payable is in that 
 respect good as against demurrer for insufficiency. 
 
 4. Thus a complaint seeking to recover both principal and interest, which 
 shows that interest is in default, is not demurrable although showing 
 that the principal is not yet recoverable. 
 
 Action on a bond. 
 
 The complaint alleged with some detail that on February 15, 
 1853, the parties agreed upon the sale of a farm by plaintiff to 
 ■defendant, possession to be given April 1, 1853 ; a speciiied sum 
 to be paid in cash on or between May 6th to 10th, inclusive, at 
 the time of which payment plaintiff was to give deed, and 
 defendant to give a bond and purchase money mortgage, 
 '-payable in two years from the said 1st day of April, with 
 annual interest." That pursuant to the agreement plaintiff gave 
 possession and defendant made the part payment, and executed 
 and delivered the bond and mortgage. The complaint then set 
 out the bond, which was of a comnlon form, dated May 10, 1853, 
 and by the condition therein provided for the payment in these 
 words : "The just and full sum of $14,816.11 in two years from 
 the first day of April last, with annual interest." 
 
400 Abbott's Select Cases on Code Pleading. 
 
 Smith V. Holmes, 19 N. Y., 271. 
 
 It concluded thus: "And the plaintiff further says that he is 
 now the holder and owner of said bond and that the interest for 
 one year is now justly due thereon, and that no part thereof has 
 been paid. 
 
 Whereupon, the plaintiff demands judgment against the 
 defendant for $1,037 ^V^ with interest from the first day of 
 April, 1854." 
 
 The defendant demurred on the ground that the complaint 
 did not state facts sufficient to constitute a cause of action. 
 
 Neither the summons, complaint nor demurrer were dated. 
 It appeared by the appeal book that the issue of law raised by 
 the demurrer was tried in the Supreme Court June 12, 1854. 
 
 The Supreme Court overruled the demurrer. 
 
 The Court of Appeals affirmed the judgment. 
 
 Johnson, Ch. J. ISTeither the summons nor complaint show 
 when the action was commenced. The sheriff's certificate of the 
 service of the summons is evidence of the fact, and of the time 
 when the service was made ; but it is not a part of the record 
 before the court upon demurrer. Indeed, it is not a necessary 
 part of the record of judgment in any case where the defendant 
 has answered the complaint (Code, §§ 281, 246), either by 
 answer or demurrer. Under the former system of pleading, 
 the declaration was always entitled of a term, or as of some 
 particular day, and if from the declaration it appeared that the 
 cause of action had not then accrued, it was good ground of 
 demurrer. (Maynard v. Talcott, 11 Barb., 569.) But as no such 
 title is now necessary a demurrer is not the mode of raising a 
 question of that sort. If such an objection exists in any case, it 
 should be brought up by answer, and then it will be available to 
 the party on the trial if the fact be made out. 
 
 The bond in this case is dated May 10, 1853, and is conditioned 
 to be void if the obligor pay the sum therein mentioned " in two 
 years from the first day of April [then] last, with annual interest." 
 The demurrer was tried June'l3, 1854. If, therefore, anything 
 was due at that time on the bond, the plaintiff was entitled to 
 judgment. The precise amount due was not bro\ight in question 
 by the demurrer ; that only presents the inquiry whether any- 
 
III. Teohnieal Mules. (4) Demurrer. 401 
 
 Nones v. Hope Mut. Life Ins. Co., 5 How. Pr., 96. 
 
 thing was due. Now, whether interest was to be computed 
 from May 10, 1853, or from the first day of April, 1853, it is 
 quite clear that the requirement of annual interest could not be 
 satisfied by the payment of principal and interest, when the 
 principal should become due. 
 
 The obvious import of the language employed is that an 
 annual payment of interest is to take place, and whether that 
 became due on the 1st of April, or the lOth of May, 1854, is 
 immaterial, as the case is here presented. 
 
 The judgment at General Term should, therefore, be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 NONES V. THE HOPE MUTUAL LIFE INS. CO. 
 
 New Yorlx Supreme Court, General Term, 1860. 
 [Reported in 5 How. Pr., 96.] 
 
 1. It seems, the meaning of tliat clause of § 144 of the Code of Procedure 
 
 [Code Civ. Pro., §488, subd. 1] giving- the defendant the right to demur 
 ^vhen it appears on the face of tlie complaint " that the court has not 
 jurisdiction of the person of the defendant" is, that the person is not 
 subject to the jurisdiction of the court, and not that the action has 
 not been regularly commenced. 
 
 2. If the action has not been regularly commenced, the defendant must 
 
 relieve himself from such irregularity by motion ; on such fact being- 
 made known to the court it will set aside all proceedings founded 
 upon such irregular service.* 
 
 3. An answer setting up that the summons has been irregularly , served 
 
 upon defendant, a foreign corporation, presents no defense to the 
 complaint and will be stricken out on motion as frivolous. 
 
 Edwards, J. The defendant in this suit is a foreign corpora- 1 
 tion created by the law of the State of Connecticut — this fact is 
 set forth in the comjalaint. 
 
 It appears in the case that the defendant, after having given 
 notice of appearance and of the retainer of an attorney of this 
 court, put in an answer, in which it is alleged that the company 
 is a foreign corporation, and that this suit was commenced by a 
 
 * In some jurisdictions the objection may be taken by plea or answer. 
 36 
 
402 Abbott's Select Cases on Code Pleading. 
 
 Nones v. Hope Mut. Life Ins. Co., 5 How. Pr., 96. 
 
 summons and complaint served on the president of the company, 
 in the city of New York, and not elsewhere ; and that no other 
 process had been served on the company, and that no warrant of 
 attachment had been issued, or other proceedings taken against 
 the company at the commencement of the suit; and that by 
 reason thereof this court has not acquired jiirisdiction over the 
 defendant, and cannot take cognizance of the subject of this suit. 
 
 The question presented to us is whether the matter thus set 
 up on the part of the defendant is a sufficient answer to the 
 complaint. 
 
 It is provided by § 144 of the Code of Procedure [Code Civ. 
 Pro., § 488] that the defendant may demur to the complaint when 
 it shall appear upon the face thereof that the court has no jwis- 
 diction of the person of the defendant. And by § 147 [Code 
 Civ. Pro., § 498] it is provided that when such matter does not 
 appear upon the face of the complaint, the objection may be 
 taken by answer. {The court then adverted to the question, 
 whether under the peculiar provisions of the original " Code of 
 Procedure" the siommons ivas duly served*, and continued thus ;] 
 With the view which we have taken of the case,- we do not 
 consider it necessary to express any opinion upon this question ; 
 for, assuming that the service was irregular, it does not follow 
 that the facts set up in the answer furnish a sufficient defence to 
 the complaint. 
 
 It will be observed that the answer is founded upon that 
 section of the Code which provides that where the court has no 
 jurisdiction of the person of the defendant, the objection may be 
 taken by answer,' but the objection taken here is not that the 
 court has no jurisdiction of the person of the defendant, but that 
 the summons had been irregularly served. There is no question 
 that this court has jurisdiction over a foreign as well as a 
 domestic corporation. The statute expressly gives it. and declares 
 how process may be served upon it. It is true, that in one sense 
 the court never gets jurisdiction over a party, unless he is 
 regularly served with process ; that is, if process has been 
 irregularly served, on that fact being made known to the 
 court it will declare such service irregular, and will set aside all 
 
 *The point is now explicitly regulated by Code Civ. Pro., § 432. 
 
III. Technioal Rides. (4) Demurrer. 403 
 
 Phoenix Bank v. Donnell, 40 N. Y., 410. 
 
 proceedings founded upon it. Thus, the Code provides in 
 section 134, subd. 4, that in all other cases than those particularly 
 mentioned therein, the summons shall be served by delivering a 
 copy to the defendant personally. But suppose that in the case 
 provided for in subd. 4, the copy of the summons instead of being 
 served personally should be delivered at the defendant's house 
 or left at his place of business, will it be contended that such 
 fact could be set up in an answer by way of objection to the com- 
 plaint on the ground that the court has no jurisdiction of the 
 person ? And yet that would be a case precisely analogous to the 
 one before us. The meaning of the clause " that the court has 
 no jurisdiction of the person " is, that the person is not subject 
 to the jurisdiction of the court, and not that the suit has not 
 been regularly commenced. If the suit has not been regularly 
 commenced the defendant must relieve himself from such irregu- 
 larity by motion. 
 
 With these views we are of opinion that the appeal should be 
 dismissed ; with leave, however, to the defendant to answer anew 
 upon the merits within twenty days, upon payment of the costs 
 and disbursements herein, subsequent to the answer. 
 
 PHCElsriX BANK v. DONNELL. 
 
 New York Court of Appeals^ 1869. 
 
 [Reported in 40 N. Y., 410 ; aff'g- 41 Barb., 571.] 
 
 1. To sustain a demurrer on the ground that plaintiff has not legal 
 capacity to sue, the want of capacity must aflSrmatively appear on the 
 face of the complaint. The omission to allege plaintiff's incorporation 
 does not sustain that ground of demurrer.* 
 
 - Whether thie rule is now changed see Code Civ. Pro., §§ 1775, 1776. 
 
 §1775. Complaint inactions bv or against corporations. "Inan action brought by or against 
 a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, 
 is a corporation ; must state whether it is a domestic corporation or a foreign corporation ; and, 
 if the latter, the state, country, or government, by or under whose laws it was created. But the 
 plaintiff need not set forth, or specially refer to any act or proceeding by or under which the 
 corporation was created." 
 
 § 1776. When proof of incorporation needed. "In an action brought by or against a corpora- 
 tion, the plaintiff need not prove, upon the trial, the existence of. the corporation, unless the 
 answer is verified and contains an aflfirmative allegation that the plaintiff, or the defendant, as 
 the case may be, is not a corporation." 
 
 See also the case following. 
 
404 Abbott's Select Cases on Code Pleading. 
 
 Phoenix Bank v. Donnell, 40 N. Y., 410. 
 
 3. In an action by a plaintiff, suing in a corporate name, demurrer on the 
 ground that the complaint does not state facts sufficient to constitute 
 a cause of action, does not raise the objection that the plaintiff has 
 not alleged the fact of its incorporation ; for such an objection points 
 to the capacity to sue, not to the cause of action. 
 
 The introduction of the complaint was : 
 
 " The Phoenix Bank of the city of ISTew York, plain tiflfs in the 
 above-entitled action, respectfully show to the Supreme Court : " 
 
 [The complaint then alleged the making of a promissory note 
 hy defendant, its subsequent indorsement hy the payees named, 
 ' and its delivery to plaintiffs. There was no averment of plaint- 
 iff^s incorporation.'] 
 
 The defendant demurred, assigning as grounds : 
 
 1. That it appeared by the complaint that the plaintiff had not 
 legal capacity to sue. 
 
 2. That it did not appear that the plaintiff was incorporated, 
 and entitled to sue. 
 
 That the complaint did not state facts sufficient to constitute a 
 cause of action. 
 
 The Supreme Court at Special Term (Leonard, J.) overruled 
 
 3 the demurrer and ordered judgment for the plaintiff with costs, 
 with leave to the defendant to answer in ten days, on payment 
 of costs. 
 
 Judgment was entered accordingly in favor of the plaintiff for 
 $1,865.93. 
 
 The General Term affirmed the judgment; holding that inca- 
 pacity did not appear on the face of the complaint ; that imder 
 the Revised Statutes then in force (2 R. S., 458, § 3) it was not 
 
 4 necessary for a corporation plaintiff to prove the existence of 
 such corporation unless the defendant shall have pleaded, in 
 abatement or in bar, that the plaintiffs are not a corporation. 
 
 That the complaint need not aver any fact which it is unnec- 
 essary for the plaintiff to prove in order to maintain his action. 
 An express allegation that the plaintiffs are not a corporation 
 must be in the answer, in order to raise the question ; the issue 
 cannot be raised by a negative of the allegation in the complaint. 
 
III. Technioal Rules. (4) Demurrer. 405 
 
 Phoenix Bank v. Donnell, 40 N. Y., 410. 
 
 The Court of Appeals affirmed the judgment. 
 
 Geovee, J. Section 114 of the Code [of Procedure] provides 
 that the defendant may demur to the complaint when it shall 
 appear upon the face thereof that there is one or more of six 
 specified defects therein. It is settled that these are the only 
 grounds upon which a demurrer to the complaint can be sus- 
 tained. The counsel for the appellant relies in the present case 
 iipon the second and sixth — principally upon the second — for 
 the reason that the complaint contains no allegation that the 
 plaintiii is a corporation ; insisting that unless it is such, it has 
 no capacity to sue in that character. 
 
 In this position the counsel is correct ; but does the argument 
 show that the demurrer is well taken ? All that the argument 
 proves, is that the complaint does not show upon its face, affirma- 
 tively, that the plaintiff has capacity to sue. But to sustain the 
 demurrer, the Code requires that it should appear upon its face 
 that it had not such capacity, which in no respect appears. For 
 aught appearing on the face of the complaint, the plaintiff may 
 be a corporation entitled to sue as such. § 147 provides, that 
 when any of the matters enumerated in § 144 do not ajjpear upon 
 the face of the complaint, the objection may be taken by answer. 
 This would seem to indicate the proper practice with sufficient 
 clearness. If it appears upon the face of the complaint, that a 
 plaintiff suing as a corporation is not such in fact, a demurrer is 
 the proper remedy of the defendant under § 144. If the com- 
 plaint does not show that the plaintiff is not a corporation on its 
 face, the objection that it is not such must be taken by answer, 
 under § 147. This would seem to render further discussion of 
 the question annecessary. 
 
 Upon looking into the authorities, some conflict will be found. 
 The counsel for the appellant cites a number of cases, holding 
 that allegations showing that plaintiff is a corporation are neces- 
 sary in the complaint. Most of these are cases arising under the 
 system of pleadings in use prior to the enactment of the Code. 
 Under that system, although cases may be found intimating a 
 contrary doctrine, yet the decided weight of authority is that 
 such averments were necessary, and that the want thereof could 
 be taken advantage of by demurrer. But these authorities have 
 
406 Abbott's Select Cases on Code Pleading. 
 
 Phoenix Bank v. Donnell, 40 N. Y., 410. 
 
 9 no application to the question under the Code. There are a few 
 cases in which similar opinions have been expressed since the 
 Code. (Stoddard v. The Onondaga Annual Conference, 12 Barb., 
 573 ; Elizabethport Mfg. Co. v. Campbell, 13 Abb., 86.) In 
 some cases the contrary has been held. (Union Ins. Co. v. 
 Osgood, 1 Duer, 107 ; Kennedy v. Colton, 28 Barb., 59.) In 
 Bank of Havanna v. Magee, Denio, J., in giving the opinion of 
 the court, speaking of a complaint precisely like that in the 
 present case in this respect, says : But there was not here any 
 defect on the face of the complaint. For aught that appeared, 
 the plaintiff was a corporate body. This indicates clearly the 
 view of the learned judge upon the point under consideration, 
 although it was not directly involved in that case. The weight 
 of authority under the Code is against sustaining the demurrer 
 upon this ground. 
 
 The appellant's counsel insists that if the demurrer is not 
 sustainable upon the second ground specified in section 144, it is 
 upon the sixth. In this, the counsel is in error. That relates 
 only to the statement of facts constituting the cause of action. 
 11 If this statement fails to show a right of action, then a demurrer 
 on this ground may be interposed. But it has no application to 
 the capacity of the plaintiff to sue or to the other grounds of 
 demurrer specified. Each of these is to be determined by itself 
 in like manner as were the grounds of a special demurrer under 
 the former practice. The judgment appealed from must be 
 afiirmed with costs. 
 
 Hunt, Ch. J., Mason, Lott and Daniels, JJ., concurred with 
 Geover, J., for atfirmance. 
 
 WooDEDFF, J., thought that legislation, either special or gen- 
 eral, was necessary always to give an artificial body authority to 
 sue. And, therefore, where there is no allegation of incorpora- 
 tion in an action by such a body, in the complaint, there does 
 appear on the face of the pleading substantially a want of capacity 
 to sue. He was therefore for reversal. 
 
 James, J., was for reversal upon the same ground. 
 
 Judgment affirmed. 
 
III. Tedinical Rules. (4) Demurrer. 407 
 
 Harmon v. Vanderbilt Hotel Co., 79 Hun, 392. 
 
 HARMON V. VANDERBILT HOTEL CO. 
 
 New York Supreme Court, General Term, Second Department, 
 
 1894.. 
 
 [Reported in 79 Hun, 393.] 
 
 1. The omission to state, in a complaint in an action by or against a cor- 
 
 poration, whether it is domestic or foreign, and, if foreign, in what 
 jurisdiction incorporated, as required by Code Civ. Pro., § 1775, is not 
 a ground of demurrer. 
 
 2. The incorporation of a party as showing its capacity to sue or be 
 
 sued, is not a part of the cause of action, and the remedy for the 
 omission of the statement required by that section should be sought 
 by motion. 
 
 CuLLEN, J. This is an appeal from an interlocutory judgment 
 entered upon an order sustaining a demurrer to tlie plaintiff's 
 complaint. Tlie objection taken to the complaint is, that while 
 it states that the defendant is a corporation, it fails to state 
 whether it is a domestic or foreign corporation, and, if foreign, 
 under the laws of what sovereignty incorporated. 
 
 That the complaint is defective in failing to make such an 
 averment, which is required by section 1775 of the Code, cannot 
 be doubted. But the question here involved is, whether such 
 defect is ground for demurrer or the subject of motion. It has 
 been the subject of numerous conflicting decisions in this court 
 and in the superior city courts. The exact point has not been 
 determined by the Court of Appeals or passed on in this General 
 Term. We are, therefore, at liberty to decide it as a new 
 question. 
 
 The grounds of demurrer are speciiied by section 488 of the 
 Code. The only specified ground under which the demurrer in 
 this case can be brought is that the complaint fails to state facts 
 sufficient to constitute a cause of action, for the cause of action 
 arose in this State, and, even if the defendant were a foreign 
 corporation, the court would have jurisdiction of the subject of 
 the action. 
 
 The cause of action is the facts which constitute the grounds 
 of the claim against the defendant. In Fox v. The Erie Pre- 
 serving Company (93 IST. Y., 54) it is said : " The allegation that 
 
408 Abbott's Select Cases on Code Pleading. 
 
 Goddard v. Benson, 15 Abb. Pr., 191. 
 
 the defendant is a corporation is no part of the cause of action, 
 but simply relates to the character or capacity of the defendant." 
 This dictum is not oiiter, as suggested, but strictly in point to 
 the question involved in that case. It is true that the provisions 
 of section 1775 of the Code were not under consideration in that 
 case, and that the provision of that section, that the complaint 
 shall state the character of the corporation, is mandatory. But 
 section 481 is equally mandatory that the complaint shall specify 
 the place of trial and the names of all the parties. For defects 
 in these respects it is settled practice that demurrer will not lie, 
 but that the remedy is by motion. If the complaint stated 
 erroneously the character of the defendant, whether a domestic 
 or foreign corporation, it would not affect the right of the 
 plaintiff to recover. We do not see that an allegation can be 
 deemed part of a cause of action, the successful controversion of 
 which cannot defeat the action. 
 
 The order appealed from should be reversed, with costs, and 
 judgment given for plaintiff on demurrer, with costs, with leave 
 to defendant to answer within twenty days on the payment of 
 such costs. 
 
 Bkown, p. J., and Dykman, J., concurred. 
 
 Judgment and order reversed, with costs, and judgment given 
 for plaintiff on demurrer, with costs, with leave to defendant to 
 answer in twenty days on payment of such costs. 
 
 GODDARD V. BENSON. 
 
 I^evj Yoric Common Pleas, General Term, 186Q. 
 
 [Reported in 15 Abb. Pr., 191.] 
 
 1. A demurrer lies to a supplemerrtal pleading-. 
 
 3. To render a former adjudication a bar, it must appear that tlie litigation 
 was between tlie same iDarties or their privies. 
 
 3. By privies are meant persons who are represented by the parties, and 
 
 who claim under them or in privity witli tliera, wlio have mutual or 
 successive relationship to the same right or thing-. 
 
 4. A defence that in aa action by one K. against plaintiffs, they setup the 
 
 same mattei- and cause of action, and that K. had verdict and judg- 
 ment, — Held, bad, as not showing privitj' between K. and defendants. 
 
III. Teohnioal Rules. (4) Demurrer. 409 
 
 Goddard v. Benson, 15 Abb. Pr., 191. 
 
 Appeal from an order sustaining a demurrer to a supplemental 1 
 answer. 
 
 This action was brought to recover the value of goods which 
 it was claimed defendants had converted to their own use. The 
 original answer was a general denial. The defendant Benson 
 was allowed to put in a supplemental answer, which alleged that 
 in November, 1860, judgment was recovered in an action brought 
 in this court by one Daniel Kempton against the present plaint- 
 iffs, in which they set up as a defence thereto, and litigated 
 therein, the same matter and cause of action as that set forth in 2 
 the complaint, and the jury, on the trial thereof, rendered a ver- 
 dict on the merits of their defence, and decided the matters set 
 forth in the complaint, which are recited, and that judgment was 
 rendered therein, and that the same remained of record in the 
 office of the clerk of this court. 
 
 The plaintiffs demurred, assigning, as a ground of demurrer, 
 that upon the face of the answer it did not constitute a defence. 
 
 Dalt, F. J. Where the Code allows a supplemental answer, 
 it necessarily allows what is incident to such a pleading, the right 3 
 to demur to it. This was the rule before the Code, where a plea 
 was put in puis darrien. (Abbot v. Kugerly, Freem., 252.) 
 
 The demurrer was well taken. The answer did not allege, nor 
 show, a verdict and judgment upon the same subject-matter 
 between the parties to this suit or their privies. The rule is, 
 that the same point or question when once litigated and settled 
 by a verdict and judgment, shall not be again contested in any 
 subsequent controversy between the same parties or their privies 
 (Doty V. Brown, 4 N. Y., Yl), and by privies are meant persons 
 who are represented by the parties, and who claim under them, or 
 in privity with them, who have mutual or successive relationship 
 to the same right or thing (1 Greenl. Ev., §§ 189, 523). It does 
 not appear from anything in the supplemental answer, that the 
 defendants in this suit stood in any such relation to Kempton, the 
 plaintiff in the former action. It is not shown what that action 
 was about. All that is averred is, that the plaintiffs in the present 
 suit were defendants in the one brought by Kempton, and that 
 they set up as defence to his suit, that they, as partners in busi- 
 
410 Abbott's Select Cases on Code Pleading. 
 
 Corning v. Roosevelt, 25 Abb. N. C, 220. 
 
 5 ness, delivered to Crosby and Benson, the defendants in the 
 present action, a quantity of raw silk to be manufactured, and 
 that the jury found and decided bj their verdict that the present 
 plaintiffs did not jointly, and as partners, deliver to Crosby and 
 Eenson, silk to be manufactured, as alleged. That would not 
 exclude them from maintaining their present action against 
 Crosby and Benson, unless it is made to appear that there existed 
 that identity of interest between Kempton and the present 
 defendants, in the subject-matter, as would make the defense set 
 up against him equally conclusive in their favor. This is not 
 shown by the answer, and judgment, therefore, was properly 
 given for the plaintiffs upon the demurrer. 
 
 The order made at Special Term must be affirmed. 
 
 COElSmSTG V. KOOSEYELT. 
 
 JVew York Supreme Court, Special Term, 1890. 
 
 [Reported in 25 Abb. N. C, 220.] 
 
 1. In determining- a, demurrer to one of the later pleadings in an action 
 
 [other than a plea in abatement*], the court should consider the 
 sufficiency of all the prior pleadings -and render Judgment against the 
 party who has interposed the first insufficient pleading. Where, there- 
 fore, upon a demui-rer for insufficiency to a reply to a counterclaim, 
 the court finds that the reply is sufficient, but that the covmterclaim 
 and the complaint are both defective, jvidgmeut should be rendered in 
 favor of the defendant upon the insufficient complaint. 
 
 2. It seems that a plea of a counterclaim is detective in substance where it 
 
 contains no demand for judgment in defendant's favor against the 
 plaintiff. 
 
 3. A complaint for specific performance in an action by an assignee of a 
 
 contract for the sale of certain securities by plaintiff's assignor, which 
 alleges that such assignor (but not plaintiff) is ready and willing to 
 transfer the subject of the sale to defendant, upon the latter paying 
 plaintiff therefor, is insufficient, where the assignor is not a party to 
 the action. It seems that in such case the assignment should have 
 included the subject of the sale, or the assignor should have been 
 united as a party. 
 
 1 Demurrer to reply. 
 
 The nature of the pleadings is fully set forth in the opinion. 
 
 * See note in SB Abb. N. C, 334, and cas. cit. 
 
III. TeohniGol Rules. (4) Deniurrer. 411 
 
 Corning v. Roosevelt, 25 Abb. N. C, 220. 
 
 O'Beien, J. Tlie defendant has demurred to the reply inter- 
 posed by the plaintiff to the counterclaim on the ground that it 
 appears upon the face thereof to be insufficient in law. 
 
 In determining this question it is insisted that all the plead- 
 ings should be considered and judgment given against the party 
 who has committed the first error. 
 
 In the case of Williams v. Williams, recently decided by this 
 court, and reported in the ISfew York Law Journal, May 29, 
 1890, it was held that upon a demurrer to a defense, which 
 would otherwise have been sustained, it should be overruled, 
 and judgment given in favor of the defendant, for the reason 
 that it appeared that the complaint was insufficient in not stating 
 facts sufficient to constitute a cause of action. 
 
 One good reason, among others, for this rule that might be 
 assigned is that, however defective and insufficient the defense 
 may be, it is, of course, a sufficient defense to an insufficient 
 complaint. Graham v. Dunnigan (6 Duer, 629) was a case of a 
 demurrer to a counterclaim, and the court, having viewed the 
 complaint as sufficient, expressly declined to pass upon the 
 question as to whether a complaint could be attacked for insuffi- 
 ciency on a demurrer to the counterclaim. The other cases 
 referred to and commented upon in Williams v. Williams (sujira), 
 holding that the sufficiency of a prior pleading could be inquired 
 into, were all cases of demurrers to defenses. 
 
 It will thus be seen that the precise question here presented 
 has not been directly passed upon. And while a counterclaim 
 is to be regarded as a new and original cause of action in defend- 
 ant's favor against the plaintiff, as to which the burden of proof 
 is on the defendant, and which, if insufficient, is to be dismissed, 
 yet it is a pleading in the action resorted to to offset plaintiff's 
 demand in whole or in part, and at times is of such a nature as 
 to entitle the defendant, in addition to securing the satisfaction 
 of plaintiff's claim against him, to an affirmative judgment in his 
 favor. 
 
 All the pleadings, from the complaint to the demurrer and 
 the reply, are, when used as in this case, but pleadings in a 
 single action, and I am inclined to the view that the true rule is, 
 as has been stated in Gleason v. Youmans (9 Abb. N. C, 108), 
 
412 Abbott's Select Cases on Code Pleading. 
 
 Corning v. Roosevelt, 35 Abb. N. C, 330. 
 
 that the demurrer runs through all the preceding pleadings and 
 judgment is to be given against the tirst party whose pleading is 
 defective in substance. Applying this rule, therefore, and 
 assuming that the demurrer to the reply raises a question as to 
 the sufficiency of all the preceding pleadings, it remains to be 
 determined not only whether the reply itself is sufficient on its 
 face, but whether the counterclaim is good, and as to whether 
 the complaint itself is defective in substance. 
 
 The demurrer to the reply I do not regard as well taken, for 
 the reason that it contains a sufficient denial of the averments 
 constituting the counterclaim. As to the counterclaim itself it is 
 defective, in that there is no demand for any judgment thereon 
 in defendant's favor as against the plaintiff. In addition, there 
 are other defects which it is needless to point out in view of the 
 conclusion at which I have arrived, that the complaint itself is 
 insufficient. 
 
 The plaintiff brings the action as assignee of a right of action 
 which arose upon contract in favor of his assignor, for the pur- 
 chase and sale of certain bonds and stock. Upon a breach of the 
 contract sued upon, the plaintiff's assignor, or plaintiff himself, 
 as assignee of the cause of action, could have sued, either claim- 
 ing damages for the breach, or brought an action in effect for the 
 specific performance thereof. This latter is the remedy here 
 sought, and is the theory upon which the plaintiff's complaint 
 has been framed. 
 
 The defendant agreed to pay the sum of $1,Y00 in four install- 
 ments of $425 each, for which he was to receive from plaintiff's 
 assignor, the Julian Electric Traction Company, two certain first 
 mortgage bonds, of the par value of $1,000 each, and t\v'enty 
 shares of stock. One of the bonds and half of the stock were to 
 be delivered when one-half of the amount, or two of the install- 
 ments, were paid as provided. "When two installments were paid, 
 one of the bonds and half of the stock were delivered to defend- 
 ants. In addition, defendant paid the third installment, and 
 then refused to pay the fourth, and it is to recover this fourth 
 installment that this action is brought. 
 
 It seems reasonably clear that, upon the payment of this 
 installment, which would fully complete the contract on. de- 
 
III. Technical Rules. (4) Demurrer. 413 
 
 Corning v. Roosevelt, 25 Abb. N. C, 220. 
 
 f endant's part, the latter would be entitled to an additional bond 10 
 and stock, as in the agreement provided. 
 
 Unless upon the trial plaintiff could show that he was ready 
 and willing to perform the contract, and that he was able to de- 
 liver the bond and stock, I do not see how he would be able to 
 force the defendant to specifically perform his part of the con- 
 tract by paying the last installment. To obviate this objection, 
 however, the complaint alleges, not that plaintiff, but that plaint- 
 iff's assignor, the Traction Company, is ready and willing to 
 transfer to the defendant the other ten shares, upon payment by 
 the defendant to the plaintiff, to whom the company has assigned 
 its claim herein, the amount which is still due. Thus it will be 
 seen that the plaintiff, who is neither the owner nor holder of 
 the bond or stock which defendant contracted to purchase, brings 
 a suit to compel the defendant to specifically perform his con- 
 tract by paying the amount still due, without being in a position 
 himself to complete the contract, upon defendant's so paying- 
 such amount. It would appear, therefore, that but part of the 
 cause of action has been assigned, and that the Traction Com- 
 pany should have been joined as a party, so that, upon pay- £2 
 ment by the defendant, the obligations wliich would then rest 
 upon the company could be fulfilled, or, in addition to assigning 
 to plaintiff the right to demand the amount due from defendant, 
 they should have assigned as a part of the cause of action the 
 stock necessary to be delivered to defendant upon payment by 
 him. 
 
 For the reason, therefore, that I regard the complaint as 
 insufficient, there should be judgment upon the demurrer in de- 
 fendant's favor, and with leave to serve an amended complaint, 
 upon payment of costs. 
 
414 Abbott's Select Cases on Code Pleading. 
 
 Clark V. Dillon, 15 Abb. N. C, 261. 
 
 CLAEK V. DILLON. 
 
 JVeio York Common Pleas^ General Term, 18S2 ; Again, 
 Court of Appeals, 1884- 
 
 [Reported in 15 Abb. N. 0., 361 ; s. c, in part, 97 N. Y., 370.] 
 
 1. A denial in an answer of " each and every other allegation in said com- 
 
 plaint contained, not hereinbefore specially admitted, qualified or 
 denied," is insufficient to raise an issue, and may be wholly disre- 
 garded at the trial. 
 
 2. Neither court nor opposing counsel should be called upon to speculate 
 
 upon what allegations of a complaint have been specifically admitted, 
 qualified or denied. 
 
 3. Whether or not an answer denying only such facts as are not admitted, 
 
 qualified or denied by previous allegations in the answer, under the 
 rule established by the Code of Civil Procedure, requiring facts in plain 
 and concise language alone to be stated, is good pleading, query f 
 
 4. If new matter in the answer goes to admit or qualify the legal effect of 
 
 allegations in the complaint, such allegations are not traversed by a 
 subsequent general denial in the same answer of allegations not there- 
 inbefore "admitted, qualified or denied." 
 
 5. Hence, in an action for negligence, where such general denial was pre- 
 
 ceded by allegations that the injuries were caused and contributed to 
 by the person injured, and before the action was brought, defendants 
 fully settled and compromised the claim with plaintiff, — Held, that 
 the allegation in the complaint that the defendants made the excava- 
 tion by which the injuries were occasioned was admitted, and proof of 
 that fact at the trial was unnecessary. 
 
 6. Upon the trial of an action for loss of services, the record of a prior 
 
 action by the injured person, introduced bj' defendants in evidence, 
 showed, from the answer served therein, that they admitted that the 
 place in question was a public street and that they caused the excava- 
 tion to be made therein. — Held, that the record unexplained, must be 
 taken as an admission by defendants of the existence of the facts 
 therein asserted, and dispensed with proof by the plaintiff thereof. 
 
 I. May, 1889.. 
 
 Appeal by the defendants from a judgment for the plaintiii 
 entered upon the verdict of a jury. 
 
 This action was brought by Albert C. Clark against Sidney 
 Dillon and others, for the loss of the services of plaintiff's wife, 
 who was injured by falling into an excavation made by defend- 
 ants in a city street. 
 
III. Technical Rules. (5) Answer. 415 
 
 Clark V. Dillon, 15 Abb. N. C, 261. 
 
 The answer averred that the alleged injuries charged in the 
 complaint " were brought abour, caused and contributed to " by 
 the wife, and that in a prior action brought by her to recover 
 damages for such injuries, the husband liad promised and agreed 
 to waive any claim on his part, if the defendants would settle 
 the action brought by his wife, and that such settlement had 
 been made. The answer then set forth that the defendants 
 " deny each and every other allegation in said complaint con- 
 tained, not hereinbefore specially admitted, qualified or denied." 
 • Upon the trial, the plaintiffs ofEered no evidence that the de- 
 fendants made or caused to be made the excavation, and on that 
 ground, defendants made a motion to dismiss the complaint. The 
 court denied the motion, and the defendants excepted. ' 
 
 The defendants also excepted to the refusal of the court to 
 charge the jury that " before the plaintiff can recover, the jury 
 must determine, as a matter of fact, that the defendants made, 
 •or caused to be made, the excavation into which the plaintiff's 
 wife fell. 
 
 From the judgment entered for the plaintiff upon the verdict 
 of the jury in his favor, defendants appealed. 
 
 Beach, J. The defendants' counsel asked the trial court to 
 charge the jary that before the plaintiff could recover, they must 
 determine that defendants made the excavation as a matter of 
 fact. No direct evidence was given of the fact. The learned 
 judge held there was no denial of the allegation upon the sub- 
 ject in the complaint. The sufficiency of the pleadings to raise 
 an issue, is the question presented by the appeal. 
 
 An answer must contain a general or specific denial of each 
 material allegation of the complaint controverted by the defend- 
 ant (Code Civ. Pro., § 500, subd. 1). This is a plain rule by 
 which the pleading must be judged, and commends itself by sim- 
 plicity, directness and the clearness resulting from adherence by 
 the pleader. Under the text of the answer the denial is proble- 
 matical, leaving for opinion what should not be matter of doubt. 
 Neither court nor opposing counsel should be called upon to 
 speculate upon what allegations of a complaint have been specific- 
 ally admitted or denied ; and what may or may not be qualified. 
 
416 Abbott's Select Cases on Code Pleading. 
 
 Clark V. Dillon, 15 Abb. N. C, 261. 
 
 is a proposition whereon there may be great divergence of 
 opinion. This mode of denial has been heretofore condemned, 
 and is so loose and unsatisfactory as to warrant the court, as was 
 done here, ia wholly disregarding its claimed effect. Its use by 
 the pleaders is for a drag-net to include what may possibly have 
 been otherwise omitted. If a positive averment of a material 
 fact is not worthy of a direct denial, the court is warranted in 
 assuming that no issue is made upon it (Miller v. McCloskey, 1 
 Civ. Pro. E., 252 ; Hammond v. Earle, 5 Abb. N. C, 105). 
 
 The judgment should be affirmed, with costs. 
 
 Daly, Ch. J., and Van Bednt, J., concurred. 
 
 II. JVovemier, 1884.. 
 
 From this judgment of affirmance, defendants appealed to the 
 Court of Appeals. 
 
 RuGEE, Ch. J. A defendant, desiring to controvert the alle- 
 gations of a complaint, may do so either by a general or a specific 
 denial. An omission to do this, in one form or the other, is 
 equivalent to an admission of the truth of the facts alleged and 
 not controverted. Such denials are not required to be of any 
 particular form, or to be couched in any special phraseology, but 
 they must be expressed in language that conveys to the mind of 
 the reader a clear understanding of the facts they are intended 
 to put in issue. It was formerly the settled rule to construe 
 doubtful pleadings most strongly against the pleader, but this 
 rule has been so far modified by the Code as now to require them 
 to be liberally construed with a view to substantial justice 
 between the parties. This modification has, however, been held 
 to extend only to matters of form, and not to apply to the funda- 
 mental requisites of a cause of action ( Spear v. Downing, 34 Barb., 
 522 ; Cruger v. Hudson E. E. E. Co., 12 N. Y., 190 ; Bunge v. 
 Koop, 48 N. Y., 225). A construction of doubtful, or uncertain 
 allegations in a pleading which enables a party by thus pleading 
 to throw upon his adversary the hazard of correctly interpreting 
 tlieir meaning, is no more allowable now than formerly, and 
 when a pleading is susceptible of two meanings, that shall be 
 taken which is most unfavorable to the pleader (Bates v. Rose- 
 krans, 23 How. Pr., 98). 
 
III. Technical Rules. (5) Answer. 41T 
 
 Clark V. Dillon, 1.5 Abb. N. C, 361. 
 
 It is in the nature of things, that a party who is required to 10 
 frame his issues for the information of his adversary and the 
 court, must be responsible for any failure to express his meaning 
 clearly and immistakably. While it is competent for a party to 
 move to make the pleadings of his adversary more definite and 
 certain, yet, inasmuch as it is the primary duty of the party 
 pleading to present a clear and unequivocal statement of his alle- 
 gations, the onus of having them made so, cannot be cast upon 
 his adversary by his own fault in failing to perform his duty. 
 
 It is objected in this case, on the part of the appellant, that 
 there is no proof that defendant created the excavation which was 
 the cause of the injury sued for, or that the place where the same 
 occurred was a public street. 
 
 At the circuit, as also at the general term, this objection was 
 disposed of upon the ground that the facts necessary to make out 
 the cause of action in the respect mentioned, were admitted by 
 the answer. 
 
 No question is made but that the complaint states a good 
 cause of action against the defendant, in respect to the cause of 
 the injury complained of, and the inquiry now is, whether the 12 
 facts stated in the complaint have been sufficiently denied by the 
 answer to put the plaintiff to his proof. 
 
 That pleading contained three defenses separately stated, the 
 first of which substantially alleges that the injuries charged in 
 the complaint were caused, brought about and contributed to by 
 the injured party. 2d. That before the commencement of this 
 action the defendant fully settled and compromised the said 
 claim with the plaintiff. 3d. A denial of each and every other 
 allegation in said complaint contained, not hereinbefore specially 
 " admitted, qualified or denied." 
 
 The first defense in the answer undoubtedly constitutes a 
 qualification of every fact stated in the complaint with reference 
 to the manner in which the accident occurred, and in efliect affirms 
 the truth of the facts alleged, but claims that the action is, not- 
 withstanding, unsustainable by reason of the contributory negli- 
 gence of the person injured. 
 
 The second contains facts formerly known as being those in 
 confession and avoidance, and is predicated upon the assumption 
 
 27 
 
418 Abbott's Select Cases on Code Pleading. 
 
 Clark V. Dillon, 15 Abb. N. C, 361. 
 
 14 of the trutli of the facts stated in the complaint, but seeks to 
 avoid them by a defense arising out of the subsequent conduct 
 of the parties ; and the third was intended as a general denial of 
 such facts in the complaint as had not been before specially 
 admitted, qualified or denied. The first defense put in issue the 
 question of contributory negligence, and imposed upon the 
 plaintiff the burden of proving that the accident occurred with- 
 out negligence on the part of the person injured, and that was 
 the only fact put in issue by that defense, the other allegations 
 being impliedly admitted. The fact alleged, however, con- 
 stituted a good defense to the entire cause of action, and if made 
 out by proof must have resulted in a verdict for the defendants. 
 A good defense to the cause of action stated in the complaint 
 was also alleged in the second count of the answer, and in re- 
 spect to both of these' counts the answer was sufficient in matter 
 and form to preclude a successful demurrer, or motion to strike 
 them out as frivolous. 
 
 The question arises over the effect to be ascribed to the alleged 
 general denial. It was said in the case of Calhoun v. Hallen 
 16 (25 Hun, 155) that an answer denying each and every allegation 
 set forth in the complaint, except as herein " admitted, qualified 
 or explained," contains an authorized form of denial, and should 
 not be stricken out as frivolous. This form of answer has some- 
 times been criticised as throwing upon the opposite party the 
 necessity of first determining the legal question as to how far 
 certain facts stated may properly be said to qualif}' or explain 
 others, before the pleader can know what facts are admitted or 
 denied by the pleading. Without, however, attempting to de- 
 termine whether an answer denying only such facts as are not ad- 
 ' mitted, qualified or denied by previous allegations in the answer 
 imder the rule established by the Code, requiring facts in plain 
 and concise language alone to be stated, is good pleading or not, 
 it is sufficient to say in this case, that the material allegations of 
 the complaint are expressly excepted, by the terms in which it 
 is expressed, from the operation of the general denial pleaded. 
 
 The allegation by the defendant that the injuries described in 
 the complaint did not occur in the manner and form therein 
 alleged, but impliedly did occur in another manner, which was 
 
III. Technical linles. (5) Answer. 419 
 
 Clark V. Dillon, 15 Abb. N. C, 261. 
 
 described in a way to exempt the defendant from liability there- 18 
 for, was a most important and essential qualification of all of 
 the facts alleged in the complaint. 
 
 It cannot reasonably be said that the fact that the party 
 injured contributed to his own injury is not a qualification of 
 the allegation in the complaint, that the defendants' conduct, in 
 ■digging a pit in a public highway and leaving it unguarded, was 
 the sole cause of the injury. 
 
 The allegations which are denied by this answer are those 
 only which are not qualified by its previous statements. Of 
 what facts stated in the complaint can it be legally said that they 
 are not qualified by this answer? The allegation, in the com- 
 plaint, that the injury occurred without the fault or negligence 
 ■of the plaintiff's wife, is substantially denied by the first count of 
 the answer, which aflirmatively alleges the reverse of this to be 
 true, but while this allegation constitutes a denial of the fact 
 it also operates as a qualification of every other fact going to 
 make out the cause of action. 
 
 The test which has frequently been applied to discover the 
 true meaning of a pleading, will clearly illustrate the effect of 20 
 this attempted denial. Suppose the defendants were indicted for 
 perjury upon the ground that they had verified an answer which 
 falsely denied that the defendants were the creators of the exca- 
 vation w^hich caused the injury in question. Could any clause 
 in this answer be pointed out which proved such a denial ? It 
 certainly cannot be successfully claimed that a clause which 
 expressly excepted from its operation all allegations in the com- 
 plaint, qualified l>y previous statements in the answer, was 
 intended to deny such allegations as were qualified. We think 
 that such an indictment could not be sustained upon the plead- " 
 iiig, in this case. 
 
 It was held in the case of Allis v. Leonard (reported in 
 memorandum 46 N. Y., 688, and more fully, 22 Alb. L. J., 28) 
 that an answer which admitted the execution and delivery of a 
 promissory note, and denied every fact not expressly admitted, 
 did not concede the truth of an allegation in the complaint stat- 
 ing a transfer upon good consideration of such note by the payee 
 to the plaintiff. The facts of that case, however, leave no ques- 
 
420 Abbott's Select Cases on Code Pleading. 
 
 Note on the Forms of Denial. 
 
 22 tion as to what was admitted or claimed, and do not bear upon 
 the question raised here. 
 
 But there seems much reason for saying in this case, withiri 
 the principles stated in Potter v. Smith (70 N. Y., 299), and 
 People V. Northern E. E.. Co. (42 N. Y. 21 Y), that the implied 
 admissions contained in the first and second counts of the answer 
 may be construed as coming within the description of facts 
 excepted from the eiiect of the general denial as having been 
 therefore specially admitted. However, this may be, there was 
 
 23 evidence from which the jury had a right to find the disputed facts. 
 
 The defendants proved a settlement by them of an action 
 formerly brought by the wife of the plaintiff against the same 
 defendants, to recover damages for the same injury for which 
 this action is brought. The record of that action was introduced 
 in evidence in this, and shows from the answer served therein 
 that the defendants admitted that the place of the accident in 
 question was a public street, and also that the defendants caused 
 the excavation which was the cause of the injury in question. 
 This evidence seems to have been produced and proved by the 
 
 24 defendant, and to have been admitted without objection. Unex- 
 plained, it must be taken as an admission on their part of the 
 existence of the facts therein asserted. Both of the facts now 
 claimed by the defendants not to have been proved on this trial 
 appear to have been admitted by them in the record produced, 
 and we think fully authorized the ruling of the court below. 
 
 The judgment should be aifirmed. 
 
 All concurred Eapallo, J., on the second ground. 
 
 NOTE ON THE FORMS OF DENIAL. 
 1 The question is important for two reasons : 
 
 First. — Where the complaint is sworn to for the purpose of requiring a 
 sworn answer, in order that plaintiff may compel defendant to narrow the 
 issue by precluding- him from denying what he cannot deny under oath. 
 
 Second. — That at the trial the court may at once discern the issue and . 
 direct what evidence shall be received without spending time in hearing 
 controversy between counsel as to what is and what is not denied. 
 
 Denying conclusion. Where the allegation of the complaint is a con- 
 clusion of law without alleging any facts to support it, a denial of the 
 conclusion may be treated at the trial as a sufficient denial. Weinhauer 
 
III. Technical Rules. (5) Answer. 421 
 
 Note on the Forms of Denial. 
 
 V. Morrison, 49 Hun, 498, 500; s. p. Morrowu. Cougan, 3 Abb. Pr., 338, 
 refusing to strike out sucli a denial as frivolous. 
 
 Where the complaint, alleging a conclusion, has alleged also facts which 
 support it, a denial of the conclusion only does not raise an issue, if objec- 
 tion be taken at the trial. Strauss v. Trotter, 6 Misc., 77; Adams v. 
 Adams, 31 Wall. U. S., 185; Emery v. Baltz, 94 N. Y., 408; Lamb v. 
 Hirschberg, 1 Misc., 108. 
 
 But if no objection be taken, a verdict on the issue will not be set aside 
 -on the ground that the facts were admitted by bad denial. Simmons v. 
 Sisson, 36 N. Y., 364. 
 
 Immaterial allegation. If the only allegation denied is one as to 
 amount or value, relevant oulj' to the measure of damages or amount of 
 recovery, it does not raise an issue for trial in an action of a common law 
 nature, unless, under the statute allowing a partial defense to be pleaded, 
 it is pleaded as a partial defense. Thompson i\ Halbert, 109 N. Y., 329. 
 
 "By virtue ivhereof ; " " wherefore." An allegation of facts followed 
 up with a conclusion of law connected by the words " by virtue whereof," 
 or " wherefore," is not a good allegation to require denial unless the facts 
 suffice to raise the conclusion. And a statement in an answei', of facts 
 followed by a similar conclusion, does not raise an issue with the com- 
 plaint, unless the facts stated give rise to the conclusion as matter of law. 
 See note in Abb. Br. on PL, §§ 537, 603. 
 
 Allegation of material amount or value. An allegation of amount or 
 "Value which is essential to make out a cause of action, or to show jurisdic- 
 tion, is traversable ; and a denial, even with nothing more, raises an issue. 
 .See Stuart v. Binsse, 10 Bosw., 436, 446 ; Abb. Br. on the PI., p. 441, § 540, 
 with note. 
 
 Approximate amount. An indefinite allegation as to amount, such as, 
 that the value or the payment was "about" a specified sum, though not 
 •denied, leaves the burden on the party making it to prove the true sum. 
 Thompson v. Lumley, 7 Daly. 74; Woodruff v. Cook, 35 Barb., 505. 
 
 Formal allegations required by rule or statute. It is the better opinion 
 that under the New Procedure, allegations inserted because required by 
 statute or rule of court, although not otherwise part of the cause of action, 
 .are admitted by not being denied. Abb. Br. on the PI., p. 451, § 546. 
 
 " Says he denies." In endeavoring to fix the line between denials 
 which might be disregarded as evasive and those which though informal 
 must be regarded as sufficient, the courts at one time held that an answer 
 in these words "the defendant says he denies "could be struck out on 
 motion ; but it is now settled that this must be regarded as equivalent to 
 ■" he denies." Jones v. Ludlam, 74 N. Y., 61 ; Humble v. McDonough, 5 
 Misc., 508 ; s. c. 58 State Rep., 102 ; 35 N. Y. Supp., 965. 
 
 A positive denial of each and every allegation in the complaint is good. 
 But a denial of knowledge or information sufficient to form a belief as to 
 each and every allegation may be bad, as evasive, and consistent with pos- 
 sessing knowledge or information as to part only of the allegations. 
 "Waters v. Curtis, 13 Daly, 179, dictum. 
 
422 Abbott's Select Cases on Code Pleading. 
 
 Note on the Forms of Denial. 
 
 Denial of " material" allegations. It is the better opinion that a de- 
 ■nial expressed simply in the words of the statute as of "each and every 
 material allegation " in the complaint should be treated as evasive. The 
 object of the word " material " in the statute, is to compel defendant to go 
 to judgment if he admits that plaintiff is entitled to recover anything 
 whatever and to prevent prejudice to the defendant on an assessment of 
 damages from his omitting to deny an allegation which is not essential to- 
 plaintiff's cause of action ; but not to give him the advantage of delaying- 
 until the trial the giving of any indication as to what he denies. The 
 statute should there fore be construed distributively, and not allow a denial 
 qualified bj' the word "material." Mattison v. Smith, 19 Abb. Pr., 288;. 
 Hammond v. Earle, 5 Abb. N. C, 105. 
 
 A denial is specific, within the meaning of the Codes, and raises an 
 issue, if it specifies what is denied with sufficient clearness and certainty 
 to dispense with debatable analysis of phraseology, and preclude all dis- 
 cussion and doubt as to what is intended to be denied. Tracy v. Baker, 38 
 Hun, 363, 365 ; Abb, Br. on the PL, 477, § 578. 
 
 General or specific denial. In early cases under the Code it seems to- 
 have been thought that every attempted denial which was not general 
 must be specific ; and much discussion was had as to the line of distinc- 
 tion between the two ; but the object of the statute in sanctioning a spe- 
 cific denial is to have either a general denial or one which specifies what is- 
 denied with sufficient particularity to make a clear issue for trial. There 
 may, therefore, be bad denials which cannot be considered to be either 
 specific or general. The present test, therefore, is to inquire does the 
 answer specify what is denied, or does it leave the question to be a matter- 
 of argument at the trial. By this test an answer which clearly excepts 
 definite parts of the complaint and clearly denies all the rest — as where it 
 denies all that has not been previously specifically admitted — or in any 
 other way unmistakably discriminates between what allegations are 
 traversed and what are not, is sufficient as being either general or specific; 
 while on the other hand an answer which, after setting forth as defendants'" 
 case facts more or less inconsistent with those in the complaint, says that 
 all other allegations not hereinbefore "admitted or avoided," or, "admitted 
 and qualified and explained," or the like, is clearly bad because neither- 
 general nor specific. (See authorities collected in 15 Abb. N. C, 371, etc.) 
 
 Unspecific denial. A denial of parts of the adversary's allegations, 
 Avhich does not so specifically point to the allegations intended to be- 
 denied as to identify them at once without argument or explanation, may 
 be treated as an admission. See Abb. Br. on PL, p. 477, § 579. 
 
 Disregarding lack of specificness. It is not error for the court in its dis- 
 ci-etion, and in furtherance of justice, to disregard a lack of specificness in 
 a denial, if the adverse party has raised no objection before trial, and is 
 not surprised or prejudiced. Abb. Br. on PL, p. 478, § 580 ; Green v. Ray- 
 mond, 14 Weekly Dig., 333 ; McGuiness v. Mayor, etc., 36 Hun, 143 ; Spies- 
 V. Roberts, 50 Super. Ct., 301 ; Rothschild v. Porter, 19 N. Y. Supp., 177. 
 
 Denial of all allegations on a particular subject. A denial expressed 
 
III. Technical Rules. (5) Answer. 423 
 
 Note on the Forms of Denial. 
 
 to be of "all allegations which charg-e the defendant with" a specified lia- 10 
 bility or wrong, is a sufficient denial for the purpose of requiring evidence 
 at the trial. Abb. Br. on PL, p. 478, § 581. 
 
 Sweejjing denial, irith exception as to u'hat is otherivise answered. A 
 denial expressed as a denial of whatever is not herein qualified, or ex- 
 plained, or of what is not herein admitted, or herein controverted, or 
 specifically denied, is a good denial, if there is no uncertainty as to whal 
 it is that the pleader thus has excepted. 
 
 When such a denial is recognized by the trial court as putting the ad- 
 verse party to his proof, if contention arises as to what is to be deemed 
 excepted from the denial, the sweeping denial is to be construed as narrow, 
 and the exception is to be construed broadly, as an admission ; and what- 
 ever can be said in any sense to be " explained" or " admitted " or " quali- 11 
 fled " (or otherwise according to the phrase used), even though it has not 
 been effectually met, stands admitted. 
 
 A denial expressed to be of "all contrary hereto" or "inconsistent 
 herewith " may be held bad, as uncertain. 
 
 A denial of what is not herein "avoided " is held bad. for whether an 
 allegation is avoided or not is matter of law. 
 
 Griffin v. Long Island R. R. Co., 101 N. Y., 348 ; Rawlings v. Alexander, 
 8 Jlisc, 514, and for othei' authorities see Abb. Br. on the PL, p. 479, § 582. 
 
 with exception of specified folios. A denial which specifies the 
 
 parts of the adversary's pleading intended to be denied, or intended to be 
 excepted from a sweeping denial of all the rest, merely by referring to the 
 folios where or between which they are to be found, does not comply with 12 
 the statute, and will not serve to present any question in an appellate 
 court. Abb. Br. od the PL, p. 481, § 583. 
 
 Denial by reference to numbered paragraphs. Where the paragraphs 
 of the adversary's pleadings are numbered, a denial expressed as a denial 
 of each and every allegation contained in certain paragraphs, specifj'ing 
 thereby their numbers, is good. Thompson v. Erie Ry. Co., 45 N. Y., 468 ; 
 Allis V. Leonard, 46 id., 688 ; Note in 15 Abb. N. C, 276. 
 
 Denial of specific sum. To an allegation of amount or value, if the 
 specific amount or value is not essential to plaintiff's case a specific denial 
 of that sum merely, without alleging a different sura, is not available as a 
 denial. Abb. Br. on the PL, p. 482, § 585. 
 
 Negative pregnant. A denial in the form of a negative pregnant is ^" 
 not necessarily to be treated as an admission at the trial. Wall v. Buffalo 
 Water Works Co., 18 N. Y., 119 ; Parker v. Tillinghast, 1 State Rep., 296 ; 
 Elton V. Markham, 20 Barb., 843 ; Armstrong v. Danahy, 7o Hun, 405 ; 
 Stuber v. McEntee, 142 N. Y., 200; s. c. 31 Abb. N. C, 246; Baker v. 
 Bailey, 16 Barb., 56. 
 
 But an answer which confines itself to denying in the same words, in- 
 cluding immaterial particulars, such as amounts and dates, an allegation 
 of the complaint, and does not attempt to deny its substance aud spirit, 
 may be deemed as admitting the substantial matter of the averment. 
 Abb. Br. on the PL, p. 486, § 587. 
 
424 Abbott's Select Cases on Code Pleading. 
 
 Note on the Forms of Denial. 
 
 14 Evasive denial — not covering the allegation. A denial which is not as 
 broad as the allegation cannot be extended by implication to cover the 
 whole, but the part not covered stands admitted. Denying part of an 
 allegation, without more, is an admission of the residue. 
 
 But a denial which is express and suflBcieut as to the main part of the 
 allegation, and necessarily implies the falsity of the residue, may be 
 sufficient as to the whole. Spooner v. Delaware, Lackawanna, etc., E. R. 
 Co., 115 N. Y., 33, 31 ; s. c. 33 State Rep., 5.'54; Churchill v. Bennett, 8 
 How. Pr., 309; Robinson v. Commercial Exchange Ins. Co., 1 Abb. Pr. 
 N. S., 186. 
 
 Hypothetical or contingent avoidance. A good denial is not vitiated 
 by adding a contingent or hypothetical avoidance of the matter already 
 
 15 denied. Everitt v. Conklin, 90 N. Y., 645 ; s. c. p. 168 of this volume. 
 
 Conjunctive denial of conjunction. Negative pregnant. To an allega- 
 tion stating several facts conjunctively, aconjunctive denial only denies the 
 conjunction of both facts, and is not a denial of the separate existence of 
 either fact. Thus to an allegation that defendant took and detained, a 
 denial that he took and detained, avails as an admission that he took, or 
 that he detained, according as may be most favorable to the case of the 
 plaintiff, and only denies that defendant did both. 
 
 But if an allegation states conjunctively several facts all of which are 
 together essential to constitute a material allegation, aconjunctive denial 
 is good. Kay v. Whittaker, 44 N. Y., 565 ; Collins v. North Side Publish- 
 ing Co., 1 Misc., 311 ; s. c. 49 State Rep., 37 ; 30 N. Y. Supp., 893 ; Abb. Br. 
 
 16 on the PL, p. 489, § 590. 
 
 Disjunctive denial. A conjunctive allegation is put in issue by a dis- 
 junctive denial. Hughes v. Chicago, etc., Ey. Co., 4.1 Super. Ct. (J. &S.), 
 114, 126. 
 
 Surplusage in denial. A denial sufficient in itself is not vitiated by 
 the addition to it of any matter not abridging or qualifying it, although 
 not needed to support the denial. Simmons v. Sisson, 36 N. Y., 264. 
 
 Refusal to admit. An express refusal to admit cannot avail as a 
 denial, even though coupled with an express reservation of the right to 
 give counter-evidence. Townshend v. Townshend, 1 Abb. N. C, 81; 
 Cheeveri). Wilson, 9 Wall. U. S., 108, 132. 
 
 Mere call for proof. A call for proof of an allegation, though coupled 
 1 ' with an insufficient denial, does not serve as a denial, but is an admission 
 of the allegation. 
 
 Submission to court. An answer (other than in behalf of an infant or 
 other person mow sitiyitris) submitting to the court the question whether 
 a document alleged and admitted to have been executed, is valid, raises 
 no issue, unless the facts bearing on the question of validity are stated. 
 Armstrong v. Lear, 8 Pet. (U. S.), 53. 
 
 Admission of some such a contract admits correctness. An express 
 admission of an instrument like that alleged, even though coupled with a 
 denial of all else, or a denial that its terms are correctly and fully stated, 
 is an admission of it as alleged, and dispenses with proof. Milh-ille Mfg. 
 
III. Technical Rules. (5) Answer. 425 
 
 Note on the Forms of Denial. 
 
 ■Co. V. Salter, 15 Abb. N. C, 305 ; s. c. 1 How. Pr. N. S., 495; Moody v. 18 
 Andrews, 39 N. Y. Super. Ct. (J. & S.), 303 ; afl'd it seems in 64 N. Y., 641; 
 Wallach v. Commercial Fire Ins. Co., 12 Daly, 387. 
 
 Denial of correctness of copy. A denial that the copy, set forth in or 
 -annexed to the complaint, of the instrument on which the action is 
 brought, is a correct copy, without showing that it is incorrect in any par- 
 ticular material to the action, is an admission of the correctness of the 
 copy so far as material. Roberts v. Societa Anonima, 53 Super. Ct. 
 •(J. & S.), 424, 428; Wallach v. Commercial Fire Ins. Co., 13 Daly, 387. 
 
 Craving leave to refer. A statement in pleading, that the party asks to 
 refer to the original of a document set forth by his adversary's pleading, 
 is not a denial of the contents, but an admission. Murray v. N. Y. Life 
 Ins. Co., 9 Abb. N. C, 309 ; s. c. 85 N. Y., 236, 340; rev'g 19 Hun, 350; 19 
 Hughes V. Chicago, etc., E. Co., 45 Super. Ct. (J. & S.), 114, 122 ; Roberts 
 V. Societa Anonima, 58 id., 434; Millville Mfg. Co. v. Salter, 15 Abb. N. C, 
 ■305 ; s. c. 1 How. Pr. N. S., 495 ; Wallach v. Commercial Fire Ins. Co., 12 
 Daly, 387. 
 
 Direct allegation to contrary. A denial in the form of a direct allega- 
 tion which is to the contrary of that of the adversary is a good denial, 
 altliough the word " denial^' or its formal equivalent be not used. Other- 
 wise of the mere statement that, the " contrary" of an allegation referred 
 to " is true." Abb. Br. on the PL, p. 494, g 599. 
 
 Different version not a denial. Allegations giving a different version 
 ■of tire transaction from that alleged by plaintiff do not avail as a denial. 
 There must be an express traverse of plaintiff's version ; otherwise plaint- ^" 
 ill's version stands admitted, notwithstanding the defendant's allegations 
 are inconsistent therewith. East River Electric Lig'ht Co. v. Clarke, 45 
 ■State Rep., 635 ; s. c. 18 N. Y. Supp., 463; Fleischmann ■«. Stern, 90 N. Y., 
 110, 114 ; West v. American Exchange Bank, 44 Barb., 175. 
 
 Different version coupled with denial. A different version, coupled with 
 an allegation that the facts were as thus stated and not otherwise, is a 
 ■denial, not an admission, of plaintiff's version. 
 
 But if defendant alleges a different version, adding " and he therefore 
 denies," etc., the denial is to be interpreted as only a conclusion of the 
 pleader ; and is insufficient, if the facts of which it is predicated are insuf- 
 ficient. Abb. Br. on the PL, 497, S 602. 
 
 21 
 Information and Belief. 
 
 A defendant called on to answer will stand in one of five positions in 
 face of any allegation. Either — 
 
 1. He knows it to be true, or 
 
 2. He knows it to be false, or 
 
 3. He has sufficient information to believe it true, or 
 
 4. He has sufficient information to believe it false, or 
 
 5. He has not sufficient knowledge or information to form a belief 
 eitlier way. 
 
 The statute necessarily covers every case by providing for these five 
 positions. 
 
426 Abbott's Select Cases on Code Pleading. 
 
 Note oil the Forms of Denial. 
 
 22 The rig-hts of the defendant in respect to going to issue are as follows ; 
 If he is in the first position, knowing the allegation to be true, or the 
 
 third, having' reason to believe it true, he is not entitled to put it in 
 issue. 
 
 If he is in the second position, knowing it to be false, or in the fourth^ 
 having reason to believe it to be false, he is entitled to put it in issue. 
 
 If he is in the fifth position, being in ignorance and without reason for 
 belief or disbelief, he is still entitled to put it in- issue, for plaintiff must 
 prove his case if there is no reason why defendant should admit it. 
 
 The statute for the purpose of enforcing these plain principles requires 
 of defendant in respect of any allegation he desires to controvert, either a 
 denial of the allegation or a denial of any knowledge or information 
 
 23 thereof sufficient to form a belief. Code Civ. Pro., §200. This covei-s- 
 the second, fourth and fifth positions. But in order that plaintiff may- 
 know what the defendant who verifies the pleading is swearing to, a 
 denial is declared by section 534 to be in legal effect a positive denial, 
 upon personal knowledge (within the law of perjury) unless it is stated to- 
 be made upon the information and belief of the party. 
 
 It is clear, therefore, that a defendant not having knowledge or infor- 
 mation sufficient to form a belief, should not "Seny upon information and 
 belief, but should simply state that he has not knowledge or information 
 sufficient to form a belief. If he is in this state of suspense and ignorance 
 he cannot truly deny, for he does not know but that it is true ; and the 
 statute does not call upon him to deny. He traverses by duly stating his- 
 
 24 inability to form any belief. If, on the other hand, he has information 
 sufficient to form a belief that the allegation is false, he is entitled to deny 
 it ; but if he is to verify the pleading he must deny upon information and 
 behef. Brotherton v. Downey, 21 Hun, 436, is therefore clearly right. 
 
 This conclusion is now fully established by Bennett v. Leeds Mfg. Co., 
 110 N. Y., 150. 
 
 But these principles do not sanction a pleader in saying that he answers 
 on, information and belief, and thereupon proceeding- with unqualified 
 denials, as was done in Pratt Mfg. Co. v. Jordan Iron Co., 5 Civ. Pro. R., 
 373. That decision was clearly right in condemning such pleading : but 
 we do not think it can be deemed authority for the proposition that a 
 denial upon information and belief is bad, a proposition which is clearly 
 
 25 xuisound, and if enforced would require many defendants either to admit 
 falsely or swear falsely. 
 
 Denials not positive. Under the statutory permission to put the 
 allegations of the complaint in issue by denial "of any knowledge or 
 information thereof sufficient to form abehef," the denial must in substance 
 deny alike the possession of knowledge and the possession of information 
 sufficient to form a belief, as to the matter of fact controverted, and must 
 do this with sufficient distinctness to make ix, verification perjury if the 
 deponent has either knowledge or information sufficient for the purpose 
 of pleading. 
 
 Various departures from the statutory form have, therefore, been 
 
III. Technical Rules. (5) Answer. 42Y 
 
 Note oa the Forms of Denial. 
 
 condemned, the reason undoubtedly being the door that will be open to 26- 
 evasion by laxity in this respect. 
 
 Hence a denial of knowledge is not sufficient. Heye v. Bolles, R3 How. 
 Pr., 366 ; First Nat. Bk. v. Clarke, 33 Week. Dig., 569. 
 
 An allegation that defendant " does not know of his information or 
 otherwise" is insufRcient. Sayre v. Gushing, 7 Abb. Pr. Rep., 371. 
 
 A denial of information sufficient to form a belief, saying nothing about 
 knowledge, is insufficient. Elton v. Markham, 30 Barb. , 343 ; Lloyd v. 
 Burns, 38 Super. Ct. (J. & S.), 433 ; aff'd it seems in 63 N. Y., 651, without 
 opinion. 
 
 A denial "for the want of knowledge to form a belief" is bad. Heye 
 V. Bolles, 38 How. Pr., 266. 
 
 A denial of " knowledge or information sufficient to form a belief, 2T 
 except information from " specified sources, such as documents, without 
 stating what part of the allegation is excepted, or what the information 
 is, admits the whole allegation. Cuyler v. Bogert, 3 Paige, 186. 
 
 A denial expressed in the alternative as " either upon his own knowl- 
 edge or as having- no knowledge or information sufficient to form a belief" 
 is bad. Sheldon v. Sabin, 13 Daly, 84. 
 
 And a denial of knowledge or information sufficient to form a belief as 
 to a specified paragraph, instead as to the truth of it, or as to the allega- 
 tion therein, is bad. Bidwell v. Overton, 36 Abb. N. C, 403. 
 
 A denial of knowledge or information sufficient to form a belief "as 
 to " a document stated in the complaint is not a denial of an allegation in 
 the complaint that the statements in the document are true. People v. -^^ 
 Fields, 58 N. Y., 491. 
 
 But a statement that " defendant has no knowledge or information 
 sufficient to form a belief as to the trutli of an allegation specifically 
 referred to," or " as to any of the allegations in said complaint contained," 
 is good. Grocers' Bank v. O'Rorke, 6 Hun, 18 ; Meehan v. Harlem Savings 
 Bank, 5 id., 439. 
 
 But denial of knowledge or information sufficient to form a belief 
 seems to be not yet lawful in the New York City District Courts. Steinam 
 V. Bell, 7 Misc., 318. 
 
 Matters actually or presumptively within deponent' s knowledge. A 
 denial of knowledge or information sufficient to form a belief, or a denial 
 vipon information and belief of matters which must have been once within '^'^ 
 deponent's knowledge, and may be presumed to be still within his recol- 
 lection (Sheldon v. Heaton, 78 Hun, 50), or of matters of public and 
 accessible record relating to the subject and of which deponent ought to 
 inform himself before pleading, may be bad. Austen v. Westchester 
 Telephone Co., 8 Misc., 11. Compare cases cited in Abb. Br. on the PI., p. 
 497, § 603 ; p. 503, § 609. 
 
 Tenses. A denial in the past tense or the present tense exclusively of 
 ii fact in the complaint alleged in either tense or both, may be a bad 
 denial. Hand v. Rogers, 8 Misc., 79 (allegation of the complaint that the 
 defendants were and still are partners ; answer admitting- that they are 
 
428 Abbott's Select Cases on Code Pleading. 
 
 Macauley v. Bromell & Barkley Printing Co., U Abb. N. C, 316. 
 
 30 and denying all that is not admitted, raises an issue on the question 
 whether they were partners at the time past mentioned in the complaint). 
 
 And therefore denies the same. When a denial of knowledge or 
 information sufficient to form a belief is pi-operly made, it is not necessary 
 to add "and therefore denies the same." When the denial of knowledge, 
 etc., is defective, it is not aided by such addition. Meehan v. Harlem 
 Savings Bank, 5 Hun, 439 ; Sackett v. Havens, 7 Abb. Pr., 371, note ; 
 Flood V. Reynolds, 13 How. Pr. (N. Y.), 112. 
 
 Corporation cases. Since N. Y. Code Civ. Pro., § 1776 dispenses with 
 proof "of the existence of a corporation party, unless the answer is 
 verified and contains an affirmative allegation that the plaintiff or the 
 defendant, as the case may be, is not a corporation," a positive denial, or 
 
 31 a denial of knowledge or information sufficient to form a belief as to 
 whether the party is a corporation, is not sufficient. See note on putting ■ 
 corporate existence in issue, post. 
 
 MACAULEY v. BROMELL & BARKLEY PRINTING 
 COMPAJSTY. 
 
 JVew York City Court, Special Tevm^ 1881^., 
 [Reported in 14 Abb. N. C, 316.] 
 
 1. Under Code Civ. Pro., §524 — which requires the verification of a plead- 
 ing by a corporation to be made by an officer or agent with reference 
 to his own knowledge, information or belief — a denial in an answer 
 by a corporation is not to be struck out as frivolous, because expressed 
 to be a denial upon information and belief.* 
 
 3. Th© case of Shearman v. N. Y. Central Mills, 1 Abb. Pr., 187, super- 
 seded. 
 
 * In Richards v. Frechel (decided in the eame conrt in the same term), the same principle 
 was applied as superseding the old rule that allegations presumably within tlie personal knowl- 
 edge of the defendant could not be denied upon information and belief. 
 
 McAdam, J. - The complaint alleges " that the plaintiff, at the request of defendant, sold 
 a-nd delivered to him goods to the value and agreed price of $97.43, no part of which has been 
 paid." The answer, *'upon information and belief, denies each and every allegation in said 
 ■complaint contained." Whether this answer contains a legal form of denial, is the question to 
 be determined. 
 
 An answer in the above form was held good in Brotherton u. Downey (59 How. Pr., 205) ; 
 Stent V. Continental Bank (5 Abb. N. C. 88), and in Metraz v. Persall (id.^ 90). Where the 
 charges made are, as in this case, presumably within the personal knowledge of the defendant, 
 this form of denial was not formerly allowed. But the cases cited, and that of the Grocers' 
 Bank v. O'Rorke (6 Hun, 18), seem to countenance it. 
 
 It follows that the motion for judgment on the answer an frivolous must be den'ed. No 
 costs. 
 
 A denial upon information and belief of an alleged public record, to which the party 
 pleading is a party, may be so struck out. Austin v. Westchester Telephone Co., 8 Misc., 11. 
 
 It may be otherwise of private acts of the party many years past. Sheldon v. Heaton, 78 
 Hun, 50. 
 
III. TeehniGol Rules. (5) Answer. 429 
 
 Macauley v. Bromell & Barkley Printing Co., 14 Abb. N. C, 316. 
 
 MoAdam, J. The answer, " upon information and belief, 
 denies each and every allegation of the complaint, except the 
 allegation of the defendant's incorporation." The plaintiff 
 moves for judgment upon the ground that the answer is sham 
 and frivolous. The answer is verified by the treasurer of the 
 corporation, and cannot be stricken out as sham (45 N. Y., 281, 
 468). 
 
 It is said to be frivolous because a corporation cannot deny an 
 allegation " upon information and belief. " The case of Shearman 
 V. New York Central Mills (1 Abb. Pr., 187), decided under the 
 old Code, is relied on by the plaintiff as an authority against the 
 sufficiency of the answer. It is said in that case that " a corpora- 
 tion is an artificial being which from its nature can have no 
 knowledge or belief on any subject, independent of the knowl- 
 edge or belief of its agents. It is a mere legal entity. It 
 neither knows nor thinks." Exactly so. But the officers and 
 agents of the corporation must verify the answer, and must, 
 under the New Code, do so truthfully under the pain and 
 penalty of a possible prosecution for perjury. The case cited 
 intended to hold a corporation to the strict form of denial 
 required (under similar circumstances) from a natural person. 
 It did not intend to discriminate against corporations, nor to 
 require from them any different form of plea than the Code 
 requires from individuals. 
 
 Testing that case by this rule, and applying the decisions 
 under the New Code to the form of the answer, it must be held 
 good (see 59 How. Pr., 206 ; 5 Abb. N. C, 88. 90 ; 6 Hun, 18). 
 Under these decisions the person verifying the pleading " is 
 permitted in a great measure to impress upon the pleading the 
 operation of his mind," that he may make the verification con- 
 scientiously. 
 
 In the light of these cases the form of denial used in the 
 answer, though " upon information and belief," is in accordance 
 with the present practice, and creates a triable issue of fact, 
 which must be disposed of by a trial in the regular way. 
 
 It follows that the motion for judgment must be denied. No 
 costs. 
 
430 Abbott's Select Cases on Code Pleading. 
 
 Fleischman v. Stern, 90 N. Y., 110. 
 
 FLEISCHMAlSr v. STEKN. 
 
 If'ew York Court of Appeals, 1882. 
 [Reported in 90 N. Y., 110.] 
 
 1. Statements in an answer merely giving a different version of the trans- 
 actions from tliat given in tlie complaint are not a deniaJ. 
 
 3. Under an answer not denying- anj^ allegation of the complaint, but stat- 
 ing as the real transaction a transaction different from that set up in 
 the complaint, defendant may be held to have admitted the transac- 
 tion he has not expressly denied ; and cannot prove that which he has 
 alleged as being inconsistent with and therefore disprovmg the com- 
 plaint. 
 
 3. An admission of a material fact bj' not denying it is as conclusive upon 
 defendant as an express admission. 
 
 Action on a promissory note. 
 
 The plaintiffs, merchants, brought this action upon a promis- 
 sory note of $1,000, bearing date October 13, 1887, made by 
 Z. Stern & Co., payable three months after date, to the order of 
 the defendant, and indorsed to the plaintiffs, in payment of an 
 indebtedness to them, of about $1,000, for goods theretofore pur- 
 chased by defendant. These facts were stated in the complaint. 
 
 The defendant denied none of them, but pleaded that the note 
 was made for his accommodation, and indorsed to the plaintiffs 
 under an usurious agreement, whereby they were to give him 
 $941.92 for the note, and a credit on their books for $35.83 more, 
 thus taking to themselves $22.25 ; the difference between the 
 face of the note and these sums, being $7.10, in addition to the 
 legal interest while the note should be running to maturity ; and 
 demanded, as an affiraiative judgment, that the complaint be 
 dismissed and that " he recover his costs and disbursements and 
 an allowance of five per cent, on the plaintiffs' claim." 
 
 Danfoeth, J., [after stating the above facts']: It is obvious that 
 this demand by one who, if the contract was illegal, was himself 
 a party to it, has nothing to commend it to the court, and there 
 was no reason why it should not have been denied under the 
 provision of the Code that " each material allegation of the com- 
 plaint not controverted by the answer must, for the purposes of 
 
III. Technical Rules. (5) Answer. 431 
 
 Drake v. Cockroft, 1 Abb. Pr., 203. 
 
 the action, be taken as true " (§ 522). Here the complaint stated 
 a clear cause of action, and under the pleadings the plaintiffs 
 were not required to prove anything, nor was the defendant at 
 liberty either to deny the existence of the facts constituting the 
 cause of action, or to prove any state of facts inconsistent with 
 such admission.' (Tell v. Beyer, 38 N. Y., 161.) It is true that 
 the agreement set up in the answer as the one by which the 
 plaintiffs acquired the note is different from the one stated for 
 that purpose in the complaint, but that is not enough to put the 
 latter in issue (West v. American Exchange Bank, 44 Barb., 1T5 ; 
 Marston v. Swett, 66 N. Y., 206, 210 ; 23 Am. Eep., 43), and so 
 it was thought at the trial. The defendant took the burden upon 
 himself, and if we now assume, with the appellant's counsel, that 
 the evidence given established the agreement stated by the 
 answer, it could not help defendant, nor enable him to avoid the 
 effect of an omission to controvert by answer the plaintiffs' alle- 
 gations. The Code (§ 522, supra) gives to such omission the 
 force of a formal admission and makes it conclusive as such upon 
 the parties and upon the court. (Paige v. Willett, 38 N. Y., 28 ; 
 Tell V. Beyer, supra.) 
 
 \_The remainder of the optinion., however, reviewed the evidence 
 ■and held that the defence, even if receivable, could not prevail.l 
 
 All the judges concurred, except Millee, J., absent. 
 
 Judgment accordingly. 
 
 DEAKE V. COCKEOFT. 
 
 New Yorh Common Pleas, General Term, 1855. 
 [Reported in 1 Abb. Pr., 203.] 
 
 When the facts stated in a complaint show the plaintiff entitled to re- 
 cover the amount demanded, an answer, which does not deny any 
 fact alleged in the complaint, but merely says " the defendant denies 
 that the said plaintiff is entitled to the money demanded," presents 
 no defence. 
 
 If the alleg-ations of the plaintiff are sufficient in law to entitle him to 
 recover, the defendant cannot dispute the right of recovery while he 
 admits the facts stated, unless he avers new facts which defeat their 
 otherwise legal operation. 
 
432 Abbott's Select Cases on Code Pleading. 
 
 Drake v. Cockroft, 1 Abb. Pr., 203. 
 
 Motion to strike out part of an answer. 
 
 Woodruff, J. The complaint lierein avers that the plaintiff, 
 on, etc., let the defendant, and the defendant hired and took from 
 the plaintiff, certain premises for the term of one year, from the 
 first of May then next, at the yearly rent of $925, payable as 
 follows : $308.33 on the first day of August, 1853 ; $308.33 on 
 the first of November, 1853, and the balance, $308.34, on the first 
 day of February, 1854. 
 
 After setting forth other provisions of the lease not material 
 to this appeal, the complaint further avers that the defendant 
 promised to make punctual payment of the said rent in the 
 manner above mentioned and that the defendant entered into 
 possession of the demised premises under and by virtue of the said 
 hiring, and continued in the possession, etc., until after the first 
 day of February, 1854. That on the first day of August, 1853, 
 the said sum of $308. 33 became due and payable according to 
 the tenor of the said letting and hiring, and that the sum of 
 $8.33 thereof is now due and owing. That on the first of 
 November, 1853, the other sum of $308.33 became due and pay- 
 able according to the tenor, etc., and that the sum of $8.33 is 
 now due and owing, and the said balance of $308.34 became due 
 and payable on the first day of February, 1854, and the whole 
 thereof is now due and payable. "Whereupon the plaintiff de- 
 mands judgment for $325, and interest and costs. To which 
 complaint the defendant by answer sets up or attempts to set 
 up three distinct defences. 
 
 For ajirst and distinct defence, the defendant answers that he 
 " Jew /e« that the said plaintiff ix entitled to the sum of money 
 demanded in this action or any part thereof." 
 
 Eeading this supposed " defence " in connection with the legal 
 principle that " every material allegation in the complaint which 
 is not controverted by the answer, shall be taken as true for the 
 purpose of the action," this so called defence amounts to this : 
 " Although I hired the plaintiff's premises foi- the period stated, 
 and agreed to pay the rent specified, and occupied the premises 
 during the term, and the rent became due and payable according 
 to the tenor of the hiring, and is now due and owing, still the 
 plaintiff is not entitled to such rent." Or in another form. 
 
III. Technical Mules. (5) Answer. ■±33 
 
 Drake v. Cockroft, lAbb. Pr., 203. 
 
 " Although all the facts alleged by the plaintiff are true, still he 
 is not entitled to recover." 
 
 1 fully concur with the opinion of the first judge at special 
 term that this is no defence at all. If the facts stated by tlie 
 plaintiff are true, the plaintiff is entitled to the sum of money 
 demanded, and this so called iirst defence is a mere legal false- 
 hood, unless other facts exist which are not stated. 
 
 I need not state in the elementary rule of pleading, that ■£ 
 plea or answer which does not deny the facts alleged by the 
 plaintiff must state facts, which, if proved, destroy the legal 
 inference that the plaintiff is entitled to recover. If the allega- 
 gations of the plaintiff are sufficient in law to entitle him to re- 
 cover, the defendant cannot dispute the right of recovery while 
 he admits the facts stated, unless he avers new facts which 
 defeat their otherwise legal operation. 
 
 The defendant's counsel on the argument of the appeal, insists 
 that a denial of the plaintiff's right to recover, or a statement 
 that the plaintiff is not entitled to the money, is a statement of 
 a fact. In this I apprehend he overlooks the distinction which 
 often exists between the statement of a truth, and*the allegation 
 of a fact. Indeed the terms fact and truth are often used in 
 common parlance as synonymous ; but as employed in reference 
 to pleading, they are widely different. A fact, in pleading, is a 
 circximstance, act, event or incident ; a truth, is the legal prin- 
 ciple which declares or governs the facts and their operation and 
 effect. 
 
 Admitting the facts stated in a complaint, the truth may be 
 that the plaintiff is not entitled, upon the face of his complaint, 
 to what he claims. The mode in which a defendant sets up that 
 truth for his protection is a demurrer. 
 
 So also, admitting the facts stated in the complaint, the truth 
 may still be that iy reason of the existence of facts which are not 
 disclosed by the complaint, the plaintiff is not entitled to what 
 he claims. If a defendant wishes to urge this condition of 
 things, he must do it by averring the existence of those facts. 
 
 It seemed to me so obvious that this denial of the plaintiff's 
 title to recover, contains nothing which can be called a statement 
 of a fact, that no language could make it more plain ; but counsel 
 38 
 
434 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 9 for the appellant have deemed it doubtful, and pressed it upon 
 our further consideration. The case cited by him (Allen v. 
 Patterson, Y N. Y., 476 ; s. c, p. 1 of this vol.) does not even 
 i;end to sustain such an answer. An averment in a complaint, 
 that the defendant was indebted to the plaintiff for goods 
 isold and delivered by the plaintiff to the defendant, at his re- 
 quest, on a day named, and at a place stated, and that a sum 
 named is due to the plaintiff from the defendant, was held to 
 import, and therefore in substance to be an averment, that at 
 the time and place stated the plaintiff sold and delivered to the 
 defendant the goods referred to, and the court in that case dis- 
 tinctly recognized the duty of a pleader distinctly to aver or 
 .state everjfact on which he relies to support the legal proposition 
 .upon which his right to maintain or defend the suit is dependent. 
 [T/ie judge then discussed a claim for damages suffered hy 
 defendant iy reason of plaintiff'' s talcing of personal property of 
 defendant, and which was held to have heen improperly inter- 
 posed as a counterclaim.l 
 
 In my opinion the order striking out what are termed in the 
 
 11 answer the first and second defences, should be affirmed. 
 
 In "Wesson v. Judd, 1 Abb. Pr., 2.54, plaintifE sued on an undertaking- 
 given to secure a discharge from arrest, setting fortli a copy of such under- 
 taking. The answer admitted that the defendant had given a writing, but 
 denied, for want of sufficient information to form a belief, that the writ- 
 ing was correctly set forth in the complaint. — Held, that such part of the 
 answer must be stricken out ; that defendant is entitled to an inspection 
 of the original to enable him to answer, and cannot deny, merelj' upon 
 want of information sufficient to form a belief, that the instrument is cor- 
 j'.ectly set forth. 
 
 THOMFSOlSr V. ERIE EAILWAY CO. 
 
 New York Court of Appeals, 1871. 
 
 [Reported in 45 N. Y., 468.] 
 
 A verified denial, whether general or specific, traversing a material alle- 
 gation, cannot, upon affidavits showing falsity, be stricken out on 
 motion as sham, for this would be trj'ing an issue on ea'^a?'fe affidavits 
 instead of by common law evidence. 
 
III. Technical Rules. (5) Answer. 435 
 
 Thompson v. Erie Railway Co., 43 N. Y., 468. 
 
 3. This rule is applicable, whether the action be of a legal or equitable 
 nature. 
 
 3. A general denial of a part of a complaint which averred several 
 
 material facts, cannot be stricken out as sham on the ground that it is 
 necessarily a negative pregnant. 
 
 4. An allegation in an answer relied on as a defence, if so wholly imma- 
 
 terial as to be of no avail, may, even though true, be struck out on 
 motion as irrelevant. 
 
 5. Section 347 of the Code of Procedure [Code Civ. Pro., § 537] gives 
 
 no power to order judgment upon one of several defences in an 
 
 answer as frivolous, where others are good. 
 '6. But it a notice of a motion for judgment for frivolousness, contains a 
 
 prayer for "other or further relief,'' the irrelevant defence may be 
 
 stricken out as irrelevant [Code Civ. Pro., § 1.53 ; Code Civ. Pro., § 588]. 
 7. The common stockholders may be proper, but are not necessary, parties 
 
 to an action by preferred stockholders to compel payment of a 
 
 dividend to them, in the absence of anything to show that the 
 
 directors will not properly defend the action. 
 
 John W. Thompson, for himself and other owners of preferred 
 stock in the defendant company, sued to compel the company to 
 pay a dividend on the preferred stock pursuant to the agreement 
 under which it had been issued, and to have an accounting and 
 receiver as to net earnings applicable to such dividend. 
 
 The complaint was as follows : 
 " Supreme Court. 
 
 John W. Thompson, Mary T. DeForest, James 
 Thompson and Rhoda Thompson, in their own 
 behalf, and in behalf of all other holders of 
 the preferred stock of the Erie Railway Com- 
 pany, etc., 
 
 against 
 The Erie Railway Company. . 
 
 " The above-named plaintiffs, complaining on behalf of them- 
 selves and all other owners and holders of the preferred stock of 
 the said defendant, who shall come in in due time and seek 
 relief by and contribute to the expenses of this action, allege : 
 
 ' ' I. That the question which is the subject of this action is 
 
436 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 one of a common and general interest to all the holders of the 
 preferred stock of the said defendant. 
 
 " That, as plaintiffs are informed and believe, the holders of 
 said preferred stock are very numerous, and that they exceed 
 two hundred in number, many of whom are not residents of the 
 State of New York, and whose names are unknown to these 
 plaintiffs, and that they cannot therefore all be joined as parties 
 in this action." 
 
 [The complaint then alleged the incorporation of the plaintiif 
 and its predecessor company ; the occurrence of the insolvency of 
 the predecessor company ; the making of a contract bet-\veen 
 that company and its shareholders and creditors, under wliich 
 the road was sold under foreclosure and, by reorganization, the 
 present company formed ; the right to dividends on the pre- 
 ferred stock to be made out of net profits being secured by the 
 contract, and the new company's articles of association. The title 
 of the plaintiffs to shares of the preferred stock was also alleged. 
 The complaint then contained the following allegations : ] 
 
 " XI. That the gross earnings of said defendant during the 
 current year, 1869, exceeded the sum of eighteen millions of 
 dollars (which sum does not include a large sum earned and re- 
 ceived by defendant in operating certain of its leased roads, as 
 these plaintiffs are informed and believe, the amount of which 
 is unknown to these plaintiffs), and that the net earnings of said 
 defendant during the said year amounted to fully enough to pay 
 to the holders of said preferred stock the dividends or interest 
 as hereinbefore set forth, promised and agreed to be paid, but 
 that said defendant has refused and neglected, and still refuses 
 and neglects, to pay the said dividends or interest on said pre- 
 ferred stock for the year 1869, or any part thereof, although 
 often requested so to do. 
 
 " XII. That, as plaintiffs are informed and believe, said de- 
 fendant has laid out and expended a large part of its said net 
 earnings for the year 1 869 in permanent additions and improve- 
 ments to its property, instead of applying same to the payment 
 of the dividends or interest on the said preferred stock, to the 
 undue advantage of the holders of the common stock of the said 
 defendant, and in fraud of plaintiffs' rights. 
 
ill. Technical Mules. (5) Answer. 437 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 " XIII. That, as plaintiffs are informed and believe, the per- 8 
 sons having charge and control of the funds and affairs of said 
 defendant, have diverted and appropriated a large part of the 
 said net earnings of the defendant for the year 1869 to the 
 purchase of and investment in property other than that neces- 
 sary or proper to be held or owned by said defendant, and not 
 authorized by its charter." 
 
 The contents of the answer were as follows : 
 
 " First. For a first defence : 
 
 " I. This defendant denies each and every allegation contained 
 In those paragraphs of the complaint which are numbered XI., 
 XII and XIII. 
 
 " II. The affairs of this defendant are managed by seventeen 
 directors, and the plaintiffs have not asked from any of the said 
 directors any accounting in respect to the matters set forth in 
 the complaint. 
 
 " Second. For a second defence : 
 
 " I. That the interest of the preferred stockholders of this de- 
 fendant, of whom the plaintiffs are four, is, in respect to the 
 matters alleged in the complaint, adverse to the interests of the 10 
 holders of the common stock of this defendant, of whom there 
 are a large number now living in the city of ISew York, and of 
 whom C. Harvier, Edwin Mead, Paul N. Spofford and Nehemiah 
 Tunis are four, now living in the city of New York. 
 
 '• II. That this action cannot properly proceed to trial without 
 the presence of one or more of the said holders of common stock 
 to represent their interests, inasmuch as any dividend that should 
 be paid to the holders of preferred stock would necessarily re 
 duce the dividends payable to the holders of common stock. 
 
 " III. That the persons who had, at the commencement of this 
 action, and who still have, control of the funds and affairs of this 
 ■defendant are " [ naming each, and the town or city and State of 
 his residence.] 
 
 \The answer was verified. ~\ 
 
 The plaintiffs on affidavits and on the pleadings and proceed- 
 ings, moved : 
 
 " 1. That the first defence in the answer herein of the defend- 
 ant be stricken out as sham. 
 
438 Abbott's Sp;lect Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 12 "2. For an order overruling said answer as frivolous, and for 
 judgment thereon. 
 
 " 3. And that the plaintiifs have such other and further relief 
 as may be proper." 
 
 The Supreme Court at Special Term held, that the first de- 
 fence was sham as to the whole of it ; that the latter paragraph 
 of the first defence was both sham and frivolous ; and that the 
 first defence must be stricken out as sham. 
 
 That the second defence was frivolous, and that plaintiffs were 
 
 13 entitled to judgment thereon. 
 
 It further ordered that plaintiffs have judgment that defend- 
 ants account and pay over plaintiffs' respective share in the net 
 earnings as shareholders ; and it appointed a referee to take the 
 accounting. Other clauses in the order struck out parts of one 
 of the affidavits used on the motion as being irrelevant, imperti- 
 nent and scandalous. 
 
 The opinion giveii at Special Term (Rosekeans, J. ) reviewed 
 the evidence presented on the motion, and concluded that the 
 .. . falsity of the first defence was clearly proved. This conclusion 
 was, in the opinion of the learned judge, confirmed by the fol- 
 lowing criticisms on the pleadings. He said : 
 
 " A strong argument to support the allegation of the falsity of 
 this part of the first answer is derived fi-om the manner in which 
 the denial is made of the parts of the complaint which it pro- 
 fesses to deny. The denial is of the letter of those allegations 
 and not of their substance. It contains an implication of the 
 truth of so much of the substance of the allegations of the com- 
 plaint as is sufficient to sustain the action. The denial that the 
 16 gross earnings of the defendant, for the year 1869, exceeded the 
 sum of $18,000,000, contains an implication that they amounted 
 to just 118,000,000. The denial that the net earnings of the 
 company during the year 1869 amounted to fully enough to pay 
 to the holders of preferred stock the dividend promised and 
 agreed to be paid (seven per cent, per annum), contains an 
 implication that they were sufficient to pay six and yVu P^r cent. 
 The denial that the defendant has neglected and refused to pay 
 said dividend, contains the implication, that it has neglected or 
 refused to pay such dividend. The denial that the defendant 
 
III. Technical Rules. (5) Answer. 439 
 
 Thompson v. Erie Railway Co. ,'45 N. Y., 468. 
 
 has been often requested to pay such dividend, contains the 16 
 implication that it has once been requested to pay it. The denial 
 that the defendant has laid out and expended a large part of its. 
 net earnings for 1869, in permanent additions and improvements 
 to its property, contains the implication that it has expended 
 some fart of those earnings, in the manner alleged. And the 
 denial that the persons having charge and control of the defend- 
 ant's funds and affairs have diverted and appropriated a large 
 part of such net earnings to the purchase and investment in 
 property other than that necessary or proper to be held or 
 owned by the defendant, and not authorized by its charter, con- 
 tains the implication that some portion of such earnings has l)eeni 
 so diverted and appropriated. 
 
 " This denial is by way of negative pregnant. It is evasive, 
 insufRcieut, tricky. I am aware that the Court of Appeals has. 
 decided, in the case of Wall i\ The Buffalo "Water Works Com- 
 pany (18 N. Y. R., 119), that when the plaintiff goes to trial 
 upon such an answer, he waives all objection to its insufficiency, 
 and admits it to be a perfect denial, and to put in issue the mat- 
 ters thus denied. But in this case the plaintiff has not goue to IS 
 trial upon the answer, and has made no such admission. In the 
 case cited, the prevailing opinion delivered concedes that the 
 denial was a species of negative pregnant, and, of course, the 
 implications it contained could be urged by the plaintiffs, if not 
 waived. Saunders records of himself, in his own reports (Yeale 
 V. Warner, Vol. I., 327, a), that Kelynge, Chief Justice, repre- 
 hended him for pleading so subtily on purpose to trick the 
 plaintiff, but he seemed to derive comfort and consolation under 
 
 the rebuke from the fact that the case was, as he said, one of the 
 
 -19 
 
 greatest hardships on his client, and also from the fact, which he 
 
 states, that his adversaries did not see the defect of the pleadings 
 on their part until Saunders himself pointed it out in the court. 
 No comfort can be derived by the learned counsel who put in 
 the defendant's answer in this case from either of the som-ces 
 which consoled Saunders. This case is not one of hardship on 
 the defendant, and the mode of its denial is neither a novel nor 
 an artful evasion. It was known by its present name (negatire 
 pregnant), as early as three centuries ago. Instances are men.- 
 
44:0 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 20 tioned in tlie Year Books, 22 H. C, 38, 39, and still later, Lit. K., 
 65, and Strange E., 483, and the case cited from 18 N. Y. E. 
 brings its use down to the present time. It has been adopted in 
 ' numerous and pressing ' instances to ease the conscience of 
 parties, and allow them to evade what they could not fully deny. 
 " But if I am wrong in the view last taken by this denial, the 
 evidence of its falsity first alluded to still remains, and brings 
 the case within the class mentioned by Steong, J., in The People 
 V. McCumber, 18 N. Y. E., 324, in these words : ' Cases may 
 and do frequently arise where the proof of the falsity of a 
 verified answer is so strong that the answer should not be allowed 
 to stand without a special afiidavit, stating the particular matters 
 relied on in the support of it.' " 
 
 After concluding that the first division of the first answer was 
 sham and should be stricken out, the opinion at Special Term 
 proceeded as follows : " The second subdivision of the first 
 answer is clearly frivolous. It is a statement of new matter. It 
 confesses the allegations of the complaint and seeks to avoid 
 them. This now matter does not constitute a defence. The 
 
 22 allegation in the complaint is, that net earnings had been received 
 by the defendant for the -year 1869, that plaintiffs had requested 
 payment of a dividend on the preferred stock, and that defendant 
 had neglected and refused to pay it. This cause of action is 
 confessed by the second subdivision of the first answer, and is 
 not avoided by the allegation that plaintiffs had not requested an 
 accounting in respect to the matters alleged. It was sufiieient 
 that net earnings had been received by the defendant, that 
 plaintiffs requested payment of a dividend, and that defendant 
 neglected and refused to pay it. The plaintiffs' right of action 
 was perfect from the facts alleged in the complaint, and was not 
 avoided by the new matter set up in the second division of 
 the first answer. The new matter so set up could not have any 
 effect, even upon the question of costs. 
 
 " The second answer, containing three subdivisions, numbered 
 1, 2 and 3, is not a statement of anything. Each subdivision is 
 imperfect, and does not contain a full sentence ; neither sub- 
 division commences with a nominative and verb ; neither 
 subdivision commences with the words " the defendant alleges, 
 
III. Technical Rules. (5) Answer. 441 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 or states, or avers." But waiving this informality, and regarding 24 
 this answer as alleging the facts stated, there is nothing in 
 either of the subdivisions, or in all of them, which constitutes a 
 defence to the cause of action alleged in the complaint. The 
 opening statement of that answer, to the effect that the interest 
 of the preferred stockholders, in respect of the matters alleged 
 in the complaint, is adverse to the interests of the holders of 
 common stock, is f ri^^'olous, whether it be regarded as a statement 
 of matter of law or fact. 
 
 '"The holders of preferred stock are duly entitled to dividends 
 -out of net earnings, during the current year, to the extent of 
 seven per cent., and this is all that the plaintiffs claim by their 
 ■complaint, and in that matter the holders of common stock, by 
 the terms of the contract with the company and the statute under 
 which it was organized, have no interests adverse to that of the 
 preferred stockholders, or otherwise. If the plaintiffs, as holders 
 of preferred stock, claimed a dividend out of any other fund thail 
 net earnings during the current year, or to a larger amount than 
 that stipulated for, the interest of the holders of common stock 
 would be adverse" to the claim of the holders of preferred stock, 26 
 but no such claim is made in the complaint, nor is the fact 
 alleged in the answer. This portion of the answer is frivolous, 
 standing alone, and is equally frivolous when read in connection 
 with the residue of the answer. The fact alleged, that the four 
 holders of common stock named are living in the city of New 
 York, is of no legal effect in this case. They are not necessary 
 or proper parties to the action. The action is on a money 
 •demand against the companj', which it has contracted to pay, and 
 the holders of the common stock have not and cannot claim any 
 interest in this controversy between the plaintiffs and the com- "" 
 pany, adverse to the plaintiffs. They are not necessary parties 
 to a complete determination or settlement of the questions 
 involved. The court can determine tlie controversy between the 
 parties now before it, without prejudice to any rights of the 
 liolders of the common stock of the company. 
 
 " The allegation in the second subdivision of this answer, to 
 the effect that the action cannot properly proceed to trial with- 
 oiit the presence of one or more of the holders of common stock 
 
442 Abbott's Sklect Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co.^45 N. Y., 468. 
 
 28 to represent their interest, is also frivolous, whether regarded as 
 a statement of law or fact, and the reason which is alleged as the 
 basis of this allegation is also unsound. Any dividend that shouM 
 he paid to the holders of preferred stock will not and cannot 
 reduce the dividends which are payable to the holders of common 
 stock. The holders of common stock are not entitled to any 
 dividends out of the net earnings of the company until the pre- 
 ferred stockholders are paid a dividend of seven per cent., if the 
 net earnings amount to that sum. It might, with equal pro- 
 priety, be urged that the common stockholders are necessary or 
 proper parties to an action brought by an employee of the com- 
 pany to recover for his services, or in an action by one who had 
 furnished supplies to the company to recover payment of his 
 demand. 
 
 " The third subdivision of the second answer is clearly frivo- 
 lous. It merely states the names and residences of the directors 
 of the defendant. No cause of action is alleged against them. 
 The allegations in the complaint, that the persons having charge 
 and control of the funds and affairs of the defendant have 
 30 diverted and appropriated a part of its net earnings for the year 
 1869 to the purchase of and investment in property other than 
 that necessary or proper to be held or owned by the defendant, 
 and not authorized by its charter, is a statement of a cause of 
 action against the Erie Railway Company for the acts of its agents 
 and oihcers. If the latter could also be sued for the same acts, 
 the plaintiffs are not bound to pursue them alone, or jointly with 
 their principals. The second answer is, for the reasons stated, 
 frivolous in general and frivolous in detail, and the plaintiffs 
 should have judgment thereon." 
 
 \_RemarTts -upon the subject of striking out a part of the affi- 
 davits are here omitted.'\ 
 
 The General Term, without further opinion, affirmed tlie 
 order so far as related to the pleadings and judgment thereon. 
 
 The Court of Appeals now reversed part of the order, and 
 modified and affirmed the residue. 
 
 Folger, J. First, had the Special Term the power to strike 
 out the first defence set up in the answer as sham ? A sham 
 
III. Technical Rules. (5) Answer. 443 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 answer is one that is false, and these words, as applied to an 32 
 answer, are synonymous. (The People v. McComber, 18 N. Y., 
 320.) A defence is sham, in the legal meaning of the term, 
 which is so clearly false in fact that it does not in reality involve 
 any mattei'^of substantial litigation. {Id.) The first defence set 
 up in the answer is of two parts. The second part avers that 
 " the affairs of the defendant are managed, by seventeen direct- 
 ors, and the plaintiffs have not asked from any of the said 
 directors any accounting in respect to the matters set forth in the 
 complaint." "We find nothing in the papers which shows that 
 this allegation is false. ' "^ 
 
 It is undoubtedly true. It could not, therefore, be stricken 
 out as sham. For although it may not involve any matter of 
 substantial litigation, it is not because it is clearly false in fact. 
 It will be noticed, however, as we progress, in its character as 
 frivolous or irrelevant. 
 
 The first part of the first defence is a general denial of certain 
 material allegations of the complaint. 
 
 We have held, in Wayland v. Tysen, decided 45 N. Y., 281, 
 that a verified answer which interposes a general denial to the 34 
 complaint is tantamount to a plea of the general issue under 
 the former system of practice at law ; that such answer gives to 
 the defendant the right to require the plaintiff to establish by 
 proof all the material facts necessary to show his right to a 
 recovery ; and that it cannot be stricken out as sham, although 
 shown by affidavits to be false. " This was not upon the ground 
 that a false plea was not sham, but upon the ground that a party, 
 making a demand against another through legal proceedings was 
 required to shoAv his right by common-law evidence, and that 
 ex parte affidavits were not such evidence." 
 
 " When the general issue under the former practice was," — 
 and a general denial under the present practice is -" interposed 
 as a defence, the party had " — and has — " a right to a ' trial by 
 jury, which is secured to him by the Constitution" (art. 1, § 2). 
 In Wayland v. Tysen, the answer was a general denial of the 
 whole complaint. In the case before us the general denial of 
 the answer is of but a portion of the complaint. Many of the 
 averments of the complaint are admitted, there being no denial 
 
444 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 36 of them in the answer. The defendant, it would appear, did not 
 seek to controvert them, and denied, as it might (Code, § 149), 
 the material allegations of the complaint which it did not care to 
 controvert. This section permits " a general . . . denial of 
 each material allegation of the complaint controverted by the 
 defendant." As to those allegations thus denied, the answer is 
 as fully a general denial as is an answer denying the whole , 
 complaint a general denial of all its allegations. It puts fully 
 in issue the allegations which are denied, and demands of the 
 plaintiif that he make proof of them. The whole stress of 
 the controversy may be upon the truth of these allegations, and 
 all other averments be no more material than as indacement. 
 
 The allegations denied may be so material as that, without 
 establishing them, the plaintiff must entirely fail in his action. 
 A general denial of but these allegations does then so stand in 
 the way of the plaintiffs as that it must be met and overcome by 
 proof. And such proof must in such case, as well as in that of 
 a general denial of the whole complaint, be the common-law 
 proof, which, as was held in Wayland v. Tysen, the defendant 
 
 38 has the constitutional right to require. 
 
 But it may be said that such is the case only in an action seek- 
 ing relief, according to the rules of the common law, as was the 
 case above cited. And, indeed, it has been held (as in Sheppard 
 V. Steele, 43 N. Y., 52), that in an action seeking relief accord- 
 ing to the rules of equity, the provision of the Constitution above 
 referred to does not apply. The right of a party to a trial by 
 jury, as there guaranteed, is " in all cases in which it has been 
 heretofore used." As courts of equity did not theretofore 
 use the trial by jury, no right is violated when an action seeking 
 relief from the equity power of the court is heard without the 
 aid of a jury. But though the distinction is of necessity still 
 kept up between equitable and legal grounds of claim or defence, 
 they are administered upon by the same court and in the same 
 form of action, and with the same mode of pleading. And 
 whether the complaint sets up a claim formerly cognizable by a 
 court of law, or one entertained only in a court of equity, the 
 answer follows the sam3 form. The issue in the action is arrived 
 at in the same mode of allegation. A general denial is the same 
 
III. Technical Rules. (5) Answer. 445 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 in either case, and the same rules of practice must apply to it. 40 
 If it is equivalent to a general issue and puts the plaintiff to the 
 proof of his cause of action in the one case, it does in the other. 
 And if it may not be stricken out as sham, because it is a general 
 denial, in the one ease, it may not in the other. And as in the 
 one case the general denial requires of the plaintiff a trial and 
 the proof of his demand before a jury, so in the other the general 
 denial requires of him a trial and the proof of his demand by the 
 production of his witnesses before the proper tribunal in the 
 presence of the defendant, subject to his power of cross-examina- 
 tion. In neither ease can affidavits taken ex parte out of court 
 determine the issue. 
 
 But it is claimed that the first part of the first defence of the 
 answer is a denial by way of negative pregnant ; and that such 
 defect in an answer can only be reached by a motion under sec- 
 tion 162 of the Code [of Procedure,] to strike out the denial as 
 sham. If this were so (/. e., if it were a negative pregnant), it is 
 doubtful if the plaintiffs could object to it in this way; for the 
 Code gives the right to the defendant to answer by a general 
 denial of each material allegation controverted by him. A 42 
 general denial of a compMint upon a promissory note, which 
 averred making, indorsing, delivery, presentment for payment, 
 protest and notice, is permissible. Could such a denial be cor- 
 rectly said to be by way of negative pregnant, because it might be, 
 that, though the note was not protested, still all other averments 
 in regard to it were true ? To require that such a denial should 
 be stricken out as sham, as amounting to a negative pregnant, 
 would be to take away the right to a general denial of any alle- 
 gation averring more than one fact, and to exact of the defend- 
 ant a specific denial of each allegation and of each part of every '^ 
 averment. The general denial of an answer has as wide a scope 
 as the allegation of the complaint which it denies, and it puts in 
 issue all which the plaintiff could be permitted to prove under 
 his averment. If the plaintiff chooses to so broadly frame the 
 allegation of his complaint, as that a general denial of it may 
 still leave specifically undenied some part of the matter comprised 
 in the whole of his allegation, he cannot take from the defendant 
 his right of a general denial, and require him to specifically deny 
 
446 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 44 eacli part of the whole which the complaint has alleged. More- 
 o\-er, it is difficult to see how a general denial can be correctly 
 criticised as containing a negative pregnant. The instances given 
 of it in the books do not show a general issue, but a special plead- 
 ing negativing some averment, in the words of the averment, or 
 some part of them, leaving without effectual traverse other parts 
 of the averment. Thus, in trespass, for entering the plaintiff's 
 house, the defendant pleaded a license from the plaintiff's 
 daughter, to which the replication that the defendant did not 
 enter by her license was, before verdict, bad as a negative preg- 
 nant, for it did not traverse the averment of the license, and was 
 pregnant with the admission that there was a license. (1 Chitty 
 PL, 614, margin.) 
 
 But a general denial of the whole plea, had such pleading been 
 permissible, would have put in issue the whole averment of the 
 plea. And see Wall v. Buffalo Water Works Co. (18 N. Y., 119 
 and 124). 
 
 We are therefore of the opinion that the general denial of the 
 first defence could not be stricken out as sham. 
 
 4(; The second part of the first defence set up in the answer is 
 open to exception. The fact that the plaintiffs did not, before 
 the commencement of their action, apply to any of the directors 
 for an accounting, was not material or relevant. At the most, it 
 CDuld be of avail on the question of costs. And not proved 
 by the plaintiffs, this would be as available upon this question 
 as if pleaded and proven by the defendant. But if the plaint- 
 iffs establish the averments of the complaint, they will show 
 the defendant in default ; they will show that they had a rightful 
 claim against the defendant which can be enforced hj action. 
 
 ^" The maintenance of that action will not at all depend upon a 
 prior demand of an accounting ; for without either accounting 
 or demand for it, it was incumbent upon the defendant and its 
 directors to have made payment to the plaintiffs, and dereliction 
 in that duty rendered the company liable to an action. (Stacy 
 V. Graham, 14 N. Y., 492.) This part of the answer, though 
 not false in fact, was so entirely immaterial as that it might have 
 been stricken out as irrelevant under section 152 of the Code 
 [of Procedure]. 
 
III. Technical Rules. (5) Answer. 447 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 The court at Special Term having stricken out the first answer 48 
 as sham, and holding the whole second answer frivolous, ordered 
 judgment in the action for, the plaintiffs under section 247 of 
 the Code [of Procedure]. If it had been right in striking out 
 the general denial of the iii'st answer as sham, it might have well 
 taken this course ; but as the general denial of the first answer 
 must remain on the record as a good answer, demanding from 
 the plaintiffs proof of the allegations put in issue, the court could 
 not act upon the second answer as frivolous. It could not strike 
 it out for that reason ; for though so frivolous as to entitle the 
 plaintiffs, if it stood alone, to judgment upon it, it cannot be 
 stricken out, but must remain on the record. (Briggs v. Bergen, 
 23 N. Y., 162.) And the better opinion is that the 247th section 
 of the Code [of Procedure] gives no power to order judgment 
 upon a part of an answer as frivolous where there is a part which 
 is held good. But the plaintiffs, in their notice of motion to 
 strike out as sham, and for judgment on the answer as frivo- 
 lous, also asked for such other relief as may be proper. 
 
 We have held, in The People ex rel. Johnson v. Supervisors of 
 Delaware County (45 N. Y., 196), that, under such a clause in 50 
 the notice of motion, relief may be given other than that specif- 
 ically asked for, and to such extent as is warranted by the facts 
 plainly appearing in the papers on both sides. There is no 
 reason why we may not apply this rule to this case. And though 
 the second answer may not be stricken out as frivolous, nor may 
 the plaintiff have judgment thereon, under section 247 of the 
 Code [of Procedure], yet if it shall appear to be irrelevant it 
 may be stricken out as such under section 152. 
 
 The substance of the first two paragraphs of the second de- 
 fence setup in the answer is that the interests of the plaintiffs ^■'■ 
 are adverse to those of the common stockholders of the Erie Rail- 
 way Company, and that the action cannot properly proceed to 
 trial without some of the common stockholders are made de- 
 fendants in it. The plaintiffs cannot recover unless they prove 
 that the net earnings of the company have been large enough to 
 pay them a dividend, according to the agreement by which they 
 became preferred stockholders. And they must establish this 
 .to the satisfaction of the court, as a matter of fact, and also as 
 
448 Abbott's Select Cases on Code Pleadusk^. 
 
 Thompson v. Erie Railway Co., 45 N. Y., 468. 
 
 52 matter of law, in view of the questions of construction of the 
 agreement which are made. If the plaintiffs do establish thisj 
 the common stockholders can, in Jhe eye of the law, have no 
 interest adverse thereto. Then the only pretence can be that 
 the directors, whom the common stockholders have placed in the 
 charge of their property and interests, will not faithfully defend 
 them against assault, and will not so resist the plaintiffs' action 
 as that the questions of fact and the questions of law shall be 
 thoroughly tried. 
 
 There does not seem force enough in this consideration to 
 justify a court in holding that an averment of such a fact coming 
 from the directors themselves is relevant to the material issues 
 in the action. If the common stockholders were before the 
 court, by motion in their own behalf, asking to be made parties, 
 and showing that the trustees of their own selection were likely 
 to prove faithless to their trust, the question would have more 
 weight. 
 
 The defendant has cited authorities to us showing that in cer- 
 tain cases, where there are claims by one set of stockholders 
 
 54 which will conflict with the interests of another set of stock- 
 holders, it may be proper that both sides of the case should be 
 represented in court by some from each set. We do not under- 
 stand these authorities to hold that this must in all cases be so, 
 as an inflexible rule. It is a matter in which the court may 
 exercise its discretion, as to who are necessary or proper partie-, 
 according as the facts and exigencies of each case appear. 
 "We see nothing in the facts of the case before us demanding the 
 bringing in of common stockholders as parties defendant, or 
 which gives warrant for the answer to that effect, or whicli will 
 
 ^^ justify its interposition to the hindrance of the plaintiffs in their 
 action. In our view, so much of the second defence of the 
 answer may properly be held irrelevant, and may be stricken out 
 as such. 
 
 The third paragraph of the second defence is also irrelevant. 
 The plaintiffs allege, as a breach of duty of the defendant to 
 them, that the persons in authorized control of its funds and 
 affairs have diverted and appropriated part of its net earnings. 
 They set up this as a cause of action against the defendant. If 
 
III. Technical Rules. (5) Auswer. 4^1^ 
 
 Sherman v. Boehm, 15 Abb. N. C, 2.'54. 
 
 it is, it is no answer for the defendant to point out wlio tliose 56 
 persons are. The plaintiffs have chosen to sue the defendant, 
 who cannot, if the plaintiffs have good cause of action, shift them 
 for redress over to others. If the plaintiffs have no cause 
 of action, proof of the averment of the answer setting forth 
 the names of these persons would not tend to establish that.. 
 The persons named are not necessary parties to the action. 
 The plaintiffs are not bound to sue them, either in this action or 
 in another against them. This paragraph in the answer seems 
 utterly irrelevant. 
 
 Our conclusion is that the order of the General Term and the 
 Special Term should be reversed, in so far as it strikes out the 
 general denial of the first answer, and as it directs judgment for 
 the plaintiffs in the action, and as it orders a reference to take 
 and state an account ; that it be modified so far as it holds the 
 plaintiffs entitled to judgment on the second defence set up in 
 the answer as frivolous, and so far as it strikes out the last para- 
 graph of the first defence, and that an order be entered striking 
 out those parts of the answer as irrelevant ; and that, except as 
 thus modified or reversed, the order of the General Term be ^^ 
 aflBrmed, and that neither party have costs of this appeal as 
 against the other. 
 
 All the judges concurred, except Kapallo, J., who did not vote. 
 
 Ordered accordingly. 
 
 SHERMAN V. BOEHM. 
 
 New YorJc Common Pleas, General Term, 1885. 
 [Reported in 15 Abb. N. C, 254.] 
 
 1. A verified denial upon information and belief may be stricken out on 
 
 motion as sham, where the moving affidavits show that defendant 
 must have personal knowledge of the subject. 
 
 2. It would be otherwise, under the rule in Way land v. Tysen, 45 iST. Y. , 
 
 381, and Thompson v. -Erie Ry. Co., id., 468 {ante, p. 434), if the affi- 
 davits went to the existence of the fact denied, instead of the defend- 
 ant's possession of knowledge. 
 
 The first cause of action alleged in plaintiffs' complaint was 1 
 for damages for breach of defendants' contract, as partners, to 
 29 
 
450 Abbott's Select Cases on Code Pleading. 
 
 McKyring v. Bull, 16 N. Y., 297. 
 
 retain plaintiffs as agents and supply them with certain goods for 
 sale. Defendants' answer admitted the partnership, and the 
 writing embodying the alleged contract and contained this 
 clause : " And further answering, on their information and be- 
 belief , defendants deny each and every allegation and complaint 
 ^constituting the plaintiffs' first cause of action." 
 
 Plaintiffs moved that this denial on information and belief be 
 (Stricken out. The motion was supported by affidavits of each of • 
 ,the plaintiffs that the transactions pleaded in the first cause of 
 action were had by and between the deponents and the defend- 
 ant Samuel Boehm, who verified the answer, and the defendant 
 iGustave Boehm, his partner, and were in every sense within the 
 actual and personal knowledge of both defendants, and especially 
 •of Samuel Boehm, who verified the answer, denying on informa- 
 tion and belief. 
 
 The Special Term deemed the denials false, but that the 
 motion must be denied under the authorities. 
 
 The General Term held in effect as indicated in the head-note 
 {Daly and All^n, J. J., concurring ; Laeeemoee, J., dissenting). 
 
 MoKYRING V. BULL. 
 
 JVew York Court of Appeals, 1857. 
 [Reported in 16 N. Y., 297.] 
 
 1. A general denial does not let in evidence of payment oi- any other new- 
 matter in the nature of avoidance. 
 
 ■2. This rule applies whether the matter is offered to bar the action or to 
 mitigate damages. 
 
 Z. The history of the general issue at common law ; and the distinction 
 between that plea and a general denial under the Code;— explained. 
 
 4. The common law practice affords no sanction for allowing payment or 
 
 any other matter in confession and avoidance to be proved under a 
 general denial. 
 
 5. Strict logical precision in pleading may be required. 
 
 i6. An answer must traverse facts ; traversing legal conclusions does not 
 avail. Hence a denial of an allegation that there is due a specified 
 sum over and above all payments is bad, as denying a mere legal con- 
 clusion. 
 
III. Technical Rules. (5) Answer. 451 
 
 McKyring v. Bull, 16 N. Y., 397. 
 
 Action for services. 
 
 The contents of the complaint were : " That said plaintiff and 
 defendant reside in the city of Buffalo ; that this plaintiff, of 
 said city, at the request of said defendant, entered into the employ 
 •of him, said defendant, on the 12th day of May, A.D. 1852, 
 as the hired man and servant of all work of him, said defendant ; 
 and that plaintiff continued so in the employ of said defendant, 
 doing work and services for him at his request, until the 3d day 
 of May, 1854, being one year, eleven months and twenty-one 
 days, which work, labor and services, was, and is, worth the 
 sum of $650. That there is now due to this plaintiff, over and 
 above all payments and offsets on account of said work, the sum 
 of $134, which said sura defendant refuses to pay. 
 
 " Whkeefoee, plaintiff demands judgment in this actipn for 
 the said last mentioned sum and interest from the 4th day of 
 May, 1854, besides costs." 
 
 The contents of the ansiver were that : " The defendant . . . 
 denies each and every allegation contained in said complaint." 
 
 At the trial, in the Buffalo Superior Court, the judge refused 
 to allow defendant to prove payment, because payment was not 
 pleaded. He exchided also an offer to prove partial payment as 
 matter in mitigation, of damages, because not pleaded. Plaintiff 
 had a verdict for the sum he had claimed. 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Selden, J. Although the Code of Procedure has abrogated 
 the common law system of pleading, with all its technical rules, 
 yet, in one respect, the new system which it has introduced bears 
 a close analogy to that for which it has been substituted. The 
 general denial allowed by the Code corresponds very nearly with 
 the general issue, in actions of assumpsit and of debt on simple 
 contract, at common law. The decisions upon the subject, 
 therefore, in the English courts, although not obligatory as 
 precedents since the changes introduced by the Code, will never- 
 theless be found to throw much light upon the question pre- 
 sented here. 
 
452 Abbott's Select Cases on Code Pleading. 
 
 McKyring v. Bull, 16 N. Y., 397. 
 
 While the general issue, both in assumpsit and debt, was in 
 theory what the general denial allowed by the Code is in fact, 
 viz., a simple traverse of the material allegations of the declara- 
 tion or complaint, yet, from the different phraseology adopted 
 in the two forms of action, a very different result was produced. 
 The declaration, in debt, averred an existing indebtedness, and 
 this amount was traversed by the plea of nil debet, in the present 
 tense ; hence, nothing could be excluded which tended to prove 
 that there was no subsisting debt when the suit was commenced. 
 In assumpsit, on the contrary, both the averment in the declara- 
 tion and the traverse in the plea were in the past instead of the 
 present tense, and related to a time anterior to the commence- 
 ment of the suit. Under non assumpsit, therefore, so long as 
 the rule of pleading which excludes all proof not strictly within 
 the issue was adhered to, no evidence could be received except 
 such as would tend to show that the defendant never made the 
 promise. That this was the view taken of these pleas, in the 
 earlier cases, is clear. 
 
 In an anonymous case, before Lord Holt (1 Salk., 378), it was 
 adjudged " that, in debt for rent, upon nii debet pleaded, the 
 statute of limitations may be given in evidence, for the statute 
 has made it no debt at the time of the plea pleaded, the words 
 of which are in the present tense." Again, in Draper v. Glassop 
 (1 Lord Eay, 153), the same judge said: "If the defendant 
 pleads non assumpsit, he cannot give in evidence the statute of 
 limitations, because the assumpsit goes to the praeter tense ; but 
 upon nil debet the statute is good evidence, because the issue is 
 joined per verba de jjresentiP 
 
 We iind, however, that a practice afterwards grew up, and 
 came at last to be firmly establislied, of allowing, iinder the plea 
 of non assumpsit, evidence of various defences, which admitted 
 all the essential facts stated in the declaration, but avoided their 
 effect by matter subsequent, such as payment, accord and satis- 
 faction, arbitrament, release, etc. The history and progress of 
 this anomaly is easily traced. The first departure from prin- 
 ciple was in relation to the general issue in actions of indebitatus 
 assumpsit. In these actions, the promise alleged being a mere 
 legal implication, arising upon the facts stated, a traverse of the 
 
10 
 
 III. Techniord Mules. (5) Answer. 45.3 
 
 McKyriDg v. Bull, 16 N. Y., 297. 
 
 promise was of course equivalent to a traverse of the allegations 
 upon which it is predicated. Those allegations were regarded 
 as, in substance, the same as in an action of debt upon simple 
 contract ; and hence the courts concluded that a plea which put 
 them in issue should have the same effect as the plea of nil 
 debet. That this was the reasoning originally^ resorted to is 
 plain from some of the older cases on the subject. In Beckford 
 V. Clai'k (1 Sid., 236), which was an action of assumpsit brought 
 upon a special promise to secure goods from perils, those of the 
 sea excepted, the Court of King's Bench held, that an assumpsit 
 in fact, upon non assumpsit pleaded, a release could not be given 
 in evidence as a defence, but on assumpsit in law it might. So 
 in the case of Fits v. Freestone (1 Mod., 210) it was held that 
 " In an action grounded upon a promise in law, payment before 
 the action brought is allowed to be given in evidence upon non 
 .assumpsit ; but when the action is grounded upon a special 
 promise, then payment or any other legal discharge must be 
 pleaded." 
 
 But notwithstanding the distinction adverted to in these cases, 
 the admission of the evidence, even in actions of indeliitatus as- 11 
 sumpsit, was a plain departure from the issue upon non assump- 
 sit, which was, in terms, that the defendant had not promised ; 
 a departure, however, supposed to be justified as a sacrifice of 
 form to substance. But the courts having already sacrificed 
 substance to form, by allowing an action of debt to be converted 
 into assumpsit by the addition of a mere fictitious promise, had 
 imposed upon themselves the necessity of adhering to this form. 
 By disregarding it, a manifest incongruity in pleading was pro- 
 duced. Tested by the language of the record, there was no dif- 
 ference in the issue formed by the plea of non assumpsit, 
 whether the promise was express or implied ; the courts, there- 
 fore, lost sight, after a time, of the distinction upon which spe- 
 cial defences were originally admitted in actions of indebitatus 
 assumpsit alone, and, looking only at the record, took another 
 stride, and admitted evidence of payment, release, arbitrament, 
 -etc., under non assumpsit, without regard to the nature of the 
 promise. 
 
 To justify this a new theory was necessary, and we find it 
 
 12 
 
454 Abbott's Select Cases on Code Pleading. 
 
 McKyring v. Bull, 16 N. Y., 297. 
 
 13 broached by an early writer. (Gilb. C. P., 63.) It was, that the 
 gist of the action of assumpsit was the fraud or deceit practiced 
 by the defendant in not performing his promise ; and that this 
 was put in issue by the plea of non assumpsit. Hence, any evi- 
 dence showing that there was no existing obligation at the com- 
 mencement of ^he suit, and, consequently, no fraud which was 
 injurious to the plaintiff, would support the plea. The same 
 reasoning is also adopted by a later writer upon pleading. 
 (Laws on PL, 520, 521.) It is, however, manifestly false and 
 illogical. Fraud or deceit never constituted the gist of the 
 action. On the contrary, it has ever been held that fraud need 
 not be alleged, and, if alleged, need not be proved. All the 
 other theories, invented to account for the anomaly, were 
 equally fallacious. 
 
 These errors proved, in their consequences, subversive of some 
 of the main objects of pleading. They led to surprises upon 
 the trial, or to an unnecessary extent of preparation. The 
 courts, however, found it impossible to retrace their steps, or to 
 remedy this and other defects in the sytem of pleading, without 
 
 15 authority from Parliament. This authority was at length con- 
 ferred by the act of 3d and 4th William IV., ch. 42, § 1, and the 
 judges in Hilary term, thereafter, adopted a series of rules, one 
 of which was to correct the eri'ors which have been adverted to . 
 (2 Cromp. & Mees., 10.) The first rule adopted, under the head 
 of assumpsit, provided in substance that the plea of non assump- 
 sit should operate, where the promise was express, as a denial of 
 the promise, and, where it was implied, of the matters of fact 
 upon which the promise was founded. 
 
 The object of this rale was to restore pleading in assumpsit to 
 its original logical simplicity. It was obvioiisly intended as a 
 mere correction of previous judicial errors. It intei-prets the 
 plea of non assumpsit strictly according to its terms, and thus 
 plainly indicates that the courts had erred in departing from 
 those terms. That this was the view of the judges is shown by 
 the different course taken in regard to the plea of 7iil debet. As 
 this plea, construed according to its terms, included every 
 possible defence within the issue which it formed, the judges 
 did not attempt to change the import of those terms, but 
 
III. Technical Rules. (5) Answer. 455 
 
 McKyring v. Bui), 16 N. Y., 397. 
 
 abrogated the plea. Eule two, under the head of " Covenant i T 
 and Debt," provides that " The plea of 7iil dehet shall not be 
 allowed in any action ;"' and rule three substitutes the plea of 
 nunquam indebitatus in its place. Thus the whole practice, 
 which had continued for centuries, of receiving evidence of 
 payment, and other special defences under the plea of nil debet 
 and non assumpsit, was swept away. 
 
 There are several inferences to be drawn from this brief 
 review, which have a direct bearing upon our new and unformed 
 system of pleading in this State. The first is, that no argument ^ 
 in favor of allowing payment, or any other matter in confession 
 and avoidance, to be given in evidence under a general denial, 
 can be deduced from the former practice in that respect, as this 
 practice has been abandoned in England, not only as productive 
 of serious inconvenience, but as a violation of all sound rules of 
 interpretation. 
 
 A second inference is that, in regard to plea;ding, it is indis- 
 pensable to adhere to strict logical precision in the interpretation 
 of language. The anomaly which has been referred to was 
 wholly produced by the slight deviation from such precision in 19i 
 the action of indebitatus assumpsit which has been pointed out. 
 
 But the most important inference to be deduced from the 
 historical sketch just given consists in an admonition to adhere 
 rigidly to that rule of pleading which permits a traverse of facts 
 only, and not of legal conclusions ; and this brings us to the 
 pivot upon which the point under consideration must necessai-ily 
 turn. The counsel for the defendant insists that, as the answer 
 controverts every allegation of the complaint, it puts in issue 
 the allegation with which it concludes, viz., that there was due 
 to the plaintiff at the commencement of the suit, over and above 
 all payments, etc., the sum of $134. But this allegation is a 
 mere legal conclusion from the facts previously stated. Its. 
 nature is not changed by the addition of the words " over and 
 above all payments." No new fact is thereby alleged. The 
 plaintiff voluntarily limits his demand to a sum less than that to 
 which, under the facts averred, he would be entitled. 
 
 "Were courts to allow allegations of this sort to be traversed, 
 they would fall into the same difficulty which existed in regard 
 
456 Abbott's Select Cases on Code Pleading. 
 
 MoKyring v. Bull, 16 N. Y., 297. 
 
 21 to the plea of w?7 dehet, and which led the judges in England to 
 abolish that plea. It would be impossible under such a rule, in 
 a great variety of cases, to exclude any defence whatever, if 
 offered under an answer containing a general denial. In England, 
 as we have seen, after centuries of experience, it has been found 
 most conducive to justice to require the parties virtually to 
 apprise each other of the precise grounds upon which they intend 
 to rely ; and the system of pleading prescribed by the Code 
 appears to have been conceived in the same spirit. It was 
 evidently designed to require of parties, in all cases, a plain and 
 distinct statement of the facts which they intend to prove ; and 
 any rule which would enable defeadants, in a large class of cases 
 to evade this requirement, would be inconsistent with this design. 
 
 The case of Van Gieson v. Van Gieson (12 Barb., S. C. R., 
 520) subsequently affirmed in this court, contains nothing in 
 opposition to the doctrine here advanced. That case simjjly 
 decided that where the complaint contained an avennent of 
 non-payment, a plea of payment formed a complete issue. That 
 payment having been denied in the complaint, it was unnecessary 
 23 to repeat that denial in a reply. My conclusion, therefore, is, 
 that neither payment nor any other defence, which confesses 
 and avoids the cause of action, can in any case be given in 
 evidence as a defence, under an answer containing simply a 
 general denial of the allegations of the complaint. 
 
 The next question is, whether evidence of payment, either in 
 whole or in part, is admissible in mitigation of damages. As the 
 Code contains no express rule on the subject of mitigation, 
 except in regard to a single class of actions, this question cannot 
 be properly determined without a recurrence to the principles of 
 the conmion law. By those principles, defendants in actions 
 sounding in damages were permitted to give in evidence, in 
 mitigation, not only matters having a tendency to reduce the 
 amount of the plaintiff's claim, but, in many cases, facts showing 
 that the plaintiif had in truth no claim whatever. It was not 
 necessarily an objection to matter offered in mitigation, that if 
 properly pleaded it would have constituted a complete defense. 
 
 Thus in Smithies v. Harrison (1 Lord Raym., 727), the truth 
 of the charge was received in mitigation in an action of slander. 
 
III. Technical Rules. (5j Answer. 457 
 
 McKyring- v. Bull, 16 N. Y., 397. 
 
 altliougli not pleaded. Again, in tiie case of Abbot v. Chapman ^5 
 (2 Lev., 81), which was an action of assumpsit, the defendant 
 having given in evidence a release. Lord Holt said that " he 
 shonld have pleaded exoneravit, but that the evidence was admis- 
 sible in mitigation of damages." So, too, in the modern case -of 
 ISTichoU V. Williams (2 Mees. & "Wells., 758), which was assump- 
 sit for use and occupation, the defendant, having pleaded pay- 
 ment to part of the demand and non assumpsit to the residue, 
 was permitted upon the trial to prove payment in full ; but it was 
 held that the evidence could only go in mitigation, and that the ^^ , 
 plaintiff was entitled to judgment for nominal damages. 
 
 It was obvious that this practice was open to serious objec- 
 tions. It enabled defendants to avail themselves of their 
 defences for all substantial purposes, without giving any notice 
 to the plaintiff. Its unjust operation in the action of slander 
 was observed at an early day, and an attempt was made in the 
 case of Underwood v. Parks (2 Stra., 1200) to correct the evil, so 
 far as that action was concerned. But in regard to payment, 
 release, etc. , so long as they were received in evidence under the 
 general issue in bar, no objection could be made to allowing 27 
 them in mitigation. As soon, however, as this practice was 
 abrogated by the rules of Hilary term, 4th William IV., the 
 question as to the admissibility of payment in mitigation at once 
 arose. 
 
 In Lediard v. Boucher (7 Carr. & Pa., 1), Lord Denman ad- 
 mitted evidence of part payment under the general issue on the 
 ground that the rule of Hilary term meant " a complete pay- 
 ment, which is an answer to the action, and not a partial payment 
 which merely goes to the amount of the damages ; '' and in 
 Shirley v. Jacobs (7 Carr. & Pa., 3) the Court of Common Pleas "'" 
 held that payment in full might be received in mitigation. 
 TiNDAL, Ch. J., says : " I take the meaning of the rule to be this, 
 that ' payment ' is used to denote that which is intended as an 
 answer to the action. In the present case the evidence was not 
 offered with that view ; it was only offered in reduction of the 
 • damages." 
 
 These decisions soon led to the adoption of the rule of Trinity 
 term (1st Yict.), by which it is provided that " Payment shall 
 
458 Abbott s Select Cases on Code Plkading. 
 
 McKyring v. Bull, 16 N. Y. , 397. 
 
 29 not in any case be allowed to be given in evidence in reduction 
 of damages or debt, but shall be pleaded in bar " (4 Mees. & 
 Wells., 4). A question may arise whether by the word " pay- 
 ment," as used in this rule, payment in full only, is meant, or 
 whether it includes partial payment also. The latter, however, 
 must, I apprehend, be its true construction. It would be found 
 as impossible to discriminate between partial payment and pay- 
 ment in full, when offered in mitigation, as it was between proof 
 of the truth of the charge and evidence tending to prove it true 
 
 ^^ in the action of slander, after the rule adopted in Underwood v. 
 PsiTk& (supra). Payments may be made at different times and 
 in different sums, the evidence in regard to some of which may 
 be conclusive, and as to others, doubtful ; so that in many cases 
 it would not be known whether the proof would establish com- 
 plete or only partial payments without first taking the verdict of 
 the jury. 
 
 The rule of Trinity term (1st Vict.) therefore must be con- 
 strued to exclude evidence not only of complete, but of partial 
 payment in mitigation, without plea. Such a rule does not lead 
 
 31 to the embarrassment which followed the rule of Underwood r. 
 Parks. That rule, in effect, excluded all evidence in mitigation, 
 unless pleaded, and there was no way in which it could be 
 pleaded. In regard to payment there is no such difficulty, -as 
 that may be pleaded to a part as well as to the whole of a demand. 
 It is not essential to the validity of a plea that it should answer 
 the whole of a declaration or complaint, or of any single count. 
 It is sufficient if it is an answer to so much as it professes to 
 answer. (1 Saund., 299 a, note b ; Barnes & Hunt, 11 East, 451 ; 
 Nicholl V. Williams, 2 Mees. & Wells., 758.) 
 
 ' It has, however, been supposed that a defence could not be 
 interposed to part of a single count, except where such count 
 was capable of a definite division into distinct and independent 
 parts. But some of the modern English cases, and especially 
 the case of Henry v. Earl (8 Mees. & Wells., 228), would seem to 
 show that it is not now so regarded in England, at least so far as 
 the plea of payment is concerned ; and that that plea may be in- 
 terposed in an action of debt, to any portion of an entire demand. 
 This consequence, indeed, would seem necessarily to follow from 
 
III. Technical Mules. (5) Answer. 459 
 
 McKyring- v. Bull, 16 N. Y., 397. 
 
 the new rules of Itli William IV. and 1st Victoria, even if it was 33 
 otheiwise before. The matter is now placed, therefore, in the 
 English courts, upon a footing of perfect justice. If the demand 
 for which an action is brought has once existed, and the defend- 
 ant relies upon its having been reduced by payments, he must 
 appear and plead. It is to be determined in this case whether 
 we have kept up with those courts in our measures of re- 
 form. 
 
 The rules of Hilary term (ith William IV.) and the system 
 of pleading prescribed by the Code, have, in one respect a com- 
 mon object, viz., to prevent parties from surprising each other, 
 by proof of which their pleadings give no notice. Those rules, 
 according to the construction put upon them by the courts, were 
 found inadequate, so far as proving payment in mitigation is con- 
 cerned, to accomplish the end in view ; and it became necessary 
 to adopt the rule of Trinity term (^Ist Vict.) to remedy the 
 defect. If the provisions of the Code are to receive, in this re- 
 spect, a construction similar to that given to the rules of Hilary 
 term, then an additional provision will be required to place our 
 practice upon the same basis of justice and convenience with 35 
 that in England. 
 
 But is such a construction necessary ? Section one hundred 
 and forty-nine of the Code provides that the answer of a defend- 
 ant must contain: First, a general or specific denial of the 
 material allegations of the complaint ; and, second, a state- 
 ment of any new matter constituting a defence or counter- 
 claim. 
 
 The language here used is imperative ; " must contain." It is 
 not left optional with a defendant whether he will plead new 
 matter or not ; but all such matter, if it constitute a " defence or 
 counterclaim," must be pleaded ; and this is in entire accordance 
 with the general principles of pleading. 
 
 The word defence, as here used, must include partial, as well 
 as complete defences ; otherwise, it would be no longer possible 
 to plead payment in part of the plaintiff's demand, except in 
 a connection with a denial of the residue ; since section one hun- 
 dred and fifty-three provides that " the plaintiff may, in all cases, 
 demur to an answer containing new matter, where, upon its face, 
 
■i60 Abbott's Select Cases on Code Pleading. 
 
 MoKyring- v. Bull, 16 N. Y., 297. 
 
 37 it does not constitute a counterclaim or defence." Such a restric- 
 tion would be not only contrary to .the general spirit of the Code 
 in regard to pleading, but would obviously conflict with section 
 two hundred and forty-four, subdivision five, which provides that 
 " where the answer of the defendant expressly, or by not deny- 
 ing, admits part of the plaintiil's claim to be just, the court, on 
 motion, may order such defendant to satisfy that part of the 
 claim," etc. The words " expressly, or by not denying," were, 
 it is true, inserted by amendment since the issue in this case 
 was joined; but they do not change the meaning of the sen- 
 tence. 
 
 The question to be determined, then, is, whether these pro- 
 visons are limited in their operation to cases where the defend- 
 ant seeks to avail himself of new matter strictly as a defence, 
 either in full or pro tanto, or whether they extend to the use of 
 such matter in mitigation. Were there nothing in the Code to 
 indicate the intention of the Legislature on this subject, we might 
 feel constrained to follow the construction put by the English 
 courts upon the rules of Hilary term ; although it is evident, 
 
 39 from the subsequent adoption of the rule of Trinity term 
 (1st Vict.), that this construction did not accomplish all that was 
 intended. But section two hundred and forty-six provides that 
 in all actions founded upon contract, brought for the recovery 
 of money only, in which the complaint is sworn to, if the de- 
 fendant fails to answer, the plaintiff is entitled absolutely to 
 judgment for the amount mentioned in the summons, without 
 any assessment of damages. It is plain that, in this class of 
 actions, defendants who have paid part only of the plaintiff's 
 demand must appear and plead such part payment, or they ■^vill 
 lose the benefit of it altogether. The provisions of section three 
 hundred and eighty-five afford no adequate remedy in such cases, 
 because the offer to allow judgment for a part does not relieve 
 the defendant from the necessity of controverting the residue 
 by answer. 
 
 Section 246 could never have been adopted, therefore, without 
 an intention, on the part of the Legislature, that section 149 
 should be so construed as to require defendants, at least in this 
 class of actions, to set up part payment by answer ; and it is diffi- 
 
III. Technical Rules. (5) Answer. 461 
 
 Quinn v. Lloyd, 41 N. Y., 349. 
 
 cult to suppose that they intended the section to receive one con- 41 
 struction in one class of actions and a different one in another. 
 
 My conclusion, therefore, is, that section 149 should be so con- 
 strued as to require the defendants, in all cases, to plead any 
 new matter constituting either an entire or partial defence, and 
 to prohibit them from giving such matter in evidence upon the 
 assessment of damages when not set up in the answer. Not only 
 payment, tberefore, in whole or in part, but release, accord and 
 satisfaction, arbitrament, etc., which may still, for aught I see, 
 be made available in England in mitigation of damages, without 
 plea, must here be pleaded. In this respect, our new system of 
 pleadings under the Code is more symmetrical than that pre- 
 scribed by the recent rules adopted by the English judges. 
 
 The judgment of the Superior Court of Buffalo should be 
 affirmed. 
 
 SiiANKLAND, J., delivered an opinion to the same effect; Com- 
 STOCK, Beown and Bowen, JJ., concurred ; Paige, J., expressed 
 no opinion, and Denio, Ch. J., and Johnson, J., dissented. 
 
 Judgment affirmed. 
 
 QDINN V. LLOYD. 
 
 New York Court of Appeals, 1869. 
 
 [Reported in 41 N. Y., 349.] 
 
 If the coraplaint is framed to sue for a balance, as such, expressly admit- 
 ting payments to have been made, and not showing the amount 
 originally due, payments may be proved under a general denial. 
 
 The complaint alleged : 
 
 I. - That, in the lifetime of said Richard Quinn, and sometime 
 in the month of August, in the year 1863, in the city of New 
 York, in the State of New York, the above defendant engaged 
 the said Kicbard Quinn to proceed to England, and there to 
 perform certain work, labor, and services as a surveyor and 
 draughtsman, for which the said defendant promised to pay the 
 said Eichard Quinn the sum of $15 per week in American gold 
 coin. 
 
462 Abbott's Select Cases on Code Pleading. 
 
 Quinn v. Lloyd, 41 N. Y., 349. 
 
 II. — That, in accordance with such engagement, the said 
 Eichard Quinn proceeded to the city of London, in England, and 
 there performed certain work, labor, and services for the de- 
 fendant as a draughtsman and surveyor, whereby the said 
 defendant became, on the 15th day of July, 18f)4, indebted to 
 the said Eichard Quinn in the sum of $333.07, in American 
 gold coin, being the balance remaining due, after sundry pay- 
 ments made by defendant to said Eichard Quinn. 
 
 That, on the 10th day of June, in the year 1864, the said 
 Eichard Quinn duly demanded payment of the said sum of the 
 defendant, but no part thereof has been paid. 
 
 That, on the said 10th day of June, 1864, the said sum of 
 $333^^^, in American gold coin, was equivalent to the sum of 
 $659jSj\ currency, in which sum the defendant is now justly 
 indebted to this plaintiff, as administrator, as aforesaid. 
 
 [Here followed a second cause of action for such services 
 alleged generally.] 
 
 That, on the 26th day of May, in the year 1867, the said 
 Eichard Quinn died intestate, and that on the 27th day of June, 
 1867, letters of administration upon the estate of said Eichard 
 Quinn, deceased, were duly issued and granted to this plaintiff 
 by the Surrogate of the City and County of New York, appoint- 
 ing this plaintiff administrator of all and singular of the goods 
 and chattels, rights and credits, which were of said deceased, and 
 that the plaintiff thereupon duly qualified as such administrator, 
 and entered upon the discharge of the duties of such ofiiee. 
 
 Wheeefobe, etc. 
 
 The contents of defendant's answer were : 
 
 " That he denies each and every allegation of the said com- 
 plaint, except as to the alleged death of Eichard Quinn, and the 
 appointment and qualification of the plaintiff as his administrator, 
 of which allegations this defendant has no knowledge or informa- 
 tion sufficient to form a belief." 
 
 At the trial, defendant's counsel offered in evidence certain 
 receipts given by deceased during his lifetime to defendant, for 
 moneys paid by said defendant to said deceased on account. 
 
 Objected to by plaintiff's counsel, on the ground that, under a 
 
III. Technical Rules. (5) Answer. 463 
 
 Quinn v. Lloyd, 41 N. Y., 349. 
 
 general denial, evidence of payment as a defence to the action, 
 or of partial payment in mitigation of damages, is inadmissible. 
 Objection sustained. Defendant's counsel excepted. 
 
 The defendant's counsel then moved to amend his answer, so 
 as to admit the evidence, as follows : 
 
 " The defendant admits that the said Kichard Quinn, deceased, 
 performed certain work, labor and services for the defendant, 
 for which he has been fully paid, except the sum of about two 
 hundred dollars, which the defendant has never refused to pay." 
 
 Plaintiff's counsel opposed the motion on the following 
 grounds : 
 
 First. — The answer is intended to set up a defence of new 
 matter, by way of confession and avoidance ; but the answer does 
 not confess the allegations as set out in the plaintiff's complaint. 
 It merely admits that the deceased performed certain work, labor, 
 etc.; this answer would be stricken out, on motion, as frivolous. 
 
 Second. — By section 173 of the Code of Procedure, the court, 
 or a referee, on the trial of a cause, has no power to allow an 
 amendment of the answer which would amount to an entire 
 change of defence ; which the defence of payment would in this 
 case be. 
 
 Motion denied, and defendant's counsel excepted. 
 
 The case was then submitted to the referee, upon whose report 
 judgment was entered for the plaintiff. 
 
 The defendant appealed. 
 
 The Superior Court at General Term affirmed the judgment 
 upon the merits without passing upon this question. [Reported 
 in 1 Sweeney, 253. J 
 
 The Court of Appeals reversed the judgment. 
 
 LoTT, J. The referee before whom the issues were tried erred 
 in excluding the receipts given by the deceased in his lifetime 
 to the defendant, for moneys paid by him to the deceased on 
 account. 
 
 Conceding the general rule to be that payments, either as an 
 entire defence or in mitigation of damages, must be pleaded, this 
 case is an exception to it. 
 
 \^The learned judge here quoted from the complaint.] 
 
464 Abbott's Select Cases on Code Pleading. 
 
 Qiiinn v. Lloyd. 41 N. Y., 349. 
 
 10 Tliere is no statement showing when the work commenced or 
 ended, or of the time employed, or from which it can be inferred. 
 There is, therefore, not a fact stated by which it can be known 
 to how much compensation the deceased was entitled at the price 
 he was to be paid. The averment that there was an indebted- 
 ness by the defendant to the deceased, as " the balance remain- 
 ing due after sundry payments made by defendant to said Rich- 
 ard Quinn," and the denial of all the allegations in the complaint 
 as to the employment and indebtedness, involved an issue upon 
 the facts above stated and denied, not only of the agreement and 
 of the time which the deceased worked, but necessarily of the 
 different payments made, so as to determine what, in fact, was 
 the balance of the defendant's debt. That balance could not be 
 ascertained without an inquiry as to the amount of the payments, 
 as well as the value of the work performed. The case of 
 McKyringv. Bull, 16 K Y., 297, [s. c, p. 450 of this vol.], relied 
 on by the respondent, cannot be considered an authority to 
 sustain the referee's decision and the judgment of the court 
 below. In that case, the complaint alleged that the plaintiff 
 
 12 entered into the employment of the defendant on a par- 
 ticular day, and continued there in doing labor and service 
 for him to a specified and fixed date, and then averred 
 that such work and services were worth the sura of $650, 
 and then it concluded as follows : " That there is now due 
 to this plaintiff, over and above all payments and offsets on 
 account of said work, the siim of one hundred and thirty four 
 dollars, which said sum defendant refuses to pay." It will be 
 seen by this statement that the term of service and its value were 
 both alleged, from which it appeared that a mucli larger sum had 
 
 -'■^ become payable to the plaintiff than he claimed. The learned 
 judge who gave the prevailing opinion in the case says, in refer- 
 ence to the allegation, that there was due to the plaintiff at the 
 commencement of the suit, over and above all expenses, etc., the 
 sum there named, " is i inere legal conclusion from the facts, 
 previously stated. Its nature is not changed by the addition of 
 the words ' over and above all payments.' No Tiew fact is thereby 
 alleged. The plaintiff voluntarily limits his demand to a sum 
 less than that to which under the facts averred, he would he 
 entitled." 
 
1.-) 
 
 III. Teehnical Rides. (5) Answer. 405 
 
 Quinn v. Lloyd, 41 N. Y., 349. 
 
 In the case under review, as I have before stated, no facts are 1-t 
 alleged from which it can be known what the work, at the 
 stipulated price agreed to be paid, was worth, and consequently 
 there is nothing to show that the claim made was less than upon 
 the facts stated he was entitled to. 
 
 We are not to be controlled by a decision upon facts so ma- 
 terially different in all respects from those in this case. It may be 
 proper to add that two of the judges, Denio, Ch. J., and Johnson, J., 
 dissented from that decision, and Paige, J., expressed no opinion. 
 
 My conclusion, therefore, is, that on the ground above stated 
 (and without expressing an opinion oa the other questions pre- 
 sented), the judgments appealed must be reversed, and a new 
 trial ordei-ed, costs to abide the event. 
 
 Woodruff, J. The plaintiff, by his complaint herein, alleges 
 that the defendant engaged the plaintiff's intestate to proceed to 
 England and there perform work, labor, and services as a sur- 
 veyor and draughtsman, for which he promised to pay him iif teen 
 dollars per week in American gold coin. That, in accordance 
 with such engagement the intestate proceeded to England, and -. „ 
 there performed certain work, etc., whereby the defendant 
 became on the 15th of July, 1864, indebted to the intestate in 
 the sum of $333.07 in American gold coin, being the halcmee 
 remaining due after stmdry j)aymerds made by the defendant. 
 
 This allegation, I think, invited an issue upon the question 
 whether a balance of $333.07 was or was not due, and the answer 
 of the defendant jjut that allegation in issue. 
 
 It was wholly unnecessary for the plaintiff to sue for a balance 
 as such ; he might allege the contract, performance on his part 
 and claim payment, and then, if the defendant desired to prove 17 
 payments, he must allege payment in his answer ; but where the 
 plaintiff sues for a balance, he volimtarily invites examination 
 into the amount of indebtedness, and the extent of the reduction 
 thereof by payments, etc. 
 
 It was, therefore, eri'or to exclude proof of payments made by 
 the defendant on account, and the receipts given by the intestate 
 therefor. 
 
 [A minor ruling on a question not involving the pleadings is 
 here omitted.'] 
 
 30 
 
466 Abbott's Select Cases on Code Pleading. 
 
 White V. Smith, 46 N. Y., 418. 
 
 WHITE V. SMITH. 
 
 IVew York Court of Appeals, 1871. 
 
 [Reported in 46 N. Y., 418 ; rev'g 1 Lans,, 469.] 
 
 1. If the complaint, alter alleging the original amount of the indebtedness, 
 
 in substance admits a specific amount as having been paid, the defend- 
 ant can under a general denial claim the benefit of that admission, and 
 istill contest the items which plaintiff has alleged as constituting the 
 •original amount. — So held where the parties seemed to have acted on 
 ithat view at the trial. 
 
 2. An admission in pleading, forming the issue on trial, is effectual to 
 
 limit the issues without being offered in evidence. 
 
 The complaint, after alleging the partnership of the plaintiffs 
 as house carpenters and joiners, was as follows : 
 
 That between the 13th day of June, 1866, and the 15th day 
 of August, 1866, they, by themselves and their servants, per- 
 formed work and labor as such carpenters and joiners, and fur- 
 nished material for the erection of a building on the corner of 
 Franklin and Warren streets, in said village of Watkins, at the 
 request of the said defendant and with her knowledge and 
 approbation, to the amount of $541.90, as by the bill of iteni.^ 
 therefor, hereto annexed, will fully appear. 
 
 That the work and labor so performed for the defendant, and 
 the material so furnished, were reasonably worth the price 
 charged therefor in said bill of particulars. 
 
 That there is a balance due from the defendant to the plaint- 
 iffs for such work, labor and material, as aforesaid, after deduct- 
 ing all payments made by the defendant to the plaintiffs thereon, 
 of $175.75. 
 
 Thebefoee, the plaintiffs demand judgment against the de- 
 fendant for the said sum of $175.75, with interest thereon 
 since the 15th day of August, 1866, besides the costs and 
 •disbursements of this action. 
 
 Annexed to this complaint was a bill of items headed " M. T. 
 Smith to W. E. White & Son, Dr.," and footed up $541.90, but 
 not mentioning any payments. 
 
 Defendant's anawei' was a general denial ; and, for a sepai'ate 
 
III. Technical Rules. (5) Answer. 467 
 
 White V. Smith, 46 N. Y., 418. 
 
 defence, a claim to recoup $500 for damages by alleged bad 
 work, for which sum the answer asked judgment against plaintiff. 
 
 Plaintiffs' reply to the counterclaim was a denial. 
 
 The referee found that the amount originally earned by plaint- 
 iff was $501.26 (being $40.64 less than alleged in the complaint), 
 and he deducted from this the entire sum mentioned in the 
 complaint as having been paid, and gave judgment for $96.39. 
 
 The Supreme Court at General Term were of opinion that 
 the admission of payment should have been treated as condi- 
 tioned or dependent on the allegation of the sum originally due. 
 
 Balcom, p. J., delivering the judgment of that Court [now 
 reversed], said : " The referee could properly have found that 
 the defendant paid the plaintiffs $366.15 on their claim of 
 $541.90, prior to the commencement of the action. The just 
 inference from the complaint is that the plaintiiis had been 
 paid that sum on such claim, by the defendant. The amount of 
 the plaintiffs' claim, stated in the complaint, was $541.90, which 
 is followed by the allegations, that there was a balance due from 
 the defendant to the plaintiff's, on such claim, after deducting all 
 payments made by the defendant to the plaintiffs, of $175.75 ; 
 for which balance only judgment was demanded in the complaint, 
 besides interest and costs. The difference between such balance 
 and the amount of the plaintiffs' claim, as alleged in the com- 
 plaint, was $366.15, which the referee found that the defendant 
 had paid the plaintiffs. 
 
 " It is provided by § 168 of the Code of Procedure,* that the 
 material allegations in the complaint, which are to be taken as 
 true, are those not controverted by the answer. This makes the 
 defendant admit the material allegations of the complaint to be 
 true, which he omits to deny. But it does not authorize the 
 plaintiffs to except to, or complain of a holding that any material 
 allegation of his complaint is true, which is denied, thougli no 
 evidence be given to establish it by either party, unless the 
 holding wrests such allegation from its true meaning. 
 
 " I think the referee had the right to assume that the defend- 
 ant paid the plaintiffs $366.15, upon the plaintiffs' claim of 
 
 * Code Civ. Pi-o„ §523. 
 
468 Abbott's Select Cases on Code Pleading. 
 
 White V. Smith, 46 N. Y., 418. 
 
 ■i .$54:1.90 ; but he found the plaintiffs' claim was only $501.26. 
 and then held that $366.15 was paid upon it, without any evi- 
 dence or admission, except what was inferable from the com- 
 plaint. I am of the opinion, this holding wrested the allegations 
 of the complaint, respecting payments upon the plaintiffs' claim, 
 from their true meaning, and that it was erroneous. 
 
 " It seems to me the defendant should have alleged payment 
 in his answer, of $366.15, and proved it ; or that he should 
 have conceded on the trial that the plaintiff's' entire claim was 
 $541.90, as stated in the complaint, to enable him to insist that 
 the complaint showed he had paid the plaintiffs ir5366.15." 
 
 The Court of Appeals reversed the judgment. 
 
 Peckham, J. The plaintiffs' counsel insists that the referee 
 erred in iinding a payment of $366.15 to the plaintiffs. The 
 Supreme Court so held, and upon that ground set aside the 
 judgment. Jfo point of this kind seems to have been presented 
 at the trial, either in the receipt or exclusion of evidence, or by 
 any decision upon any question raised as to the pleadings. 
 JO Bt^it as there was no proof given of any payment, and pay- 
 ment is found and perhaps, sufficiently excepted to, the plead- 
 ings must contain an admission thereof, in substance, or the 
 order must be affirmed. I think they do in substance. 
 
 The complaint was for work and materials, and sets forth the 
 items specifically, both of labor and materials, amounting to 
 $541.90. It then claims a balance due therefor, " after deduct- 
 ing all payments made by defendant to plaintiffs thereon of 
 $175.75." 
 
 The answer is a general denial, and- sets up a counterclaim, 
 etc. 
 
 It cannot be denied that this complaint admits in substance 
 that !?366.15 had been paid upon the items in the complaint. It 
 alleged that the items were all just, and that thereafter deduct- 
 ing all payments, there was yet that balance due. It is clear 
 that both parties acted upon the view that the complaint con- 
 ceded a ])ayment, and I think with good ground. 
 
 The Supreme Court says that the defendant " should have 
 conceded on the trial that the plaintiffs' entire claim was $541.90 > 
 
 11 
 
III. Technical Rules. (5) Answer. 469 
 
 Knapp V. Roche, 94 N. Y., 329. 
 
 as stated in the complaint, to enable liim to insist that the com- 12 
 plaint showed he had paid the plaintiffs $366.15." 
 
 It is clear that the items must all be taken as true to ascertain 
 the amount of the payment, but as a payment it cannot be 
 claimed to have been any less than that sum, upon those items. 
 Whether the items were all legitimate, were all the subject of 
 recovery, was another question. 
 
 The referee, upon the evidence, found the said items that 
 were recoverable amounted to $501.26, instead of $541.90. 
 Upon the theory of that Court, the difference, or $40.64, was the 
 precise error of the referee. I think he committed no error in 
 that. 
 
 It is also alleged that no portion of the complaint was read as 
 evidence before the referee. It was not necessary to read the 
 pleadings. They are presumed to have been before the referee, 
 and that he had knowledge of their contents. 
 
 \_A minor rtiling is here omitted.'] 
 
 KNAPP V. ROCHE. 
 
 New Yorlc Court of Appeals, 1881^. 
 
 [Reported in 94 N. Y., 339.] 
 
 1. In an action, by the receiver of a bank, against its officers, for dam- 
 ages, a mere allegation that they made illegal loans will not show a 
 cause of action ; but non-payment of such loans must be alleged in 
 order to show damage. 
 
 3. Where the defendant's liability depends on non-payment by a third per- 
 son, sucli non-payment is a fact essential for plaintiff to allege and 
 prove, and in such case, a general denial lets in evidence of payment. 
 
 3. In an action of tort, a general denial lets in any evidence controverting 
 
 the allegations of damage contained in the complaint. 
 
 4. If tlie action is against joint tortfeasors, the denial will let in payments 
 
 made by either or both. 
 ■5. Such evidence is proper in mitig'ation. 
 
 Action by a receiver, for damages. 1 
 
 The complaint contained allegations to the following effect : — 
 the incorporation of the Bowling Green Savings Bank ; its 
 
470 Abbott's Select Cases on Code Pleading. 
 
 Knapp V. Roche, 94 N. Y., 329. 
 
 dissolution ; the appointment of the plaintiff as receiver and 
 leave given him to sue. Then followed a quotation from the 
 act of incorporation, forbidding the use of its funds or deposits 
 for any purpose except to pay necessary current expenses, under 
 the direction of the Board of Trustees ; and providing that the 
 affirmative vote of at least five members of the board should be 
 requisite in making aay order for the investment of any moneys, 
 or for the sale or transfer of any stock or security. 
 
 The complaint then proceeded to allege that the defendant, 
 "Walter Roche, was vice-president of the bank from its organiza- 
 tion to its dissolution ; that without the affirmative vote of five 
 members and without any authority whatever, he took and 
 loaned the moneys of the corporation to the Avenue " C " Rail- 
 road Co. of JSTew York City, "of which the sum of $48,825.30 
 remains due and unpaid." 
 
 Then followed similar allegations as to other loans, concluding 
 thus : 
 
 " The plaintiff further shows that all and eacli of said loans 
 and advances were made by the defendant while he was vice- 
 president of said bank, and were made with and out of the funds 
 and moneys belonging to said bank, and that none of said loans 
 were authorized by the affirmative vote of at least five trustees 
 of said bank, nor were said loans or advances made upon the 
 securities or collaterals required by the charter of said bank, or 
 upon any security or collateral whatever." 
 
 The answer denied knowledge or information sufficient to 
 form a belief as to the allegations relating to the appointment of 
 plaintiff as receiver; admitted the incorporation, but denied 
 that he was vice-president from November. 1871, up to time of 
 its dissolution ; and concluded thus : " The defendant denies 
 each and every other allegation in the said complaint contained." 
 
 A supplemental answer alleged that Henry Smith, deceased^ 
 and Reeves E. Selmes, were respectively president and secretary 
 of the bank, and that the loans were made with their knowledge, 
 consent, and by their direction, and that they were jointly liable 
 with defendant for them, and that the plaintiff had settled, com- 
 promised and discharged the claim and cause of action stated in 
 the complaint with Ilenry Smith, deceased, in his lifetime, and 
 
III. Technical Rules. (5) Answer. 471 
 
 Knapp V. Roche, 94 N. Y., 329. 
 
 with said Reeves E. Selmes or one of them, and that thereupon 
 they and the defendant became, and each of them was remised, 
 released and forever discharged from every claim and demand 
 which the plaintiff as receiver had against them, or the defend- 
 ant by reason of the matters or either of them set forth in the 
 complaint. 
 
 At the trial the judge refused to ]-eceive evidence of payment. 
 
 The General Term affirmed the judgment. 
 
 The Covrt of Appeals now reversed it. 
 
 RuGEE, Ch. J. This action is brought by the receiver of an 
 insolvent money corporation against its vice president to recover 
 damages for losses occasioned by alleged illegal loans made by 
 him of the funds of the corporation. 
 
 Such corporation was a savings bank, organized under a 
 special act of the Legislature (Chap. 831, Laws of 1868), by 
 which it was authorized to invest its fands only in certain 
 specified securities. 
 
 It was claimed that the defendant loaned the moneys of the 
 bank to Avenue C railroad, and to one D. K. Colburn, upon 
 securities not authorized by the act of incorporation. 
 
 The only damage occurring to such bank in consequence of 
 the acts of the defendant, as stated in the complaint, was that 
 such loans remained due and unpaid at the time of the com- 
 mencement of the action. 
 
 To this part of the complaint the defendant interposed a 
 genei-al denial. The defendant also, by a supplemental answer, 
 pleaded as a defence to the action that Henry Smith, president, 
 and Reeves E. Selmes, secretary of said bank, were jointly liable 
 with defendant for the causes of action alleged in the complaint, 
 and that for a good consideration . paid by the said Smith and 
 Selmes to the plaintiff they had been released and discharged 
 from liability on account of said several causes of action, and 
 claimed that thereby the said defendant became also discharged 
 therefrom. 
 
 In support of the action on the trial the plaintiff gave evidence 
 tending to show that Henry Smith, the president ; Reeves E. 
 
4T'J Abbott's Select Cases on Code Pleading. 
 
 Knapp V. Roche, 94 N. Y., 329. 
 
 10 Selmes, secretary ; and the defendant, as vice-president of the 
 Bowling Green Savings Bank, co-operated in making the alleged 
 illegal loans, and that portions of such loans remained unpaid 
 when the case was tried. 
 
 The defendant, in answer to the case made by the plaintiff, 
 offered to prove the payment by Henry Smith to the plaintiff of 
 the sum of $45,000 on account of the alleged overdrafts which 
 the evidence showed were the basis of the plaintiff's claim 
 against the defendant. 
 
 This evidence was upon objection excluded by the court, and 
 the defendant excepted to such exclusion. 
 
 In rejecting this evidence we think the court erred. The 
 allegations in the complaint that the several unauthorized loans 
 made by the defendant remained unpaid at the commencement 
 of the action were necessary and material in order to constitute a 
 good cause of action against the defendant. In the absence of 
 these allegations there would have been shown by the complaint 
 no cause of action, inasmuch as it showed no damage resulting to 
 the plaintiff from the injuries complained of 
 1-2 It is essential to the maintenance of an action for a tort that 
 dainages should accompany the act complained of, otherwise it is 
 damnum absque injuria, for which no action lies. (Commercial 
 Bk. V. Ten Eyck, 48 N. Y., 305; People v. Stephens, Yl id., 
 .541.) 
 
 The mere allegation that the officers of a bank have made 
 illegal loans of the moneys of such bank, or committed other 
 tortious acts, would not show a cause of action in favor of the 
 bank against the officers. 
 
 It was, therefore, an essential part of the plaintiff's case to 
 allege the non-payment of the loans in question, from which the 
 damage to the plaintiff might be inferred. 
 
 This may not have been very correct pleading on the part of 
 the plaintiff, but it constitutes the only theory upon which the 
 complaint can be held to have stated a cause of action. 
 
 A general denial of the allegations of the complaint, therefore, 
 put in issue the fact of non-payment, and rendered evidence con- 
 troverting that fact admissible under the answer. 
 
 While it is generally true that a defence of paymenc is inad- 
 
III. Technical Rules. (5) Answer. 473 
 
 Knapp V. Roche, 94 N. Y., 329. 
 
 missible under a general denial, this is not so when the fact of li 
 non-payment is alleged in the complaint as a necessary and 
 material fact to constitute a cause of action. (Van Giesen v. 
 Van Giesen, 10 N. Y., 316 ; McKyring v. Bull, 16 id., 297, p. 450 
 of this vol.; Quinn v. Lloyd, 41 id., 349, p. 461 of this vol.) It is 
 always competent to prove under a general denial any facts tend- 
 ing to controvert the material affirmative allegations of a com- 
 plaint. (Quinn v. Lloyd, supra ; Beaty v. Swarthout, 32 Barb., 
 293 ; Howell v. Biddlecom, 62 id., 131.) 
 
 Under the general denial in this case it was competent for de- _ 
 fendant to prove a,ny facts tending to show that the plaintiff had 
 not suffered damages to the extent claimed by him. For this 
 purpose he could prove that the moneys illegally taken from the 
 bank had been refunded, either by the alleged borrower or aoy- 
 one jointly liable with himself for the injury complained of. 
 (Hun V. Van Dyck, 26 Hun, 567 ; affirmed, 92 N. Y., 660.) 
 While a plea of payment by a stranger, between whom and the 
 defendant there is no privity, has sometimes been held to be un- 
 available as a defence (Bleakley ». White, 4 Paige, 654 ; Atlan- 
 tic Dock Co. V. Mayor of N. Y., 53 N. Y., 67), yet satisfaction 16 
 by one joint tortfeasor has always been held to be available as a 
 bar to an action against another. (Livingston v. Bishop, 1 Johns , 
 291 ; Thomas v. Eumsey, 6 id., 31 ; Barrett v. Third Avenue 
 R. R. Co., 45N. Y., 635; Woods ^'. , Pangburn, 75 ?V7., 49S.) 
 This rule applies with equal reason to a partial satisfaction by one 
 of the wrong-doers for the damages occasioned by the joint 
 wrongful act of both. Such evidence is proper in mitigation of 
 damages, and under the former practice was admissible under 
 the general issue. (Daniels v. Hallenbeck, 19 Wend., 409; 
 Bush V. Prosser, 11 N. Y., 347; Wilmarth v. Babcock, 2 Hill, ^'^ 
 194.) 
 
 Without considering the other questions raised on this appeal, 
 we think that, for the reasons stated, the judgment should be 
 reversed and a new trial ordered with costs to abide the event. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
47-t Abbott's Select Cases on Code Pleading. 
 
 Lent V. New Yoi-k, Massachusetts Railway Co., 130 N. Y., 504. 
 
 WHITMAN V. FOLEY. 
 
 New Yorh Court of Apjoeals, 1891. 
 
 [Reported in 135 N. Y., 651.] 
 
 In foreclosure, an answer alleging that the sums mentioned in the com- 
 plaint were not due and unpaid ; that sums had been paid thereon, 
 but the times and amounts defendant was unable to state, — Held 
 sufficient at the trial. 
 
 The plaintifE brought this action for a foreclosure of two 
 mortgages, alleging a certain indebtedness to be due upon the 
 bonds for principal and interest. These appellants answered, 
 alleging that the sums mentioned in the complaint were not due 
 nor unpaid, and that sums were paid thereon, " the times of 
 payment and the amounts these defendants are not now able to 
 state." 
 
 Geat, J. [delivering the opinion of the Court, said- ii/pon th is 
 poinf] : The form of their pleading is open to the respondent's 
 criticism, and it is both inartistic and loose ; but it cannot be 
 taken as containing any admission of the plaintiff's allegations a.s 
 to the amount due from the defendants, and whatever the objec- 
 tions to its sufficiency, they must be deemed to have been 
 waived by proceeding to a trial upon the merits. The failure to 
 raise any such question by a proper motion or exception pre- 
 cludes its discussion in the Appellate Court. (Cowing v. Alt- 
 man, 79 N. Y., 167.) The issue was presented as to the amount 
 for which the mortgage deeds were still a lien upon the lands 
 described in the complaint, and that was the issue which was 
 referred to the referee to hear and determine. 
 
 LENT V. NEW YORK, MASSACHUSETTS RAILWAY 
 
 COMPANY. 
 
 ]^ew Yorh Court of Appeals, Second Division, January, 1892. 
 
 [Reported in 130 N. Y., 504.] 
 
 1. In an action against a railroad company to recover thg amount of an 
 award against it for land taken under L. 1850, c. 14, § 18, as amended 
 by L. 1876, c. 198, the complaint is demurrable if it does not allege 
 
III. Technical Rules. (6) Answer. 475 
 
 Lent V. New Yoi'k, Massachusetts Railway Co., 130 N. Y., 504. 
 
 record of the award or of a certified copy, and also non-payment 
 of it. 
 2. /( seems that in every action upon an ordinary contract for the pay- 
 ment of money, non-payment is a fact which constitutes the breach 
 of the contract and is the essence of the action, and must be alleged 
 and proved.* 
 
 * This case treats a question of much importance. 
 The opinion in 130 N. Y., 510, lays down the above rule, and attributes 
 the rule that payment is an affirmative defense which must be pleaded by 
 defendant in order to allow him to prove it, to the history of pleading, 
 regarding it as exceptional ; and concludes that non-payment being the 
 breach of the contract must be alleged by plaintiff, because it must be 
 proved to enable him to recover. 
 
 The principles laid down in the latter half of the opinion are there 
 applied to all ordinary contracts for the payment of money ; and the rule 
 that non-payment must be proved by plaintiff as a part of his cause of 
 action, if it means that he must give any direct evidence on the point, 
 involves some consequences that deserve careful examination. 
 
 Let us take the case of a defendant's express absolute promise to pay 
 money. 
 
 No doubt a formal allegation of non-payment is usual. No doubt the 
 question, ' ' has any part of it ever been paid ? " is a usual part of the plaint- 
 iff's examination as a witness. No doubt that if the promise be in writing 
 — as for instance a promissory note — the production of it from plaintiff's 
 possession uncancelled, will ftilflU the requirement for evidence of non- 
 payment. See Gray v. Gray, 47 N. Y., 553; rev'g 2 Lans., 173, and Clift 
 r. Moses, 113 N. Y., 426. 
 
 The question whether plaintiff must prove non-payment may well be 
 tested by taking the case of an action by or against the estate of a 
 decedent. 
 
 Non-payment is usually a fact which can only be proved by a party. 
 An agent who had entire charge of his principal's payments or receipts 
 could give satisfactory evidence that a debt due to or from his principal 
 had not been paid in the ordinary course of business. But even if the 
 testimony of such an exclusive agent be sufficient, yet non-payment could 
 not be proved by an ordinary agent. 
 
 Usually when an executor or administrator sues on an oral or implied 
 contract to pay the decedent, the only evidence he can give of non-pay- 
 ment is that he does not know and cannot learn of any payment. If this 
 is competent and sufficient it is a departure from ordinary rules of 
 evidence. See Carroll v. Deirnel, 95 N. Y., 252 ; Uline v. N. Y. Central R. 
 Co., 14 Weekly Dig., 575. 
 
 When an executor or administrator is sued, the plaintiff is not com- 
 petent to testify to non-payment. 
 
 The rule of the case in the text, then, applied in this large class of 
 cases would, under present rules of evidence, work great hardship in many 
 
476 Abbott's Select Cases on Code Pleading. 
 
 Note on Burden of Pi-oot as to Non-Payment. 
 
 cases, while at the same time it could exclude many unfounded claims 
 ag-ainst estates by requiring claimants to prove what frequently they can- 
 not give any evidence of. It is true the statute providing for the presen- 
 tation of sworn claims requires the affidavit to show that no payments, 
 etc., have been made. But it has been held, I understand, that on a 
 reference of such a claim, when disputed, the claimant does not fail by 
 reason of inability to testify to non-payment. 
 
 I think the present usual practice may be fairly stated in saying that 
 plaintiff always makes in pleading a formal allegation of non-payment 
 (whicli, however, is not issuable) ; that he comes to trial provided, if 
 practicable, with some kind of evidence or apology for evidence of non- 
 payment, even if only a witness to swear that he does not know of any 
 payment ; that if regular and competent evidence of non-payment is not 
 produced, nevertheless evidence of an absolute, unconditional promise to 
 pay, with nothing whatever to rebut the familiar presumption that a state 
 of things shown once to exist is presumed to continue, is — considering that 
 to require proof of non-payment is requiring' proof of a negative — deemed 
 sufficient to cast on defendant the burden of proof as to paj'ment. It is 
 noteworthy that the 3d division of the Court of Appeals held in Anderson 
 V. Culver, 127 N. Y., 377, that no direct evidence of non-payment was 
 necessary in foreclosure, even where defendant produced the bond from 
 his own possession under a plea of payment. 
 
 I conclude that the true solution of the question lies in this distinction, 
 that the presumption of continuance of a fact is a rule of evidence (Fare r. 
 Payne, 40 Vt., 615) but not a rule of pleading (Parkhurst r. Wolf, 47 N. Y. 
 Super. Ct. [J. & S.], 330 ; People v. Fadner, 10 Abb. N. C, 463) ; in other 
 words that argumentative pleading- is bad, but argumentative evidence is 
 good. Therefore a formal allegation of non-paj'ment, though it may be 
 necessary, may be sufficiently proved by the presumption that an indebted- 
 ness shown to have existed continued ; and is more clearly proved if the 
 obligation is a written one, by producing it uncancelled. This presump- 
 tion having been raised, cannot be rebutted by evidence of payment, nor 
 of release, nor of any other new matter, unless such payment or other new 
 matter has been pleaded. 
 
 The view which I believe has generally been held by the profession 
 since McKj'ring v. Bull, is, that if defendant is sued on his own unqualified 
 promise to pay, express or implied, and overdue, an allegation of non-pay- 
 ment is not technically essential. Andrews v. Moller, 37 Hun, 480. 
 (Compare Turner v. Kouwenhoven, 100 N. Y., 115.) The burden is on 
 defendant to jDrove payment. Eagan i\ Kergill, 1 Deni., 464; Foote v. 
 Valentine, 48 Hun, 475. 
 
 But if defendant is sued on a promise to pay in case another person does 
 not, non-payment bj' that other must be alleg-ed (Knapp v. Roche, 94 
 N. Y., 839) ; and in such case the allegation is put in issue by the general 
 denial {ib., and Newton ■)'. Gould, 14 State Rep., 397). 
 
 The case of Knapp i\ Roche has been I'egarded as dispensing with 
 defendant's allegation of payment onl.y in that class of cases where nou- 
 
III. Technical Rales. (5) Answer. 477 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 payment by a third person is a. condition precedent, and the payment 
 relied on is one made by such third person. Wemple v. McManus, 39 
 State Rep., 141 ; s.- c. 15 N. Y. Supp., 8. In that class of cases it is clear 
 that plaintiff must allege such non-payment. In other cases, where the 
 breach is defendant's own promise to pay, the burden of proof as to pay- 
 ment cannot be upon both parties ; no direct evidence of non-payment is 
 required, and if a formal allegation of non-payment be essential, the 
 omission of it ought to be regarded as a formal error amendable at the 
 trial. [From Note in 38 Abb. N. C, 478.] 
 
 CRANE V POWELL. 
 
 New York Cotirt of Appeals, 1893. 
 [Reported in 139 N. Y., 379; s. c. 80 Abb. N. C, 419.] 
 
 1. Where a complaint on contract does not show the contract sued on to 
 be invalid under the Statute of Frauds, the statute is waived by de- 
 fendant unless specially pleaded as a defence, and cannot be taken 
 advantage of under a general denial. 
 
 3. It seems that the Statute of Frauds merely introduces a new rule of 
 evidence, and does not make a contract not complying with it illegal ; 
 and therefore, although plaintiff prove only an oral contract, defend- 
 ant cannot for the first time interpose the statute by a motion to 
 dismiss the complaint at the close of plaintiff's evidence. 
 
 Action to recover damages for breach of contract for board 1 
 and lodging. The facts fully appear in the opinion. 
 
 At Trial Term judgment was entered for plaintiff on a 
 verdict. 
 
 The General Term of the Court of Common Pleas affirmed 
 the judgment. 
 
 llie Court of Appeals affirmed the judgment. ^ 
 
 O'Beien, J. The plaintiff recovered damages for the breach 
 of an agreement, Avhich, on the trial, appeared to be oral. The 
 complaint alleges that the plaintiff, in the month of October, 
 1887, was in the possession, under a lease, of a house in the city 
 of New York, and that she entered into an agreement with the 
 defendant whereby the defendant leased from her for the term 
 of one year from the first day of November, 1887, the two front 
 
478 Abbott's Select Cases on Code Pleading. 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 rooms on the second floor, and tlie back parlor and extension 
 room, 'with the use of the front parlor on the first floor, with 
 board and attendance to be furnished during the time by the 
 plaintiff for the defendant and his assistant or associate in 
 business, for the sum of $3,250, payable in equal monthly pay- 
 ments of $270.83 in advance. The defendant was a practicing 
 physician, and the rooms were intended, in part, at least, to serve 
 the purpose of an ofiice, in which the defendant was to carry on 
 his business. The defendant, in pursuance of this agreement, 
 entered into and took possession of the rooms, and used them 
 for the purpose intended, and he and his associate were fur- 
 nished with board and attendance until the month of June, 1888, 
 when, without the consent of the plaintiff, he abandoned the 
 premises, and refused to further perform the agreement on his 
 part, though the plaintiff was at all times ready and willing to 
 perform on her part. It was also stipulated, as a part of said 
 agreement, that the defendant^ for the purpose of his business, 
 should have the privilege of affixing in a suitable place on the 
 front of the house, his business sign, and that in pursuance of 
 that right, conferred by the agreement, he did affix, upon taking 
 possession on the first of November, at the side of the front door, 
 a metallic sign with his name and professional business upon it, 
 and also words and figures indicating when he could be found by 
 patients and callers at his rooms in the house. The judgment 
 appealed from was recovered by the plaintiff as damages for a 
 breach of this agreement. It appears that he paid the stipulated 
 monthly payments only up to June 1, 1888, and the plaintiff 
 claims that on or about July 1 thereafter, in consequence of the 
 defendant's refusal to further perform his agreement, her home 
 and business was broken up and she was obliged to surrender her 
 lease, which then had about two years to run, to her landlord. 
 Tlie jury allowed the plaintiff for the month of June the whole 
 of the monthly payment, but the General Term modified the 
 damages for that month by deducting what it would actually 
 cost the plaintiff to furnish board for two persons during that 
 time, and for the four remaining months of the time the plaintiff 
 recovered only the profits which she would have made had the 
 defendant performed. The defendant' s answer admits that during 
 
III. Technical. Rules. (5) Answer. 479 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 the time he was engaged in business as a pliysician, and that the 7 
 plaintiff, at the time of the alleged agreement, was the lessee of 
 and in possession of the house, and all the other allegations of 
 the complaint were denied, but no other defence was pleaded. 
 At the trial it appeared that the contract sued upon was not in 
 writing, but the defendant made no objection to oral proof to 
 establish it, and the plaintiff was permitted, without objection, 
 to testify to a verbal agreement to sustain the allegations of the 
 complaint. When the plaintiff rested, however, and again at the 
 close of the case, the defendant moved to dismiss the complaint, 
 on the ground, among others, that as the agreement was not in 
 writing, and as it was not to be performed within one year from 
 the making thereof, it was void by the Statute of Frauds. The 
 Court refused to rule in accordance with this request, and the 
 defendant excepted. The defendant, in his own behalf, testified 
 that there was no time specified for the duration of the agree- 
 ment, and there was a sharp conflict in the evidence between 
 him and the plaintiff, who claimed that it was to last for one 
 year. The plaintiff's version of the transaction was sustained in 
 some degree by circumstances and by proof of admissions claimed 9 
 to have been made by the defendant. That question was 
 submitted to the jury by the learned trial judge, with proper 
 instructions, and the verdict must be taken as a conclusive 
 determination of the issue. But the learned judge distinctly 
 ruled and charged the jury that the defendant was in no position 
 to urge the invalidity of the conti-act under the Statute of 
 Frauds, by reason of his omission to plead that defence, and to 
 the ruling and the charge to the same effect there was an excep- 
 tion. The result in the courts below thus turned upon the 
 omission of the defendant to plead the statute, and the first and 
 perhaps only question presented by the appeal is one of pleading. 
 Preliminary to that question it should be observed that contracts 
 that by their terms are not to be performed within one year were 
 valid at common law, though not in writing, but the statute 
 enacted that thereafter such agreements should be void unless 
 reduced to writing, and, therefore, a new defence was created 
 with respect to such agreements as were within the statute. 
 The Statute of Frauds does not prohibit the making of any 
 
■±80 Abbott's Select Cases on Codk Pleading. 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 1 1 agreement in any way that the parties may see fit nor render 
 them illegal or immoral if not made in some particular way. It 
 simply requires that certain agreements must be proved by a 
 writing. It introduced a new rule of evidence in certain cases 
 without condemning as illegal any contract that was legal before. 
 
 [A ruling on the question of a waiver hy defendomt hy failing 
 to object to oral proof of the agreement, is omitted.'] 
 
 But the important question in the case, and upon which we 
 prefer to let the decision rest, is whether, in the light of the 
 adjudged cases, it is not necessary for a defendant who intends 
 to avail himself of the benefit of the statute, as a defence to an 
 action for damages for breach of a verbal agreement, within the 
 statute, to specifically plead it: 
 
 It is safe enough to premise that the authorities are not all in 
 harmony on this question any more than they are upon many 
 other questions with respect to the construction and application 
 of the statute itself. In England, under the rules framed in 
 pursuance of the Judicature Act, and in some of our sister 
 States, it is necessary to plead the statute. (Am. & Eng. Ency. 
 13 of Law, p. 747, vol. 8, note 2 ; Graffamw. Pierce, 143 Mass., 386 ; 
 Lawrence v. Chase, 54 Me., l'.»6; Farwell v. Tillson, 76 id., '2:27 ; 
 Bird i\ Munroe, 66 id., 346 ; Boston Duck Co. v. Dewey, 6 Gray, 
 446.) 
 
 In this State cases may be found where the opinion is 
 expressed that the defendant may avail himself at the trial of 
 the benefit of the statute, under the general issue, by objection 
 to verbal proof of the contract. Some of these cases and, per- 
 haps, the principal ones, have already been cited to show when 
 and how the defendant is deemed to have waived the benefit of 
 the statute by admitting the allegations of the complaint. It i.< 
 proper, I think, to observe that they are cases where the com- 
 plaint was admitted in some way or the decision -was before the 
 Code or founded upon authority antecedent to it. The recent 
 cases in this court sustain the view that it is necessary to plead 
 the statute. In Porter v. Wormser (94 N. Y ., 450), Judge 
 Andrews said : " Tlie general rule is that the defence of the 
 Statute of Frauds must be pleaded. * * * It can nut be doubted 
 that if the defendants liad brought an action to recover a balance 
 
III. Technical liules. (5) Answer. 481 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 <,4aimed to be due on the contract for the purchase of the bonds 15 
 without disclosing whether the contract was oral or written, the 
 plaintiff would have been bound to plead the statute to avail 
 himself of its protection." In that ease the plaintiff had recog- 
 nized the existence of the contract by bringing an action upon it, 
 and it was held that he was not in a position to question the 
 \'ali<iity of it under the statute. 
 
 In Hamer v. Sidway (124 N. Y., 538), the action was 
 against the executors of a deceased person upon a verbal 
 promise to his nephew that he would give him a large sum of 
 money at twenty-one, if in the meantime, he would abstain from 
 the use of liquor, cigars, billiards, etc. The j^romise was confirmed 
 by a letter from the uncle after the boy became of age. It was 
 insisted that the promise was within the statute. After stating 
 that the deceased had waived the defence by his letter and 
 statements subsequent to the time of performance, the court, 
 Parkee, J., delivering the opinion, said : " Were it otherwise, 
 the statute could not now be invoked in aid of the defendant. 
 It does not appear on the face of the complaint that the agree- 
 ment is one prohibited by the Statute of Frauds, and, therefore, 17 
 such defence cannot be made available unless set up in the 
 answer." In Wells ;>. Mouihan (129 N. Y., 161), the action was 
 upon a written promise to pay the debt of another without 
 expressing any consideration, and it was urged upon the argu- 
 ment here that it was void under the statute. Passing upon that 
 point, Judge Finch said : " So far as the defence in this case 
 rests upon the Statute of Frauds it must fail for two reasons : 
 No such defence has been pleaded, and it is not raised by the 
 averments of the complaint, and without one or the other of 
 these conditions the defence, if existing, cannot be made avail- •'■" 
 able." 
 
 Without referring to other cases in which the precise point 
 does not seem to have been discussed or noticed, sufficient 
 appears to show the tendency of late decisions in this court. 
 They announce a rule well settled and familiar in analogous 
 cases. The Statute of Frauds is a shield which a party may use 
 or not for his protection just as he may use the Statute of Limita- 
 tions, the statute against usury, that against betting and gaming, 
 
 31 
 
482 Abbott's Selkct Cases on Code Pleading. 
 
 Crane v. Powell, 139 N. Y., 379. 
 
 10 and others that might be mentioned. I take it to be a genei'af 
 rule of universal application that the statutes last mentioned are 
 not available to a party unless specifically pleaded, and there 
 is no reason for making the Statute of Frauds an exception to 
 the rule. 
 
 The present system of procedure is founded upon the idea 
 that litigants should, when possible, know in advance the precise 
 questions they must meet at the trial. When a contract is set 
 out in the complaint as the cause of action, and the defendant 
 intends to assail it on some special or statutory ground, the 
 general spirit of the system is not complied with unless notice 
 is given of this intention to the opposing party by the plead- 
 ings. 
 
 In the solution of this question the provisions of the Code 
 should not be overlooked. The statute may be used as a defence 
 to actions on certain agreements. A defence must now be pre- 
 sented, either by demurrer or answer. (Code, § 487.) 
 
 When the defect in the plaintiff's cause of action appears on 
 the face of the complaint, the defence must be interposed by 
 21 demurrer. (§ 488.) When the complaint does not, as in this 
 case, disclose an invalid agreement upon its face, but it is, in 
 fact, invalid for some reason, the defendant must take the 
 objection by answer (§ 498), and if the objection is not taken 
 in either way the defendant is deemed to have waived it. 
 (§ 499.) The conclusion is thus reached that the defendant 
 waived the benefit of the statute in this case by omitting to 
 plead it. 
 
 It is claimed by the learned counsel for the plaintiff, that the 
 agreement, as pleaded and proven, was not within the statute, 
 since it amounted to a renting of apartments in a city house for 
 busin'ess purposes, with board and lodging added, and was, there- 
 fore, good as a verbal lease for one year. (Blumenthal v. 
 Bloomingdale, 100 IST. Y.,558 ; Laughran ;-. Smith, 75 id., 209 ; 
 Reeder v. Sayre, 70 Id., 184 ; Oliver v. Moore, .53 Hun, 472 ; s. c. 
 affd., 131 N. Y., .589.) 
 
 It is unnecessary to consider this question, as the conclusion 
 reached with reference to the question of pleading is fatal to 
 the appeal. 
 
III. Technical Rules. (5) Answer. 48>^ 
 
 Milbank v. Jones, 127 N. Y., 370. 
 
 The judgment should be affirmed. 
 
 All the judges concurred, except Eael and Peckiiam, JJ., 
 dissenting. 
 
 Judgment affirmed. 
 
 MILBANK V. JONES. 
 
 New York Court of Appeals, Second Division, 1891. 
 
 [Reported in 137 N. Y., 370.] 
 
 The defence that the contract sued on was illegal and void, it the fact.s to 
 establish it do not appear in plaintiff's complaint or evidence, cannot 
 avail defendant under a general denial ; but must be pleaded. 
 
 Action to recover money held in trust. 1 
 
 The complaint alleged, in substance, that defendant, as trustee 
 for the plaintiff, had received $5,000, which sum he still con- 
 tinued to hold in trust for plaintiff ; that by the terms of the 
 trust plaintiff might terminate it at his election ; that plaintiff 
 had caused due notice to be given to the defendant of his elec- 
 tion to terminate the trust, and had demanded payment of the 
 $5,000, which was refused. 2 
 
 The answer was a general denial. 
 
 Upon the trial, plaintiff put in evidence a document the first 
 part of which, purported to be a resolution directing the Street 
 Commissioner to make a contract for lighting streets, etc., of the 
 city of New York, with gas. 
 
 Under this resolution was written the following : 
 
 " New Yoek, June 14, 1866. .> 
 "Received of R. W. ililbank five thousand dollars ($5, OijOi, 
 and also certificate for two hundred and fifty (250) shares of 
 the stock of the People Gas Light Company of the City of New 
 York, number seven (7j, the said money and stock to be returned 
 to said Milbank in case the resolution above shall not be passed 
 and take effect before the 10th of July next. 
 
 It being understood and agreed that said Milbank shall liave 
 
484 Abbott's Select Cases on Code Pleading. 
 
 Milbank v. Jones, 137 N. Y., 370. 
 
 5 
 
 the riglit, at his election, in case said resolution shall pass and 
 take effect before the said lOtli of July, to purchase back the 
 said stock at any time within sixty (60) days from the time said 
 resolution shall take effect, by paying to me fifteen thousand 
 ■dollars ($15,000) therefor; and that he shall on his part be 
 l)Ound to purchase the same and pay said fifteen thousand dollars 
 (($15,000) therefor, within said sixty (60) days, at my election. 
 
 MoEGAN Jones. 
 
 K assent to and join in the above understanding and agree- 
 ment. 
 
 JSTew York, June 14, 1866. R. W. Milbank." 
 
 Plaintiff also introduced a record of the proceedings of the board 
 'of aldermen and board of councilmen, and a veto message by 
 the mayor, showing that the resolution did not take effect before 
 July tenth, together with proof that a demand for a return of 
 the money was made prior to the commencement of the action, 
 and rested. Thereupon the defendant made .a motion to dismiss 
 the complaint assigning, among other grounds : 
 
 That the contract was void because on its face it appeared 
 that its purpose was to improperly influence legislation. This 
 anotion the court denied. 
 
 The defendant then offered testimony tending to show that 
 the contract was against public policy, to which evidence plaint- 
 iff objected on the ground that it was immaterial, incompetent 
 :and inadmissible under the answer, because not pleaded. The 
 objection was overruled, and plaintiff excepted. 
 
 At Trial Term defendant had judgment on a verdict. 
 
 The General Term of the Superior Court aflirmed the judg- 
 ment, holding that the contract was void on its face as against 
 public policy. 
 
 The Court of Appeals reversed the judgment. 
 
 Parkee, J. [rafter holding that the agreement was not void 
 Km its face , as it did not provide that Jones should assist in pro - 
 ■curing the passage of the resolution, or perform any services 
 lohati'ver, hut m,ade of him a mere depository of the money'] : 
 The answer was a general denial, and the plaintiff insisted on the 
 
III. Technical Ituhs. (5) Answer. 485 
 
 Milbank v. Jones, 127 N. Y., 370. 
 
 trial, as he does on this appeal, that not having been informed "^ 
 by the answer that the illegality of the contract would be am 
 issiie on the trial, he could not be expected to be prepared nor 
 required to meet it. Under a general denial the rule undoubt- 
 edly is that if the illegality appears on the face of the complaint,, 
 or necessarily appears from plaintiff's evidence, advantage may 
 be taken of it by defendant, who must also be permitted tO' 
 controvert by evidence everything which the plaintiff is bound, 
 in the first instance to prove, in order to make out his cause of 
 action. And the cases cited by the respondent in support of the 
 ruling will be tound on analysis to come within it. 
 
 In Russell v. Burton (66 Barb., 539) the contract, as pro\'ed 
 by the plaintiff, was for lobby services, and void. 
 
 In Oscanyan v. Arms Co. (103 U. S., 281), the complaint was; 
 dismissed on the opening of plaintiff's counsel because it appeared 
 therefrom that the contract relied on was illegal. 
 
 In Gary v. Western Union Telegraph Co. (20 Abbott JS". C.» 
 333), the plaintiff, in making proof of his contract, introduced 
 evidence showing its invalidity. 
 
 And in O'Brien v. McCann (58 N. Y., 376) ; Clifford v. Dam, ICI 
 (81 id., 52) ; and Griffin v. L. I. R E. Co., (101 id., 348), the court 
 simply declared the rule that, under a general denial, the de- 
 fendant may give evidence tending to disprove any fact which 
 the plaintiff is bound to prove in order to recover. But in tlii? 
 case it neither appeared from the complaint or the evidence pre- 
 sented by the plaintiff that the contract was illegal, and as we 
 have already shown when the plaintiff rested the evidence 
 established a cause of action. The general denial put in issue 
 all matters which the plaintiff . was bound to prove ; nothing 
 more. He was required to prove the contract entered into by 
 defendant which was, on its face, valid. Having accomplislied 
 that he could not be compelled to enter into a controversy over 
 matters not appearing in the contract involving the question of 
 its validity or invalidity because he had not been notified by the 
 answer that the defendant proposed to assert his own particijia- 
 tion in that which was a violation of law as a shield against the 
 consequences of his agreement. 
 
 This rule has been enforced so long that it seems unnecessarv;- 
 
4-S(i Abbcitt's Select Cases on Code Pleading. 
 
 Wallace v. Blake, 138 N. Y., 676. 
 
 I'i to support it at this time by an extended reference to the 
 decisions and we shall, therefore, end the discussion by citing a 
 few of the cases in which the courts of this State have said that 
 a defendant, in order to avail himself of facts not appearing on 
 the face of a contract to establish its invalidity, must plead it. 
 (Dingeldein v. Third Ave. E. K Co., 37 N. Y., 575 ; Goodwin 
 V. Mass. Mut. Life Ins. Co., 73 id., 480 ; May v. Burras, 13 Abb. 
 N. C, 384 ; Ilaywood v. Jones, 10 Hun, 500 ; Schreyer v. Mayor, 
 -^^ etc., 7 J. & S., 1 ; Vischer v. Eagg, 21 Weekly Digest, 399 ; 
 Honegger v. Wettstein, 94 N. Y., 252.) 
 
 The judgment should be reversed. 
 
 All the judges concurred. 
 
 Judgment reversed. 
 
 WALLACE V. BLAKE. 
 
 Xew York Court of Appeals, 1891. 
 [Reported in 138 N. Y., 676.] 
 
 1. A subsequent modification of the ag-reement set out in the complaint 
 cannot be shown under a general denial.* 
 
 3. In an action to recover a balance due for goods sold, after it has been 
 shown bj' uncontradicted evidence that defendants purcliased, received 
 and disposed of the goods, the defendants cannot, under a general 
 denial, show that after their receipt and acceptance of the goods, they 
 complained of their quality, and it was then arranged that they 
 should be considered as having received the goods as plaintiffs' 
 agents for sale ; nor that defendants rejected the goods because of 
 inferior quality. 
 
 *In an action upon a contract, where the complaint sets out only part 
 of the agreement, omitting another part which materially qualifies the 
 ag'reement as set out, under a denial that the agreement was as set forth 
 in the complaint, the defendant is entitled to read in evidence the part 
 which has been omitted. 
 
 In an action to recover royalties alleged to be due upon the manufac- 
 ture and sale of a patented article, under a license or agreement, — Hehl, 
 that the defendant, under a general denial, may read in evidence another 
 instrument iiiadi' between the same parties, at the same time, in reference 
 to the same subject matter, so as in n.'ality to form a part of the agrement 
 set forth in tlii^ complaint, wliereby the amount of the roj'alties were 
 materially reduced. JIarsh c. Dodge, 66 N. Y., .533. 
 
III. Technical Rules. (5) Answer. 4s 7 
 
 Wallace v. Blake, 138 N. Y., 676. 
 
 The complaint, after alleging partnership of the parties 1 
 respectively, proceeded : 
 
 III. That on or about the 3d day of March, 1886, the plaint- 
 iffs delivered to defendants, at their request, a quantity of yarn 
 of the agreed price or value in the money of Great Britain of 
 £810, as further shown on the statement hereto annexed and 
 marked Exhibit A. 
 
 [I^our more sales of yarn on different dates were xhnllarly 
 ■alleged, various payments made hy the defendants were admitted, 
 <uid a ialance of $1,979 was alleged to he payahle to plaintiff's.'] .^ 
 
 The defendants denied any knowledge or information sufficient 
 to form a belief as to the allegations covering the sales, and 
 denied the allegations covering the payments by them and the 
 balance due. 
 
 At the trial, plaintifts proved the sale, delivery and acceptance 
 ■of the goods, by undisputed evidence. The defendants then 
 •offered to show that after the sale and delivery of the yarn to 
 them they complained to the plaintiffs of the quality thereof, 3 
 and that then it was arranged that they (defendants) should be 
 considered as having received the yarn as consignees, and that 
 they were to sell it for and on account of the plaintiffs. 
 
 The Court of Appeals held that the trial judge had properly 
 excluded such a defence on the ground that it was not pleaded. 
 
 Eael, J. [after stating the facts] ; It was an affirmative defence 
 which, according to elementary rules of pleading, could not be 
 shown under the denials in the answer. 
 
 The defendants claim that they had the right to prove under ^ 
 their denials that they had not accepted the yarn. But the 
 uncontradicted evidence shows that the yarn was purchased by 
 them of the plaintiffs' manufacturers in England; that it was 
 shipped to them as purchasers from England, and was taken, 
 received and disposed of by them, and all this shows a legal 
 acceptance of it by them. Their claim, however, is that after 
 the yarn was delivered to them it was arranged that they should 
 hold and sell it as consignees, and that thus they rejected it as 
 
488 Abbott's Select Cases on Code Pleading. 
 
 Sprague v. Sprague, 80 Hun, 285. 
 
 purchasers. But they had no right to assert this claim under 
 their answer. 
 
 To the defendants' claim that after they had purchased the 
 yarn, and it had come into their possession and control as the 
 purchasers, they rejected it because of its inferior quality, the 
 answer again is that no such defence is alleged, and that there is 
 no allegation in the answer that this yarn was in any respect 
 inferior or defective. 
 
 The reply to this answer contains no allegations or admissions 
 which can cure the defective answer or enlarge its scope. 
 
 The judgment should be affirmed, with costs. 
 
 SPRAGUE V. SPRAGUE. 
 
 iVew) York Supreme Court, General Term, Second Depart- 
 ment, 189 Jf. 
 
 [Reported in 80 Hun, 285.] 
 
 1. To a complaint on a promissory note an answer which denies the mak- 
 
 ing and delivery of the note and any indebtedness thereon is in effect 
 a general denial. 
 
 2. A promissory note, whether it expresses value received or not. 
 
 imports a consideration, and the burden as to consideration is upon 
 the defendant. 
 
 3. If the answer does not allege want of consideration, that defence can- 
 
 not be proved. 
 
 1 This action was brought upon a promissory note made by de- 
 fendant's intestate. 
 
 The answer denied the making and delivery of the note, and 
 any indebtedness thereon. 
 
 Beown, p. J. The main question of fact litigated upon the 
 trial was as to the authenticity of the note, and the verdict of the 
 jury has, upon ample testimony, determined that question in the 
 
 2 plaintiff's favor. The question of consideration did not arise 
 upon the pleadings. The answer was in effect a general denial, 
 and that put in issue all facts which plaintiff was bound to prove 
 to make out his cause of action. (Milbank v. Jones, 141 N. Y.. 
 340 ; s. c, p. 483 of this vol.) 
 
III. Technical Rules. (5) Answer. 489 
 
 Note on the Effect of a Denial. 
 
 A promissory no1 e, whether it expresses value received or not, 3 
 imports a consideration, and the burden rests upon the defendant 
 to prove the fact otlierwise. (Carnwright v. Gray, 127 N. Y., 
 93 ; s. c, p. 58 of this vol.) 
 
 As the answer did not plead that defence, the court was cor- 
 rect in its charge that there was no question of that kind in issue. 
 The fact that the payee of the note was the maker's mother did 
 not take the case out of the operation of the rule cited. 
 
 [A ruling on a point of evidence is here omitted.^ 
 
 BAUMILLER v. WOEKINGMAN'S CO-OPERATIVE 
 ASSOCIATION. 
 
 jyew Yorl Common Pleas, General Term, 189^.. 
 
 [Reported in 9 Misc., 157.] 
 
 The objection that the action has been prematurely brought, unless the 
 fact appears on the face of the complaint, is an affirmative defence, 
 and not available under a general denial. 
 
 In an action on a policy of insurance in the Workingman's 1 
 Co-operative Association, for " sick benefits," the defendant 
 objected that the action was brought prematurely, because before 
 the expiration of the thirty days allowed by the policy. 
 
 Held, the fact is not apparent, and it was an aifirmative 
 defence of which the appellant could not avail himself under his 
 general denial. 
 
 NOTE ON THE EFFECT OF A DENIAL. 
 
 The code procedure requires allegations and denials to relate to matters 
 of fact, and, although not dispensing- entirely with conclusions, such as 
 give character to the intention of the pleader, yet deprives conclusions of 
 all controlling- force as elements in the issue joined. Hence the test as to 
 what may be proved under a traverse of the plaintiff's pleading is quite 
 different from that applicable at common law. The result of a general 
 traverse at co-mmon law varied in different forms of action and different 
 
490 Abbott's Select Cases on Code Pi.EADiNf;. 
 
 Note on the Effect of a Denial. 
 
 forms of the plea. The commonly stated rule (particularly applicable in 
 assumpsit) was that the general issue let in evidence of anything to show 
 that plaintiff never had a cause of action and any evidence in mitigation 
 of damages. Under the Code the rule as commonly stated is that a 
 general denial lets in any evidence tending to controvert what the plaintiff 
 is bound to prove in the first instance to make out his claim. Griffin v. 
 Long Island E. R. Co., 101 N. Y., 348. 
 
 The test may be more precisely stated thus : If you desire to give 
 evidence as to a new fact not indicated in the complaint, for the sole 
 purpose of negativing something that is alleged in the complaint and with 
 which your new fact is inconsistent, a mere denial of plaintiff's allegation 
 lets in that evidence ; and, on the other hand, a statement of that new 
 fact in the answer without denying plaintiff's allegation, will not let 
 it in. 
 
 But if you desire to prove a new fact, not for the purpose of negativing 
 plaintiff's complaint, but for the purpose of putting this new fact along 
 with those he has alleged, so as to show that on the whole case he is not 
 now, or even that he never was, entitled to recover, the new fact must be 
 pleaded and cannot be given in evidence under the denial. 
 
 For instance, if the plaintiff alleges that the defendant wrongfully 
 entered upon plaintiff's premises to his damage, etc., the ownership and 
 the entry are matters of fact ; the " wrongfully " is a conclusion. If it be 
 desired to prove that the premises belonged to some one else merely for 
 the purpose of negativing plaintiff's claim of ownership, this is competent 
 under a denial. If it be desired to prove that defendant was in another 
 place, that the entry was made by some third person, this, since it tends 
 to negative plaintiff's allegation that defendant entered, may be proved 
 under a denial ; and an allegation that the entry was made by a third 
 person without denying that defendant made it, would not let in evidence 
 of entry by the third person. On the other hand, if the object is to put, 
 along witli plaintiff's allegation of ownership and entry, another fact 
 such, for instance, as previous license from the plaintiff, or that defendant 
 was a sheriff with an execution, etc. , so as to show that plaintiff never had a 
 cause of action, these are not admissible under a denial because they do 
 not tend to negative plaintiff's facts, but only his conclusion. See, for 
 instances American Tool Co. v. Smith, 1 State Rep., 761; Wehle v. Butler, 
 12 Abb. Pr. N. S., 139 ; ». c. 35 Super. Ct. (J. & S.), 1 ; Pier v. Finch, 29 
 Barb., 170; Beaty v. Swarthout, 32 Barb., 393; Wilson v. Manhattan 
 Ry. Co., 2 Misc., 137; s. c. 49 State Rep., 116; 30 N. Y. Supp., 853; 
 Brown v. Chadsey, 39 Barb., 353. 
 
 The same principles apply to causes of action on contract, as well as to 
 those on tort ; and it is upon this principle that a modification of the con- 
 tract alleged, or payment, or release, or an excuse for breach, or an 
 assignment by plaintiff of his cause of action, or any other new fact which, 
 though it may negative the ooncluoion, does not negative the allegations 
 from which plaintiff seeks to draw that conclusion, must be pleaded by 
 the defendant ; while a materially different version — as, for instance, of 
 
III. Technical Rules. (5) Answer. 491 
 
 Note on Putting- Corporate Existence in Issue. 
 
 the contract alleged by plaintiff, or of the supposed defamatory words 
 ■charged by him to have been spoken, or any other fact absolutely in- 
 consistent with any of his essential allegations — may be proved under a 
 •denial. 
 
 iS^OTE OK PUTTING COEPORATE EXISTENCE IN 
 
 ISSUE. 
 
 Code Civ. Pro., § 1776 : "In an action brought by or against a corpora- 
 tion, the plaintiff need not prove, upon the trial, the existence of the cor- 
 poration, unless the answer is verified, and contains an affirmative allega- 
 tion that the plaintiff, or the defendant, as the case may be, is not a 
 corporation." 
 
 This section applies to foreign as well as to domestic corporations. 
 Vulcan V. Myers, 58 Hun, 161; McElwee Mfg. Co. v. Trowbridge, 68 id,, 28. 
 
 The following allegations have been held insufficient to raise an issue : 
 
 "Upon information and belief they denj' the plaintiff ever was or now 
 is a corporation." Vulcan v. Myers, 58 Hun, 161. Defendant "has no 
 knowledge or information sufficient to form a belief " as to the organiza- 
 tion of plaintiff as a dome.stic corporation, Concordia Sav. and Aid Ass. v. 
 Read, 93 N. Y., 474 ; as a foreign corporation, McElwee Mfg. Co. v. Trow- 
 bridge, 68 Hun, 28. 
 
 " The defendant denies on its information and belief that at the time 
 mentioned in the complaint, or at any other time, the defendant was a 
 foreign corporation, as is alleged in the complaint." Bengston v. Thing-- 
 vallaS. S. Co., 31 Hun, 96. 
 
 " For a second and separate defence, the defendant alleges on infor- 
 mation and belief that it is not and never was a corporation." Bengston 
 V. Thingvalla S. S. Co., 3 Civ. Pro., 263 ; aff'd in 31 Hun, 96 without pass- 
 ing on this defence. The Court (Bbown, J.) was of opinion that a partj' 
 intending to raise the issue should be held to a positive allegation ; at 
 least sach should be the rule where a company, holding itself out to the 
 world as a corporation, denies its own existence. 
 
 But so far as the opinion indicates that an allegation that defendant is 
 mot a corporation is not an " affirmative allegation," if made on informa- 
 tion and belief, it is not in harmony with settled usage, for an affirma- 
 tive as well as a negative allegation may be either positive, or on infor- 
 mation and belief. 
 
 See Note on The Effect of Denials, p. 489 of this vol. 
 
 {Voluntary Association.] Where, under Code Civ. Pro., § 1919, an 
 action is brought by the president or treasurer on behalf of the associa- 
 tion, an allegation in the complaint " that the Racket Club is a joint-stock 
 company or association, consisting of more than seven sliareholders or 
 associates " is put in issue by a simple denial. Tiffany r. Williams, 10 
 Abb. Pr., 204. 
 
492 Abbott's Select Casks on Code Pleading. 
 
 Walker v. The Granite Bank, 1 Abb. Pr. (N. S.), 406. 
 
 WALKER V. THE GRANITE BANK. 
 
 Supreme Court, First District, Special Term I860. 
 
 [Reported in 1 Abb. Pr. (N. S.), 406.] 
 
 1. Iq an action to recover securities pledged, on the ^-ound that tlie 
 amount for which they were pledged had been paid, an answer alleg- 
 ing that the amount had not been paid, but that a lai'ge sum still 
 remains unpaid, is not obnoxious to a motion to make it more definite 
 and certain. A simple denial that all the money for which the securi- 
 ties had been pledged had been paid would have been enough. 
 
 3. Where an amended complaint is served in pursuance of leave given hy 
 the court, a new answer becomes necessary ; and the time within which 
 to move to compel an amendment of the answer runs from the time 
 of filing it. 
 
 1 Motion by plaintiflE to require the defendants' answer to be 
 made more definite and certain. 
 
 Ingeaham, P. J. The portion of the answer whicli sets out 
 special causes why the gratuity was not voted by the directors, 
 should not have been inserted in the answer. The general alle- 
 gation that the services were of no value to the defendants is 
 proper, but all the rest is mere evidence to prove the truth of 
 the foregoing allegation. 
 
 *" The application to have the defendant state in the answer how 
 much is due to the defendants from Holbrook, is denied. It is 
 very immaterial what the amount is. The plaintiff claims to 
 recover the securities on the ground that the amount for which 
 they were pledged had been paid in part by collections and in 
 part by sales. The defendants answer that the amount has not 
 been paid, but that a large sum still remains unpaid. I do not 
 think the plaintiff has any right to require this allegation to be 
 
 3 made more specific by stating the amount actually unpaid. That 
 must be matter of proof on the trial. The issue could have been 
 as well formed by a simple denial that all of the moneys for 
 which the securities had been pledged were paid to the defend- 
 ants. 
 
 The objection that it is too late to make the motion is not well 
 taken. The leave to serve an amended complaint destroyed the 
 
III. Technical Rides. (5) Answer. 493 
 
 White V. Drake, 3 Abb. N. C, 133. 
 
 further pleadings, and rendered a new answer necessary. The 4 
 time within which to move to amend the answer runs from the 
 ■filing of it. 
 
 Motion granted in part, as aboxe stated. 
 
 WHITE V. DKAKE. 
 
 Xeiv York Stqrreme .Court, First Department, Special Term, 
 
 1877. 
 
 [Reported in 3 Abb. N. C, 133.] 
 
 A defence merely alleging that plaintiff is not the real party in interest, 
 but that W. is, is demurrable ; because it attempts to set up new 
 matter wliich could not be proved unless specially pleaded, and states 
 no fact, but only a conclusion of law. 
 
 Demurrer to a portion of an answer. 1 
 
 Plaintiff sued as assignee of several choses in action, alleged 
 to have been assigned by one Robert Woodruff. Defendant, as 
 his fourth defence, alleged as follows : " Defendant for a 
 further and separate defence, alleges on his information and 
 belief tliat the plaintiff is not the real party in interest, but that 
 said Woodruff is the real party in interest. " 
 
 To this part of the answer plaintiff demurred on the ground .> 
 that it was insufficient in law upon its face, and constituted no 
 answer or defence to the complaint or any part thereof. 
 
 Baerett, J. I. — The answer is demurrable. It attempts to 
 set up new matter ; that is, matter which could not be proved 
 under a denial nor unless set up. (Jackson v. Whedon, 1 E. D. 
 Smith, 142 ; Savage v. Corn Ex. Fire Ins. Co., 4 Bosw., bottom 
 of page 15, and top of page 16.) ,^ 
 
 II. — And it is bad on demurrer, for the reason that no fact is 
 stated — nothing but a conclusion of law. The action must of 
 course be prosecuted in the name of the real pai-ty in interest, 
 but whether it is so prosecuted depends upon the facts. (Russell 
 V. Clapp, 3 Code R., 65 ; Bentley v. Jones, 4 How. Pr., 204 ; 
 Brown v. Ryckman, 12 How. Pr., 314; Witherspoon v. Van 
 
494 Abbott's Select Cases on Code PLEArnxG. 
 
 Tiaver v. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Dec, in. 
 
 Dolar, 15 How. Pr., 266.) There may be a question when 
 ownership in another is pleaded (see Holstein v. Rice, 15 How. 
 Pr., 1 and note), enough certainly to put the plaintiff to his 
 demurrer ; which was all that was held in Tamisier v. Cassard, 17 
 Abb. Pr., 187.* None, however, where the averment is limited 
 to the phraseology of the Code. 
 
 Judgment for the plaintiff on the demurrer with costs, and 
 with the usual leave to the defendant to amend his answer 
 within twenty days upon payment of such costs. 
 
 TRAVEE V. EIGHTH AVENUE E. R. CO. 
 
 New York Court of Appeals, September, 1867. 
 
 [Reported in 4 Abb. Ct. of App. Dec, 431.] 
 
 1. Under the Code of Procedure, the only way to take advantage of a 
 
 mere misnomer, e. g., the bringing- of an action by a married woman 
 in hei- maiden name, is by answer ; if not set up by answer, advantage 
 cannot be taken of it on the trial. 
 
 2. A mere misnomer in pleading is a formal error, amendable in the court 
 
 of original jurisdiction ; and will not be noticed in this court. 
 
 3. Where a minor ciiild is injured by negligence, the parent may recover 
 
 for the loss of service for the remainder of the period of minority ; and 
 if the disability continue beyond that period, the child may recover for 
 such further loss. 
 
 Amelia Traver, by A. Bull, her guardian, sued to recover 
 damages for an injury alleged to have been caused by defendants' 
 negligence. After the injury, but before suing, plaintiff inter 
 married with one Collins ; in the summons and complaint in the 
 action, however, she was designated by her maiden name. She 
 was a minor at the time of the injury, but a few months past 
 twenty-one. at the time of the trial. 
 
 Upon the trial, evidence was received under exception, as to 
 
 *In Tamisier v. Cassard, 17 Abb. Pr. , 187, plaintifl alleged that he was the 
 lawful owner and holder of the nole sued on. The defendant in his answer 
 denied that plaintifl was the owner and holder and alleged that one G. was 
 the real owner and holder thereof, and the real party in interest. On motion 
 for judgment on the answer as frivolous, — Held, that a material issue was pre- 
 sented, and the motion must be denied. 
 
III. Technifal Rulen. (5) Answer. 495 
 
 Travel- v. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Dec, 431. 
 
 liow much she could earn per week, prior to the injury, and that 
 some money had been expended in taking care of her the last 
 year preceding the trial. 
 
 Defendants moved to dismiss the complaint, on the ground, 
 among others, that the action was improperly brought in plaint- 
 iffs maiden name, instead of the name acquired by marriage. 
 The motion M^as denied. 
 
 It appeared that an action had been previously brought by 
 plaintiff's mother, and a recovery had for loss of plaintiffs 
 services, and the expense of taking care of her. 
 
 The court charged the jury that nothing could be recovered 
 for those causes in the present action. Plaintiff recovered. 
 
 The Superior Court at Special Term, denied a motion for a 
 new trial. 
 
 The General Term affirmed the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Geovee, J. Commencing the action in the maiden name of 
 the plaintiff, instead of that acquired by marriage, was a mis- 
 nomer merely. There was no pretence but that the plaintiff 
 Avas the proper person to sue, and the only one that could main- 
 tain an action for the injury sought to be redressed. Under the 
 practice prior to the Code, misnomer of either party could only 
 be pleaded in abatement of the action (2 Grab. Pr., and cases 
 cited). Neglecting to interpose such plea waived any advantage 
 to the defendant therefrom. The mistake was amendable by 
 the court. The misnomer was not ground of non-suit upon the 
 trial. It was not like the case of bringing an action by the 
 wrong party ; that was ground of non-suit. By the Code, pleas 
 in abatement are abolished (Code, §§ 142-151). The only mode 
 of presenting such a defence is, under the Code, by answer. No 
 such defence is set up in the answer in the present case. It was, 
 therefore, unavailable upon the trial. In Bank of Havana v. 
 Mao-ee (20 N. Y., 355), it was held that although there was no 
 such corporation, and that it was only a name a?suniedby Charles 
 Cook for the transaction of his banking business, yet bringing 
 the action by Cook in such name was but a mere formal error. 
 
 •) 
 
496 Abbott's Select Cases on Code Pleading. 
 
 Travel- v. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Deo._, 421. 
 
 amendable in the courts of original jurisdiction, and to be dis- 
 regarded in this court. 
 
 That case goes much further than it is necessary to go in the 
 present. In that case, upon the papers, it would appear that the 
 action was brought by a corporation, and not by Charles Cook, 
 while in the present the plaintiii was the same, whether called 
 by the married or maiden name. 
 
 The evidence of what the plaintiff could earn before the 
 injury, was held by the judge not to be material, and the jury 
 were instructed not to give any damages for loss of services, 
 inasmuch as the plaintiff's mother had previously recovered 
 therefor. This direction would not have cured the error (if one 
 was committed), in receiving the evidence, if that was such as 
 was calculated to create a prejudice in the minds of the jury, and 
 influence them in fixing the amount of damages, unless it ap- 
 peared, from the whole case, that the jury were not so influenced 
 (Erben v. Lorillard, 19 N. Y., 299). The evidence in the 
 present case was not likely to influence the jury upon the ques- 
 tion of damages, unless they were convinced that the injury of 
 the plaintiff was of a character to prevent her from attending to 
 her business after she was twenty-one ; and, if so convinced, the 
 evidence was proper for the consideration of the jury. When a 
 child under twenty-one is injured, the parent can recover for 
 loss of service until the arrival of the child to that age ; and, if 
 the disability continues beyond that time, the child may recover 
 for the loss. Upon this point, the case was tried as favorable to 
 the defendants as the law required. Ko claim for loss of service 
 was made by the plaintiff after she was twenty-one ; and the 
 jury were told that the mother had recovered for such loss up to 
 that time. !No ground of objection to the proof of what the 
 expense of taking care of the plaintiff had been, was stated. The 
 exception to the proof does not, therefore, raise any question for 
 the consideration of this court. The judgment appealed from 
 must be affirmed. 
 
 All the judges concurred. 
 
 Judgment affirmed, Avith costs. 
 
III. TeGhnical Mules. (5) Answer. 49T 
 
 Wiegand v. Sichel, 4 Abb. Ct. of App. Dec, 59:2. 
 
 WIEGAND V. SICHEL. 
 
 New Yorh Court of Appeals, 1866. 
 
 [Reported in 4 Abb. Ct. of App. Dec, 592.] 
 
 1. In an answer alleging a defect of parties, defendant must state pre- 
 cisely and truly who are the parties lacking, and an error wholly 
 vitiates the defence. Thus in an action for goods sold, an answer 
 that A and B were partners with defendant and should have been 
 joined, is not sufficient to admit proof that A was a partner.* 
 
 3. The rule requiring the production of a subscribing witness to prove 
 the execution of an attested instrument is not affected by the Code.f 
 
 3. Where the making of a contract giving credit is induced by fraud, the 
 creditor may sue upon the implied agreement founded on the con- 
 sideration of the contract, and may prove the fraud under the 
 ordinary complaint for goods sold, etc., for the purpose of avoiding 
 the stipulation as to credit. 
 
 Action for goods sold. 
 
 The original complaint contained two counts, one for goods 
 sold, the other for the value of the same goods obtained by 
 fraud and converted. The court ordered the plaintiffs to elect 
 between these counts, and they amended by striking out the 
 latter count. The complaint, as amended, was the ordinary one 
 for gonds sold and delivered. 
 
 The defendants pleaded a non-joinder of George Mann and 
 Adolphus Knorr, as co-defendants ; also, that the goods had been 
 purchased on a credit, which had not yet expired, and that they 
 had given their promissory notes to the plaintiffs for the amount 
 of the purchase. 
 
 On the trial, the plaintiiis proved the sale and delivery of the 
 goods on a credit of four months, for which the defendants gave 
 their own promissory notes; the plaintiffs also proved that the 
 
 * In Palmer v. Field, 76 Hun, 229, defendant was sued as an indorser of several notes. The 
 answer alleged that the noies were joint ohligations of the indoreers thereon whose names were 
 given, and upon the trial, defendant was allowed to amend his answer by setting up that the 
 failure to join such pf rsons was a defect of parties defendant. 
 
 Held, the plea was not sufHcient to raise the defence. " To make a plea in abatement good, 
 when it is based on the non-joinder of a party defendant, (he plea must aver that the pcrs^in 
 not joined is alive and within reach of the ordinary process of the court." 
 
 t It is modified byL. 1883, p. 200, u. 195, which provides that it is not necessary to call the 
 subscribing witness, except in the case of written instruments to the validity of which one or 
 more may be necessary. 
 
 33 
 
498 Abbott's Select Cases on Code Pleading. 
 
 Wiegand v. Sichel, 4 Abb. Ct. of App. Dec, 592. 
 
 credit was obtained upon representations grossly false and 
 fraudulent ; that they had, in vain, sought the defendants, to 
 offer a return of the notes before suit commenced ; and that the 
 defendants fraudulently concealed themselves ; and they pro- 
 duced and offered to cancel the notes on the trial. The plaintiffs 
 recovered at the Circuit. 
 
 The Supreme Court held that under an allegation that two 
 persons were partners with the defendants, articles of co-partner- 
 ship showing that one of them was, were inadmissible ; that the 
 rule requiring the production of subscribing witnesses is not 
 modified by the Code ; and that on the authority of Roth v. 
 Palmer, 27 Barb., 652, plaintiffs might disregard the express 
 agreement for a credit and recover immediately on the implied 
 agreement. Reported in 34 Barb., 84. 
 
 The Court of Appeals affirmed the judgment. 
 
 Hunt, J. [after stating the facts'] : The appellants' points 
 present three grounds of objection, which I will consider in the 
 order in which they are presented. It is claimed that an error 
 was committed in excluding the proof of certain articles of 
 co-partnership, entered into on April 20, 1858, between Max 
 Sichel, Solomon Sichel and George Mann. As a part of their 
 answer, the defendants had pleaded, that the supposed promises, 
 in the complaint set forth, if any such were made, were made 
 jointly, with George Mann and Adolphus Knorr, and not by the 
 defendants alone ; and they prayed that the plaintiffs' action 
 might abate, on account of the non-joinder of said Mann and 
 Knorr. On the trial, the defendants offered in evidence the 
 articles of co-partnership mentioned, to sustain this defence in 
 abatement. It was excluded by the judge. A plea in abate- 
 ment that Knorr and Mann were co-partners, and should have 
 been co-defendants, was not sustained by evidence that Mann was 
 such partner. The defendant, by his plea, must give the party 
 a better writ ; that is, he must state precisely and truly who were 
 the parties to the contract ; and if he fails to do this, his plea 
 fails also. To sustain the plea, it must appear that there is 
 neither a greater nor less number of parties than is set up in the 
 plea (Hawks v. Munger, 2 Hill, 200). The paper was not 
 
III. Technical Rules. (5) Answer. 499 
 
 Wiegand v. Sichel, 4 Abb. Ct. of App. Dec, 593. 
 
 offered in connection with evidence to prove that Knorr was 7 
 also a partner ; and, indeed, it was explicitly proven by Knorr 
 that he never had been a partner in the business. There was no 
 error in this ruling, and this, independently of the question of 
 the incompetency of written articles to prove the fact alleged. 
 
 The defendants afterward offered in evidence a release, signed 
 by Max Sichel and Adolphus Knorr, reciting a former partner- 
 ship between them, and mutually releasing each from all claims 
 in favor of the other. This paper was signed by John Herts, as 
 a subscribing witness, and the plaintiffs objected to its admission, 
 unless proved by the subscribing witness. The law on this 
 point remains unchanged, and the objection was undoubtedly 
 valid. There was no error of the judge in excluding this paper. 
 If admitted, the release could have had no possible effect. It 
 did not relate a partnership of Knorr with Max Sichel and 
 Solomon Sichel, but with Max Sichel alone. This could not 
 have been in reference to the partnership sued, as to which it 
 was admitted, by the pleadings, that Solomon was a member. If 
 it was intended that the paper should connect Knorr as a partner 
 of the firm sued, it could have no such effect, and was quite 9 
 immaterial. 
 
 The last objection urged by the defendants is upon the form 
 of the action. The complaint, as amended, was in the ordinary 
 form for goods sold and delivered, and a cause of action was 
 proved in the manner and of the character I have already 
 stated. The defendants now object that, upon these pleadings, 
 it was error to allow the plaintiffs to prove a fraud, for the 
 purpose of avoiding the contract upon which they had counted. 
 
 It is settled by numerous authorities, that, under the circum- 
 stances existing in this case, the plaintiffs were not bound to 
 bring an action for the deceit, or an action of trover or replevin, 
 but could waive the tort and bring assumpsit at once for the 
 value of the goods. Eoth v. Palmer, 27 Barb,, 652; Masson v. 
 Bovet, 1 Denio, 69 ; Osborne v. Bell, 5 id., 370 ; Kingman v. 
 Hotailing, 25 Wend., 423. 
 
 It is not accurate to say that the plaintiffs sought to avoid 
 the contract of sale. It is the credit, only, that is sought to be 
 avoided. It was the sale of goods which the plaintiffs, by 
 
500 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Halbert, 21 Abb. N. C, 260. 
 
 11 their action, affirmed. It was, however, a sale where the credit 
 was obtained by fraud, and, in law, amounted to a sale for cash. 
 In stating it in their complaint, therefore, to be a sale, and for 
 cash, the plaintiils but stated the contract according to its legal 
 effect. They did not seek to avoid the contract of sale. They 
 endeavored, merely, by proof of the act of fraud, to reduce the 
 transaction to a cash sale. The complaint and the proof were to 
 the same purport. 
 
 12 The judgment should be affirmed. 
 A majority of the judges concurred. 
 Judgment affirmed, with costs. 
 
 THOMPSON V. HALBEET. 
 
 Ifew York Court of Appeals, April, 1888. 
 [Reported in 21 Abb. N. C, 366 ; rev'g 40 Hun, 536.] 
 
 1. If the answer does not state that new matter therein pleaded is set forth 
 
 as a partial defence, the plaintiff has the right to assume, and tlie 
 court must assume, that it is pleaded as a complete defence ; and 
 upon demurrer it must be tested as such. 
 
 2. It is not a complete defence to an action for the conversion of a promis- 
 
 sory note that the statute of limitations has barred an action on the 
 note itself. A plea of the statute as having barred the chose in action 
 converted, tacitly admits the cause of action for conversion and ques- 
 tions only the extent and amount of damages, and is not a bar to a 
 recovery. 
 
 3. In an action for the conversion of a promissory note, if proof of the 
 
 fact that an action thereon is barred by the statute of limitations is 
 admissible at all, it may be proved under a general denial, since the 
 plaintiff must prove the value of the note as the basis of his recovery, 
 and the defendant may prove any facts which affect its value, even to 
 tlie extent of reducing the recovery to merely nominal damages. 
 
 Demurrer to the seventh defence set forth in the answer. 
 
 The first cause of action was for the conversion of a note 
 secured by mortgage upon land in Kansas, dated in 1871, and 
 the complaint alleged that the note was worth its face value 
 the sum of $300 and interest thereon from its date at 12 per 
 cent per annum. 
 
 The answer contained nine defences, the seventh defence 
 
III. Technical Rules. (5) Answer. 501 
 
 Thompson v. Halbei-t, 31 Abb. N. O., 266. 
 
 alleging, " as a further answer to the first cause of action," that 
 by the laws of Kansas, where the maker of the note and mort- 
 gage resided and where the land mortgaged was located, the 
 note and mortgage were " barred by the statute of limitations," 
 and that " no action can now be maintained nor any recovery 
 had thereon." 
 
 To this defence the plaintiff demurred, " upon the ground 
 that it is insufficient in law upon the face thereof." 
 
 The Special Term of the Supreme Court sustained the de- 
 murrer, holding that the matter alleged was a partial defence 
 onl}^, which, by Code Civ. Pro., § 508,* must be expressly stated 
 to be such, and being pleaded as an absolute defence was de- 
 murrable. 
 
 The General Term reversed the decision below and overruled 
 the demurrer, holding that as no informality in the manner of 
 presentation of the defence was stated in the demurrer, nor could 
 be under Code Civ. Pro., § 508, the only question on the de- 
 murrer was whether the matter demurred to was sufficient as the 
 statement of an entire or partial defence ; and that if the note 
 should be proved to be of no value by reason of the statute of 
 lunitations, then the answer contained a complete defence, while 
 if it should be shown or considered to be of some value, then the 
 answer contained a partial defence (Decision reported in 40 Hun, 
 536). 
 
 From the interlocutory judgment and order of the General 
 Term plaintiff appealed. 
 
 The Court of Appeals reversed the judgment. 
 
 Finch, J. This action was brought to recover damages for 
 the conversion by the defendants of two notes and the mortgages 
 which secured them. The first cause of action pleaded, respects 
 
 *Code Civ. Pro., § 508. A partial defence may be set forth, as pre- 
 scribed 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 mitig-ate or reduce 
 damage, 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. 
 
502 Abbott's Select Cases on Code Pleading. 
 
 Thompson v. Halbert, 21 Abb. N. C, 266. 
 
 a note and mortgage upon land in Kansas, dated in 18Y1, and as 
 an answer to that the defendants alleged in their seventh defence 
 that by the laws of that State in which the maker of the note 
 resided and the land was located, the note and mortgage were 
 barred by the statute of limitations, and that no action could now 
 be maintained thereon. To this answer the plaintiff demurred 
 on the ground that it was insufficient in law on the face thereof. 
 The demurrer was sustained by the Special Term, but that decision 
 was reversed by the General Term on appeal. 
 
 We are of opinion that the reversal was erroneous. The facts 
 stated in the answer were not pleaded as a partial defence or in 
 mitigation of damages. Where that is attempted the Code 
 explicitly requires that the answer shall so state, and give notice 
 that the facts relied upon are intended as a partial defence (Code 
 Civ. Pro., § 508). When no such statement is made the plaintiff 
 has the right to assume, and the court must assume, that the new 
 matter alleged is pleaded as a complete defence, and if demurred 
 to must be tested as such (Matthews v. Beach, 5 Sandf., ii56 ; 
 8. c. 8 N. Y., 1 Y3).* Applying that test, the answer is insufficient. 
 It merely affects the amount of damages to be recovered by tend- 
 ing to reduce the value of the securities converted. 
 
 It confesses but does not avoid. It admits the cause of action 
 and questions only its extent and amount, and is not a bar to 
 recovery. It is bad, therefore, as a defence, and the Special Term 
 was right in so holding. 
 
 It is not denied that the facts alleged, if admissible at all, may 
 nevertheless be put in evidence for the purpose of affecting or 
 reducing the value of the securities (Booth v. Powers, 56 X. Y., 
 22). So far as the question of pleading is concerned, they are 
 admissible under the denials of the answer. The plaintiff must 
 prove the value of the articles converted as the basis of his 
 recovery, and what he may prove the defendants, denying, may 
 disprove. The plaintiff averred the value of the note to be .§300, 
 and the accrued interest at 12 per cent. The defendants deny 
 
 *Tlie decision in 8 N. Y. was on appeal from final judgment after trial 
 had, in which the interlocutory judgment on demurrer, which was 
 affirmed in 5 Sandf., was also brought up for review and the decision 
 approved, though (lie final judgment was reversed for error at the trial. 
 
III. Technical Rules. (5) Answer. 503 
 
 Simmons v. Simmons, 31 Abb. N. C, 469. 
 
 that allegation, and aver that the same had no value, and also 10 
 deny the alleged conversion. While the allegations of value 
 and no value may perhaps not make a technical issue, because 
 needless, yet under the denial of the answer, which puts in issue 
 plaintiff's whole cause of action, the defendants have a right to 
 prove any facts which affect the value of the securities, and 
 possibly to an amount which would reduce the recovery to 
 merely nominal damag.es ; and so, as a question of pleading, and 
 although the seventh defence be stricken out, may prove the law 
 of Kansas and show the difficulty and uncertainty of collection 
 (Knapp V. Eoche, 94 N. Y., 329, 333). So much the plaintiff 
 concedes. Precisely what useful purpose was served by inter- 
 posing this demurrer it is therefore difficult to see, but the ques- 
 tion is raised and must be correctly decided. 
 
 The argument of the General Term appears to be that the 
 facts pleaded might induce the jury to find that the securities 
 converted were absolutely valueless, and so the defence become 
 a complete one. It would be more correct to say that the 
 damages would become merely nominal although the conversion 
 would i-emain and the wrong itself be undefended. An answer 12 
 does not bar a cause of action and so constitute a defence when 
 it affects merely the measure of damages. 
 
 The judgment of the General Term should be reversed, and 
 that of the Special Term affirmed with costs, but with leave to 
 the defendants, upon payment of costs of the demurrer, to plead 
 anew or amend within twenty days after entry and notice of 
 this judgment. 
 
 All concurred. 
 
 SIMMONS V. SIMMONS. 
 
 New YorJc Supreme Court, Chambers, 1888. 
 
 [Reported in 21 Abb. N. C, 469.] 
 
 Where portions of an answer as pleaded do not set up a complete 
 defence to the cause of action contained in a complaint, and the 
 pleader omits to state that the defence is pleaded as a partial defence, 
 an order will be granted requiring the defendant to make those allega- 
 
r»()4 Abbott's Select Cases on Code Pleading. 
 
 Simmons v. Simmons, 21 Abb. N. C, 469. 
 
 tions more definite and certain, so tliat it will clearly appear whether 
 such paragraphs are intended as a complete or partial defence. Hence 
 in an action for alienating the affections of a husband, alleg'ations of 
 liis previous divorce, or of previous separation, should be stated as a 
 partial defence. 
 
 Motion to make allegations in an answer more definite and 
 certain. 
 
 Action for damages for alienating tlie affections of the plaint- 
 iff's husband. 
 
 The complaint, after stating plaintiff's marriage in 18.57, and 
 subsequent harmonious relations with her husband, alleged that 
 defendant, in 18Y3, began to alienate plaintiff's husband's affec- 
 tions, and set forth facts showing improper relations of her 
 husband and the defendant ; plaintiff's frequent forgiveness 
 of her husband ; his desertion of her in 1882 ; and his man-iage 
 in Massachusetts with the defendant after he had pretended 
 to have obtained a divorce from plaintiff in Rhode Island. 
 
 The defendant's answer (1) admitted plaintiff's marriage, and 
 (2), denied each and every other allegation of the complaint; 
 and then alleged as follows : 
 
 III. Said defendant further claims that on the — day of 
 November, 1887, a decree of judgment of divorce was duly 
 granted to the said Abram G. Simmons against the plaintiff by 
 the Supreme Court of the State of Rhode Island. 
 
 IV. And previously thereto and on or about the — day of 
 September, 1887; the said plaintiff and Abram Gr. Simmons, 
 agreed together to live separate and apart, and the plaintiff was 
 paid $5,000 in consideration of said agreement. 
 
 The plaintiff then moved for an order : First, that paragraphs 
 III. and IV. be struck out as redundant, and in the event of 
 such application being denied, then, second, for an order that 
 tlie allegations of said paragraphs and each of them be made so 
 definite and certain as to make the precise meaning and applica- 
 tion thereof apparent ; and third, for leave to reply or demur to 
 the matters or any of them set forth in said two paragraphs or 
 either of them. 
 
 This motion was made more than twenty days after answer 
 served. 
 
III. Technical Exiles. (5) Answer. 506 
 
 Simmons v. Simmons, 21 Abb. N. C, 469. 
 
 Andrews, J. It is entirely clear that neither paragraph III. 
 nor paragraph lY. of the answer, as pleaded, sets up a complete 
 defence to the cause of action contained in the complaint. 
 
 Section 508 of the Code authorizes a partial defence to be 
 pleaded, but provides that " it must be expressly stated to be a 
 partial defence," and if either or each paragraph was intended 
 aw a partial defence, the pleader has not complied with the pro- 
 visions of said section.* If it was intended in said paragraphs to 
 plead facts which would go in mitigation of damages, it should 
 have been so stated. 
 
 Under these circumstances, I think the plaintiff is entitled to 
 an order requiring the defendant to make the allegations of 
 said paragi'aphsjnore definite and certain, so that it will clearly 
 appear whether such paragraphs are intended as defences or 
 partial defences or as matter in mitigation of damages. 
 
 The order may provide that if an amended answer is not 
 served within ten days, such paragraphs shall be stricken out ; 
 also that if the matter contained in said paragraphs is pleaded as 
 defences or partial defences, plaintiff may demur within twenty 
 days. 
 
 As such defences or partial defences would not constitute 
 counterclaims, and as a reply to new matter in an answer, not 
 constituting a counterclaim, cannot be directed under section 
 old of the Code, upon the plaintiff's application, the order will 
 not authorize plaintiffs to reply.f 
 
 The motion was not made within the twenty days prescribed 
 by rule 22,:}: and no costs will be granted to either party. 
 
 The order will be settled on notice. 
 
 * See Thompson v. Halbert, p. 500 of this vol. 
 
 f Section 516 provides that where an answer contains new matter, con- 
 stituting a defence by way of avoidance, the court may, in its discretion, 
 on tlie 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. 
 
 I Supreme Court Rule 22 : Motions to strike out of any pleading, mat- 
 ter alleged to be irrelevant, redundant or scandalous, and motions to 
 correct a pleading on the ground of its being " so indefinite or uncertain, 
 that the precise meaning- or application is not apparent," must be noticed 
 before deniurring or answering the pleading, and within twenty days 
 from the service thereof. 
 
506 Abboit's Select Cases on Code Pleading. 
 
 President, etc. of Union Bank v. Crine, 21 Abb. N. C, 146. 
 
 PRESIDENT, ETC. OF UNIOIST BANK v. CEINE. 
 
 U. S. Circuit Court, Southern District of New Yorlc, J888. 
 
 [Reported in 21 Abb. N. C, 146.] 
 
 1. The principle that an equitable defence is not available in an action in 
 
 a court of the United States, on a cause of action of a legal nature,* 
 does not exclude such defences, founded on the equities of suretyship, 
 as courts of law have borrovsred from courts of equity, in a case where 
 available without injunction or other characteristically equitable pro- 
 cedure. 
 
 2. Nor does it exclude a defence consisting of allegations of fact available 
 
 at law, merely because the answer demands specific relief, such as- 
 surrender and cancellation. 
 
 3. In an action by indorsee against maimer, an answer that the note was 
 
 accommodation paper made by defendant for the payee's accommoda- 
 tion, and indorsed by the payee to the plaintiff, under an agreement 
 between all three that the paper so made and indorsed should be en- 
 forced solely against the indorser, is a legal defence, and, it seems, 
 not inconsistent with the note, and sufficient it substantiated. 
 
 4. Mere notice to the bona fide holder of negotiable paper who took it for 
 
 value before maturity, that it was made for the accommodation of the 
 indorser, does not prevent him from compromising with the indorser, 
 and after discharging him, recovering the residue of the accommoda- 
 tion maker. 
 
 I Motion for a new trial, after verdict for plaintiff, by direction 
 of the court. 
 
 The facts are sufficiently stated in the opinion. 
 
 Shipman, J. This is a motion for a new trial in an action at 
 law, in which a verdict was directed for the plaintiif. 
 
 The suit was to recover the amount dne npon six ne- 
 gotiable promissory notes, all made by the defendant to the 
 order of the Valley Worsted Mills, a corporation which in- 
 dorsed them for value, and before maturity, to the plaintiff, a 
 bona tide holder, which discounted them for the benefit of the 
 payee. 
 
 The suit was originally brought in a State court, where an 
 answer was filed. No additional or new pleadings were made 
 
 • Montujo V. Owen, 5 Abb. N. 0., 110. 
 
III. Technical Rules. (5) Answer. 507 
 
 President, etc. of Union Bank v. Crine, 31 Abb. N. C, 146. 
 
 after its removal to this court. The portion of the answer which 
 is now material is, in substance, that the said notes were made by 
 the defendant purely for the accommodation of the Yalley 
 Worsted Mills, to which corporation they were delivered upon 
 the express condition and agreement with it and with the plaint- 
 iff, as the defendant was informed and believed, that all said 
 notes should be taken up and paid at maturity by the payee^ 
 " but that the defendant should in no wise be liable upon the 
 same or any of them." That said notes were discounted by the 
 plaintiif, under and by virtue of said agreement and Avith its 
 agreement that the defendant should not be liable thereon, and 
 that his name was used for the accommodation of the plaintiff, 
 and because under its rules, all paper discounted by it must con- 
 tain at least two names. That before the commencement of this 
 suit, the payee paid to the plaintiff, in full settlement of all its 
 claims upon said notes, a sum equal to forty per cent, upon the 
 amount thereof. 
 
 The answer concluded with a demand of judgment that the 
 complaint may be dismissed, with costs, and that said notes be 
 delivered to the defendant to be canceled. 
 
 The only defence which was attempted to be proved was that 
 the plaintiff, which had discounted the notes in suit for the 
 benefit of the payee and indorser, in ignorance that the notes 
 were accommodation paper, was, after the insolvency of both 
 maker and indorser, and about the time of the maturity of the 
 notes, informed, for the first time, that the defendant claimed to 
 be an accommodation maker and that the payee had promised to 
 hold him harmless ; that the plaintiff subsequently released the 
 indorser upon the payment of forty per cent, of the amoimt due 
 upon said notes ; that they were accommodation notes and there 
 fore the defendant was discharged. 
 
 The offered testimony was, upon the plaintiff's objection, 
 excluded, and there being no other defence, a verdict was 
 directed for the plaintiff. 
 
 The defendant says that the defence which appeared in the 
 answer was an equitable defence which could not be received in 
 an action in the courts of the United States ; that, according to 
 the rules of this court, a repleader should have been required by 
 
50S Abbott's Select Cases on Codh Pleading. 
 
 President, etc. of Union Bank v. Crine, 21 Abb. N. C, 146. 
 
 7 the plaintiff,* and that none having been asked for, there was a 
 mistrial. 
 
 The defence which was alleged in the answer was purely a 
 legal defence, viz.: that before and at the time the notes were 
 discounted, it was agreed by the plaintiff that the defendant 
 should not be liable to it, but that it would rely entirely upon 
 the payee. This defence is not inconsistent with the notes, does 
 not seek to vary their terms or the contract which they con- 
 tained, but sets up a valid agreement by the plaintiff which 
 freed the maker from his liability. This discharge of the 
 maker, if proved, would have been a fact entirely independent 
 of the contract which is shown by the notes, and would have 
 been, without question, a legal defence (Manley v. Boycot, 2 El. 
 & Bl., 46). 
 
 The fact that the plaintiff asked, at the end of the answer, for 
 a surrender of the notes, does not turn a purely legal defence 
 into an equitable one.f 
 
 The defendant next says that the facts which were attempted 
 to be proved constituted a complete defence in courts of law. 
 
 9 Although the defence upon the alleged facts is borrowed 
 from a court of equity and is, in that sense, an equitable one, I 
 do not regard it as a defence which can be administered only by 
 a court of equity upon the ground that the relief which is sought 
 must be granted by an injunction or by some other remedy 
 which a court of equity only can furnish, or that the defence 
 contains matter which can be considered only at equity. If the 
 sole defendant is not liable to pay the notes, there is no difficulty 
 in an examination by a court of law, and it is not necessary to 
 
 10 *See La Mothe v. Nat. Tube Works Co., 15 Blatchf., 432 ; Hurt v. Hol- 
 lingsworth, 100 U. S., 100. 
 
 f Compare Equitable Ins. Co. v. Cuyler, 75 N. Y., 511 ; affirming 13 
 Hun, 247 (holding that the prayer for relief cannot alone determine 
 whether the pleader is confmed to a legal cause of action or defence, or an 
 equitable one, provided the cause is at issue) ; Williams i: Slote, 70 N. Y., 
 601 (equitable relief demanded where only leg'al cause of action was 
 alleged); Hale v. Omaha Natl. Bk., 49 N. Y., 626 (legal relief demanded 
 where grounds of equitable relief were stated); O'Brien r. Fitzgerald, 143 
 N. Y., 377 (legal relief demanded where facts alleged might be appropriate 
 either to a legal or equitable cause of action). 
 
III. Technical Rules. (5) Answer. 509 
 
 President, etc. of Union Bank v. Crine, 31 Abb. N. C, 146. 
 
 resort to the form or mode of relief peculiar to a court of 11 
 equity. Tliere is quite a large class of cases pertaining to the 
 discharge of sureties, upon the principles of which capes this 
 defence rests, in which courts of law take cognizance of defences 
 which had their origin in the courts of equity, but which are 
 administered by courts of law, without disregarding the inherent 
 distinctions between the two courts. " In general," said Chief 
 Justice Shaw, in Carpenter v. King (9 Met. Mass., 511), " that 
 which would afford a surety a remedy in equity against his 
 creditor by injunction, is a good defence at law, when suit is 
 against the surety alone." Many of the earlier distinctions in 
 regard to the rights of sureties to defend at law, do not now 
 seem to be regarded. The cases upon this point are collected 
 in 2 Amer. Lead. Cases, 448. 
 
 If the defence is purely equitable, and the remedy, if any, 
 must be administered by a court of equity, the defendant should 
 have proceeded according to the rules regulating proceedings in 
 equity in the courts of the United States (Burnes v. Scott, 117 
 U. S., 582). 
 
 Upon the theory that it is a defence which can be examined 13 
 in a court of law, and confining myself exclusively to the ques- 
 tion as it relates to the rights' of an indorsee and holder of a 
 negotiable instrument, who took the note or bill for value, in 
 ignorance that it was accommodation paper, I am still of the 
 opinion that the defence is inconsistent with the principles which 
 have generally been considered as settled in regard to the rights 
 of bona fide holders of negotiable paper, and, if the accommoda- 
 tion maker permits the note to go into the hands of bona fide 
 holders for value, without knowledge of the relations between 
 the maker and payee, that he has abandoned all right to enforce 
 his equity as against the ignorant holder. " He who makes a 
 note or accepts a bill for the accommodation of anotlier, virtually 
 authorizes those who take the instrument subsequently to make 
 such terms or arrangements with the drawer or indorsers as may 
 be most conducive to their mutual interests, and cannot revoke 
 the authority thus given to the injury of those who have acted 
 upon it " (4 Daniel on Negotiable Instruments, g§ 1336-1338 ; 
 Farmers' Bank v. Bathbone, 26 Vt, 19). 
 
510 Abbott's Select Cases on Code Pleading. 
 
 Mack V. Kitsell, 30 Abb. N. C, 393. 
 
 15 I do not think it advisable to make an extended argument 
 upon this question, which is an important one, and upon which 
 there is a conflict of opinion, because the case will probably go 
 to the Supreme Court, where the question will be authoritatively 
 settled. Meantime the numerous conflicting authorities will be 
 found collected in 2 Daniel on Neg. Instr., 316-321 ; 1 Pars, on 
 Bills and Notes, 233, and In re Goodwin, 5 Dill., 140. 
 
 It may be added that the only decision of the Court of 
 Appeals of New York which is directly upon the point in ques- 
 
 16 tion in regard to negotiable paper is against the validity of the 
 defence (Hoge v. Lansing, 35 N. Y., 136). 
 
 The motion is denied and the stay of execution is vacated. 
 
 MACK V. KITSELL. 
 
 JVew York City Court, Special Term, 1887. 
 [Reported in 20 Abb. N. C, 293.] 
 
 1. The claim of a surety to compel his principal to discharge the liability, 
 
 although the surety has not yet actually paid anything, is available 
 under the new procedure as an equitable defence to an action by the 
 principal or one standing in hi-s shoes on an independent cause of 
 action, on which the surety is indebted to the principal. 
 
 2. An assignee for the benefit of creditors sued for the price of goodssold. 
 
 — Held, that defendant might plead as an equitable defence, that he 
 had made accommodation paper for the benefit of the assignor, in 
 reliance on the assignor's promise to hold him harmless ; and that 
 the assignor, being insolvent and the paper unpaid, judgment had 
 been recovered against defendant therein ; for in such case defendant 
 is equitably entitled to have the debt claimed by the assignee applied 
 in satisfaction of the defendant's liability as surety. 
 
 3. Since the provisions of Chap. 6 of the Code of Civil Procedure— which 
 
 relate to pleading in courts of record, including counterclaims— apply 
 to the N. Y. City Court (N. Y. Code Civ. Pro., § 3347, subd. 4) as well 
 as to County Courts, Superior City Courts and the Supreme Court- 
 equitable defences may be pleaded in the City Court in the same cases 
 as in the Supreme Court. 
 
 Demurrer to answer. 
 
 Hugo S. Mack, as assignee for the benefit of creditors, sued 
 Wm. r. Kitsell for the price of goods sold and delivered by the 
 
III. Technical Rules. (5) Answei'. 511 
 
 Mack V. Kitsell, 30 Abb. N. C, 393. 
 
 assignors. The part of tlie answer setting up a separate and 
 affirmative defence was as follows : 
 
 First. — The defendant, on information and belief, avers that 
 the plaintiff's assignors are entirely insolvent ; that their schedule 
 of liabilities and assets, filled in pursuance of law in the office of 
 the clerk of the Court of Common Pleas in and for the City and 
 County of JSTew York subsequent to the making of the assign- 
 ment, set forth in paragraph II. of the complaint, shows $153,- 
 307.70 of liabilities and $23,843.22 of assets. 
 
 Second. — That heretofore and before said assignment was 
 made, and on or about January 17, 1887, the plaintiff's assignors 
 represented to the defendant that they were solvent and that 
 their assets were greatly in excess of their liabilities, and then 
 and there urged the defendant to make his certain promissory 
 note for their accommodation. 
 
 Third. — That the defendant thus urged, and relying upon said 
 representations and upon their express promise to meet said note 
 and to indemnify and save harmless the defendant from all costs 
 and damage in consequence of his becoming such accommoda- 
 tion maker, then and there made certain notes payable to said 
 assignors and delivered the notes to them without any considera- 
 tion ; that the notes were of the following denomination and five 
 in number, viz.: $423.80, $423.80, $423.80, $491.40 $521.60, 
 making a total of $2,284.40, which notes the plaintiff's assignors 
 had discounted for their own sole and exclusive benefit. 
 
 Fourth. — The defendant was not aware of the plaintiff's 
 assignors' true financial condition at the time of the delivery of 
 the notes on or about January 17, 1887, or that they were about 
 to fail and make an assignment within ten days afterwards, and 
 the defendant believed their statement that they were solvent 
 and that the defendant would not have made tlie notes but for 
 such statement ; on information and belief the defendant avers 
 that the plaintiff's assignors were then hopelessly insolvent, and 
 they well knew it at the time, and that they made the false 
 assertion of their solvency to deceive and defraud the defendant 
 and entrap him into making said accommodation paper. 
 
 Fifth. — That said notes which the defendant made for the 
 accommodation of plaintiff's said assignors have matured and 
 
612 Abbott's Select Cases on Oode Pleading. 
 
 Made V. Kitsell, 20 Abb. N. C, 293. 
 
 the plaintiff and liis assignors have failed, neglected and refused 
 to pay said notes or either of them as the plaintiff's assignors had 
 agreed to do, and the defendant has been sued by the North 
 River Bank upon one of the notes which it had discounted for 
 the plaintiff's assignors, amounting to the sum of $491.40, and 
 judgment went against the defendant on May 4, 1887, for 
 $511.80, and there is now outstanding an execution against the 
 defendant's property issued upon said judgment. 
 
 Sixth. — The defendant has suffered damages by the failure of 
 the plaintiff and his assignors to meet said obhgation as the 
 plaintiff's assignors had agreed to do, and by their failure to 
 indemnify and save harmless the defendant from all costs and 
 damage in consequence of making said notes for their accommo- 
 dation. 
 
 Seventh. — That the remainder of said notes will soon mature, 
 greatly to the defendant's detriment ; that by reason of said judg- 
 ment and execution, and the defendant's liability under the other 
 notes, the defendant has suffered and will suffer damages in a 
 sum greater than any sum which the defendant may owe for 
 goods sold to him by the plaintiff's assignors. 
 
 Wherefore the defendant prays for a judgment : 
 
 First. — That the plaintiff's complaint be dismissed. 
 
 Second. — That the damages suffered by the defendant may be 
 set off against any alleged claim for goods sold to the defendant. 
 
 Third. — That as a condition precedent to the recovery by the 
 plaintiff in this action that he carry out his assignors' agreement 
 to save the defendant harmless against said judgment, execution 
 and notes by discharging them all. 
 
 Fourth. — That the defendant have his costs and disbursements 
 of this action. 
 
 To this answer the plaintiff demiirred for insufficiency. 
 
 McAdam, Ch. J. This case may be viewed in t^^o aspects — 
 one legal, the other equitable. At law, if A makes promissory 
 notes for the accommodation of 15, the payee, and they are sub- 
 sequently negotiated and dishonored, A has no cause of action 
 against B until he first pays the notes, and then his action is for 
 money paid to B's use (Cuw. Tr., § 317, and cases cited). Tested 
 
III. Technical Rales. (5) Answer. .513 
 
 Mack V. Kitsell, 20 Abb. N. C, ^93. 
 
 by these common law rules, the outstanding liabih'ty pleaded by 10 
 the defendant constitutes no defence to the demand in suit. But 
 A (the defendant) pleads, as he lawfully may, to a common law 
 action, an equitable defence (Code Civ. Pro., § 507), to wit : (1) 
 the insolvency of B. (2) That as the notes given to B were for 
 B"s accommodation, B in point of fact is principal, and A merely 
 surety thereon, and that B agreed to indemnify and save A harm- 
 less therefrom. It is true A has no claim till he has paid some- 
 thing on the liability, but in equity he may, as surety, apply to 
 the court for such relief as will compel B to discharge the 
 liability (S Wend., 194 ; 6 Paige, 25S ; 3 Swanst, 308). 
 
 A would be entitled to this relief if he had commenced a suit 
 in equity for that purpose ; and the Code of Civil Procedure 
 (§ 507), in effect provides that he may obtain such relief by 
 means of an equitable defence. The judgment for the plaintiff 
 may provide that the defendant be allowed to pay the amount 
 of any recovery in discharge of his liability. (Hannay v. Pell, 3 
 E. D. Smith, 432.) The present action resembles very much the 
 case last cited, and the relief claimed may be granted (B being 
 insolvent), though the liability of A has not as yet matured. [2 
 (Lindsay r. Jackson, 2 Paige, 581.) In the present instance part 
 of the liability has matured and is in judgment, as in Hannay v. 
 Pell [sitpra). The plaintiff is an assignee of B for the benefit of 
 creditors, and this equitable defence is equally available against 
 him. (Smith v. Felton, 45 N. Y., 419 ; Eothschild v. Mack, .3 
 K Y. State Kep., 471.) 
 
 The Code provision in regard to equitable defences applies to- 
 the City Court as fully as to the Supreme Court of the State 
 (Code Civ. Pro., § 3347, subd. 4). It follows that the defendant 
 has pleaded a good equitable defence, and that the demurrer -** 
 thereto must be overruled, with qosX^. 
 
U4 Abbott's Select Cases on Code Pleading. 
 
 Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 552. 
 
 CAEPENTEE v. MANHATTAN LIFE INS. CO. 
 
 JVew York Court of AppeaU, 1883. 
 [Reported in 93 N. Y., 553.] 
 
 1. A counterclaim under Code Civ. Pro., | 501, subd. 1, must have such a 
 relation to, and connection with, the subject of the action, that it 
 will be just and equitable that the controversy between the parties as 
 to the matters alleged in the complaint and in the counterclaim 
 should be settled in one action by one litigation ; and tliat the claim 
 of the one should be offset against, or applied upon, the claim of the 
 other. 
 
 '2. In an action for converting timber, defendant pleaded as a counterclaim 
 that the land from which the timber was cut was mortgaged to de- 
 fendant, and that plaintiff wrongfully cut the timber thereon for the 
 purpose and with the effect of impairing- defendant's security. — Held, 
 a proper ground of counterclaim, because connected with the subject 
 of the action. 
 
 Action for the conversion of a quantity of cord wood. Tlie 
 facts fully appear in the opinion. 
 
 At Circuit the court held that the counterclaim was improper, 
 as not arising out of the transaction set forth in the complaint, 
 and was not connected with the subject of the action, and refused 
 to allow defendant to give proof to establish it. 
 
 The General Term of the Supreme Court reversed the judg- 
 ment. 
 
 The Court of Appeals affirmed the judgment of the General 
 Term. 
 
 Eael, J. The action was brought to recover against the 
 defendant for the wrongful conversion, ou the 23d day of Janu- 
 ary, 18T9, of a quantity of cord wood. The answer admitted the 
 possession of the wood by the plaintitl, and that the defendant 
 took the same, but denied that the plaintiff owned the wood ; 
 and then for a counterclaim, it was alleged that on the 28th day 
 of September, 18T1, one Markham, then the owner in fee of the 
 land mentioned in the complaint, executed to the defendant a 
 hond, and a mortgage as collateral thereto on the land, to secure 
 the payment to the defendant of the sum of $45,000, with inter- 
 est ; that thereafter, on default of payment of the sum thus 
 
III. Technical Rules. (6) Counterclaim. 515 
 
 Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 552. 
 
 secured, the defendant foreclosed tlie mortgage and Ijecaine the 
 purchaser at the foreclosure sale, for a sum which left a deficiency 
 of over f 17,000, for which judgment was entered against Mark- 
 ham, who was then, and for three years had been, to the knowl- 
 edge of the plaintiff, wholly insolvent ; that the land was, to the 
 knowledge of the plaintiff, insufficient security for the amount 
 of the bond and mortgage, and he being a second mortgagee 
 with such knowledge, and in possession of the land, between 
 November 7,1877, and January 23, 1S79, wrongfully, fraudu- 
 lently and with intent to cheat and defraud the defendant, and 
 with the intent to reduce its security and deprive it of such 
 security, cut or caused to be cut from the land the wood 
 mentioned in the complaint, thereby wasting the land, and 
 lessening and reducing defendant's security to its damage $500. 
 
 Upon the trial, after the plaintiff had proved his title to the 
 wood, its quantity and value, and the conversion thereof by the 
 defendant, and had rested his case, the defendant then offered 
 to prove the facts alleged in the answer by way of counterclaim, 
 and the plaintiff objected to such proof and the court sustained 
 the objection. From the judgment entered in favor of the 
 plaintiff, the defendant appealed to the General Term, and there 
 the judgment was reversed, and then the plaintiff appealed to 
 this court. 
 
 It is admitted by the plaintiff, as claimed on the part of the 
 defendant, that the facts alleged in the answer show a cause of 
 action against the plaintiff. But the plaintiff's claim is, and so 
 it was held at the trial term, that the cause of action did not 
 arise out of the transaction set forth in the complaint, and was 
 not connected with the subject of the action, and hence was not 
 a proper counterclaim under section 501 of the Code. 
 
 The transaction set forth in the complaint was the conversion 
 of the wood, and hence it cannot be said that the counterclaim 
 arose out of that transaction. But, was it not connected with the 
 subject of the action ? The word " connected " may have a 
 broad signification. The connection may be slight or intimate, 
 remote or near, and where the line shall be drawn it may be 
 difficult sometimes to determine. 
 
 The counterclaim must have such a relation to, and connection 
 
516 Abbott's Select Cases on Code Pleading. 
 
 Lipman v. Jackson Architectural Iron Works, 128 N. Y., W. 
 
 8 with, the suljject of the action, that it will be just and equitable 
 that the controversy between the parties as to the matters alleged 
 in the complaint and in the counterclaim should be settled in 
 one action by one litigation ; and that the claim of the one should 
 be offset against, or applied upon, the claim of the other. Here 
 it is sufficiently accurate to say tljat the subject of the action was 
 the wood wrongfully taken by the defendant, and the counter- 
 claim was for damages sustained by the defendant, in the 
 wrongful impairment of its security, by the severance of tlie 
 same wood from the land, and thus diminishing the value of the 
 land by the value of the wood. In such case it is certainly just 
 that the defendant should counterclaim its damage for the sever- 
 ance of the wood against the plaintiff's claim for the conver.-ii:)n 
 thereof. In the forum of conscience, the plaintiff was under 
 obligation to restore the wood to the defendant as a portion of 
 its security for its claim against the mortgagor. Thus it can 
 with great propriety be said that defendant's claim had some 
 connection with the subject of the action. 
 
 10 The order of General Term should be affirmed, and judgment 
 absolute ordered against the plaintiff, with costs. 
 All concur. 
 Order affirmed and judgment accordingly. 
 
 LIPMAN V. JACKSON ARCHITECTURAL IRON 
 WORKS. 
 
 JVeiv York Court of Ajrpeals, 1891. 
 
 [Reported in 128 N. Y. 58.] 
 
 A counterclaim must tend in some way to diminish or defeat the 
 plaintiff's recoverj'. 
 
 In an action to foreclose a mortgage, — Held, that a defendant against 
 whom no personal judgment is demanded, cannot set vip, by way of 
 counterclaim, a claim, which, if established, can only result in an in- 
 dependent judgment for money, having no effect whatever upon the 
 foreclosure. 
 
 A plaintiff does not waive his right to object to a counterclaim as not 
 permissible, by failing to demur or take the specific objection to it by 
 answer. 
 
III. Technical Rules. (6) Counterclaim. 517 
 
 Lipman v. Jackson Architect ui'al Iron Works, 128 N. Y., 58. 
 
 4. Code Civ. Pro., §| 498, 499, providing- that if certain objections are not 
 taken by demurrer or answer tliey are deemed waived, relates only to 
 delects in the complaint and a waiver by the defendant. 
 
 Plaintiffs sued to foreclose a mortgage given to secure future 
 advances. These advances were to be in specific installments, 
 dependent upon different stage of work done in the construction 
 of the building on the mortgaged premises. 
 
 The sole defendant, who appealed, the Jackson Architectural 
 "Works, before some of the final installments had been earned, 
 filed a mechanic's lien for work done and material supplied upon 
 the building. Plaintiffs declined to continue the jDajment of the 
 installments until some arrangement was made regarding this 
 lien. Thereupon the three parties interested, the owner of the 
 building, the plaintiff mortgagees, and the lienors, executed a 
 contract, wherein the lienors agreed to subordinate their lien to 
 the further advances to be made under the mortgage, and the 
 mortgagees agreed to pay the amount of the lien out of such 
 further advances when they should be earned by reason of the 
 progress of the building. The last agreement was in the form 
 of an order by the owners upon the mortgagees, directing them 
 to pay to the lienors specified sums " out of the moneys growing- 
 due to us . . . payable according to the terms of said contract ; " 
 the order was accepted by the mortgagees '"payable as above." 
 The building was never carried to the stage of completion which 
 made these final installments due ; the mortgagees, however, 
 advanced to the owners the full amount thereof, and did not pay 
 to the defendant lienors the amount of their lien. 
 
 The defendant lienors set up the above facts as a counter- 
 claim, upon which they demanded an aflirmative judgment 
 against the plaintiffs for the amount agreed to be paid under the 
 acceptance. 
 
 The Referee gave judgment for plaintiffs for foreclosure and 
 sale, and dismissed the counterclaim on the ground that, as 
 against the mortgagees the amount was not yet payable, as the 
 express condition upon which the payment was promised (the 
 progress of the building to a certain stage of completion) had 
 not been fulfilled. 
 
518 Abbott's Sbxeot Cases on Code Pleading. 
 
 Lipman v. Jackson Architectural Iron Works, 138 N. Y., 58. 
 
 The General Term of the Court of Common Pleas affirmed 
 the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Finch, J. \on the admissibility of the counterclaim, said]: It 
 is true that the counterclaim pleaded was dismissed, but that 
 result was necessary because, whatever its merits, it was not a 
 permissible counterclaim in the action for foreclosure. It set up 
 a legal cause of action on the acceptance and against the acceptors 
 as such, and asked a money judgment against them. Assuming, 
 which we do not decide, that the plaintiffs were thus liable on 
 their acceptance, the debt was not the subject of a counterclaim 
 in the equity action. The plaintiffs demanded no personal judg- 
 ment against the appellant, and so the claim of the latter could 
 in no manner lessen or limit or cut down the relief which the 
 plaintiffs sought and to which they were clearly entitled. The 
 Code of Civil Procedure requires that the counterclaim must 
 tend in some way to diminish or defeat the plaintiffs' recovery 
 (>$ 501), and enacts in this respect the doctrine of Xational Fire 
 Ins. Co. V. McKay (21 N. Y., 191). The defendant's plea has 
 and can have no such effect. Its alleged lien as a lien was sub- 
 ordinate to that of the plaintiffs, and its debt as a debt could not 
 diminish or defeat the plaintiffs relief upon their cause of action. 
 The lien was no defence and the debt no counterclaim. Proof 
 of the latter could only result in an independent judgment for 
 money, having no effect whatever upon the foreclosure. The 
 application of the doctrine is well illustrated in Hunt v. Chapman 
 (51 ]Sr. Y., 555). In that case the counterclaim was allowed, but 
 because the plaintiff asked a judgment upon the bond for a defi- 
 ciency against the defendant asserting the counterclaim, and the 
 claim of the latter became simply contract against etmtract. and 
 if allowed would defeat or diminish the plaintiff's recovery. 
 Here, no personal judgment is sought against the appellant and 
 there is nothing upon which its claim can be applied, or which it 
 can possibly effect. 
 
 It is said, that plaintiffs, not having demurred to the counter- 
 claim or specifically objected to it by answer, have waived the 
 <ibjection. TJie section of the Code providing for such wai^'er 
 
III. Technical Rules. (6) Counterclaim. SIQ' 
 
 Otis V. Shants, 128 N. Y., 45. 
 
 relates only to defects in the complaint and a waiver by the de- 9i 
 fendant. (§§ 498, 499.) The appellants requested a rinding of 
 law awarding judgment on the counterclaim, which the referee 
 refused. The respondents may defend that refusal upon the 
 ground asserted, as well as that upon which the referee seems to 
 have acted. 
 
 For these reasons the judgment should be affirmed, with costs. 
 
 All the judges concurred. 
 
 Judgment affirmed. 
 
 OTIS V. SHANTS. 
 
 New York Court of Appeals, 1891. 
 [Reported in 138 N. Y., 4.j.] 
 
 1. Trustees of a corporation under a liquidation agreement sued upora 
 promissory notes given by defendant for property purchased of plaint- 
 iffs as such trustees. — Held, that an answer presented no defence^ 
 which alleged that the defendant became a party to the liquidation 
 agreement by fraudulent representations made by the corporation, 
 and asked for judgment cancelling the agreement as to him. 
 
 3. Fraud in procuring tlie execution of such an agreement by defendant 
 constitutes no ground for exempting him from the performance of 
 an independent contract entered into between him and the trustees, 
 subsequent to the execution of such liquidation agreement and 
 founded upon a new consideration. 
 
 3. In such an action, claims cannot be offset or counterclaimed wliich are 
 
 founded vipon transactions with the corporation prior to tlie appoint- 
 ment of plaintiffs as trustees, for tliat woidd be allowing defendant 
 an inequitable preference. 
 
 4. Where defendant does not ask affirmative judgment on his so called 
 
 counterclaim, but only seeks to use it to extinguish plaintiffs' cause of 
 action, Code Civ. Pro. § 495, — which provides that plaintiff may 
 demur to a counterclaim when certain objections enumerated therein 
 appear on its face, and § 496, requiring the objections taken undei 
 § 495 to be distinctly specified, — do not apply. 
 
 Action by trustees under an agreement for the liquidation of 
 a corporation, upon promissory notes given by defendant for 
 property purchased by him of the trustees subsequent to their 
 assumption of the trust. The facts essential to the decision are 
 given in the opinion. 
 
•/> 
 
 520 Abbott's Select Cases on Code Pleading. 
 
 Otis c. Shants, 138 N. Y., 4o. 
 
 The Special Term of the Supreme Court overruled plaintiffs' 
 demurrer to the counterclaims. 
 
 The General Term, reversed tlie judgment and sustained the 
 demurrer. 
 
 The Court of Appeals affirmed the judgment. 
 
 Andkews, J. The plaintiffs do not sue to enforce any 
 obligation under the " agreement in liquidation." The action 
 is upon notes given for property purchased by the defendant of 
 the trustees after they had assumed the trust. The first count 
 in the answer alleges that the defendant was induced to become 
 a party to the liquidation agreement by fraudulent representa- 
 tions made by the Mill River Button Company, its agents, 
 oHicers and directors, and asks for judgment setting aside and 
 cancelling as to him the agreement. This answer was not a 
 defence. The agreement was between the corporation, the cred- 
 itors and the trustees. The proper parties are not represented 
 in this litigation, to entitle the defendant to judgment upon this 
 issue. Neither the corporation nor the other creditors are before 
 the court, and both have an interest and are entitled to be heard 
 on the adjudication of this question. Moreover, fraud in pro- 
 curing the execution of the agreement by the defendant, would 
 constitute no ground for exempting him from the performance 
 of an independent contract entered into between him and the 
 trustees subsequent to the execution of the agreement in liquida- 
 tion and founded upon a new consideration. The first answer 
 was clearly insufficient, because admitting its averments the de- 
 fendant would be entitled to no relief. 
 
 The second, third, fourth and iifth answers are founded upon 
 alleged counterclaims. They all set up transactions between the 
 Mill River Button Company, its officers and agents and the defend- 
 ant, which took place prior to the execution of the liquidation 
 agreement. The second answer seeks to counterclaim damaa;es 
 alleged to have been sustained by the defendant, arising from 
 the fraud and deceit of the coi'poration connected with an 
 advance of money made l)y tlie defendant to the corporation. 
 The third answer counterclaims damages alleged to have l)een 
 sustained by tlie defendant by the fraudulent refusal of the cor- 
 
111. Technical Rules. (6) Counterclaim. 521 
 
 Otis V. Shants, 13S N. Y., 45. 
 
 poration to perform its contract to deliver a jiortion of its capital 
 stock to the defendant in consideration of money advanced by 
 the defendant. The f ourtla answer alleges an indebtedness of the 
 corporation to the defendant in the sum of $2,800 for money 
 loaned. The fifth answer alleges a violation by the company of 
 a contract of employment whereby the defendant sustained 
 ■damages in the sum of $3,000. The defendant in his answer 
 •does not aslj any affirmative judgment on his counterclaims, but 
 as to each he asks simply that he be permitted to set off sufficient 
 thereof to satisfy the claims of the plaintiff. 
 
 Tt is very clear that neither of the answers alleging counter- 
 claims set up any claim that can be set off against the causes of 
 action in the complaint. The alleged counterclaims are not 
 against the plaintiffs. They are founded upon transactions with 
 the corporation, prior to the appointment of the plaintiffs as trust- 
 ee.*. The plaintiifs' claims have no connection therewith, and 
 arose subsequent to the execution of the liquidation agreement, 
 upon contracts not tainted with the alleged fratid in concoction 
 of the agreement. The fact that the defendant was induced tn 
 execute the agreement by fraud is no answer to his obligation 
 arising on a purchase from the trustees, nor does it enable him 
 to set off against the debt a claim against the corporation. This 
 would be giving him an inequitable preference. 
 
 The plaintiffs demurred to the several answers setting up 
 eoimterclainis, on the ground " that they were insufficient in law 
 tipon the face thereof." Section 494 of the Code of Civil 
 Procedure makes this a ground of demurrer to a counterclaim. 
 But it is claimed that where the defect in an answer alleging a 
 cotmterclaim is, that the cause of action sought to be counter- 
 claimed did not arise out of the contract or transaction set forth 
 in the complaint, or was not connected with the subject of the 
 action, or that it does not state facts sufficient to constitute a 
 cau>e of action, these objections must be specifically taken under 
 section 495, and that they are not raissd by a demurrer for 
 insufficiency. That the answer,^ were insufficient as answers of 
 counterclaim, we cannot doubt. They set up no cause of action 
 against the plaintiffs. The claims alleged, if they existed, 
 were wholly irrelevant to the claims sued upon. Assuming that 
 
522 AbUott's Select Cases (jn Code Pleading. 
 
 Rice ('. Grange, 131 N. Y., 149. 
 
 10 tliey were statements of good causes of action, they did uot 
 exist against the plaintiffs. It is, however, a decisive answer to 
 the defendant's contention that the demurrer should have ]>een 
 drawn under section 495, that that section only applies where 
 the defendant demands affirmative judgment on his counterclaim 
 and has no application where the defendant seeks to use his 
 counterclaim for the purpose simply of extinguishing the ckim of 
 the plaintiffs. 
 
 We think the judgment of the General Term was right and 
 
 '-^ should, therefore, be affirmed. 
 
 All the judges concurred. 
 Judgment affirmed. 
 
 EICE V. GEAKGE. 
 
 We IV York Court of Appeals, 1892. 
 [Reported in 131 N. Y., 149.] 
 
 1. A defendant is not entitled to avail himself of an affirmative defence to 
 
 the action by way of counterclaim, unless lie has pleaded itinexjilicit 
 terms, and not left it to inference. 
 
 2. In an action by the assignee for the benefit of creditors of the payee 
 
 against the maker of a promissory note, defendant alleged as "a 
 defence to the cause of action alleged in the complaint'' a failure of 
 consideration as to the note in suit because of default in payment of 
 the note of a third person in exchange for which defendant's note had 
 been given, and offered in the answer to re-exchange the notes, — Held, 
 that the answer could not be considered as interposing an eijuitable 
 counterclaim. 
 
 3. Upon an exchange of notes, each party becomes the holder lor a g-ood 
 
 consideration of the note delivered to him, and failure of consideration 
 is not established in an action upon one note, by proof that the other 
 has become due and remains unpaid. 
 
 1 At Circuit, plaintiff had judgment un a verdict directed l)y 
 the court. 
 
 The General Term of the Supreme Court affirmed the judg- 
 ment. In delivering the opinion of the court, Yan Brunt, P. J., 
 said : " We have examined the answer in vain to find any sug- 
 ;;estion of a counterclaim I )r offset. It is clear that no counter- 
 
III. Teohnical Rules. (6) Counterclaim. 523 
 
 Rice V. Grange, 131 N. Y., 149. 
 
 claim could be set up, because no cause of action could be main- 2 
 tained against the assignee ; and, even if an offset might be 
 allowed, there are no allegations in the answer making any such 
 
 claim whatever." 
 
 « 
 
 The Court of Apjjeals afSrmed the judgment. 
 
 Geay, J. This action was upon the promissory note of the 
 defendant, made to the order of Earl B. Chace & Co. ; and the 
 plaintiff is the assignee of the payees, under an assignment for 
 the benefit of their creditors, executed at a time subsequent to 
 the maturity of the note. The defence set up in the answer was ^ 
 a failure of consideration. The facts as developed upon the trial 
 of the action were precisely these : That in December, 1889, 
 Chace placed in the hands of a broker a promissory note made 
 by Hawkins & Co. to the order of Chace's firm, and not yet due. 
 This broker called upon the defendant, and offered to give 
 Chace's note in exchange for one of defendant's, and this propo- 
 sition was accepted. Subsequently the broker took the Hawkins 
 note, with Chace & Co.'s indorsement upon it, to the defendant, 
 and received from him the note in suit, which was for the same ^ 
 amount as the Hawkins note. When the Hawkins note fell due, 
 it was not paid, and was protested. Upon the maturity thereafter 
 of the defendant's note, payment thereof was refused by him. 
 Some three months later, Chace & Co. made their general assign- 
 ment to plaintiff. The defendant, in support of his appeal from 
 the judgment recovered against him, insists that the defence of 
 failure of consideration was established, and that it was, there- 
 fore, error for the trial judge to direct a verdict for the plaintiff. 
 His counsel argues that the defendant's agreement to pay Chace 
 was executory, merely, and was dependent upon the payment of ^ 
 the Hawkins note. In other words, he considers that there was 
 to be implied in this transaction a promise by Chace that the 
 Hawkins note would be paid at maturity, and that this promise 
 formed the consideration for his promise to pay the same sum to 
 Chace in his note. But the defendant has misapprehended the 
 legal effect of the transaction. Upon the exchange of these 
 notes the particular transaction between the parties was fully 
 consummated, and was in no sense executory. Each party 
 
524 Abbott's Select Cases on Code Pleading. 
 
 Rioe V. Gi-ang-e, 131 N. Y., 149. 
 
 became the holder for a good consideration of the note delivered. 
 The consideration for the defendant's note was the transfer and 
 delivery to him of the Hawkins note, and was as good and 
 absolute as it wonld be in any case of an exchange of property. 
 This was a business transaction ; and whether the consideration 
 was in an exchange of notes or was paid in money is quite the 
 same thing. In an exchange of notes, each note is a valid con- 
 sideration for the other, and is fully available in the hands of its 
 holder. (Cobb v. Titus, 10 X. Y., 198.) The undertaking by 
 Chace & Co., upon their indorsement and transfer of the Hawkins 
 note, was a legal consideration for the defendant's promise ; and 
 no agreement is to be implied which is not expressed upon the 
 papers. 
 
 Nor is the defendant entitled, in this action, to offset a claim 
 upon the Hawkins note. If the defendant had set up an equit- 
 able counterclaim to the plaintiff's cause of action, he might 
 then have been in a position to show that no equities or rights of 
 others had intervened, and that the transaction between him and 
 Chace was such as to justify offsetting one note against the other. 
 But such a defence is wholly unavailable to him, for the want of 
 any allegations in his answer making such a counterclaim. His 
 sole defence was a failure of consideration, and there was nothing 
 in the answer which amounted to a plea of an equitable set-off. 
 Under our practice a party having an affirmative defence to the 
 action, by way of a counterclaim, is bound to plead it in explicit 
 terms, and not leave it to inference. Here the defendant pleads 
 a " defence to the cause of action alleged in the complaint," and, 
 after setting it out, avers that it establishes an entire failure of 
 con^ideration, and makes offer to re-exchange the notes. This 
 did not amount to a counterclaim ; and he seems to have recog- 
 nized the fact, when, at the close of the trial, he moved " to 
 amend the answer by setting up a counterclaim." The denial of 
 the motion was not excepted to, and an exception would have 
 been unavailing here, as it was discretionary with the coui't to 
 grant or deny such a motion. The judgment appealed from 
 should be affirmed, with costs. 
 
 All concur, except Maynaed, J., taking no part. 
 
 Judgment affirmed. 
 
III. TeGhniml Rules. (7) Eeply. 5 '2 5 
 
 Hubbell V. Fowler, 1 Abb. Pr. (N. S.), 1. 
 
 HQBBELL v. FOWLEE. 
 
 New York Supreme Courts Special Term, 1866. 
 [Reported in 1 Abb. Pr. (N. S.), 1.] 
 
 1. An answer interposing the Statute of Limitations, presents a proper 
 
 case for the court to require, on defendant's motion, that the plaintiff 
 reply.* 
 
 2. It is not generally essential that the defendant, in moving to compel 
 
 such reply, should state that he does not know the ground on which 
 the plaintiff intends to rely to defeat the bar of the statute. 
 
 The action was upon a promissory note to which the defend- 
 ant pleaded, first, the Statute of Limitations ; secondly, payment. 
 Defendant moved that plaintiff be required to reply to the first 
 defence contained in the answer. The affidavit in support of the 
 motion showed that the summons was in fact served more than 
 six years after the maturity of the note sued upon, and that the 
 defendant was advised by counsel that it was necessary for the 
 proper defence of the suit, that the defendant's counsel should 
 be informed before the trial in what way the plaintiff expected 
 to defeat the operation of the statute. There were also the 
 usual afiida\'its of merits. 
 
 Mullen, J. In this case the defendant has pleaded the Statute 
 of Limitations, and now asks for an order requiring the plaintiff 
 to reply to the plea, by specifying the grounds which he relies 
 upon to defeat the operation of the statute. 
 
 This case is not one in which, by the Code of Procedure, the 
 plaintiff is bound to reply, or the facts stated in the answet will 
 be taken as admitted. But the application is made under Sec- 
 tion 153 of the Code [Code Civ. Pro., § 516], which provides 
 that in cases other than where a counterclaim is set up in the 
 answer, if the answer contains new matter constituting a defence 
 by way of avoidance, the court may, in its discretion, on the 
 defendant's motion, require a reply to such new matter. 
 
 The case before me is one in which the court has power to 
 require a reply. 
 
 To introduce the practice of requiring a reply in all cases 
 
 I * Compare next case. 
 
526 Abbott's Select Cases on Code Pleading. 
 
 Hubbell V. Fowler, 1 Abb. Pr. (N. S.), 1. 
 
 which may come within the terms of the clause of the section 
 cited, is to multiply motions not only unnecessarily but unrea- 
 sonably. In many, if not in most cases, the defendant knows 
 with reasonable certainty the answer which will be given to his 
 defence ; and there can be no reason for a motion to enable him 
 to ascertain a fact of which he is already cognizant. 
 
 There are, however, very many cases in which the defendant 
 may not know the answer which the plaintiff may make to the 
 new matter in his defence, because it may be matter affecting the 
 plaintiff personally, or the business may have been transacted on 
 the part of the defendant by an agent, or there may be, as in the 
 case before me, a large number of answers which may be 
 insisted on by way of reply to the new matter of the answer, all 
 of which it would be unreasonable to require the defendant to 
 prepare to meet on the trial, although the matter to be replied 
 to may be presumed to be known to him personally. 
 
 The bar by reason of the running of the Statute of Limitations 
 may be defeated in several different ways. 
 
 1. By the commencement of an action within the time 
 limited. 
 
 2. By an attempt to commence such action as prescribed in 
 § 99 of the Code. [Code Civ. I'm., § 399.J 
 
 3. By absence of the defendant from the State when the right 
 of action accrued. \Jd., § 401.] 
 
 4. If the plaintiff was under twenty-one years, or [id., § 3961, 
 
 5. Insane, or 
 
 6. Imprisoned on a criminal charge, or 
 
 7. A. married woman.* 
 
 8. Death of the person having the right of action before the 
 time limited expired. [Id., § 402.] 
 
 9. That the plaintiff was an alien, subject or citizen of a 
 country at war with the United States. 
 
 10. Actions brought to judgment recovered, and reversed on 
 appeal. [Id., § 405.] 
 
 11. Stay by injunction. [Id., ^ 406.] 
 
 12. A new promise. [Id., § 395.] 
 
 To this last may be added others, unnecessary to enumerate ; 
 
 * Coverture is no longer a bar. 
 
III. Technical Eules. (T) Keply. 62T 
 
 N. Y., Lake Erie & Western R. R, Co. v. Robinson, 35 Abb. N. C, 116. 
 
 but the list is sufficiently formidable to show how difficult it 
 may be in many cases to know on what ground the plaintiff 
 intends to defeat the bar of the statute. 
 
 If there is any case in whicli it is proper to require a reply, it 
 seems to me this is the one. 
 
 It was suggested by counsel that the defendant should be 
 recpiired to aver that he does not know the ground on which the 
 plaintiff intends to rely to defeat the bar. While this may in 
 some cases be very proper, yet in most instances the nature of 
 the defence, and the manner in whicli the business was con- 
 ducted out of which the action or defence accrued, will afford a 
 much better guide in determining the propriety of requiring a 
 reply. In this case I do not deem it essential. 
 
 Let an order be entered requiring the plaintiff to serve a reply 
 to the answer setting up the Statute of Limitations within twenty 
 days from service of copy order ; the costs of the order, $10, to 
 abide event of the suit. 
 
 NEW YORK, LAKE ERIE & WESTERN R. R. CO. 
 V. ROBINSON. 
 
 N. Y. Supreme Court, First Department, General Term, 18S7. 
 
 [Reported in 25 Abb. N. C, 116.] 
 
 A plaintiff will not be compelled to serve a reply to new matter in an 
 answer which sets up the Statute of Limitations* and an adjudication 
 in another State, which is claimed to constitute res judicata. 
 
 This action was brought by the New York, Lake Erie <S: 
 Western Railroad Company against Charles Robinson to have 
 certain shares of stock of the National Stock Yard (Jompany, 
 which had been delivered by defendant to the Erie Railway 
 Company or its receiver, declared to be unlawfully issued, in the 
 hands of defendant ; to have a certain contract cancelled and !;ur- 
 rendered up, and defendant enjoined from claiming any benefit 
 under it ; that defendant be adjudged to have obtained certain 
 
 * Compare preceding case. 
 
>28 Abbott's Select Cases on Code Pleading. 
 
 N. Y., Lake Erie & Western R. R. Co. v. Robinson, 2.j Abb. N. C, IIG. 
 
 property and assets under said agreement by fraud, and that the 
 same be adjudged to belong to the Erie Railway Company, or to 
 plaintiff as its successor ; and for damages, etc. 
 
 The answer among other things alleged as follows : 
 
 For a third and separate defence (to the first alleged cause of 
 action) : 
 
 '' XXTI. An equity suit was heretofore brought by Hugh J. 
 Jewett (the person mentioned in the complaint herein as 
 receiver of the Erie Railway Company), as such receiver, against 
 this defendant in the Cook County Circuit Court, in the State of 
 Illinois, in chancery, the bill of complaint wherein prayed for a 
 decree by which it might be adjudged and decreed among other 
 things, that this defendant gave no consideration for the 3,623 
 shares of stock mentioned in the contract, ' Exhibit A,' to the 
 complaint herein, and had no legal or equitable right or title in 
 or to the same ; that the actual title to the one thousand shares 
 of stock of John B. Sherman (mentioned in the complaint 
 herein) in the National Stock Yard Company, remained in said 
 Erie Railway Company ; that this defendant acquired no title to 
 the one thousand shares of stock allotted to him (mentioned in 
 the complaint herein), and that the actual title remained in the 
 Erie Railway Company ; that the agreement, a copy whereof is 
 annexed to the complaint herein, was induced by false and 
 fraudulent representations of said defendant, and that the same 
 should be cancelled and annulled ; that defendant should be 
 required to pay to said Jewett, as such receiver, the suui of 
 $53,000, wdth the interest thereon, and for such further and 
 other order of relief as the nature of the case might require, and 
 as might be agreeable to eqiiity and good conscience. 
 
 " XXIII. Said bill of complaint was personally subscribed by 
 said Jewett and verified by him upon oath on April 11, 1ST8, 
 and contains all the allegations material to the present action 
 which are contained in the amended complaint herein, except 
 that (if it be a material allegation) said receiver and said Erie 
 Railwav Company were induced to make said contract 
 (' Exhibit A ' to the complaint herein) by reason of the state- 
 ments of this defendant that his title to said stock was a good 
 and clear title, and that no other perscm had a lawful claim 
 
III. Teohnioai Eules. (Y) Eeply. 529 
 
 N. Y., Lake Erie & Western R. R. Co. v. Robinson, 85 Abb. N. C, 116. 
 
 tliereto, and this matter might have been also litigated in the 
 said Illinois suit. The paper hereto annexed as a part hereof 
 and marked ' Exhibit A,' is a true copy of the bill of complaint 
 in said Illinois suit. 
 
 " XXIV. This plaintiff, on or about February 10, 1887, became 
 a party complainant to the suit mentioned in said paragraph, and 
 filed a supplemental bill of complaint therein by leave of the 
 said court. Answers were filed to the said bill and supple- 
 mental bill therein by this defendant, denying the equities set 
 up in said bills ; replication was filed by complainant, and said 
 suit duly came on to be heard by said court in chancery, and 
 eacli party introduced evidence upon said hearing, and the 
 taking of evidence therein was closed, and thereafter and on or 
 about February, 1887, the said bill and supplemental bill in said 
 suit were dismissed by order of the said court, a copy of which 
 order is hereto annexed as a part hereof and marked ' Exhibit B.' 
 The recitals in said order are true. Said trial was had and said 
 bill and supplemental bill dismissed as aforesaid since this 
 action was commenced. 
 
 " XXV. By said order the matters herein in litigation ^vere 
 finally adjudicated and settled, and the plaintiff is thereby de- 
 barred from prosecuting this action." 
 
 For a third and separate defence (to the second alleged cause 
 of action) : 
 
 "XXVI. The allegations of paragraphs XXII. to XXA^ 
 hereof, inclusive, are true, and are hereby repeated as a defence 
 to the second alleged cause of action." 
 
 For a fourth and separate defence (to the first alleged cause of 
 action) : 
 
 " XXVII. Each and every fact alleged in the amended com- 
 plaint (exclusive of paragraphs [specifying them hy numher] 
 thereof) was discovered by Hugh J. Jewett, therein mentioned, 
 on or before April 11, 1878. This action was commenced on or 
 about May 1. 1886. 
 
 " XXVIII. Plaintiff's alleged cause of action did not accrue 
 within six years before the commencement of this action." 
 
 For a fourth and separate defence (to the second alleged cause 
 of action) : 
 34 
 
530 Abbott's Select Cases on Code Pleading. 
 
 N. Y., Lake Erie & Western R. R. Co. v. Robinson, 25 Abb. N. C, 116. 
 
 10 " XXIX. This action was commenced on or about May 1, 
 1886. Plaintiff's alleged cause of action did not accnie within 
 six years before the commencement of this action." 
 
 The defendant moved before Laweence, J., to compel the 
 plaintiff to reply to these allegations ; and this appeal was from 
 the order denying such motion. 
 
 Pee Cueiam [Van Betjnt, P. J., Beady aad Daniels, JJ.]. 
 There seems to be no good reason shown upon the papers pre- 
 
 11 sented on this record for requiring a reply to the answer herein, 
 unless the rule is to be adopted that the court will require a 
 reply to any new matter set up by way of defence. 
 
 The allegations as to the proceedings of the court in Illinois 
 can be easily proven, if true, by an exemplified copy of the 
 record in that court, and no reply should be required. 
 
 The defence of the Statute of Limitations is one which the 
 defendant must establish for himself, and the plaintiffs cannot 
 be called upon to lend their assistance to him, or to aid him in 
 -, n the performance of that task. 
 
 The case of Watson v. Phyfe,* which seems to be relied upon 
 as an authority for the granting of the motion in this action, pre- 
 sented features entirely different from those existing in the &";e 
 at bar. 
 
 In that case, upon various grounds essentially different in their 
 nature, the averments of the answer might be attacked, and the 
 court held that the defendant should . be informed of these 
 grounds by a reply. 
 
 In the case at bar, the effect of the alleged adjudications in 
 13 Illinois must depend upon the record of the proceedings in that 
 State and the laws applicable thereto ; and of this fact the de- 
 fendant is perfectly aware, and cannot, therefore, be surprised 
 by the introduction of some new and unexpected reply to his 
 defence. 
 
 The order appealed from should be affirmed, with 810 costs 
 and disbursements. 
 
 '21) Weekly Dig., 375 
 
III. Technical Rules. (7) Eeply. 531 
 
 Note on Pleading in Avoidance. 
 
 NOTE ON PLEADmO IN AVOIDANCE OF A DE. 
 FENCE BY EEPLY, VOLUNTEERED OE COM- 
 PELLED, OE BY AVOIDANCE IN THE COM- 
 PLAINT OF AN ANTICIPATED DEFENCE. 
 
 [Fi-om 35 Abb. N. C, 120.] At common law and under the earlier 
 chaucery practice, new matter contained in a plea was brought to issue 
 only by a replication ; and if the plaintiff designed to prove anything in 
 avoidance of such new matter, the replication was special, stating the 
 facts in avoidance. 
 
 The prolixity in pleading which I'esulted — naturally greater in chancery 
 than at common law — led to the disuse of special replications in the 
 English chancery, plaintiff being allowed to amend his bill so as to set up 
 the same matter in avoidance which otherwise would have required a 
 special replication. The United States Supreme Court rules in equity 
 adopted this practice and forbade special replications. The usual pro- 
 visions in the Codes of Procedure adopt the same principle for all actions, 
 and, with the exceptions hereafter noticed, abolish replications, not only 
 general replications as a formality for joining issue, but also special repli- 
 cations as a disclosure of grounds for avoiding new matter set up as a 
 defence in the answer ; so that under the New Procedure, when a defend- 
 ant serves an answer setting up new matter in defence and goes to trial, 
 his allegations are on the one hand traversed by the statute, without any 
 actual denial; but, on the other hand, plaintiff may prove anything what- 
 ever in avoidance of such new matter, and defendant has no right to 
 object on the ground of surprise. Two qualifications of this general rule 
 are made by the Codes, one absolute, and the other discretionary with the 
 court : 
 
 1. If it is shown that defendant is embarrassed in his preparation for 
 trial by being left in the dark as to what avoidance plaintiff relies on for 
 meeting- defendant's defence, the court will require plaintiff to put in a 
 reply which will state, and therefore limit, the subjects of proof : 
 
 3. If the answer sets up new matter as a counterclaim, and includes 
 therein a demand for affirmative relief against the plaintiff', the allega- 
 tions of the counterclaim are treated like the allegations of a complaint, 
 as having been admitted if not denied, and a reply is necessary in order 
 to deny them. 
 
 The Code adopted the general principles of equity pleading as the basis 
 of pleading under the new system and abolished replications, but did not 
 expressly prescribe any rule as to matter in the complaint in avoidance of 
 an anticipated defence. 
 
 In equity, such matter was first stated in the charging part of the bill ; 
 by later practice it was allowed as proper in the narrative part of the 
 bill. 
 
 Every equity practitioner is familiar with the convenience of thus nar- 
 rowing the issue which defendant might otherwise raise. 
 
532 Abbott's Select Cases on Code Pleading. 
 
 Note on Pleading in Avoidance. 
 
 The Codes, however, by making a complaint sufficient which states 
 facts sufficient to constitute a cause of action, departed from the equity 
 rule that the bill must state by amendment, if not originally, an avoidance 
 of the defence, but substituted the rule that the court may require a reply 
 in its discretion. 
 
 The practice of amending so as to bring into the complaint matter of 
 evidence was repeatedly sanctioned under the Code in the earlier cases 
 before it was as well settled as now that plaintiff may prove any facts con- 
 stituting acoQiraon law avoidance of new matter in defence, although not 
 pleaded by him.* 
 
 The results are these : 1. If plaintiff's complaint discloses the ex- 
 istence of a, defence it must also contain matter in avoidance of that 
 defence. 
 
 3. Plaintiff is not bound to plead any common law avoidance of an 
 anticipated defence not disclosed by his own complaint. He may state 
 facts as his cause of action, although he knows defendant has an apparent 
 answer to them, and may reserve his avoidance of that answer till the 
 trial, provided that avoidance does not require affirmative equitable 
 relief against the matter set up as a defence ; in other words, provided it 
 is a good avoidance at common law. 
 
 The cases are not agreed as to whether an equitable avoidance is thus 
 available without pleading. The later cases favor the rule that if there 
 is an obstacle to recovery which cannot be avoided except by equitable 
 relief, the plaintiff should frame his action as an equitable one, and allege 
 his avoidance and ask relief against the matter of defence thus to be 
 avoided. 
 
 3. If plaintiff does not indicate by his pleading how he intends to avoid 
 a defence, and defendant can show that the facts of his defence are clear 
 and that he is embarrassed in pi-eparation for trial by being left in the 
 dark as to how plaintiff will endeavor to avoid their effect, the court may 
 compel plaintiff to reply, and, of course, confine his avoidance on the trial 
 to the matters alleged in the reply. 
 
 4. Plaintiff may, if he choose, allege in his complaint an avoidance of 
 an anticipated defence, even though it be an avoidance good at common 
 law and therefore not necessary to be alleged. 
 
 This conclusion has been contested, and while the weight of reason 
 and authority is in its favor, it is to be taken with the important qualiflca- 
 cation that it defendant does not plead the anticipated defence, the allega- 
 tions intended in avoidance are left without pertinence, are not admitted 
 
 * Chapman ». Webb, 6 How. Pr., 390. Action for price of goods; answer of credit unex- 
 pired; amendment settin;^ up fraud in procuring credit allowed. 
 
 HolliBter V. Livingston, How. Pr., 140. Action on sealed note, answer of usury ; amend- 
 ment setting up original consideration. Objection, if any, held waived by retaining the 
 amended complaint sixteen days. , 
 
 Tllonlp^ion ti. Minford, 11 Ilow.Pr., 273. Action on note; amendment alleging judgment 
 recovered ttiereon in another State allowed, because, if not allowed, defendant might plend it in 
 bar; and if allowed and the allegations as to the note stand out, defendant misht plead want 
 of jurisdiction against the judgment. 
 
III. Technical Rules. (Y) Reply. 533 
 
 Winchester v. Browne, 36 Abb. N. C, 387. 
 
 by not being denied, and are so much surplusage. Hence, if defendant "9 
 disavows intent to plead that defence, he could move to strike out the 
 anticipated avoidance. 
 
 If, however, defendant does plead the anticipated defence, he makes 
 the allegations in avoidance material, precisely as in the case of pleading 
 in equity, and he must deny them or they will stand admitted. 
 
 This rule, it will be seen, does not rest directly on any provision of the 
 Code, but on the old practice and reasons of convenience which favor 
 allowing the parties to narrow as much as they will the issues to be tried.* 
 
 In view of these principles the usual policy of counsel in framing the 
 pleadings in such cases is this : 
 
 If an anticipated defence will require equitable relief, allege the facts 10 
 in avoidance and ask that relief. 
 
 Where an anticipated defence can be niet by a common law avoidance 
 and needs no equitable relief, then if it is expected that defendant will 
 go to issue in any case and contest a recovery, frame the complaint as if 
 the defence did not exist, and reserve the avoidance until trial ; but if the 
 defence is supposed to be the only one, and defendant cannot under oath 
 deny either the cause of action or the avoidance, allege the matter in 
 avoidance in the complaint, and then if he pleads that defence he must 
 admit or deny the matter in avoidance. 
 
 WINCHESTEE v. BROWNE. 
 
 New York Supreme Court, Special Term, 1891. 
 
 [Reported in 26 Abb, N. C, 387.] 
 
 Under an order directing plaintiff to reply to new matter in an answer, a 
 denial is a sufficient compliance ; but it will only avail at the trial to 
 enable plaintiff to controvert the new matter, and not to prove an 
 avoidance thereof. 
 
 Demurrer to reply. 
 
 Ba.ee ETT, J. Where the plaintiff is directed to reply to new 
 matter in his answer, constituting a defence by way of avoidance, 
 the reply is subject to the same rules as in the case of a counter- 
 claim (Code, § 516). Those rules are that the reply must contain 
 
 * In Williams v. Kilpatrick, 31 Abb. N. C, 61, plaintiff sued defendants as general partners. 
 One of the defendants denied he was a general partner, and alleged that he was a special partner 
 under a limited partner.-hip. His attorney then moved that plaintiff be directed to reply to the 
 new matter. The court granted the motion, on the ground that where a violation of a statute 
 is the basis of liability, the specific grounds should be pointed out, in order to raise a precise 
 and deiinite issue. 
 
534 Abbott's Select Cases on Code Pleading. 
 
 Winchester v. Browne, 36 Abb. N. C, 387. 
 
 a general or specific denial of each material allegation contro- 
 verted by the plaintiff or any knowledge or information thereof 
 suflScient 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 
 (Code, § 514). Where, then, the plaintiff, upon the direction of 
 the court, replies to new matter in avoidance, there must be 
 either a general or specific denial of such new matter or of any 
 knowledge or information thereof sufficient to form a belief. If 
 no such denial is interposed, the new matter is admitted. But 
 if a denial be inteii^osed in any one of the forms so prescribed, 
 the defendant cannot successfully demur to the reply upon the 
 ground that it is insufficient in law upon the face thereof (g 493). 
 It is sufiicient in law because it is in precise accord with the 
 forms of denial prescribed by law. 
 
 The defendant complains that the reply does not apprise him 
 of the manner in which the plaintiff intends upon the trial to 
 meet the plea of the Statute of Limitations. This is but another 
 way of saying that the plaintiff should have admitted the 
 defendant's new matter in avoidance, and set forth in his reply, 
 in ordinary and concise langiiage, without repetition, new matter 
 not inconsistent with the complaint, constituting a defence to 
 such new matter in avoidance. The answer to this is, that the 
 plaintiff thus relies upon his general or specific denial, or upon 
 his denial of knowledge or information sufficient to form a 
 belief. Dpon the trial he will not be permitted to show new 
 matter constituting a defence to the defendant's new matter in 
 avoidance, for the reason that he has not pleaded it. The issue 
 will be upon the denial of the defendant's averments. 
 
 Tested by these rules, the reply is sufficient in law upon its 
 face, and the demurrer thereto should therefore be overruled, 
 with costs. 
 
III. Technical Rules. (Y) Eeply. 535 
 
 Ansorge v. Kaiser, 22 Abb. N. C, 305. 
 
 ANSORGE V. KAISEE. 
 
 New YorJc Supreme Court, Special Term, 18S9. 
 
 [Reported in 22 Abb. N. C, 305.] 
 
 1. The fact that a prior action is pending on a cause set up in the present 
 
 action as a counterclaim and for wliich affirmative judg-ment is 
 demanded, is a defence to the counterclaim. 
 
 2. It seems, that if the pendency of such prior action should appear upon 
 
 the face of the counterclaim, the counterclaim would be demurrable. 
 
 3. If the pendency of a prior action upon the cause set up as a counter- 
 
 claim does not appear upon the face of the counterclaim, plaintiflf may 
 set it up by a reply. 
 
 Defendant demurred to a reply wliich plaintifi: had interposed 1 
 as a defence to a cause of action which defendant had set up in 
 her answer by way of counterclaim. 
 
 Ingeaham, J. The counterclaim set up in the answer alleges 
 a breach of warranty and demands an affirmative judgment 
 against the plaintiff for the sum of $800. The reply to such 
 counterclaim alleges that a prior action is pending undetermined 
 for the same cause of action alleged in said counterclaim between 
 the same parties in this court, and to that reply the defendant 
 demurs. 
 
 By Section 495 of the Code, it is provided that a plaintiff may 
 demur to a counterclaim upon which the defendant demands an 
 affirmative judgment, where it appears upon the face of the 
 counterclaim " that there is another action pending between the 
 same parties for the same cause." 
 
 If, therefore, it had appeared in the allegation constituting 
 this counterclaim that a prior action was pending for the cause 
 of action alleged as a counterclaim, the plaintiff could have 
 demurred to the counterclaim. By section 514 it is provided 
 that where the answer contains a counterclaim, the reply may set 
 forth in ordinary and concise language, without repetition, new 
 matter not inconsistent with the complaint, constituting a defence 
 to the counterclaim. 
 
 I think it is clear that facts which, if they appeared upon the 
 face of the counterclaim, would make the counterclaim demur- 
 
536 Abbott's Select Cases on Code Pleading. 
 
 Ansorge v. Kaiser, 23 Abb. N. C, 305. 
 
 rable and defeat the cause of action set up as a counterclaim, 
 when they do not so appear, is new matter constituting a defence 
 to the counterclaim, for it would be absurd to suppose that the 
 Legislature intended that a fact appearing on the face of the 
 counterclaim should defeat the counterclaim, but should not 
 defeat it where the fact did not so appear, but was alleged in the 
 reply. 
 
 The rule was different where the cause of action was 
 alleged in the answer by way of set-off, and not by way of 
 counterclaim, and the case of Naylor v. Schenk (3 E. D. Smith, 
 135) applied the rule to the defence of set-off, and not to a 
 counterclaim. 
 
 It is settled in this court that a plea of another action pending 
 between the same parties for the same cause is a good defence 
 to the action (Groshon v. Lyon, 16 Barb., 461). And under the 
 provisions of the Code above cited, I think it also a defence to a 
 counterclaim for which an afSrmative judgment is demanded. 
 
 The cases cited by defendant have been examined, but, so far 
 as they are inconsistent with the rule before stated, they should 
 not prevail against the express language of the Code cited. The 
 demui-rer should, therefore, be overruled and judgment ordered 
 for plaintiff with costs, with leave to the defendant to withdraw 
 the demurrer within twenty days, on payment of costs. 
 
III. Teohnical Rules. (8) Verification. 63Y 
 
 GofE V. Star Printing Co., 21 Abb. N. C, 311. 
 
 GOFF i\ STAR PRINTING CO. 
 
 New Yorh Supreme Court, Chambers, April, 1888. 
 
 [Reported in 21 Abb. N. C, 311.] 
 
 1. An unverified answer to a verified complaint may be served without any 
 affidavit to the ground of privilege, where the pleadings themselves 
 show — as in the cnse of an action for libel and an answer denying pub- 
 lication — that the defendant would be privileged from testifying as a 
 witness. It is only where the conaplaint does not itself show this 
 that such an affidavit is required. 
 
 3. This rule applies in an action against a corporation, though the verifi- 
 cation in such case would be by an officer. 
 
 These actions, four in all, were brought to recover $25,000 
 damages in each case, aggregating $100,000, for the publication 
 in the " Star " newspaper of an article concerning the plaintiffs, 
 alleged by them to be libelous. The four complaints were duly 
 veriiied. The defendant answered in each case, the answers 
 each containing, with other defences, a general denial of all the 
 allegations of the several complaints. The answers were not 
 verified. On being served, plaintiffs' attoi-neys gave admission 
 of due and timely service, but within two or three days gave 
 notice to defendant's attorney that they would treat the answers 
 as nullities upon the ground that, the complaints being verified, 
 the answers should be verified ; the defendant not being entitled 
 to the privilege and exemption from verification, under K. Y. 
 Code Civ. Pro., § 523.* 
 
 Defendant then moved to compel plaintiffs to accept the ser- 
 vice of the answers. 
 
 O'Beien, J. These actions, as shown by the complaints, are 
 for alleged libels. The answers are unverified. Section 523 of 
 
 *This section is as follows; "§533. Where a pleading is verified, 
 each subsequent pleading, except a demvu'rer, or the general answer of 
 an infant by his guardian ad litem, must also be verified. But the verifi- 
 cation may be omitted in a case where it is not otherwise specially pre- 
 scribed 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 tact admitted or alleged therein." 
 
538 Abbott's Select Cases on Code Pleading. 
 
 Goff V. star Printing Co., 31 Abb. N. C, 211. 
 
 the Code of Civil Procedure provides that " the verification may- 
 be omitted v^here the party pleading would be privileged from 
 testifying as a vsritness concerning an allegation or denial con- 
 tained in the pleading." 
 
 Some of the cases are to the effect that the court will not 
 assume, merely from the pleadings, that the reason why an 
 answer was not verified was that the party answering would be 
 privileged from testifying as a witness, and it therefore seemed 
 proper that where this right is claimed the party claiming 
 it should serve an affidavit showing his excuse for not verifying 
 the answer. An examination of the cases will, however, bear 
 the construction that a distinction is made between cases where 
 the complaint itself does not show that the defendant would be 
 privileged, and cases, which from their very nature, it is evident 
 that the defendant could not be compelled to testify. In the 
 former class of cases an affidavit should be served, showing why 
 the verification is not made. In an action for libel, where the 
 answer denies the publication, no verification is required ; and, 
 as it is evident from the complaint in this action that the defend- 
 ant or its officers would be privileged from testifying, an unveri- 
 fied answer, without any affidavit, is good (Wheeler v. Dixon, li 
 How. Pr., 151). Where there is more than one party and any 
 one would be privileged, verification may be omitted (Clapper 
 V. Fitzpatrick, 3 How. Pr., 314). 
 
 The motion should be granted, for the reason that the verified 
 pleading would tend to accuse the officers and the corporation 
 of a misdemeanor, and expose the officers and the corporation to 
 a penalty or forfeiture. If called as witnesses, they would be 
 privileged from testifying to the truth of any matter denied. 
 
 Motion compelling plaintiff to accept answer granted ; no 
 costs. 
 
 NOTB.— In Fredericks i'. Taylor, 14 Abb. Pr. (N. S.), TT (N. Y. Court of 
 Appeals, 1873), it was held -. 
 
 1. The question whetligr or not a pleading must be verified is one o£ sub- 
 
 stantial right. 
 
 2. A party has the right to have such a question determined summarilj' 
 
 upon a motion; and consequently an appeal lies to the Court of 
 Appeals from the order made on such motion. 
 
III. Technical Rules. (8) Verification. 539 
 
 Goff V. Star Printing Co., 21 Abb. N. C, 311. 
 
 In delivering the opinion of the Court, Grover, J., said on these 8 
 points : 
 
 That the question whether or not a pleading must be verified, is one 
 of substantial right, is, I think, clear. If the law required that it should 
 be verified, the party upon which it is served has an absolute right to 
 insist that it shall be, to constitute a pleading in the cause. It it does not 
 require a verification, the party serving it has an absolute right to serve 
 it withovit, and to insist that it shall be treated as a valid pleading. 
 
 Whether the order is appealable depends upon the inquiry whetlier a 
 party has an absolute right to have the question, whether the proposed 
 pleading complies with the law and the practice of the court, and has 
 been properly served, determined in the one case by a motion to strike it 
 out, and in the other, where there has been a refusal to receive it, by 9 
 motion to compel its acceptance as a pleading in the cause ; or whether it 
 is discretionary with the court either to decide the question upon motion, 
 or leave the parties to the remedy of returning the pleading, in the former 
 case, and taking subsequent steps in the cause upon the ground that there 
 was no such pleading, and have the question determined upon the motion 
 of his adversary to set aside such subsequent proceedings, or, in the 
 latter, wait until subsequent proceedings are had, and then move to set 
 the same aside. I think that the correct and better practice is, that when 
 a question arises whether a pleading has been made and served according 
 to law and the practice of the court, so as to become a part of the plead- 
 ings in the case, to give either party the right to a speedy and summary 
 determination of the question upon motion, without requiring either to 1^ 
 take any further proceedings in the cause, at the peril of having them 
 set aside in case of a decision adverse to him, or of permitting a final judg- 
 ment to stand in case the paper tendered was not suSicient or iu time. I 
 believe the uniform practice of all the courts is in accordance with these 
 views, and that such a motion was never denied upon the ground that it 
 was in the di,scretion of the court whether it would consider and determine 
 the question presented upon motion, or compel the parties to proceed 
 further in the cause, relying upon the respective views of each upon the 
 controverted question. 
 
540 Abbott's Select Cases on Code Pleading. 
 
 Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C, 464. 
 
 For a note on the distinction between motions to make more definite 
 and certain, or for a bill of particulars, see p. 339 of this vol. 
 
 KEUBEKS V. LUDGATE HILL STEAMSHIP CO. 
 
 I^ew Yorh Supreme Court, First Dep. , General Term, 1888. 
 
 [Reported in 21 Abb. N. C, 464.] 
 
 A complaint in an action againsta common carrier of goods for negligence, 
 which alleges that " the defendant so negligently and carelessh' be- 
 haved itself in transporting said fur that the same was damaged," 
 etc., is indefinite and uncertain and a motion to make it more definite 
 and certain will be granted.* 
 
 Morris Reubens and Bernhard Reubens sued the Ludgate Hill 
 Steamship Company (Limited), a common carrier of goods, to 
 recover damages for negligence in transporting fur in one of 
 its vessels. 
 
 The complaint after alleging, 1. that defendant was a foreign 
 corporation ; 2. the co-partnership of the plaintiffs, then pro- 
 ceeded as follows : 
 
 Third. — That on or about June 22, 1887, the defendant 
 undertook to transport to New York, for hire, by one of its ves- 
 sels, called the " Ludgate Hill," ninety cases of fur, the property 
 of the plaintiffs, and to deliver the same safely and in good order 
 to the plaintiffs at said city of New York, and that plaintiffs 
 paid the defendant for such freight $178. Y7. 
 
 Fourth. — That the defendant so negligently and carelessly 
 misbehaved itself in transporting said fur that the same was 
 damaged, and plaintiff, by reason thereof, sustained damage in 
 the sum of $408.51. 
 
 Judgment was demanded for ^408.51, with interest and costs. 
 
 * This decision must be deemed a warning to pleaders to state the factp relied on as con- 
 stituting negligence, with some detail if practicable safely to do so. Compare note in 20 Abb. 
 N. C.,236, and group of cases there reported. 
 
 Code Civ. Pro., § 546, reads : "Where one or more denials or allegations contained in a 
 pleading are so indefinite or uncertain that the precise meaning or application thereof is not 
 apparent, the court may require the pleading to be made definite and certain by amendment. 
 
III. Technical Rules. (9 a) Indeiiniteness and Uncertainty. 511 
 
 Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C, 46i. 
 
 The defendant moved for an order requiring the plaintiff to 
 make the complaint more definite and certain by specifying and 
 pointing out when, where, how, under what circumstances, and 
 in what way, manner and particulars the alleged damage to the 
 plaintiffs' goods was incurred, and in what the said damage 
 consisted, and in what the alleged negligence and misbehavior 
 of the defendant referred to in the fourth article of the com- 
 plaint consisted. 
 
 The Special Term, in denying the motion, rendered the fol- 
 lowing opinion : 
 
 " This motion must be denied for the reason that it is well 
 established that negligence may be charged in general terms, and 
 Avhile under the practice in some States, if a more definite state- 
 ment of facts is desired, a motion to the court to make the com- 
 plaint more specific, is proper, under our practice, it is only 
 where the precise nature of the charge is not apparent that such 
 an application is proper to make the complaint more definite and 
 certain. But where the particulars or circumstances of time or 
 place, or, as in this case, where defendant desires to have 
 specified where, how, and under what circumstances, or the par- 
 ticulars of the alleged damage, the proper practice is to demand 
 a bill of particulars, and on that being refused, to make a motion 
 to obtain it (Tilton v. Beecher, 59 IST. T., 176, and pp. 183 and 
 184)." 
 
 The General Term reversed the order and granted the 
 motion. 
 
 Bbady, J. The defendants are alleged to be common carriers 
 for hire between London, in England, and this city. The 
 allegation is that on June 22, 1887, the defendant undertook to 
 transport to New Tork for hire, by its vessel called the " Lud- 
 gate Hill," ninety cases of furs, the property of the plaintiffs, 
 and to deliver the same safely and in good order to the plaint- 
 iffs at the city of K ew York ; for which service the defendant 
 was paid ; and then that " the defendant so negligently and care- 
 lessly misbehaved itself in transporting the fur that the plaintiff, 
 by reason thereof, sustained damage in the amount stated." 
 
 The defendant insists that this is a very indefinite and uncer- 
 
542 Abbott's Select Cases on Code Pleading. 
 
 Reubens v. Ludgate Hill S. S. Co., 21 Abb. N. C, 464. 
 
 8 tain statement of the cause of action, and it seems to be so. It 
 is a natural logical sequence that if defendant carelessly and 
 negligently misbehaved itself it behaved itself, and, it must be 
 assumed, w^ell behaved itself. 
 
 This must be the result. This view, which is not intended to 
 be hj^ercritieal, is only given for the purpose of demonstrating 
 the uncertain and indefinite allegation of the cause of injury. 
 
 It is not necessary to consider the authorities upon a motion of 
 this character, which create, when put in juxtaposition some con- 
 fusion, involving, to some extent, rules applicable to bills of 
 particulars, for the reason, if none existed, that the Code requires 
 by section 481 a plain and concise statement of facts constituting 
 each cause of action, without unnecessary repetition. And the 
 Court of Appeals in Olcott v. Carroll, 39 N. Y., 436, said in 
 reference to the old Code, the provisions in which are similar to 
 those contained in the Code of Civil Procedure : " When the 
 allegations in a pleading are so indefinite and uncertain that the 
 express nature of the charge is not apparent, the court may 
 require the pleading to be made definite and certain by amend- 
 IQ ment." Here the plaintiffs' right of action depends on the 
 alleged negligence of the defendant, and, giving the broadest 
 and most liberal interpretation to the allegations in the com- 
 plaint on that subject, there is no suggestion of any fact showing 
 the character of the negligence, whether by improper stowage, 
 or careless handling, or negligent exposure, or of any one of the 
 numerous acts, omissions, and circumstances by which negligence 
 would be made apparent. The statement is, that the goods were 
 so shipped and so negligently transported as to be damaged. 
 This is neither a plain noi- concise statement of facts, and the 
 precise nature of the charge is not apparent. 
 
 AYliether the defendant was guilty of negligence or carelessness 
 is a conclusion of law dependent upon facts which must be 
 proved. There should be at least some general statement of the 
 cause of the damage, beyond the mere statement of neglect and 
 carelessness. Some confusion has crept into the consideration of 
 this question, by the supposed effect upon it of the case of 
 Tilton V. Beecher, 59 N. Y., 176. The learned justice in writing 
 the opinion in that case, referring to section 160 of the old Code, 
 
HI. Technical Rules. (9 a) Indefiniteness and Uncertainty. 543 
 
 Ottman v. Fletcher, 23 Abb. N. C, 430. 
 
 the provisions of whicli were similar to those of section 546 of 12 
 onr present Code, said : " It will be observed that it is only 
 where the precise nature of the charge is not apparent that an 
 apphcation will be made under this section. It enables a party 
 to obtain a definite statement in the pleadings of the nature of 
 the charge intended to be made against him, but not of the par 
 ticulars or circumstances of the time and place. For that 
 purpose, a different proceeding was pointed out, and from that 
 there was no uncertainty and indefiniteness in respect to the 
 nature of the charge made against the defendant." -j^g 
 
 Indeed an examination of that case shows that the charge 
 made was quite definite and certain. That case, and cases 
 kindred to it, establish the proposition that in an action of or 
 for relief, if the charge made be definite and certain, an applica- 
 tion for a bill of particulars may be granted. But it in no wise 
 limits, controls or affects the statutory right secured by the pro- 
 visions of the Code, to have a complaint made so definite and 
 certain that the nature of the charge shall be stated. 
 
 The object is to advise the defendant of the claim with such 
 definiteness as to enable him to prepare his defence. This 14 
 would be required in all other classes of cases and should be here. 
 For these reasons, the order appealed from is reversed, and the 
 motion granted with costs. 
 
 Daniels, J., concurred. 
 
 Baetlett, J., concurred in the result. 
 
 Order reversed. 
 
 OTTMAN V. FLETCHER 
 
 New York Superior Court, Special Term, 1889. 
 
 [Reported in 23 Abb. N. C, 430.] 
 
 Under Code Civ. Pro., § 481, a defendant is entitled to be informed by 
 the complaint of the facts constituting- the plaintiff's cause of action, 
 and it is not an answer to a motion to make a complaint more definite 
 and certain that the defendant has become acquainted with all the 
 facts upon which plaintiff's claim is founded in another action relating- 
 to the same subject matter. 
 
54-i Abbott's Select Casks on Code Pleading. 
 
 Ottman v. Fletcher, 23 Abb. N. C, 430. 
 
 3. A complaint alleging a modification of a contract will be required to 
 give the substance or I'ull terms of the alleged modification, but not to 
 state the time and place and whether or not by a writing. 
 
 1 The complaint, after alleging that a contract was made 
 between plaintiff and one Caffee for the manufacture by plaintiff 
 and the delivery to said Caffee of a certain number of advertising 
 and playing cards, a certain sum to be paid down on the making 
 of the contract, and the balance to be paid on delivery of the 
 cards, stated that the original contract was modified to the extent 
 that a less number of cards should be delivered than was 
 originally provided for. Paragraph 5, among other things, 
 alleged " that the defendant on the day said contract was made> 
 
 2 guaranteed in writing the payment " under said contract. 
 
 Defendant moved to make the complaint more definite and 
 certain by stating in what respect the contract alleged in the 
 complaint was modified, whether such modification was in 
 writing, the time and the place of such modification, the full 
 terms of the same, and whether the words "said contract" in 
 paragraph 5, referred to the original contract or to the modified 
 contract. 
 
 3 . . 
 
 DuGEo, J. I think the complaint should be made more definite 
 
 and certain by giving the substance or full terms of the alleged 
 modification, and also by stating whether the words " said con- 
 tract" in paragraph 5, refer to the original contract or to the 
 same as modified. The precise meaning and the application of 
 the allegations of the complaint are apparent, without a specifica- 
 tion of the time and place of the alleged modification, or any 
 statement as to whether this modification was in writing, and 
 
 4 therefore the defendant's motion, so far as it asks for informa- 
 tion as to these particulars, should not be granted (See Tilton v. 
 Beecher, 59 N. Y., 176). In Betts v. Bache (23 How. Pr., IDT), 
 it is held that it is not necessary in a pleading to state a contract 
 within the Statute of Frauds to be in writing. As to the conten- 
 tion of plaintiff's counsel that the defendant is well aware of all 
 the facts upon which the plaintiff's claim is founded, by reason 
 of another action, etc., it is sufficient to say that the defendant is 
 entitled to be informed by the complaint of the facts constituting 
 
III. Technical Bides. (9 a) Indefiniteness and Uncertainty. 545 
 
 Blanchard v. Jeiferson, 28 Abb. N. C, 236. 
 
 the plaintiff's cause of action (§ 481 Code Civ. Pro.). He may 
 Lave reason to know the nature of the plaintiff's claim aside from 
 the pleadings, but it is his right to rely only upon tliat which ap- 
 pears ill the complaint itself. An order in accordance with the 
 above will be granted, without costs. 
 
 BLANCHAED v. JEFFERSON. 
 
 JSfeio Yorh Siqjreme Court, General Term, First Dej)., 1892. 
 
 [Reported in 28 Abb. N. C, 236.] 
 
 1. A complaint alleged that on the dissolution of a co-partnership between 
 
 plaintiff and defendant, a balance was struck, and what was due the 
 retiring partner was left by him with defendant, his co-partner, as a 
 loan ; and that the retiring partner was thereafter employed by the 
 other on a salary ; and that upon the amount due for the loan and 
 salary, various sums had been paid to plaintiff, and that a specified 
 balance remained due, — Held, that the complaint set forth not a single 
 cause of action for an accounting, but two, namely, the loan and the 
 claim for salary, which, not arising out of the same transaction, were 
 distinct causes of action ; and a motion to compel separate statements 
 must be granted. 
 
 2. In stating such causes of action separately, it need not, however, be 
 
 alleged what amount was paid upon each cause of action, or what was 
 due upon each : but it is proper after stating the causes of action 
 separately to plead the payments and balance due plaintiff as facts 
 common to both causes. 
 
 Appeal from an order of the Special Term requiring plaintiffs 1 
 to make their complaint more definite and certain. The action 
 was brought by Henry B. Blanchard and others against Susan 
 Jefferson individually and as executrix. 
 
 The complaint alleged that the defendant and plaintiff's 
 testator entered into a co-partnership in 1874, and that the 
 co-partnership was continued until January, ISSl, when it was 
 dissolved by mutual consent, and upon the date of the dissolution 
 the accounts between the co-partners were settled and balanced, 
 and there was due the plaintiff's testator $14,651.93 from said 
 
 35 
 
546 Abbott's Select Cases on Code Pleading. 
 
 Blanchard v. Jefferson, 28 Abb. N. C, 236. 
 
 co-partnership and that it was agreed between the defendant and 
 plaintiff's testator that such balance should remain on deposit in 
 the business and as a loan to the defendant at the legal rate of 
 interest. 
 
 The complaint further alleged that thereafter the plaintiff's 
 testator was employed by the defendant at a salary of §3,000 per 
 annum, and that from time to time various amounts were paid 
 to plaintiff's testator on account of said salary and on account of 
 his said deposit until 1887, since which time no payments have 
 been made, and that there is due for and on account of said 
 deposit and said loan the sum of §;16,84:5.06. 
 
 Defendant moved the court below to make the complaint 
 more definite and certain by separately stating and numbering 
 the facts constituting each cause of action set forth in the com- 
 plaint, and the court made an order requiring the plaintiffs to 
 make the complaint more definite and certain by separately 
 stating and numbering the facts constituting each cause of action 
 set forth in said complaint, and alleging and stating the amount 
 paid by the defendant for and on account of each cause of action 
 and the amount claimed by the plaintiff's for and by reason of 
 each cause of action alleged in said complaint. 
 
 O'Beien, J. [stating the facts as above]. The question pre- 
 sented upon this appeal is necessarily dependent upon one or the 
 other of two views we may take as to whether the complaint 
 states one or two causes of action. 
 
 If the appellant's contention is correct, that but one cause of 
 action is set forth, namely, an action for an accounting, then the 
 order appealed from should not have been made. 
 
 We do not think, however, that the complaint can be so con- 
 strued. ]t seems to us that the complaint contains two causes 
 of action, one for an alleged balance claimed to be due upon the 
 dissolution of the co-partnership, which was deposited with the 
 defendant as a loan, and the other for salary claimed to be due 
 said plaintiff's testator on a contract of employment after the 
 dissolution of the co-partnership. 
 
 These two causes of action are independent, distinct and 
 separable. They did not arise out of the same contract or trans- 
 
III. Technical Rules. (9 a) ladefiniteness and Uncertainty. 547 
 
 Blaachard v. Jefferson, 38 Abb. N. C, 336. 
 
 action, but each arose out of separate, distinct and independent 
 acts and contracts. 
 
 One cause of action is purely for money loaned, and the other 
 for salary under a contract of employment. 
 
 If our construction of the complaint is right, it would follow, 
 under section 483 of the Code, that the facts constituting each 
 cause of action should be separately stated and numbered. So 
 much, therefore, of the order as requires this should be affirmed. 
 
 But the remainder of the order, which requires that the com- 
 plaint should allege and state the amount paid by the defendant 
 for and on account of each cause of action, and the amount 
 claimed by the plaintiff for and by reason of each cause of action 
 alleged in said complaint, should be reversed for the reason that 
 it is entirely competent, after stating two separate and distinct 
 causes of action, for the plaintiff to allege that there was paid 
 thereon from time to time an amount which can be specified, and 
 that there is a balance due thereon as claimed in the complaint. 
 
 That this form of pleading is correct is shown by the facts 
 appearing that the amounts due upon these two several causes 
 of action were from time to time lessened by payments made 
 thereon which were not appropriated by either the debtor or 
 creditor to either claim in particular ; so that it would be impos- 
 sible for the plaintiff to state just what amounts were paid on 
 one or the other of these claims. 
 
 It would appear that the credit was given the plaintiff by the 
 defendant for the amount of both claims, and from time to time 
 as moneys were paid they were debited against the credit thus 
 created and the balance held as the amount due plaintiff upon 
 both claims. 
 
 The order appealed from should be modified accordingly, 
 without costs to either party on this appeal. 
 
 Van Betjnt, P. J., and Patterson, J., concurred. 
 
548 Abbott's Select Cases on Code Pleauing. 
 
 Difference between an Action on an Account and for an Accounting. 
 
 NOTE ON THE DIFFEEEJSTCE BETWEEIST AN ACTION 
 ON AN ACCOUNT AND FOR AN ACCOUNTING. 
 
 An action on an account stated, or for a debt resting in account, is 
 quite different from an action for an accounting. The latter is appropriate 
 where defendant stands in a relation or under a contract which imposes 
 upon him the affirmative duty of rendering an account, and substantiating 
 its items. The burden is on plaintiff to prove that defendant is under a 
 duty to account. This is to be done at the hearing, and if the duty is 
 made out an interlocutoi-y judgment requiring defendant to perform this 
 duty is awarded, and the cause then proceeds, usually before a referee, to 
 have the account taken and stated, and in this part of the case the burden 
 is on defendant to render and support the account, as it has been adjudged 
 to be his duty to do. Such a cause of action is appropriate for a bill in 
 equity, and, under the Code, for an action of an equitable nature, and in 
 such action an arrest may be granted by the court if defendant threatens 
 to leave, etc., and thus render the desired interlocutory judgment fruitless 
 (Code Civ. Pro., §550). And interlocutory judgment may usually be 
 enforced by proceedings for contempt (§ 1242). 
 
 An action upon an account stated (see Graham v. Camman, p. 91 of 
 this vol.), or for a debt resting in account (see Ensign v. Nelson, p. 287 of 
 this vol.), is an action on a common law cause of action in which the 
 burden is on the plaintiff to prove not only his right to recover, but the 
 amount also ; and the cases in which equity has jurisdiction are only 
 those where the account is so complex that a jury is not a fit tribunal to 
 try the cause ; and even then, under our statutes allowing a reference of 
 such causes, it is discretionary for a court of equity to decline to exercise 
 its concurrent jurisdiction and leave the plaintiff to an action of a common 
 
 law nature. 
 
 This very sensible decision accords in principle with other recent 
 decisions that facts which are matter of inducement to each of several 
 causes of action, such as the incorporation of a party, or the legal capacity 
 of a party executor, etc., may be stated in a preliminary or introductory 
 part of the complaint, before the "separate statement" of each cause of 
 action, and without being repeated in them. The rule that each cause of 
 action'must be stated so as to be complete in itself, either by embodying 
 ■ all the necessary facts, or by express reference to a preceding caiise of 
 action in which they are stated, I understand to be a rule of judicial 
 convenience founded on the fact that otherwise the striking out of one 
 cause of action by motion or its withdrawal might leave a complaint 
 insufficient on its face. But such results cannot follow where the facts 
 common to several causes of action are stated once for all, either, as in 
 the case of capacity of parties, in the beginning of the complaint, and 
 before commencing the statement of the first cause of action, or, as in 
 case of unappropriated payments, stated at the end of the complaint after 
 the close of the last cause of action, as in the text. It is upon the same 
 principle that one demand of relief suffices for several causes of action. 
 
III. Technical Rules. (9 b) Bill of Particulars. 549 
 People V. Tweed, 63 N. Y., 194. 
 
 PEOPLE V. TWEED. 
 
 New York Court of Af ■peals, 1875. 
 
 [Reported in 63 N. Y., 194.] 
 
 1. In an action to recover from defendant moneys which he and others 
 acting as public officers had peculated from a city treasury by neglect 
 to audit, and by auditing and allowing exaggerated and excessive 
 claims, defendant is not entitled as matter of right to a bill of particu- 
 lars showing what part of each claim is alleged to be excessive and 
 fraudulent ; but the question whether particulars should be furnished 
 is in the discretion of the court, and its order therefore will not be 
 reviewed in the Court of Appeals. 
 
 3. If defendant, on moving to correct the plaintiff's complaint, takes an 
 extension of time to answer or demur, until a specified period after 
 the amended complaint sought for shall have been served, and, on an 
 appeal from an order granting this relief, he obtains no stay of pro 
 ceedings or other extension, his extension falls with the reversal of 
 the order by the General Term ; and if the time to answer or demur 
 has then expired, he is in default. 
 
 3. The General Term on reversing the order may impose such terms 
 
 respecting leave to answer or demur as it may deem proper. 
 
 4. In a complaint to I'ecover from defendant moneys peculated by con- 
 
 spiracy between himself and others, obtaining payment of unaudited 
 claims or excessive claims fraudulently audited, allegations of negli- 
 gence and of fraud are not separate causes of action, but only a 
 statement of various means by which the conspiracy was carried out. 
 
 5. In such case the various claims or payments are not separate causes of 
 
 action, but they may all be regarded as a series of acts in connection 
 with the general conspiracy alleged. So held, even though only one 
 of the alleged conspirators was made defendant, and although the 
 various acts might have been treated as separate offenses on an 
 indictment in a criminal action. 
 
 6. In such a case the city from whose treasury the moneys have been 
 
 embezzled had been joined as a co-defendant, upon a mere general 
 allegation that it had or claimed some interest in the demand sued on. 
 Held, that the principal defendant had no right to require this 
 general allegation to be made more definite and certain. 
 
 The people of the State brought an action against William M. 
 Tweed and others to recover moneys which he, in confederation 
 with others as officers of the city and county of New York, had 
 peculated from the city treasury ; and the action was held not 
 maintainable because the people were not the proper plaintiffs. 
 (People V. Ingersoll, 58 IST. Y., 1.) 
 
 1 
 
550 Abbott's Select Cases on Code Pleading. 
 
 People V. Tweed, 63 N. Y., 194. 
 
 The Legislature tken passed an act (L. 1875, p. 43, c. 49), 
 known as the Peculation Act, or Tilden Act, and which has 
 been since then embodied in Code Civ. Pro.. §§ 1969, 1971, etc. 
 (and the right to arrest and attachment in which was secured 
 by §§ 637 and 549, sub. 3, respectively). 
 
 Under that act of 1875, the people brought this second action 
 against Tweed for the same cause, seeking to recover upwards of 
 six millions of dollars ; and joined the city as a co-defendant. 
 
 The nature of the complaint appears in the above head-notes ; 
 it closed with this allegation, "That the said defendants, ' The 
 Mayor, Aldermen and Commonalty of the City of New York,' 
 set up and pretend to some right or interest in the premises." 
 
 Annexed to the complaint were schedules of numerous war- 
 rants paid, and of the claims alleged to have been unaudited or 
 fraudulently audited. 
 
 Defendant made several successive motions, which were, how- 
 ever, heard together as one — seeking a bill of particulars of what 
 parts of the accounts and -claims were claimed to be false, ficti- 
 tious or fraudulent ; also to have the complaint made more 
 definite and certain as to what right or interest the city claimed ; 
 also to have it made more definite and certain whether every 
 claim mentioned was fraudulent, and in what respect, and 
 whether wholly so or in respect to an excess, and if the latter, 
 what part ; also to set aside the complaint because several causes 
 of action were not separately stated and numbered ; also to strike 
 out as irrelevant and redundant parts relating to the alleged 
 neglect to audit, and parts alleging any conspiracy ; also to com- 
 pel plaintiffs to elect which of the 151 claims they would proceed 
 for, and to strike out the others ; also to compel them to elect 
 whether to proceed for neglect to audit, or for fraudulent 
 auditing. 
 
 After the argument of the motions, and before the decision, 
 plaintiffs' attorney gave defendant the following stipulation : 
 " It is hereby consented that the time for the defendant Tweed 
 to answer, demur or take any other action which he may be 
 advised is extended until five days after the entry and notice of 
 an order iipon the motions argued before Mr. Justice Donohue, 
 on June 1, 1875." 
 
III. Technical Rules. (9 b) Bill of Particulars. 551 
 People V. Tweed, 63 N. Y., 194. 
 
 The Supreme Court at Special Term made an order of which 
 the ordering parts were as follows : 
 
 " First. That the plaintiffs serve upon the attorneys for the 
 defendant Tweed, within twenty days from the entry of this 
 order and notice thereof, an amended complaint, wherein : 
 
 " 1. They shall specify what right or interest in the premises 
 The Mayor, Aldermen and Commonalty set iip or pretend to. 
 
 " 2. They shall either strike out so much of the complaint as 
 sets forth the alleged neglect to audit the claims against the city, 
 and especially that portion thereof \Jiere referring to allegations 
 of neglect to audit'], or shall state in the complaint that they do 
 not rely upon the neglect to andit as a cause of * action ; or if 
 they elect to sae for the alleged neglect, they shall strike out so 
 nmeh of the complaint as sets forth any fraud, conspiracy or 
 combination on the part of the said Tweed and Watson. 
 
 ''^Second. That the plaintiffs serve upon the attorneys for 
 defendant Tweed, within twenty days from the entry of this order 
 and notice thereof, a bill of partiwilars of the plaintiffs' claim 
 setting forth in full and in detail, first, the whole of such parts 
 of, and items in, each of the bills, accounts, vouchers or warrants 
 mentioned in the complaint as they claim to have been false ; 
 and, second, the whole or such parts of items as they claim to 
 have been fictitious ; and, third, the whole of such parts of items 
 as they claim to have been fraudulent ; and setting forth in each 
 ease the parts, portions or items of such bills, accounts, vouchers 
 or warrants as they claim represent supplies, materials or labor 
 not furnished to the plaintiffs, giving the description, date and 
 amount thereof, and such parts, portions or items as they claim to 
 have been overcharged, or in any other respect false or erroneous, 
 stating the amounts and descriptions of supplies, materials and 
 labor actually charged, and the prices at which they were chai'ged, 
 and also setting forth the prices at which it is claimed they should 
 have been charged. 
 
 " Third. That so much of said motions as are not herel)y 
 granted are denied. 
 
 " And it is further ordered that the time for the defendant 
 Tweed to answer, demur or take any other action to which he 
 may be entitled, is extended until the expiration of twenty davs 
 
552 Abbott's Select Cases on Code Pleading. 
 
 People V. Tweed, 63 N. Y., 194. 
 
 10 after such amended complaint and such bill of particulars shall 
 have been served upon his attorneys." 
 
 Plaintiffs appealed to the General Term from the whole of this 
 order except so much as denied a part of the motions ; and from 
 that part defendant Tweed appealed. 
 
 The General Term reversed the order of the Special Term so 
 far as it granted any of defendant's motions, and affirmed it so 
 far as it denied them. 
 
 Davis, P. J. \_hi the oourse of his opinion said] : It would, 
 under the former system of practice, have been sufficient to have 
 averred an indebtedness for so much money had and received to 
 and for the use of tlie city, and under such averment to have 
 shown the process by which Tweed and his confederates obtained 
 the money which, ex cequo et bono, he and they are bound to 
 return. 
 
 The complaint in this case ^ets forth in larger detail substan- 
 tially the same grounds of action, and it avers the process and 
 pretenses under and by means of which the wrongdoers are 
 
 12 alleged to have gotten possession of the money ; and as a part of 
 them it shows that Tweed held an official position, in which it 
 was his duty to have audited all claims of that kind against the 
 county of New York, and thereby protect the treasury against 
 false claims, and that he used that position — by a false pretense 
 of auditing when in fact no audit was made — as one of the steps 
 to enable himself and his co- conspirators to defraud the county 
 of the moneys now sought to be recovered. There are in the 
 complaint no separate causes of action ; and the mere recital of 
 the various acts and pratices, official or individual, canncit with 
 
 -''-' propriety be said to be the averment of distinct and incon- 
 sistent causes of action. If the pleader, for greater caution, has 
 gone more largely into detail in describing the process and prog- 
 ress of the fraud set forth, that is no good reason for compelling 
 him to elect between several allegations, all of which only lead 
 up to the general averment which constitutes the real gi'avamen 
 of his complaint. The order striking out or compelling an elec- 
 tion can have no other effect than to embarrass the ca^e on the 
 trial by restricting the evidence essential to a complete history of 
 
15 
 
 ll\. Technical Mules. (9 b) Bill of Particulars. 553 
 People V. Tweed, 63 N. Y., 194. 
 
 the transactions to such portions as may be contained in the aver- 14 
 
 ments which will still remain in the complaint. 
 
 ***** * 
 
 There are several substantial reasons why those portions of 
 the order which reqiiire the service on the defendant's at- 
 torneys of the bill of particulars specified therein should not be 
 allowed to stand. First, it is clearly apparent, from the papers 
 before us, that it is not in the power of the plaintiffs to comply 
 with many of the requirements of the order. It is shown that, 
 to a great extent, the conduct of the defendant has made such 
 compliance impossible. It is not contradicted that he required 
 or instigated his confederates to burn and destroy the books and 
 papers which contained all the entries that existed of any real 
 claims. Not only the books and papers that contained such 
 comparatively inconsiderable items are thus put beyond the 
 reach of plaintiffs, but the enormous false accounts which 
 were presented, and upon which the moneys sued for were 
 obtained, are shown to have been, with a slight exception, 
 feloniously taken from the public custody, and doubtless de- 
 stroyed, by some person interested in their destruction. Upon 16 
 these uncontradicted statements of the papers the defendant 
 stands as a despoiler of evidence, and his right to demand 
 particulars of the contents of books and papers of his con- 
 federates rests on no solid foundation. He should, at least, 
 exculpate himself from all connection with the spoliation, and 
 establish with satisfactory certainty that the plaintiffs have the 
 means of furnishing the particular contents of the destroyed 
 books and accounts before he asks that their suit be perpetually 
 arrested till such particulars be served. Second, the order re- 
 quires that the bill of particulars shall not only set forth the 
 particulars of plaintiffs' claims, but shall set forth " in full and in 
 detail, first, the whole of such parts of, and items in, each of the 
 bills, accounts, vouchers or warrants mentioned in the complaint 
 as they claim to have been false ; and, second, the whole or such 
 parts of items as they claim to have been fictitious ; and, third, 
 the whole or such parts of items as they claim to ha^'e been 
 fraudulent ; and setting forth in each case the parts, portions or 
 items of such bills, accounts, vouchers and warrants as they 
 
554 Abbott's Select Cases on Code Pleading. 
 
 People V. Tweed, 63 N. Y., 194. 
 
 18 claim represent supplies, materials or labor^not furnished to the 
 plaintiff, giving the description, date and amount thereof, and 
 such parts, portions or items as they claim to have been over- 
 charged, or in any other respect false or erroueous, stating the 
 amounts and descriptions of supplies, materials and labor 
 actually charged and the prices at which they were charged, and 
 also stating the prices at which they should have been charged." 
 The plaintiffs were not parties to the original transactions. 
 Although strangers to them, they are clothed by law with power 
 to sue, as parens pat?'i(E, in cases of such alleged frauds, in order 
 that public wrongs may not go unredressed. If all the papers, 
 books and vouchers referred to in the order, or from which the 
 particulars demanded must be obtained, were in existence, they 
 would still be the public documents of the city of New York or 
 the private books and papers of the alleged confederates of the 
 defendant Tweed ; and in that case it would not be the legitimate 
 office of an order for a bill of particulars to require what is 
 demanded by this order. The defendant would be directed to 
 seek such facts where the plaintiff's must themselves seek them, 
 
 20 in the documents, books and papers not under the control of 
 plaintiffs, but in the public records or private books and papers 
 of others. A different rule would put it in the power of the 
 defrauding parties to make all efforts of the State to recover 
 under the Act of 18 75 difficult and perhaps wholly nugatory. 
 The collusion of officials or the connivance of the confederates in 
 wrong, by doing precisely what appears in this case to have been 
 done, would put it in the power of a party sued, by obtaining 
 such an order as that above recited, with a stay of all proceedings 
 till compliance with it on the part of the plaintiffs, to defy the 
 
 "* State, and laugh at all its efforts to enforce the remedies given 
 to it by the statute. But it is of no legal consequence tliat the 
 defendant should have the particulars granted by the order. 
 The complaint alleges in clear and plain terms that all the claims 
 ujjon which the defendant and his confederates obtained the 
 money were wholly false and fraudulent. There is no alleijation 
 or concession that any part of them was lawful or just. Upon 
 such allegations there is no ground for a demand that the plaintiff 
 shall state what parts of fueli claims were just and legal, or for 
 
III. Technical Rules. (9 b) Bill of Particulars. 555 
 
 People V. Tweed, 63 N. Y., 194. 
 
 iteijjs and services actually furnished or performed. It is not the 22 
 office of a bill of particulars to enable the defendant to impeach 
 or defend the claims asserted by plaintiffs' complaint (Drake v. 
 Thayer, 5 Eobt., 694 ; Fullerton v. Gaylord, Y id., 551^, but to 
 ascertain what claims are asserted and demanded. So, where one 
 sues on an account for moneys loaned, the defendant cannot 
 demand a statement of what sums have been repaid (Eyckman 
 V. Haight, 15 Johns., 202), or what portions of the loans were 
 usurious, or what credits ought to be allowed for any reason 
 against the loans (Williams v. Shaw, 4 Abb. Pr., 209). If the 
 demand be for $10,000 of moneys lent, the defendant may 
 demand the items that make up that sum, with dates and amounts 
 of the respective sums, and the plaintiff will be required to 
 specify such dates and amounts of loans. But if he avers that 
 $10,000 is due and unpaid, he cannot be compelled by bill of 
 particulars to contradict that averment by showing that the 
 amount actually loaned is not due because some portion has been 
 paid, or some credit or counterclaim exists against it. 
 
 Daniels, J., concurred, and Beadt, J., delivered an opinion 
 to the same effect. 24 
 
 On settlement of the order, the General Term adhered to the 
 reversal of the clause extending time to answer or demur ; and, 
 while denying the motion so far as it granted defendant relief, 
 and affirming it so far as it refused him relief , they added a direc- 
 tion that he have leave to answer \\'ithin seven days. 
 
 On this point the court said : " The stipulation given by 
 plaintiffs' attorney, after the hearing of the motion at Special 
 Term, related in terms to that motion, and obviously was given 
 to meet the contingency of a denial of the motion. That stipu- 
 lation was sujjerseded by an order adverse to plaintiffs, and which 
 extended the defendant's time to ' answer, demur, or take any 
 other action to which he might be entitled,' until twenty days 
 after the service of an amended complaint and of the bill of par- 
 ticulars. That order has been wholly reversed on this appeal. 
 There ^vas no stay of plaintiffs' proceedings by the order, and 
 the strict legal result is that the defendant's time to answer or 
 demur has expired." 
 
 Defendant appealed. 
 
556 Abbott's Select Cases on Code Pleading. 
 
 People V. Tweed, 63 N. Y., 194. 
 
 26 The Court of Appeals dismissed the appeal. 
 
 Miller, J. The questions arising upon this appeal are- purely 
 legal and must be disposed of according to strict legal rules. 
 
 As to that portion of the order in relation to a bill of particu- 
 lars, it is sufficient to say that it was a matter purely discretionary, 
 as was recently held by this court in the case of Tilton r. Beecher, 
 59 N. Y., 176. ISTo question arises as to the burden of proof 
 which presents an exception, which takes the case out of this- 
 general rule. 
 
 The refusal of the court to extend the time to demur upon the 
 " ' decision of the appeal from the order of the Special Term was 
 also a matter of discretion, with the exercise of which this court 
 should not interfere. 
 
 The defendant could have demurred to the complaint in the 
 first instance had he chosen to do so, and thus have presented 
 the question as to whether the city was a proper party, as well as 
 such others as could properly arise in that form. As he sought 
 by motion to have the pleading made more specific he has no 
 just ground for complaint that the court, in view of all the facts, 
 28 compelled him to answer. Nor does the stipulation of the plaint- 
 iffs' attorneys in any way affect the question, for it was super- 
 seded by the order of the Special Term which gave the defend- 
 ant time to answer or demur, etc. , until twenty days after the 
 service of an amended complaint. When that order ^vas re- 
 versed on appeal the court had full power to direct what terms 
 should be imposed upon the defendant. 
 
 The complaint does not contain a separate charge for neglect 
 and another for a conspiracy. It purports to give a history of 
 the acts connected with the conspiracy, and therein it appears, 
 ^^ by way of narrative, that the defendant and his associates were 
 justly chargeable with negligence as well as fraud in the per- 
 formance of their official duty. This clearly is not a separate 
 and distinct claim for a neglect of duty upon which the action 
 was based, but a statement of a fact auxiliary to and in aid of 
 the general charge of conspiracy, by means of which the money 
 was obtained. It may be regarded as a part of the alleged con- 
 spiracy and appropriately inserted in presenting its real chai-acter 
 and as constituting a jiortion of the cause of action against the 
 
III. Technical Bides. (9 b) Bill of Particulars. 557 
 People V. Tweed, 63 N. y., 194. 
 
 defendant. Tlie question as to compelling an election, therefore, 30 
 between the charge of conspiracy and the charge of neglect,- 
 <loes not arise. Even if it did, the right to compel an election 
 would also be a matter of discretion of the court to which the 
 application was addressed. 
 
 The learned counsel for the defendant insists that the different 
 acts of fraud referred to in the complaint and specifically stated 
 in the schedule, should be stated separately in conformity with 
 section 167 of the Code [of Procedure]. In this, I think, he 
 is entirely in error. This position is based upon the ground that 
 each of the items constitutes a separate, distinct and independent 
 transaction, and therefore each one of them forms of itself one 
 cause of action. I am at loss to see how such can be the case in 
 an action like the present any more than in a case where the 
 action is brought upon an account composed of different articles 
 furnished at different times and of various amounts. The 
 pleader here alleges, that by virtue of an act of the Legislature 
 it was enacted that all liabilities against the county of New Fork 
 should be audited by certain officers who were named, and l)e 
 ])aid to the parties entitled to receive the same upon the certificate 32 
 of said officers. That, with the intent to cheat and defraud, the 
 defendant Tweed and one Watson did unlawfully and fraudulent- 
 ly combine, conspire and agree together to procure false and pre- 
 tended claims to be set up, allowed and paid in formal compli- 
 ance with the said act. That these pretended claims, falsely 
 alleged and jDurporting to be such liabilities of the county, 
 .amounting to over $6,000,000 as specified in the schedule annexed, 
 which was made a part of the complaint, were in apparent 
 formal compliance with the act, certified to have been audited 
 and allowed when they were not examined or audited ; and 
 •only one meeting of the board of auditors was ever lield, at 
 which no accounts, claims or liabilities against the county were 
 presented or considered, or any proceeding had thereat, except 
 that a paper which is set forth was subscribed by said auditors. 
 That said Watson, or his assistants, acted upon said pretended 
 accounts or claims in the schedule and attached certificates 
 to the same, and that they were all false, fictitious and fraudu- 
 lent and did not represent any liabilities against the county 
 
558 Abbott's Select Cases on Code Pleading. 
 
 People V. Tweed, 63 N. Y., 194. 
 
 34 which were directed to be audited, provided for or paid within 
 the meaning of the aOt. Some other allegations are made not 
 material to be stated. As the complaint alleges that all the 
 items set forth in the schedule were fraudulent and certified in 
 pursuance of a general conspiracy, a statement in detail of each 
 one separately would be unnecessary, and there is no rule of law 
 which requires such detailed particularity in stating a cause of 
 action of this character. At common law, in ordinary actions of 
 assumpsit, a general statement of an account comprehending 
 numerous causes of action is regarded as sufficient. There is 
 less reason for requiring a more particular statement under the 
 Code, which was designed to simplify pleadings, and would fail 
 to accomplish its purpose if so great and tedious prolixity was 
 demanded. Even although in an indictment under the strict 
 rules applicable to criminal pleadings, separate counts are re- 
 quired for each item. This rule bears no analogy to a case where 
 a cause of action arises embracing a large number of items. The 
 auditing of each item of the entire claim did not constitute a 
 single act of fraud of itself, which necessarily and for that reason 
 
 36 must be prosecuted as a separate cause of action, but is one of a 
 series of acts in connection with a general conspiracy alleged, 
 which forms a part of the entire action and the whole demand 
 of the plaintiffs. 
 
 The case of Forsyth v. Edminston (11 How. Pr. E., 409), 
 which is cited, bears no analogy to the case at bar, and presents 
 entirely different aspects. The question now presented did not 
 arise, and none of the cases referred to are in conflict with the 
 views expressed. It should be entirely clear upon a motion to 
 the court to compel the plaintifl: to make his complaint more deli- 
 
 ^ ' nite and certain, that the pleading is insufficient, before the court 
 should interfere, and unless such is plainly the case, the relief 
 demanded should be refused. It is not app-irenthere that there 
 was any defect in this respect, and as such applications are ad- 
 dressed very much to the discretion of the court, the decision of 
 the General Term is final, and no appeal lies therefrom, to this 
 court. (Matter of Duff, 10 Abb. [N. S.J, 416.) 
 
 It was not necessary that the interest of the city should be 
 stated specifically, and it was quite enough to set forth that it 
 had some right or interest in the premises. 
 
III. Technical Rules. (9 b) Bill of Particulars. 559 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 From the observations made, and independent of any other 38 
 considerations, it is evident that the decision of the General 
 Term was made upon all the points presented in the exercise of 
 a legal discretion existing in that court, and no legal right having 
 been violated, it is not the subject of review in this court. (See 
 Howell V. Mills, 53 IST. Y., 335 ; Livermore v. Bainbridge, 56 id., 
 72; Tabor v. Gardner, 41 id., 232.) 
 
 The appeal should, therefore, be dismissed, with costs. 
 
 All concurred ; Allen and Earl, J J., in result. 
 
 Appeal dismissed. 
 
 DWIGHT V. GERMANIA LIFE INS. CO. 
 
 Neio York Court of Appeals, 1881. 
 [Reported in 84 N. Y., 493 ; afC'g in effect 33 Hun, 167.] 
 
 1. The court has inherent power to order either party to furnish a bill of 
 
 particulars when justice demands that the adverse party should be 
 apprised of the matter upon which he is to go to trial with more par- 
 ticularity than is required by the rules of pleading. 
 
 2. An order for particulars maj' contain a provision that the party be pre- 
 
 cluded from giving evidence on the trial of matter called for by the 
 bill of particulars and not specified in the bill. 
 
 3. An affidavit to obtain a bill of particulars is not necessarily insufficient 
 
 merely because it shows that the applicant knows some of the par- 
 ticulars. 
 
 4. In an action on a life policy, where the insurer pleads that tlie deceased 
 
 had bronchitis and spitting of blood, it is not improper to order par- 
 ticulars of the times and places at which he had them, nor to order 
 the particulars of other applications for insurance, the making of 
 which has been pleaded by defendant as a breach of the warranty 
 given bj' the deceased. 
 
 Action on a policy of life insurance. 
 
 The complaint, after alleging the defendant's incorporation, 
 continued as follows : 
 
 ".That on or about the 28th day of August, 1878, the defend- 
 ant, in consideration of the payment to it by Walton Dwight, of 
 
560 Abbott's Selhct Cases on Code Pleading. 
 
 Dwiglit V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 Windsor, Broome county, N. Y., on the delivery of said policy, 
 of the sum of one hundred and thirty-one dollars and fifty-five 
 cents, and of the quarterly payment to be made of a like amount on 
 or before noon of the 26th day of jSTovember, February, May and 
 August in every year during the continuance of the policy, 
 assured the life of said Walton Dwight in the sum of fifteen 
 thousand dollars, for the term of his natural life, by its policy, 
 number 69,096, bearing date August 28th, 1878, a copy of which 
 policy is hereto annexed as a part of this complaint and marked 
 ' Exhibit A,' and therein promised and agreed to pay at its office 
 in the city of New York, within sixty days after due notice and 
 proof of the death of said Walton Dwight, the said sum assured 
 (the balance of the year's premium, if any, being first deducted 
 therefrom), to the executors, administrators or assigns of the said 
 assured. 
 
 " That on or about the 15th day of INovember, 1878, said 
 Walton Dwight died at Binghamton, N. Y., leaving a last will 
 and testament, in and by which the plaintiffs were duly appointed 
 executrix and executors thereof. 
 
 " That thereupon and thereafter there was no officer qualified 
 to act as surrogate in the matter or proceedings of the probate of 
 said last will and testament in the surrogate's court of said 
 county of Broome, and that the surrogate of said county there- 
 upon duly made a certificate of such disqualification, specifying 
 the grounds thereof, and the name of Charles A. Clark, surrogate 
 of the adjoining county of Tioga, and filed the same in his office ; 
 and that other and all necessary proceedings were duly had ; so 
 that jurisdiction became vested in said Charles A. Clark, surro- 
 gate ; and that on or about the 30th day of December, 1878, said 
 last will and testament was duly proved and dul}' admitted to 
 probate by said Charles A. Clark, surrogate, and letters testa- 
 mentary thereon duly issued and granted to the plaintiffs as such 
 executrix and executors by said Charles A. Clark, surrogate ; and 
 the plaintiffs thereupon duly qualified as such executrix and 
 executors, and entered upon the discharge of the duties of such 
 office, and still are the duly appointed and constituted executrix 
 and executors of the last will and testament of said Walton 
 Dwight. 
 
III. Technical Rules. (9 b) Bill of Particulars. 561 
 Dwig-htr. Gei-mania Life Ins. Co., 84 N. Y., 493. 
 
 " That on or about the 20th day of January, 1879, and more 
 than sixty days prior hereto, the plaintiffs, as such executrix and 
 executors, duly gave the defendant due notice and proof of the 
 death of said Walton Dwight. 
 
 " That said Walton Dwight duly conformed and complied 
 with all the provisions and agreements contained in said 
 policy, to be kept and performed by him ; and that the 
 representations contained in the application for said policy -were 
 in all respects true ; and that said policy was valid and in full 
 force and effect at the time of the death of said Walton 
 Dwight; and that such death was not caused by any of the 
 causes excepted in said policy, and that said Walton Dwight has 
 not done any of the acts stated in said policy as rendering the 
 same void ; and that said policy has not ceased and become null, 
 void and of no effect by reason of any act, thing or omission on 
 the part of said Walton Dwight or otherwise ; and that the 
 plaintiffs, as such executrix and executors, have made due and 
 sufficient demand, and have duly done and performed all things 
 requisite to be done and performed upon their part. 
 
 '• That the defendant has duly refused to pay said sum or any 
 part thereof, and that no part of the said sum assured has been 
 paid, and that there is now due and owing to the plaintiflfs from 
 the defendant the sum of fifteen thousand dollars, with interest 
 thereon from February 22d, 1879, less the three quarterly 
 payments of $131.65 each. 
 
 "Wheeefoee," etc. 
 
 \_A copy of the policy was annexed.'] 
 
 The answer, among other things, contained the following : 
 
 " The said defendants . . . deny that the said Walton 
 Dwight duly performed or complied with all the provisions and 
 agreements contained in said policy, to be kept and performed 
 by him ; and they, upon information and belief, deny that the 
 representations contained in the application for said policy were, 
 in all respects, true; and they particularly deny that the 
 representations contained in the application for said policy, 
 touching the previous condition of health of the said Dwight, 
 and especially in regard to his ever having had spitting of blood 
 or bronchitis, and the representations respecting other insurances 
 
 36 
 
562 Abbott's Select Cases on Code Pleading. 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 10 upon the life of the said Walton Dwight, or any or either of 
 them, were or are true." 
 
 In a second defence the answer stated, among other things, 
 that upon the application for the policy certain questions were 
 put to said "Walton Dwight, and answers made by him, among 
 which were the following : 
 
 '' 16. Has the party [meaning the said Walton Dwight] now, 
 or has the same ever had, any of the following diseases : spitting 
 of blood, bronchitis" \naming others also\. 
 
 " And in answer to said question said Walton Dwight denied 
 that he had ever had any of the said diseases specified, except 
 rheumatism." 
 
 \^A7nong other questions and answers the following also were 
 pleaded : ] 
 
 " 6. C. Whether an insurance has been applied for with this 
 or any other company, without having led to an insurance ? If 
 so, with which companies? And for what reason did the 
 application not lead to an insurance ? And that to said question 
 the said Dwight answered ' No.' 
 12 {Here follotoed allegations to the effect that it was agreed that 
 the answers to the application should he the hasis of the policy , 
 and untruth in them should amid it, and that tach answer was 
 material to the rlsTc. It was then alleged :'\ "That each and 
 every of the said answers and statements contained in said 
 application, and hereinbefore specified, was false and untrue in 
 the following respects "... {among others'] ..." That 
 prior to the application for the said policy, the said Walton 
 Dwight had had bronchitis and spitting of blood ; . . . and 
 that at the time when said application was made, the said 
 Dwight had other insurances upon his life in addition to those 
 specified hj him, which fact he suppressed, and had made 
 applications for insurance to one or more companies to this 
 defendant unknown, which had [not] led to an insurance." 
 
 The plaintiffs, on affidavit to the condition of the cause, and 
 their lack of knowledge or information as to the times and 
 places at which defendants claimed that Dwight had bronchitis 
 and spitting of blood ; and as to Avhat insurances or applications 
 
III. Technical Rules. (9 b) Bill of Particulars. 563 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 for insurance, in addition to those specified, defendant claimed 1^ 
 there had been, etc., moved for a bill of particulars on those 
 points. 
 
 Defendants opposed the motion on an affidavit of their 
 counsel that he was still engaged in collecting evidence, and 
 their evidence as to the diseases, so far as they yet knew, 
 consisted of declarations and admissions of Dwight, made in 
 general language, not specifying precise times and places. And 
 that as to the allegations respecting other insurance also, they 
 were still pursuing their investigations ; and the allegation s . - 
 were as full and specific as they could reasonably be made under 
 the circumstances and sufficient to prevent surprise on plaintiffs 
 at the trial. 
 
 The Supreme Court at Special Term granted the motion by 
 making an order in these terms : " That the defendant deliver 
 to the plaintiffs' attorney, within twenty days from the entry of 
 this order and notice thereof, a statement in writing, iinder oath, 
 stating the particular times and places at which the defendant 
 intends or expects to prove that said Walton Dwight had 16 
 bronchitis and spitting of blood, or either of them ; also stating 
 what other insurances upon his life, in addition to those specified 
 by him in his application, the defendant intends or expects to 
 prove that said "Walton Dwight, had at the time when said 
 application was made, specifying particularly the name of each 
 company, with the date and amount of each policy ; also stating 
 what applications for insurance to one or more companies 
 which had not led to an assurance, the defendant intends or 
 expects to prove that said Walton Dwight had made at the time 
 when said application for the policy upon which this action is ' 
 brought M'as made, specifying particularly the name of each 
 company to which application had been so made, with the time 
 when made, and the date of each application. 
 
 " And it is further ordered, that the defendant be precluded 
 from giving evidence upon the trial that said Walton Dwight 
 had had bronchitis and spitting of blood, or either of them, at 
 any time or place; and that said Walton Dwight had any 
 insurances upon his life at the time when said application was 
 
564 Abbott's Sklect Cases on Code Pleading. 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 18 made, in addition to those specified by liim in said application ; 
 and that said Walton Dwight had made at the time when said 
 application for the policy upon which this action is brought was 
 made, any applications for insurance which had not led to an 
 insurance, other than is so specified in such bill of particulars." 
 
 The General Term criticised the moving affidavit for not 
 showing that the plaintiffs were not already possessed of the 
 particulars sought for ; but thought it might be held sufficient, 
 for defendants' affidavit did not suggest that plaintiffs were 
 
 19 already informed ; and that particulars ought to be furnished. 
 They, however, modified the order before affirming it by adding 
 the folloAving saving clause : 
 
 " It is further ordered, that neither any bill of particulars 
 which may be furnished pursuant to this order, nor anything in 
 this order contained, shall be so construed as to prevent, or have 
 the effect of preventing the defendants from giving evidence of 
 any declarations or statements, oral or written, made by the said 
 plaintiffs' testator, Walton Dwight, on the subject of his having 
 „„ had bronchitis or spitting of blood at any time prior to the appli- 
 cation for the policy on which this action is founded, and which 
 declarations or statements were general as to the times and 
 places when and where the said Walton Dwight had his ailments, 
 or either of them, or from giving evidence of any other confes- 
 sions of said Dwight, which are otherwise admissible, and which 
 relate to matters set up in defence, which confessions are general 
 as to the times and places of the matters in said confessions men- 
 tioned and confessed." 
 
 21 
 
 The Court of Appeals dismissed defendants' appeal. 
 
 FoLGEE, Ch. J. These appeals from orders directing the 
 defendants to furnish bills of particulars of the matters alleged 
 as defences, bring up two questions. First, is there power in 
 the Supreme Court to grant such an order in such a case, and is 
 such an order, therefore, discretionary with that coiirt, and 
 prima facie not reviewable here ? Second, if that question be 
 answered in the affirmative, are these orders an abuse of the dis- 
 cretion of the court, so as to make them the subject of review by 
 this court ? 
 
III. Technical Rules. (9 b) Bill of Particulars. 565 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 First. — Unless changed by statute law, the power of the 22 
 Supreme Court to order bills of particulars is not confined to 
 actions upon demands for money made up of various items. It 
 extends to all descriptions of actions, when justice demands that a 
 party should be apprised of the matter for which he is to be put 
 for trial, with more particularity than is required by the rules of 
 pleading. (Tilton v. Beecher, 59 IST. Y., 176.) Nor is this 
 power confined to an exercise of it in behalf of the defendant 
 in an action. In favor of the plaintiflE, as well, the court may 
 order the defendant to give the particulars of the facts which he 
 expects to prove. Thus, on a plea of fraud and consequent 
 repudiation by the defendant, he has been compelled to give 
 particulars of the acts of fraud and repudiation (McCreight v 
 Stevens, 1 H. & C, 454 ; Pitts v. Chambers, 1 F. & F., 684) ; on 
 a plea of undue influence, particulars of those exerting +he in- 
 fluence (West V. "West, 4 S. &. T., 22 ; Jackson v. Hillas, 4 Irish 
 Eq., 60) ; on a plea of justification to an action for a libel charg- 
 ing perjury, particulars of the matters of justification (Jones v. 
 Bewicke, L. P., 5 C. P., 32 ;) in ejectment (Doe v. Newcastle, 
 7 T. P., 332, note). The power has been exercised, even in a 24 
 criminal case, in favor of the Commonwealth, and against the 
 prisoner. See Com. v. SneUing (15 Pick., 321"), where, on an 
 indictment for libel, the defendant was ordered to give particu- 
 lars of the instances of misconduct in the person libeled that he 
 expected to prove, and was confined in his proof, on the trial, 
 to the instances definitely specified in the bill furnished. In 
 that case are citations of civil actions in which the defendant 
 was required to give particulars of what he would attempt to 
 prove. It is a power incident to the general authority of the 
 court in the administration of justice {id). It is the same 
 power, in kind, that courts have to grant a new trial on the 
 ground of surprise. The latter is remedial and curative. The 
 former is preventative. But both have the same purpose, to 
 reach exact justice between the parties, by learning just what is 
 the truth, and to learn what is the truth, by giving to each party 
 all reasonable opportunity to produce his own proofs, and to 
 meet and sift those of his adversary. Thus, where, in an action 
 for seduction, the female has sworn to the coition on a particular 
 
566 Abbott's Select Casks on Code Pleading. 
 
 Dvvight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 26 day, affidavits, showing an alibi and surprise, were held to make 
 
 good ground for a uew trial. (Sargent v. , 5 Cow., 106.) 
 
 Now, would the plaintiff there have been in a worse plight if 
 before the trial the court had ordered him to give a bill of the 
 particular occasions on which he expected to prove copulation ? 
 The same end was reached by granting a new trial as could have 
 been by ordering the particulars. And the same rule would ap- 
 ply in the case of a plaintifE seeking a new trial against a defend- 
 ant, for surprise by the testimony of the latter. But it is said 
 that, though the power may once have been in the courts, by 
 reason of recent statutory provisions, it is not there now. The 
 531st section of the new Code touches this subject. It is claimed 
 that by it the power is taken away, if the courts ever had it. 
 That section provides that the court may, in any case, direct a 
 bill of particulars of the claim of either party to be delivered to 
 the adverse party. If it should be conceded that there is no power 
 left in the court other than that which this section gives, still we 
 do not assent to the claim made. The strength of the defend- 
 ants' position is, in the definition they give to the word '• claim," 
 
 2S found in this section. It is contended that the word is synony- 
 mous with " demand," and " cause of action," and that it was 
 intended to express by it only the ground, or cause of action, on 
 which some affirmative relief is asked of the court, and in cases 
 only in which affirmative relief is asked. 
 
 We do not think it so restricted in purpose as that. In our 
 view the claim spoken of by that section, where the case of a 
 defendant is in hand, is whatever is set up by him as a reason 
 why the action may not be maintained against him. The claim 
 of the defendant is that ground of fact which he alleu^es in his 
 ^ answer as the reason why judgment should not go against him. 
 His claim, in the case, is the position he takes in his pleading, 
 based upon the facts he sets up, and the law applied thereto, why 
 he should go without day. We have used the word, in some of 
 its forms, twice in this paragraph, as expressive of a meaning as 
 broad as that, and no doubt have been understood. There is no 
 reason f i »r saying that the intention of the Legislature was to use 
 the word with a narrower meaning. When § 531 was passed, the 
 draughtsmen of the new Code had before them the case of Tilton 
 
III. Technical Rules. (9 b) Bill of Particulars. 567 
 Dwig-ht V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 V. Beecher (suj^ra), and the cases cited in it. That case had 30 
 been decided under the old Code, and with § 158 of that Code 
 in mind. That section does not differ, in substance, from § 531 
 of the new Code. The framers of § 531 knew the power that 
 the courts had to order bills of particulars, as shown by the 
 opinion and judgment in that case. If it was meant by them to 
 take away or narrow that power, there would have been some 
 expression of an intention so to do. "We find no indication, 
 either in the section itself, or in any annotation on the section, 
 that there was such purpose. The general purpose of the Code 
 was, or should have been, to embody, in apt words, a declaration "^^ 
 of the law as it was. If the purpose of any section was more 
 than that, and was to change the law as it was, and to take away 
 judicial power then possessed, we should find some hint of it 
 in the section, or in reports accompanying it, or in annotation 
 upon it. Besides, § 4 does continue, in the courts, the exercise 
 of the jurisdiction and powers then vested in them by law, 
 according to the course and practice of the courts, except as 
 otherwise prescribed. Section 531 is not, in terms, prohibitory 
 of the power, and may not be said to prescribe otherwise. Nor 32 
 is there warrant for the contention, that the Code withholds 
 power, unless the defendant seeks affirmative relief. That would 
 be to make the power depend upon an incident merely. Sup- 
 pose that the defendant, in any case, should, in his answer, ask 
 judgment for a perpetual injunction on the same facts which he 
 set up as a defence. This would be invoking affirmative relief. 
 That alone would not bring the case within § 531, and give 
 power to the courts. The existence of the power is not got from 
 the prayer of the answer, but is inherent in the court, or recog- 
 nized and preserved by the Code, or both. It would not keep in ^^ 
 view the real purpose of ordering particulars, and the real 
 purpose of the existence and exercise of the power, to hold that 
 in such case particulars could be ordered, while, if the defendant 
 waived or struck out his prayer for an injunction, it could not. 
 
 That pui'pose, as we have seen, is to reach justice between the 
 parties by evolving the truth from their discordant statements, 
 and to give the parties every reasonable facility for coming to 
 the trial, fully prepared for all that may be produced by the 
 
568 Abbott's Select Cases on Code Pleading. 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 34 other side. This is just as important, whether .the. matter is set 
 up as a bare defence, or as a basis for a demand for affirmative 
 relief. 
 
 The orders in these cases provide that the defendants be pre- 
 cluded from giving evidence on the trial, of matter not specified 
 in the bill of particulars furnished. It is urged that the Special 
 Term had no power to affix this penalty to a failure or an 
 inability to furnish a complete bill. The contention is based 
 upon the reading of the 531st section. The first clause of that 
 „ provides that on demand a copy of the account pleaded must be 
 furnished. The second clause provides that a failure to do so 
 will preclude from giving evidence of the account. The third - 
 clause provides for an order by the court to furnish a further 
 account when the first one is defective. The fourth clause is the 
 one we have already stated, that the court may, in any case, 
 direct a bill of the particulars of the claim of either party to be 
 delivered. Now because the section does not anywhere but in 
 the second clause speak of a penalty on non- delivery of a bill rif 
 particulars, it is argiied that the Code meant that the courts 
 
 36 should have no power to affix one. Clearly, the courts have 
 power, by the Code, to grant an order for a further account, and 
 for a bill of the particulars of the claim of either party. If the 
 Code keeps from the court the power to affix a penalty to failure 
 to obey its order, it is only by not repeating the clause giving 
 the penalty. That would be to give more force to a demand of 
 a party for an account, than to the order of the court for a 
 further account. This would be absiird. There should follow 
 the same penalty for not furnishing a further account when 
 ordered, as there does for not giving a first account when 
 demanded. There is power in the court to order that it shall 
 follow. And if there is that power in making an order for a 
 further account under the third clause, there is the same power 
 in making an order for the particulars of a claim under the 
 fourth clause. 
 
 The Code did not mean to take away the power, which courts 
 always have had, of affixing a disability to disobedience of such 
 orders. It was needed that it should enact the penalty for 
 failure to comply with a demand of a party, but it was not 
 
III. Teohnioal Rules. (9 b) Bill of Particulars. 569 
 
 Dwight V. Germania Lil'e Ins. Co., 84 N, Y., 49:1 
 
 needed that it should in terms give a power that the courts had 38 
 always possessed. Besides, the bill of particulars is in aid of 
 the pleading ; it is sometimes called an amplification of the 
 pleading. The particulars are considered as incorporated with 
 the pleading (Fleurot v. Durand, 14 Johns., 329 ; Van Vechten 
 V. Hopkins, 5 id., 211), and on production of the order, and 
 proof of the delivery of the bill, the parties are not allowed to 
 give evidence out of it. (Holland v. Hopkins, 2 B. & P., 243 ; 
 Hurst V. Watkis, 1 Camp., 69.) It is an exercise of the same 
 power, to preclude in the order proof of matter not specified in 
 the bill of particulars. It matters not whether the power is 
 exerted by a declaration in the order, or by a ruling from the 
 bench on the trial. 
 
 There are arguments ab inoonvenienti made against the 
 existence of the power. These are drawn from the alleged 
 difficulty of preparing a complete bill of particulars in the short 
 time allowed a defendant to answer, and thereafter to comply 
 with an order ; and from the difficulty of making an exact and 
 comprehensive bill of particulars before full and precise 
 preparation for trial and for proof of the defence has been made. 40 
 These difficulties must attend in greater or less degree any case 
 in which a defendant can be ordered by the court to furnish a 
 bill. As it is shown that there are cases in which the court has 
 power to make an order upon the defendant to give particulars, 
 it follows that these are not legitimate arguments against the 
 existence of power to order, but rather for the favor of the 
 court as to the terms and conditions of the order. 
 
 It is also urged that the allegations of the plaintiffs' affidavits 
 are not sufficient to set the courts in motion. We think the papers 
 before the Special Term were enough to authorize the courts 
 below to entertain the motions. It is said that the plaintiffs 
 state no more in those affidavits than that they do not know 
 to what instances the averment of the defendants' pleadings 
 refer, while they do not state that they do not know of some 
 instances of the same kind with those averred. But grant that 
 the plaintiffs know of instances; they may be fully prepared 
 to show that they are innocuous to their right of action. The 
 instances which they know of may or may not be the same 
 
570 Abbott's Select Cases on Code Pleading. 
 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493. 
 
 42 of which the defendant has knowledge or information ; 
 hence it is for the court to say in its discretion whether they 
 should be informed. Therefore, the affidavits, in averring an 
 ignorance of the one class, while not averring an ignorance of 
 any other, do make a case for the discretion of the court. (See 
 Snelling v. Chennells, 5 DowL, 80 ; s. c, 12 Leg. Obs., 75.) The 
 position of the defendant is, that as it may be assumed that the 
 plaintiffs have knowledge of some instances, it may be further 
 assumed that they must be the same of which the defendant has 
 information ; or, upon another assumption, that the instances do, 
 in fact, exist, and that, therefore, the plaintiff cannot be 
 ignorant of them. It is plain that the first assumption is not of 
 necessity correct. The second is to assume the truth of the 
 very issue to be tried, as it is raised by the verified pleaditfgs 
 of the parties, which were parts of the moving papers. We 
 conclude, then, that the courts below had power to make orders 
 that the defendants furnish statements of the particulars, and 
 that the granting of them rested in the discretion of those 
 courts. 
 
 44 Second. — It remains, then, to inquire whether that discretion 
 has been abused. Taking the cases and the orders in their 
 general aspect, it cannot be said that it has. The defences set 
 up and the manner' of pleading them are such, that manifestly 
 the plaintiff's would go down to trial at some hazard of being 
 taken by surprise, if there were not given to them some more 
 specific statements than the answers open, of the time and place 
 and other circumstances of the occurrences alleged in most 
 general terms. It was a discreet exercise of power to order that 
 more specific statements be given. 
 
 ^^ But objections are made to the terms and conditions of these 
 orders, as directing either impossibilities, or acts that will be 
 highly detrimental to the defence of the defendants. The 
 orders direct that the bill state the particular times and places 
 at which the deceased had bronchitis and spitting of blood. If 
 this was to be so construed as requiring a statement of the 
 very day or days, and the very houses of abode or buildings of 
 business, on and at whicli he had the disease or raised the blood, 
 there would be force in the complaint that it is impossible. It 
 
III. Technical Rules. (9 b) Bill of Particulars. 571 
 Dwight V. Germania Life Ins. Co., 84 N. Y., 493, 
 
 is not to be so construed. The times, in a true construction of 46 
 the order, are the spaces of time, and the places are the municipal 
 localities. Surely if the defendants have been informed so as to 
 aver, and verify the averment, that Dwight had bronchitis and 
 spit blood, they m.ust have information specific enough to com- 
 ply with such a requirement. Nor would a statement thereof 
 imperil a defence beyond a peril to which it should be exposed, 
 that of having the testimony to sustain it met \ij countervailing 
 testimony covering the same space of time and as to the same 
 localities. It surely is not more hazardous than to have met the ^ 
 new trial granted on the ground of surprise in 5 Cow. {supra). 
 To state the other insurances upon the life of Dwight, or the 
 ■other applications for insurance, is easy if they are known or 
 information has been had of them ; and we see no likelihood of 
 unreasonable hazard to the defence by doing it. Nor do we see 
 that the order calls for a disclosure of the evidence on which the 
 defendants rely to support their defence. A statement would 
 not disclose whether the evidence would be oral or written, nor 
 who would give the oral testimony, nor the nature or source of that 
 in writing. And these remarks apply mutatis jniitaiidis to the 4:8 
 other matters contained in the various orders. And it is always 
 to be borne in mind, that these orders are to be read and used, 
 and action under them is to be had, in accordance with settled 
 rules of practice, which are safeguaixls to parties on either side. 
 In the words of Loed Mansfield : " The bill of particulars must 
 not be made the instrument of injustice, which it is intended to 
 prevent." (Millwood v. Walter, 2 Taunt., 224. See, also. 
 Hurst V. Watkis, 1 Camp., 69, note ; Lovelock v. Cheveley, 1 
 Holt's ]Sr. P., 552.) 
 
 We are not required to say, and we do not say, that in the 
 exercise of discretion we would have granted orders as minute 
 in some points as are the orders in these cases. If they are 
 likely to be oppressive upon the defendaiits, application for 
 relief will doubtless be considerately met by the Special Term. 
 The purpose of the court below is to secure a fair and well 
 advised trial of an important and substantial controversy, after 
 due preparation for what will be shown on either side ; and the 
 
572 Abbott's Select Cases on Code Pleading. 
 
 Butler V. Mann, 9 Abb. N. C, 49. 
 
 50 ear of the court will be open to any reasons that will convince 
 it that further action is called for to. that end. 
 
 These considerations bring us to the conclusion that the 
 appeals in these cases should be dismissed. 
 
 All the judges concurred except Finch, J., taking no part, 
 and Eapallo, J., absent. 
 
 Appeal dismissed. 
 
 BUTLER V. MANN. 
 
 JVew Yorh Supreme Court, Special Term, 1880. 
 
 [Reported in 9 Abb. N. C, 49.] 
 
 1. The provisions of the Code of Civil Procedure, allowing the court to 
 
 direct a bill of particulars of the claim of either party, confers a broad 
 judicial discretion, and are declaratory of the practice which existed 
 prior to the Code.* 
 
 2. The power thus conferred should be prudently employed, with the view 
 
 to enable parties to prepare their pleadings and evidence for the trial 
 of the real issues involved, but not to impose unnecessary labor on 
 any party. 
 
 3. Where sureties, sued on an official bond, applied for particulars of the 
 
 moneys received by the principal, and for which it was alleged Vie had 
 failed to account, — Held, that in absence of anything to indicate that 
 defendants could not, equally with plaintiff, ascertain the facts from 
 the principal, the application should be denied. 
 
 4. The object of this provision is to enable a party reasonably to protect 
 
 himself against surprise, not to impede the prosecution of an action, 
 nor unnecessarily increase its expense. 
 
 Motion for bill of particulars. 
 
 Samuel Butler, as supervisor of the town of Richmondville, 
 sued Tobias Mann and others on an official bond. Defendants 
 now moved to compel the plaintiff to furnish a bill of particulars. 
 
 Ingalls, J. Section 531 of the Code of Civil Procedure pro- 
 vides : " The court may in any case direct a bill of particulars of 
 
 For other rases un Ihe right lo a bill of particulars, see Wiijimd v. Dejoii£;i-, 18 Hun, JUS; 
 Stilwell V. Hercanilez, 7 Daly, 485 ; StiebeluDg v. Lockhaus, 31 Hud, loT; Clark f. St. James Ch., 
 id., 95. 
 
 For the mode of oMaining the bill, see Clegs ». American Newspaper Union, 7 Abb, N. 
 C, B9. 
 
III. Technical Rules. (9 b) Bill of Particulars. 573 
 
 Butler V. Mann, 9 Abb. N. C, 49. 
 
 tlie claim of either party to be delivered to tbe adverse party." 
 This provision confers upon the court a broad judicial discretion, 
 and is declaratory of a practice wbich existed anterior to the 
 adoption of the Code, but which was very sparingly exercised in 
 this State. (Tilton v. Beecher, 59 ¥. Y., 176.) The power thus 
 conferred should be prudently employed, with the view to enable 
 parties to prepare their pleadings and evidence for the trial of 
 the real issues involved in an action, and not to impose unneces- 
 sary labor upon any party. This statute, if judiciously enforced, 
 %\'ill be of great value ; otherwise, it will prove mischievous and 
 oppressive. 
 
 An examination of the facts, disclosed by the papers, has con- 
 vinced us that the defendants can, without risk or embarrassment, 
 answer the complaint in some of the forms of pleading provided 
 bv section 500 of the Code. So far as preparing for the trial of 
 the action is concerned, we do not discover that the plaintiff 
 possesses facilities for ascertaining the facts desired by the de- 
 fendants, superior to those which are possessed by the latter. 
 It is not shown that any hostility exists between the principal to 
 the bond and his sureties, and we should not infer that informa- 
 ation is withheld by him from the defendants, in regard to the 
 moneys received and disbursed by him, which constitute sub- 
 stantially the subject-matter of this action, and it would, there- 
 fore, seem that the defendants possess advantages for ascertain- 
 ing the facts which they seek superior to those within the reach 
 of the plaintiff. The action is upon a bond, and the breach 
 assigned is in effect the failure of the principal thereto to account 
 for the moneys which he has received belonging to the plaintiff. 
 It is but reasonable to assume that the receipt and disbursement 
 of the money by the principal to the bond, as alleged in the 
 ■complaint are within the knowledge of such principal, and that 
 the defendants, the sureties, can procure from him information 
 in regard thereto, more reliable and accurate than any statement 
 which the plaintiff can furnish. In such case the defendants 
 should not be allowed to impose upon the plaintiff the labor of 
 furnishing particulars which are equally within the reach of the 
 .defendants (Powers v. Hughes, 7 J. & S., 482 ; Wiegand v. 
 De Jonge, 18 Hun, 405 ; Youngs '«. I)e Mott, 1 Barb., 30). It 
 
574 Abbott's Select Cases on Code Pleading. 
 
 Melvin v. Wood, 3 Abb. Ct. of App. Dec, 372. 
 
 was suggested upon the argument that, the plaintiff having 
 brought the action, it should be assumed that he is in possession 
 of the facts which constitute the cause of action. The plaintiff 
 has set out in the complaint, the bond, and alleged wherein the 
 condition thereof has been violated by the principal thereto, and 
 the extent of his default so far as the knowledge and informa- 
 tion of the plaintiff extends. This statute should not be con- 
 strued and enforced in such manner as to create unnecessary per- 
 plexity and embarrassment, or prove a snare in the prosecution 
 of actions. It was obviously intended by this provision of the 
 Code to enable a party reasonably to protect himself against 
 surprise, but not to place impediments in the way of the prosecu- 
 tion of an action, or to unnecessarily increase the expense of 
 litigation. Without stopping to discuss the various decisions 
 which have been made upon this subject, and bearing in mind 
 that every case must be determined in accordance with the cir- 
 cumstances of the particular case, we conclude that the defend- 
 ants in this action have failed to establish a state of facts entitling 
 them to the bill of particulars which they seek, and that the 
 motion must be denied, with costs. 
 
 MELVIN V. WOOD. 
 
 j\''ew York Court of Appeals, 1867. 
 LReported in 3 Abb. Ct. of App. Dec, 373.] 
 
 1. A bill of particulars annexed to the complaint forms part of it, and is 
 amendable accordingly. 
 
 3. A referee has power, on the trial of the issues, to allow a new bill of par- 
 ticulars to be substituted for that annexed to the complaint. 
 
 Action to recover a balance of account. The account inchtded 
 charges for goods sold and moneys advanced by plaintiffs to 
 defendants, and credits for proceeds of sales on commission,, 
 damages for injured goods, interest, etc. 
 
 The plaintiffs annexed to the complaint a bill of particulars or 
 copy of the account. The referee allowed them to amend this 
 upon the trial, by substituting a new bill of particulars. 
 
 Jiidgment was given for plaintiffs, and defendants appealed. 
 
III. Technical Rules. (9 b) Bill of Particulars. 575 
 
 Melvin v. Wood, 3 Abb. Ct. of A pp. Dec, 273. 
 
 By THE Court. — Davies, Ch. J. Upon the facts found by the 2 
 learned referee, the judgment in favor of the plaintiffs for the 
 amount thereof was clearly correct, and must stand, if no errors 
 were committed upon the trial. This I understand to be con- 
 ceded by the learned counsel for the appellants, and he therefore 
 proceeds in his brief to point out the several erroneous rulings 
 which, in his opinion, he thinks the referee made upon the trial. 
 [After disposing of an unimportant exception to evidence, the 
 learned judge proceeded as follow s :] 
 
 2. It is objected that the referee erred in allowing the plaint- 
 iffs to amend their bill of particulars. To the complaint was 
 annexed, and served therewith, an account of the defendants 
 with the plaintiffs, appropriately designated as a bill of particu- 
 lars. It formed a part of the pleadings iu the action. Upon the 
 trial, the counsel for the defendant Wood, moved for leave to 
 amend his answer, so as to conform the second and third heads 
 of the defence, and particularly the counterclaims, to the testi- 
 mony already given, and particularly to the testimony of Samuel 
 Barker. The referee decided to allow the amendments to the 4 
 answer of the defendant Wood, as proposed by his counsel, and 
 thereupon the same was amended accordingly. The plaintiff's 
 counsel then moved for leave to amend the complaint by substi- 
 tuting, in the place of the original bill of particulars, a new bill 
 of items filed with the referee, to which the counsel for the 
 defendant Wood, objected ; and the referee overruled the objec- 
 tion, and allowed the amendment to the complaint ; and to this 
 decision the counsel for the defendant Wood, then and there 
 excepted. 
 
 Sections 169 and 173 of the Code [of Procedure] fully author- "^ 
 ized the referee to amend the pleadings of the respective parties 
 in this action, and we do not regard his rulings in this respect open 
 to review in this court. It was a matter resting in the discretion 
 of the referee, and we think it was properly exercised in the pres- 
 ent instance. We think it hardly lies with the defendant to object 
 that the same favor was allowed to the plaintiff which he asked 
 for and was accorded to himself, particularly as the very amend- 
 ments to his pleadings, which he made by leave of the referee. 
 
576 Abbott's Select Cases on Code Pleading. 
 
 Hoff V. Pentz, 1 Abb. N, C, 388. 
 
 probably necessitated and called for amendments on the part of 
 plaintiffs. The privilege which was conceded to one party was 
 properly granted to the other, and we see no error in the referee's 
 rulings on this branch of the case. 
 
 [The remainder of the opinion related to a question of 
 evidence, and to unimportant exceptions?^ 
 
 All the judges concurred. 
 
 Judgment affirmed, with costs. 
 
 HOFF V. PENTZ. 
 
 New York Suprerne Court, First Dep., Chambers, 1876. 
 [Reported in 1 Abb. N. C, 288.] 
 
 1. Undei" Code Pro., § 158 [substantially re-enacted in Code Civ. Pro., 
 
 § 531,] tlie court cannot require service of a further and more particu- 
 lar account because a copy of an account stated, which has been 
 alleged in the pleading and has been served on demand, is unsatisfac- 
 tory. 
 
 2. An account stated cannot be altered. 
 
 3. In an action by a trustee appointed to succeed a deceased trustee, for 
 
 moneys received by defendant for the benefit of the trust estate, 
 defendant alleged an account stated with the deceased trustee. Held, 
 that, in order to obtain details of the items composing such account 
 stated, an examination of the defendant before trial was proper. 
 
 Plaintiff sued as substituted trustee to recover for moneys 
 1-eceived by defendant for the benefit of the trust estate. 
 
 Defendant among other defences, alleged an account stated 
 with the deceased trustee Barker, and upon demand therefor 
 served a copy of such account. 
 
 Plaintiff claimed that the account was indefinite and defective, 
 and moved for an order requiring a better account to be served. 
 
 Lawrence, J. One of the defences in this case set up in the 
 defendant's answer is an account stated. A copy of the alleged 
 account stated, purporting to be dated January 1, 1870, has been 
 served upon the plaintiff's attorney, who now moves for a 
 further and better account of an item in said account contained. 
 
III. Technical Jiules. (9 b) Bill of Particulars. 57Y 
 
 Goings V. Patten, 17 Abb. Pr. Rep., 3S9. 
 
 If it be true that the account served is an account stated between 
 Barker and the defendant, the defendant cannot, so far as I am 
 able to see, serve a further account with Barker ; it cannot be 
 altered. The effect of the accoimt is something to be deter- 
 mined on the trial. If the account is false and fraudulent, that 
 fact can be shown on the trial, and its force avoided. I do not 
 consider the plaintiff as entitled to relief under section 158 of the 
 Code [Code Civ. Pro., 531. ] But this is a case in which it is 
 clear that an examination of the defendant before trial msy con- 
 tribute materially to aid the plaintiff ; and as further relief is 
 asked for, I am inclined to entertain an application for such 
 examination. 
 
 GOINGS V. PATTEN. 
 
 JV^ew Yorh Common Pleas, General Term, July, 1863. 
 [Reported in 17 Abb. Pr. Rep., 339.] 
 
 1. It seems that a defendant relying on an account stated, if he fails to 
 prove that it was mutually adjusted, and the balance ascertained, 
 may fall back upon the accounts and prove that there is, in fact, a 
 balance due him, unless his pleading is so framed as to show that he 
 relies solely on tlie account stated. 
 
 3. A pleader, claiming on an account stated, who refuses to furnish tlie 
 items of his demand, pursuant to the section 1.58 of the Code of Pro- 
 cedure [Code Civ. Pro., § 531,] should be precluded from giving evi- 
 dence of such items further than may be necessary to prove the set- 
 tlement of the sum due. 
 
 Appeal from an order precluding defendants from giving 
 evidence of the items of an account. 
 
 The answer set up certain payments, and a counterclaim upon 
 an account, the items of which were not given ; the plaintiffs 
 demanded a bill of particulars, which was refused, whereupon 
 the following order was made : " That the defendants, on the 
 trial of this action, be and they are hereby precluded from giv- 
 ing any evidence of the account and the items thereof, stated 
 and mentioned in the answer of the defendants served in this 
 action, except only so far as may be necessary to establish the 
 single defence of account stated and settled between the parties, 
 
 37 
 
578 Abbott's Select Cases on Code Pleading. 
 
 Goings V. Patten, 17 Abb. Pr. Rep., 339. 
 
 it being alleged on this motion that that is the only defence 
 sought to be interposed in this action, and set up by the defend- 
 ants' answer." From this order the defendants appealed. 
 
 Daly, F. J. The appellant insists that the judge should have 
 decided whether this was or was not an averment of an account 
 under the 158th section of the Code ; that if it were not, the 
 plaintiff's motion should have been denied ; and that if it were, 
 the defendants should have been allowed time to furnish items 
 upon terms. I do not see that this necessarily follows. A party 
 may fail to establish the stating of an account, but that does not 
 cut him off from any defence he may have upon the unsettled 
 account. The two defences are not inconsistent. ■' The state- 
 ment of an account," says an old case (Drue i\ Thorne, Alleyn), 
 " doth not alter the nature of the debt ; it only reduceth it to a 
 certainty." It admits the existence of a prior running account ; 
 and because the party relies upon the defence, that it was 
 mutually adjusted, and the balance ascertained and fixed, and 
 fails to prove it, he is not thereby precluded from falling back 
 upon the accounts, and showing that there is, in fact, a claim or 
 balance due to him. He would undoubtedly be precluded from 
 doing so if his pleading were so framed as to show that he relied 
 solely upon the defence of an account stated, for, that being 
 made the sole issue, the other party might come unprepared to 
 try any other. But a party might always join with an account 
 stated an account for the original debt ; and if he failed upon the 
 one, he might recover upon the other. (1 Saund. on PL and Ev., 
 42.) In the present case the judge appears to have regarded 
 the defendants' answer as entitling them to prove an account 
 stated, which raises an implied promise to pay the sum found, 
 upon the mutual adjiistment, to be due ; or, failing in that, to 
 show the existence of a mutual account, and an indebtedness to 
 them arising under it. It would have been entirely consistent 
 with the defence of an account stated for the defendants to have 
 furnished a copy of the account upon which they meant to rely 
 in the event of their failing to prove the stating of an account. 
 They elected not to do so, and so cut themselves off from the 
 right of giving any evidence to that effect, and limited them- 
 
III. Technical Rules. (4 b) Bill of Particulars. • 5Y9 
 
 Gebhard v. Parker, 120 N. Y., 33. 
 
 selves upon the trial to the proof of an account stated. The 
 defendants have failed to deliver a copy of the account within 
 the time which the Code allows after demand made, the plaintiff 
 was entitled to an order precluding them from giving evidence 
 of it. 
 
 \^After passing upon another point, xohich is here omitted, the 
 judge conoluded :^ The clause in the order that it should not be 
 construed as precluding them from establishing the defence of 
 an account stated was unobjectionable. It prevented the possi- 
 bility of any misconstruction upon the trial as to the meaning of 
 the order. As the defendants had precluded themselves from 
 setting up any other defence, they could in no way be affected 
 injuriously by it. 
 
 The order at Special Term should be affirmed. 
 
 Hilton and Beady, JJ., concurred. 
 
 GEBHAED v. PAEKEE. 
 
 ]Sr. Y. Court of Appeals, 2nd Biv., 1890. 
 
 [Reported in 130 N. Y., 33.] 
 
 1. Under Code Civ. Pro., § 531, — providing that the party alleging an 
 account in his pleading must deliver to the adverse party, within ten 
 days after a written demand thereof, a copy of the account, and "if 
 he fails so to do, he is precluded from giving evidence of the account," 
 — the better practice is to obtain before trial an order precluding the 
 party neglecting to serve the bill of items from giving evidence 
 thereof.* 
 
 Action for goods sold. 
 
 The plaintiffs alleged that the defendants, at the time in 
 question, were co-partners, doing business in the partnership 
 name of " Daily Hotel Gazette Publishing Company "' and of 
 the " Daily Standard, " and that between July 2, lsS5, and 
 August 31, 1885, the plaintiffs sold and delivered to the 
 
 * Where, in any other action, the Court has ordered a bill of the particulars of the claim or 
 defence of either party to be served, it may, for disobedience to its order, strike out the party's 
 pleading on motion, or stay his proceedings. Gross v .Clark, 87 N. Y., 272 ; 3 Abb. Pr. & F. 
 408. 
 
580 Abbott's Sklect Cases on Code Pleading. 
 
 Gebhard v. Parker, 120 N. Y., 33. 
 
 defendants as such co-partners, at their request, certain goods at 
 an agreed price mentioned, which remained unpaid. 
 
 The defendant Parker denied the alleged co-partnership, and 
 alleged that the partnership of the defendants was dissolved on 
 July 1, 1885, of which the plaintiffs had notice, and that for the 
 goods mentioned in the complaint credit was given to the 
 defendant Frecknall alone, and that the defendants as co- 
 partners never hand any dealings with the plaintiffs. The other 
 defendants did not answer. The defendant Parker made 
 written demand of " a bill of items of matters set forth in the 
 .complaint ... as the foundation of the plaintiffs' claim 
 .against the defendants." No bill of items was served. 
 
 On the trial the defendant objected to evidence offered to 
 prove the sale and delivery of the goods referred to in the 
 -complaint, on the ground that the plaintiffs had failed to comply 
 -with such demand ; the objection was overruled and exception 
 taken, and evidence of the sale and delivery was introduced. 
 'The only controverted question tpon the trial was whether the 
 'defendants were partners at the time of such sale, and whether 
 the plaintiffs had any notice of a previous dissolution of the 
 firm. 
 
 At Trial Term, plaintiffs had a verdict. 
 
 The Oeneral Term of the Superior Court of Buffalo, affirmed 
 the judgment. 
 
 The Court of Appeals affirmed the judgment. 
 
 Beadlet, J. \_After stating the facts.'] 
 
 Inasmuch as the alleged sale and delivery of the goods was 
 not controverted by the answer, and no proof of that fact 
 requisite, it is not apparent that the bill of items demanded 
 could have had any essential importance or have furnished any 
 legitimate aid to the defendant upon the issue presented by the 
 pleadings for trial. The only fact which the plaintiffs were, 
 upon this issue, required to establish, was that the defendants, as 
 partners, were liable to pay for the property alleged to have 
 been sold to them, and that was dependent upon the fact, either 
 that they were such partners at the time of the sale, or that the 
 
III. Teohnical Rules. (4 b) Bill of Particulars. 581 
 
 Gebhard v. Parker, 120 N. Y., 33. 
 
 plaintiffs had the right to so treat the defendants for the purpose 
 of charging them with liability for the goods. It is assumed by 
 the counsel for the parties that the verdict of the jury had the 
 support of evidence. But assuming as urged by the defendant's 
 counsel, that the exception founded upon the failure of the 
 plaintiffs to furnish a bill of items in compliance with demand, 
 presents the question of practice in that respect for consideration, 
 the inquiry arises whether it was error to permit the introduc- 
 tion of the evidence of the sale and delivery of the goods. 
 
 The statute provides that the party alleging an account in his 
 pleading must deliver to the adverse party, within ten days 
 after a written demand thereof, a copy of the account, and " if 
 he fail so to do he is precluded from giving evidence of the 
 account." (Code § 531). The provisions of the old Code 
 provided that a party of whom such demand was made should, 
 within the same time, deliver to the adverse party a copy of 
 the account, " or be precluded from giving evidence thereof." 
 (§ 158). Prior to the Code the preclusion of evidence of an 
 alleged account of which a bill of particulars had been demanded 
 was dependent upon an order to that effect, and such was the 
 practice pursued under the old Code. (Kellogg v. Paine, 8 
 How. Pr,. 329 ; W. & P. K. R Co. v. Meyers, 16 Abb. Pr. Rep. 
 (N. S.), 34; Moore v. Belloni, 10 J. & S., 184). The difference 
 between the language of those provisions of the two Codes is 
 verbal rather than substantial, and there is no less reason for the 
 continuance of the rule of practice under the latter than existed 
 when the provisions of the earlier statute were in force. 
 Neither provided for an order except in the event that the 
 account delivered should be defective, in which case provision 
 was made in both statutes that the court or a judge was 
 authorized by order to direct the delivery of a further account. 
 It seems that the demand is effectual to give the party a right 
 to a copy of the account so called for, and that the penalty for 
 failure to comply with it is the preclusion of evidence of the 
 account on the trial. Thus far the statute is plain. But the 
 manner of executing this provision of the statute is a matter of 
 practice ; and it should not be such as to subject to surprise the 
 party of whom a demand is claimed to have been made. This 
 
582 Abbott's Select Cases on Code Pleading. 
 
 Badeau v. Niles, 9 Abb. N. C, 48. 
 
 10 situation miglit arise under some circumstances which may be 
 imagined. The better rule of practice is that the execution of 
 the penal provision of this statute be dependent upon an order. 
 The parties then may act advisedly, and the trial court, when 
 the admissibility of evidence of the account arises, will be 
 embarrassed by no collateral inquiry into the facts upon which 
 the right of the parties in that respect may depend. By means 
 of an order made upon application preliminarily to the trial, or 
 to the disposition of the question of the admissibility of the 
 evidence, the purpose and mandate of the statute may be 
 effectuated without surprise or unnecessary prejudice to any of 
 the parties. 
 
 The reception of the evidence was not error. 
 
 The judgment should be affirmed. 
 
 All concur except Yann, J., not voting. 
 
 Judgment affirmed. 
 
 BADEAU V. NILES. 
 
 ]Vew York Supreme Court, First Department ; Special 
 
 Tervi and Chambers, 1880. 
 
 [Reported in 9 Abb. N. C, 48.] 
 
 Evidence by which a cause of action may be estabiislied upon the trial 
 should not be pleaded, but only the facts constituting' the cause of 
 action. 
 
 Motion to strike out portions of the complaint. 
 
 This action was brought by Marie E. Badeau (a cestui que 
 trus^, individually and as executrix and trustee under the 
 will of JSTathaniel Niles, deceased, against Nathaniel Niles, as 
 executor and trustee under the said will, Amelia R. "Wilbaux (a 
 cestui que trust), individually, and as executrix and trustee 
 under the said will, and others interested in the will, to remove 
 the said Nathaniel Niles from his trusteeship and to restrain him 
 from further acting as executor. 
 
 The complaint, which charged the defendant, Nathaniel Niles, 
 with misconduct and mismanagement of the estate, contained 
 
III. Technical Rules. (10) Striking out. 583 
 
 Ward V. Ward, 5 Abb. Pr. Rep. (N. S.), 145. 
 
 extracts from Lis sworn accounts, and examinations as to them, 
 and also from examinations in another action, and from affidavits, 
 and a list of vouchers, and criticisms upon the whole. 
 
 The defendant moved to strike out these from the complaint 
 as irrelevant and redundant. 
 
 Lawrence, J. The motion to strike out the portions of the 
 complaint specified in the notice of motion should, I think, be 
 granted. The allegations objected to relate rather to the evi- 
 dence by which a cause of action may be established upon the 
 trial, than to a statement of the facts constituting a cause of ac- 
 tion. Even under the Code, 1 do not understand that it is proper 
 to plead the evidence by which a cause of action is to be estab- 
 lished. In other words, the resultant, not the evidentiary, facts 
 should be pleaded. $10 costs to defendant to abide event. 
 
 WAED V. WAED. 
 
 Supreme Court, First District, Special Term, 1868. 
 
 [Reported in 5 Abb. Pr. Rep. (N, S.), 145.] 
 
 The remedy for superfluous matter in a complaint — such as an allegation 
 of abandonment, in an action for divorce on the ground of adultery — 
 is by motion, not by demurrer, although such matter be stated in a 
 form appropriate to a separate cause of action. 
 
 The action was brought for an absolute divorce. The plaintiff 
 in the first four paragraphs of the amended complaint, averred 
 that the parties were married, had one child, and that the de- 
 fendant had without his consent abandoned him. The fifth 
 paragraph " for a further cause of action," averred the adultery 
 of the defendant. A general prayer for judgment granting a 
 divorce a vinculo, and the custody of the child, closed the 
 complaint. 
 
 The defendant demurred on the grounds : 1. That several 
 alleged causes of action were improperly united. 2. That the 
 abandonment did not constitute a valid cause of action. 
 
 1 
 
584 Abbott's Select Cases on Code Pleading. 
 
 Deyo V. Morss, 144 N. Y., 316. 
 
 Ingeaham, J. There is but one cause of action stated in this 
 complaint, viz.: the adultery. The allegation that the defendant 
 has abandoned and deserted her husband is no ground of 
 divorce, and is improperly inserted in the complaint, but it is 
 not stated as a cause of action, nor is any relief asked for on ac- 
 count of that fact. 
 
 The statement in the 5th paragraph, " that for a further cause 
 of action he states, etc.," does not show that there are two causes 
 in the complaint (Hillman v. Hillman, 14 How., 456). 
 
 The proper rule is laid down in Meyer v. Lent, 7 Abb. Pr., 
 225, viz.: that in such cases the remedy is by motion, and not by 
 demurrer. 
 
 Judgment for plaintiff on demurrer, with leave to answer; etc., 
 and without prejudice to a motion to strike out. 
 
 Note. la Gassett v. Crocker, 10 Abb. Pr., 133, defendant alleged in his 
 answer that certain third persons, whose interest in the subject matter of 
 tlie action appeared from the complaint, were necessary parties to the 
 action, without whose presence a complete determination of the conti'o- 
 A'ersy could not be had. Plaintiff moved to strike out such part of the 
 answer. — Held, the motion should be gi-anted, it being in substance, a 
 demurrer to the complaint for defect of parties. That such objection is 
 waived if not taken by demurrer, as it appears on the face of the com- 
 plaint, and the allegation in the answer constitutes no defence to the 
 action, is clearly irrelevant and should be stricken out. 
 
 DEYO V. MOESS. 
 
 J^ew York Court of Appeals, Deo., ISdJf.. 
 
 [Reported in 144 N. Y., 316 ; rev'g 74 Hun, 334.] 
 
 1. Upon application before trial the court has power, in its discretion,, 
 to allow an amendment of a pleading so as to substitute a different 
 cause of action upon the same general grounds.* 
 
 3, A stipulation, the plain object of which is to enable the parties to do 
 what the court upon application might authorize to be done, author- 
 izes such an amendment. 
 
 *But such an amendment cannot be allowed ai the trial (Fisher v. 
 Rankin, 'Ih Abb. N. C, 191 ; s. c, p. 204 of this vol.); nor a^fter the trial 
 (Southwick V. First Nat. Bank, 84 N. Y., 430 ; s. c, p. 154 of this vol.). 
 
Iir. Technical Rules. (11) Amendment of Pleading. 585 
 
 Deyo V. Morss, 14^1 N. Y., 210. 
 
 3. The principle is the same as in the case of an amendment of course 
 before the twenty days from the service of the original pleading have 
 expired, under Code Civ. Pro., § 542, where a change of cause of action 
 may be made. 
 
 The original complaint was in the nature of a creditor's suit to 1 
 reach lands alleged to have been fraudulently transferred to de- 
 fendants. After issue was joined, plaintiff's attorney obtained a 
 stipulation allowing him on giving notice of electing so to do, 
 " to serve an amended and supplemental complaint, or either." 
 H e subsequently served an amended complaint seeking to charge 
 defendants as devisees of the same lands of the deceased debtor, 
 under §§ 1837-60, Code Civ. Pro. 
 
 Tlie Special Term of the Supreme Court denied defendants' 
 motion to strike out the amended complaint. ^ 
 
 The General Term reversed the order, holding that the 
 stipulation did not authorize the abandonment of the original 
 cause of action and the substitution of a new one. 
 
 The Court of Appeals reversed the order of the General 
 Term, and alBrmed the order of the Special Term. 
 
 Andeews, Ch. J. The stipulation authorized the plaintiff's 
 attorney to serve an amended or supplemental complaint, reserv- g 
 ing to the defendants the right to make such motion in relation 
 thereto as they should be advised, and it authorized the defend- 
 ants to serve an amended or supplemental answer. Before the 
 stipulation was made both parties contemplated making an 
 application to the court for permission to serve amended plead- 
 ings. The plain object of the stipulation was to enable the 
 parties, without notice, to do what the court upon application 
 might authorize to be done. The plaintiff's attorney thereupon 
 served an amended complaint, setting out a cause of action 
 based on the statute, art. 2, title 3, chapter 15, of the Civil Code, 4: 
 against the defendants as devisees, to recover the proceeds of 
 real estate devised to them, situated in the state of Pennsylvania, 
 which they had conveyed. The action was brought by the 
 plaintiff as creditor of the decedent, in behalf of himself and all 
 
586 Abbott's Select Cases on Code Pleading. 
 
 Deyo V. Morss, 144 N. Y., 316. 
 
 others similarly situated. The cause of action set out in the 
 original complaint was based upon the theory that the defendants 
 had fraudulently conspired to defeat the claims of creditors by 
 means of a sale and conveyance of the real estate devised, and 
 the complaint asked that the conveyance be set aside, or iiv the 
 alternative, that the defendants account for the the proceeds re- 
 ceived by them on the sale, and for the appointment of a 
 receiver. The causes of action in the two complaints were dis- 
 tinct. The original complaint was based on fraud, and the 
 amended complaint on the statute, and in such an action the 
 element of fraud has no place. The General Term reversed the 
 order of the Special Term, which denied a motion in behalf of 
 the defendants to strike out the amended complaint, made on 
 the ground that it set up a new and different cause of action 
 from that in the original complaint. The ground of the reversal 
 seems to have been based on the view that the power of tlfc 
 court to authorize an amendment of a complaint before trial, 
 does not extend to an amendment which changes the cause 
 of action. 
 
 We think the settled practice is opposed to the rule declared 
 by the General Term. Whether an amendment of a pleading 
 shall be allowed in such a case is, in general, a matter of dis- 
 cretion in the court. The General Term has the right to review 
 the exercise of such discretion by the Special Term, and its 
 order made in the exercise of this power of review could not 
 be reviewed here. But the stipulation, by its true construction, 
 authorized siich amendment as the court had power to grant, and 
 the case, therefore, depends on the power of the Special Term to 
 authorize an amendment before trial of a complaint, so as to per- 
 mit a substitution of a different cause of action from that original- 
 ly alleged. We think this question was, in principle, determined 
 in the case of Brown v. Leigh (49 N. Y., 78), where it was held 
 that, under section 173 of the former Code, which permitted a 
 pleading to be once amended by a party, of course and without 
 costs, an amendment of a complaint which changed the cause of 
 action and substituted another cause of action belonging to a dif- 
 ferent class was authorized. The jiower of amendment given to 
 the court by section 723 of the present Code is entitled at least 
 
III. Teohnical Rules. (11) Amendment of Pleading. 587 
 
 Mussinan v. Hatton, 31 Abb. N. C, 254. 
 
 to as liberal a construction as the power granted to the party to 9 
 amend as of right under section 172 of the former Code. The 
 power of the court to grant or deny the relief, or to impose such 
 terms as justice may seem to require, is an adequate protection 
 against an oppressive exercise of the power. To deprive the 
 <}ourt of this power would, in many cases, result in injustice and 
 encourage litigation. The present case is an illustration. The 
 causes of action were legally distinct, but the purpose of both 
 complaints was to compel the application of the decedent's prop- 
 erty to the payment of his debts, and whether the result was 
 reached by treating the conveyance by the defendants as fraudu- 
 lent, or by compelling them to account for the proceeds of the 
 property, as provided under the statute, does not aifect the sub- 
 stantial purpose of the action. The amended complaint relieved 
 the defendants from the imputation of fraud, and in that re- 
 spect might be deemed more favorable to them. If they could 
 have defeated the action in its original form, this was no just 
 reason why they should not, by amendment of the complaint, be 
 put in a position where the real controversy as between the 
 creditors and themselves may be tried and adjudicated. 11 
 
 The order of the General Term should be reversed and that of 
 the Special Term affirmed, with costs in both courts. 
 
 All the judges concurred. 
 
 Ordered accordingly. 
 
 MUSSINAN V. HATTON. 
 
 New York Superior Court, Sjpecial Term, 1891^.. 
 
 [Reported in 31 Abb. N. C, 354.] 
 
 Where the first amended complaint has been stricken out, plaintiff is 
 not entitled to serve a second amended complaint, as of course, under 
 Code Civ. Pro., § 542 — avithorizing a pleading to be amended once as 
 of course. 
 
 It seems that a complaint may be amended, as of course, under Code 
 Civ. Pro., § 542, so as to set up an entirely new cause of action. 
 
588 Abbott's Select Cases on Code Pleading. 
 
 Jlussinan v. Hatton, 31 Abb. N. C, 254. 
 Motion to strike out an amended complaint. 
 
 Gildbesleevis, J. This is a motion to strike out an ainended. 
 complaint. Before service of the answer to the original com- 
 plaint, the plaintiff served an amended complaint, which was. 
 subsequently stricken out by the court, on motion of defendant.. 
 After the amended complaint had been so stricken out, the defend- 
 ant served his answer to the original complaint, and, within 
 twenty days thereafter, plaintiff served another amended com- 
 plaint. The defendant now moves to strike out this second 
 amended complaint. 
 
 The question here presented is : Can the plaintiff serve twc 
 amended complaints — that is, when the iirst amended complaint 
 has been stricken out, can plaintiff serve a second amended com- 
 plaint, as of course, without costs and without prejudice, under 
 § 542 of the Code ? That section of the Code permits a pleading 
 to be amended " once by the party, of course, without costs, and 
 without prejudice to the proceedings already had," etc., " within 
 twenty days after the pleading, or the answer or demurrer 
 thereto, is served, or at any time before the period for answering 
 it expires," etc. This second amended complaint was served 
 within twenty days after service of the answer to the original 
 complaint, and was, therefore, served within the statutory limit 
 of time. (Seneca Bank v. Garlinghouse, 4 How. Pr., 174.) But, 
 having already served one amended complaint, can plaintiff seiwe 
 another under the above section of the Code 1 I think not. The 
 Code particularly states that the complaint may be once amended. 
 The Code gives plaintiff an absolute right to amend his complaint 
 once, subject to the right of the court to strike out for cause 
 shown. (Cooper v. Jones, 4 Sand., 699 ; Frank w. Bush. 63 How. 
 Pr., 282.) The plaintiff has availed himself of this right, and 
 his amended complaint has been stricken out by the court. He 
 can not go on serving amended complaints indefinitely. 1 can 
 find no authority to support the contention that plaintiff can 
 serve a second amended complaint, as a matter of right, iinder 
 § 542 of the Code. Of course under § 544 of the Code, plaintiff 
 is at liberty to apply to the court for permission to serve a sup- 
 plemental complaint ; but I am of opinion that he has ah-eady 
 exhausted his rights under § 542 of the Code. 
 
III. Teohnical Rules. (11) Amendment of Pleading. 589 
 Cashman v. Reynolds, 123 N. Y., 188. 
 
 The ground, however, that the proposed amended complaint 
 should not stand, for the reason that it sets up a new cause of 
 action, is not tenable, for under § 542 of the Code, the plaintiff 
 may amend by alleging an entirely new cause of action, because 
 this section contains no restriction as to the nature of the amend- 
 ments (Robertson v. Robertson, 9 Daly, 44-52 ; Devine v. 
 Duncan, 2 Abb. IST. C, 328) ; but all the causes set forth in the 
 amended complaint should be of the same class and of a class to 
 which the summons is appropriate. (Brown v. Leigh, 49 N. Y., Y8.) 
 
 I am of opinion that the motion to strike out this second 
 amended complaint must be granted, with $10 costs, with leave 
 to the plaintiff to make such application to the court as he may 
 think proper with regard to any further pleading. 
 
 CASHMAN V. REYNOLDS. 
 
 I^ew Yorh Court of Appeals, 1890. 
 
 [Reported in 133 N. Y., 188.] 
 
 'The right g-iven hy Code Civ. Pro., §542 to amend of course one's own 
 pleading, within twenty days after serving it, does not extend to 
 withdrawing a demurrer by serving an answer instead. 
 
 'The distinction between the function of demurrer and of answer stated. 
 
 Action for foreclosure. 
 
 The Special Term denied a motion made by defendants to 
 ■ compel plaintiff to accept service of an answer as an amendment 
 of a demurrer. 
 
 The Oeneral Term affirmed the order. 
 
 The Court of Ajjpeals affirmed the order. 
 
 O'Beien, J. The defendants in this case sought, as matter of 
 right, to amend a demurrer which raised an issue of law by the 
 •service of an answer which, if allowable, changed the issue into 
 ■one of fact. The plaintiff refused to receive the answer served 
 :as amendment to a demurrer and then the defendants invoked 
 
590 Abbott's Select Cases on Code Pleading. 
 
 Cashmau v. Reynolds, 123 N. Y., 138. 
 
 the powers of the court to compel him to do so. The court 
 held that it had no power to force this practice upon the plaint- 
 iff, and the General Term is of the same opinion. 
 
 As the order decided a question of power in the courts below, 
 it is reviewable here. The amended complaint stated a cause of 
 action against the defendants for the foreclosure of a mortgage, 
 and on the last day that the defendants could plead to it they 
 served a joint demurrer specifying, as the defect appearing on 
 the face of the complaint, that causes of action had been improp- 
 erly united. The plaintiff then gave notice of a motion for 
 judgment on the ground that the demurrer was frivolous, to be 
 heard January 6, 1890. Before this motion could be heard, and 
 on January 3, 1890, the defendants served a verified answer, 
 accompanied with a notice that the same was a substitute for and 
 amendment of the demurrer, and that the defendants claimed 
 the right to serve it pursuant to section 542 of the Code of Civil 
 Procedure. Whereupon the plaintiff's attorney returned it^ 
 specifying as the reasons, that as an answer it was served too late, 
 and that as an amendment to the demurrer the defendants had 
 no right to serve it under' section 542 of the Code. The defend- 
 ants' attorney then gave notice of a motion that the court, by 
 order, compel the plaintiff's attorney to receive the answer as 
 properly served in the case. The result of this motion has 
 already been stated. 
 
 We have examined the elaborate brief submitted by the de- 
 fendants' counsel in support of this appeal, calling our attention 
 to the ancient practice in regard to amendments of pleadings, the 
 usages of parliamentary bodies as to amendments generally, and 
 the more recent and it may be added somewhat conflicting 
 decisions of the courts in the first and second judicial depart- 
 ments in regard to this question. But we are satisfied that the 
 practice which we are asked to sanction is not authorized 
 by the statute, and that the order of the com-ts below was 
 right. 
 
 When a complaint is served, the defendant has twenty days 
 in which to determine ^vhether he has any defence to the cause 
 of action therein stated, and if he has no defence, there is no 
 occasion for any pleading on his part. If he has a defence and 
 
III. Technical Rules. (11) Amendment of Pleadiug. 591 
 
 Cashman v. Reynolds, 123 N. Y., 138. 
 
 it arises out of facts not disclosed by the complaint, he can pre- 
 sent these ■ facts to the court by the service of an answer, or if 
 the defence is upon the law, conceding all the facts stated in 
 the complaint to be true, he can present that question to the 
 court by the service of a demurrer. Both the answer and the 
 demurrer are included in the general term " pleadings " as used 
 in the Code of Civil Procedure ; but the oiBce of the one is 
 entirely different and distinct from the other. 
 
 The answer raises an issue of fact to be determined by proofs 
 upon a trial for that purpose, while the demurrer, conceding all 
 the facts alleged in the complaint, raises an issue of law, to be 
 determined by the court, and as the word itself implies, when a 
 demurrer is served, all other proceedings in the cause stop until 
 the question of law raised thereon is decided. The defendant 
 may, within the proper time, present his defence, whether it 
 arises upon the facts or the law by the use of either one or the 
 other of these pleadings, but he cannot, as matter of right, be 
 entitled to serve both, as a defence to the same cause of 
 action. 
 
 By section 542, whichever form of pleading he concludes is 
 necessary to present his defence may be amended by him, of 
 course, within twenty days after its service has been made. If 
 it be an answer, the facts may be stated in another way, or other 
 facts added, or some of those first stated omitted entirely. If it 
 be a demurrer, its form may be changed or other additional 
 grounds may be alleged. But an issue of law cannot be changed 
 by an amendment, of course, to an issue of fact, nor can the 
 latter be, by such process, converted into an issue of law. When 
 the party demurs he elects to admit the facts stated by his 
 adversary, and to rest his case upon the law arising upon these 
 facts, which he claims by the demurrer is in his favor. Hence 
 the defendants in this case could have amended their demurrer 
 within the twenty days by the service of another demurrer so 
 changed as to meet the requirements of the case. But they 
 could not amend a demurrer, presenting only a question of law 
 by serving an answer presenting a question of fact. Such a change 
 of position by the pleader is not, in any just sense, and certainly 
 not within the meaning of section 542, an amendment at all, but 
 
 10 
 
12 
 
 592 Abbott's Select Cases on Code Pleading. 
 
 Mapes V. Brown, 14 Abb. N. C, 94. 
 
 11 an entire change of the line of defence from the law to the facts, 
 and is not permitted by either the letter or the spirit of the Code 
 of Civil Procedure. 
 
 When a party has made a mistake by serving a demurrer when 
 he should have served an answer, he can be relieved from the 
 consequences of his mistake by an application to the court, and 
 in that way permitted to substitute an answer for a demurrer, or 
 vice versa ; but such a change cannot be made as matter of right. 
 The court may allow it to be done when satisfied that justice re- 
 quires it and upon such terms as it may consider just. 
 
 The cases of Wise v. Gessner (47 Hun, 306) and Smith v. 
 Laird (44 id., 530) were correctly decided. 
 
 The order appealed from should be affirmed, with costs. 
 
 All the judges concurred. 
 
 Order affirmed. 
 
 MAPES V. BEOWN. 
 
 New Yorh Supreme Court, Special Term, 1881f.. 
 
 [Reported in 14 Abb. N. C, 94.] 
 
 Although plaintiff cannot amend his summons without application to the 
 court, yet the irregularity of so doing is waived by the defendant's 
 retaining- the amended summons, or may be cured, on a motion to 
 strike out the amended summons, by granting a cross-motion for 
 leave to amend it. 
 
 -. Motion by defendant to strike out an amended summons and 
 complaint; cross-motion by plaintiff for leave to amend the 
 summons. 
 
 Laweence, J. It is undoubtedly true that the plaintiff could 
 not amend the summons without an application to the court (see 
 Code Civ. Pro., §§ 733, 727). This was the rule under the old 
 Code (see 1 Wait's Practice, 490), where it is stated that the power 
 of amending once as of course, conferred on parties to an action 
 by section 172 of the Code, relates to pleadings and not to 
 process. The various cases under the old Code upon this 
 
III. Technical Rules. (12) Amendment of Summons. 593 
 
 Anderson v. Horn, 23 Abb. N. C. 475. 
 
 subject are also there collected. The amended summons was 
 therefore irregular but I see no reason for striking it out, inas- 
 much as the defendants who make this motion retained the 
 same from the 14th to the 22d of March, and thereby, I think, 
 lost their right to object thereto (Hollister v. Livingston, 9 How. 
 Pr., 140). 
 
 Even if this view is not correct, I do not see that the defend- 
 ants who make this motion can sustain any damage from the 
 amendment of the summons. Simultaneously with the argu- 
 ment of this motion, a motion was presented to the court asking 
 for leave to amend the summons. The motion, so far as it 
 respects the striking out of the summons, will, therefore, 
 necessarily be denied. 
 
 ANDERSON V. HOEN. 
 
 New York City Court, Special Term, 1889. 
 [Reported in 33 Abb. N. C, 475.] 
 
 1. A defendant ought to be sued in his true name which is the surname 
 
 of his ancestors, and the Cliristian name given to him in baptism 
 [vinless it has been altered according to law]*. If defendant is known 
 by two names, he may be sued by either, or by that by which he is 
 generally known, though not his real name, or if the real name be 
 unknown he may be sued by a fictitious name, adding a description 
 identif3'ing the person intended. 
 
 2. Where on an application to vacate judgment it appeared that the 
 
 defendant was sued as John Horn, and in his answer he described 
 himself as John A. Horan, the court ordered the parties to appear 
 for oral examination in order to ascertain the true name of the 
 defendant or his alias dictus. 
 
 Motion by defendant to vacate judgment and to allow him to 
 defend on his merits. 
 
 The defendant in this action was sued under the name of 
 John Horn. Defendant served his answer denying all the 
 allegations of the complaint and describing himself as John A. 
 Horan. Service of the answer was duly admitted by plaintiff's 
 
 * See Code Civ. Pro., § 2410. 
 38 
 
594 Abbott's Select Cases on Code Pluading. 
 
 Anderson v. Horn, 23 Abb. N. C, 475. 
 
 attorney. Two days after the answer was served, and late in 
 the day on which the defendant's time to answer expired, tlie 
 plaintiff's attorney returned the answer and withdrew the 
 admission of service, on the ground that there was no action 
 pending between the plaintiff and John A. Horan. Judgment 
 was entered against the defendant on the same day. 
 
 McAdam, Ch. J. A defendant ought to be sued in the sur- 
 name of his ancestors, and the Christian name given to him in 
 baptism (Bank of Havana v. Magee, 20 N. Y., 355, 363). If the 
 defendant is known by two names he may be sued by either 
 (Eagleston v. Son, 5 Robt., 640), or that by which he is generally 
 known, though not his real name (Cooper v. Burr, 45 Barb., 9), 
 or if the real name be unknown he may be sued by a fictitious 
 name, adding a description identifying the person intended 
 (Code Civ. Pro., 451), such as " the man in command of the ship 
 Hornet" (Pindar v. Black, 4 How. Pr., 95). This liberality in 
 practice fails however to prevent the ever recurring confusion 
 caused by misnaming the defendant, an error which becomes 
 more difficult to repair as the proceedings advance. The 
 plaintiff charges that the defendant engaged board under the 
 name of " John Howard," and that his correct name is " John 
 Horn," and by this name the defendant was sued. He under- 
 took to defend in the name of "John A. Horan," which he 
 claims to be his correct cognomen. His plea was returned. It 
 is not a case of misspelling or of idems sonans, but of misnomer 
 or nothing. The court must first ascertain the defendant's true 
 name or his alias diotus before it can undertake to decide 
 whether he has been correctly proceeded against or not. When 
 the facts are settled, there will be no trouble in correctly apply- 
 ing the law. 
 
 The parties must appear in court for oral examination on June 
 11, at 2 P. M. On the conclusion of the examination the appli- 
 cation will be decided. 
 
III. Technical Rales. (12) Amendment of Summons. 595 
 Spence v. Griswold, 33 Abb. N. C, 339. 
 
 SPENCE V. GEISWOLD. 
 
 New York Common Pleas, Special Term., 1889. 
 
 [Reported in 33 Abb. N. C, 339.] 
 
 1. The plaintiff having sued the wrong person cannot cure the error by a 
 motion in the action to substitute the right person as defendant. 
 
 3. The fact tliat tlie Mechanic's Lieu act*— the action being brought to 
 foreclose a mechanic's lien, — provides that a lien shall not be invalid 
 because of a mistake in the name of the owner in the notice of claim, 
 does not give the plaintiff the right to substitute a new defendant. 
 
 Motion by plaintiff to substitute other defendants in the stead 
 of the defendant sued. 
 
 Plaintiff sued Wayne Griswold to foreclose a mechanic's lien. 
 It appeared that Griswold, against whose name the lien was 
 filed, was not the owner of the premises, but that the same were 
 •owned by Griswold's wife, Anna L., who, during the pendency 
 of this action, sold them to Mary Hopkins. 
 
 The plaintiff now moved to substitute Anna L. Griswold and 
 Mary Hopkins as defendants in the stead of Wayne Griswold. 
 
 Yan" Hoesen, J. Wayne Griswold is the sole defendant, and 
 he ought not to have been made a party to the action, as he has 
 no interest in the subject matter and as no relief can be obtained 
 against him. 
 
 The plaintiff has sued the wrong party and he now wishes to 
 sue the right one, but the difficulty is that he is attempting to 
 use this action as a vehicle for making an exchange of defend- 
 ants. If he had a defendant before the court who was a proper 
 party to the action he might well ask that other defendants 
 should be brought in when he had shown that their presence 
 was necessary to the determination of the controversy ; but 
 there is no way known to our law by which, when a plaintiff 
 has sued the wrong man, he can cure the error by making the 
 right man a supplementary party. This is well settled (Davis v. 
 
 *L. 1885, c. 3W. 
 
596 Abbott's Select Cases on Code Pleading. 
 
 Riley v. Stern, 23 Abb. N. C. 435. 
 
 The Mayor, 14 IST. Y., 506, 527; N. Y. State Monitor M. P. 
 Assoc'n V. Eem. Assoc'n, 89 id., 22). 
 
 The suggestion that the Mechanic's Lien act provides that a 
 hen shall not be invalid because of a mistake in the name of the 
 owner in the notice of claim, does not aid the plaintiff. The 
 question here is, as to the right of the court to strike out the 
 name of one who ought never to have been made a party, and to 
 insert in its stead the name of another person. 
 
 Code Civ. Pro., § 452, does not provide for such a case. It 
 authorizes the bringing in of new parties whose presence is 
 necessary to the determination of a controversy between parties 
 to the action. But there is no controversy between Wayne 
 Griswold and the plaintiff, and the presence of Mrs. Hopkins 
 and Mrs. Griswold is not necessary for the determination of any 
 such controversy. The plaintiff may attempt to bring a new 
 action, but he cannot in this action substitute Mrs. Hopkins and 
 Mrs. Griswold in the place of Wayne Griswold. 
 
 Motion denied. 
 
 EILEY V. STEEK 
 
 JVew York City Court, Special Term and Chambers, 1889. 
 
 [Reported in 28 Abb. N. C, 385.] 
 
 The court has power, where there are several defendants, to strike out the 
 name of one or more who have been erroneously included, and substi 
 tute the name of another person who is properly a party. 
 
 Plaintiffs sued the members of the iirm of S. & M. Stern for 
 goods sold. It appears, by the affidavit on which this motion 
 was made, that when the summons and complaint were drawn, 
 the names of the persons composing the co-partnership of S. & 
 M. Stern, were taken from Trow's Co-partnership Directory for 
 1889, in which it -was stated that the names of the co-partners 
 were Solomon, Moses and Henry Stern. The answers of Solomon 
 and Moses Stern to the complaint set up that Henry Stern was 
 at no time a co-partner in the said firm of S. & M. Stern, but 
 
III. Technical Rules. (12) Amendment of Summons. 597 
 
 McKaae v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C, 89. 
 
 that the said tirm was composed of the defendants and one 
 Bernard Pasternak, and that the latter should have been made a 
 party defendant. Whereupon this motion was made by plaint- 
 iffs to have the name of Henry Stern in the action stricken out 
 and the name of Pasternak inserted in place thereof. 
 
 MoAdam, Ch. J. The court may strike out parties and add 
 ■others (Code, § 723). The only limitation on the power is that a 
 sole defendant cannot be stricken out and another substituted in 
 his place {Re G-illeran, 7 IST. Y. SuppL, 145 ; Davis v. Mayor, 14 
 N. Y., 506, 527 ; N. Y. State Monitor, etc., Asso. v. Kemington, 
 «tc., Works, 89 id., 221). Motion to strike out the name of 
 Henry Stern granted on payment to his attorney of $10 costs, 
 and application to join the name of Bernard Pasternak with 
 those of the two remaining defendants granted, without costs. 
 
 McKANE V. DEMOCRATIC GENERAL COMMITTEE 
 OF KINGS COUNTY. 
 
 New Yorli Supreme Court, Second District, Special Term, 
 
 May, 1888. 
 
 [Reported in 21 Abb. N. C, 89.] 
 
 Where a voluntary unincorporated association was sued in its own name, 
 but the summons was served on its president, an amendment of the 
 title of the action will be allowed upon terms, changing the defend- 
 ant's name to that of its president; * in order to comply with Code 
 Civ. Pro., § 1919, f allowing such an association to sue or be sued in 
 the name of its president or treasurer. 
 
 Bassett v. Fish, 75 N. Y., 303, and N. Y. Monitor Milk Pan Assoc, v. 
 Remington Agricultural Works, 89 N. Y., 23, distinguished. 
 
 * Compare for case of service on the wrong defendant, Spence v. Griswold, 23 Abb, N. C, 
 ■239 ; s. c, p. 595 of tliis vol. and see also 1 Abb. New Pr. and F., 7jJ2. 
 
 t Code Civ. Pro., § 1919 is as follo-ws t 
 
 "An action or special proceeding may be maintained by the president or treasurer of an 
 unincorporated association, consisting of seven or more persons, to recover any property, or 
 upon any cause of action, for or upon which all the associates may maintain such an action or 
 special proceeding, by reason of their interest or ownership therein, either jointly or in 
 ■common. An action or special proceeding may be maintained against the president or treasurer 
 of such an association, to recover any property, or upon any cause of action, for or upon 
 which the plaintiff may maintain such an action or special proceeding, against all the associates, 
 by reason of their interest or ownership, or claim of ownership therein, either jointly or in 
 common, or their liability therefor, either jointly or severally. Any partnership, or other 
 ■company of persons, which has a president or treasurer, is deemed an association within the 
 meaning of this section," 
 
598 Abbott's Select Cases on Code Pleading. 
 
 McKane v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C, 89. 
 
 This action was brought by John Y. McKane against The 
 Democratic General Committee of Kings County, naming it in 
 the summons and complaint as defendant, wherein the plaintiff 
 sought to have his right to membership in the defendant 
 established. 
 
 The summons and complaint were served on John P. Adams, 
 the president of the defendant, who appeared and interposed a 
 demurrer on the ground that there was a defect of parties 
 defendant, because the defendant committee could not be sued 
 as such in its own name, or in its aggregate capacity, and on the 
 further ground that the complaint did not state a cause of 
 action. The defendant did not otherwise appear in the action. 
 The plaintiff then moved to amend the summons so as to make 
 the title of the action read : " John Y. McKane, plaintiff, versus 
 John P. Adams, as president of the Democratic General 
 Committee of Kings County, defendant;" and to amend the 
 complaint by asserting therein an allegation that the Democratic 
 General Committee of Kings County is an unincorporated polit- 
 ical association, consisting of more than seven persons, and that 
 John P. Adams is the president thereof. 
 
 Baetlett, J. An examination of the complaint shows that 
 the cause of action, if any, set up therein, is against those 
 persons who comprise the Democratic General Committee of 
 Kings County. Assuming that body to be a voluntary associa- 
 tion, within the meaning of section 1919 of the Code of Civil 
 Procedure, it can properly be sued only by mating all its 
 members defendants, or by naming as defendant the president 
 or treasurer. Neither course has been pursued by the plaintiff, 
 and this motion presents the question, whether his failure 
 properly to name the defendant is a fatal defect, or whether he 
 can correct it by amendment instead of bringing a new suit. 
 
 The Democratic General Committee, as such, has not appeared 
 in the action, but Mr. John P. Adams, who was served with the 
 summons, has interposed a demurrer, on the ground that there 
 is a defect of parties defendant, because the committee cannot 
 be sued as such in its own name or in its aggregate capacity, and 
 on the further ground that the complaint does not state facts. 
 
III. Technical Rules. (12) Amendment of Summons. 599 
 McKane v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C, 89. 
 
 SLirticient to constitute a cause of action. The motion is opposed 
 by counsel for Mr. Adams, who relies upon two cases in the 
 Court of Appeals as authorities against, the power to grant it. 
 The first of these cases is Bassett v. Fish, 75 N. Y., 303, where- 
 in it was held that the complaint could not be amended by 
 striking out the names of defendants who were sued as school 
 trustees, and inserting the name of a corporate board of education 
 to which they belonged. There, however, no attempt had been 
 made to bring the corporation as such into court. Here, on the 
 contrary, the plaintiff has endeavored to bring into court the 
 voluntary association against which he seeks to enforce some 
 right, lie has caused the proper officer of that association to be 
 served with process, and has simply omitted to name that officer 
 in the title of the action as president of the association. The 
 oth^r case to which the court has been referred is the N. Y. 
 State Monitor Milk Pan Association v. Eemingtou Agricultural 
 Works, 89 N. Y., 22,* which simply holds that section 723 of 
 the Code does not authorize the court to strike out the name of 
 a sole defendant in an action, and insert in lieu thereof the names 
 of other persons as defendants. But that is not what the 
 plaintiif seeks to have done in this action. The purpose of 
 section 1919 of the Code, is to permit an unincorporated 
 voluntary association to sue or be sued in the name of its 
 president or treasurer. The association and not the officer is 
 the real party in interest. So here, it is the Democratic General 
 
 *Rev'g 35 Hun, 475, on the ground that while full authority is 
 conferred by the Code Civ. Pro., § 733, for adding or strilving out the name 
 of a person or a party, or correcting a mistake in such name, it does not 
 sanction an entire change of name of the defendant by tlie substitution of 
 another or entirely different defendant. The court below held that such 
 power was within the discretion of the court under section 733. 
 
 In Munzinger v. The Courier Co., Sup. Ct., Gen'l Term, First Dep., 
 Dec, 1894, (to be reported in 82 or 83 Hun), it was held (Van Brunt, P. J., 
 dissenting), that where plaintiff had sued a voluntary unincorporated 
 association in its own name, under the belief that it was a corporation 
 and so alleging in his complaint, the court has power under § 733 to allow 
 an amendment ot the summons and complaint by changing the title of 
 the action so as to designate an individual as president of tlie association in 
 compliance with C. C. P., § 1919, and also by changing the allegation that 
 defendant is a corporation, to one that it is an unincorporated association. 
 
600 Abbott's Select Cases on Code Pleading. 
 
 Lassen v. Aronson, S9 Abb. N. C, 114. 
 
 8 Committee and not Mr. Adams that the plaintifE really desires 
 to sue. But the effect of the statute is to prescribe, not that a 
 voluntary association cannot be sued, but that it cannot be sued 
 except in the name of certain officers, unless the plaintiff 
 chooses to name all the associates individually as defendants. 
 In allowing an amendment, therefore, which shall bring the 
 name of Mr. Adams into the title of this action, the court does 
 not strike out the name of the real defendant, but merely permits 
 
 Q a formal correction of the designation which has been employed 
 so as to conform to the requirements of the statute. 
 
 Inasmuch as the right person was actually served, I think the 
 omission of his name from the title of the action should be 
 regarded simply as a misnomer, and that the court has the 
 power to grant the amendment asked. Since, however it will 
 compel the defendant to change the form of its demurrer, $10 
 costs should be allowed on this account, as well as §10 costs of 
 motion. Motion granted on payment by plaintiff of $20 costs. 
 Ordered accordingly. 
 
 LASSEN V. AEONSON. 
 
 New Yorlc Superior Court, Special Term, 1892. 
 
 [Reported in 39 Abb. N. C, 114.] 
 
 1. The failure to comply with the Code Civil Pro., § 1897— providing that in 
 actions for a penalty or forfeiture given by statute, if the complaint is 
 not served with the summons, a general reference to the statute' must 
 be indorsed on the summons so served — is fatal to the validity of the 
 service of the summons and leaves the court without jurisdiction over 
 the person of the defendant. 
 
 3. Such defect, since it does not appear on the face of the summons, is 
 not remedied by defendant's voluntary appearance.* 
 
 Motion by defendant for leave to withdraw his notice of 
 appearance and to set aside the service of a summons in an 
 action for a penalty upon the ground that the summons was 
 served without the complaint and without an indorsement of a 
 
 * The contra was held in Biasell?)N. Y. Central, etc., R. R. Co., B7Barb., 385. 
 
III. Teohnioal Rules. (13) Supplemental Complaint. 601 
 
 McRoberts v. Pooley, 1 N. Y. St. Rep., 725. 
 
 general reference to the statute under which the action Avas 
 brought, as required by Code Civ. Pro., § 1897. 
 
 The action was brought by Alexander C. Lassen against 
 Albert Aronson under the laws of 1890, chapter 564, § 29, to 
 recover a penalty for defendant's refusal to allow an inspection 
 of the books of a stock corporation. 
 
 After the service of the summons without the complaint, 
 defendant's attorney served a notice of appearance. This 
 motion was made upon defendant becoming aware of the nature 
 of the action by the service of the complaint. 
 
 GiLDEESLEEVE, J. The failure to comply with the provisions 
 of section 1897 of the Code is fatal to the validity of the service 
 of the siimmons, and leaves the court without jurisdiction over 
 the person of the defendant. The defect was not remedied by 
 the defendant's appearance for the reason that it did not appear 
 upon the face of the summons. 
 
 Defendant has leave to withdraw his notice of appearance. 
 Simimons set aside and complaint dismissed, with costs. 
 
 McEOBERTS v. POOLEY. 
 
 Superior Court of Buffalo, General Term, 1886. 
 
 [Reported in 1 N. Y. St. Rep., 735.] 
 
 1. It is not necessary that a supplemental complaint should set up all the 
 facts constituting the plaintiffs cause of action, or showing- that those 
 originally made defendants are proper parties to the action ; nor is it 
 necessary that it should repeat the allegations of the original 
 complaint. 
 . 2. The essential purpose of a supplemental complaint is to set out such 
 material facts as have occurred since the former complaint [or of 
 which plaintiff was ig'norant when it was made], which may change 
 the position and rights of the parties, and vary the relief to which 
 plaintiff is entitled. 
 
 Plaintiff, by leave of court, served a supplemental complaint, l 
 to which defendant demurred. The issue of law thereon was 
 tried at the General Term of the court, in the first instance, as 
 is the practice in that court [C. C. P., § 297.] 
 
602 Abbott's Select Cases on Code Pleading. 
 
 McRobertsi). Pooley, 29 Abb. N. C, 114. 
 
 Smith, Ch. J. The original complaint in this action, as- 
 amended, shows that it was commenced to foreclose a mortgage 
 upon real estate, executed by the defendant Mary A. Pooley 
 and others. She put in an answer, which still stands as a plead- 
 ing in the action, by which she denied each and every allegation 
 contained in the amended complaint, and also averred that each 
 and every mortgage, claim and demand set forth therein had 
 been fully paid, satisfied and discharged before this action was- 
 commenced. Afterwards the plaintiff obtained an order of this 
 court permitting him to serve a supplemental complaint, by 
 which he averred that the real estate upon which the mortgage 
 in suit was executed had been sold upon the foreclosure of a 
 prior mortgage thereon, that certain surplus moneys, arising un- 
 der the last mentioned foreclosure, had been applied upon the 
 plaintiff's mortgage debt, and that by means of certain other 
 securities held by the plaintiff he had realized a further sum 
 which had been also applied on his mortgage debt, by means 
 whereof that debt had been reduced from the amount claimed in 
 the amended complaint (which was $8,397.19 besides interest)- 
 to the sum of $1,906.38, and interest for which he demands- 
 judgment, who, as the amended complaint alleges, are 
 personally liable to pay the same. The amended complaint 
 prayed for judgment against the same defendants for so much 
 of the mortgage debt as should not be satisfied by a sale of the- 
 mortgaged premises on the judgment of foreclosure sought in the 
 action. 
 
 This defendant demurs to the supplemental complaint upon 
 two grounds ; first, that there is a defect of parties defendant, in 
 that she is not a necessary or proper party to the cause of 
 action stated in that complaint ; and second, that the supplemental 
 complaint does not state facts sufficient to constitute a cause of 
 action against her. 
 
 The defendant -w-ho interposes this demurrer seems to have 
 wholly misapprehended the office and province of a supplemental 
 complaint. The Code (§ 5-i-i) provides that the court may per- 
 mit a party " to make a supplemental complaint, answer, or 
 reply, alleging material facts which occurred after his former 
 pleading, or of which he was ignorant -when it was made,. 
 
III. Technioal Rules. (13) Supplemental Complaint. 603 
 
 McRoberts v. Pooley, 29 Abb. N. C, lU. 
 
 including the judgment or decree of a competent court, rendered 
 after the commencement of the action, determining the matters 
 in controversy, or a part thereof." 
 
 Obviously it is not necessary, nor was it ever intended, that 
 the supplemental complaint should set up all the facts constitut- 
 ing the plaintiff's cause of action, or showing that those originally 
 made defendants were proper parties to the action. 
 
 Its province is only to set out such material facts as have 
 occurred since the former complaint which may have changed 
 the position and rights of the parties, and thus varied the relief 
 to which the plaintiff is entitled. This is sometimes the result 
 of a judgment or decree in another action determining the mat- 
 ters in controversy between the parties or some part thereof. 
 Such is the case here. 
 
 The foreclosure of the prior mortgage upon the same premises 
 as were covered by the plaintiff's mortgage, and the sale of those 
 premises for a sum which created a surplus, which the plaintiif 
 was entitled to have applied on his mortgage debt, and which 
 had been so applied, made a very material change in the rights 
 of the parties to the action, and when properly brought before 
 the court show that the plaintiff no longer requires, or should be 
 allowed to have, a foreclosure of his mortgage ; and that the 
 relief to which he is now entitled, and the only relief he can 
 have in the action, is a personal judgment against the defend- 
 ants liable to pay the debt secured by his mortgage for as much 
 of that debt as now remains unpaid. To show how the plaintiff's 
 rights have changed since he commenced his action, and to what 
 relief he is now entitled is the only purpose of his supplemental 
 complaint. It is not necessary that he should repeat the allega- 
 tions contained in his amended complaint. That is still before 
 the court, a part of the record, and when read with the supple- 
 ment thereto shows the present state of the plaintiff's demand 
 and the relief which he now asks for. 
 
 These considerations show that the demurrer cannot be sus- 
 tained, because it was not necessary that the supplemental com- 
 plaint should show all the facts constituting the plaintiff's cause 
 of action, or that the defendant who demurs was properly made 
 a party to the action, but only those facts arising since the 
 
60-i Abbott's Select Cases on Code Pleading. 
 
 McRoberts v. Pooley, 29 Abb. N. C, 114. 
 
 10 former complaint, wliich have changed the rights of the parties 
 and made other relief proper than that demanded in that com- 
 plaint. See Abbott's Annual Digest for 1884, p. 262, note of 
 decision in Frericks v. Coster. 
 
 The defendant's counsel thinks his client has no resource but 
 to demur, and that if she does not judgment will be taken against 
 her. But this is not so. If the allegations of the supplemental 
 complaint are true she must admit them, and that cannot de- 
 prive her of any right. If they are false she can deny them, 
 and the plaintiff can gain nothing, nor can she lose anything, by 
 his false allegations. When she comes to trial she may stand on 
 her original answer, and if then the plaintiff proves no cause of 
 action against her, she will have judgment dismissing his com- 
 plaints, both the former and the supplemental one, as to her, 
 and with or without costs, as equity shall require. Clearly the 
 plaintiff can have no judgment against her unless, upon the facts 
 appearing upon his former complaint and the supplemental one, 
 taken together and proved on the trial, he shows an existing 
 cause pf action against her, and that he is entitled to relief 
 12 against her also. 
 
 There must be judgment for the plaintiS upon the demurrer, 
 with leave to defendant to answer in twenty days, on payment of 
 costs. 
 
 Beckwith and Titus, JJ., concur. 
 
^DDE^D^. 
 
 NOTES OF EECENT CASES. 
 
 COMPLAINTS IJSr ACTIONS FOE THE PKICE OF 
 GOODS SOLD. 
 
 [Principal Caee, p. 1, this Vol.] 
 
 California.— Bedei v. Kowalsky, 99 Cal., 236; s. c, 33 Pac. Rep., 904. 
 ("Where acceptance is alleged, -complaint is not demurrable, though it 
 fails to show delivery within the time agreed.) Illinois. — Keyes v. 
 Binkert, 48111. App., 359. (In an action on express contract, no allegation 
 of defendant's promise to pay the damage which the law imposes for the 
 breach of the conti-act is necessary ; otherwise if the action is on a con- 
 structive contract.) Indiana.— 'Need v. Shewalter, 5 Ind. App., 147 ; s. c, 
 31 N. E. Eep., 848. (In an action for the price of goods sold under an exe- 
 cutory contract, which stipulated that the goods should be first class, 
 plaintiff need not allege that they were first class.) Maine. — Wellington 
 V. Milliken, 83 Me., 58 ; s. c, 19 At). Rep., 90. (An averment of a subse- 
 quent parol agreement changing the place of delivery is traversable, and 
 must be laid on some particular day.) Nebraska. — Powder River Live 
 Stock Co. V. Lamb., 38 Neb., 839; s. c, 56 N. W. Rep., 1019. (Complaint 
 held bad on demurrer, which set up a verbal contract for the sale of goods 
 of over the value of $50, and attempted to take the contract out of the 
 statute by merely alleging a delivery of the goods to the defendant with- 
 out averring that he received and accepted them.) Neiv York. — Logan 
 V. Berkshire Apartment Ass'n, 3 Misc., 396 ; s. c, 33 N. Y. Supp., 776 ; 53 
 State Rep., 133. (Where defendant's acceptance is alleged, performance 
 by plaintiff within the time fixed by the contract, or within a reason- 
 able time, need not be alleged.) Oregon. — Duzan v. Meserve, 34 Oreg., 
 533; s. c, 34 Pac. Rep., 548. (Complaint alleging the sale of plaintiff's 
 right, title and interest in the goods is not defective for failing to define 
 plaintiff's interest in the property.) United States. — Buckstaff v. Russell, 
 151 U. S., 636 ; s. c, 14 Supm. Ct., 448. (In an action for a deferred pay- 
 ment for machinery delivered, complaint need only allege the delivery 
 and the expiration of the time in which the payment was to be made, 
 without alleging the fulfillment of a warranty that the machine should 
 work to defendant's satisfaction, though the contract provided to the 
 efl^ect, that in case the machine was not satisfactory, and plaintiffs on 
 notice failed to make it so, defendant might declare the contract paid in 
 full, or demand back what had been paid with damages, and surrender 
 the machine.) Washington. — Tingley v. Fairhaven Land Co., Wash., 
 1894, 36 Pac. Rep., 1098. (Where it is alleged that defendant took 
 possession of the goods, an allegation of a tender thereof is unnecessary.) 
 
 605 
 
606 Notes of Recent Cases. 
 
 COMPLAINTS IN ACTIONS FOR THE VALUE OF 
 GOODS SOLD AND DELIVERED. 
 
 [Principal Case, p. 1, this Vol.] 
 
 Alabama. — Smith v. Dick, 95 Ala., 311 ; s. c, 10 So. Rep., 81j. (In an 
 action on an account for merchandise sold, it is sufficient to allege that 
 plaintiff claimed " of defendant the sum of $100 for a mule that plaintiff 
 sold defendant.") California. — Behlow v. Short, 91 Cal., 141; s. c, 27 
 Pac. Rep., 546. (Complaint is not ambiguous or uncertain because it fails 
 to state where the goods were sold.) Colorado. — "Wilcox v. Jamison, 
 Colo., 1894, 36 Pac. Rep., 903. (An averment of defendant's indebtedness 
 in a specified sum, and that he has not paid any part thereof, is equivalent 
 to an averment that the indebtedness is due and unpaid, there being- 
 nothing to indicate tlie contrary.) Indiana. — Jaqua v. Shewalter, Ind. 
 App., 1893, 36 N. E. Rep., 173; reargument, 37 id., 1072. (Complaint 
 must allege that the debt is due and unpaid.) Michigan. — Allis v. Voigt, 
 S3 Mich., 537 ; s. c, 47 N. W. Rep., 334. (Under the common counts for a 
 machine sold and delivered, plaintiff cannot recover for an extra wheel 
 wliich he furnished because the original wheel had been broken by defend- 
 ant's truckman, as defendant's liability therefor would not depend mereh' 
 upon the questions, whether the wheel was furnished and whose duty it 
 was to furnish it, but would involve other issues, as to whether defendant 
 was responsible for his servant, and if the servant was negligent.) 
 Richards v. Burroughs, 63 Mich., 117 ; s. c, 38 N. W. Rep., 755. (It is not 
 necessary to set forth the contract or the breach thereof.) Robinson v. 
 Watson, 101 Mich., 466 ; s. c, 59 N. W. Rep., 811. (It is sufficient to allege 
 defendant's promise to plaintiff's assignor, without alleging promise to 
 plaintiff.) il/mKC-sof a.— Pioneer Fuel Co. v. Hager, Minn., 1894, 58 N. W. 
 Rep., 838. (Complaint alleging that " defendant is indebted to plaintiff in 
 the sum of $331.38, upon an account for goods s Id and delivered to him 
 at his request," is bad both at common law and under the new procedure, 
 in that it does not state by whom the goods were sold.) New York. — 
 Swan Lamp Manuf. Co. v. Brush-Swan Electric L. Co., 18 N. Y. Supp., 
 869; s. c, 46 State Rep., 535. (Under the Code of Civil Procedure, a 
 partv who has fully performed a special contract for sale of goods may 
 count on the implied assumpsit of the purchaser to pay the stipulated 
 price, and is not bound to declare specially on the agreement.) Newton 
 V. Browne, 6 Misc., 603; 56 State Rep., 605; s. c, 36 N. Y. Supp., 83. 
 (Complaint must allege that the debt is unpaid.) South Carolina. — Cone 
 Export, etc. Co. v. Poole, 41 S. C, 70; s. c, 19 S. E. Rep., 303. (Form of 
 complaint approved.) Te.vas. — Petri v. Neimeyer, Tex. Civ. App., 1894, 
 36 S. W. Rep., 366. (Petition not demurrable for failing to show when 
 the demand became due, where it alleges that it is past due and unpaid, 
 and the account attached shows that it has become due.) 
 
Sj)l'itting Cause of Action. 60*1 
 
 SPLITTING CAUSE OF ACTION. 
 
 [Principal Case, p. 5, this Vol.] 
 Colorado. — Hallack v. Gagnon, 4 Colo. App., 360; s. c, 36 Pac. Rep., 
 70. (Recovery for four months delay, under an agreement to pay a speci- 
 fied sum per month in case of delay in the completion of a building, is not 
 a bar to a recovery for additional delay.) Indiana. — Smiley v. Deweese, 
 Ind., 1891, 37 N. E. Rep., 505. (PlaintifE cannot be required to separately 
 state and number different breaches of an entire contract.) Kansas. — 
 German Fire Ins. Co. v. Bullene, 51 Kan., 764; s. c, 33 Pac. Rep., 467. 
 (Debtor cannot by assignment split cause of action.) Bolen Coal Co. i\ 
 Whittaker Brick Co., 53 Kan., 747; s. c, 35 Pac. Rep., 810. (Recovery on 
 part of a running account bars a recovery on the remaining portion.) 
 Jl/ari/?ared.— Olmstead v. Bach, 78 Md., 183; s. c, 37 Atl. Rep., 501. (Only 
 <3ne action lies for a breach of contract of employment because of a wrongful 
 <lischarg-e, and employ^ cannot bring successive actions for installments 
 of wages, though he continues out of employment.) 3Iichigan. — Conti- 
 nental Ins. Co. V. H. M. Loud Lumber Co., 93 Mich., 139; s. o., 53 N. W. 
 Eep., 394. (An insvirance company, subrogated to a portion of the claim 
 against one whose negligence caused the loss, cannot bring an action to 
 recover only a portion of the damage caused.) Minnesota. — Bowe v. 
 Minnesota Milk Co., 44 Minn., 460; s. c, 47 N. W. Rep., 151. (By con- 
 tract, defendant, a corporation, agreed to take all the milk produced by 
 plaintiff during a year. Before the expiration of tlae year the defendant 
 corporation dissolved and thereby rendered itself incapable of taking the 
 millv. Held, that defendant's act constituted a breach of tlie whole con- 
 tract, and a recovery for failure to take the milk for three months barred 
 another action for failure to take tlie milk during a subsequent period.) 
 Missouri. — Williams v. Kitchen, 40 Mo. App., 604. (Two notes constitute 
 independent causes of action, thougli given in tlie same transaction, and 
 a recovery on one after the maturity of both will not bar an action on the 
 other.) Neiv York. — Underbill v. Collins, 15 N. Y. Supp., 495. (Where 
 rent is payable in monthly installments, a recovery of all the rent due up 
 to the time of the action, against a tenant who quitted the premises, does 
 not bar an action for installments subsequently falling due.) Miller v. 
 Union Switch & Signal Co., 13 N. Y. Supp., 711 ; s. o., 37 State Rep., 110. 
 (Where there are several assignments of installments, due at different 
 times, to different assignees, one assignee is not barred froni recovering 
 because another assignee has recovered in a previous action, though the 
 Installments of both were due when the first action was brought, and the 
 assignor could have maintained but one action for all installments due, if 
 the assignments had not been made.) Samuel v. Fidelity & Casualty Co., 
 76 Hun, 308; s. c, 37 N. Y. Supp., 741. (In an action for breach of a con- 
 tract to become surety, recovery was had for tiie expenses which had then 
 been incurred in getting other sureties, held, that a subseqiient action 
 could not be maintained to recover a sum paid to the new sureties which 
 was agreed to be paid upon the happening of a contingency, though it 
 occurred after the former action.) Lorillard v. Clyde, 133 N. Y., 41 ; s. c, 
 35 N. E. Rep., 393. (Recovery of a dividend for one year upon a guaranty 
 
Notes of Recent Cases. 
 
 of an annual dividend of 1% for seven years does not bar an action upon 
 the guaranty for a dividend of a subsequent yeai-.) North Carolina. — 
 Simpson v. Elwood, 114 N. C, 538; s. u., 19 S. E. Rep., 598. (Separate- 
 actions may be maintained, in order to bring tliem within the jurisdiction 
 of the justice's court, on each item of an account of goods sold at different 
 times, where the account has not become an account stated.) Marks v. 
 Ballance, 113 N. C, 28; s. c, 18 S. E. Rep., 75. (Where separate accounts 
 have been consolidated into an account stated, they cannot afterwards be 
 separated, so as to bring them within the jurisdiction of the justice's- 
 court.) Pennsylvania. — Hill v. Joy, 149 Pa. St., 243; s. c, 24 Atl. Rep., 
 293. (Recovery of the proportion of oil taken from part of the land leased, 
 which had been reserved as rent, bars a subsequent action for the failure 
 to operate for oil upon other lands included in the lease for which a differ- 
 ent proportion of oil was to be paid as rent.) Terreri v. Jutte, 159 Pa. St., 
 244; s. c, 28 Atl. Rep., 225. (A superintendent who agrees to work for a 
 salary and also to board and furnish supplies to workmen, is not barred 
 from recovering from his employer for money paid out for board and sup- 
 plies by having previously recovered his salary in an action therefor.> 
 United States. — Butterfield v. Town of Onterio, 44 Fed. Rep., 171. (Inter- 
 est coupons to a negotiable bond are independent promises, and a recovery 
 on one will not bar a subsequent action on another, though both coupons 
 were due when the first action was broug-ht.) 
 
 COMPLAINTS IN ACTIONS UPON BUILDING 
 CONTRACTS. 
 
 [Principal Case, p. 32, this Vol.] 
 
 Alabama.— Da,v\s v. Badders, 95 Ala., 348; s. c, 10 So. Rep., 422. (Xo 
 special allegation of the obtaining of the architect's certificate is neces- 
 sary, where it is alleged that plaintiffs have complied with all the pro- 
 visions of the contract on their part, and erected the building according to 
 the contract.) Florida. — Wilcox v. Stephenson, 80 Fla., 377; s. c, 11 So. 
 Rep., 659. (Allegation in the short form of the performance of all condi- 
 tions precedent includes the obtaining of architect's certificate.) Illi- 
 nois. — Galbrath v. Chicago Architeo. Iron Works, 50 111. App., 247. 
 (Where everything has been done, including the obtaining of the archi- 
 tect's certificate, recovery may be had under the common counts.) Mis- 
 souri.— ^Y imams V. Chicago, etc., Ry. Co., 113 Mo., 463; s. c, 30 S. W. 
 Rep., 631. (In an action for work done under a contract by which the 
 compensation for the work was to be determined by an engineer's 
 measurements, under a quantum meruit, plaintiff can sliow that the 
 engineer had not measured the work according to the contract.) Ray v. 
 Boteler, 40 Mo. App., 313. (The obtaining of architect's cei-tificate, in- 
 cluded in averment in short form of the performance of all conditions 
 precedent by plaintiff.) JVe»i York. — Weeks v. O'Brien, 141 N. Y., 199; 
 s. c, 36 N. E. Rep., 185. (Where an arcliitect's certificate is a condition 
 precedent to payment, builder's complaint must allege generally or 
 
Complaints in Actions for Value of Semoes Rendered. 609 
 
 ■specially the performance of that condition, or set forth facts sufficient to 
 excuse it. It is not enough to allege that the building was completed 
 according to the terms of the contract.) Gillies v. Manhattan Beach Imp. 
 Co., 73 Hun, .'507; s. c, 36 N. Y. Supp., 381. (Where the contract has 
 been fully completed, builder may sue on a quantum meruit.) Logan t'. 
 Berkshire Apartment Ass'n., 18 N. Y. Supp., 164; s. c, 46 State Rep., 14. 
 {Details of contract need not be set out; it is sufficient to allege the terms 
 generally, and upon the trial prove full performance.) Elting v. Dayton, 
 67 Hun, 435 ; s. c, 51 State Rep., 439 ; 33 N. Y. Supp., 154. (Though com- 
 plaint allege full performance, it may be amended so as to allege a modi- 
 fication or waiver of a stipulation, in order to conform it to proof.) 
 Pennsylvania. — Gillison v. Wanamaker, 140 Pa. St., 358; s. c, 31 Atl. 
 Rep., 361. (In an action on a building contract by which payment for 
 extra work depended upon the architect's certificate of what was reason- 
 able, plaintiff cannot recover for extra work, where no affidavit of defense 
 is interposed, if his statement of claim merely alleges that after the work 
 was done, it was examined and approved by the architect.) 
 
 COMPLAINTS m ACTIOlSrS FOE THE VALUE OF 
 SERVICES EEJSFDEEED, THE AGEEED C0:MPEN- 
 SATION, OE DAMAGES FOE A WEONGFHL 
 DISCHAEGE. 
 
 [Principal Case, p. 40, this Vol.] 
 
 California.— Foltz v. Cogswell, 86 Gal., 543 ; s. c. 35 Pac. Rep., 60. (A 
 ■complaint alleging both agreed price and the value of services rendered, 
 regarded as on implied contract, and the evidence of the value of the 
 services admitted.) Burns ». Gushing, 96 Gal., 669; s. c, 81 Pac. Rep., 
 1134. (In an action for legal services, complaint alleging that in May and 
 June, 18y4, defendant retained plaintiff in certain actions, and that in pur- 
 suance of such retainer, plaintiff rendered valuable services to said de- 
 fendants since May or June, 1884, up to Jan. 39, 1890 — is not demurrable 
 because ambiguous ; defendant should have demanded a bill of par- 
 ticulars.) Illinois. — Bean t). Elton, 44 111. App., 443. (Under the common 
 counts for labor done, no recovery can be had for damages for breach of 
 the special contract.) Chicago, etc., R. Co. «. Johnson, 44 111. App., 334. 
 {The agTeed compensation may be shown under the common counts.) 
 Stanhope v. School Directors, 43 111. App., 570. (Where by statute public 
 school teachers are required to have a certificate of qualifications as a con- 
 dition precedent to their right to receive any portion of public money, the 
 declaration of a teacher in an action for salary must allege compliance 
 with such condition, and it is not enough to aver generally, that the 
 teacher is legally or lawfully qualified.) Mount Hope Gem. Ass'n v. 
 Weidenman, 139 111., 67; s. c. 38 N. E. Rep., 834. (Where the common 
 counts have been filed, it is not improper to allow amendment by filing 
 a special count founded on breach of contract.) Indiana. — Biickey 
 V. Irwin, 133 Ind., 51; s. c. 33 N. E. Rep., 694. (In an action for 
 39 
 
610 Notes of Recent Cases. 
 
 professional services, complaint is demurrable, if it contain no allegation 
 that defendant is indebted to plaiatifl, or that the sum she promised to 
 pay is due and unpaid.) Puterbaugh v. Puterbaugh, 7 Ind. App., 380 ; 33 
 N. E. Rep., 808. (Complaint regarded as on quantum meruit, which 
 alleged that defendant's testator agreed to provide for plaintiff in his will, 
 if he would live with him, that deceased failed to so provide for him, and 
 that plaintiff's services were worth $.'5,000.) Iowa. — Wernli v. Collins, 87 
 la., 548; s. c. .54 N. W. Rep., 36.5. (Where plaintiff sues on express con- 
 tract for services rendered, he cannot recover on quantum meruit.) 
 Maryland. — Fairfax, etc., Manuf. Co. v. Chambers, 7.5 Md., 604; s. c. 23 
 Atl. Rep., 1024. (Under the common counts, plaintiff may give evidence 
 of value of services, though it appears that the services were performed 
 under a special contract. In such a case, however, it is the usual practice 
 to join with the common counts a special count on the contract.) Massa- 
 chusetts. — Paige V. Barrett, 1.51 Mass., 67 ; s. c. 33 N. E. Rep., 735. (In an 
 action for wrongful discharge, it is nota material defect for the declara- 
 tion to conclude " wherefore, defendants owe him * * * the amount 
 of his wages.'') Michigan. — Wyatt v. Herring, 90 Mich., 581 ; s. c. 51 
 N. "W. Rep., 681. ("Where there are both the common counts and a special 
 count on the contract, if the evidence only supports the special count, and 
 fails to show the value of the services, recovery cannot be had on the com- 
 mon counts.) 3Iississippi. — Gibson-Moore Manuf. Co. v. Meek, 71 Miss., 
 614; s. c. 15 So. Rep., 789. (Under the new procedure, a declaration 
 alleging that plaintiff hired defendant for one year at $10 a week; that 
 without any fault on his part he was dischai'ged; and that defendant was 
 indebted to him for the time he contracted at $10 a week, is sufficient as 
 against demurrer, or after verdict.) Missouri. — Glover v. Henderson, 120 
 Mo., 867 ; s. c. 25 S. W. Rep., 175. (In an action for wrongful discharge, 
 petition set out the contract, averred a wrongful discharge, and the value 
 of the services rendered. Held, that the action was for quantum meruit, 
 and not for damages for breach of contract.) Ryors v. Prior, 31 Mo. App., 
 555. (In an action for attorney's fees, a petition which sets out the 
 services rendei-ed, states the value, and charges that the plaintiff refused 
 to pay, is not open to the objection that it does not allege that the account 
 is due.) Nebraska. — Small u. Poffenbarger, 32 Neb., 234; s. c. 49 N. W. 
 Rep., 337. (Complaint alleging that there is due from plaintiff for work 
 and labor done and performed by defendant at plaintiff's request in j'ears 
 specified, a certain sum of money, no part of which has been paid, should 
 not be dismissed for failing to state a cause of action, though it does not 
 state the value of the services or plaintiff's promise to pay therefor.) 
 Irahoff V. House, 36 Neb., 38; s. c. 53 N. W. Rep., 1032. (Where com- 
 plaint in an action for services seeks to recover on quantum )nentit, evi- 
 dence of a contract for a fixed amount is inadmissible.) New York. — 
 Meissner v. Brennan, 39 State Rep., 443 ; s. c. 15 N. Y. Supp., 671 ; 21 Civ. 
 Pro. R. , 36. (An allegation of the value of the services rendered is ad- 
 mitted, if not denied, but if the agreed compensation and value are both 
 alleged, the action will be regarded as on the express contract, and de- 
 fendant need not deny the allegation as to value.) Foley r. Mail & Exp. 
 Pub. Co., 8 Misc., 91 ; s. c. 28 N. Y. Supp., 778. (Where employment was 
 
Complaints in Actions for Value of Services Rendered. 611 
 
 for a given time, it services were satisfactory, an allegation that plaintiff 
 was discharged " without any reasonable cause whatever " is sufficient on 
 demurrer.) Fuld u. Kahn, 4Misc., 600; 54StateRep., 134; 34N. Y. Supp., 
 558. (In an action for the agreed compensation, on failure to prove the 
 express contract, defendant cannot recover the value of the services with- 
 out amendment.) American Encaustic Tiling Co. v. Reich, 34 State Rep., 
 64; s. c. 11 N. Y. Supp., 776; aff'd in 35 State Rep., 579; 13 N. Y. Supp., 
 937. (Plaintiff may claim both the agreed compensation and the value of 
 his services, and will not be required to elect between them at the trial.) 
 Miller v. Schumann, 19 N. Y. Supp., S13. (Complaint alleging that 
 plaintiff agreed to pay defendant for services in putting them in com- 
 munication with manufacturers, " so that " that they might procure 
 agencies for the manufacturer's goods, dismissed for failing to allege that 
 defendants did procure the agencies.) Griffin v. Jackson, 36 State Rep., 
 110 ; s. u. 18 N. Y. Supp., 331. (To sustain a judgment by default in the 
 justice's court, a complaint alleging " that the plaintiffs are indebted to 
 'defendant in the sum of $13.35, being for balance due to him from plaint- 
 iffs for work and labor done and performed at their request," etc., suffi- 
 ciently shows that the debt was paj'able.) Tracy v. Tracy, 59 Hun, 1 ; 
 s. c. 35 State Rep., 67 ; 13 N. Y. Supp., 6fio. (In an action for services, 
 complaint must allege that defendant has not been paid for his services, 
 but a count alleging that "plaintiff is indebted to this defendant," fol- 
 lowed by the particulars of the indebtedness, is sufficient.) North Caro- 
 lina.— Stokes V. Taylor, 104 N. C, 394 ; s. c. 10 S. E. Rep., 566. (Under a 
 complaint alleging that defendant is indebted to plaintiff for |1,440 "tor 
 services performed as a clerk in defendant's store at $30 per month," giv- 
 ing period of employment, plaintiff may prove services either under 
 special contract or on quantum meruit.) S. P., Roberts v. P. A. Demens 
 Wood Working Co., Ill N. C, 483; s. c. 16 S. E. Rep., 415; Fulks v. 
 Mack, 108 N. C, 601 ; s. c. 13 S. E. Rep., 93. South Dafcoto.— Busta v. 
 Wardall, 3 S. D., 248 ; s. c. 53 N. W Rep., 418. (Complaint alleging that 
 defendant is indebted to plaintiff in the sum of $300 for work and labor 
 performed by him for defendant during the year 1888, at defendant's re- 
 quest, for which work and labor said defendant agreed to pay plaintiff the 
 sura of $300, but has not paid said sum or any part thereof, is sufficient to 
 sustain a judgment by default, though it would have been subject to a 
 motion to be made more definite and certain.) Wisconsin. — Beers v. 
 Kuehn, 84 Wis., 33 ; s. c. 54 N. W. Rep., 109. (Where plaintiff counts on 
 the express contract and also for the reasonable value of the work, but 
 blends the two causes of action by asking judgment as it but one was 
 stated, defendant having gone to trial without objection, and the evidence 
 as to the express contract being conflicting, it is error to charge tliat the 
 plaintiff cannot recover on a quantum meruit .) Waterman v. Waterman, 
 81 Wis., 17; s. c. 50 N. W. Rep., 668. (Plaintiff may count on both 
 quantum meruit and express contract.) La Coursier v. Russell, 83 Wis., 
 265 ; s. c. 52 N. W. Rep., 176. (One wrongfully discharged may bring an 
 action upon the contract for an instalment of wages or the proportion 
 thereof due at the time of the discharge, and is not obliged to resort to a 
 quantum meruit.) 
 
612 Notes of Recent Cases. 
 
 COMPLAINTS IN ACTIONS ON BILLS, NOTES, 
 CHECKS, ETC. 
 
 [Principal Case, p. 58, this Vol.] 
 
 (1) Execution or indorsement by defendant. 
 (3) The note, etc.; its contents, etc. 
 
 (3) Consideration. 
 
 (4) Ilafurify. 
 
 (5) Plaintiff's otvnershij}. 
 
 (6) Acceptance, lyresentment, protest, notice, etc. 
 
 (7) Non-p>ayinent. 
 
 (1) Execution or indorsement by defendant. 
 
 California.— Qmit\\ v. Waite, 103 Cal., 373; s. c. 37 Pac. Rep., 233. 
 (Delivery imported from allegation that defendant "duly made" note 
 and setting out copy thereof.) Goetz ■». Goldbaum, Cal., 1894, 87 Pac. 
 Rep., 646. (Where copy of note set forth in complaint purported to be 
 signed by defendant " per Wm. G.," Held, that complaint was not de- 
 murrable for failing to allege who Wm. G. was, or his authoritj' to act 
 for defendant.) Connecticut. — Lord v. Russell, 64 Conn., 86; 39 Atl. 
 Rep., 343. (Allegation that defendant by his note promised to pay 
 plaintiff a specified sum, at a place and time stated ; that the note is 
 now the property of plaintiff, and making a copy of the note a part of 
 the pleading, sufficiently shows execution and delivery of note.) Salomon 
 r. Hopkins, 61 Conn., 47; s. c. 33 Atl. Rep., 716. (Where complaint al- 
 leg-ed a promise by three defendants to pay the note sued on, and a copy of 
 the note which formed a part of the pleading was signed by " A. J. & J. 
 H. Hopkins," held, that evidence was admissible to show that the third 
 defendant, J. M. Hopkins, adopted the signature.) Idaho. — Elbring v. 
 Mullen, Idaho, 1894, 88 Pac. Rep., 404. (Complaint alleging that defend- 
 ant made and delivered note, and setting' out a copy, sufficiently shows 
 execution and delivery thereof.) Rams t). Bohm, Ind. App., 1893, 33 N. 
 E. Rep., 318. (Complaint alleging defendants were partners doing busi- 
 ness under a firm name, and setting out a copy of a note signed with 
 the firm name, sufficiently connects defendants with the note and shows 
 that it was executed by them as partners.) Bell v. Mansfield, Ky., 1890, 
 13 S. W. Rep., 888. (Allegation that defendant by his promissory note 
 herewith filed, agreed and promised to ])ay, etc., sufficiently shows exe- 
 cution and delivery of the note.) MassachiiaeitK. — Foster v. Leach, 160 
 Mass., 418 ; s. c. 36 N. E. Rep., 69. (In an action against indorsers, a de- 
 claration alleginga separate contract of indorsement, will not be regarded 
 as charging a joint liability because it concludes with an averment that 
 defendants owe plaintiff the amount of the note.) MisKuiiri. — First Na- 
 tional Bank v. Landis, 34 Mo. App., 433. (Allegation that defendant, A., 
 made his promissory note to the order of plaintiff, and that the defendant, 
 B., indorsed the same and thereby became a maker of the note with A., is 
 
Complaints in Actions on Bills, Notes, Checks, Etc. 613 
 
 sufRcient to charge both A. and B. with the payment of the note, though 
 at common law an express allegation of a promise to pay on the part 
 of both defendants would have been necessary.) Mautnna. — Schuttler u. 
 V. King, 13 Mont., 236; s. c. 33 Pao. Rep., 938. (Complaint alleging the 
 execution and delivei-y of a note by defendant to plaintiff for a specified 
 sum, etc., is not bad on demurrer because it fails to expressly allege 
 that defendant promised to pay plaintiff the amount of the note.) 
 New York. — Casco Nat'l BanK ». Clark, 189 N. Y., 307. (An action 
 may be maintained against persons signing a note, individually, 
 though the words " prest." and "treas." are placed after their sig- 
 natures respectively, and a corporate name is printed on the margin of the 
 note, if plaintiff purchased the note without knowledge that it was only 
 intended to bind the corporation.) S. P., Sykes v. Temple, 69 Hun, 448. 
 Hand v. Society for Savings, 44 State Rep., 785 ; s. c. 18 N. Y. Supp., 157. 
 (Under a complaint alleging the making of the contract by the defendant 
 corporation, and setting forth a copy of a note signed by " S. H. M. , 
 Prest.," evidence is admissible to show that the person who signed the 
 note was president of the defendant, and that he was authorized to exe- 
 cute it in its behalf.) First National Bank of Oxford v. Turner, 24 N. Y. 
 Supp., 793. (Complaint held bad on demurrer, which alleged that C. T. 
 was agent of defendant, and as such agent made "his" promi.ssory note, and 
 setting outanote signed by "C. T., Agt.") Vogle v. Kirby, 15 Civ. Pro. E., 
 333 ; s. c. 4 N. Y. Supp., 99 ; 18 State Rep., 387. (Complaint is bad on de- 
 murrer, which alleges that the action is brought on an instrument for the 
 payment of money only and setting- forth a copy, without alleging- that 
 it was made by defendant.) Edison General Electric Co. v. Zebley, 73 
 Hun, 166 ; s. c. 55 State Rep., 63 ; 35 N. Y. Supp., 389. (In an action by 
 payee to charge one who indorsed the note with liability thereon, facts 
 must be alleged to overcome the presumption that defendant is the second 
 indorser) ; and see S. P., Jaffray v. Krauss, 79 Hun, 449; s. c. 61 State 
 Rep., 354; 39 N. Y. Supp., 987; Smith v. Storm, 6 Misc., 637; s. c. 58 
 State Rep., 573 ; 37 N. Y. Supp., 143; McPhillips ». Jones, 26 N. Y. Supp., 
 101 ; N. Y. Security & Trust Co. v. Storm, 81 Hun, 33 ; s. c. 63 State Rep., 
 539 ; 39 N. Y. Supp., 605. Oregon. — Deeringi). Creighfcon, 19 Ore., 118 ; s. c. 
 34 Pac. Rep., 198. ("Where it is sought to charge an indorser as a joint 
 maker the complaint must state facts to show his liability as sucli.) 
 South Carolina.— Wautson i). Barr, 37 S. C, 463; s. c. 16 S. E. Rep., 188. 
 (Complaint held sufficient to charge both defendants as makers of the non- 
 negotiable instrument sued on, which alleged that the instrument was 
 executed by both defendants and delivered to plaintiffs, and sets forth a 
 copy of the instrument which appears to be subscribed by one of the 
 defendants and indorsed by the other.) South Dakota. —Scott v. Ester- 
 books, S. D., 1894, 60 N. W. Rep., 850. (Form of complaint setting 
 fortli a copy of note approved.) Texas. — Behrens v. Dignavvity, 4 Tex. 
 Civ. App., 301 ; s. c. 33 S. W. Rep., 288. (Execution of note sufficiently 
 averred, in absence of exception, where it was alleged that defendant 
 was indebted to plaintiff in a specified sum according to the terms of a 
 promissory note, setting out a copy.) 
 
614 Notes of Eecent Cases. 
 
 (3) The note, etc. ; its contents, etc. 
 
 California.— Ward v. Clay, 82 Cal., 503 ; s. o. 33 Pad. Eep., 50. (Note 
 annexed as an exhibit cannot be considered on demurrer in support of tiie 
 complaint.) Brown i). Weldon, 71 Cal., 393 ; s. c. 13 Pac. Rep., 380. 
 (Where the note is set out, an allegation of defendant's promise to pay 
 is unnecessary.) Colorado. — Salazar v. Taylor, 18 Colo., 538 ; s. c. 33 
 Pac. Rep., 369. (Allegation of promise by defendant under his hand is 
 equivalent to an allegation of a promise in writing.) Georgia. — Simpson 
 V. Earle, 87 Ga., 315 ; s. c. 13 S. E. Rep., 446. (Though It appears on the 
 face of the note set forth that it was given for rent, it is not necessary to 
 allege that the relation of landlord and tenant existed.) Indiana. — Jaqua 
 «. Woodbury, 3 Ind. App., 389; s. c. 39 N. E. Rep., 573. (Failure to aver 
 that the note was made payable to plaintiff is immaterial, where the 
 note is made a part of the complaint.) Blackwell v. Pendergast, 133 Ind., 
 550; s. c. 33 N. E. Rep., 319. (Complaint falsely alleging that a copy of 
 note has been filed is bad on demurrer.) Gish v. Gish, 7 Ind. App., 704; 
 s. o. 34 N. E. Rep., 305. (Reference to a copy of the note is sufficient, 
 where after describing the note it is alleged that a copy is herewith filed, 
 and the allegation is immediately followed by a copy of the note marked 
 as an exhibit.) Maryland. — McCann ii. Preston, 77 Md., 30 ; s. c. 28 Atl. 
 Rep., 1103. (Note admissible in evidence under a common count for 
 money lent.) Massachusetts. — Burr v. Jay, 151 Mass., 395 ; s. c. 33 N. E. 
 Rep., 838. (A declaration on a written promise to pay a sum of money 
 need not set forth an indorsement thereon acknowledging that plain- 
 tiff had received a bond as collateral security.) Michigan. — Shaw v. 
 Fortine; 98 Mich., 3o4; s. c. 57 N. W. Rep., 128. (How. Ann. Stat., 
 § 6871, providing that in actions on promissory notes, in shall be sufficient 
 in the declaration to designate anj' person named in the note by the 
 same initials as used therein, applies to a payee in an action by him.) 
 Minnesota. — Almach v. Downey, 45 Minn., 460 ; s. c, 48 N. W. Rep., 197. 
 (Mistake in the date of note should be set out in pleading, but where 
 evidence thereof is received without objection in absence of such allega- 
 ation, the pleading may be amended.) Missouri. — Barrows B. Million, 
 43 Mo. App., 79. (Allegation of note payable to plaintiff or order, and 
 proof of a note payable to plaintiff or bearer, held an immaterial 
 variance.) Nebraska. — Barnes a. Van Keuren, 31 Neb., 165; s. c. 47 
 N. W. Rep., 848. (Where note is pleaded by setting forth a, copy, it is 
 not necessary to attach a copy thereof to the pleading as an exhibit.) 
 Neiv York. — Denick v. Hubbard, 36 Hun, 188. {Held, no variance, though 
 the proof showed that the note sued on was ante-dated.) Oklahoma. — 
 First National Bank of Arkansas City v. Jones, Okla., 1895, 37 Pac. Rep., 
 834. (Demurrer sustained for variance between the pleading and the note 
 filed as an exhibit.) Oregon. — Sperry i). Lewis, 19 Ore., 350 ; 33 Pac. 
 Rep., 961. (Though a contract is written on the same paper as the note 
 sued on, by which the maker agrees to deliver his wool clip for a year to 
 payee as security for the note with a provision that the payee should sell 
 the wool on commission, complaint need not allege that defendant failed 
 to deliver the wool, or that it was insufficient to pay the debt.) United 
 
ComplaitiU in Actions on Bills, Notes, Checks, Etc. 615 
 
 (S^afes.— Drake v. Found Treasure Min. Co., 53 Fed. Rep., 474. (Com- 
 plaint OQ a note may be amended so as to change date, amount, time of 
 payment, or names of parties, provided the identity of the note sued on is 
 preserved.) Washington. — Singer Manuf. Co. v. Hatley, 3 Wash. Tr., 
 198; s. c. 31 Pac. Rep., 384. (In an action on a note given for the purchase 
 money of a machine, and containing a stipulation that the machine 
 should remain the property of the plaintiff until the note vras paid, 
 the complaint is sufficient if it sets forth a copy of the note, and alleges 
 the sale and delivery of the machine in consideration thereof, and its 
 acceptance and retention by defendant, and his refusal to pay the note.) 
 
 (3) Consideration. 
 
 California. — Poirisr «. Gravel, 88 Cal., 79 ; s. c. 25 Pac. Rep., 962. (In 
 an action on a note or other written instx'ument, it is unnecessary to aver 
 consideration.) Indiana. — Petree v. Fielder, 3 Ind. App , 127 ; s. c. 29 
 N. E. Rep., 271. (Complaint is not demurrable for failure to allege con- 
 sideration, if the note set forth by its terms states that it was for value 
 received.) Maine. — Bartlett v. Leathers, 84 Me., 241; s. c. 24 Atl. Rep., 
 812. (Defendant's indorsement of note to plaintiff for value is sufficiently 
 averred by an allegation that defendant became liable, and in consider- 
 ation thereof promised to pay plaintiff the note.) Minnesota. — Elmquist 
 V. Markoe, 39 Minn., 494; s. c. 40 N. W. Rep., 835. (Consideration is 
 sufficiently pleaded, if the copy of the note set out is In terms for value 
 received.) New York. — Mt. Morris Bank v. Lawson, 7 Misc., 238 ; s. c. 27 
 N. Y. Supp., 372. (Where the note set out in complaint states that it was 
 given for a valuable consideration no allegation of consideration is neces- 
 sary.) Guggenheim ». Goldberger, 58 State Rep., 34; s. c. 37 N. Y. Supp., 
 433. (In an action by indorsee against the maker and indorser of a check, 
 defendant's failure to deny the allegation in the complaint that the check 
 was transferred to plaintiff for value is not an admission thereof, as such 
 averment is unnecessary in the complaint.) Beaudrias i). Walck, 17 
 N. Y. Supp., 716 ; s. c. 45 State Rep., 7. (Where the notes set out in com- 
 plaint state that they were given in consideration of certain articles the 
 title of which should not pass to the maker until the notes were paid, but 
 in no way abridging the rights of payee, /leZd, that it was not necessary 
 for plaintiff to allege the sale and delivery of the article referred to 
 in notes.) West Virginia. — McClain «. Lovvther, 35 W. Va., 297 ; s. c. 13 
 S. E. Rep., 1003. (In an action between payee and drawer of a check, 
 held, that the giving of the check implied an indebtedness, and consider- 
 ation need not be pleaded.) 
 
 (4) Maturity. 
 
 Alabama. — Freider v. Leinkauff, 93 Ala., 469; s. c. 8 So. Rep., 758. (Al- 
 legation that plaintiffs previous to suit offered to discount the note, and 
 that defendant accepted the offer, is insufficient to show that the date of 
 maturity was changed.) Indiana. — Taylor v. Hearn, 131 Ind., 537; s. c. 
 31 N. E. Rep., 301. (If the note filed as an exhibit with the complaint 
 appears to have been passed due when the suit was brought, an express 
 
616 Notes of Recent Cases. 
 
 allegation that the note is due is unnecessaiy); S. P. Postel ». Ord, 1 Ind. 
 App., 353; s. c. 37N. E. Rep., 584, South Caroima.— Stoddard «. Hill, 
 38 S. C, 385; s. c. 17 «. E. Rep., 138. (Maturity of note sufficiently al- 
 leged by an averment that the balance due thereon is " past due and 
 unpaid.") Tea.-o.5.— Grabani «. Miller, Tex. Civ, App., 1894, 34 S. W, Rep., 
 1107. (Where the only thing nece.ssary to make the note due is the holder's 
 election that it should mature, an averment, that plaintiff has demanded 
 payment, is a sufficient averment, in absence of special exception, of 
 notice of plaintiff's election, and that the debt is due.) 
 
 (5) Plaintiff's ownership. 
 CaUfornia. — Bank of Shasta v. Boyd, 99 Cal., 604; s. c. 84 Pac. Rep., 
 337. (In an action by the payee of a note, an allegation that plaintiff is 
 the owner thereof is unnecessary and a denial of such allegation raises no 
 issue.) Earnest). Crosier, 101 Cal., 360; s. c. 35 Pao. Rep., 873. (Allega- 
 tion that plaintiff is the owner and holder of note, and that the payee 
 thereof, for value, and before maturity, assigned it bj^ an endorsement in 
 blank, sufficiently shows plaintiff's title.) Pryce v. Jorden, 69 Cal., .5i59; 
 s. 0. 11 Pac. Rep., 185. (In an action by an indorsee, plaintiff's ownership 
 of the note at the commencement of the action is sufficiently pleaded b^- 
 an allegation that payee "indorsed, assigned and delivered the note to 
 plaintiff," and that no part of the same has been paid.) Illinois. — Rozet 
 ». Harvey, 36 111. App., 558. (Declaration in an action by paj'ee again.^t 
 the maker of a note need not set out a blank indorsement by plaintiff.) 
 /)id/o/ia.— Brotherton v. Street, 134 Ind., 599; s. c. 24 X. E. Rep., IOC'S. 
 (Demurrer to complaint sustained, where the copy of the note set forth 
 shows an indorsement from which it appears that the title of the note is 
 in a person other than the plaintiff.) Bascom 8. Toner, 5 Ind. App., 2t29; 
 s. c. 81 N. E. Rep., 856. (In an action by an indorsee against the maker 
 of a note, a copy of the indorsement need not be set out with the copj' of 
 the note; since in such a case the note, and not the indorsement, is the 
 contract sued on, the indorsement being merely the manner of acquisi- 
 tion.) Michigan.--B[tzer v. Wagar, 83 Mich., 333; s. u. 47 N. W. Rep., 
 210. (In an action on a note payable to bearer it is unnecessary' to allege 
 a transfer by payee to plaintiff.) Neiv York. — Pearl ii. Raduziner, 10 Misc. , 
 45; s. c. 63 State Rep., 771; 30 N. Y. Supp., 810. (In an action by payee 
 of note, a transfer thereof by him and a retransfer to him need not be 
 alleged.) Oishei v. Craven, 11 Misc., 139; s. c. 31 N. Y. Supp., 1031. (It is 
 sufficient, in an action against maker, to generally alleg'e that the note was 
 assigned, delivered, transferred and indorsed to plaintiff, without speci- 
 fically alleging that it was indorsed by payee.) Wushington. — Davis t. 
 Erickson, 3 Wash. , 654; s. c. 39 Pac. Rep. , 86. (Complaint alleg'ing that 
 plaintiff assigned the note sued on as security for a debt, and that the 
 assignee refused to bring an action thereon, states no cause of action > 
 TT7.s-co«.s7')t.— Geiltuss v. Gates, 87 Wis., 395; s. c. 58 N. W. Rep., 742. 
 (Complaint sufficiently shows plaintiff's ownership of the note, which 
 alleges the assignment of all the property of a bank to plaintiff as assig-nee 
 for the benefit of its creditors, and that he is the lawful owner and holder 
 of the note.) 
 
Complaints in Actions on Bills, Notes, Checks, Etc. 617 
 
 (6) Aaceptante, jiresentment, protest, notice, etc. 
 
 Arkansas.— War As v. Sparks, 53 Ark., 519; s. c. 14 S. W. Rep., 898. 
 (Allegation that bill was protested for non-payment, withoutmore, imports 
 all necessary steps to fix the liability of drawer or indorser.) llliiwis. — 
 Hart V. Otis, 41 111. App., 431. (In an action upon a foreign bill, protest, 
 or some excuse for the otnission tliereof, should be alleged, but the objec- 
 tion to a declai'ation omitting such allegation cannot be reached by a 
 general demurrer.) Indiana. — Brown v. Jones, 125 Ind., 373; s. c. 25 N. 
 E. Rep., 452. (In an action against tlie drawer and indorser of a bill, the 
 acceptance thereof not being the foundation of the action, a copy of it 
 need not be filed with the complaint, and if filed cannot control the aver- 
 ments.) Oflfutt D. Rucker, Ind. App., 1891; 27 N. E. Rep., 589. (In an 
 action ag-ainst drawer, it is sufficient to allege that the check was duly 
 presented and payment refused; it is unnecessary to allege the reason 
 given for the bank's refusal to pay, or that di-awer had no funds.) Michi- 
 gan.— GooAiag v. JJnderwood, Sd Mich., 187; s. c. 50 N. W. Rep., 818. 
 (Under a declaration merely charging defendant with having accepted a 
 bill on condition that the amount thereof should be found due from him 
 to drawer, plaintiff cannot prove that defendant is estopped from deny- 
 ing the indebtedness to drawer.) New York. — .Jaffray v, Krauss, 79 Hun, 
 449; s. c. 61 State Rep., 354; 39 N. Y. Supp., 987. (In action against in- 
 dorser of a note, complaint dismissed for failure to allege presentment, 
 demand and non-payment of note by maker, and notice thereof to defend- 
 ant.) Rawley v. National Bank of Deposit, 63 Hun, 550; s. c. 45 State 
 Rep., 331; 18 N. Y. Supp., 515. (In an action by a, payee of a check 
 against the bank on which it was drawn, complaint held demurrable for 
 not alleging that plaintiff indorsed the check, or that defendant was bound 
 to pay it.) Hirschfelder v. Locey Mining', etc., Co , 43 State Rep., 108; s. 
 c. 17 N. Y. Supp., 736. (In an action against the acceptor and drawer of 
 a, bill, notice to drawer of acceptoi"'s non-payment held sufficiently 
 pleaded, where complaint alleged presentment to both defendants and 
 their refusal to pay.) Alleman v. Bo wen, 39 State Rep., 833; 15 N. Y. 
 Supp., 318. (Though the note was indorsed after its maturity, to charge 
 the indorser thereon, notice to him of demand upon maker, and iiis refusal 
 to pay must be alleged.) Pennsylvania. — Penn. Natl. Bank «. Kopitzsch 
 Soap Co., 161 Pa. St., 134; s. c. 38 Atl. Rep., 1077. (In an action by trans- 
 feree against the drawer of a check, declaration held insufficient to require 
 an affidavit of defense, which contained a copy of the check, and a, com- 
 mon count for money paid, but did not allege plaintiff's title, presentment 
 to drawer, his refusal to pay, nor the amount due from him to plamtiff.) 
 C7ifa/i.— Smith ». McEvoy, 8 Utah, 58; s. c. 39 Pac. Rep., 1030. (In an 
 action against an indorser of a note, an allegation that " he had due legal 
 notice " of non-payment and dishonor thereof, held sufficient.) 
 
 (7) Non-payment. 
 
 California. — Notman v. Green, 90 Cal., 173; s. c. 27 Pac. Rep., 157. 
 (Non-payment of the note sued on must be alleged); S. P. Barney v. Vig- 
 oreaux, 93 Cal., 331; s. c. 38 Pac. Rep., 678. Wise v. Hogan, 77 Cal., 184; 
 
618 Notes of Recent Cases. 
 
 s. c. 19 Pac. Rep., 278. (In an action against the administrator of a de- 
 ceased maker, an allegation of non-payment by deceased is enough.) 
 Neiv rorfc.— Wright u. Deering, 3 Misc., 296; 50 State Rep., 338; 31 N. Y. 
 Supp., 939. (Defect in complaint on a note in not alleging the makers 
 non-payment or his indebtedness upon it, held, cured by evidence thereof 
 received without objection.) See also Note to Lent «. N. Y. & Mass. Ry. 
 Co., p. 475, this vol. 
 
 COMPLAINTS IN ACTIONS ON INSDEANCE 
 POLICIES. 
 
 [Principal Case, p. 94, tliis Vol.] 
 
 (1) Insurable interest. 
 
 (2) The ijolicy ; its execution, contents, etc. 
 
 (3) Performance of conditions. 
 
 (4) Loss ; its cause, amount, etc. 
 
 (5) Non-payme7it. 
 
 (1) Insurable interest. 
 
 Alabama. — Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala., 
 330 ; s. c. 8 So. Rep., 333. (Statutory form of complaint is sufficient 
 without expressly alleging insurable interest.) Indiana. — Phoenix Ins. 
 Co. V. Wilson, 133 Ind., 449; s. c. 35 N. E. Rep., 593. (After verdict, an 
 allegation that plaintiff was owner of the property when destroyed, suf- 
 ficiently alleges ownership in fee.) Indiana, etc., Ins. Co. v. Bogeman, 4 
 Ind. App., 237. (Complaint held to be insufficient on demurrer, in an 
 action for livestock insurance, where plaintiff's ownership or interest in 
 the insured animal at the time of its death was not alleged.) Kansas. — 
 St. Paul, etc. Ins. Co. ». Kelly, 43 Kan., 741 ; s. o. 23 Pac. Rep., 1046.) 
 (Where it was alleged that plaintiff was the owner of the goods insured 
 and destroyed by Are, and had an insurable interest therein. Held, that 
 the words insurable interest were to be regarded on demurrer as sur- 
 plusage, and not as claiming an interest less than ownership, not covered 
 by the policy.) Michigan. — Ermentrout v. American Ins. Co., Mich., 1895, 
 63 N. W. Rep., 543. (Where policy provides that loss shall be payable to 
 assignee of mortgagee as interest may appear, complaint of a subsequent 
 assignee is sufficient, which alleges an assignment to him of the former 
 assignee's interest without specially alleging a mortgage, or the extent 
 of such former assignee's Interest.) Oregon. — Hardwick v. State Ins. 
 Co., 30 Ore., 547; s. c. 26 Pac. Rep., 840. (Complaint is insufficient on 
 demurrer, if plaintiff's insurable interest, both at the time of making the 
 contract and at the time of loss, is not alleged.) Texas.— Commercial 
 Union Assur. Co. v. Dunbar, Tex. Civ. App., 1894, 36 S. W. Rep. 638. (De- 
 murrer sustained for a failure to allege that plaintiff had an insurable 
 interest at the time of insurance and the time of loss.) United States. — 
 Earnmoor v. California Ins. Co., 40 Fed. Rep., 847. (Libel on a policy of 
 marine insurance should show an insurable interest in vessel at the time 
 
Complaints in Actions on Insurance Policies. 619 
 
 when the policy purports to take effect.) Kentucky Life & Acci. Ins. 
 Co. V. Hamilton, 68 Fed. Rep., 93. (An allegation that the policy in suit 
 was not speculative, without expresslj' alleging- that plaintiff had an in- 
 surable interest, is sufficient after verdict.) Vermont. — Diclvernian «. 
 Vermont Mat. Fire Ins. Co., Vt., 1895, 30 Atl. Rep., 808. (Plaintiff's in- 
 surable interest at the time of making policy and time of loss, must be 
 alleged.) 
 
 (2) The policy ; its execution, contents, etc. 
 
 California. — Rebut «. Legion of the West, 96 Cal., 661; s. c. 31 Pac. 
 Rep., 1118. (In an action to recover an instalment of an endowment, it is 
 insufficient to set forth the coupon therefor without the certificate to 
 which it is attached and to which it refers.) Himmelien ». Supm. Coun- 
 cil Am. Legion of Honor, Cal., 1893, 83 Pac. Rep., 1130. (Complaint on a 
 benefit certificate will not be dismissed for failing to set out the applica- 
 tion for membership refei-red to in the certificate as being on file in the 
 company's office.) Stockton, etc., Works*. Glen Falls Ins. Co., 98 Cal., 
 657; s. c. 33 Pac. Rep., 633. (Complaint alleging the issuing of a fire 
 policy, submission to arbitration and a promise by defendant to pay the 
 award, will be regarded as setting' forth a cause of action upon the award, 
 and plaintiff cannot recover without proof that defendant agreed to the 
 arbitration.) Illinois. — Illinois, etc., Ins. Co. v. Baker, 49 111. App., 93. 
 (Declaration need not allege a, waiver of the special limitation provided 
 by the policy, but plaintiff may leave it to defendant to set up the limit- 
 ation by special plea and plead the waiver by his reply.) Phoenix Ins. Co. 
 •», Stocks, 111., 1893, 36 N. E. Rep., 408. (The application for insurance is 
 not a part of the contract that inust be filed in an action on the policy.) 
 Indiana. — Indiana, etc., Ins. Co. v. Byrkett, 9 Ind. App., 443; s. c. 36 N. 
 E. Rep., 779. (Copy of application need -not be set out with the policy.) S. 
 P. Phoenix Ins. Co. v. Stark, 120 Ind., 444 ; s. c. 23 N. E. Rep., 413 ; Con- 
 tinental Ins. Co. V. Dorman, 135 Ind., 189 ; s. c. 35 N. E. Rep., 2139. (Com- 
 plaint alleging that a premium note was accepted as absolute payment, 
 wliere it appears that the policy provides that it shall only be accepted as 
 payment at maturity — is bad.) Michigan. — Knopi). National Fire las. Co. 
 101 Mich., 359 ; s. c. 59 N. W. Rep., 653. (Evidence of household articles 
 destroyed by fire, inadmissible, where bill of particulars furnished did not 
 attempt to give any further information, but merely described them as 
 " contents of house.") Doves. Royal Ins. Co., 98 Mich., 123; s. c. 57 N. 
 W. Rep., 30. (Where declaration counts on poUcy for S3,100, covering 
 $100 on a barn, a policy of 11,800, covering inter alia, $400 on a barn, is 
 inadmissible in evidence.) Connecticut Fire Ins. Co. v. Kinne, 77 Mich., 
 231 ; s. c. 43 N. W. Rep., 871. (Declaration on an insurance policy cannot 
 be amended to show an oral contract of insurance, and an agreement to 
 deliver a policy in accordance therewith, and a delivery of a different 
 policy by defendant's mistake or fraud.) Missouri.— HeHerosin v. Supm. 
 Council, etc., 40 Mo. App., 605. (Where petition alleges an unconditional 
 contract, it is not error to admit in evidence a contract containing con- 
 ditions, it defendant has not been misled.) New Forfc.— Black v. Homeo- 
 
620 Notes of Kecent Cases. 
 
 pathic Mut. Life Ins. Co., 47 Hun, 310. (Where the policy is set forth, its 
 legal effect will be gathered from its terms, and not from the allegation* 
 of the complaint.) Knarr v. N. Y. State, etc., Ass'n., 79 Hun, 83 ; s. c. 61 
 State Rep., 363 ; 29 N. Y. Supp., 508. (Complaintof administi-ator showed 
 a policy payable to insured's wife, or in case she did not survive, to his ad- 
 ministrator, held, that the complaint was insufficient in not alleging that 
 the wife did not survive.) North Carolina. —Britt e. Mutual Benefit Life 
 Ins. Co., 105 N. C, 175 ; s. c. 10 S. E. Rep,, 89fi. (Application for policy 
 need not be set out in the complaint.) South Dakota. — First Nat. Bk. v. 
 Dakota, etc., Ins. Co., So. D., 1895, 61 N. W. Rep., 439. (Complaint 
 stating that proofs of loss were made immediately after the fire, but 
 neither statmg nor showing on its face that 60 days thereafter have 
 elapsed before suit — is insufficient.) Texas. — Commercial Union Assur. Co. 
 1]. Danbar, Tex. Civ. App., 1894, 36 S. W. Rep., 638. (Complaint referring 
 to policj', but not setting it forth or stating its terms, is bad on demurrer.) 
 United Sf((fe.s,— Manhattan Life Ins. Co. v. Willis, 8 C. C. A., 59i ; s. l. 60 
 Fed. Rep., 336. (For the purpose of admitting the policy in evidence, it 
 is sufficient to describe it generally as a policy of insurance covenanting 
 to pay assured, etc., a specified sum upon satisfactory proof of death dur- 
 ing its continuance, without stating its other terras and conditions.) TT7.S- 
 consin. — Butternut Manuf. Co. v. Manufacturer's Mut. Ins. Co., T^^ Wis., 
 303; s. c. 47 N. W. Rep., 863. (Where legal effect of the policy was 
 sufficiently alleged, but the copy of the policy set forth inadvertantly 
 omitted the name of the insurance company, held, that the complaint 
 was, nevertheless, sufficient.) Shove «. Shove, 79 Wis., 497 ; s. c. 48 N. W. 
 Rep., 647. (Under an allegation that plaintiff is holder and owner of the 
 life policy sued on, evidence may be given to show that he holds it as 
 collateral security for a debt which has not been paid.) Wyoming.— B.a.vt- 
 ford Fire Ins. Co. ». Kahn, Wyo., 1893, 34 Pac. Rep., 895. (Complaint 
 held good on demurrer, although it did not expressly allege tlie time 
 during which the policy was to continue, or that it was in force at the 
 time of loss.) 
 
 (3) Performance of conditions. 
 
 California.— Rich&vAs v. Travelers' Ins. Co., 89 Cal., 170; s. c. 3ii Pac. 
 Rep., 763. (ISTotice and proof of loss sufficiently alleged by averments that 
 more than 90 days (the time provided by policy) had elapsed prior to the 
 commencement of the action after proof of loss, and that plaintiff •i have 
 duly complied with all of the conditions of the policy to be performed 
 by tliem.) S. P.; Emery v. Svea Fire Ins. Co., 88 Cal., 300; s. c. 36 Pac. 
 Rep., 88. Co?orf(do.— California Ins. Co., 13 Colo., 70 ; s. c. 34 Pac. Rep., 
 577. (Amendment of complaint at trial so as to allege waiver of the con- 
 dition that the policy should not be payable until 60 days after proof of 
 loss, does not change the cause of action.) Indiana. — Phoenix Ins. 
 Co. V. Golden, 131 Ind., 534; s. u. 23 N. E. Rep., 503. (Performance 
 of a condition against the insured building becoming vacant or un- 
 occupied, if it can be regarded as a condition precedent, is suflieiently 
 alleged by averment of performance of every act which by the terms 
 
Complaints in Actions on Insurance Policies. 621 
 
 of said policy plaintiff was required to do.) Germania Lite Ins. Co., 
 V. Lunkenheimer, 127 Ind., 536 ; s. c. 36 N. E. Rep., 1083. (In setting- up 
 an estoppel from acts of company's ag-ent, it need not be alleged that its 
 charter contained nothing- to prevent the agent's acts from binding- the 
 company, though the application lor insurance refers to the charter.) 
 Phoenix Ins. Co. v. Pickel, 3 Ind. App., 333; s. c. 39 N. E. Rep., 433. 
 (Allegation that plaintiff did not immediately notify defendant of loss 
 " because defendant waived notice and proof thereof in the manner fol- 
 lowing, to wit : said defendant had actual knowledge thereof and notified 
 and told plaintiff that it would not pay said loss, or any part thereof, and 
 that he need not g-ive such notice in writing or make said proof,"' — is 
 sufficient, though it does not expressly show that the waiver occurred 
 before forfeiture of the policy.) Supreme Council, etc., v. Forsinger, 125 
 Ind., 'yl ; s. c. 35 N. E. Rep., 139. (Where the performance of all condi- 
 tions is alleged, it need not also be alleged that the proofs of disablement 
 were satisfactory to the officers of the society, though the contract pro- 
 vides that they should be.) Iowa. — Jones I). U. S. Mut. Acci. Ass'n., la., 
 1895, 61 N. W. Rep., 485. (In an action upon an accident policy it is not 
 necessary for plaintiff to allege that the insured was not under the in- 
 fluence of liquor when the accident happened, though the policy provides 
 that compliance by insured with the conditions of policy is a condition 
 precedent to its enforcement.) Kansas. — Gillett r. Burlington Ins. Co., 
 53 Kan., 108 ; s. c. 36 Pac. Rep., 53. (Under an allegation .of performance 
 of conditions, plaintiff cannot give evidence of defendant's waiver of a 
 condition.) Capital Ins. Co. v. Bank of Pleasanton, 48 Kan., 397; s. c. 
 29 Pac. Rep., 578. (Under an alleg-ation that plaintiff "made out and 
 •delivered to the insurance company proofs of loss in regular form as 
 required by the poliej'," and performed all the conditions, and that the 
 •company- denied all liabilitj', a letter of the company may be given in 
 evidence acknowledging the proofs of loss and refusing to paj' the policy, 
 but making- no objections to the form of the proofs.) Michigan. — 
 Coiyeon I'. Providence Wash., Ins. Co., 79 Mich., 187; s. e. 44 N. W. 
 Rep., 431. (Under an alleg-ation that proofs of loss were forwarded to 
 defendant's office in C, evidence that at a prior time proofs were also 
 forwarded to its office in P. is inadmissible.) M innesota. — Mosness v. 
 German Amer. Ins. Co., 50 Minn., 341 ; s. c. 52 N. W. Rep., 932. (Where 
 complaint sets forth a policy containing a provision for arbitration in case 
 of dispute as to the amount of loss, and alleges facts to show that such ti 
 dispute has arisen, it should be dismissed, if it fails to allege an arbitra- 
 tion and award, though it alleges in the short form the performance of all 
 conditions.) Jfi',s.soiiri.— MoCullough«. Phoenix Ins. Co., Mo., 1893, 33 S.W. 
 Rep., 207. (Under a, general allegation of performance of all the condi- 
 tions in a policy of insurance, though otherwise in case of other contracts, 
 plaintiff' may prove a waiver of a condition by defendant.) Nebraska. — 
 Burlington ins. Co. v. Campbell, Neb., 1894, 60 N. W. Rep., 599. (Plaintiff 
 must plead waiver of the condition as to location of property, in order to 
 render it available.) S. P. Phoenix Ins. Co. i\ Bachelder, 33 Neb., 490 ; s.c. 
 49 N. W. Rep., 317. New For-7i;.--DeFrece «. National Life Ins. Co., 19 
 N. Y. Supp., 8. (Under an allegation that deceased "complied with the 
 
622 Notes of Recent Cases. 
 
 terms of said ag:reement so fai- as the same were to be complied with by 
 him," evidence of a waiver of a condition of the policy was admitted.) 
 Stewart ». Union Mut. Life Ins. Co., 63 Hun, 328; s. c. 43 State Rep., 
 805 ; 17 N. Y. Supp., 886. (To sustain complaint on demurrer, though it 
 was not expressly alleged that the first premium had been paid in accord- 
 ance with a condition in the policy that it should be paid on delivery, such 
 fact may be inferred from an allegation that the policy had been duly 
 executed and delivered.) Heilner «. China Mut. Life Ins. Co., 18 N. Y. 
 Supp., 177 ; s. c. 45 State Rep., 578. (Complaint dismissed for failing to 
 allege the furnishing of proofs of loss in the time required.) S. P. Fur- 
 long V. Agricultural Ins. Co., 28 Abb. N. C, 444 ; s. c. 45 State Rep., 8.56 ; 
 18 N. Y. Supp., 844. Elmer «. Mutual Benef. Lite A.ss'n, 19 N. Y. Supp., 
 289. (A denial of the allegation that all the conditions of the policy have 
 been complied with by plaintiff, does not place the burden upon him of 
 proving that each particular condition of the policy has been complied 
 with.) North Carolina. — Pioneer Manuf. Co. v. Phoenix Assur. Co., 110 
 N. C, 176 ; s. c. 14 S. E. Rep., 731. (At the trial plaintiff may prove a 
 waiver of an incidental requirement ot the policy by defendant, though 
 plaintiff may not have pleaded it, or at least the Court may allow an ap- 
 propriate amendment.) Ohio. — Moody ti. Insurance Co., Ohio, 1894, 38 
 N. E. Rep., 1011. (Plaintiff need not show as a condition precedent, the 
 absence of a breach of condition that the premises should not be vacant 
 without consent of the company.) Tennessee. — London, etc., Ins. Co. v. 
 Crunk, 91 Tenn., 376 ; s. c. 23 S. W. Rep., 140. (Declaration need not aver 
 performance or nonperformance of a condition subsequent, nor negative 
 prohibited acts, or expected risks.) Texas. — East Texas Fire Ins. Co. 
 V. Brown, 83 Tex., 681; s. c. 18 S. W, Rep., 713. (Plaintiff must plead 
 waiver of conditions by defendant.) Germania-Amer. Ins. Co. ». "Waters, 
 Tex. Civ. App., 1895, 30 S. W. Rep., 576. (Petition to avoid an admitted 
 breach of condition, must aver waiver thereof by defendant.) Virginia. — 
 Tilly V. Connecticut Fire Ins. Co., 86 Va., 811 ; s. c. 11 S. W. Rep., 120. 
 ("Where the policy is filed, and declaration alleges the performance of all 
 conditions by plaintiff, the declaration is not demurrable because of fail- 
 ure to allege that there has been an award.) Vermont. — Cooledge v. Con- 
 tinental Ins. Co., "Vt., 1895, SOAtl. Rep., 798. (Declaration need not set 
 fortli collateral provisions regarding the rig-hts of the parties, liquidation 
 of damages, etc.; noncompliance with these provisions being a matter 
 of defence.) Wisconsin. — Schwahn v. Michigan, etc., Ins. Co., "Wis., 
 1894, 61 N. "W. Rep., 78. ("Where complaint alleges an agreement for 
 renewal, and defendant's neglect to issue the same, and a loss within 
 the time over which the renewal was to have extended, it is not demur- 
 rable for failing to allege performance by plaintiff of the conditions pre- 
 cedent in the original policy.) 
 
 (4) Loss ; its cause, amount, etc. 
 
 California. — Richards i). Travelers' Ins. Co., 89 Cal., 170 ; 36 Pac. Rep., 
 762. (Where complaint in the language of the policy, alleged that de- 
 ceased sustained bodily injury through external, violent and accidental 
 
Complaints %n Actions on Insurance Policies. 623 
 
 means, held, Ihat the objection that the particular circumstances of the 
 accident were not stated could not be raised by general demurrer.) Illinois. 
 —Mutual Accident Association v. Tuggle, 138 111., 438 ; s. c. 28 N. E. Rep., 
 1066. (A declaration on a policy providing that beneficiary shall receive 
 the sum represented by the payment of $3 by each member of a specified 
 class of members of the association, which does not aver the number 
 of members that compose such class, is bad upon a general demurrer.) 
 Indiana. — Louisville Underwriters ». Durland, 133 Ind., 544; 24 N. E. 
 Rep., 321. (In an action on a marine policy which provides that the com- 
 pany shall be liable for any loss by Are, except when caused by explosion 
 of boiler, and except as limited by certain warranties contained in the 
 the policy, it is sufficient if complaint allege that the loss was caused by 
 fire not arising from the explosion of anj' boiler, and that the insured per- 
 formed all the conditions of the contract on his part.) Maine. — Hutchins 
 V. Ford, 82 Me., 363; 19 Atl. Rep., 833. (Marine policy admitted in 
 evidence, though declaration thereon did not negative a limitation therein 
 as to the amount of defendant's liability.) Minnesota. — Maxcy ». N. H. 
 Fire Insurance Co., 54 Minn., 273; s. c. .55 N. W. Rep., 1130. (Where 
 mortgagee Is plaintiff in an action upon a fire policy, an allegation that 
 he has sustained loss and damage to a certain amount is a sufficient 
 allegation as against a general demurrer, that the insured owner- sus- 
 tained loss and damage.) Missouri. — Summers v. Home Insui-ance Co., 
 53 Mo. App., 531. (Plaintiff must aver and prove the amount of loss.) 
 NewYork. — Weltinu. Union Marine Insurance Co., 37 State Rep., 595; s. c. 
 13 N. Y. Supp., 700. (Complaint on a marine policj' is insufficient on de- 
 murrer if it fails to allege that the policy covered the precise loss by fire 
 and water, or that when the loss occured that the policy was still bind- 
 ing.) Myei-s «. United Life Insurance Co., 43 State Rep., 131; s. c. 17 
 N. Y. Supp., 727. (In an action upon a life policy on the assessment plan, 
 complaint is insufficient, if it fails to allege that defendant realized, or 
 could have realized, the sum claimed by plaintiff from an assessment.) 
 Texas.— A\&mo Fire Insurance Co., v. Shacklett, Tex. Civ. App., 1894, 26 
 S. W. Rep., 630. (Petition demurrable for failing to allege that the fire did 
 not occur from any of the causes excepted in the policy.) S. P. Pelican Fire 
 Ins. Co. «. Troy Co-op. Ass'n, 77 Tex., 235; s. c. 13 S. W. Rep., 980; Phoenix 
 Insurance Co. ». Boren, 83 Tex., 97; s. c. 18 S. W. Rep., 484; compare 
 Burlington Insurance Co. ». Rivers, Tex., Civ. App., 1895, 28 S. W. Rep., 
 453. United States.— Western Refrigerator Co. v. American Gasuality 
 Insurance, etc., Co., 51 Fed. Rep., 155. (Where policy insured "against 
 all direct loss or damage, excepting all losses caused directly or indirectly 
 by fire or. lightning," declaration thereon is demurrable, if it does not 
 negative the fact that the fire was caused by any of the excepted causes.) 
 Washington. — Coats v. West Coast, etc., Insurance Co., 4 Wash. 375; 
 s. c. 30 Pac. Rep,, 404. (Where policy provides that defendant's liability 
 shall be proportioned to other insurance, a complaint thereon is defective 
 if it fails to state what other insurance was on the property.) 
 
62J: Notes of Recent Casks. 
 
 (5) Non-^iinpnent. 
 
 California. — Richards v. Travelers' Insurance Co., 80 Cal., 505 ; 33 Pac. 
 Rep., 939. (Complaint upon an insurance policy which neither alleges 
 non-payment, nor anything from which it can be inferred, is bad on de- 
 murrer.) Nebraska. — Hanover Fire Insurance Co. v. Schellak, 35 Neb., 
 701 ; s. c. 53 N. W. Rep., 605. (Complaint need not plead non-payment 
 of losses ; payment is a matter of defence.) New York. — Gill v. Aetna 
 Live Stock Insurance Co., 31 N. Y. Supp., 485. (Complaint upon an in- 
 surance policy dismissed because it failed to allege defendant had defaulted 
 in payment.) 
 
 As to the necessity of pleading non-paj^ment in actions upon contracts, 
 see note on p. 475, this vol. 
 
 COMPLAINTS IN ACTIONS AGAINST TELEGRAPH 
 COMPANIES FOR DERELICTION OF DUTY IX 
 THE TRANSMISSION OF MESSAGES. 
 
 [Priacipal Case, p. 110, this Vol.] 
 
 Alabama. — American Union Tel. Co. D. Dougherty, 89 Ala., 191; o. c. 
 7 So. Rep. , 660. (In an action for delay in delivering a message signed by 
 plaintiff's brokers, so that the title of the contract closed by the message 
 was in them, it is proper to allow amendment so as to make it a suit by 
 the brokers to plaintiff's use.) Western Union Tel. Co. v. AVilson, 93 
 Ala. ,32; s. c. 9 So. Rep., 414. (In action by receiver, complaint held 
 sufficient which allesj^ed, that defendant was engaged in the telegraph 
 business ; that the sender as plaintiff's agent delivered the message to de- 
 fendant and paid therefor ; and that defendant transmitted the message, 
 but failed to deliver it to the plaintiff until the next day.) Florida. — In- 
 ternational Ocean Tel. Co. «. Saunders, 33 Fla., 434; ». c. 14 So. Rep., 
 148. (A person for whose benefit a message is sent, and whose interest 
 tJierein appears from the messag-e itself, may maintain an action for dam- 
 ages caused bj^ a delay in the deliverj- thereof.) South Florida Tel. Co. 
 V. Maloney, Fla., 1894, 16 So. Rep., 380. (In an action against a telegraph 
 company for refusing to transmit a message, declaration held insufficient 
 for not alleging facts to sliow that the company's refusal was wilfull or 
 wroiigl'ul.) Georgiii. — Grenberg ». Western Union Tel. Co., 89 Ga., 754; 
 15 S. E. Rep., 651. (In an action for failure to send message, complaint 
 held bad on demurrer for not alleging that defendant had an office at the 
 place from which the message was alleged to have been sent, or anything 
 to show that it had been received by del'eudant for transmission, or that 
 iinything had Ijeen paid therefor.) i(/d/((//((.— Western Union Tel. Co. «. 
 Eskridge, 7 Ind. App., 308 ; s. c. 33 N. E. Rep., 338. (In an action for a 
 failure to promptly deliver a message informing plaintiff of her mother's 
 tlyiug condition, complaint alleging that defendant's neglect prevented 
 plaintiff from going to her mother, and that if she had received it she 
 could liave done so, sufficiently shows plaintiff's intent and desire to go 
 had she received tlic message.) Bierhaus v. Western Union Tel. Co., 8 
 
Complaints in Actions Against Telegraph Companies. 625 
 
 Ind. App., 563 ; s. c. 34 N. E. Rep., 581. (In an action against a teleg-raph 
 company for its failure to promptly deliver a message, substantial injury 
 is shown by an allegation, that by reason of tlie delay, plaintiff's debtor 
 in the meantime converted his property into money and had fled from the 
 State to parts unknown, and that plaintiff had thereby lost his debt, and 
 had been prevented from collecting the same.) Missouri. — Lee «. West- 
 ern Union Tel. Co., 51 Mo. App., 375. (Complaint in a justice's court 
 held, sufficient to support a judgment by default, which alleged that de- 
 fendant negligently altered and changed the meaning of the message, al- 
 though it did not set forth the true message or show how it was altered.) 
 North Caro? i'(i a. —Sherrill v. Western Union Tel. Co., 109 N. C, 537 ; s. o. 
 14 8. E. Rep., 94. (Complaint is not demurrable because it does not alleg-e 
 that the claim for damages was presented to defendant in accordance 
 with tlie stipulations on the blank upon which the message was written, 
 although a copy of the stipulations are set forth.) Pennsylvania. — Fer- 
 gusson a. Anglo-Am. Tel. Co., 151 Pa. St., 211 ; s. c. 35 Atl. Rep., 40. (In 
 an action for damages for failing to deliver a message directing the pur- 
 chase of goods, if they could be purchased at a stated price and sliipped 
 by a particular steamer, the statement of claim is insufficient, if it fails 
 lo allege that if the message liad been received the goods could have been 
 purchased at the price named, and sent by the steamer indicated.) 
 United States.— Western Union Tel. Co., i). Wood, 6 C. C. A., 433; s. c. 
 57 Fed. Rep., 471. (The person to whom a message is sent cannot recover 
 for a failure to deliver it, where he is not a party to the contract to have 
 it sent, and defendant was not informed tliat it was for his benefit.) 
 Te.ras.— Western Union Tel. Co. v. Fore, Tex. Civ. App., 1894, 36 S. W. 
 Rep., 783. (One who is neither tlie sender or the person addressed, nor in 
 any way shown by the message itself to have an interest therein, cannot 
 recover for delay in its transmission.) Western Union Tel. Co. v. Forter, 
 Tex. Civ. App., 1894, 26 S. W. Rep.. 866. (Petition in an action for de- 
 lay in delivering a message announcing the sickness of a I'elative, is not 
 defective for failing to allege the relationship of the parties, if the mes- 
 sage itself discloses it.) Martin v. Western Union Tel. Co., 1 Tex. Civ. 
 App., 143 ; s. c. 30 S. W. Rep., 860. (Allegation that the message was 
 delivered to a connecting company, and that such company received and 
 delivered it, shows an implied contract between the sender and the con- 
 necting company.) Western Union Tel. Co. v. Finer, Tex. Civ. App., 
 1894, 39 S. W. Rep., 66. (A stipulation in the contract, under which the 
 message is sent, that the telegraph company will not be liable for any 
 damage unless a claim therefor is presented within, the time specified, is 
 a condition subsequent which need not be pleaded by plaintiff', but is a 
 matter of defense.) Western Union Tel. Co. v. Henry, Tex. Civ. App., 
 1894, 37 S. W. Rep., 63. (An allegation that the message was delivered 
 to and sent by defendant, but not averring any contract to send it, is in- 
 sufficient.) WesteruUnionTel. Co. «. Beringer, 84Tex., 38 ; s. o. 19 S. 
 W. Rep., 836. (Complaint is not demvirrable, which alleges the sending 
 of the message by a third person, who paid for it, if it appear that the 
 message was sent for plaintiff's benefit and that he accepted it.) S. P. 
 Martin J). Western Union Tel. Co., 1 Tex. Civ. App., 143 ; s. c. 20 S. W. 
 40 
 
626 Notes of Rkcent Cases. 
 
 Rep., 860. Erie Tel., etc., Co. ■;;. Grimes, 82 Tex., 89 ; s. c. 17 S. W. Rep., 
 831. (Allegations sutRoient to show that defendant's neglect in delivering 
 the message caused the damages claimed ;) S. P., Western Union Tel. Co. 
 v. Lyman, 3 Tex. Civ. App., 460; s. c. 23 S. W. Rep., 656 ; Mitchells. 
 Western Union Tel. Co., 5 Tex. Civ. App., 527 ; s. c. 34 S. W. Rep., 550. 
 
 COMPLAIJSTTS IN ACTIONS AGAINST COMMON 
 CARRIEKS FOE LOSS OE INJUEY TO GOODS 
 INTEUSTED TO THEM FOE TEANSPOETA- 
 TION. 
 
 [Principal Case, p. 119, this Vol.] 
 
 Alabama. — Louisville, etc., R. Co. v. Gerson, 14 So. Rep., 873. (Com- 
 plaint should aver that defendant is a common carrier, in an action 
 to recover for damages for a failure to deliver safely the goods trans- 
 ported.) Georgia. — Boaz ». Central R., etc., Co., 87 Ga., 463; s. c. 13 S. 
 E. Rep., 711. (Where goods are shipped under a special contract varying 
 the common law liability of the carrier, an action for loss or injury to 
 the g'oods is properly brought on it, and not on the carrier's general lia- 
 bility.) Indiana. — Pennsylvania Co. «. Clark, 3 Ind. App., 146. (In In- 
 diana by statute all railroad corpoi'ations are common carriers, and an 
 allegation tliat defendant is such a corporation is equivalent to an allega- 
 tion that it is a common carrier.) Louisville, etc., R. Co. v. Widman, 9 
 Ind. App., 190 ; s. c. 37 N. E. Rep., 554. (In an action on a bill of lading, 
 which provided that the carrier should not be liable for loss or damage 
 unless notified thereof within thirty days, complaint held bad on demurrer 
 for not alleging the giving of such notice or the performance of conditions 
 precedent.) Evansville, etc., R. Co. ». Keith, 8 Ind. App., 57 ; s. c. 33 N. 
 E. Rep., 296. (In an action against a carrier for the loss of goods, plaint- 
 iff was held entitled to recover reg'ardless of the proof as to the negli- 
 gence alleged.) Pittsburgh, etc., R. Co. v. Racer, 5 Ind. App., 209. 
 (Complaint alleging that defendant failed to furnish cars for the trans- 
 portation of plaintiff's cattle on a certain day " though able to do so,'' 
 held to sufHcientlj' allege that the carrier had the facilities.) In- 
 dianapolis, etc., Ry. Co. v. Forsyth, 4 Ind. App., 326 ; s. c. 29 N. E. Rep., 
 1138. (Where a common carrier by contract limits his liability to damages 
 caused by negligence, the shipper nrust sue on the contract, and tlie bur- 
 den of showing the carrier's negligence is on him.) 2Iissoun. — Davis?'. 
 Jacksonville S. E. Line, Mo., 1894, 28 S. W. Rep., 965. (Defendant's obh- 
 gation to transport goods through to L., their final destination, was held 
 sufficiently pleaded, where it was alleged that the goods were delivered to 
 defendant to be carried to E., and thence to be forwarded to plaintiff at 
 L., and that defendant received the goods for said carriage a,nd delivery, 
 but failed to deliver them to plaintiff in good order.) .S<)?(f7i Carolina. — 
 Dunbar I'. Port Royal, etc., R. Co., 36 S. C, 110 ; s. c. l.T S. E. Rep., 357. 
 (In an action against a railroad company on a special contract to trans- 
 port goods beyond its own line, it is sufficient to set forth the contract, 
 
Actions for Use and Occnjxdion. 627 
 
 and it is not necessary to allege that defendant is a common carrier.) 
 Texos.— Fort Worth, etc., R. Co. v. McAnulty, Tex. Civ. App., 1894, 26 S. 
 W. Rep., 414. (A througii contract held to be charged, where it was al- 
 leged that defendant was a carrier engaged in shipping cattle from points 
 in Texas, by means of connecting- lines to Chicago, and that defendant 
 accepted plaintiff's cattle for shipment to Cairo and thence to Chicago for 
 a specified compensation.) 
 
 ACTIONS FOE USE AND OCCUPATION. 
 
 [Principal Case, p. 1.S3, this Vol.] 
 
 Alabama.— Qra.Ay v. Ibach, 94 Ala., 153 ; s. c. 10 So. Rep., 387. (Under 
 Ala. Code, § 2T1.T, authorizing such actions, where land is demised by 
 deed, an action cannot be maintained bj' a cestui que trust on attaining 
 majority against one who obtained possession under a lease from the 
 trustees ; as plaintiff did not lease the premises.) Colorado. — Hennessey 
 ■V. Hoag, 16 Colo., 460 ; s. c. 37 Pac. Rep., 1061. (Use and occupation can- 
 not be maintained unless the relation of landlord and tenant exists.) 
 Board of Cora'ers Pitkin County o. Brown, Colo. App., 1894, 31 Pac. Rep., 
 Fi'2'). (The action may be maintained against a tenant holding over.) 
 Illinois. — Jacksonville, etc., Ry. Co, v. Louisville, etc., R. Co., 150 111., 
 480; s. c. 37 N. E. Rep., 934. (The value of use and occupation of prem- 
 ises may be recovered under the common counts.) Indiana. — Indianapo- 
 lis, etc., Ry. Co. ■». First Nat'l Bank, 134 Ind., 137 ; s. c. 33 N. E. Rep., 679. 
 {Complaint is demurrable, if it sets up use and occupation of the premises 
 for less than a, year without alleging any agreement as to payment of 
 rent, or duration of term, or any custom in regard thereto ; since the pre- 
 sumption is, in absence of such facts, that defendant is tenant from year 
 to year with rent payable annuallj' at the end of the year.) Kansas. — 
 Bank of Sun City v. Neff, 50 Kan., 506 ; s. c. 31 Pac. Rep., 1054. (Bill of 
 particulars sufficiently states a cause of action, which alleges that plaintiff 
 owned a certain building ; that defendant used and occupied the same for 
 a specified period with plaintiff's permission ; that the use and occupation 
 of the same for the period named were reasonably worth a specified sum ; 
 ihat no part thereof had been paid except a stated amount, and that there 
 is due plaintiff from defendant for such use and occupation a given sum.) 
 Massachusetts. — Cook v. Medbery, 150 Mass., 499 ; s. c. 33 N. E. Rep., 335. 
 (A promise to pay rent will not be implied, where it appears tliat defend- 
 ant left goods upon plaintiff's premises with his consent, and that plain- 
 tiff knew tliat defendant refused to pay rent, though plaintiff did not 
 assent to such refusal.) Michigan.— Beeches- ». Duftield, 97 Mich., 433; 
 s. c. 56 N. W. Rep., 777. (The action may be maintained on a lease under 
 seal.) Neiu York. — Gustaveson t. Otis, 57 State Rep., 797; s. c. 37 N. Y. 
 Supp., 280. (Description of premises by streets required to be made more 
 definite and certain.) Oregroi.— Kiernan v. Terry, Ore., 1894, 38 Pac. 
 Rep., 671. (It is sufficient to describe the premises in such a manner as to 
 enable them to be located.) United States.— hazaras v. Phelps, 152 U. S., 
 .81 ; s. c. 14 Supm. Ct., 477. (In Texas, an owner who overstocks his own 
 
628 JSToTKs OF Recent Cases. 
 
 land and allows his cattle to graze on adjoining unoccupied land, is liable 
 to the adjoining owner for tlie rental value ot the land so used.) Texas. — 
 Abbey I'. Shiner, 5 Tex. Civ, App., 287; s. c. 24 S. W. Rep., 91. (The 
 action cannot be maintained against one who allowed his cattle to graze 
 on the uniuclosed land of plaintiff.) Nolan v. Mendere, 77 Tex,, 565 , s. c. 
 14 S. W. Rep., 167. (An owner using a wall of an adjoining building as 
 one side of a shed on his own premises, is not liable to the adjoining 
 owner for the use of the wall.) 
 
 COMPLAINTS IN ACTIONS UPON A GUAEANTY. 
 
 [Principal Case, p. 138, this Vol.] 
 
 Oeorgia.— Sims v. Clark, 91 Ga., 302; s. c. 18 S. E. Rep., 158. 
 (Complaint held sufficient on demurrer, which set forth a copy of an 
 account and the conti-act of the guaranty thereof, and alleged plaintiff's 
 acceptance of the guaranty, and the non-payment of the account.) 
 Michigcm.—Cl&vk v. Kellogg, 96 Mich., 171 ; s. c. 55 N. W. Rep., 667. 
 (Where the guaranty provides that plaintiff shall use due diligence in the 
 collection of the debt guarantied, an allegation that plaintiff used due 
 dilig-ence is equivalent to an averment that he pursued the course which 
 the law imposed on him to charge the guarantor ; but under such allega- 
 tion plaintiff' cannot show a waiver by defendant of any requirement 
 necessary to charge him.) Neiv York. — Cahill Iron Works i\ Pembertou, 
 30 Abb. N. C, 450 ; s. c. 27 N. Y. Supp., 931. (A complaint alleging that 
 the guaranty was given in consideration that the plaintiff should renew 
 the notes whose payment is guarantied, is sufficient on demurrer, though 
 the complaint sets forth a writing which purports to contain the guar- 
 anty, but which is defective under the statute of frauds in not stating the 
 consideration.) Peters v. Chamberlain, 36 State Rep., 1000 ; s. c. 18 N. Y. 
 Supp., 457. (Where complaint chax-ges defendants as guarantors of a note, 
 it cannot be amended at the trial to conform pleading to proof so as to 
 charge defendants as indorsers.) Oklahoma. — Walter A. Wood Mowing, 
 etc., Co. V. Farnham, 1 Okla., 375; s. c. 33 Pac. Rep., 867. (An under- 
 taking indorsed on a note : " For value received I hereby guaranty the 
 payment of the within note, waiving demand and protest," is not merely 
 a guaranty that the note shall be paid by the maker, but an original 
 promise to pay it ; and in an action thereon the maker's insolvency, or 
 plaintiff's efforts to collect the note need not be alleged.) South Dakota. — 
 Greely v. McCoy, 3 S. D., 624; s. c. 52 N. W. Rep., 1050. (Complaint on 
 cu guaranty of collection is bad on demurrer, if it fails to allege demand 
 upon the principal debtor, or any excuse for not making it.) 
 
 COMPLAINTS IN ACTIONS UPON JUDGMENTS. 
 
 [Principal Case, p. 161, this Vol.] 
 
 ^to6a??ia.— Andrews B. Flack, 88 Ala., 294; s. c. 6 So. Rep., 907. (To 
 describe the judgement, it is sufficient to state the court in which it was 
 recovered, the place where the court was held, the names of the parties. 
 
Complaints in Actions upon Juihjments. 629 
 
 the date of the judgment and the amount recovered.) Sims v. Hertzfeld, 
 95 Ala., 145; s. u. 10 So. Rep., 337. (Where the judg-nient is sufficiently 
 described, no description of the contract on which the judg-raent was re- 
 covered is necessary.) CaUforni(t .—W&Wer v. Dickin.son, 93 Cal., 108 ; 
 s. c. 38 Pac. Rep., 854. (A judgment of a court of g-eneral jurisdiction is 
 sufficiently pleaded without any allegation as to the jurisdictional facts, 
 even in the short form.) Bronzan ». Drobaz, 93 Cal., 647; s. c. 39 Pac. 
 Rep., 354. (It is not necessary to state that there has been no appeal, or 
 that plaintiff has obtained leave of court to sue.) Edwards ii. Kellings, 
 99 Cal., 314; s. c. 38 Pac. Rep., 799. (It must be directly alleged that a 
 judgment has been recovered ; it is not sufficient to allege, that it has 
 been " adjude-ed" that the defendant pay the plaintiff a specified amount.) 
 Missouri. — Wise e. Loring, 54 Mo. App., 358. (An allegation that the 
 judg-ment remains valid and in full force is equivalent to an allegation 
 that it is unpaid.) JS'ew Forfc.— Wright ». Chapin, 74 Hun, 531 ; 31 Abb. 
 N. C, 137; s. c. 56 State Rep., 718; 36 N. Y. Supp., 835. (In an action 
 upon a foreign judgment directing the payment of money into court, an 
 allegation, that under and pursuant to the laws of Canada, and the rules 
 and practice of its courts, the judgment has all the force and effect of a 
 personal judgment, and that plaintiff is entitled under said laws and 
 practice to enforce the judgment as a personal judgment, and to receive 
 payment for the purpose pf enforcing it, sufficiently alleges the effect of 
 the judgment under the foreign laws.) Crane ■!). Crane, 19 N. Y. Supp., 
 <591. (Complaint held sufficient on demurrer, which alleged the recovery 
 of a judgment in a court of another State ; that the court was a court of 
 general jurisdiction; that the judgment directed the payment of a, speci- 
 fied sum, and that defendant was personally served with process in the 
 action in which the judgment was recovered.) Wiehle v. Schwarz, 54 
 Super. Ct., 169. (Where an action was brought against Anton Schwarz, 
 and the complaint alleged the recovery of a judgment against A. Schwarz, 
 lieJd, that the complaint was bad on demurrer for not alleging that de- 
 fendant was known by the latter name.) Oregon. — Beekman v. Hamlin, 
 19 Ore., 383; s. c. 35 Pac. Rep., 673. (If complaint shows facts which 
 would raise a presumption of payment from lapse of time, it is bad on de- 
 murrer, unless it allege facts to rebut such presumption.) Cougill «. 
 Farmers', etc., Ins. Co., 35 Ore., 360; s. c' 35 Pac. Rep., 975. (In an 
 action upon a judgment recovered in another State, complaint alleged 
 that an order vacating the judgment was vacated and annulled on a writ 
 ■of certiorarai. Held, that the complaint was bad in that it did not allege 
 remittitur to the lower court.) Te.vas. — Hall v. McKay, 78 Tex. , 348 ; s. c. 
 14 S. W. Rep., 615. (A petition upon a judgment of another State need 
 not attach a copy of the record as an exhibit.) Henry v. Allen, 83 Tex., 
 ■35 ; s. c. 17 S. W. Rep., 515. (A transcript of a judgment of a court of 
 another State showing the action to have been tried before a special 
 judge because the regular judge was disqualified, is admissible in evidence, 
 although the petition does not allege that by the laws of the State in 
 which the judgment was recovered the special judge was authorized to 
 try the case.) ^Vaslnngton. — Weber «. Yaucy, 7 Wash., 84 ; s. c. 34 Pac. 
 Rep., 473. (An action may be brought on a judgment of a court of 
 
630 Notes of Recent Oases. 
 
 another state without leave of court, although hy the law of the State 
 where the judgment was rendered no action can be maintained on a 
 judgment without leave.) Wisconsin. — Piershoff ». Jorges, 86 Wis., 128 ; 
 s. c. 56 N. W. Rep., 735. (Short form of pleading a judgment of a court 
 of special jurisdiction complied with by an allegation that plaintiff re- 
 covered judgment against defendant, and that such jud','ment was " duly 
 docketed.") 
 
 COMPLAINTS m ACTIONS FOR MONEY HAD AND 
 
 RECEIYED. 
 
 [Principal Case, p. 179, this Vol.] 
 
 Georgia— Minor v. Ozier, 84 Ga., 476; s. c. 10 S. E. Rep., 1088. (Com- 
 plaint alleging, in effect, that plaintiff had given defendant money to 
 settle with certain of pla,intiff's creditors, that defendant had neglected to 
 do so, and that plaintiff had effected a settlem cut with the creditors by 
 other means — states a cause of action for money had and received.) 
 Snook V. Ragean, 89 Ga., 251 ; s. o. 15 S. E. Rep., 364. (A declaration al- 
 leging that defendant was indebted tor a specified sum received for 
 plaintiff's use, and which he promised to pay plaintiff when requested, 
 may be amended so as to allege demand therefor, and, as amended it 
 states a cause of action.) Bidiana.—Smythe v. Scott, 134 Ind., 183 ; s. c. 
 34 N. E. Rep., 685. (An averment that defendant received a large sum of 
 money for plaintiffs and that though often requested he has refused to 
 account for it or pay it over, sufficiently alleges indebtedness and non- 
 payment.) Warden f. Nolan, Ind. App., 1894, 37 N. E. Rep., 831. (In an 
 action for money had and received, it is not necessary that plaintiff 
 should allege demand.) Kentucky. — Martin r. Richardson, 94 Ky., 183; 
 s. c. 21 S. W. Rep., 1039. (Complaint alleging that plaintiff by fraud 
 had been induced to surrender a lottery ticket, which unknown to him 
 had drawn a prize, and that defendant had received the prize money, 
 states a cause of action for money had and received, and is not founded 
 on the purchase of a lottery ticket. ) Massachusetts. — Hoist v. Stewart, 161 
 Mass., 516 ; s. c. 37 N. E. Rep., 755. (A count formouey had and received 
 with a bill of particulars claiming cash paid "by mistake and under 
 misapprehension of facts at the time of conveyance," etc., is, in ab- 
 sence of motion for further particulars, sufficient on demurrer.) Mich- 
 igan. — Lane 'U. Pere Marquette Boom Co., 63 Mich., 63; s. c. 38 N. W. 
 Rep., 786. (Money paid on an express contract by mistake may be re- 
 covered on the common counts without setting up the special agree- 
 ment.) Missouri. — Johnson-Brinkman Co. v. Central Bank, 116 Mo., 58S ; 
 s. c. 83 S. W. Rep., 813. (Petition alleging the conversion of wheat by 
 defendant, and that he had the proceed.s thereof equal to its value, and 
 demanding the value of the wheat, is sufficient to support a verdict for 
 money had and received, especially where tried on that theory.) Xc- 
 braska. — Fletcher u. Cummings, 33 Neb., 793 ; s. c. 51 N. W. Rep., 144. 
 (In an action for money received by plaintiff's agent, an averment that 
 
Complaints in Actions for Nuisance. 631 
 
 defendant neglected and refused to pay a specified sum, though re- 
 quested so to do, sufficiently alleges demand.) New York. — Cohn v. 
 Beckhardt, 63 Hun, 333; 44 State Rep., 544; s. c. 18 N. Y. Supp., 84. 
 (Complaint alleging that defendant employed by plaintiff as agent to 
 collect money, and that he refused to pay it over "but wholly misap- 
 propriated and misapplied the same to his own use," states a cause of 
 action on contract, and plaintiff can recover without proving any tor- 
 tious act.) S. P. Harlow v. Mills, 58 Hun, 391 ; s. c. 12 N. Y. Supp., 197 : 
 34 State Rep., 776. Gilpin v. Daly, 24 Abb. N C, 316 ; s. c. 11 N. Y. Supp., 
 61. (Though at common law, an employer may recover from a person, 
 who won at gaming from an employe the employer's money, under 
 the common counts, under the new procedure an allegation that the 
 money was lost in a gaming house of which defendant was proprietor 
 will not be stricken out as immaterial.) United Sfnfes.— "Wilson v. 
 Haley Live-stock Co., 153 U. S., 39 ; s. c. 14 Supm. Ct., 768. (In an action 
 of trespass de bonis asportatis, plaintiff cannot recover on a count for 
 money had and received, at least not without amendment.) 'Washing- 
 ton.— Purkv. Mighell, 3 Wash., 737 ; s. c. 29 Pac. Rep., 556. (An agent's 
 action for commissions is not an action for money had and received by 
 the principal, though it is alleged that he has received the pi-oceeds of 
 the sale, and appropriated them to his own use.) Distler v. Dabney, 3 
 Wash., 200; 28 Pac. Rep., 335. (Under the new procedure, plaintiff can- 
 not recover back purchase money on the recission of contract, under a 
 complaint in the form of the common counts for money had and 
 received.) Followed in Clark v. Sherman, 5 Wash., 681 ; s. c. 32 Pac. 
 Rep., 771. Wisconsin. — Burke v. Milwaukee, etc., Ry. Co., 83 Wis., 410; 
 s. c. 53 N. W. Rep., 692. (In an action to recover back money fraudu- 
 lently obtained, an allegation that "the money was received by the 
 defendant for the use of plaintiff," negatives a gift.) 
 
 COMPLAINTS IlSr ACTIONS FOR NUISANCE. 
 
 LPrincipal Case, p. 207, this Vol.] 
 
 California. — Castle v. Smith, California, 1894, 36 Pac. Rep., 859. 
 (Where the nuisance was erected by defendant's grantor, notice to defend- 
 ant that the erection was a nuisance is essential to plaintiff's cause of 
 action.) Colorado. — Walley «. Platte, etc., Ditch Co., 15 Colo., 579 ; s. c. 
 26 Pac. Rep., 129. (Allegations that a ditch is dangerous to public health 
 and safety, that it is a public nuisance and that it is dangerous to the 
 health and safety of all who have occasion to transact business in the 
 vicinitj', do not authorize the recovery of special damages.) Idaho. — Red- 
 way ». Moore, 2 Ida., 1036; s. c. 29 Pac. Rep., 104. (In an action by a 
 private party to enjoin a public nuisance the complaint must allege facts 
 to show that plaintiff has su.stained a special injury different in kind from 
 that sustained by the general public.) lUiuois. — Barrows v. Sycamore, 
 150 111., 588; s. c. 37 N. E. Rep., 1096. (A city has no right to erect a 
 standpipe in a public street, and in an action by a property owner for 
 
632 Notes of Recent Cases. 
 
 damages caused thereby, an allegation that it obstructs the light to 
 plaintiff's building is sufficient to show special damages in order to enable 
 plaintiff to maintain the action.) Laflin & E. Powder Co. v. Tearney, 131 
 111., 333; s. c. 33 N. E. Rep., 389. (If the declaration states facts showing 
 defendant's business constitutes a nuisance, it is not necessary to use the 
 word nuisance in describing it.) Laflin R. Powder Co. v. Tearney, supra. 
 (In an action for a private nuisance, it is not necessary to charge defend- 
 ant with negligence in the management of the business which constitutes 
 the nuisance.) Massachusetts. — Boston Ferrule Co. v. Hills, 159 Mass., 
 147; s. c. 31 N. E. Rep., 8.5. (Where a bill, by occupant of one floor to en- 
 join the occupants of the floor above, alleged that defendants used sand 
 and acids in their business and allowed these substances to come through 
 holes in the floor, which were properly there, whereby complainant's 
 machinery was damaged, held, that the bill was sufficient on demurrer, 
 thoug-h It did not allege in terms that the defendant's business was un- 
 suitable to be carried on in the building; nor that there was negligence in 
 the mode of carrying it on, nor that complainants had used due care.) 
 Missouri.— TAMock v. Somes, 103 Mo., 336 ; s. c. 14 S. W. Rep., 74(3. (It is 
 proper in an action for the maintenance of a nuisance to unite a prayer for 
 damages sustained thereby with a prayer for an injunction against its con- 
 tinuance.) Neiv Jersey. — Hudson Co. B'd of Healths. N. Y. Horse Manure 
 Co., 47 N. J. Eq., 1 ; s. c. 19 Atl. Rep., 1098. (In an action by an individual 
 to abate a nuisance of a kind, which a board of health might maintain an 
 action to abate, under act of May 5, 1889, sec. 9, the bill must allege special 
 and peculiar injury to plaintiff.) Neio York. — Fisher v. Rankin, 35 Abb. 
 N. C, 191. (An amendment cannot be allowed, which changes the cause 
 of action from one for negligence to one for the creation of a nuisance.) 
 Jorgensen ®. Squires, 50 State Rep., 181 ; s. c. 31 N. Y. Supp., 383. (Where 
 the sole allegation of nuisance was that defendant's cellar extended more 
 than five feet beyond the stoop line into a public sidewalk, held, error to 
 chai'ge in effect, generally, that the cellar was a nuisance, and to refuse to 
 charge that, if it did not extend more than five feet beyond the stoop line 
 it was not a nuisance per se.) Campbell ». U. S. Foundry Co., 73 Hun, 
 576 ; 57 State Rep., 365 ; 36 N. Y. Supp., 165. (Complaint' need not ex- 
 pressly allege that the acts complained of constitute a nuisance, in order 
 to allow plaintiff to recover therefor; it is sufficient to state that "de- 
 fendant so negligently and carelessly " did the acts as to cause the 
 damage.) Smith v. IngersoU-Sargeant Rock-Drill Co., 7 Misc., 374; 
 s. c. 37 N. Y. Supp., 907. (An allegation that by the negligent operation 
 of a steam hammer on defendant's premises, the use of plaintift"s prem- 
 ises adjoining was interfered with, does not necessarily render the action 
 one for negligence ; so as to prevent recovery on proof that the hammer's 
 excessive size caused the injury complained of.) 
 
Complaints in Actions for Negligence. 633 
 
 COMPLAINTS m ACTIONS FOR NEGLIGENCE. 
 
 [Priucipal Case, p. 186, this Vol.] 
 
 (1) The facts constituting the negligence. 
 (3) Wilful act or negligence. 
 
 (3) Several acts of negligence. 
 
 (4) Defendant s duty. 
 
 (5) Plaintiff's freedom from contributory negligence. 
 
 (6) Injury, damage, etc. 
 
 (1) Tlie facts constituting the negligence. 
 
 Alabama. — Mary Lee Coal and R. Co. v. Chambliss, 97 Ala., 171 ; s. c. 
 11 So. Rep., 897. (A general averment that the act causing' the injury 
 was negiigently done is sufficient;) S. P.; Birmingham R. & E. Co. t). 
 Allen, Alabama, 1893; 18 So. Rep., 8. Oxford Lake Line r. Stedhara, 
 Alabama, 1893, 18 So. Rep., .553. (In an action against a railroad com- 
 pany, held, that it was sufficient for the complaint to allege that the 
 plaintiff's mule was frightened at the unnecessary noise of defendant's 
 train near a highway, and " owing to the negligence of defendant's em- 
 ploj'ees running and managing said cars.") Arizona. — Santa Fe, etc., Ry, 
 Co. V. Hurley, Ariz., 1894, 36 Pac. Rep., 216. (Under an allegation that 
 plaintiff's injuries were caused by a defective pile-driver, I'ecovery cannot 
 be had for injnries received on account of an unmanageable team used in 
 •operating it.) California. — House v. Meyer, 100 Cal., 593; s. c. o.T Pac. 
 Rep., 30S. (Complaint alleging generally negiigence on defendant's part 
 is sufficient on demurrer.) Colorado. — McGonigle v. Kane, Colorado, 
 1894, 3S Pac. Rep., 867. (Negligence being the ultimate fact to be estab- 
 lished, a general allegation thereof is sufficient.) Denver, &c., R. Co. r. 
 Robbins, 2 Colo, App., 313 ; s. c. 30 Pac. Rep.,, 261. (Complaint held suffi- 
 cient, which alleged that the defendant railroad company was unlawfully 
 and negligently occupying a street crossing in the violation of city ordi- 
 nance and that by reason of tliat fact, and without any negligence on 
 plaintiff's part, the injurj- resulted.) Florida. — Walsh v. Western R. Co., 
 34Fla., 1; s. c. 1.) So. Rep., 686. (In alleging neg-ligence, it is not re- 
 tjuired that the facts constitutina,' the neg-ligence shall be set out in the 
 declaration, but it is sufficient, if the acts causing the injury are specified, 
 and it is alleged that they were neglige nth' and carelessly done ;) S. P.; 
 Jacksonville, &c., Rj'. Co. v. Jones, 34 Fla., 386; s. c. l.j So. Rep., 934. 
 City of Orlando v. Heard, 29 Fla., 581 ; s. c. 11 So. Rep., 183. (Declaration 
 held demurrable, which generallj' alleged that a municipal corporation 
 negligently suffered a highway to remain out of repair, without alleging 
 defendant's knowledge of the defect, the time it was permitted to remain 
 out of repair, or other facts showing negligence of the municipality.) 
 Illinois.— Lavisi v. Wisconsin C. R. Co., 54 111. App., 636. (A declaration 
 held sufficient, which charged that the neghgence consisted of the negli- 
 gently running and operation of a railroad, and the cars propelled there- 
 on.) Andrew v. Chi. & N. W. R. Co., 45 111. App., 269. (It is error to sus- 
 tain a demurrer to a declaration clearly alleging negligence on the part 
 of defendant, and care on the part of plaintiff, although the facts sur- 
 
634 Notes of Recent Cases. 
 
 rounding' the accident ave stated witli unnecessary pai-ticularity. In such 
 a case, the question of neghg'enoe or contributory negligence, sliould be 
 left to be determined by tbe jury, unless the facts alleged would neces- 
 sarily bar recovery.) Chi., &c., R. Co. v. Hines, Illinois, 1890, 23 N. E. 
 Rep., 1021. (In an action against a railroad company for negligence in the 
 construction of its road, whereby the ejuployee was killed, declaration 
 held sufficient to support judgment, though it did not state that the de- 
 fendant knew of the defect in the road, or that plaintiff did not know of 
 it.) Indiana. — Board of Com'ers Huntington County t. Huffman, 134 
 Ind., 1 ; s. c. 31 N. E. Rep., olO. (Complaint held sufficient on demurrer, 
 where the acts causing the injury were alleged to have been negligently 
 and carelessly done, without stating the specific facts constituting the 
 negligence.) S. P., Louisville, &c., Ry. Co. v. Berkey, 136 Ind., 181 ; 
 s. c. 35 N. E. Rep., 3; Louisville, etc., R. Co. v. Hicks, Indiana Appeals, 
 1894; s. c. 37 N. E. Rep., 43; Citizens' St. R. Co. ». Lowe, Indiana Ap- 
 peals, 1894 ; s. c. 39 N. E. Rep., 165 ; City of Lebanon v. McCoy, Indiana 
 Appeals, 1895 ; s. c, 40 N. E. Rep., 700. Coal Bluff Min. Co. v. Watts, 6 
 Ind. App., 347 ; s. c, 33 N. E. Rep., 663. (Complaint, as against demurrer, 
 held to allege negligence with sufficient speciflcness, where it alleged that 
 defendant negligently permitted the roofing of the mine, in which plain- 
 tiff was working, to become unsafe, and negligently failed to secure it, by 
 reason whereof rocks fell on plaintiff.) S. P., Hindmau v. Timme, Indi- 
 ana, 1893, 35 N. E. Rep., 1048. Chicago, &c., R. Co. v. Barnes, 2 Ind. 
 App., 213 ; s. c. 28 N, E. Rep., 323, (Motion to make complaint more defi- 
 nite and certain denied, where it was alleged that defendant negligently did 
 or omitted to do the act or thing causing the injury; since to require 
 plaintiff to plead all tlie facts and circumstances from which negligence 
 could be inferred would compel him, in many cases, to plead evidence.) 
 Ohio, &c., Ry. Co. v. Craycratt, 5 Ind. App., 335 ; s. c. 32 N. E. Rep., 297. 
 (Complaint held sufficiently specific which alleged that the defendant 
 railroad company, without any negligence on plaintiff's part, carelessly 
 and negligently ran the train over plaintiff's niule.) Wabash W. R. Co. v. 
 Morgan, 133 Ind., 430 ; s. c. 31 N. E. Rep., 661. (In an action by an em- 
 ployee for injuries caused by a defective engine, and the engineer's negli- 
 gence, held, that it was sufficient to allege that both facts had long been 
 known to defendant, without specifying the exact time.) Kansaa. — Cher- 
 okee, etc., Min. Co. v. Wilson, 47 Kan., 460; s. c. 38 Pac, Rep., ITS. (Un- 
 der an allegation to the effect, that defendant permitted the accumula- 
 tion of inflammable dust in its mine and failed to remove and sprinkle the 
 same, evidence is inadmissible to show that the mine was improperly laid 
 out and constructed or that it was not properlj' provided with doors.) 
 Massachusetts. — Benjamin i). Holyoke St. Ry. Co., 160 Mass., 3 ; s. c. 35 
 N. E. Rep., 95, (General averment of negligence on the part of a street 
 railway company in running its cars is sufficient to include negligence in 
 the sounding of a .gong on approaching ii frightened team.) Dolau v. 
 Alfey, 153 Mass., 380; s. c. 36 N. E. Rep., 989. (Where it was alleged, 
 that the roof, which fell and injured plaintiff, was defective, and that de- 
 fendant had neglected to repair it, Iwlil, that there was no variance, 
 though the proof showed, that the immediate cause of the falling of the 
 
Complaints in Actions for Negligence. 635 
 
 root was plaintiff's neglect to remove the snow thererrom.) Minnesota. — 
 Rogers v. Truesdale, Minnesota, 1894, 58 N. W. Rep., 688. (Demurrer 
 overruled, where complaint alleged that defendant's act causing plaintiff's 
 injury was neglig-eutly done witliout stating any details which would in- 
 dicate negligence.) Missouri. — Wills v. Cape Girardeau, &c., Ry. Co., 
 44 Mo. App., 51. (Petition is sufficient on demurrer, if it advises de- 
 fendant of the particular neg-ligence complained of, so that lie 
 may know what he is called upon to defend, though it does 
 so in general terras.) Montana. — Kelly v. Cable Co., 13 Mont., 
 411 ; s. o. 34 Pac. Rep., 611. (An allegation that defendant's 
 employees were negligent and careless, held to be equivalent 
 to an allegation that they were incompetent.) Nebraska. — 
 Aurora v. Cox, Nebraska, 1895, 62 N. "W. Rep., 66. (Petition held to suffi- 
 ciently charge negligence against a city, which alleged facts from which 
 it might reasonably be inferred that the highway was not kept in proper 
 condition.) Neiv York. — Flynn v. Central R. R. of N. J., 15 N. Y. Supp., 
 338 ; s. e. 20 Civ. Pro., R. 179. (A complaint, not expressly alleging that 
 defendant's negligence caused plaintiff's injury, is not demurrable, if it 
 allege that the doing, or omission, of specific acts by the defendant, which 
 of themselves would constitute neglig'enoe, caused the injury.) Jackman 
 V. Lord, 56 Hun, 173 ; s. c. 9 N. Y. Supp., 300, 30 State Rep., 507. (Motion 
 to make complaint more definite and certain denied, where it generally 
 alleged that the explosion which injured plaintiff was caused by defend- 
 ant's negligence. The remedy, if any, to obtain a statement of the par- 
 ticular acts of the negligence, was by an application for a bill of particu- 
 lars.) Woiz t;. Dry Dock, etc., R. Co., 13 N. Y. Supp., 139; s. c. 36 
 State Rep., 328. (Motion to strike out an allegation, that tliere were many 
 previous derailments of oars, of which defendant had knowledge, at the 
 place where the car was derailed, which caused plaintiff's injury, — de- 
 nied.) Boehm II. Mace, 38 Abb. N. C, 138 ; s. c. 18 N. Y. Supp., 106. 
 (Under complaint alleging that the accident was occasioned by the un- 
 safe condition of the elevator car, held, error to submit to the jury 
 whether defendant had complied with the statute regulating the enclos- 
 ing of elevator shafts.) Davis v. N. Y., Lake Erie, etc., R. Co., 20 Abb. 
 N. C, 230. (Under an allegation that the locomotive which exploded was 
 defective, evidente is inadmissible to show that unfit coal was us^•d, al- 
 though an engine of different construction might have used like coal with 
 safety.) North Carolina. — Conley i). Richmond, etc., R. Co., 109, N. C., 
 692 ; s. c. 14 S. E. Rep., 303. (The facts constituting the alleged negli- 
 gence must be set out with sufficient particularity to apprise defendant of 
 the nature of the charge.) Oregon. — McPherson «. Pac. Bridge Co., 20 
 Ore., 486 ; s. c. 26 Pac. Rep., 560. (A general allegation of negligence 
 does not charge any fact.) Woodward ». Ore. Ry., etc., Co., 18 Ore., 
 289 ; s. c. 23 Pac. Rep., 1076. (Plaintiff must allege the particular acts of 
 negligence constituting his cause of action, and recovery cannot be had 
 on proofs of acts of negligence other than those alleged.) Knahtla v. Ore., 
 etc., Ry. Co., 21 Ore., 136; s. c. 27 Pac.Rep., 91. (Under an allegation that 
 defendant negligently suffered a bridge to become out of repair and to re- 
 main in an unsafe condition, there can be no recovery on the ground that 
 
636 Notes of Recent Cases. 
 
 the bridge was originally improperly constructed.) Rhode Island. — Par- 
 ker s. Providence, etc., S. S. Co., 17 R. I., 376 ; s. c. 22 Atl. Rep., 284. (De- 
 murrer overruled to a complaint in an action for death, which alleged 
 that defeadant's servants so negligently and carelessly managed and 
 navigated the steamer that it ran upon and sank the vessel of plaintiff's 
 testator.) Pomroy «. Granger, R. I., 1894, 29 Atl. Rep., 690. (Demurrer 
 sustained to a count which alleged that the defendant, a city, carelessly 
 and negligently excavated in a river bottom, so as to cause the piles of 
 plaintifl's coal pocket to bulge outward and to become unsafe with- 
 out showing in what respect defendant was negligent in doing the thing 
 alleged.) S. P. Wilson ®. N. Y., N. H., etc., R. Co., R. I., 1894, 29 
 Atl. Rep., 2.5S; Cox ». Providence Gas. Co., 17 R. I., 199 ; s. c. 31 Atl. 
 Rep., 344. Texa-s.— Gulf, etc., R. Co. ». Smith, 74 Tex., 27H . s. o. 11 S. W. 
 Rep., 1104. (Allegation that the car was derailed and overturned "by the 
 gross negligence, carelessness and default of defendant, its agents, ser- 
 vants and employees," is sufficient, without alleging particular acts of 
 negligence, and will admit evidence that accident was caused by spread- 
 ing of tracks from detective ties.) San Antonio St. Ry. Co. v. Caillon- 
 etie, 79 Tex., 341 ; s. c. 15 S. W. Rep., 390. (It is not necessary to allege 
 that the facts constitute negligence, if the conclusion of negligence can 
 be drawn from them.) Texas, etc., R. Co. u. Easton, 2 Tex. Civ. App., 
 378 ; s. c. 21 S. W. Rep., 575. (An allegation that the injuries were caused 
 by the negligence of " defendant, its agents and employees " is sufficient 
 without specifying the particular agent or employee guilty of the negli- 
 gence.) Galveston, etc., Ry. Co. ». Croskell, 6 Tex. Civ. App., 160 ; s. c. 
 35 S. W. Rep., 486. (An allegation that one of the defendant's trains 
 negligently struck the cars placed on a side track, held, sufficient without 
 showing particularly how it negligently struck them.) Gulf, etc., R. Co. 
 ®. Smith, Tex. Civ. App., 1894, 26 S. W. Rep., 644. (In an action against 
 a railroad for injuries received at a street crossing from a car making a 
 flying switch, held, that it was not necessary to allege defendant's rules 
 regulating such operation ; as such rules were but evidence tending to 
 establish the negligence alleged.) United States. — Gulf, etc., R. Co. v. 
 Washington, 49 Fed. Rep., 347 ; s. c. 1 C. C. A., 286 ; 4 U. S. App., 121. 
 (A general allegation of negligence, without stating" the particular acts 
 constituting the negligence, is good against a general demurrer.) Sledge 
 1). Gayoso Hotel Co., 43 Fed. Rep., 463. (Where a declaration sufficienth' 
 alleges negligence, and goes further than need be in specifically stating 
 the facts, the court will not on demurrer undertake to determine whether 
 the facts alleged show negligence, or contributory negligence, but will 
 leave the question to be determined at the trial.) Parrotto. New Orleans, 
 etc, R. Co., 63 Fed. Rep., 562. (In an action by a servant against a rail- 
 road company for injuries caused by a washout of defendant's roadbed, 
 held, on demurrer, that an allegation, that the defect continued for an un- 
 reasonable length of time, stated a mere conclusion.) Vermont. — Preston 
 i\ St. Johnsbury, etc., R. Co., 04 Vt., 280 ; s. e. 2.3 Atl. Rep., 486. (De- 
 murrer overruled to a complaint, alleging that the accident occurred, be- 
 cause defendant furnished decedent with a car which was insufficiently, 
 carelessly and negligently constructed, and of unfit material, without 
 
Complaints in Actions for Negligence. 637 
 
 otherwise specifying of wliat the negligent construction consisted.) 
 Devino «. Central Vt. Ry. Co., 03 Vt, 98 ; s. c. 20 Atl. Rep., 9.53. (It is 
 not enough for a count to merely allege that defendant in disregard of 
 his duty as carrier permitted the plaintiff to be injured ; facts from which 
 the negligence resulted must be stated.) West Virginia. — Poling b. Ohio 
 River R. Co., 38 W. Va., 645; s. c. 18 S. E. Rep., 782. (On demurrer;, 
 held, that it was not usual nor necessary to specify the acts, or omis- 
 sions, which constitute the negligence.) Wisconsin. — Hanson i'. Ander- 
 son, Wis., 1895, 03 N. W. Rep., 1055. (Motion to make complaint more 
 definite and certain denied, where it was alleged that while plaintiff was 
 driving along a highway, defendant drove up behind at a great speed and 
 negligently ran into plaintiff's vehicle.) Barron v. Chic, etc., Ry. Co., 
 Wis., 1894, 61 N. W. Rep., 803. (Where plaintiff's injury is alleged to 
 have been occasioned because defendant's train did not give a signal, re- 
 covery cannot be had on the ground that the whistle was sounded, and 
 frightened plaintiff's horse.) Wyoming. — Hazard Power Co. v. Volger, 3 
 Wyo., 189 ; s. c. 18 Pac. Rep., 636. (A vague allegation of negligence 
 and carelessness in storing explosives, without stating any negligent act 
 of omission or commission, held, insufficient.) 
 
 (3) Willful act or negligence. 
 
 Alabamn. — Kansas City, etc., R. Co. v. Crocker, 95 Ala., 413; s. c.ll 
 So. Rep., 263. (Under a complaint alleging that defendant acted " negli- 
 gently, carelessly and recklessly," plaintiff is not bound to make out such 
 a case that his own contributoi-y negligence would not bar recovery; since 
 a charge of recklessness does not imply wilfuUness.) S.P.Louisville, 
 etc., R. Co. V. Barker, Alabama, 1893, 14 So. Rep., 383. (In an action by 
 a trespasser against a railroad company for injuries from being struck by 
 a train, complaint held not demurrable on the ground that it did not 
 allege that plaintiff's injury was inflicted wantonly or intentionally and that 
 the allegations did not show that plaintiff was guilty of other than ordin- 
 ary negligence, where it is alleged that the injury resulted from defend- 
 ant's wanton or reckless negligence.) Indiana. — Louisville, etc., R. Co. 
 V. Davis, 7 Ind. App., 322; s. c. 33 N. E. Rep., 451. (Complaintallegingthat 
 defendant's servants in charge of a locomotive " willfully caused a large 
 amount of steam to escape" which frightened plaintiff's horse, held, to be 
 founded on negligence and that the allegation of willfulness was surplus- 
 age.) Michigan.— liichter v. Harper, 95 Mich., 231; s. c. 54 N. W. Rep., 
 768. {Held, that plaintiff was not required to show that defendant acted 
 maliciously, though the declaration used the words "willfully, wantonly, 
 negligently and unlawfully" in connection with other words imputing 
 negligence to defendant.) Montgomery v. Muskegon Booming Co., 88 
 Mich., 633; 50 N. W. Rep., 739. (The word "willfully" used in certain 
 count of declaration, held, to imply malice, and that there could be no re- 
 covery under it, unless the evidence showed that the negligent acts com- 
 plained of were done maliciously.) Mississipin.— So. Exp. Co. v. 
 Brown, 67 Miss., 260 ; s. c. 8 So. Rep., 435. (Under an allegation of negli- 
 gence, plaintiff may prove a negligence so gross as to be willful.) Mis- 
 
638 NoTKs OF E.ECENT Cases. 
 
 sotiri. — O'Bi'ieu v. Loomis, 43 Mo. App., 29. ("Where plaintiff pleads that 
 an injury was caused by the negligence of the defendant, he cannot re- 
 cover for an intentional injury.) Neiv York. — Moore v. Drayton, 16 N. Y. 
 Supp., 733; s. c. 40 State Rep., 933. (The added words, " recklessly and 
 willfully," regarded as surplusage at the trial, where the act causing the 
 injury was alleged to have been "negligently, recklessly and willfully" 
 done; as the same act cannot be bothnegligentand willful.) North Caro- 
 lina— McKAoo V. Richmond, etc., R. Co., 105 N. C, 140; s. c. 11 S. E. Rep., 
 316. (The word "gross," when used in connection with allegation of 
 negligence, regarded as a mere expletive, and recovery may be had for 
 defendant's failure to use ordinary care.) 
 
 (3) Several acts of negligence. 
 
 Alabama. — Louisville, etc., R. Co. v. Mothershed, 97 Ala., 261 ; s. c. 13 
 So. Rep., 714. (Where several distinct acts of negligence on the part of 
 defendant, or his servants, caused plaintiff's injury, it is proper to count 
 on each act of negligence separately, and the proof of any one will 
 authorize a recovery.) Highland Ave., etc., R. Co. ■;;. Dusenberry, 94 Ala., 
 418; s. c. 10 So. Rep., 374. (Where the same count attributed the death 
 of plaintiff's intestate to several distinct negligent acts and omissions of 
 defendant, held, that it was demurrable on the ground of uncertainty and 
 ambiguousness, in stating several independent causes of action, without 
 disclosing which one was relied upon.) Louisville, etc., R. Co. v. Hall, 91 
 Ala., 113; s. c. 8 So. Rep., 371. (A count, charging several cumulative 
 acts of negligence, is not demurrable, because one of the acts charged 
 does not constitute negligence, if the other acts alleged showagood cause 
 of action.) Kansas City, etc., R. Co. v. Burton, 97 Ala., 340; s. c. 13 So. 
 Rep., 88. (Where, in the same count, plaintiff's injury was ascribed to de- 
 fendant's yard master in allowing a car to remain m a dangerous position 
 " and" to the negligence of defendant's engineer in running a train, held, 
 that as the acts of yard master and engineer were in no way related and 
 complaint charged plaintiff's injury to the concurrent acts of both, there 
 could be no recovery except on proof of the negligence of both.) Illinois. 
 —North Chic. St. Ry, Co. v. Cotton, 140 III., 486; s. c. 29 N. E. Rep,, 899. 
 (Evidence may be admitted though it tends to support a charge of negli- 
 gence not made by the declaration, if it is material to the proof of the negli- 
 gent acts alleged.) Slicliigan. — Thompson t'. Toledo, etc., R. Co., 91 
 Mich , 3.55; s. c. .51 N. W.Rep., 995. (Though several concurrent acts of 
 negligence ai-e alleged in one count as prodvicing- the injury, plaintiff need 
 not prove, in order to recover, such of them as are immaterial.) A'eir 
 i'oj-/c.— Cordelias. Dwyer, 9 Misc., 399; s. c. 39 N. Y. Supp., 1073. (Where 
 it appears that the damages sued for resulted from one of several causes, 
 and the defendant is not responsible for all of them, plaintiff cannot re- 
 cover without showing that the damage resulted from a cause for which 
 defendant was responsible.) South Cardlina.—Rnfi v. Columbia, etc., R. 
 Co., South Carolina, 1894, 30 S. E. Rep., 37. (Complaint held to state two 
 distinct causes of action, which alleged that u, horse was killed by the 
 negligent failure to keep a crossing in repair and the negligent manage- 
 
Complaints in Actions for JVegligence. 639 
 
 ment of a train, with no averment of any connection between tlie two 
 acts.) TT7sconsm.— Drefahl «. Connell, 85 Wis., 109; s. c. 55 N. W. Rep., 
 160. (Complaint held not demurrable, which stated a cause of action be- 
 cause of defendant's failure to perform certain duties, though it attempted, 
 but failed, to show other failures of duty.) 
 
 (4) Defendant's duty. 
 
 Alahama. — Ensley Ey. Co. v. Chewning, 93 Ala., 34; s. c. 9 So. Rep., 
 45i8. (Complaint held insufficient which alleged in effect that defendant 
 was a common carrier, and that it ran its train so negligently that it 
 knocked down and injured plaintiff, without alleging the existence of a 
 relationship between the parties, which would require defendant to use a 
 higher degree of care, or anything to show that plaintiff was not a tres- 
 passer upon defendant's premises at the time of the accident.) Illinois. — 
 Angus V. Lee, 40 111. App., 304. (Facts must be stated to show legal liabi- 
 lity; it is not sufficient to allege that a duty existed on defendant's part 
 and that he violated that duty.) S. P. Funk v. Piper, 50 Id., 163. Rock- 
 lord City R. Co. ■». Matthews, 50 111. App., 267. (Allegations of defend- 
 ant's duty to repair crossing under city ordinance, not set forth, held, in- 
 sufficient; facts to show duty must be stated.) Chic. v. Apel, 50 111. App., 
 V?,'2. (Allegation that it was the duty of a city to light bridge is mere con- 
 clusion, not a fact.) Indiana. — Thiele v. McManu.s, 3 Ind. App., 133; s. c. 
 28 N. E. Rep., 337. (In an action to recover lor injuries caused by falling' 
 down an ung-uarded hatchway in defendant's store, held, that an allega- 
 tion that plaintiff " while properly and necessarily in said building, with- 
 out fault on her part, fell through such hatchway," etc., did not show 
 that plaintiff was one of the class invited to visit the premises, to whom 
 plaintiff' owed a duty, and that demurrer to complaint should have been 
 sustained.) Missouri. — Rushenbei-g 9. St. Louis, etc., Ry. Co., 109 Mo., 
 112; s. c. 19 S. W. Rep., 316. (In an action for personal injuries to a child 
 of eight, caused by defendant's car running over him, while he was under 
 it, gathering pieces of ice dropped in unloading the car, complaint held to 
 be demurrable, in that it did not alieii'e any facts to show that defendant 
 unloaded the car so as to make it liable for any attraction that the pieces 
 of falling ice furnished decedent.) New Jersey. — Falk u. N. Y.,etc., R. Co., 
 56 N. J. L., 380; s. c. 29 Atl. Rep., 107. (An averment that it was the 
 duty of defendant, a railway company, to furnish a passenger safe ingress 
 and egress from its cars, sufficiently alleges defendant's duty in that 
 respect, although indefinite, to sustain the declaration against the objec- 
 tion, that it does not state a cause of action.) 
 
 (5) Plaintiff's freedom from contributory negligence. 
 
 Alabama. — Mary Lee Coal & R. Co. v. Chambhss, 97 Ala., 171 ; s. c. 11 
 So. Rep., 897. (Plaintiff need not allege that he exercised due care.) 
 California.— ILousfi v. Meyer, 100 Cal., 592 ; s. c. 35 Pac. Rep., 308. (Com- 
 plaint is not demurrable because it fails to allege that plaintiff was free 
 from contributory negligence.) Florida. — City of Orlando v. Heard, 29 
 Fla., 581 ; s. c. 11 So. Rep., 183. (Complaint need not aver plaintiff"s 
 
640 Notes of Recent Cases. 
 
 freedom fi-otn contributory neglig-ence; such.fact is involved in the averment 
 that the injury was occasioned by defendant's negligence.) niinois. — 
 Consolidated Coal Co. v. Wombacher, 24 N. E. Rep., 637. (Declara- 
 tion held sufficient to sustain judgment, though it did not allege that 
 plaintiff was not guilty of contributory negligence ; since contributory- 
 negligence was a matter of defense.) Indiana. — Cincinnati, &c., Ry. Co- 
 V. Stanley, Indiana, 1891, 37 N. E. Rep., 316; s. c. .30 N. E. Rep., 1103. 
 (Demurrer sustained, because complaint did not aver that plaintiff was 
 without fault, nor anything from which such fact might be inferred.) S. 
 P., Fort Wayne, &c., R. Co. v. Gruff, 133 Ind., 13; s. c. 31 N. E. Rep., 460.. 
 Richmond Gas Co. v. Baker, Indiana, 1895, 39 N. E. Rep., .553. (Demur- 
 rer sustained, where complaint alleged that plaintiff " had been " in all 
 things free from negligence ; since it did not allege his freedom from 
 negligence at the time of injury.) Indianapolis, &c., Ry. v. Wilson, 184 
 Ind., 95 ; s. c. 33 N. E. Rep., 793. (Demurrer sustained, notwithstanding 
 a general allegation that plaintiff was free from fault, where it appeared 
 from other allegations that he had been guilty of contributory negligence.) 
 Louisville, &c., Ry. Co. v. Sears, Ind. App., 1894, 38 N. e. Rep., 837. (In 
 an action by a child of eight, a general averment that he was without 
 fault is sufficient to negative tlie imputed negligence of his custodian.) 
 S. P., Cleveland, &c., R. Co. v. Keely, Indiana, 1894, 37 N. E. Rep., 406. 
 City of Columbus v. Strassner, 134 Ind., 483; s. c. 35 X. E. Rep., 65. (A 
 general averment that plaintiff was without fault will be regarded as- 
 controlling upon demurrer, unless it clearly appears from the other facts- 
 alleged that he was guilty of contributory negligence.) S. P., Pennsyl- 
 vania Co. V. Horton, 133 Ind., 189 ; s. c. 31 X E. Rep., 45 ; Louisville, &c.,. 
 Ry. Co. r. Stommel, 136 Ind., 863; s. c. 35 N. E. Rep., 863; Kentucky & Ind. 
 Bridge Co. v. Quinkert, 3 Ind. App., 244 ; s. c. 28 N. E. Rep., 338 ; Louis- 
 ville, &c., Ry. Co. D. Summers, 131 Ind., 241; s. c. 30 N. E. Rep., 873;. 
 Pennsylvania Co. ■». McCormack, 181 Ind., 350; s. c. 30 X. E. Rep., 37 ; 
 Evansville, &c., Co. v. Authon, 6 Ind. App., 395 ; s. c. 33 N. E. Rep., 469 ;- 
 Linton Coal Min. Co. «. Persons, Ind., 1894; s. c. 39 N. E. Rep., 314^ 
 Evansville, &c., Co. v. Krapf, Ind., 1894, 36 N. E. Rep., 901 ; N. Y. Chic, 
 &c., Ry. Co. 1). Mushrush, Ind., 1894, 37 N. E. Rep., 954; Salem, &c., Lime- 
 Co. v. Griffin, Ind., 1894, 38 N. E. Rep., 411; Louisville, &c., R. Co. i). Berry, 
 3 Ind. App., 427; 38 N. E. Rep., 714; Mississinewa Min. Co. v. Patton, 129 
 Ind., 473; 38 N. E. Rep., 1113 ; Louisville, &c., R. Co. v. Pritchard, 131 
 Ind., 564 ; 31 N. E. Rep., 358 ; Alexandria Min. Co. v. Painter, 1 Ind. App., 
 587; 38 N. E, Rep., 113. Romona Oohtic Stone Co. ». Johnson, 6 Ind. 
 App., 550; s. c. 33N. E. Rep., 1000. (Complaint sufficient if from the 
 tacts alleg'ed it appears that plaintiff was injured without contributory 
 negligence.) S. P., Penn. Co. v. Davis, 39 N. E. Rep., 425. Ky., &c., 
 Co. 1). Hall, 125 Ind., 220 ; s. c. 25 N. E. Rep., 319. (In an action against 
 a railroad company by the employee of another company complaint need 
 not allege that plaintiff's fellow servants were not guiltj' of contributory 
 ne.nligence.) loiva. — Gregory*. Woodworth, Iowa, 1895, 61 N. W. Rep., 
 963. (Complaint held demurrable which did not allege that plaintiff 
 was not guilty of contributory negligence.) Kentucky. — Depp v. Louis- 
 ville, &c^, R. Co., Kentucky, 1890, 14 S. W. Rep., 363. (Plaintiff's 
 
Com/plaints in Actions for Negligence. 641 
 
 freedom from contributory neglig'enoe need not be alleged.) Favre v. 
 Louisville, &c., R. Co., 91 Ky., 5^1 ; s. c. 16 S. W. Rep., 370. (Petition is 
 demurrable if it shows that plaintiff was guilty of contributory negli- 
 gence.) Durham)). Louisville, &c., R. Co., Kentucky, 1895; 39 S. W. Rep., 
 737. (Where it was alleged thkt plaintiff alig'hted from a train in the 
 dark and was injured, held, that the complaint was demurrable in that it 
 did not alleg-e that plaintiff was not negligent in getting oif under the 
 circumstances.) Missouri. — Mitchell ». City of Clinton, 99 Mo., 153 ; s. c. 
 13 S. W. Rep., 793. (Complaint sufficient on demurrer without alleging 
 the absense of contributory negligence.) Hudson ». "Wabash W. Ry. Co., 
 101 Mo., 18 ; s. c. 14 S. W. Rep., 15. (The defense of contributory negli- 
 gence must be affirmatively pleaded ; it cannot be raised bj' a denial of an 
 allegation in the petition that the injuries were caused without fault on 
 plaintiffs part.) Young ». Shickle, &c.. Iron Co., 108 Mo., 334; s. c. 15 S. 
 W. Rep., 771. (An employee need not allege that he had no knowledge 
 of the defective character of the machinery by which he was injured ; 
 knowledg-e of the defect being a matter of defense.) New Jersey. — Falk 
 V. N. Y., &c., R., 56 N. J. L., 380 ; s. c. 39 Atl. Rep., 157. (Contributory 
 negligence sufficiently negatived by declaration alleging tliat plaintiff, a 
 passenger, injured by stepping off defendant's train in the dark, was 
 unaware of the danger.) New York. — Mele v. Del., etc.. Canal Co., 14 N. 
 Y. Supji., 680; s. c. 39 State Rep., 153. (Complaint, alleging that de- 
 fendant's negligence caused plaintifE's injuries, is not demurrable because 
 it does not expressly allege that there was no contributory negligence on 
 plaintiff's part.) Ohio. — Chic, &c., R. Co. v. Norman, 49 Ohio St. Rep., 
 598 ; s. c. 33 N. E. Rep., 857. (An employee must aver want of knowledge 
 on his part or the defect causing the injury or that having sucli knowl- 
 edge he remained in the employment under the master's promise to 
 remedj' it. An averment that tlie injury occurred without the plaintiff's 
 fault is not enough.) Oregon. — Johnstons. Oregon, etc.,R. Co., 33 Ore., 94; 
 s. c. 31Pac. Rep., 383. (Want of knowledge, or means of knowledge, by a 
 switchman, of defects in a switch need not be averred by his administrator, 
 in an action for his death caused thereby.) Rhode Island. — Di Morcho v. 
 Builders Iron Foundry, 18 R. I.—; 37 Atl. Rep., 338. (Allegation of due 
 care by plaintiff an inference of fact, not law.) United States. — Parrot 
 ■J). New Orleans, &c., R. Co., 63 Fed. Rep., 563. (Petition alleging- that 
 plaintiff was injured in uncoupling cars while the train was in motion, 
 without explanation shows contributory negligence, and is bad on de- 
 murrer.) Vermont. — Henry v. Fitchburg R. Co., 65 Vt, 436; s. c. 36 Atl. 
 Rep., 484. (An allegation that plaintiff was in the careful and prudent 
 discharge of the duties of his employment held to be a sufficient allega- 
 tion as ag-ainst demurrer, that he was not negligent in being in the 
 ■place of injury.) Virginia. — Norfolk, &c., R. Co. «. Oilman, 88 Va., 
 339 ; s. c. 13 S. E. Rep., 475. (Declaration charging defendant with 
 negligence, held sufficient, on demurrer, althougli it did not deny con- 
 tributory negligence.) West Virginia. — Carrioo «. West Va., &c., Ry. 
 Co., 35 W. Va., 389 ; s. c. 14 S. E. Rep., 13. (Complaint not demurrable 
 because it fails to allege that plaintiff was not guilty of contributory 
 negligence.) 
 41 
 
642 Notes of Eecest Cases. 
 
 (6) Injury, damage, etc. 
 
 California. — Cotter v. Lindgren, California, 1895, 39 Pac. Eep., 950. 
 (Complaint reciting that defendant wrongfully dug a pit in certain high- 
 way, on Feb. 9th, and left the same unguarded during the night time ; and 
 that on Feb. 10th, plaintiff fell into the pit without any negligence on his part 
 is demurrable in not showing that the pit was unguarded when plaintiff 
 fell in.) Indiana. — McGahani). Indianapolis National Gas Co., Ind., 1894, 37 
 N. E. Rep., 601. (Demurrer sustained, where complaint alleged negligence 
 in defendant, gas company, in failing to turn off the gas as directed ; and 
 that plaintiff, a plumber, while searching for a defect in a gas pipe, was 
 injured by an explosion ; because it did not show that the injury was the 
 proximate result of defendant's negligence, or that the injury was caused 
 by some agency for which defendant was responsible.) Peerless Stone 
 Co. J). Wray, Indiana App., 1894; s. c. 87 N. E. Rep., 10.58. (Demurrer 
 sustained on the ground, that complaint did not show either by direct 
 allegation, or necessary inference, that the injuries sued for were the re- 
 sult of defendant's alleged negligence.) Board of Com'ers Boone Co. ». 
 Muchler, Indiana, 1894, 36 N. E. Rep., 534. (In an action against town 
 commissioners, complaint held to sufficiently show that the accident was 
 caused by the defective condition of a bridge, which alleged, that defend- 
 ants neglected to provide the bridge with railings , that while plaintiff 
 was driving across the bridge his horse became frightened at a hog, and 
 backed off ; and that the injuries were caused by defendant's said negli- 
 gent conduct.) Michigan.. — Thompson ». Village of Quincy, 83 Mich., 173 ; 
 s. c. 47 N. W. Rep., 114. (Allegation, that plaintiff's arm and leg "were 
 greatly hurt, cut, sprained, bruised, wounded, and injured ^^ * * and 
 that he was so injured in his arm and leg as to cripple him for life," is 
 sufficiently specific to admit evidence that the arm was broken.) Shadock 
 ». Alpine Plank Road Co., 79 Mich., 7 ; s. c. 44 N. W. Rep., 158. (Under 
 an allegation that pip mtiff was hurt, bruised and wounded, evidence of 
 fractures of shoulder arm and head, and a strain of the hip, producing 
 temporary pain and permanent injury, is not admissible.) Missouri. — 
 Slaughter i>. Metropolitan St. Ry. Co., 116 Mo., 269 ; s. c. 33 S. W. Rep., 
 760. (Evidence of loss of time and earnings are inadmissible under an 
 allegation that "the injury is permanent andwillrender plaintiff a cripple 
 for life," without any allegation as to the loss of time occasioned thereby.) 
 Neiv roi-fc.— Frobisher ». Fifth Ave. Trans. Co., 81 Hun, 544 ; s. c. 63 State 
 Rep., 287 ; 30 N. Y. Supp., 1099. (Under an allegation that plaintiff " has 
 become disabled for life to such an extent as to seriously interfere with the 
 active prosecution of his business," plaintiff may show, as special damage, 
 the loss to his business resulting fi'om the iujviries sued for.) Taylor ». 
 Town of Constable, 61 Hun, 622 ; s. e, 15 N. Y, Supp., 795 ; aff'd without 
 opinion in 131 N. Y., 597 ; s. c. 30 N. E. Rep., 63. {Held, that it was no 
 error not to dismiss complaint at trial, which alleged tliat a bridge was 
 defective, but did not directly allege that falling of the bridge and 
 plaintiff's injury were caused by such defect, where the meaning is evi- 
 dent.) re.ras.— Texas, &c., R. Co. ii. McCoy, 3 Tex. Civ. App., 276 ; s. c. 
 22 S. W. Rep., 926. (Demurrer sustained on the ground that the petition 
 
Complaints in, Actions for Conversion or of Replevin. 6i3 
 
 did not show that the negligence alleged caused the injury claimed.) 
 Campbell «. Cook, Texas, 1894, 2S S. W. Rep., 486. (Evidence that 
 plaintiff's sexual powers were impaired is not admissible under an allega- 
 tion that he was " severely injured in tlie back, bowels, hips and legs, and 
 ■other parts and members of the body.") T17.sco7i.s-m. — Hanson v. Ander- 
 son, Wisconsin, 1895, 63 ISr. W. Eep. ,1055. (Motion to make complaint 
 more definite and certain denied, whereit was alleged, that plaintiff's arm, 
 shoulder, and back were seriously and permanently injured, and his body 
 otherwise bruised and injured, as the result oC which he became sick and 
 disordered and suffered great pain and distress. If defendant desires the 
 items of damages his remedy is to apply for a bill of particulars.) Kellj' 
 •B. Town of Darlington, 86 Wis., 433; s. c. 57 N. W. Rep., 51. (Allega- 
 tion that " by reason, entirely of the insufficiency, want of repair and 
 ■defects aforesaid of and in said bridge,'" plaintiff's wagon and team fell 
 therefrom — sufficiently avers that the defects of the bridge were the 
 proximate cause of plaintiff's injury.) 
 
 COMPLAINTS IN ACTIONS FOR CONVERSION OR 
 OF REPLEVIN. 
 
 [Principal Cases, pp. 229, 277, this Vol.] 
 
 (1") The ivrongfid taking, detention, etc. 
 (3) Demand. 
 
 (3) Description of the property. 
 
 (4) Plaintiff's ownership) or right of possession. 
 
 (5) Damages, etc. 
 
 (1) The ivrongful taking, detention, etc. 
 
 California.— Bancroit Co. v. Haslett, California, 1895, 39 Pac. Eep., 603. 
 (Plaintiff need not prove the exact date of conversion as alleged. It is 
 sufficient, if he shows that it took place before the commencement of the 
 action.) Carman r. Ross, 64 Cal., 349; s. c. 39 Pac. Rep., 510. (Demurrer 
 to a complaint in replevin sustained where it averred that plaintiff was in 
 possession of the property.) Visher v. Smith, 91 Cal., 360; s. c. 27 Pac. 
 Eep., 650. (Where complaint in replevin set forth defendant's warehouse 
 receipts to deliver the goods on the surrender of the receipts, and alleged 
 defendant's refusal to redeliver on demand without offering any excuse, 
 held, that the complaint was not demurrable on the ground that it did not 
 allege that at the commencement of the action defendants were in actual 
 ■or constructive possession of the property.) Indiana. — Gould v. O'Neal, 
 1 Ind. App., 144; s. c. 37 N. E. Eep., 307. (An allegation that defendant 
 " unlawfully holds " the property is equivalent to an allegation that it is 
 "unlawfully detained.") Ross v. Menetee, 125 Ind., 432; s. c. 25 N. E. 
 Eep., 545. (In an action for unlawful detention of a chattel, it is not 
 necessary to allege that defendant unlawfully obtained possession.) 
 Turpie ^. Fagg, 124 Ind., 476; s. u, 22 N. E. Eep., 743. (Demurrer over- 
 ruled to a complaint alleging that "plaintiffs are entitled to the posses- 
 
6iJ: Notes of Recent Cases. 
 
 sion of" the property " which defendant has possession of, without riglit, 
 and unlawfully detains from the plaintitl'.") Town of Andrews v. Sellers, 
 Ind. App., 1894, 38 N. E. Rep., 1101. (In replevin against atown for prop- 
 erty seized by defendant to satisfy a tax, complaint held demurrable for 
 not alleging that the tax was illegal.) loiva. — Glover v. Narey, Iowa, 
 1894, 60 N. W. Eep., .131. (In replevin against a sheriff for the wrongful 
 seizure of plaintiff's property under several writs of attachment in diffei'- 
 ent suits, plaintiff cannot be required to set out in separate counts what 
 portion of the property claimed wa.s taken under each writ.) Massachu- 
 setts.— Duggan V. Wright, 157 Mass., 228; 32 N. E. Rep., 1.59. (A declara- 
 tion alleging that -'defendant has converted to his own use "certain 
 chattels " the property of plaintiff," is sufficient to admit proof of all the 
 facts necessary to maintain an action of trover; since it is the form pre- 
 scribed by Pub. St., C. 167, Sec. 94.) Michigan.— Smith v. Thompson, 94 
 Mich., 381; s. c. .'54 N. W. Rep., 168. (In trover for conversion of shares of 
 stock, the declaration need not allege that the shares had been indorsed so 
 as to enable the defendants to transfer them, as it is not necessary to set 
 forth how, or in what way, or by what means, the conversion was accom- 
 plished.) Missouri. — Warnick v. Baker, 42 Mo. App., 439. (Petition held 
 to sufficiently state a cause of action for conversion, which alleged that 
 the defendants "without leave, forcibly and wrongfully drove away" 
 lilaintiff's cattle, and have not returned the same.) Nebraska. — McKinney 
 V. First Nat. Bk., 36 Neb., 629; s. c. 54 N. W. Rep., 963. 
 (In replevin against the transferee of a purchaser of goods, who 
 obtained them under false pretences, it is sufficient for the com- 
 plaint to allege that plaintiff is owner and entitled to the possession 
 of the goods and that they are wrongfully detained by defendant, with- 
 out any allegation as to how defendant acquired them. Defendant's 
 purchase in good faith is a matter of defense.) Eikenbary v. Clifford, 34 
 Neb., 607 ; 52 N. W. Rep., 377. (Where petition alleged that the property 
 " was not taken in execution on any order or judgment rendered against 
 plaintiff, or for the payment of any tax,'' etc., held, that plaintiff could 
 not introduce proof that the property was taken under execution, but that 
 it was exempt, without amendment.) For approved forms of complaint 
 in actions for conversion, etc., see : Cortelyou v. Hiatt, 36 Neb., 584 ; s. c. 
 54 N. W. Rep., 964. Rodgers i). (irahani, 36 Neb., 730 ; s. c. 55 N. W. 
 Rep., 243. Johnson v. Neal, 32 Neb., 14; s. c. 48 N. W. Rep., sOT. 
 Nevada. — Gardner v. Brown, Nevada, 18'.I4; 37 Pac. Rep., 240. (In an 
 action for the recovery of personal property or its value, where complaint 
 alleges that defendant is in possession thereof, no recovery can be hud 
 unless plaintiff shows that defendant was in possession at the commence- 
 ment of the action.) Neu- Jersey. — Lippman ». Myers, 53 N. J. L., 21; 
 s. c. 20 Atl. Rep., 1079. (A declaration may contain a count in trover 
 and a count in trepass de bonis asportatis.) New Yark. — Scofield i: 
 Valentini, 46 State Rep., 880 ; s. c. 19 N. Y. Supp., 225. (Complaint held 
 to sufficiently show a wrongful detention, which alleged that plaintiff 
 had a right to the possession of the chattel in case of a default in the 
 payment of rent ; that there had been a default; that plaintiff's lessee 
 had transferred the chattels to defendant without plaintiff's consent, and 
 
Complaints in Actions for Conversion or of Replevin. 645 
 
 that a demand for their return had been refused. In such a case, it is not 
 necessary to allege that defendant had knowledge of the agreement 
 between plaintiff and lessee.) Button xi. Lusk, 33 State Rep., 531 ; s. c. 10 
 N. Y. Supp., 582. (Complaint in replevin, in a justice's court, held to be 
 sufficient, where the facts alleg'ed showed a wrongful taking, though it 
 did not expressly allege that the taking was wrongful.) Gregory ». Ficht- 
 ner, 38 State Rep., 192; s. c. 37 Abb. N. 0. 86; 14 N. Y. Supp., 891. 
 {Complaint held sufficient, which alleged property in plaintiff, possession 
 by defendant as bailee, the value of the property, and defendant's refusal 
 to deliver the same on demand.) Barry «. Calder, 48 Hun, 449 ; s. c. 16 
 State Rep., 295. (Code Civ. Pro., sec. 1721, requiring complaint to state 
 the facts showing the wrongful detention, applies only to actions of re- 
 plevin, and not to actions for trover or conversion.) Soiitli Carolina. — 
 Nance v. Georgia C. & N. R. Co., 85 S. C, 307; s. c. 14 S. E, Rep., 639. 
 (An allegation that defendant " unlawfully took possession of the said 
 cross-ties and converted them to his own use," is not made on allegation of a 
 conclusion of law by the use of the word "unlawfully.") South Dakota. — 
 Humpfner v. D. M. Osborne & Co., 2 S. D., 310 ; s. c. 50 N. W. Rep., 88. 
 (Complaint held sufficient, which alleged that plaintiff was owner of the 
 personal property, and that while it was in defendant's possession it 
 wrongfully converted them to its own use to plaintiff's damage ; and the 
 further alleg-ation that "defendant took possession of said personal 
 property," should be disregarded.) Wisconsin. — Van Oss v. Synon, 85 
 Wis., 661 ; s. c. 56 N. W. Rep., 190. (Complaint regarded as setting forth 
 a cause of action on contract, where it demanded a specific and liquid- 
 ated sum of money which was retained by the defendants, as the plain- 
 tiff's attorneys, from, moneys collected for her by them, and which they 
 refused to pay over, and an allegation that defendants " have wrong- 
 fully converted the same to their own use," should be disregarded as 
 immaterial.) Wyoming. — Cone «. Ivinson, Wyoming, 1894, 35 Pac. Rep., 
 933 ; s. c. 33 Pac. Rep., 31. (A petition alleging that plaintiff held a mort- 
 gage on certain sheep, as defendant knew ; that the mortgagors at de- 
 fendant's instigation sold and disposed of all the sheep; and that defen- 
 dant for the purpose of defrauding plaintiff collected and retained 
 the proceeds of the sale, — alleges an unlawful sale in hostility to plain- 
 tiff's mortgage and therefore a tortious conversion by the parties making 
 the sale.) 
 
 (2) Demand. 
 
 Indiana.— S\oa.n v. Lick Creek, etc., Gravel Road Co., 6 Ind. App., 584 ; 
 s. c. 33 N. E. Rep., 997. (A complaint alleging that defendants collected 
 certain money belonging to plaintiff, which they converted to their own 
 use, and which they failed and refused to pay over to plaintiff, not only 
 sufficiently alleges conversion but also demand.) Missouri. — Knipper 
 t. Blumenthal, 107 Mo., 665 ; s. c. 18 S. W. Rep., 33. (No demand need 
 be alleged, where the facts alleged show that defendant held the 
 property as security and had wrongfully disposed of it.) Nebraska— 
 Fletcher b. Cummings, 33 Neb., 793; s. c. 51 N. W. Rep., 144, (In an 
 action against an attorney to recover money collected by him lor plain- 
 
646 Notes of Recent Cases. 
 
 tiff, an averment in the petition that defendant neglected and refused to- 
 pay over the money though requested so to do, is a sufficient allegation 
 of demand.) Neiv York. — Saratoga, etc.. Light Co. v. Hazard, 55 Hun, S.jl ; 
 s. c. 7 N.Y. Supp., 844 ; 27 State Rep., 588. (Although defendant came into 
 possession of the property lawfully, no demand need be alleged, where it 
 is alleged that defendant unlawfully converted and disposed of the prop- 
 erty to his own use.) Schmidt v. Garfield Nat. Bank, 64 Hun, 298 ; s. c. 
 40 State Rep., 639; 19 N. Y. Supp., 253. (Complaint alleging plaintiff was 
 owner of specific checks, and that defendant, a bank, without plaintiff's, 
 authoi-ity obtained possession of them, and wrongfully disposed of and 
 converted them to its own use, is sufficient, in absence of a motion to 
 make more definite and certain. In such case, it is not necessary to 
 allege a demand for the checks.) Ohio. — Baltimore, etc., R. Co. «. 
 O'Donnell, 49 Ohio St., 489 ; s. c. 32 N. E. Rep,, 476. (It is not necessary 
 to allege a demand for the property by plaintiff, and defendant's refusal 
 to deliver it to him, even where the property came lawfully into posses- 
 sion of defendant. The ultimate fact is the conversion, and that only 
 need be pleaded.) South Dakota.— B.olciridge v. Lee, 3 S. D., 134; 52 N. 
 W. Rep., 265. (In an action to recover for the conversion of exempted 
 property taken upon execution, complaint alleging the service of the 
 statutory notice of claim of exemption upon sheriff is sufficient, with- 
 out alleging other or different demand.) Washington. — Hulbert v. 
 Brackett, 8 "Wash., 438 ; s. c. 36 Pac. Rep., 264. (Amendment may be al- 
 lowed at the trial by inserting an allegation of demand.) 
 
 (3) DeserixMon of the property. 
 
 CaZi/orma.— Greenbaum v. Taylor, 102 Cal., 624; s. c. 36 Pac. Rep., 
 957. (In an action of trover, a description of the property as " all the 
 saloon fixtures on the premises No. 424 M. street ;" giving city and county, 
 held sufficiently certain.) Georgia.— Leitner v. Strickland, 89 Ga., 363 ; 
 s. c. 15 S. E. Rep., 469. (In trover, the following description was held to 
 be sufficiently certain, " That hewn timber, and those round logs, which 
 were cut from the land of the petitioner, and from the land of A., by one 
 B. , and were by said B. left and deposited in the waters of the G. river, at 
 a point not far from the bridge of the M. & A. R. R., and being that timber 
 and logs referred to in the contract between petitioner and said B., 
 dated," etc.) Wolf r. Kennedy, 93 Ga., 219; 18 S. E. Rep., 433. (In re- 
 plevin, held, that it was not a ground for setting aside a judgment, that 
 the property alleged to have been converted was vaguely and loosely 
 described in the petition, and that some of it was stated to be the clothes 
 of plaintiff's father.) Ida/io.— Pierce v. Langdon, Ida., 1891, 28 Pac. Rep., 
 401. (In replevin, held, that it was insufficientfor complaint to describe the 
 property as " 590 sacks of wheat;" and that a verdict and judgment which 
 referred only to " the propertj^ described in the complaint " giving value, 
 were fatally defective.) Jiididna.— Wood v. Darnell, 1 Ind. App., 315; 37 
 N. E. Rep., 417. (In replevin, held, that it was sufficient to describe 
 property as " one gray horse, six years old this spring, about 16)4 hands 
 high, with a small knot about half way between the right nostril and the 
 
Complaints in Actions for Conversion or of Replevin. 647 
 
 right eve, near the front of face or nose, with collar mark on top of neck, 
 dark mane and tail, with top end of tail light in color.") Kentucky. — 
 Sawyer?;. Middlesborough Town Co., Kentucky, 1891, 17 8. W. Rep., 444. 
 (In replevin, it is sufficient for plaintiff to describe the property taken as 
 about " 200 or 250 cubic yards of stone lying in the natural state, in ob- 
 long- blocks.") Maryland.— Gi-ock-dv v. Hopps, 78 Md., 360; s. c. 28 Atl. 
 Rep., 99. (In trover, property held sufficiently described by an allega- 
 tion that defendant converted " three horses, three carriages, and one set 
 of double harness.") Michigan. — Caldwell ■!;. Bo wen, 80 Mich., 383; s. c. 
 45 N. W. Rep., 185. (The words "being an invoice * * * sold to E. 
 T. A. & Co," after an allegation specifying the goods, held to be a mere 
 description, and that proof that the goods were sold to E. T. A. was ad- 
 missable.) Nebraska. — Bilby v. Townsend, 29 Neb., 220 ; s. c. 45 N. W. 
 Rep., 619. (In replevin, allegation describing the property sought to be re- 
 covered as " two bay mares, five years old," without stating the names 
 by whicli they were known, held supported by evidence as to two mares 
 of certain names, and corresponding to the description given.) Oregon. — 
 Riley r. Pearson, 31 Ore., 15 ; s. u. 36 Pac. Rep., 849. (In replevin, an ex- 
 hibit containing' a description of the propertj' in order to become a part 
 of the complaint must be annexed and attached thereto. It is not suffici- 
 ent to file the same as a separate paper, although referred to in the com- 
 plaint and alleg-ed to be a part thereof.) South Carolina. — Burr v. Brant- 
 ley, South Carolina, 1894, 19 S. E. Rep., 199. (In replevin, demurrer for 
 insufficient description of the property overruled, where it was alleged that 
 defendant seized upon plaintiff' s premises four wagon loads of corn amount- 
 ing to forty bushels, and 400 or 500 pounds of fodder, exempted from sale 
 under the homestead law.) Texas. — Schneider v. Ferguson, 77 Tex., 573; 
 s. c. 14 S. W. Rep., 154. (An allegation of inability to accurately describe 
 the goods, held, not to excuse an insufficient description, where it is 
 alleged that the goods were wrongfully attached, and it is not alleged that 
 the return to the attachment writ had been lost, and that there was no 
 description of the attached property among the records of the suit.l 
 
 (4) Plaintiff's ownershiji or right of possession. 
 
 California.— JtoseathaX v. McMann, 93 Cal., 505; s. c. 39 Pac. Rep., 121. 
 (Complaint alleging that plaintiff was entitled to possession, held to be 
 sufficient to support a judgment for plaintiff, though it failed to allege 
 ownership.) Visher v. Smith, 91 Cal., 360; 27 Pac. Rep., 650. (On demur- 
 rer, complaint in replevin held not objectionable on the ground that it did 
 not expressly allege that plaintiff was the owner and entitled to possession 
 of the property sought to be i-ecovered, where facts are alleged showing 
 him to be entitled to possession.) Fredericks v. Tracy, 98 Cal., 65S ; s. c. 
 33 Pac. Rep., 750. (Demurrer sustained to a complaint in an action for 
 claim and delivery, which alleged that plaintiff was owner and entitled to 
 immediate delivery of the property two days before the commencement 
 of the action, and did not show that such facts continued to exist at the 
 commencement of the action.) Colorado. — Stevenson v. Lord, 15 Colo., 
 131 ; s. c. 35 Pac. Rep., 313. (In replevin by a chattel mortgagee against 
 
648 Notes of Recent Cases. 
 
 an attaching creditor of the mortgagor, an allegation of the non-payment 
 of the mortgage is unnecessary.) Idaho. — Pierce v. Langdon, 3 Ida., 878 ; 
 s. c. 28 Pac. Rep., 401. (An allegation that plaintiff was the owner and 
 entitled to the possession of the property, 7ieM, sufficient after verdict.) 
 Indiana. — Rich. First Nat. Bank -y. Gibbons, 7 Ind. App., 629; s. o. 35 N. 
 E. Rep., 31. (In an action by the payee of a draft for its conversion, it is 
 not necessary for plaintiff to anticipate defenses by alleging that she did 
 not indorse the draft, or that defendants did not purchase It in good faith, 
 for value and before maturity. It is sufficient to allege that plaintiff was 
 the owner, when the draft was converted.) Kansas. — Keunett v. Peters, 
 54 Kan., 119; s. c. 37 Pac. Rep., 999. (If plaintiff is not the absolute owner, 
 the petition must set forth this special ownership or interest, stating the 
 facts in relation thereto; and it must appear that plaintiffs interest existed 
 at the time of the conversion,) Massachusetts. — Duggan v. Wright, 1.57 
 Mass., 238 ; s, o. 32 N. E. Rep., 159. (An allegation that the property con- 
 verted was plaintiil's is supported by proof of .a mortgage title in her.) 
 Michigan. — Warren t;. Dwyer, 91 Mich., 414; s. c. 51 N. W. Rep., 1063. 
 (In trover, the declaration need not show the nature or evidence of plaint- 
 iff's title.) Minnesota. — Miller v. Adamson, 45 Minn., 99; s. u. 47 N. W. 
 Rep., 452. (Plaintiff in replevin may allege generally, that he is owner 
 and entitled to possession of the propei-ty, and under it, he may prove anj* 
 riglit to the property, general or special, that entitles him to possession.) 
 Missouri. — Warrick v. Baker, 42 Mo. App., 439. (An allegation referring 
 to the property as "belonging to plaintiff," held to be a sufficient allega- 
 tion of plaintiff's title which carried with it tlie possession.) Montana. — 
 Sawj'er v, Robertson, 11 Mont., 416; s. c. 28 Pac. Rep., 456. (Complaint 
 held insufficient, which alleged that, on May 8th, plaintiff " was and now 
 is " the owner of certain property, and that on or about May 12th, the 
 defendant took and converted the property.) Nebraska. — Reid v. McRill, 
 41 Neb., 306; s. c. 59 N. W. Rep., 775. (It is sufficient to allege owner- 
 ship generally without stating how such ownership was acquired.) Ka- 
 'anaug-h v. Oberf elder, 37 Neb., 647 ; s. c. 56 N. W. Rep., 316. (It is not 
 necessary for plaintiff to trace in his petition the devolution of title to 
 himself. Facts sliowing how he acquired the property may be proved 
 under a general allegation of ownersliip.) Musser v. King, 40 Neb., 893; 
 s. c. 59 N. W. Rep., 744. (Under a general allegation that plaintiffs were 
 owners and entitled to immediate possession of a cliattel, plaintiffs cannot 
 prove a special ownership thereof by reason of a chattel mortgage. Facts 
 showing such special ownership sliovild have been pleaded.) S. P. Ran- 
 dall r. Piersons, Neb., 1894; s. c. 60 N. W. Rep., 898; Sharp v. John- 
 son, Neb., 1895, 63 N. W. Rep., 466. New I'orfc.— Kerner r. Boardman, 
 14 N. Y. Supp., 737 ; 89 State Rep., 787. (An allegation that " defendant 
 wrongfully took into liis possession property of which tlie plaintiff was 
 owner," held to sufficiently allege plaintiff's right of possession.) Wasli- 
 ington. — Binnian v. Baker, 6 Wash., 50 ; 33 Pac. Rep., 1008. (In an ac- 
 tion by mortgagee against a subsequent mortgagee, held that it did not 
 allege possession or right of possession or a demand of possession; since 
 in Washington a chattel mortgage vests no title or right of possession in 
 mortgagee.) 
 
Com.'plaints in Actions for Deceit. 6-±9 
 
 (51 Damages, etc. 
 Alabama.— B.OSS v. Malone, 97 Ala., 529; s. c. 12 So. Rep., 182. (Plaintiff 
 cannot recover the expenses incurred in the prosecution of an action of 
 detinue for the recovery of the property converted, unless he specially 
 pleads such claim.) Indiana. — Harlan v. Brown, 4 Ind. App., 319 ; 30 N. 
 E. Rep., 928. (In an action for the conversion of a note past due, and 
 which the defendants were unable to restore, held that the value of the 
 note was sufficiently alleged, where the complaint stated the date of the 
 note, the principal and rate of interest. If the maker was insolvent, or 
 there was a legal defense to the note, it could be shown by the way of 
 defense.) Bensch v. Farnsworth, Ind. App., 1894, 37 N. E. Rep., 284. 
 (In replevin in a justice's court, complaint may be amended so as to omit 
 a claim for damages, in order to bring the action witliin the jurisdiction 
 of the court.) Kansas. — Bradley v. Borin, 53 Kan., 628; 36 Fac. Rep., 
 977. (Special damages for loss of profits, not alleged in the petition, can- 
 not be recovered.) Michiga.i. — Riley ?\ Littlefleld, 84 Mich., 22; s. c. 47 
 K. "W. Rep., 576. (Under the ordinary form of declaration in replevin, 
 plaintiff may recover any damages to which he is entitled whether on 
 account of unlawful taking or wrongful detention.) New York. — God- 
 dard v. Cassell, 84 Hun, 113; s. o. 31 N. Y. Supp , 1044. (Amendment, 
 changing the form of action from replevin to trover allowed.) North 
 CaroJina.—Kiger v. Harmond, 113 N. C, 406; 18 S. E. Rep , 515. yA 
 demand for possession of the property, and for judgment for the debt 
 seoui'ed by it may be joined in an action of claim and deUvery.) Texas. — 
 San Antonio & A. P. R. Co. v. Kniffin, 4 Tex. Civ. App., 484; s. c. 23 S. 
 W. Rep., 4.j7. (An allegation claiming exemplary damages, held to be 
 sufficient, which stated the act of conversion was done unlawfully, want- 
 only and mahciously, and with the fraudulent intent to deprive plaintiff 
 of his propertj^ w^ithout stating the circumstances to show that it was so 
 done.) 
 
 COMPLAINTS IN ACTIONS FOR DECEIT. 
 
 [Principal Case, p. 239, this Vol.] 
 
 (1) Nature of the representations, etc. 
 
 (2) The intent to deceive, etc. 
 
 (3) Plaintiff's reliance vpon defendant's representations. 
 
 (4) Resulting damage, etc. 
 
 (1) Nature of the representations, etc. 
 
 California.— Hicks v. Thomas. 90 Cal., 289 ; s. c. 27 Pac. Rep., 208, 376. 
 (It is not necessary that complaint should minutely detail the conversa- 
 tions bj' which the fraudulent repi-esentations are proven.) Connecticut. 
 — Spvague r. Taylor, 58 Conn., 542 ; s. c. 20 Atl. Rep., 612. (In an action 
 by a client against his attorney for inducing him by collusion and false 
 representations to settle a judgment, 7ie?d, that facts sufficient to show 
 the deceit having been alleged and proved, an allegation that defendant 
 
650 Notes of Recent Cases. 
 
 was retained bj' plaiiitifl' would be disregarded as immaterial.) Illinois. 
 — Kitson V. People, 132 111., 337 ; s. c. 33 N. E. Rep., 1034. (A count in a 
 declaration, alleging that defendant in order to induce the plaintiffs to 
 sell him goods on credit, falsely and fraudulently represented that he in- 
 tended to pay therefor, does not state sufficient facts to constitute a cause 
 of action for deceit.) Indiana. — Beem i\ Lockhart, 1 lud. App., 202 ; s.c. 
 27 N. E. Rep., 339. (Allegations of fraudulent representations by defend- 
 ants through their agent held sufficiently distinct.) Kansas. — Gulp i-. 
 Steere, 47 Kan., 746 ; s. o. 38 Pac. Rep., 987. (In an action for false repre- 
 sentation, held, that it was not error to allow an amendment to show 
 that the wrongful representations included an express warranty. Such 
 amendment, though it may change the form of action, does not substan- 
 tially change the cause of action.) Michigan. — Averill v. Wood, 78 ilich., 
 342; 44 N. W. Rep., 381. (Under an allegation that defendant repre- 
 sented that he had made arrangements for the payment of notes with the 
 receiver of the maker, evidence may be g'iven that defendanttold plaintiff 
 that one of the notes had been accepted by the receiver.) Leland r. 
 Goodfellow, 84 Mich., 357 ; s. c. 47 N. W. Rep., 591. (Demurrer to a dec- 
 laration sustained, which alleged that the false representations were made 
 by defendant's agent, but which failed to show defendant's complicity 
 therein.) New I'orfc.— Goldstein ik Parker, 80 State Rep., 245 ; s. c. 8 X. 
 y. Supp., 865. (Complaint properly dismissed which merely alleged that 
 defendant with the intent to deceive and defraud plaintiff entered into an 
 agreement to sell a soda water business and executed a bill of sale there- 
 for ; "wherein and whereby" defendant fraudulently represented that 
 certain fixtures were in good order, where the bill of sale annexed to com- 
 plaint failed to show such misrepresentations.) Genin v. Schwenk, 41 
 State Rep., 883 ; s. c. 16 N. Y. Supp., 432. (Where complaint sufficiently 
 shows a cause of action for the procuring of a loan fronr plaintiff upon 
 false representation, it is not necessary tliat it should allege facts suffi- 
 cient to bind defendant as an indorser in order to sustain recovery, al- 
 though the allegations show that the loan was made on the promissory 
 note of a third person to defendant's order and that defendant indorsed it 
 to plaintiff.) Oregon. — Corbett v. Wrenn, Oregon, 1894, 35 Pac. Rep., 658. 
 (Complaint properly construed as an action for breach of covenant, and 
 not for deceit, which alleged that defendant sold land to plaintiff with the 
 covenant against incumbrances ; that defendant knowingly made false 
 representations that it was clear from incumbrances, in reliance upon 
 which plaintiff purchased ; and that she subsequently was compelled to 
 pay off a mortgage to secure title.) Rhode Island. — Handy v. Waldron, 
 R.I., 1894, 29 Atl. Rep., 143. (A count alleging several false representations, 
 as the subject matter of a sale whereby plaintiff was defrauded, does not 
 show more than one cause for action.) Fog'arty v. Barnes, 16 R. I.. 027 j 
 s. c. 18 Atl. Rep., 982. (An action of trespass on the case, and not on the 
 contract, may be brought against one who warranted a horse to be sound,- 
 knowing it to be unsound, although 2 Pub. L., Apr. 26, 1889, amending 
 Pub. St. c. 225, J^ 1, provides, that, in actions of ti-espass on the case, de- 
 fendant may be committed to close jail.) 
 
Complaints in Actions for Deceit. 651 
 
 (3) The intent to deceive, etc. 
 
 Massachusetts. — Hoist «. Ste wait, 154 Mass., 445 ; s. c. 38 N. E. Rep., 
 .')74. (Demurrer to declaration sustained on the ground that it did not al- 
 lege that the representations were fraudulent as well as false.) Brady v. 
 Finn, 163 Mass., 360 ; s. c. 38 N. E. Rep., 506. (A declaration, alleging 
 that defendant knowingly made false representations of material facts by 
 which plaintiff was induced to make an exchange of real estate, is suffi- 
 cient since the jury may infer a fraudulent intent.) Missouri. — Fenwick 
 V. Bowling, 50 Mo. App., 516. (Petition merely averring that the repre- 
 sentations are untrue, without charging that they were knowingly and 
 fraudulently made, — is bad.) Redpath t\ Lawrence, 43 Mo. App., 101. 
 {Held, that petition did not state a cause of action, where it did not allege 
 defendant's intent to deceive, and contained only a general allegation of 
 fraud.) New York. — Thomas v. Snyder, 77 Hun, 365 ; s. c. 60 State Rep., 
 415 ; 38 N. Y. Supp., 877. (Complaint cannot be regarded as setting fortli 
 a cause of action for false representations, which does not allege that de- 
 fendants knew the representations to be false.) Steinam v. Bell, 7 Misc., 
 318 ; s. c. 57 N. Y. St. Rep., 463 ; 37 N. Y. Supp., 905. (Complaint alleg- 
 ing, that defendant warranted and falsely represented a mare to be 
 sound ; that relying thereon plaintiff purchased the mare ; that the mare 
 was unsound and known to defendant to be so ; and that in consequence 
 of the animal's condition plaintiff was put to great expense, etc., — states 
 a cause of action for fraud, and not on contract.) American Nat. Bank 
 V. Grace, 67 Hun, 433 ; s. c. 51 State Rep., 308 ; 33 N. Y. Supp., 131. 
 (Motion to make more definite denied, where complaint, after fullj' setting- 
 forth the character of the fraud and deceit and false representations, al- 
 leged that defendant " was informed and knew of the facts and circum- 
 stances sufficient to charge him with knowledge of the falsity thereof.") 
 Oi-egora.— Britt -y. Marks, 30 Ore., 338 ; s. o. 35 Pac. Rep., 636. (Complaint 
 must allege that defendant knew the representations relied on by plaintiff 
 were untrue, and that they were made with the intent to defraud the 
 plaintiff.) Schoellhamer v. Rometsch, Oregon, 1894, 38 Pac. Rep., 344. 
 (Defendant's intent to deceive may be implied from an allegation, that he 
 made specified representations, which he knew to be false, for the pur- 
 pose of inducing, and which did induce, the plaintiff to purchase property 
 to her damage.) Pennsylvania. — Bradley «. Potts, 155 Pa., 418 ; s. c. 36 
 Atl. Rep., 784. (It is not necessary that the fraud should be alleged in 
 express terms, it the facts alleged are sufficient to support an inference 
 of fraud.) United States.— Shippen v. Bowen, 48 Fed. Rep., 659. (De- 
 fendant's knowledge of the falsity of the representations must be alleged 
 and proved.) Barnes u. Union Pac. R. Co., 54 Fed. Rep., 87, CCA. , 
 1893. (In an action for false representations as to defendant's title to 
 land, complaint need not allege that, at the time of making the represen- 
 tations, defendant knew them to be false, where it appears that plaintiff 
 had no knowledge of the title and relied wholly on defendant's state- 
 ments.) 
 
652 Notes of Recent Cases. 
 
 (3) Plaintiff's reliance on defendant's representations. 
 
 Georgia.— Cheney v. Powell, 88 Ga., 639 ; s. c. 15 S. E. Rep., 750. (De- 
 muL'rer overruled, though complaint did not expressly allege that plaintiff 
 was deceived by the fraudulent representations, where such fact was 
 plainly implied by the facts alleged.) Indiana. — Lincoln v. Eagsdale, 
 Indiana Appeals, 1894, 37 N. E. Rep., 25. (Demurrer to a complaint for 
 fraudulent representations sustained, where it did not allege that plaintiff 
 was ignorant of the falsity thereof, and that he was misled thereby.) Mas- 
 sachusetts.— Wmdva.m v. French, 157 Mass., 547; s. c. 34 N. E. Rep., 914. 
 (A. declaration, alleging that plaintiff indorsed a note relying on the vali- 
 dity of specified certificate of stock which had been illegally issued by de- 
 fendants, but not alleging that he relied upon defendant's representations 
 that the stock was valid, arising from their signing the certificate as of- 
 ficers — is sufficient as against a demurrer not specifically pointing out the 
 defect ; especially, where it was also alleged, that the certificate was 
 issued by defendants to enable the person named in it to raise money.) 
 Wisoonsi7i.—Sheldon v. Davidson, 85 Wis., 138; s. c. 55 N. W. Rep., 161. 
 (In an action for faise representations that a barn on the premises was in- 
 cluded in the lease which plaintiff was induced to make, complaint held 
 demurrable, where it alleged, that plaintiff made inquiries as to defend- 
 ant's ownership of the barn, but did not allege the result of the inquiries, 
 nor that plaintiff was ignorant of the fact that defendant did not own the 
 building.) 
 
 (4) Resulting damage, etc. 
 
 California.— IjonAon, etc, Ins. Co. v. Liebes, 105 Cal., 308 ; s. c. 38 Pac. 
 Rep., 691. (Demurrer to complaint sustained on the ground that it did 
 not show that plaintiff was damaged by defendant's alleged false repre- 
 sentations.) Nebraska. — Gilcrest v. Nantker, Nebraska, 1894, 60 N. W. 
 Rep., 906. (Petition is fatally defective, if it fails to allege what damage 
 was sustained by plaintiff by reason of the alleged false representations.) 
 Neio I'or*.— Wilson v. Ryder, 10 N. Y. Supp., 333. (In an action of procur- 
 ing goods by defendant's false representations that he owned property of a 
 specified value free and clear of liabilities, complaint dismissed for failing 
 to allege that plaintiff was damaged by such misrepresentation.) N. Y. Land 
 Imp. Co. V. Chapman, 118 N. Y., 388; s. c. 33 N. E. Rep., 187. (Complaint 
 held to state a good cause of action, which alleged, in effect, that plaintiff 
 had a right to dispossess a firm of which defendant was a member for non- 
 payment of rent, but that upon defendant's representation that the firm 
 was solvent, which defendant knew to be false, plaintiff allowed the firm 
 to remain, and refused to rent to others ; and that in consequence of the 
 firm's insolvency, plaintiff lost rent.) Whitner v. Perhacs, 25 Abb. N. C, 
 130 ; s. c. 11 N. Y, Supp., 756. (A complaint for damages for false rep- 
 resentations, in inducing plaintiff to purchase stock in a certain corpora- 
 tion, and to render services to it, states but a single cause of action having 
 two items of damage.) 
 
Coiriplaints in Actions for False hnprisonment. 653 
 
 COMPLAINTS IN ACTIONS FOE FALSE IMPKISON- 
 
 MENT. 
 
 [Principal Case, p. 241, this Vol.] 
 
 Alahmna. — Rich ■!;. Mclnnery, Alabama, 1894, 15 So. Rep., 663. (Under 
 the Alabama Code, a complaint substantially in the following form is suf- 
 ficient : "The plainfifif claims of the defendant dollars as damages for 
 
 maliciously and without probable cause therefor, arresting and imprisoning 
 this plaintiff \or, causing this plaintiff to be arrested and imprisoned] on 
 
 the charge of larceny Yor, oilier felony as the case may be] for days, 
 
 viz., on the day of .) California. — Going «. Dinwiddle, 86 Cal., 
 
 633; s. c. 35 Pac. Rep., 129. (A complaint, alleging that defendant, a 
 justice of the peace, imprisoned plaintiff "unlawfully and with force and 
 without probable cause," on a pretended charge of contempt of court for 
 disobedience to a writ of restitution, " wrongfully and unlawfully" issued 
 by him, held, insufficient in not alleging facts to show that defendant 
 acted in excess of his powers as justice.) Illi?iois. — Sundmacker v. Block, 
 39 111. App., 553. (Where the arrest is alleged to have been made by a 
 private person without process, it is not necessary to allege that the arrest 
 was made witliout reasonable or probable cause.) Indiana. — Sanford Tool 
 & F. Co. •». Mullen, 1 Ind. App., 304; s. c. 37 N. E. Rep , 448. (It is not 
 error to allow an amendment of complaint to conform it to evidence, 
 when the only change relates to the crime on which the alleged imprison- 
 ment was based.) Mississippi. — Anderson v. Beck, 64 Miss., 113; s. c. 8 
 So. Rep., 167. (Complaint held not demurrable, which alleged that de- 
 fendant, a Sheriff, by virtue of his office, imprisoned plaintiff for more 
 than 80 days on a pretended warrant for his arrest, on a false and fraudu- 
 lent charge ; since such a detention under a warrant would be illegal 
 without a mittimus.) Neio York. — Cunningham v. East River Electric 
 Light Co., 43 State Rep., 313 ; s. c. 17 N. Y. Supp., 373. (The unlawful- 
 ness of the arrest must be alleged. It is not sufficient merely to allege 
 that it was maliciously procured.) Oregon. — Nemitz v. Conrad, 33 Ore., 
 164 ; s. c. 29 Pac. Rep., 548. (Plaintiff cannot recover by showing that the 
 imprisonment was unlawful because of a refusal to receive bail on a law- 
 ful arrest, where such facts are not pleaded.) Texas. — Landrum ». Wells, 
 Texas Civ. App., 1894, 36 S. W. Rep., 1001. (Complaint held to be bad on 
 special demurrer, which asked damages for the interruption of plaintiff's 
 business, without stating what his business was.) Landrum v. Wells, 
 supra. (In action against a constable and his bondsmen, the special de- 
 murrer of the bondsmen was sustained to a petition, alleging that the 
 arrest was made under "color of office," but not setting out the process, 
 or authority, under which the arrest was made.) Wisconsin. — King v. 
 Johnston (Weed), 81 Wis., 578; s. c. 51 N. W. Rep., 1011. (Complaint 
 held to be demurrable, which alleged that the arrrest was made under a 
 warrant, but failed to allege facts showing that it was extrajudicial, or 
 illegal.) 
 
654 Notes of Kecent Cases. 
 
 COMPLAINTS m ACTIONS FOE MALICIOUS 
 PROSECUTION. 
 
 [Principal Case, p. 244, this Vol.] 
 
 (1) Malice, want of probable cause, etc. 
 
 (2) Termination of the malicious xwoceedingsinplaintiff's favor. 
 
 (3) Damages, etc. 
 
 (1) Malice, ti-ant of xn'obable cause, etc. 
 
 Georgia.— Horn t). Sims, 92 Ga., 421; s. u. 17 S. E. Kep., 670. (The 
 ending of the prosecution is sufficiently alleged by an alleg'ation that the 
 grand jury had made a return ot no bill upon a bill of indictment, and 
 expressed in their finding that the prosecution was malicious.) Hyfield 
 V. Bass Furnace Co., 89 G-a., 827 ; s. c. 15 S. E. Rep., 752. (Demurrer to a 
 declaration sustained which merely alleged that defendant was indebted 
 to plaintiff for expenses incurred in defense of a suit brought by defendant 
 against him without cause, a copy of which account is hereto attached 
 and made a part of the petition ; there being no description of the suit 
 referred to, no allegation that it was maliciously brought, nor that it had 
 terminated in plaintiff's favor.) Indiana. — Darnell v. Sallee, 7Ind. App., 
 581; s. c. 34 N. E. Rep., 1020. (Complaint held not to show probable 
 cause for the prosecution by alleging that plaintiff was bound over by the 
 committing magistrate to await the action of the grand jury and that on 
 tlie failure of the jury to indict he was discharged by order of the court.) 
 Swindells. Houck, 2 Ind. App., 519; s. u. 28 N. E. Rep., 736. (A com- 
 plaint alleging that the action was commenced by affidavit and capias 
 made maliciously and without probable cause, need not also allege that 
 the writ upon which the arrest was made was procured maliciously and 
 without probable cause.) Cottrell v. Cottrell, 126 Ind., 181 ; s. c. 2o N. E. 
 Rep., 925. (As against demurrer, complaint held sufficient, which alleged 
 that defendant maliciously and without probable cause procvired plaintiff 
 to be arrested on a warrant, ard brought before a justice of the peace 
 upon a charge of kidnapping, and that the plaintiff was acquitted and 
 discharged by such justice.) Kentucky. — Duncan v. Griswold, 92 Ky., 
 ')i(> ; s. c. 18 S. W. Rep., .354. (In an action for the malicious prosecution 
 of a civil proceeding, whereby a cloud is cast on plaintiff's title to land, 
 the petition must contain an averment of want of probable cause.) Min- 
 nesota. — O'Neill v. Johnson, 53 Minn., 439 ; s. c. 55 N. W. Rep., 601. (An 
 action will lie for the malicious prosecution of a civil action, and a com- 
 plaint in such an action is sufficient which alleges that defendant's action 
 against plaintiff was instigated maliciouslj' and without probable cause, 
 and tliat plaintiff was not indebted to defendant in any sum, which de- 
 fendant well knew; also the termination of the action and the plaintiff's 
 damage.) Missouri. — Witascheck i'. Glass, 46 Jlo. App., 209. (In an ac- 
 tion for malicious attachment, petition is fatally defective, if it fails to 
 allege the want of probable cause.) Nebrtiska. — Obernalte i\ Johnson, 
 36 Neb., 772 ; s. c. 55 N. W. Rep., 220. (Held, that it was error not to 
 grant a motion to strike out from petition a special finding ot the jury in 
 
Complaints in Actions for Malicious Prosecution. 655 
 
 the criminal action, " tliat tlie complaint was made without probable 
 cause.") North Carolina.— E\y v. Davis, 111 N. C, 24; s. o. 15S. E. Rep., 
 STS. (Complaint dismissed which failed to allege the want of probable 
 cause, or facts from which it could be inferred.) Davis v. Terry, 114 N. 
 C. 27; s. c. 18 S. E. Rep., 947. (A counterclaim for the malicious prose- 
 cution of a prior action, which fails to allege facts showing- want of 
 probable cause in instituting the action is bad.) Rhode Island. — Hobbs v. 
 Hay, 18 R. I., — ; s. c. 25 Atl. Rep., 694. (Trespass on the case is the 
 proper form of action for malicious prosecution.) Washington. — Jones 
 r. Jenkins, 3 Wash., 17; s. u. 27 Pac. Rep., 1022. (Where a complaint 
 alleged in one paragraph that defendants procured plaintiff's arrest on a 
 " false charge," stating it, and in another paragraph that in procuring 
 such arrest and prosecution they acted " maliciously and without probable 
 cause," held, that the complaint sufficiently alleged malice, want of 
 probable cause, and the falsity of defendant's charge.) 
 
 (2) Termination of the malicious proceedings in plaintiff's favor. 
 
 -V(H-2/Znred.— Clements v. McCracken, Maryland, 1890, 20 Atl. Rep., 184. 
 ^Demurrer sustained to a declaration which alleged that defendant falsely 
 and maliciously and witliout probable cause sued plaintiff upon a bond 
 whicli he knew to have been forged, but not avering that such suit term- 
 inated in a judgment defeating a recovery on the bond.) Michigan. — 
 Petersons. Toner, 80 Mich., 3.50; s. c. 4.) N. W. Rep., 346. (i?eZd, that 
 plaintiff need only prove that he was acquitted by the verdict of a jury 
 and discharged out of custody, and that other mattej's alleged in relation 
 thereto were to be reg'arded as mere recitals.) Missouri. — Boogher v. 
 Hough, 99 Mo., 183 ; s. c. 12 S. W. Rep., .j24. (Where petitioner showed 
 that plaintiff was convicted and that his conviction was reversed upon 
 appeal, 7i('?d, that the presumption that the prosecution was instituted 
 upon probable cause was sufficientlyl-ebutted by an allegation that the 
 conviction was procured by fraud in depriving plaintiff of the testimony 
 •of ills principal witness by joining him as co-indictee; and that it was not 
 necessary to also allege that plaintiff was therebj' preventedfrom making 
 a. defense.) Freymark v McKinney Bread Co., 55 Mo. App., 435. (In an 
 action for malicious attachment, petition must either allege a termination 
 of the proceeding in plaintiff's favor, or that it has terminated against 
 him, and that he had no opportunity to defend against it.) New York. — 
 Scholl r. Schnebel, 8 N. Y. Supp., 855 ; 29 State Rep., 676. (An allegation 
 that the magistrate did acquit plaintiff of a charge of forgery, held suffi- 
 cient without amendment, as the magistrate could onlj' take an examina- 
 tion on such a charge, and a discharge, whether aftertestimony was given 
 or without testimony, was an acquittal.) NortJi Carolina. — Sneedeu v. 
 Harris, 109 N. C, 349 ; s. o. 13 S. E. Rep., 920. (When an action is for 
 the malicious abuse of legal process, in order to compel a party to do a 
 collateral thing or to acomplish an ulterior purpose, it is not necessary to 
 allege that the process improperly employed is at an end.) Rhode Island. 
 —Collins V. Campbell, Rhode Island, 31 Atl. Rep., 832. (Demurrer to 
 complaint sustained which failed to state positively that the malicious 
 
656 Notes of Recent Cases. 
 
 proceedings terminated in plaintiff's favor.) South Carolina. — Tisdale v. 
 Kingman, 34 S. C, 336; s. c. 13 S. E. Rep., 547. (Demurrer sustained oa 
 the ground that complaint did not show that the alleged malicious prose- 
 cution terminated in plaintiff's favor.) Wisconsin. — King v. Johnston 
 (Weed), Wisconsin, 1893, 51 N. W. Rep., 1011. (Complaint held demurra- 
 ble which failed to show that the criminal action had been determined.) 
 Lawrence i;. Cleary, 88 Wis., 473; s. c. 60 N. W. Rep., 798. (Petition 
 held demurrable which showed that plaintiff pleaded guilty in the crimin- 
 al action, and did not allege anything to show that the judgment there- 
 in was procured by defendant's fraud.) 
 
 (3) Damages, etc. 
 
 New For*.— Cumber v. Schoenfeld, 34 N. Y. St. Rep., 770 ; s. c. 12 X. 
 Y. Supp., 383. (A complaint seeking to recover for malicious prosecu- 
 tion only, held not amendable so as to allow for recovery for false impris- 
 onment.) South Dakota. — Jackson v. Bell, South Dakota, 1894, .jS N. W. 
 Rep., 671. [Held, that plaintiff is entitled to recover for injury to his 
 feelings without specially pleading such injury, where it appears to be the 
 ordinary and natural consequence of the acts set out in the complaint and 
 proved without objection at the trial.) 
 
 COMPLAINTS IN ACTIONS FOR LIBEL OR SLANDER. 
 
 [Principal Case, p. 251, this Vol.] 
 
 (1) Extrinsic facts, inducement, averment, colloquiuvi, etc. 
 (3) Publication, utterance, etc. 
 
 (3) JVje defamatory words. 
 
 (4) Innuendo. 
 
 (5) The falsity of the tvords or publication, malice, etc. 
 
 (6) Damages. 
 
 (1) Extrinsic facts, inducement, averment, colloquium, etc. 
 
 California. — Harris v. Zanone, 93 Cal., 59 ; s. c. 28 Pac. Rep., 845. (De- 
 murrer properly overruled, to a complaint alleging that defendant in the 
 presence and hearing of divers persons "spake the following words of 
 and concerning plaintiff : ' She is a damned thief,' " thoug-h there was no 
 averment that the words were understood by those who heard tliem to 
 refer to plaintiff.) Colorado. — Craig v. Pueblo Press Co., Colo. App., 
 1894, 37 Pac. Rep., 945. (It seems, that even where the person against 
 whom a libelous charge is made is so ambiguously described, that without 
 aid of extrinsic facts his identity cannot be ascertained, it is sufficient to 
 allege generally, that it was published concerning plaintiff, without other 
 averment to connect him with the libel.) Georgia. — Hardy v. Williamson, 
 86Ga.,551; s. c. 12 S. E. Rep., 874. (Complaint held not demurrable, 
 though the defamatory words set out therein referred only to a class of 
 persons to which plaintiff belonged, wliere it was alleged that the words 
 
Complaints in Actions for Libel or Slander. 657 
 
 referred to plaintiff.) Illinois.— Do!m v. Kelley, 131 111., 413 ; s. c. 33 N. E. 
 Rep., 366. (Alleg'ation that a publication referring to Louise K., was 
 published concerning the plaintiff, is sufficient, though plaintiff sues as 
 Laney K.) McLaughlin v. Fisher, 111., 1890, 34 N. E. Rep., 60. (If the 
 words alleged to have been spoken are not slanderous jse?" se, they cannot 
 be made so by an innuendo, where the extrinsic facts rendering the words 
 slanderous have not been alleged by the way of inducement.) Indiana. — 
 Emig V. Daum, 1 Ind. App., 146 ; s. c. 37 N. E. Rep., 332. (Demurrer sus- 
 tained on the ground that the alleged words spoken were not properly 
 connected by a colloquium with the facts necessary to make them slan- 
 derous, and that such facts could not be supplied by the way of innuendo.) 
 Casand v. Lee, Ind. App., 1894, 38 N. E. Rep., 1099. (Where the alleged 
 slanderous words are capable of conveying the meaning claimed for 
 them, and also equally capable of conveying some other, and innocent 
 meaning, it should not only be shown by innuendo that the words were 
 spoken in a slanderous sense, but it should also be alleged that they were 
 also understood in that sense.) Kentucky. — Hargan v. Purdy, 98 Ky., 424 ; 
 s. c. 20 S. W. Rep., 433. (Complaint held demurrable where the alleged 
 libel concerned plaintiff as a physician and the petition showed that he 
 had no authority to practice medicine within the State.) Maryland. — 
 Hufferv. Miller, 74 Md., 454; s. c. 33 Atl. Rep., 305. (Declaration held 
 not demurrable which alleged the defamatory words to be, that plaintiff 
 "swore to damn lies before Justice B., and that was the reason he [plain- 
 tiff] was acquitted," although it was not set forth in the colloquium that 
 the words were spoken of plaintiff in connection with his trial before the 
 justice named.) Massachusetts. — Clarke v. Zettick, 153 Mass., 1 ; s. o. 36 
 N. E. Rep., 334. (Demurrer overruled, where declaration alleged suffi- 
 cient extrinsic facts from which it might be inferred that by the alleged 
 words spoken a charge of forgery was intended ; since, under Pub. St. C. 
 167, sec. 91, it was unnecessary, if not improper, to expressly allege by the 
 way of innuendo, that the defendant meant that plaintiff had committed 
 forgery.) Michigan. — Simons v. Burnham, Michigan, 1894, 60 N. W. 
 Rep., 476. (An innuendo cannot impute to unambiguous words a meaning 
 different from their ordinary import, where there is nothing alleged by 
 the way of inducement to show that they were used and intended to be 
 undei'stood in any other than their ordinary sense.) Minnesota. — Glatz v. 
 Theim, 47 Minn., 378; s. c. 50 N. "W. Rep., 137. (Demurrer overruled, 
 where allegations were sufficient to show that the language employed by 
 defendant, although apparently harmless, was intended to have a covert 
 libelous meaning, and was so understood.) Carlson v. Minn. Tribune Co., 
 47 Minn., 337 ; 50 N. W. Rep., 339. (Demurrer sustained on the ground that 
 complaint did not allege that plaintiff was the unnamed woman mentioned 
 in the libelous article.) Cady v. Minneapolis Times Co., Minn., 1894, 59 N. 
 W. Rep., 1040. (Demurrer overruled, where complaint alleged that plaintiff 
 was the person intended in the article complained of, and the other allega- 
 tions did not negative such fact.) Missouri.— PovreW v. Crawford, Missouri, 
 1891, 17 S. W. Rep., 1007. (If the words attributed to defendant are not 
 slanderous per se, the colloquium must show that they were used in a 
 connection and sense to make them slanderous ; and this cannot be shown 
 43 
 
658 Notes of Recent Cases. 
 
 by innuendo.) S. P. Unterberger v. Scharff, 51 Mo. App., 102. New 
 yorfc.— Mattice v. "Wilcox, 13 New York Supp., 330; s. c. 36 State Rep., 
 914. (Complaint held sufficient which after setting out the alleged libel- 
 ous matter alleged that such libel " referred to and meant plaintiff.") 
 Wellman v. Sun Print. & Pub. Ass'n, 66 Hun, 331 ; s. c. 31 N. Y. Supp., 
 .577. (Demurrer sustained where the alleged libel only showed a libel on 
 plaintiff's deceased wife, though it was alleged that the article was pub- 
 lished concerning the plaintiff.) Oregon. — Cole v. Neustadter, 23 Or., 
 191 ; s. c. 29 Pac. Eep., 550. (Demurrer sustained, where the words of the 
 alleged libel were unambiguous, and there was nothing alleged by the 
 way of inducement to show that the language used could have the libel- 
 ous signification averred in the innuendo.) Vermont. — Posnett v. Marble, 
 63 Vt., 481 ; s. c. 20 Atl. Rep., 813. (No prefatoi-y averment is necessary, 
 where the alleged defamatory words themselves support the innuendo 
 that plaintiff was engaged in a criminal occupation.) Wisconsin. — Benz 
 V. Wiedenhoeft, 83 Wis., 397 ; s. c. 53 N. W. Rep., 686. (Complaint held 
 demurrable in which no fact was alleged by the way of inducement to 
 show that the words, not actionable in themselves, had a, slanderous 
 meaning ; and that complaint could not be sustained merely upon the 
 imputations supplied by the way of innuendo.) Karger v. Rich, 81 
 Wis., 177; s. c. 51 N. W. Rep., 424. (Complaint held suflBcient, where 
 the words taken in connection with the matter alleged by the way of in- 
 ducement imputed a crime, though the words were not of themselves 
 actionable.) 
 
 (3) Publication, utterance, etc. 
 New Foj-fc.— Thomas v. Smith, 75 Hun, 573; 27 N. Y. Supp., 589. 
 {Held, that it was error to dismiss complaint at the trial, which after 
 setting forth the libel, and alleging its falsity, alleged that the 
 libelous statements were made by defendant to be published, and 
 that they had been published as intended by him.) Turner v. Beaven, 
 23 Abb. N. C, 433; s. c. 10 N. Y. Supp., 128. (Plamtiff required 
 to give bill of particulars giving the name of at least one person 
 present on each occasion on which the alleged slander was uttered.) Ver- 
 mont— Wilco:^ V. Moon, 63 Vt., 481 ; s. c 23 Atl. Rep., 80. (Allegation 
 that defendant "composed and published certain false, scandalous and 
 defamatory matter of and concerning plaintiff" without showing the 
 manner of publication or to whom the communication was made, held 
 sufficient averment of publication, though the libelous article set forth 
 was apparently addressed to plaintiff only.) Wisconsin. — Street v. John- 
 son, 80 Wis., 445 ; s. c. 50 N. W. Rep., 395. (In action against one selling 
 a paper containing a libelous article, complaint sustained on demurrer, 
 which alleged a wiltvil and intentional sale of the paper by defendant 
 without alleging that the defendant knew that the paper contained the 
 libelous article.) 
 
 (3) The defamatory words. 
 Georgia.— White v. Parks, 93 Ga., 633; s. c. 20 S. E. Rep., 78. (Failure 
 to copy libel in the declaration, or tosetforth its exact words, is only bad 
 
Complaints in Actions for Lihel or Slander. 659 
 
 pleading in matter of form, and will be disregarded upon a general demur- 
 rer. Such a defect must be pointed out by special demurrer. {Indiana. 
 — Branaman v. Hinlde, Indiana, 1894, 37 N. E. Rep., 546. (Demurrer sus- 
 tained, because the language employed in the alleged libelous writing 
 was not set forth.) S. P. Small v. Fisher, 2 Ind. App., 436 ; s. c. 28 N. E, 
 Rep. 714. Kentucky.— }laxsa.n v. Purdy, 93 Ky., 434 ; s. c. 30 S. W. Rep., 
 483. (PlaintifE may unite two causes of action for libels published at dif- 
 ferent times, though practically of the same import, and he cannot be re- 
 quired to elect between them at the trial.) Michigan. — Randall v. Gartner, 
 96 Mich., 384; s. u. 55 N. W. Rep., 843. (Plaintiff may join in one action 
 several causes of action against defendant for distinct libels published on 
 different occasions). Minnesota. — Irish-Am. Bank v. Bader, Minn., 1894, 
 ■61 N. W. Rep., 338. (In an action for slander, held that proof of different 
 words from those alleged, although conveying the same general idea, 
 was not sufficient.) Mississippi. — Fritz v. "Williams, Miss., 1894, 16 So. 
 Rep., 359. (It is sufficient to prove synonymous words conveying the 
 same specific idea as the words alleged.) Missouri. — Walter v. Hoeffner, 
 51 Mo. App., 46. (Distinct defamatory statements imputing the same 
 offense to plaintiff, but couched in different phraseology, and not appear- 
 ing to have been spoken to the same persons need not be embraced in one 
 count, and, if plaintiff alleges each statement in separate counts, he 
 ■cannot be required at the trial to elect on which one he will proceed.) 
 XJnterberger v. Scharff, 51 Mo. App., 103. (It is sufficient, if plaintiff prove 
 enough of the exact words charged in the petition, or substantially the 
 same words, containing the gravaman of the charg-e.) New York. — G-erm 
 Proof Filter Co. v. Pasteur-Chamberland Filter Co., 81 Hun, 49; s. c. 62 
 State Rep., 563 ; 30 N. Y. Supp., 584. (Complaint dismissed on the ground 
 that it did not set out the particular words spoken by defendant.) Enos v. 
 Enos, 135 N. Y. , 609; s. c. 33 N. E. Rep. , 133. (The words set forth as consti- 
 tuting the slander must be proved in substance, and different words, al- 
 though imputing the same charge, but in entirely different language, will 
 not support the complaint.) Miller v. Holmes, 19 N. Y. Supp., 701. (Held 
 an immaterial variance where it was alleged, that defendant had said that 
 plaintiff robbed him of $400, and the proof tended to show that de- 
 fendant said that plaintiff had robbed him of $1,300.) Cassidy v. B'klyn 
 Eagle, 18 N. Y. Supp., 930; s. c. 46 State Rep., 334. (Where the alleged 
 words were libelous per se, evidence of other publications were admitted 
 in evidence to explain their meaning, though not pleaded.) Ronnie v. 
 Hyder, 8 N. Y. Supp., 5. (Complaint will not dismissed, if there is a doubt 
 whether the slanderous words imputed unchastity.) Holmes v. Jones, 50 
 Hun, 345; s. c. 30 N. Y. S. R., 175. (A complaint setting out different por- 
 tions of the same publication in separate paragraphs, held to contain but 
 one count, and that plaintiff was entitled to recover on a general verdict, 
 though weight of evidence showed a justification as to the matter alleged 
 in one of the paragraphs.) North Carolina.— Gadger v. Penland, 108 N. 
 C.,593; s. c. 13 S. E. Rep., 168. (Though repetitions of utterances of 
 slanderous words of like import may be counted on separately, it is not 
 necessary that a separate demand for damages should be appended to each 
 count.) Rhode Island. — Kenyon v. Cameron, 17 R. I., 133 ; s. c. 30, Atl. 
 
660 Notes of Recent Case?. 
 
 Rep., 333. (Declaration held to be fatally detective, which did not 
 set forth the alleged slanderous words, or their substance.) Texas. — 
 Brown v. Durham, 3 Tex. Civ. App., 344; s. c. 33 S. W. Rep., 868. (As 
 against a general demurrer, petition held to be good, which alleged in a 
 general way, that plaintiff was published as a dishonest man who would 
 not pay his debts, and reference was made to exhibits, and all the state- 
 ments and intimations therein characterized as false.) Nettles i;. Somer- 
 vell, 6 Tex. Civ. App., 637; s. c. 25 S. W. Rep., 658. (In an action for 
 libel, an amendment setting out other libeloas statements of like import, 
 and published at the sanae same as those alleged in the original petition, 
 held not to state a new cause of action, but to merely make more definite, 
 and to elaborate, the original cause of action.) Wisconsin. — Schild v. 
 Legler, 82 Wis. 73 ; s. c. 51 N. W. Rep. 1099. {Held, that there was no 
 variance, where complaint.^set forth the alleged slanderous words in a 
 foreign language, and the English translation thereof, and there was no 
 proof of the foreign words used, but only of the English equivalents as 
 alleged.) 
 
 (4) Innuendo. 
 
 Colorado. — Republican Sub. Co. v. Miner, 3 Colo. App., 568 ; s. c. 34 
 Pac. Rep., 485. (Where ar'ticle is absolutely libelous, the innuendo may be 
 disregarded.) Illinois. — Ulery d. Chic. Livestock Exch., 54111. App., 333. 
 (An innuendo cannot perform the office of a colloquium, nor can it extend 
 the meaning of defamatory matter, unless by reference to matter of in- 
 ducement.) Michigan.— Sa.ntorA v. Rowley, 93 Mich., 119 ; s. c. 53 N. W. 
 Rep., 1119. (Where the meaning of the alleged libelous language is clear, 
 an innuendo will be treated as surplusage.) S. P. Randall v. Evening 
 News Ass'n, Mich., 1890, 44 N. W. Rep., 783. Belknap v. Ball, 88 Mich., 
 583 ; s. c. 47 N. W. Rep., 674. (Demurrer overruled, where [declaration 
 alleged that defendant's newspaper falsely and mahciously reported 
 plaintiff, a congressional candidate, as saying in a speech, that he would 
 refrain from discussing the tariff question because "he wasn't built that 
 way," meaning that the plaintiff was too ignorant and imbecile to discuss 
 said question, or to express in a decent way his intention not to discuss it.) 
 Minnesota. — Frederickson v. Johnson, Minnesota, 1895, 63 N. W. Rep., 
 388. (In an action for slander, held that an innuendo was surplusage, 
 where the alleged words were unambiguous.) Missouri. — McGinnis v. 
 Geo. Knapp & Co., Mo., 1892., 18 S. W. Rep., 1134. (Though the innu- 
 endos cannot extend the meaning of the alleged defamatory words beyond 
 their natural import, the imputed meaning may be considered in connec- 
 tion with the alleged extrinsic facts and circumstances in determining the 
 meaning of the words upon demurrer.) Callahan v. Ingram, 132 Mo., 
 355 ; s. o. 36 S. W. Rep., 1030. (Innuendo disregarded, and not re- 
 quired to be proved, which charged that defendant meant by calling 
 plaintiff a "downright thief" to charge that he was guilty of official 
 corruption ; since the words themselves were actionable without the 
 innuendo.) New York. — Turton v. N. Y. Recorder Co., 144 N. Y., 144; 
 s. c. 38 N. E. Rep., 1009. (No innuendo necessary where the alleged 
 article is libelous per se.) Hemmens v. Nelson, 138 N. Y., 517 ; 30 L. R. A., 
 
Complaints in Actions for Libel or Slander. 661 
 
 440; s. c. 53 N. Y. St. Rep., 94; 34 N. E. Rep., 342. (Whei-e the 
 alleged words were, that plaintiff " was in the habit of entertain- 
 ing gentlemen callers at all hours of the night," held that the complaint 
 was insufficient without an innuendo or allegation of some kind, that 
 they were used in an actionable sense.) Barnard v. Press Pub. Co., 17 N. 
 Y. Supp., 573. (Motion to strike out innuendos properly denied, where 
 the alleged libel was ambiguous.) Pennsylvania. — Price ■!;. Conway, 184 
 Pa., 340; s. c. 19 Atl. Rep., 687. (Demurrer overruled, where the alleged 
 libelous ai'ticle was capable of bearing the actionable meaning imported 
 by the innuendo.) Texas. — Democrat Pub. Co. v. Jones, 83 Tex., 302; s. c. 
 18 S. W. Rep., 652. (Complaint held not demurrable, where the alleged 
 libelous article was capable of the construction given it by the innuen- 
 does.) Schulze V. Jalonick, Texas C. A., 1895, 29 S. W. Rep., 193. (The 
 alleged libelous articles gave plaintiff's name as the owner of several 
 buildings, and stated that one of the buildings was occupied by a " blind 
 tiger." Held, that such article supported the innuendo, that it was in- 
 tended to charge that plaintiff was engaged in the unlawful sale of 
 liquor.) United States. — Mitchell v. Sharon, 51 Fed. Rep., 424. (Demur- 
 rer overruled, where the alleged slanderous words, although they did not 
 ^»technically charge a crime, were capable of being so construed, and the 
 innuendo imputed to them such a meaning.) Viedt v. Evening Star 
 Newspaper Co., 19 D. C, 534. (An innuendo cannot enlarge meaning of 
 libelous words published.) Vermont. — Wilcox v. Moon, 63 "Vt., 481 ; s. c. 
 32 Atl. Rep., 80. (Demurrer should be overruled, where defendant's al- 
 leged words alone, or in connection with explanatory facts alleged, are 
 such as to support an innuendo imputing a charge of crime.) 
 
 (5) The falsity of the words or publication, malice, etc. 
 California. — Harris v. Zanone, 93 Cal., 59; s. c. 28Pac. Rep., 845. (In 
 an action for slander in uttering words actionable jjer se, an allegation 
 that they were false implies malice, and plaintiff need not expressly al- 
 lege malice, or prove it in the first instance.) Ketitiicky. — Schulten v. Ba- 
 varian Brew. Co., Ky., 1894, 28 S. W. Rep., 504. (Complaint held to be de- 
 murrable in not sufficiently alleging the falsity of the alleged libelous 
 statement.) Indiana. — Henry v. Moberly, 6 Ind. App., 490 ; s. c, 33 N. E. 
 Rep., 981. (Complaint held to be insufficient on demurrer for not alleging 
 that the alleged libelous words contained in a written protest, filed with 
 school trustees, against the employment of plaintiff as a teacher, were 
 published maliciously and without probable cause, and that it was not 
 enough to allege that the language employed was false, malicious and 
 libelous.) jI/or-2/Za?id.— Bottomly I). Bottomly, 80Md., 159; s. c. 30 Atl. 
 Rep., 706. (Complaint demurrable, which fails to allege that the words 
 •complained of were false.) New York.—Qerm Proof Filter Co. v. Pas- 
 teur Chamberland Filter Co., 81 Hun, 49; s. c. 62 State Rep., 573 ; 30 N. 
 Y. Supp., 584. (Where the alleged slander consisted in defendants saying, 
 that plaintiff's goods were not patented, held, that the complaint was in- 
 sufficient, in that it did not allege that the goods were patented, and that 
 an allegation, that defendant falsely said that the plaintiff had no patent, 
 was not equivalent to an allegation that plaintiff held a patent.) Texas. 
 
662 Notes of Recent Cases. 
 
 —Democratic Pub. Co. v. Jones, 83 Tex., 303; s. c. 18 S. W. Eep., 652. 
 (Demurrer overruled, wliere the alleged libel was naturally susceptible of 
 the construction given by the innuendos, and expressly denied its truth. )■ 
 mseo/(,siu.— Born v. Rosenow, 84 Wis., 630; s. c. .54 N. W., 1089. (Com- 
 plaint sustained, as against an oral demurrer interposed at the trial, al- 
 though it did not aver in the charging part, that the v^ords alleged were 
 lalse or defamatory, but merely avered such facts generally in the con- 
 clusion.) 
 
 (6) Damages. 
 
 Massachusetts. — Morasse v. Brochu, 151 Mass., .567 ; s. c. 35 N. E. Rep.,. 
 74. (Allegation that by reason oC the slanderous words spoken of plaint- 
 iff, a physician, by defendant, a, priest, church members and other per- 
 sons refused to employ plaintiff, held to be sufficient in absence of demur- 
 rer pointing out defect, or an application for a statement of particulars, 
 though the names of the persons who refused employment were not spec- 
 ified.) Michigan. — Henkle f . Schaub, 94 Mich., 542; s. c. 54 K. W. Rep., 
 393. (Special damages need not be alleged if the words set forth are 
 actionable per se.) Minnesota. — Clemeutson u. Minn. Trib. Co., 45 Minn., 
 303 ; s. c. 47 N. W. Rep., 781. (In an action for libel against a newspaper, 
 failure to allege the service of notice required by Gen. L., 1889, c. 181 upon 
 defendant before action does not render complaint demurrable, where it 
 alleges and claims actual or special damages as well as general damages.) 
 Mississippi. — McLean t). Warring, .Miss., 1893, 13 So. Rep., 336. (In an 
 action under Miss. Code, 1880, sec. 1004, making insulting words action- 
 able, special damages need not be alleged or proven.) Nebraska. — Pokrok 
 ZaKaduPub. Co. v. Ziskovsky, Neb., 1894, 60 N. W. Rep., 358. (Special 
 damag'es need not be alleged, or proved, where it is charged that the 
 written or printed statement made by defendant falsely and maliciously 
 accuses plaintiff of the commission of an indictable offence.) Barr v. Birkner, 
 Neb., 1895, 63N. W. Rep., 494. (Special damages need not be alleged or 
 proved in an action for slander for stating that plaintiff was a prostitute.) 
 Neiv Vorfc.— Fitzgerald v. Cells, 84 Hun, 395; s. c. 33 N. Y. Supp., 306. 
 (Special damages need not be alleged if the words are actionable per se.) 
 Flatow v.VonBremsen, 19 Civ. Pro.,R. 135; s.c. 11 N. Y. Supp., 680. (Special 
 damage held, on demurrer, to be insufficiently alleged by an allegation, 
 •' that by reason of the speaking and uttering of the said words as afore- 
 said by defendant, divers persons have refused to associate or transact 
 business with this plaintiff, and this plaintiff was, therefore, deprived of 
 the benefits which would accrue to him from such association and business 
 aforesaid, to his damage in the sum of $1000.") S. P. Erwin v. Dezell, 64 
 Hun, 391 ; s. c. 19 N. Y. Supp., 784 ; 46 State Rep., 595. Butterfield v. 
 Bennett, 18 N. Y. Supp., 433. (In an action for libel imputing unchastity 
 to plaintiff, a. woman, defendant was held not entitled to a bill of particu- 
 lars showing the names of persons who shunned plaintiff in consequence 
 of the publication, but plaintiff would be required to give her own 
 address so that defendant might investigate her antecedents.) Jacobs v. 
 Water, &c., Co., 55 State Rep., 435; s. c. 35 N. Y. Supp., 346. (Plaintiff 
 
Complaints in Actions for Trespass on Real Property. 663 
 
 required to give bill of particulars stating the names and addresses of 
 the alleged persons, etc., who were intimidated, and who cancelled con- 
 tracts with plaintiff, by reason of the libel charges.) 
 
 COMPLAINTS m ACTIONS FOR TRESPASS ON" 
 REAL PROPERTY. 
 
 [Principal Case, p. 267, this Vol.] 
 
 (1) Ads constituting the trespass. 
 
 (2) Plaintiff's possession, ownership, etc. 
 
 (3) Description of the premises. 
 
 (4) Damages, etc. 
 
 (1) Acts constituting the trespass. 
 
 Alabama. — Alabama Midland E. Co. v. Martin, Alabama, 1893, 14 So. 
 Rep., 401. (Where complaint alleges trespasses to have been continuous 
 from day to day during a certain time, a demurrer upon the ground that it 
 fails to state the time when the several trespasses were committed is pro- 
 perly overruled.) California. — Merrittt). Hill, 104 Cal., 184 ; s. c. 37 Pac. 
 Rep., 898. (Demurrer to complaint sustained, which alleged that defend- 
 ant's cattle trespassed on plaintiff's land, without alleging that the tres- 
 pass was instigated by defendant, or that he had notice thereof.) Indiana. 
 —Atkinson v. Mott, 103 Ind., 431 ; s. c. 36 N. E. Rep., 317. (In an action 
 for trespass by cattle, an averment in complaint that defendant negli- 
 gently and carelessly permitted the trespass, held to be surplusage ; and 
 that it was not necessary to allege that plaintiff was without fault.) 
 Salitnonie, etc., Gas Co. v. Wagner, 3 Ind. App., 81; s. c. 28 N. E. Rep., 158. 
 (An allegation that defendant destroyed 150 bushels of potatoes may be 
 supported by proof that defendant dug up and carried away the potatoes ; 
 since a growing crop planted by defendant constitutes personal property.) 
 J/icftiSfa?i.— Wood u. Mich., etc., R. Co. 81 Mich., 358; s. o. 45 N. W. 
 Rep., 980. (Declaration alleging a trespass upon realty, regarded as stat- 
 ing a cause of action upon such ground, though it recited that plaintiff 
 complains of defendant '' of a plea of trespass on the case.") Neiu York. — 
 Gans V. Hughes, 41 State Rep., 106 ; s. c. 16 N. Y. Supp., 615. (One para- 
 graph alleged that plaintiff was the lessee of a bakery on a certain day 
 when defendant entered the premises and unlawfully removed a portion of 
 the fixtures and unlawfully interferred with plaintiff's business. Other 
 paragraphs set up trespasses on the premises. Held, that the former 
 paragraph stated a cause of action for trespass to real estate, and was 
 properly joined with the other causes of action set forth.) South Dakota. 
 — Tanderup v. Hansen, South Dakota, 1894, 58 N. W. Rep., 578. (Where 
 complaint alleged sufficient facts to constitute a cause of action for tres- 
 pass of defendant's cattle upon plaintiff's land, tield, that plaintiff, at the 
 trial, might give evidence to sustain such cause of action, though the com- 
 plaint also set up a fictitious contract of sale of the property destroyed.) 
 
664 Notes of Recent Cases. 
 
 (2) Plaintiff's possession, ownership, etc. 
 
 Colorado. — Colorado M. R. Co., v. Trevavthen, 1 Colo. App., 152; s. c. 
 27 Pac. Rep., 1012. (lu an action to recover damages caused to a city lot 
 by the construction of a railway, the complaint must allege that plaintiff 
 was the owner of the lot at the time the injury was suffered.) Florida. — 
 Jacksonville T. & K. W. R. Co., v. Griffin. 33 Fla., 602 ; s. c. 15 So. Rep., 
 336. (Where the alleged trespass is one constituting a permanent and 
 necessary injury to the market value of the plaintiff's fee in the land 
 trespassed on, the failure of the declaration to allege that the plaintiff 
 was in the possession of the land at the time of the trespass does not 
 render the declaration demurrable.) Indiana. — Branson v. Studebaker, 
 133 Ind., 147 ; s. c. 33 N. E. Rep., 98. (Though plaintiff, to maintain such 
 action need not plead title in himself, but only possession, yet if he makes 
 a specifio statement of .title in himself, and denies title in defendant, the 
 title is thereby put in issue.) Pittsburgh, etc., R. Co., v. Harper, Indiana 
 Appeals, 1894; 37 N. E. Rep., 41. (Complaint held to sufficiently allege 
 plaintiff's ownership at the time of the alleged trespass, though such 
 allegation was in the present tense, where it also stated that plaintiff 
 claimed title, and, the day before the alleged entry, notified defendant 
 thereof, and that she would claim damages.) Sunnyside Coal & Coke 
 Co., V. Reitz, Indiana Appeals, 1895, 39 N. E., 541. (Where complaint 
 alleged that for a time the legal title to the land was in plaintiff's wife, 
 but that she had no interest in the land and held the title for plaintiff's 
 benefit, held, that the trust would be regarded as executed, and that suf- 
 ficient was shown to enable plaintiff to recover for coal taken while the 
 title of the land was in his wife.) Michigan. — Kinney v. Service, 91 Mich., 
 629 ; s. c. 52 N. W. Rep., 53. (Under the general averment of breaking 
 and entering plaintiff's close plaintiff may prove his title and right of 
 possession as against defendant. ) Missouri. — Bobb v. Syenite Granite Co., 
 41 Mo. App. , 642. (A landlord seeking to recover for injury to his rever- 
 sion should allege that the injury is of that character.) 
 
 (3) Description of the premises. 
 
 Illinois. — Meixsell ». Feezor, 43 111. App., 180. (It is not necessary to 
 describe the close in which the trespass was committed.) Massachusetts. — 
 Foley ». McCarthy, 157 Mass., 474; 32 N. E. Rep., 669. (A declaration for 
 trespass on a private way described the way by g-iving its boundary on one 
 side, its termini and width. Held, that while the description was not in 
 form required by the practice act, it was not so imperfect as to require the 
 court, in absence of demurrer, to rule at the trial that the declaration was 
 insufficient.) Leatherbee v. Barrett, 152 Mass., 532 ; s. c. 25 N. E. Rep., 
 965. (Held, that defendant could not raise the objection, for the first time 
 at the trial, that the declaration did not sufficiently comply with Pub. St. 
 Mass., c. 167, sec. 6, providing that the place of the alleged trespass shall 
 be designated by names, abuttals, and other proper desci'iption.) Pennsyl. 
 vania.—WoU v. Wolf, 158 Pa., 621 ; 38 Atl. Rep., 164. (An amendment to 
 u declaration in trespass, naming an entirely different tract from that 
 described in the writ shovild not be allowed.) United States. — Rico- 
 Aspen Consol. Min. Co, v. Enterprise Min. Co. (C. C. D., Colo.) 56 Fed. 
 
Complaints in Actions for Trespass on Real Property. 665 
 
 Rep., 131. (Held, that it was sufficiently specific to describe premises as a 
 mining claim of certain dimensions with a reference to the location cer- 
 tificate, and the patent for metes and bounds.) Vermont. — Swerdferg-er 
 1). Hopkins, Vermont, 1894, 31 Atl. Rep., 1.j3. (Description of premises in 
 declaration as " plaintiff's close situated in the town of H," held sufficient. 
 In trespass quare clausum freyit, it is not necessary to describe the 
 premises with the same particularity as in ejectment.) 
 
 (4) Damages, etc. 
 
 Alabama. — So. Suspender Co. v. Von Borries, 91 Ala., 507; s. c. 8 So. 
 Rep., 367. (A declaration is not demurrable on the ground that it unites 
 in the same count an allegation of trespass to land with an allegation of 
 trespass in taking therefrom personal property.) California. — Mallory v. 
 Thomas, 98 Cal., 644; s. c. 33 Pac. Rep., 7.57. (Special demurrer to com- 
 plaint for uncertainty sustained, where it alleged that a trespass upon 
 plaintiff's premises resulted in the destruction of her property and busi- 
 ness, and caused her mental and physical distress, but did not aver the 
 value of the property destroyed, and the amount of damage to her premi- 
 ses and business.) Mississippi. — Bonnelli «. Bowen, 70 Miss., 142; s. c. 
 11 So. Rep., 791. (Where complaint alleged that defendant forcibly en- 
 tered plaintiff's house, and violently seized and carried away a check 
 against his will, held, that the taking- of the check was the substantial 
 offense, and that the other matters charged were merely in aggravation 
 of damages.) Missouri. — Cook ti. Redman, 45 Mo. App., 397. (An allega- 
 tion of the destruction of grass on the premises trespassed on, merely sets 
 out an element of damage flowing from such trespass.) McCormick ». 
 Kaye, 41 Mo. App., 363. (Where petition is framed for the recovery of 
 double or treble damages, under the Mo. R. S., 1879, sec. 3921, 3933, re- 
 covery can not be had as for a common law trespass.) New York. — Van 
 Hoffman v. Kendall, 44 State Rep., 484; s. c. 17 N. Y. Supp., 713. (Com- 
 plaint alleging a wilful entry upon plaintiff's land, and the cutting down 
 of trees thereon, thereby lessening the value or the land, and claiming 
 treble damages, is not demurrable; if treble damages are improperly 
 claimed, plaintiff upon proper proof may recover single damages. North 
 Carolina.— Ha,rriss ». Sneeden, 104 N. C, 369; s. o. 10 S. E. Rep., 477. 
 (Plaintiff may recover nominal damages for simple trespass, though no 
 issue involving the question of simple trespass is submitted, and the 
 charge made by the complaint is forcible trespass accompanied by slan- 
 der of title.) Pennsylvania. — Fairchild v. Dunbar Furnace Co., 128 Pa., 
 48.5 ; s. c. 18 Atl. Rep., 443. (Action for trespass qu. cl. fr. for cutting 
 timber cannot be converted into an action for treble damages under the 
 act of 1834, by filing an amended declaration.) United States. — Thomp- 
 son ti. Gatlin, 7 C. C. A., 357; s. c. 58 Fed. Rep., 534. (In an action tor 
 forcible entry and injury to crops, the injury to the crops must be sepa- 
 rately stated.) Vermont. — Benton v. Beattie, 63 Vt., 186; s. c. 23 Atl. 
 Rep., 422. (In an action of trespass qu. cl.fr. for cutting and carrying 
 away timber, the court may allow a covmt in trover to be filed to recover 
 for the timber, on proof that the timber was cut by a third person and 
 received by defendant.) 
 
666 Notes of Recent Cases. 
 
 ACTIONS FOR CRIMINAL CONVERSATION. 
 
 [Principal Case, p. 272, this Vol.] 
 
 Alabama.— BowAaM v. King, 97 Ala., 635; s. c. 12 So. Rep., 405. {In 
 an action for crim. con., plaintiff cannot recover for a venereal disease- 
 contracted from his wife on account of her association with defendant, in 
 absence of alleg-ations in petition of special damages sustained by reason, 
 of such fact.) Maine.— Doe v. Roe, 83 Me., 503 ; s. c. 30 Atl. Rep., 83. (A 
 wife cannot maintain an action against another woman for debauching 
 and carnally knowing her husband.) Minnesota. — Kroessin v. Keller,. 
 Minn., 1895, 63 N. "W. Rep., 438. (A wife cannot maintain an action of 
 crim. con. against another woman.) New York. — Woods v. Gledhill, 35' 
 State Rep., 597. (Plaintiff required to give a bill of particulars, where 
 complaint alleged that defendant alienated the affections of plaintiffs 
 wife by means of "gifts, presents, promises, threats and seductive and de- 
 ceitful arts and wiles.") V ermont.—Dalej v. Gates, 65 Vt, 591 ; s. c. 27 
 Atl. Rep., 193. (Where the original declaration charged that defendant 
 enticed away plaintiff's husband, per quod consortium amisit, held, that a. 
 new count filed charging defendant with criminal conversation with him 
 with the same per quod, did not contain a new cause of action.) 
 
 COMPLAIJSTS IN ACTIONS FOR ENTICING AWAY 
 
 SPOUSE. 
 
 [Principal Case, p. 272, this Vol.] 
 
 Colorado. — Williams u. Williams, Colorado, 1894, 37 Pac. Rep., 614. 
 (In an action for enticing away husband, complaint need only allege the 
 ultimate facts, without stating the arts made use of by defendant to ac- 
 complish the illegal purpose.) Connecticut. — Foot v. Card, 58 Conn., 1 ; 
 s. c. 18 Atl. Rep., 1037. (A wife may sue in her own name for the aliena- 
 tion of her husband's affections.) Indiana. — Haynes i\ Nowlin, Indiana, 
 1891, 39 N. E. Rep., 389. (A wife may maintain an action in her own 
 name against one who entices her husband from her and therebj' deprives- 
 her of his consortium.) Followed in Wolf v. Wolf, Ind., 1893, 30 N. E. 
 Rep., 308 ; Holmes v. Holmes, Ind., 1893, 83 N. E. Rep., 932 ; Railsback v. 
 Railsback, Ind. App., 1895, 40 N. E. Rep., 376 ; Reed v. Reed, 6 Ind. App., 
 317 ; s. c. 33 N. E. Rep., 638. (In an action by a wife for the alienation of 
 her husband's affections by his parents, complaint held demurrable for 
 failing to alleg'e that the acts complained of wei'e done maliciouslj'.)' 
 Adams v. Main, Ind. App., 1893, 39 N. E. Rep., 793. (Allegation and proof 
 of adultery is not necessary to sustain an action for alienating a wife's, 
 affections.) loioa.— Price v. Price, Iowa, 1894, 60 N. W. Rep., 203. (A 
 wife may sue for damages for the alienation of husband's affections.) 
 Michigan.— Wsirven v. Warren, 89 Mich., 133; s. c. 50 N. W. Rep., 843. 
 (A wife may maintain an action in trespass for the alienation of her hus- 
 band's affections.) Missouri. — Clow v. Chapman, Missouri, 1894, 28 S. W. 
 
Com/plaints in Actions of Ejectvient. 667 
 
 Rep., 338. (Wife may maintain an action in her own name for entice- 
 ment of hei- husband.) Nebraska. — Hodgkiuson i-. Hodgkinson, Nebraska, 
 1895, 61 N. W. Rep., 577. (Wife may maintain an action against a person 
 who causes her husband to desert lier.) New Hampshire. — Seaver v. 
 Adams, N. H., 1890, 19Atl. Rep., 776. (A wife may sue in her own name an- 
 other woman for seducing and alienating the affections of plaintiff's hus- 
 band.) Neic rorfc.— Bennett v. Bennett, 116 N. Y., 584; s. c. 23 N. E. 
 Rep., 17. (Wife may maintain an action against a person who entices, 
 away her husband.) 
 
 COMPLAINTS m ACTIONS OF EJECTMENT. 
 
 [Principal Case, p. 280, this Vol.] 
 
 (1) Plaintiff's oivnershi]}, title, estate, etc. 
 
 (2) Description of premises. 
 
 (3) Defendant's possession. 
 
 (4) Mesne profits, incidental relief, etc. 
 
 (1) Plaintiff's ownership, title, estate, etc. 
 
 Arkansas. — Fagg v. Martin, 53 Ark., 449; s. c. 14 S. W. Rep., 647. 
 {Held, that the deed on which plaintiff relied, and a state of facts to show 
 a prima facie title, were sufficiently set forth and shown by a complaint, 
 which alleged plaintiff's ownership, and defendant's possession, and ex- 
 hibited as evidence of title a deed from the State land commissioner.) 
 Arizona.— Oury V. DuiEeld, 1 Ariz., 509; s. c. 25 Pac. Rep., 533. (Held, 
 that it was sufficient for complaint to aver that plaintiff, as administrator, 
 was seised in fee and entitled to the possession of the premises, without 
 averring possession or right of possession in his intestate.) California. — 
 Hutchinson v. McNally, 85 Cal., 619 ; s. c. 33 Pac. Rep., 132. (On de- 
 murrer, complaint cannot be aided by a general allegation of ownership^ 
 if the deraignment of title is set forth, and it fails to show plaintiff's right 
 to recover.) Georgia. — Hobby v. Bunch, 83 G-a., 1 ; s. c. 10 S. E. Rep., 113. 
 (No recovery can be had upon the title of a person from whom no demise is 
 laid in the declaration.) Indiana. — Myers v. Jackson, 135 Ind., 136; s. c. 
 34 N. E. Rep., 810. (An allegation that plaintiff is theownerand entitled 
 to possession, is sufficient as against denjurrer ; the remedj', if any, be- 
 ing by a motion to make the complaint more definite and certain.) Roberts 
 V. Vornhalb, 126 Ind., 511 ; s. o. 26 N. E. Rep., 307. {Held, that plaintiff 
 could not be required to furnish a more specific abstract of title, and a bill 
 of particulars ; since bills of particulars are not required in actions for 
 torts.) Morgan v. Lake Shore, etc., R. Co., 130 Ind., 101 ; 28 N. E. Rep., 
 548. (Where plaintiffs allege title in themselves specifically, a general alle- 
 gation of ownership will not help them, if the specific allegations do not 
 show title in them.) Ewing v. Lutz, 131 Ind., 361 ; s. c. 30 N. E. Rep., 
 1069. (Demurrer to complaint overruled which showed plaintiff's title to 
 be based on a deed which was regular in form and founded on a valuable 
 
668 ISToTES OF Regent Cases. 
 
 consideration.) Iowa. — Van Sickle v. Keith, 88 la., 9; 55 N. W. Rep., 43. 
 (Where the petition Is based on the claim that the strip of land sought to 
 be recovered was embraced within the description in plaintiff's grant, 
 evidence of a conventional boundary and adverse possession are inad- 
 missible, though allegations tending to support such facts are inter- 
 mingled with the other allegations of the petition.') Kentucky. — Howard 
 V. Lock, Kentucky, 1893, 33 S. W. Rep., 333. (A petition alleging that 
 plaintiffs are the only children and heirs at law of the owner, who died 
 seised of the property in 1869, does not show that plaintiffs were the 
 owners of the land in 1893, when suit was brought.) Howe v. Saddler, 
 Kentucky, 1894, 34 S. W. Rep., 377. {Held, that it was not error to reject 
 an amended petition which merely sought to plead the evidence or origin 
 of plaintiff's title.) Michigan. — Ludeman v. Hirth, 96 Mich., 17 ; s. o. 55 
 N. W. Rep., 449. (Where the declaration is defective because it does not 
 set forth plaintiff's estate in the land, he should be permitted on the trial 
 to amend it.) Minnesota. — Merrill v. Bearing, 47 Minn., 137; s. c. 49 
 N. W. Rep., 693. (Plaintifl' may recover possession of land upon allega- 
 tion and proof that he is equitable owner, but if he alleges only a legal 
 title he cannot prove or recover upon an equitable title.) New York. — 
 Roberts v. Cullen, 40 State Rep., 673 ; s. c. 16 N. Y. Supp., 517. (Defend- 
 ant held entitled to a bill of particulars showing what particular land was 
 sought to be recovered and the nature of plaintiff's alleged title, but not 
 to a statement of facts upon which said claim is based.) North Carolina. — 
 Leatherwood v. Fulbright, 109 N. C, 683 ; s. c. 14 S. E. Rep., 399. (Where 
 recovei-y is sougiit upon an equitable title, it is essential that the com- 
 plaint should set forth the facts upon which the same is grounded.) S. P. 
 Geer v. Geer, 109 N. C, 679 ; s. c. 14 S. E. Rep., 397. Oregron.— Bingham 
 1). Kern. 18 Ore., 199; s. c. 33 Pac. Rep., 183. ("Under Ore. Code, 
 sec. 318, complaint must allege that plaintiff is entitled to the pos- 
 session of the property.) Johnson v. Crookshanks, 31 Ore., 339; s. c. 39 
 Pac. Rep., 78. (Where complaint alleged that plaintiff was the owner of 
 and entitled to the possession of the premises, held, that the failure of the 
 complaint to state the nature of plaintiff's estate was waived by an answer 
 setting up new matter.) Mitchell®. Campbell, 19 Ore., 198; s. u. 34 Pac. 
 Rep., 455. (It is only necessary for a complaint to allege the nature of 
 plaintiff's estate in the property, that he is entitled to its possession, and 
 that the defendant wrongfully withholds the same from him to his 
 damage in a sum claimed. The property should also be described with 
 suflBcient certainty to enable possession thereof to be delivered in case a 
 recovery be had.) South Dakota. — Lewis v. St. Paul, etc., Ry. Co., South 
 Dakota, 1894, 58 N. W. Rep., 580. (Held, that a complaint alleging that 
 plaintiffs owned and held the land in question by virtue of a trust deed 
 made by the former owner to plaintiffs in trust for certain beneficiaries 
 named, showed a sufficient title in plaintiffs to enable them to maintain 
 the action.) Utah. — Jones®. Momraott, 7 Utah, 340; s. c. 36 Pac. Rep., 
 035. (Complaint held suflHcient, which alleged that " plaintiff is, and at all 
 times therein mentioned was, the owner of, and seized in fee of * * * 
 and that the defendant is in possession thereof, and unlawfully withholds 
 the same from plaintiff to her damage.") Virginia. — Roach v. Blakey, 89 
 
Complaints in Actions of Ejectment. 669 
 
 Va., 767; s. c. 17 S. E. Rep., 228. (Held, that it was sufficient to allege, 
 that on a day specified, before bringing the action plaintiffs were possessed 
 " each in fee simple absolute of an undivided share or interest in " the land, 
 and that the action "is for the whole of the land so claimed, and not for 
 any part or parcel " thereof.) Washington. — Belles «. Miller, Washington, 
 1894, 38 Pac. Rep., 1050. (The nature of plaintiff's estate in the lands held 
 to be stated with sufficient deflniteness by an allegation, that he was 
 owner of the land subject to defendant's right to redeem, that he became 
 owner under an execution sale to satisfy a valid judgment entered in the 
 cause, and that such sale was confirmed, and setting forth the sheriff's 
 certificate of sale.) West Virginia. — Jarrett v. Stevens, 36 "W. Va., 445; 
 15 S. E. Rep., 177. (An allegation that plaintiff "was possessed in fee" 
 of the land is a sufficient allegation that he claims in fee.) Wisconsin. — 
 Methodist Epis. Church d. Northern Pac. R. Co., 78 Wis., 131 ; 47 N. W. 
 Rep., 190. (Plaintiff must aver that he is entitled to possession at the 
 commencement of the action.) 
 
 (2) Description of the ^iremises. 
 
 California.— Pierce v. Hilton, 103 Cal, 376; s. c. 86 Pac. Rep., 595. 
 (Description is not bad for insufficiency, if it is capable of ascertainment.) 
 Muir V. Meredith, 83 Cal., 19 ; s. c. 32 Pao. Rep., 1080. (Complaint held to 
 contain a sufficient description, which called for a well ascertained begin- 
 ning point from whence a line is to be run to a designated monument, a 
 "station fence post," and then giving the course of every other call in the 
 decription.) Hihn v. Mangenberg, 89 Cal., 368 ; s. c. 36 Pac. Rep., 968. (As 
 against a special demurrer, complaint held sufficient which described the 
 land as being in S. township, S. C. County, Cal., and bound on the north- 
 east by B. Avenue, on the southeast by land of M. E., and on the south- 
 west and northwest by S. creek.) Cole v. Segraves, 88 Cal., 103 ; s. c. 25 
 Pac, 1109. (Complaint held not demurrable for not alleging the county 
 in which the premises were situated, where it specified the name of the 
 town in which they were located ; since the court will take judicial notice 
 of the county in which the town named may be.) Florida. — Buesing v. 
 Forbes, 38 Fla., 495 ; s. c. 15 So. Rep., 209. (If a surveyor would have no 
 difficulty in locating the land sued for by the description in the declara- 
 tion, it is sufficient.) Georgia. — Polhill v. Brown, 84 Ga., 388 ; s. c. 10 S. 
 E. Rep., 921. (Where the declaration, and the deeds under which both 
 parties claim, describe the land as lot No. 59, known as the Davis place, 
 and it is shown that the Davis place was lot No. 69, the declaration may 
 be amended accordingly.) Indiana. — Liggett v. Lozier, 133 Ind., 451 ; s. 
 c. 33 N. E. Rep., 713. (The description of of the land contained in a copy 
 of a deed attached to the complaint as an exhibit, but which is not the 
 foundation of the action, cannot aid the want of description in the body 
 of complaint.) Montana. — Haggin v. Lorenz, Montana, 1895, 39 Pac. 
 Rep., 385. (The general description in complaint is controlled by the 
 courses and distances stated.) Neiv yorifc.— Rowland v. Miller, 44 State 
 Rep., 826 ; 18 N. Y. Supp., 305 ; 33 C. P., R. 35. (Complaint held demur- 
 rable, where the attempted description of premises in effect merely de- 
 
•670 Notes of Recent Casks. 
 
 scribed a straight line.) Barley v. Roosa, 13 N. Y. Supp., 209; s. c. 30 
 Civ. Pro., R. 113. (Where complaint described 25 acres in a single parcel, 
 held, that plaintiff could recover 11 acres thereof virithout amending his 
 complaint.) Utah. — Darger v. Le Sieur, 9 Utah, 192 ; s. c. 33 Pac. Rep., 
 701. (Demurrer to complaint for its uncertainty in the description of the 
 premises sustained, where the description was not sufficient to enable an 
 •officer on execution to identify the property.) Vermont. — Gushing v. 
 Fenn, 68 Vt., 106 ; s. c. 31 Atl. Rep., 373. (In ejectment against a tenant 
 holding over, the declaration described the premises as the dwelling and 
 •outbuildings, "and a small piece of land adjoining the same." — Held, 
 that it was sufficient to justify recovery of the buildings and garden, but 
 that it was too indefinite to embrace a pasture connected with the garden, 
 though the pasture was a part of the farm leased by defendant.) Wis- 
 consin.— Ayers V. Reidel, 84 Wis., 376 ; s. c. 54N. W. Rep., 588. (Descrip- 
 tion of the land in complaint is sufficiently certain, if by the aid of a com- 
 petent surveyor, and persons knowing the monuments or objects meution- 
 ■ed as boundaries, the lands can be found.) 
 
 (8) Defendant's possession. 
 
 California.— 'KdKiasic^ v. Ashby, 98 Cal., 432 ; s. c. 33 Pac. Rep., 729. 
 •(A complaint, alleging the leasing of the premises to defendant ; that the 
 lease had expired, and that defendant refused to vacate the premises and 
 has withheld, and still withholds the possession thereof, from the plaintiff 
 — sufficiently avers that defendant is in possession.) Hihn v. Mangerberg, 
 89 Cal., 368 ; s. c. 36 Pac. Rep., 968. (Demurrer overruled to a complaint, 
 which alleged that plaintiff was seized in fee of the reality, and that de- 
 fendant was in possession, and against plaintiff's will detained and with- 
 held the possession thereof.) Minnesota. — Go wan v. Bensel, 53 Minn., 46; 
 s. c. 54 N. W. Rep., 934. (A general allegation that defendant wrongfully 
 detains the possession can have no effect, where the specific facts alleged 
 show him not to be in possession.) Rhode Island. — Whipple v. McGinn, 
 18 R. I., — ; s. c. 25 Atl. Rep., 652. (Wrongful detainer mustbe averred.) 
 South Carolina. — Tompkins v. Railroad Company, 33 S. C, 316 ; s. c. 11 
 S. E. Rep., 693. (Demurrer sustained to a complaint which alleged that 
 defendant, a railroad company, unlawfully and without plaintiff's consent, 
 took possession of a strip of plaintiff's land on which to construct its road, 
 without alleging that defendant had not acquired a right to enter by the 
 ■exercise of the power of eminent domain.) 
 
 (4) Mesne profits, inoidental relief, etc. 
 
 California. — Johnson .v. Visher, 96 Cal., 310 ; s. c. 31 Pac. Rep., 106. 
 (In an action to recover the possession of the premises and the mesne 
 rents and profits, it is not necessary to aver that the defendant received 
 the rents and profits.) Missouri. — Morrison v. Harring-ton, 120 Mo., 665 ; 
 s. c. 35 S. W. Rep., 568. (Petition in ejectment may be amended by the 
 addition of a count praying for the cancellation of certain deeds by defend- 
 ant of the land in controversy.) North Carolina. — Bryan v. Spivey, 106 N. 
 C, 95; s. o. 11 S. E. Rep., 510. (One action may be brought against several 
 
Complaints in Actions for an Accounting. 671 
 
 1.respassers settled on different parts ot the same tract of land, and in 
 such a case it is a matter o£ discretion to allow a severance and separate 
 trial as to each defendant.) Ohio. — Hills v. Ludwig-, 46 Ohio St., 373 ; s. 
 c. 24 N. E. Rep., 596. (Where omitted land is brought in by amendment 
 •of complaint, the amendment does not relate back to the time of bringing 
 the action so as to authorize a recovery of such land, if its recovery was 
 barred by the statute of limitations when the amendment was allowed.) 
 TFiscow.sm.— Methodist Epis. Church v. Northern R. R. Co., 78 Wis., 131 ; 
 s. c. 4S N. W. Rep., 190. (A complaint which insufficiently states a cause 
 of action in ejectment in failing to allege that plaintiff was entitled to 
 possession at the commencement of the action cannot be sustained as set- 
 ting forth a cause of action in trespass for mesne profits ; since the re- 
 <;overy of mesne profits is merely incidental to the recovery in eject- 
 ment. ) 
 
 €OMPLAINTS IN ACTIONS FOR AN ACCOUNTING. 
 
 [Principal Case, p. 287, this Vol.] 
 
 Alabama. — Beg-gs v. Edison Electric Light, etc., Co., 96 Ala., 295 ; s. c. 
 11 So. Rep., 381. (Demurrer should be sustained, where it is merely al- 
 leged that there is a complication in the accounts, without averring in 
 what respect.) Attalla, etc., Manuf. Co. ■«. Winchester, Ala., 1894, 14 So. 
 Rep., 565. (Bill cannot be maintained, where the accounts are neither 
 mutual or complicated.) Illinois. — Angelo r. Angelo, 146 111., 629; s. c. 
 -^5 N. E. Rep., 329. (Demurrer should have been sustained to a bill against 
 a co-tenant in common, which did not show that he received any rents, 
 nor the value of the land, but merely showed defendant's occupancy of 
 the premises, and plaintiff's forbearance to occupy them.) Cook County 
 V. Davis, 143 111., 151 ; s. c. 33 N. E. Rep., 176. (A bill upon a purely 
 legal demand, not filed in aid of an action at law, and seeking only the dis- 
 covery of witnesses' names, shows no ground of equitable jurisdiction.) 
 Maine.— Usiger v. Whitmore, 83 Me., 348 ; s. o. 19 Atl. Rep., 444. (A bill 
 may be retained against a trustee in order to effectuate an accounting and 
 adjustment between the parties, including matters subsequent to the filing- 
 of the bill, although plaintiff fails to establish the allegations of the bill.) 
 Massachusetts.— 1a,team v. Ross, 150 Mass., 440 ; s. c. 23 N. E. Rep., 330. 
 {A bill will lie for the recovery of the proceeds of insurance, less the 
 amount of the debt, death assessments and expenses, from a creditor, who 
 held the policy as a collateral ; as he stands in a trust relation, and an 
 accounting is necessary.) Michigan. — Nash v. Buchard, 87 Mich., 85; s. 
 <!. 49 N. W. Rep. , 492. (A financial agent cannot maintain an action for 
 an accounting, on the ground that he paid certain debts and became an 
 indorsor for his principal ; as he is presumed to know the amounts which 
 he has received and paid out.) Warren v. Holbrook, 95 Mich., 185 ; s. c. 
 54 N. W. Rep., 712. (A bar-keeper required to keep an account of money 
 received, and to pay it over to his employer, occupies a fiduciary relation, 
 and can be compelled to account in a court of equity.) Holmes v. Mai- 
 
6<2 Notes of Recent Cases. 
 
 colm McDonald Lumber Co., 95 Mich., 606 ; s. c. 55 N. W. Rep., 450. 
 (The action will lie, where sevei'al parties are interested in a fund held by 
 a trustee, where the facts are complicated, and fraud is alleged.) New 
 Forfc.— Sohnaier n. Schmidt, 13 N. Y. Supp., 725 ; s. c. 37 State Rep., 638. 
 (Where the cause of action set forth involves only an obligation for the 
 payment of a specific sum of money by one firm to another, the circum- 
 stance that one of the defendants was a member of each firm does not 
 present a case for an accounting.) Abbey v. Wheeler, 83 N. Y. Supp., 
 1069. (A Court of Equity will not assume jurisdiction of an action 
 brought solely for an accounting, where that is the incidental and not the 
 prime relief sought.) Oregon.— B-oyt v. Clarlfson, 23 Ore., 51 ; s. c. 31 
 Pac. Rep., 198. (Where the court finds there was a settlement, but allows 
 it to be opened for the purpose of showing errors and mistakes, plaintiff 
 should, before being allowed to introduce evidence, be compelled to 
 amend his complaint so as to specify the errors and mistakes relied on.) 
 Rhode Island.— M.cGvA\& v. Beadleston, 17 R. I., 30 ; s. c. 30 Atl. Rep., 11. 
 (An accounting for over payments in the purchase of goods cannot be 
 maintained by reason of a trust relation, although it is alleged that plaint- 
 iff was agent to sell the goods for defendant, it appearing that the goods 
 were to be plaintifll's.) United States. — Babbott v. Tewksbury, 46 Fed. 
 Rep., 86. (A suit will not lie upon a contract to pay complainant com- 
 missions on certain sales, the amounts of which are unknown to the com- 
 plainant ; since he has an adequate remedy at law.) Virginia. — Goddin 
 V. Bland, Va., 1891, 13 S. E. Rep., 145. (A mere dispute between an em- 
 ployer and employee as to the quantity of wood delivered, which was to 
 be paid for by the cord, presents no ground for equity jurisdiction, though 
 the account is a long one.) 
 
 COMPLAINTS IN ACTIONS TO SETTLE PARTNER- 
 SHIP ACCOUNTS. 
 
 [Principal Case, p. 294, this Vol.] 
 
 Alabama. — Haynes v. Short, 88 Ala., 563; s. c. 7 So. Rep., 157. (On 
 motion to dismiss for want of equity, a bill praying an account be taken 
 "to determine the amount put in a firm by orator's intestate, and how 
 much thereof is due his estate ; and a decree against the surviving- 
 partner for the amount found due, — will be deemed to be already amended, 
 so as to contain the necessary allegations, as to the approximate amount 
 of the partnership's debts, the amount of profits and expenses, and the 
 amount received by each pai-tner, and to contain a prayer for the settle- 
 ment of the whole partnership.) New York. — Ketchum v. Lewis, 46 
 State Rep., 843; s. c. 19 N. Y. Supp., 453. (Complaint setting forth 
 several transactions between plaintiff and defendant as co-partners, held 
 to state but one cause of action.) Teschemacher v. Lenz, 31 N. Y. Supp., 
 543; s. c. 83 Hun, 594. (In an action for tlie dissolution of partnership and 
 for an accounting, the particular transaction as to which the accounting 
 will be required need not be specified in the complaint.) Rhode Island. — 
 
Complaints in Actions of Foreclosure. 673 
 
 ■Congdon v. Aylsworth, 19 E. I., 38 ; s. c. 18 Atl. Rep., 347. (Though the 
 i-ight of discovery is waived, a bill is sufficient to sustain an accounting, 
 vvrhich alleges, a partnership between complainant and defendant, which has 
 •been dissolved, but whose accounts have never been settled ; that the 
 books and papers thereof are in defendant's possession, and his refusal to 
 allow their inspection by complainant.) United States. — Rosenstein v. 
 Burns, 41 Fed. Rep., 841. (Bill alleging that the defendant partner willfully 
 ■neglected to comply with the partnership agreement, that the business 
 was being conducted at a loss, and that complainants were induced to 
 enter into the agreement through defendant's misrepresentations, — is not 
 multifarious.) Vermont.— Park v. McGowan, 64 Vt., 173; s. c. 33 Atl. 
 Rep., 855. (In an action against the administrator of a deceased partner 
 for what he might have received above his share, it is not essential to 
 allege that the administrator received the property belonging to the de- 
 ceased, or to the partnership.) 
 
 COMPLAINTS IN ACTIONS OF FOEECLOSUKE. 
 
 [Principal Case, p. 301, tliis Vol.] 
 
 Alabama. — Christian v. American, etc.. Mortgage Co., 93 Ala., 130; 
 s. c. 9 So. Rep., 319. (Conveyance to mortgagor may be alleged by an 
 averment, that a person named conveyed to him, with or without a state- 
 ment of the grounds on which such allegation is based.) Bedell v. New 
 England Mortgage Security Co., 91 Ala., 335 ; s. c. 8 So. Rep., 494. 
 .(Where a mortgage contains a power of sale on default, in order to 
 recover attorney's fees in the foreclosure suit, some facts must be alleged to 
 show that that form of foreclosure was necessary.) Mullens v. American, 
 etc.. Mortgage Co., 88 Ala., 380; s. c. 7 So. Rep., 301. (It is error to 
 overrule a demurrer to a bill which fails to allege that defendant, a 
 foreign corporation, was authorized to do business in the state, at the time 
 the mortgage was executed and delivered ;) S. P. Farrier v. New England 
 Mortgage Security Co., 88 Ala., 375 ; s. c. 7 So. Rep., 300. California.— 
 Hewitt V. Dean, 91 Cal., 617; s. c. 35 Pac. Rep., 753. (Plaintiff need not 
 ■demand payment, or give notice of his election to regard the whole sum 
 of principal and interest due, before foreclosing because of a default in the 
 payment of interest.) Whitby v. Rowell, 83 Cal., 635 ; s. c. 33 Pac. Rep., 
 40. (Demurrer overruled, where the land was not described in the body 
 of the complaint, but a full description thereof was contained in a copj' 
 of the mortgage annexed to the complaint.) S. P. Scott v. Sells, 
 88 Cal. 599; s. c. 36 Pac. Rep., 350. San Fi-ancisco Breweries v. 
 Schurtz, 104 Cal., 430 ; s. c. 38 Pac. Rep., 93. (Held, that a defendant's 
 interest was sufficiently alleged by an averment that defendant " had or 
 claimed to have some interest " in the mortgaged property, which was 
 subsequent and subject to the mortgage.) As to the allegations neces- 
 sary to recover reasonable attorney's fees, stipulated to be paid by the 
 mortgage, see First National Bank v. Holt, 87 Cal., 158 ; s. c. 35 Pac. 
 Hep., 373; Lee v. McCarthy, Cal., 1894, 35 Pac. Rep., 1034; Hewett v. 
 43 
 
674 JSToTEs OF Recent Cases. 
 
 Dean, 91 Cal., 5, 617 ; s. c. 35 Pac. Rep., 753. Florida.— l^oag v. Herrick, 
 26 Fla., 356 ; s. c. 8 So. Rep., 50. (The formal prayer for such other and 
 further relief as equity may require does not authorize a personal judg- 
 ment against mortgagor's wife, who joined in the mortgage for the pur- 
 pose of relinquishing her riglit of dower.) Indiana. — Brunson v. Henry, 
 Ind., 1894, 39 N. E. Rep., 256. (In an action by the heirs of a deceased 
 mortgagee, complaint is bad, if it fails to allege that there were no debts 
 against decedent's estate, and that no letters of administration have been 
 granted.) Kentucky. — Bailey v. Fanning Orphan School, Ky., 1890, 14 
 S. "W. Rep., 908. (Where it was alleged that the mortgage was recorded 
 in the county where the land was situated, it was held immaterial that 
 neither the petition or the mortgage showed in what county the land was 
 located.) Missouri.— K-noK v. Brown, 108 Mo., 223; s. c. 15 S. W. Rep., 
 382. (After a verdict it is too late to object that the petition does not 
 allege that a purchaser's vendor, as well as the purchaser, had notice of 
 the mortgage.) Nebraska. — Dimick v. Grand Island Banking Co., 37 
 Neb., 394 ; s.c. 55 N. W. Rep., 1066. (The provision of the Code, that the 
 petition shall state whether any proceedings have been had at law lor 
 the recovery of the debt, or any part thereof, applies only to formal 
 mortgages, and not to equitable mortgages, and liens.) New Jersey. — 
 Wheeler & Wilson Manuf. Co. a. Filer, N. J. Ch., 1893, 28 Atl. Rep., 
 13. (The fact that the bill alleges nothing in terms against a defendant 
 against whom it prays process is not a ground for demurrer if he is 
 informed by the notice annexed to his subpoena that he is made a party 
 because he holds a mortgage on the premises.) New York. — Preston ». 
 Loughran, 58 Hun, 210; s. c. 13 N. Y. Supp., 313; 34 State Rep., 391. 
 (A judgment of foreclosure is not invalidated because the complaint does 
 not allege that the assignment of the bond to the plaintiff as well as the 
 mortgage, where the assignment of both bond and mortgage was proved 
 at the trial.) Albany City National Bank v. Hudson River Brick Co., 29 
 N. Y. Supp., 793. (Demurrer of one of the defendants properly over- 
 ruled, where complaint alleged that he had, or claimed, some interest in 
 the mortgaged property.) North Dakota. — Fishers. Bouisson, 3 N. Da., 
 493 ; s. c. 57 N. W. Rep., 505. (Demurrer sustained to a complaint, on 
 the ground that it did not show whether or not any proceedings had been 
 had at law for the recovery of the mortgage debt, though it alleged that 
 no other foreclosure proceedings had been instituted, except an unsucces- 
 ful effort to foreclose by advertisement.) Ohio. — Winemiller v. Laughlin, 
 Ohio, 1894, 38 N. E. Rep., 111. (In order to bar another lien holder, it is 
 sufficient if the petition allege that such defendant claims some interest 
 in the mortgaged premises, and advises him that his claim or lien will be 
 barred, if he fails to appear and disclose it.) Tennessee. — Clark v. Jones, 
 93 Tenn., 639 ; s. c. 37 S. W. Rep., 1009. (A bill by the transferee of a 
 note secured by a trust deed to foreclose the lien need not allege that 
 the trustee refused to execute the trust, or that his execution thereof 
 was impeded by the maker of the note.) Washington. — Dexter v. Long, 
 2 Wash., 433; s. c. 27 Pac. Rep., 271. (Held, that it was sufficient to 
 allege that a defendant had, or claimed, some interest in, or lien upon, 
 the mortgaged property ; but that the same, whatever it might be 
 
Complaints in Actions of Partition. 675 
 
 was subjectto plaintiff's mortgage.) Richmond v. Voorhees, Wash., 1894, 
 38 Pao. Eep., 1014. (A complaint alleging that the mortgage was ex- 
 ecuted by a named person as attorney in fact for defendant, but not 
 alleging that such person had been constituted defendant's attorney in 
 fact, — held to be sufficient, where it was also generally alleged that the 
 mortgage was executed by defendant.) 
 
 COMPLAmTS m ACTIONS OF PAKTITION. 
 
 [Principal Case, p. 311, this Vol.] 
 
 Alabama.— Wo\S.e. v. Loeb, 98 Ala., 426 ; s. c. 13 So. Rep., 744. (A sale 
 of real estate for distribution under a petition to the probate court is 
 void, where the petition fails to set forth the interest in the property of 
 each co-owner as required in a petition for partition by Civ. Code, § 3239.) 
 McEvoy V. Leonard, 89 Ala., 4.55 ; s. c. 8 So. Rep., 40. (Demurrer prop- 
 erly sustained to a bill praying that the land be sold for distribution, 
 which did not allege that the property could not be equitably divided 
 without sale.) Id. (Demurrer also sustained, on the ground that the bill 
 showed an adverse holding on disputed facts. The title must be deter- 
 mined before the land can be sold for distribution.) Indiana. — Brown v. 
 Brown, 133 Ind., 476 ; s. c. 33 N. E. Rep., 1138 ; Id., 33 N. E. Rep., 615. 
 (Demurrer properly sustained, where complaint merely alleged that 
 plaintiffs were children of a deceased grantee, without alleging that such 
 grantee died seised, or that plaintiffs had an interest in the land, when the 
 action was commenced.) Prather ^). Prather, Ind., 1894, 39N. E. Rep., 
 310. (An allegation that plaintiff made improvements on the land, " an 
 itemized statement of which is as follows," stating in detail their extent 
 and value, — held to sufficiently allege that plaintiff paid for such improve- 
 ments.) Louisiana. — Fix v. Koepke, 44 La. Ann., 745; s. c. 11 So. Rep., 
 39. (The absence of an averment of the value of the property, and 
 where located, can be cured by amendment.) Missouri. — Thompson v. 
 Holden, 117 Mo., 118 ; s. c. 23 S. W. Rep., 905. (It is sufficient, if the 
 petition allege that a party claims some interest, the value of which is to 
 the plaintiff unknown, and which is left to the party himself to specially 
 assert.) Waddell t;. Waddell, 99 Mo., 338; s. c. 12 S. W. Rep., 349. 
 (Where the general right to the whole land is being litigated, the fact that 
 parties to the suit rely upon distinct and independent rights does not make 
 the petition multifarious.) Lilly v. Menke, Mo., 1894, 28 S. W. Rep., 643. 
 (An allegation that defendant has been in possession of the property, 
 and has received the rents and profits thereof, is not sufficient to support 
 a claim for rents, in absence of an allegation that plaintiff was denied a 
 joint occupancy of the premises.) Beck v. Kallmeyer, 42 Mo. App., 563. 
 (An accounting for rents may be allowed in a proceeding in equity to par- 
 tition land, but not in a statutory proceeding.) New York. — Townsend 
 V. Bogert, 136 N. Y., 370 ; s. c. 37 N. E. Rep., 555. (Where complaint 
 alleged that the land could not be divided, and stated a good cause of 
 action against a co-tenant, and alleged that another defendant claimed 
 
676 ]SroTp;8 OF Recent Cases. 
 
 some interest in the land, the exact nature of which was unknown to 
 plaintiff, — held, that a good cause of action was stated against the latter 
 defendant ; since it would be necessary to sell the property.) Bowen ». 
 Sweeney, 63 Hun, 224; 17 N. Y. Supp., 753 ; s. o. 63 State Rep., 182. (In 
 an action by an heir against devisees, complaint must allege the invalidity 
 of the devise as required by Code Civ. Pro., §1537.) Balen «. Jacquelin, 
 67 Hun, 311 ; s. c. 51 State Eep., 643 ; 32 N. Y. Supp., 193. (Plaintiff's 
 possession is sufficiently stated by an allegation that plaintiff and defend- 
 ants are seised and possessed of the land.) North Carolina. — McGill v. 
 Buie, 106 N. C, 242; s. c. 11 S. E. Eep., 284. (A petition which alleges 
 that the parties are tenants in common, and admits that defendant is in 
 possession, claiming a share, but not admitting that he claims sole seisen is 
 not demurrable on the ground that it is impliedly admitted that plaintiff is 
 not in possession.) United States. — Willard v. Willard, 14.5 U. S., 116; 
 s. c. 36 L. ed., 644; 12 Supm. Ct. Rep., 818. (In the Dist. of Columbia, it 
 was held sufficient for the bill to merely allege that plaintiff desires to 
 have partition of the land, and his share set apart to him in severality, or, 
 it in the opinion of the court this could not be done without injury to the 
 parties, etc. , then by sale of the land and a division of the proceeds, with- 
 out alleging any special reason for partition, or for having it made in one 
 way or the other.) Sanders v. Devereux, 60 Fed. Eep., 311. (Demurrer 
 sustained, where bill showed that complainant was disseised.) Washing- 
 ton.— H.i\\ V. Young, 7 Wash., 83 ; s. c. 34 Pac. Eep., 144. (It is not nec- 
 essary to allege the necessity for a sale in lieu of an actual partition, or 
 that a partition cannot be made.) West Virginia — Ransom v. High, 37 
 W. Va., 838 ; s. c. 17 S. E. Eep., 413. (In equity, an allegation of demand 
 and refusal of partition is unnecessary). Id. (It is not necessary for plaint- 
 iff to make a formal deraiguraent of title, further tjian is necessary to show 
 how the parties became co-owners.) 
 
 COMPLAINTS m CREDITOR'S ACTIONS. 
 
 [Principal Case, p. 338, ttiis Vol.] 
 
 (1) Plaintiff's claim, judgment, etc. 
 
 (2) Defendant s interest in the property sought to he reached. 
 
 (3) The fraud. 
 
 (4) Exhaustion of legal remedies, issuing of execution, etc. 
 
 (1) Plaintiff's claim, judgment, etc. 
 Alabama. — Gibson v. Trowbridge Furniture Co., 93 Ala., 579; s. c, 9 
 So. Eep., 370. (Bill should set forth the character of plaintiff's demands, 
 and when they became due.) McGliee v. Importers' and Traders' National 
 Bank, 93 Ala., 192 ; s. c, 9 So. Eep., 734. (Demurrer should be sustained, 
 where bill shows that plaintiff's debt is not due.) Jones v. Smith, 92 Ala., 
 455 ; s. c, 9 So. Rep., 179. (The bill of the assignee of a judgment cred- 
 itor need not aver that the assignment was in writing.) Gibson v. Trow- 
 bridge Furniture Co., supra. (On demurrer, held that a bill by several 
 creditors sufficiently stated that the debts were due and demandable 
 
Comjjilaints in Creditor''s Actions. 6YT 
 
 when the bill was filed, by an allegation that the prices of the goods sold 
 by them are owing, unpaid and due.) California. — Tatum v. Rosenthal, 
 95 Cal., 139 ; s. c, 30 Pac. Rep., 136. (Where the judgment recovered by 
 plaintiff is set ovit in the complaint, it need not be alleged that the judg- 
 ment was based on a valid and subsisting debt.) Indiana. — Eller v. Lacy,. 
 Ind., 1894, 36 N. E. Rep., 1088. (Demurrer should have been sus- 
 sained, where complaint merely alleged the recovery of a judgment 
 against defendant without stating any facts to show its character or 
 validity.) Doherty v. Holiday, Ind., 1892, 32 N. E. Rep., 315. (A com- 
 plaint in the nature of a creditor's bill need not state a joint cause of 
 action in favor of all the plaintiffs, and it is sufficient, though it shows, 
 that the claim of each is separate and distinct.) Minnesota. — Sawyer v. 
 Harrison, 43 Minn., 397 ; s. c, 45 N. W. Rep., 434. (Complaint must state 
 facts showing that the plaintiff occupied a status either as creditor, or as 
 the representative of creditors ; a mere general allegation, that he was 
 appointed by order of the court the receiver of all of grantor's property, 
 is not sufficient.) Scanlan v. Mui-phy, 51 Minn., 536 ; s. c, 53 N. W. Rep., 
 799. (In pleading the judgment, it is enough to allege that it was ren- 
 dered in an action pending.) Minsissipx^i. — Browne v. Hernsheim, 71 
 Miss., 574 ; s. c, 14 So. Rep., 36. (Bill held to be demurrable by any per- 
 son joined with debtor as a co-defendant, where it did not show that 
 debts soug-ht to be enforced were due.) New York. — Louis v. Belgard, 
 43 State Rep., 766 ; s. c, 17 N. Y. Supp., 883. (Demurrer sustained, where 
 complaint alleged that plaintiff had a claim for goods sold and delivered 
 by him to deceased insolvent debtor, without alleging a sale, value or 
 agreed price.) United States. — Consolidated Tank Line Co. v. Kansas 
 City Varnish Co., 45 Fed. Rep., 7. (A bill to set aside a deed of trust of 
 corporate assets to secure debts for which the directors of the company 
 were themselves liable as sureties, need not show that the complainant 
 has established his claim by judgment.) Wisconsin. — Faber v. Matz, 86 
 Wis., 370 ; s. c, 57 N. W. Rep., 39. (A creditor's bill is not demurrable 
 because it fails to allege that it was not brought collusively as required 
 by Cir. Ct. Rule 38, subd. 1.) Marston v. Dresden, 76 Wis., 418 ; s. c, 45 
 N. W., Rep., 110. (Complaint stating the amount due on the judgment, 
 and facts showing that there is no collusion between the parties to the 
 action, and that plaintiffs prosecute only to satisfy their judgment, 
 sufficiently complies with Cir. Ct. Rule 38, subd. 1.) 
 
 (3) Defendant's interest in the property sought to be reached. 
 
 Indiana.— SUgel v. Hoover, 137 Ind., 314; s. c, 36 N. E. Rep., 1099. 
 
 (Complaint need not allege that the property conveyed was subject to 
 execution, since its exemption would be a matter of defence.) Bright v. 
 Bright, 133 Ind., 56; s. c, 31 N. R. Rep., 470. (Demurrer should have 
 been sustained, where complaint showed that defendant furnished his son 
 with money to purchase land, but failed to show that the land was pur- 
 chased in trust for defendant.) Michigan.— Button v. Thomas, 97 Mich., 
 93; s. c, 56 N. W. Rep., 339. (A creditor's bill for discovery is not 
 required to point out the property sought to be reached.) Gibbons v. 
 
678 Notes or Keoent Cases. 
 
 Pemberton, 101 Mich., 397; s. c, 59 N. W. Rep., 663. (In absence of 
 demurrer, debtor's ownership held to be sufHoiently stated by an allega- 
 tion, that he executed a deed for a, pretended consideration by which he 
 pretended to convey the land in question.) Missouri. — Jamison v. Bagot, 
 106 Mo., 240; s. c, 16 S. W. Eep., 697. (Under a complaint alleging that 
 the wife of the judgment debtor claimed to own the land which debtor 
 had fraudulently conveyed to a third person, and that she was therefore 
 made defendant, held, that it was competent to introduce evidence im- 
 peaching the wife's title.) Pennsylvania. — Ferguson v. Yard, 104 Penn., 
 586 ; s. c, 30, Atl. Rep., 517. (A bill to subject certain property to a judg- 
 ment recovered against one as executrix must allege that the property, 
 or a part thereof, belonged to decedent's estate.) 
 
 (3) The fraud. 
 Alabama. — Cartwright v. Bamberger, 90 Ala., 405; s. c, 8 So. Rep., 
 264. (An averment, in a bill by an attaching creditor to set aside the 
 attachment of another as fraudulent, that the demand on which the 
 a,ttachment was based was " simulated " is an averment of fact, and not 
 a legal conclusion.) McGhee v. Importers' and Tradei's' National Bank, 
 93 Ala., 193 ; s. c, 9 So. Rep., 734. (It is not necessary to allege that 
 debtor's voluntary grantee participated in the fraud.) Klein v. Miller, 
 97 Ala., 506; 11 So. Rep., 830. (Demurrer properly overruled to a bill 
 which alleged that the sale was made for a pretended antecedent debt 
 of $10,700, which was in whole or in part simulated, and that the real 
 value of the goods sold was $15,000.) Loucheim v. Talladega First Na^ 
 tioual Bank, Ala., 1893, 13 So. Rep., 374. (A general averment that the 
 conveyance was executed for the purpose of hindering and delaying 
 creditors is of no consequence ; only the facts alleged will be considered.) 
 Scholze V. Steiner, Ala., 1893, 14 So. Rep., 553. (An averment of the mere 
 conclusion that the transfer was not made in good faith, but for the 
 purpose of hindering, delaying and defrauding creditors, cannot be 
 attacked by a motion to dismiss the bill for want of equity, but on such 
 motion the defective averment will be treated as amended.) CuiTan 
 V. Olmstead, Ala., 1894, 14 So. Rep., 398. (Demurrer properly sustained 
 to a bill, which merely averred that the sale was made with the intent 
 to hinder, delay, or defraud creditors, and that the transferee partici- 
 pated in such intent.) Williams v. Spragins, Ala., 1894, 15 So. Rep., 
 247. (General averments of facts, from which, unexplained, a conclu- 
 sion of fraud arises, are sufficient.) California. — Fitzgerald v. Neu- 
 stadt, 91 Gal., 600; s. c, 37 Pac. Rep., 936. {Held, that the debtor's 
 insolvent condition at the time of the alleged fraudulent sale was suf- 
 ficiently shown by the following allegation ; " that at the time of the 
 attempted sale . . . and for a long time prior thereto, the 
 said G. was, and ever since has been indebted to various persons in 
 large sums of money; and during all said times was, and still is, 
 unable to pay his debts from his own means, as said debts became 
 due, and then was, and still is, an insolvent debtor," etc.) Threlkel v. 
 Scott, Cal., 1893. 34 Pac. Rep., 851. (Complaint held to be sufficient on 
 demurrer, which alleged generally, that the grantor was insolvent when 
 
Complaints in Creditor's Actions. 6Y9 
 
 the conveyance was made, and that it was done with intent to defraud 
 creditors.) Windhous v. Bootz, 93 Cal., 617; s. c, 25 Pac. Rep., 404. (It 
 must be alleged and proved, that, at the time the conveyance was made, 
 the debtor had no other property subject to executioQ out of which his 
 debts could be satisfied.) Colorado. — Taney v. O'Connell, 16 Colo., 353; 
 s. c, 37 Pac. Rep., 888. (In an action by a. judgment creditor to have 
 ■debtor's wife declared a trustee for property purchased in her name 
 with her husband's money, held, that it was not necessary to allege 
 that the debtor was insolvent, when his wife took title ; since the 
 action was not to set aside the conveyance, but to uphold it. Illinois. — 
 Deimel v. Brown, 136 111., 586 ; s. c, 37 N. E. Rep., 44; Affirming 35 111, 
 App., 303. (Where bill seeks to make the purchaser from debtor liable 
 on the theory that he is indebted for the price, it need not be alleged 
 that complainant was a creditor of the principal debtor when the 
 sale took place.) Keller v. Whitlege, 38 111. App., 310. (A conveyance, 
 made with the direct purpose of defrauding creditors, may be attacked 
 •without charging insolvency as the result of such conveyance.) Indiana. 
 —Shew V. Hews, 126 Ind., 474; s. u., 36 N. E. Rep., 483. (Demurrer 
 sustained, where complaint failed to allege that the debtor was insolvent.) 
 Winstandley v. Stipp, 133 Ind., 548; s. c, 32 N. E. Rep., 303. (Com- 
 plaint is demurrable, if it fails to allege that at the time of the con- 
 veyance the grantor had no other property subject to execution.) York 
 V. Rockwood, 133 Ind., 358; s. c, 31 N. E. Rep., 1110. {Held, that it 
 was sufficient to allege that defendant did not have at the time of 
 ' conveyance, and has not since had, up to the time of commencement of 
 the suit, sufficient property subject to execution to pay his debts.) 
 McAninch v. Dennis, 133 Ind., 31 ; s. c, 23 N. E. Rep., 881. (It is not 
 necessary to allege fraud or knowledge of debtor's fraud, or insolvency on 
 the part of those taking the conveyances without consideration.) 
 Petree v. Brotherton, 133 Ind., 693 ; s. c, 32 N. E. Rep., 300. {Held, that 
 it was insufficient to allege, that defendant had no property subject to 
 •execution at the time the action was commenced, or at the time an 
 execution was issued.) Petree v. Brotherton, supra. (A subsequent 
 creditor may maintain action, where he alleges and proves that the con- 
 veyance was made for the purpose of defrauding subsequent, as well as 
 existing creditors.) HufEmaster v. Ogden, 135 Ind., 661 ; s. c, 35 N. E. 
 Rep., 512. (Complaint held to be demurrable for failing to allege that 
 debtor's grantee participated in the fraud ; and also on the ground that it 
 did not allege that the debtor had no other property from which plaint- 
 iff's judgment could be satisfied.) Wilson v. Boone, 136 Ind., 143 ; s. c, 
 435 N. E. Rep., 1096. (In an action by an administrator to set aside a 
 conveyance by deceased to his wife, the complaint must allege that the 
 conveyance did not leave deceased enough to pay his debts ; that it was 
 made with the intent to defraud his creditors, as the wife knew, or 
 without valuable consideration.) National State Bank v. Vigo County 
 Nat. Bank., Ind., 1895, 40 N. E. Rep., 799. (Complaint must allege that 
 the conveyance was executed with a fraudulent intent.) Roberts v. 
 Farmers' and Merchants' Bank, Ind., 1894, 36 N. E. Rep., 128 ; id., 1091. 
 <Where complaint alleges that grantee was a party to the fraud, it 
 
680 Notes of Recent Cases. 
 
 need not show that tlie conveyance was without consideration.) S. P. 
 Siagel V. Hoover, 187 Ind,, 314; s. c, 36 N. E. Rep., 1099; York v. Rock- 
 wood, l;i3 Ind., 358 ; s. c, 31 N. E. Rep., 1110. (In an action against 
 a grantee who gave no consideration, it is not necessary to allege- 
 or prove notice to him of grantor's fraudulent intent.) Michigan. — 
 Dunsback v. Collar, 95 Mich., 611 ; s. c, 55 N. W. Rep., 435. (In an 
 action to set aside a voluntary conveyance, grantor's insolvency held to 
 be sufficiently stated by an allegation that he had "no real or personal 
 estate liable to levy and sale, excepting the premises aforesaid, on which 
 the sheriff could make a levy.") Missouri. — Mullen v. Hewett, 103 Mo., 
 639 ; s. c, 15 S. W. Rep., 924. (A bill alleging a number of distinct 
 conveyances to different grantees, but showing no common purpose or 
 design, held to be demurrable as multifarious.) New York. — Fuller v. 
 Brown, 76 Hun, 557; s. c, 58 State Rep., 349; 28 N. Y. Supp., 189. 
 (Complaint held to be sufficient, which alleged that a deed was made 
 without consideration with intent to hinder, delay and defraud the 
 grantors creditors, and particularly the plaintiff, and to prevent plaintiff 
 or any other creditor from levying on the property, and the grantor was 
 possessed of no other property out of which plaintiff's demand could be 
 satisfied. It is not necessary in such a case, to allege that the grantor 
 had no other property at the time of the conveyance.) Stafford v. 
 Merrill, 62 Hun, 144; s. c, 41 State Rep., 230; 16 N. Y. Supp., 467. 
 (The omission to charge a fraudulent intent in making an assignment for 
 the benefit of creditors is not fatal, where facts are alleged which show 
 the assignment to be fraudulent in law, because of excessive preferences 
 therein.) Pittsfleld Nat. Bank v. Tailer, 14 N. Y. Supp., 557 ; s. c, 38- 
 State Rep., 895. (A complaint alleging that the assignment was null and 
 void on its face and that it was made with the intent to hinder, delay and 
 defraud creditors does not contain two causes of action, which should be 
 separately stated and numbered.) Durant v. Pierson, 8 N. Y. Supp., 904 ; 
 s. c, 39 State Rep., 510. (Complaint held to be sufficiently definite and 
 certain, which alleged that the assignment was fraudulent and void, and 
 made and accepted with the intent to defraud creditors, without furthei- 
 avering the facts relied on to establish the intent.) McQueen v. New, 10 
 Misc., 251 ; s. c, 30 N. Y. Supp., 977; 63 State Rep., 232. (The words, 
 "fraudulent and void," when stated not as facts, but as inferences, are 
 not admitted by demurrer.) North Carolina. — Smith v. Summerfleld, 108- 
 N. C, 284 ; s. c, 13 S. E. Rep., 997. (In an action by creditors to establish 
 their claims and to set aside a fraudulent assignment, it is not necessary 
 to attach copies of the deeds of assignment to the complaint.) North 
 Dafcoia.— Paulson v. Ward, N. Da., 1894, 58 N. W. Rep., 793. (Grantors' 
 fraud held to be sufficiently shown by a complaint alleging that they 
 were insolvent, and were being pushed by their creditors, and that the 
 conveyance was without consideration, and wholly voluntary, and made 
 witli the intent to hinder, delay and defraud the creditors of grantors.) 
 South Carolina. — McGahan v. Crawford, South Carolina, 1898, 17 S. E_ 
 Rep., 561. (In an action to set aside as an illegal preference a conveyance 
 made within ninety days before a general assignment, the petition was 
 held to be demurrable for failing to allege that the grantee was creditor.). 
 
ComplaiiifH m Creditor's Actions. 681 
 
 South DaJcota.—'Prohert v. McDonald, 3 S. Da., 495 ; s. c, 51 N. W. Rep., 
 212. (It is sufficient to allege generally that the conveyance was made 
 with the intent to delay and defraud the grantor's creditors.) United 
 States. — Kittelu. Agusta, etc., R. Co., 65 Fed. Rep., 859. (Allegations, not 
 that the acts were fraudulently done, but that they were done with intent 
 to defraud, is sufBcieut.) Pullman r. Stebbins, 51 Fed. Rep., 10. (Bill 
 charging several distinct conveyances to be all the part of one scheme to 
 deprive plaintiff of the power to collect his claim, held not to be multi- 
 fariovis.) Washington . — Wagner v. Law, 3 "Wash. St., 500; s. c, 28 Pac. 
 Rep., 1109. (In an action by a judgment creditor to quiet the title to land 
 fraudulently conveyed, which he had purchased in at execution sale, held, 
 that the coinplaint was fatally defective in failing to allege that the 
 debtor had not other property subject to execution at the time the con- 
 veyance was made.) Wisconsin. — Marston v. Dresden, 76 Wis., 418 ; s. c, 
 45 N. W. Rep., 110. (A complaint describing as separate causes of action 
 five distinct transfers of realty, held to set out but one cause of action.) 
 Marston v. Dresden, supra. (Fraud held to be sufficiently shown by 
 allegations, that defendant owned certain property when the debt was 
 contracted, that he transferred it to his wife vrithout consideration, and 
 that he was heavily in debt when he did so.) 
 
 (4) Exhaustion of legal remedies, issuing of execution, etc. 
 
 Alabama. — Jones v. Smith, 93 Ala., 45.5 ; s. c. 9 So. Rep., 179. (Inabill 
 under the Code, § 3544, providing that a creditor without a lien may 
 file his bill to subject to his debt property fraudulently conveyed, — it is not 
 necessary to allege that there has been an issue and return of execution on 
 the judgment sought to be enforced.) Illinois. — Quinn ii. People, Saline 
 Co., 146 111., 275 ; s. c. 34 N. E. Rep., 14S. (An allegation that executions 
 have been issued on the judgment, and returned unsatisfied, is sufficient to 
 show that complainant has exhausted his legal remedies.) Indiana. — 
 Line v. State, 131 Ind., 468 ; s. c. 30 N. E. Rep,. 708. (Demurrer should be 
 sustained, where complaint fails to show that the alleged fraudulent 
 grantor had no property subject to the execution at the time the suit was 
 commenced.) Kentucky. — Mansfield v. Wilkinson, Ky., 1894, 27 S. W. 
 Rep., 808. (Exhaustion of legal remedies is not shown by an allegation 
 that no transcript of the judgment has been filed, and no execution sued 
 out thereon because the debtor had no land other than that sought to be 
 sold.) Minnesota. — Scanlan v. Murphy, 51 Minn., 586; s. c. 55 N. W. 
 Rep., 799. (Plaintiff need not show that he has followed his legal remedy 
 further than to recover and docket his judgment.) Missouri. — Mullen v. 
 Hewett, 103 Mo., 639 ; s. c. 15 S. W. Rep., 934. (Where it appears that 
 plaintiff has permitted his judgment to become dormant, a demurrer will 
 be sustained ; until plaintiff has sued on the judgment, renewed it, issued 
 execution, etc., he has not exhausted his legal remedies.) New York.— 
 Citizen's Nat. Bank v. Hodges, 80 Hun, 471 ; s. c. 62 St. Rep., 278 ; 80 N. Y. 
 Supp., 445. (Where complaint alleges a fraudulent intent on defendants 
 part, it need not allege that plaintififs were remediless because defendants 
 had disposed of all their property.) Citizen's Nat. Bank v. Hodges, supra. 
 (Held, that it was sufficient to allege, " that thereafter and on the same day 
 
682 Notes or Kecent Cases. 
 
 an execution upon such judgment was duly issued to tlie Siieriff of said 
 S. County, Vftiere said defendants then resided, and yet reside, which exe- 
 cution was thereafter and before the commencement of this action duly 
 returned by said Sheriff unsatisfied, and said judgment still remains 
 wliolly unpaid and unsatisfied ; " and that the kind of execution and 
 against whom it was issued could be sliown by evidence thereunder.) 
 Rhode isZawd.— Stone i;. Westcott, R. I., 1894, 38 Atl. Rep., 663. (De- 
 murrer sustained, where the bill did not allege that the execution had 
 been issued on plaintiff's judgment and returned unsatisfied.) South 
 Carolina.— Mm&r v. Hughes, 33 S. C, 530; s. c. 13 S. E. Rep., 419. (Where 
 complaint seeks to set aside a conveyance for actual moral fraud, com- 
 mitted by collusion of parties thereto, a failure to allege that plaintiff has 
 recovered judgment, and obtained a return of nulla bona on his execution, 
 does not render such complaint demurrable.) S. P. Meinhard v. Young- 
 blood, S.C, 1893, 15 S.E. Rep., 950. Texas.— Meier i;.Waco St. Bank, Texas 
 Civ. App., 1894., 37 S. W. Rep., 881. (A bill is bad on demurrer if it fails 
 to show that the creditor has exhausted all his legal remedies.) United 
 States.— Morrow Shoe Manuf. Co. v. New England Shoe Co., 6 C. C. A.—, 
 57 Fed. Rep., 685. (Bill to set aside a fraudulent conveyance must allege 
 that plaintiff prosecuted his claim to judg-ment and had an execution 
 issued thereon which has been returned unsatisfied ;) Following Scott v. 
 Neely, 140 U.S., 106 ; 11 Supm. C. Rep., 713 ; Gates v. Allen, 149 U.S., 451 ; 
 13 Supm. C. Rep., 883 ; S. P. Kittel v. Augusta, etc., R. Co., 65 Fed. Rep., 
 859. Washington.— O'l^esLry V. DvLYsll, Wash., 1895, 39 Pac. Rep., 163. 
 (The fact that debtor had no other property out of which an execution 
 could be satisfied, lield to be sufficiently shown by an allegation that the 
 land conveyed was all the property the debtor owned and that an execu- 
 tion against him had been returned nulla bona.) Whitehouse v. Point 
 Defiance, etc., R. Co., Wash., 1894, 38 Pac. Rep., 153. (In an action to set 
 aside a fraudulent conveyance as to creditors, an allegation that the 
 vendor has more judgments rendered against it than it can pay suificient- 
 ly shows that it has no other property out of which judgment can be col- 
 lected.) Wisco7isin. — Pienstoff u. Jorges, 86 Wis., 138; s. c. 56 N. W. 
 Rep., 735. (An allegation that on a day named an execution was " in due 
 form " issued against defendant and returned wholly unsatisfied, is suffi- 
 cient to show that a legal execution lias been issued.) Daskam v. Neff, 
 79 Wis., 161 ; s. c. 47 N. W. Rep., 1133. (Complaint must show the ex- 
 haustion of plaintiff's legal remedies, but there need not be a distinct alle- 
 gation that the debtor has no other property tlian tliat sought to be sub- 
 jected.) 
 
 COMPLAINTS m ACTIONS FOE ABSOLUTE OK 
 LIMITED DIVORCE. 
 
 [Principal Case, p. 338, this Vol.] 
 
 Alabama.— Farley v. Farley, Ala., 1893, 10 So. Rep., 646. (Marriage 
 held to be sufficiently stated by an alleg-ation that on a specified day, com- 
 plainant, "whose maiden name was A. B., was lawfully and legally 
 
Complaints in Actions for Absolute or Limited Divorce. 683 
 
 married unto X. Y.") Id. (It is sufficiently certain to allege that " de- 
 fendant has been guilty of adultery with divers parties and persons whose 
 names are unknown to your oratrix.") California. — Forney v. Forney, 
 80Cal.,538; s. c, 23 Pac. Rep., 394. (Complaint held to be sufficient, 
 which alleged in the language of Civ. Code, § 106, that defendant's 
 intemperance was such "as would reasonably inflict a course of great 
 mental anguish " upon plaintiff) ; S. P., Reading ■«. Reading, 96 Cal., 4; 
 s. c, 30 Pac. Rep., 803. Johnson v. Johnson, Cal., 1894, 35 Pac. Rep., 637. 
 (Demurrer overruled, where complaint. alleged that "about three years 
 ago " defendant, without cause, struck plaintiff, and since then, has 
 •continually, whenever they have been together, used vile language to 
 plaintiff.) CoZor ado.— Calvert v. Calvert, 15 Colo., 390; s. c, 34 Pac. 
 Rep., 1043. (Willful desertion without any reasonable cause for the space 
 of one year held to be sufficiently charged by a complaint, alleging that 
 for more than one year, and up to the time of action, defendant con- 
 tinuously absented herself from home and refused to live with plaintiff, 
 and still did so without any fault on plaintiff's part ; and that the desertion 
 became completed while plaintiff was a resident of the state.) Indiana. — 
 Poison V. Poison, Ind., 1895, 39 N. E. Rep., 498. (Complaint held to 
 sufficiently show defendant's conviction of an infamous crime, which 
 alleged that defendant " was convicted of the crime of rape upon a little 
 ^irl, the daughter of plaintiff.") Kansas. — Winterbury v. Winterbury, 
 53 Kan., 406; s. c, 34 Pac. Rep., 971. (The acts relied on to constitute 
 cruelty should be alleged.) Callen v. Callen, 44 Kan., 370; s. c, 34 Pac. 
 Rep., 360. (It is error to overrule a motion to make the petition more 
 definite and certain, where it merely alleges, "that during the time the 
 defendant lived with plaintiff as his wife, he was guilty of gross neglect 
 of duty and extreme cruelty towards the plaintiff.") Minnesota. — Grant 
 f. Grant, 53 Minn., 181 ; s. c, 54 N. W. Rep., 1059. (Facts which would 
 entitle plaintiff to a limited divorce may be joined in a complaint with 
 those justifying an absolute divorce, and relief may be sought thereon in 
 the alternative.) Jlfissoitri.— Collins v. Collins, 53 Mo. App., 470. (Petition 
 should allege plaintifl''s continuous residence in the state for at least a 
 year.) Gant v. Gant, 49 Id., 3. (It is not necessary for the petition to 
 allege that plaintiff is a resident of the county in which the action is 
 brought.) New Jersey.— Lvtiz v. Lutz, N. J. Eq., 1894, 38 Atl. Rep., 315. 
 (Where condonation is interposed as a defense, an amended petition 
 may be filed charging defendant with acts of adultery subsequent to 
 the alleged condonation, and subsequent to the commencement of 
 the action.) Chadwiok v. Chadwick, N. J. Eq., 1894, 28 Atl. Rep., 1051. 
 (Where the only cruelty charged is the use of abusive and filthy 
 language, gross abuse of marital rights is not available.) NewYorh.— 
 Carpenter v. Carpenter, 17 N. Y. Supp., 195; s. c, 43 State Rep., 577. 
 (Plaintiff will not be required to give a bill of particulars where complaint 
 alleges that defendant is living "in adulterous intercourse" with a 
 woman.) Halsted v. Halsted, 7 Misc., 33; s. c, 37 N. Y. Supp., 408. 
 (Additional acts of adultery committed since the commencement of the 
 action cannot be set up by supplemental complaint); S. P. Neiberg v. 
 Neiberg, 31 Abb. N. C, 357; s. c, 8 Misc., 97; 38 N. Y. Supp., 1005. 
 
684 ISToTES OF Recent Cases. 
 
 North Carolina.— O'Gonner v. O'Conner, 109 N. C, 139; s. c, 13 S. E. 
 Rep., 887. (Complaint must explicitly show that the personal violence 
 complained of was not due to any provocation on plaintiff's part.) Sheete 
 V. Sheete, 104 N. C, C31 ; s. c, 10 S. E. Rep., 707. (A husband, seeking a 
 divorce on the ground of adultery, need not allege that it has not been due 
 to his fault, or that he has not himself been guilty thereof.) Jackson v. 
 Jackson, 105 N. C, 433; s. c, 11 S. E. Rep., 173. (Complaint should have- 
 been dismissed, which merely alleged that defendant " became violentlj^ 
 jealous of her, the said plaintiff, and began to treat her cruelly and 
 barbarously so as to endanger her life; frequently at night, when no other 
 person in the house was awake, shaking his fist and threatening to mash 
 her brains out.") Oklahoma. — Ir win t;. Irwin, Okl., 1894, 37Pac.Rep., 548. 
 (Complaint held not to be demurrable, which alleged "that on or about 
 February, 1893, and on divei-s other occasions prior and subsequent there- 
 to, defendant was guilty of cruel and inhuman treatment of the plaintiff 
 in this, to wit, slapped said plaintiff : that for a long time past said 
 defendant cursed and abused said plaintiff by calling her. vile names ; and 
 that defendant fails and refuses and neglects to provide for the plaintiff 
 and her children according to his station in life.") Pennsylvania.- — Melvin 
 V. Melvin, 130 Pa. St., 6 ; s. c, 18 Atl. Rep., 920. (Libelant may be per- 
 mitted to amend her bill of particulars by adding allegations that respond- 
 ant had charged her with infidelity.) Texas. — Morey v. Morey, 83 Tex., 
 308 ; s. c, 17 S. W. Rep., 838. (Petition held to be sufficiently definite and 
 certain, which alleged that plaintiff for more than six months had been a 
 bona fide citizen of the state, and that defendant resided in Massachusetts ; 
 that plaintiff and defendant were married in New Hampshire, and lived 
 together as man and wife in Massachusetts until 1880, when defendant 
 voluntarily, without cause, abandoned plaintiff with the intention of 
 finally separating from him, and continued to live apart from him up to 
 the filing of the petition.) Andrews v. Andrews, 75 Tex., 609; s. u., 13 
 S. W. Rep., 1124. (Demurrer properly sustained, where petition failed to 
 show that there had been a marriage previous to the filing of the petition.) 
 Hanna v. Hanua, 3 Tex. Civ. App., 51 ; s. c, 21 S. W. Rep., 730. (Evidence 
 that defendant communicated a venereal disease on other occasions than 
 those charged in the bill held to be admissible on the ground that it 
 tended to show the extent of defendant's alleged excesses and cruel treat- 
 ment.) Washington. — Burdiok v. Burdick, 7 Wash., 533; s. c, 35 Pac. 
 Rep., 415. (Though the last act of adultery was not alleged to have been. 
 committed within one year before the action, nor that it was unforgiven, 
 if proof of both facts were given, a judgment by default will not be 
 reversed.) Scoland v. Scoland, 4 Wash., 118; s. u., 29 Pac. Rep., 930. 
 (Acts of cruelty occuring subsequent to the commencement of the action 
 may be set up by supplemental complaint.) 
 
Complnints in Actions to Foreclose Mechanic's Liens. 685 
 
 COMPLAINTS IN ACTIONS TO FOEECLOSE 
 MECHANIC'S LIENS. 
 
 [Principal Case, p. 339, tliis Vol.] 
 
 (1) Tlie contract for building or materials, notice to owner of 
 
 sub-contractor's claim, etc. 
 (3) Notice of lien, its filing, etc. 
 (3) The premises affected, etc. 
 
 (1) The contract for building or materials, notice to owner of sub- 
 contractor's claim, etc. 
 
 Alabama. — Lee v. Wimberly, Ala., 1894, 15 So. Rep., 444. (The variance 
 is fatal, where complaint alleges a sale of material to the contractor and 
 •owner, and the evidence shows a sale to the contractor only.) Arkansas. — 
 McFadden v. Stark, 58 Ark., 7; s. o., 33 S. W. Rep., 884. (In an action 
 by a sub-contractor, an allegation of the giving of notice to the owner of 
 the premises of plaintiff's claim is material, and it is error to strike such 
 allegation out of the complaint.) California. — Gaucy v. Morton, 94 Cal., 
 -558; s. c, 29Pac. Rep., 1111. (Under Code Civ. Pro., Sec. 1183, 1184, a 
 material man need not plead the construction contract and its invalidity, 
 but may plead that the goods were sold at the special request of the 
 -owner, the contract and its invalidity being matters of evidence.) La 
 Grille v. Mallard, 90 Cal., 373; s. c, 37 Pac. Rep., 394. {Held, that an 
 allegation, that defendant promised to pay "the reasonable value " of said 
 labor and material, indicated a sufficient consideration to render the con- 
 tract valid.) Booth v. Pendola, 88 Cal., 36 ; s. c, 35 Pac. Rep., 1101. (The 
 value of the materials furnished, and the work done, must be alleged and 
 proved.) West Coast Lumber Co. v. Newkirk, 80 Cal., 375 ; s. c, 33 Pac. 
 Rep., 331. ("Where complaint alleges that the building was constructed 
 with the owner's knowledge, it need not allege that the owner did not 
 give notice that he would not be responsible for the work.) Jewell v. 
 McKay, 83 Cal., 144 ; 28 Pac. Rep., 139. (Complaint is not ambiguous and 
 uncertain because it fails to state the nature of the alterations and repairs 
 ■done, or whether the various lien holders separately or jointly contributed 
 to the work.) Castaguinio v. Ballatta, 83 Cal., 350 ; s. c, 33 Pac. Bep., 137. 
 (Evidence of a special contract and defendant's acceptance of the work 
 •done under it is admissible under the common counts.) Wagner v. Hansen, 
 108 Cal., 104 ; 37 Pac. Rep., 195. (Where complaint and claim of lien state 
 that the work was done for an agreed price, and the evidence shows that 
 no price was agreed upon, the variance is fatal.) Palmer v. Lavigne, 104 
 ■Cal., 30 ; 37 Pac. Rep., 775. (A claim and notice stating that the contract 
 was made with the wife, is inadmissible in evidence, under a complaint 
 Alleging that it was made with both husband and wife.) Cohu v. Wright, 
 89 Cal., 88; s. c, 36 Pac. Rep., 643. (The complaint should directly allege 
 "that the materials were furnished to be used in the construction of the 
 building upon which the lien is claimed.) S. P. Reed v. Norton, 90 Cal., 590; 
 ■s. c, 36 Pac. Rep., 767. Russ Lumber & Mill Co. v. Garrrettson, 87 Cal., 589; 
 ;s. c, 35 Pac. Rep., 747. (It is sufficient for a material man to aver, that 
 
Notes of Recent Cases. 
 
 due notice was given tlie owner of the amount, and value of the materials 
 to be furnished contractor.) Colorado. — Arkansas, etc., Canal Co. v. 
 Nelson, 4 Colo. App., 438; s. c. 36 Pac. Rep., 307. (Complaint held to be 
 insufficient to sustain a judgment by default, which merely alleged an in- 
 debtedness " for work and labor performed by the plaintiff along the line 
 of, and upon, defendant's canal," without otherwise specifying the nature 
 of the work.) Ditto v. Jackson, 8 Colo. App., 281 ; s. c, 33 Pac. Rep., 81. 
 (Demurrer to a complaint of a sub-contractor overruled, where it con- 
 tained averments implying that the owner was indebted to the principal 
 contractor.) Indiana.- — Adamson v. Shaner, 3 Ind. App., 448; s. c, 29 
 N. E. Rep., 944. (Demurrer overi'uled, where sub-contractor's complaint 
 alleged that the contractors employed him to plaster the building, etc., 
 which he did, and that it was worth a specifled sum.) Adamson v. 
 Shaner, supra. (Notice of sub-contractor to owner, that he will hold him 
 liable must be filed with complaint.) Leeper v. Myers, 10 Ind. App., 314 ; 
 s. c, 37 N. E. Rep., 1070. (Complaint alleging that plaintiff sold material 
 "to be used" in the erection of a certain house, that they notified 
 defendant that they " were furnishing " the material for the house, and 
 that a bill of particulars of the material "so furnished and used," is 
 filed, — sufficiently alleges that the material was used m the house.) 
 Kansas. — Jarvis Conklin Mortg. Trust Co. v. Sutton, 46 Kan., 166 ; 
 s. c, 26 Pac. Rep., 406. (Petition held to sufficiently show that the 
 materials were furnished under a contract with the owner, where such 
 fact only appeared from the statement of lien attached to the petition.) 
 Massachusetts. — Batchelder v. Hutchinson, 161 Mass., 463 ; s. c, 37 N. E. 
 Rep., 453. (Petition held to be bad, which failed to state that the person, 
 other than the owner, who made the agreement with plaintiff was 
 authorized by the owner to make it.) Missouri. — Rail v. McChary, 45 
 Mo. App., 365. (Petition held not to be fatally defective, because it failed 
 to allege that the material went into the building, where it does allege 
 that the materials were furnished the owner for any building, etc., on the 
 property.) Grace v. Nesbit, Mo., 1893, 18 S. W. Rep., 1118. (Omission to 
 allege that the materials were used in the construction of the building, 
 held, to be cured by an allegation in the answer that they were so used.) 
 Nebraska. — Pomeroy v. White Lake Lumber Co., 33 Neb., 340; s. o., 49 
 N. W. Rep., 1131. {Held, that the fact that the materials furnished were 
 used in the construction of the building was to be inferred from the 
 allegation, that " in pursuance of said verbal contract the plaintiff 
 furnished said material to the said defendant W. for the erection of said 
 house," on or between specifled dates, for a sum named.) Stewart-Chute 
 Lumber Co. v. Missouri Pac. Lumber Co., 38 Neb., 39; s. c, 44 N. W. 
 Rep., 47. {Held, that one who furnished material for the construction of a 
 railway to a sub-contractor, need not allege, or prove, the actual applica- 
 tion of such material to the purpose intended.) New York. — Breuchaud 
 V. Mayor, etc., of N. Y., 61 Hun, 564 ; s. c, 41 State Rep., 158 ; 16 N. Y. 
 Supp., 347. (A complaint setting up a mechanic's lien against N. Y. City 
 for labor or materials furnished a contractor, must allege the terms of the 
 contract between the contractor and city, and show the existence of cause 
 of action thereon in favor of the contractor, at the time when the plaintiff 
 
Complaints in Actions to Foreclose Mechanic's Liens. 687 
 
 sets up his lien.) Kruger v. Bi-aender, 3 Misc., 275; s. c, 23 N. Y. Supp., 
 324. (Variance held to be immaterial, where it was alleged that plaintiff 
 furnished materials under a joint contract with contractor and owner 
 and the proof showed only a several contract with the owner.) Ross v 
 Simon, 30 State Rep., 545; s. c, 9 N. Y. Supp., 536. {Held, that a 
 demurrer should not be sustained to a complaint, which showed that 
 plaintiff did part of the work on a building erected by a lessee, and that 
 the building was erected with the owner's knowledge and consent, with- 
 out setting forth how or under what circumstances, the consent of the 
 owner was given.) Pennsylvania. — Bohem v. Seabury, 141 Pa., 594 ; s. c, 
 21 Atl. Rep., 674. (A mechanic's lien cannot be sustained for a portion of 
 the work called for by an entire contract, there being no averment of the 
 completion of the contract, or that the owner had prevented the com- 
 pletion.) rea:;as.— Ricker v. Schadt, 5 Tex. Civ. App., 460 ; s. c, 23 S. W. 
 Rep., 907. (The action of a sub-contractor cannot be maintained, where 
 his petition shows that at the time he gave the owner notice of his claim 
 the latter owed nothing to the contractor, who had abandoned his work.) 
 Uia/i.— Teahen v. Nelson, 6 Utah, 363; s. c, 23 Pac. Rep., 764. (Tlie 
 complaint of a snb-coutractor should allege the amount due the con- 
 tractor, less any payment made for labor and materials furnished before 
 plaintiff's lien attached.) 
 
 (2) Notice of lien, its filing, etc. 
 Alabama. — Cook v. Rome Brick Co., Ala., 1893, 12 So. Rep., 918. (Cora- 
 plaint is bad if it fails to show that the debt accrued within four months 
 prior to the filing of the statement of lien.) Colorado. — Hanna v. Colo- 
 rado Sav. Bk., 3 Colo. App., 28 ; s. c, 31 Pac. Rep., 1020. (Demurrer sus- 
 tained to a complaint setting out a defective statement of claim.) Illinois. 
 — Boals V. Intrup, 40 111. App., 62. (Demurrer sustained, where petition 
 failed to allege the filing of statement of lieu.) Rittenhouse ». Sable, 43 
 111. App., 558. (Bill held to be demurrable, which showed on its face that 
 the lien was not filed within the time prescribed by statute, and which did 
 not allege any excuse for not filing it in time.) Indiana. — Hubbard v. 
 Moore, 132 Ind., 178 ; s. c, 31 N. E. Rep., 534. (Where the bill of particu- 
 lars showed that some of the items were furnished less than 60 days before 
 the notice of lien was filed, held that complaint was sufficient after judg- 
 ment, though it failed to allege that notice was filed within 60 days after 
 the materials were furnished.) Minnesota. — Hurlbert v. New Ulm Basket 
 Wks., 47 Minn., 81; s. c, 49 N. W. Rep., 531. (Demurrer sustained, because 
 complaint failed to show that the lien was filed within the period limited 
 by statute therefor); S. P., J. D. Morgan Manuf. Co. v. Clarke, Minn., 
 1894, 61 N. W. Rep., 556. Glass v. St. Paul Carriage, etc., Co., 43 Minn., 228; 
 s. c, 45 N. W. Rep., 150. (As against a motion to strike out averment, 
 it was held suflScient to allege, that, for the purpose of securing a lien on 
 the premises, plaintiffs duly made an account in writing of the items of 
 matei-ials sold, and of the value of the same, to which oath was duly made 
 on a certain day, and that the same, with a copy of the written contract, 
 was duly filed and recorded, on a day named, in the office of the register of 
 deeds for the county in which the premises were situated.) Missouri. — 
 
■6SS NoThs OF Recent Cases. 
 
 Tvvitchell v. Devens, 45 Mo. App., 2ii'i. (Plaintiff need not allege or prove 
 that he commenced his suit within 90 days after filing- the lien. He should 
 prove the time o£ filing' the lien, and tlie petition will show its own filing.) 
 McDermott v. Claas, 104 Mo. 14; s. c, 15 S. W. Eep., 995. (A sub-con- 
 tractor's petition stated who the contractor was; that he was indebted to 
 plaintiff; that plaintiff notified the owner that he claimed a lien for such 
 Indebtedness, stating the amount and when it was due ; and that he 
 afterwards filed a just and true account of the demand so due him. Held, 
 that petition sufficiently alleged the filing of account in accordance with 
 statute.) New Mexico. — Minor t). Marshall, N. Mex., 1891, 27 Pac. Rep., 
 481. (Demurrer sustained, where bill set out a copy of notice of claim 
 which was insufficient on its face.) New York. — Schillinger, etc.. Asphalt 
 Co. V. Arnott, 14 N. Y. Supp., 336. (Notice of lien in conformity with 
 statute must be shown.) Oregon. — Pilz v. Killingsworth, 20 Ore., 432- 
 s. c, 26 Pac. Rep., 305. (Demurrer to complaint sustained, which merely 
 alleged tliat the notice of lien was duly made out and filed ; the complaint 
 should affirmatively show that the notice contained all the essential pro- 
 visions required by statute.) South Carolina. — Waring v. Miller Batting 
 & Manuf. Co., 1892, 15 S. E. Rep., 133. (Plaintiff may be allowed to amend 
 his petition so as to allege that tlie statement of lien was properly filed.) 
 South Dakota. — Rust-Owen Lumber Co. v. Fitch, 3 S. D., 313; s. c, 53 
 N. W. Eep., 879. (An allegation that the verified account required by 
 statute was filed on a specified date, taken in connection with allegations 
 of the date when the materials were delivered, held, to sufficiently show 
 that the account was filed within the time prescribed.) 
 
 (3) The premises affected, etc. 
 California. — Willamette Steam Mills Co. v. Kremer, 94 Cal., 305 ; s. c, 
 39 Pac. Rep. 633. (The lien cannot be enforced against laud, other than 
 that occupied by building or the ground that it is convenient to the use 
 thereof, unless the complaint contains appropriate allegations.) Willam- 
 ette Steam Mills Co. v. Kremer, supra. (Where complaint alleges that 
 the building was erected on lot 6 and proof shows it to have been erected 
 partly on lots 6 and 7, sale can only be decreed as to lot 6.) Florida. — 
 St. Johns, etc., R. Co. v. Bartola, 38 Fla., 82 ; s. c, 9 So. Eep., 853. (It is 
 error to render a decree for a larger sum than is alleged in the bill to be 
 due, and specially asked for in the prayer for relief.) Michiga7i. — Steel 
 Brick-Siding Co. v. Muskegon Mach., ete. Co., 98 Mich., 616; s. c, 57 
 N. W. Rep., 817. (Claims and interests of defendants held to be suffi- 
 ciently stated by allegations, that a receiver for the principal defendant 
 had been appointed, and that such receiver claimed an interest in the 
 premises ; and that the other defendants appeared from the records in the 
 office of the register of deeds, to have, or to claim, rights in the premises, 
 as subsequent purchasers, mortgagees, lien claimants, or otherwise.) New 
 Mexico.— Post v. Miles, N. Mex., 1893, 34 Pac. Eep., 586. (Bill held not 
 to be demurrable, because it showed that the improvement belonged to 
 one person and the land to others, where all were made parties.) Oregon. 
 — Joshua Hendy Mach. Works v. Pacific Cable Coast Co., 34 Ore., 153; 
 s. c, 33 Pac, Eep., 403. (If the notice of lien introduced does not describe 
 
Complaints in Actions to Foreclose Mechanics Liens. 689 
 
 the same property as that set forth in the complaint, the variance is fatal.) 
 Bhode Island.— Spencer v. Doherty, 17 R. I., 89; s. c, 20 Atl. Bep., 
 232. (A petition is defective, but may be amended, which fails to allege 
 the particulars of petitioner's account, and while it prays a lien against the 
 entire property, it admits that defendant is only owner of an undivided 
 interest.) Texas.— Lignoski v. Crooker, Tex. Civ. App., 1893, 32 S. W. 
 Rep., 774. (Defendant's ownership of the property described, held to be 
 sufficiently stated by an allegation that plaintiffs agreed to furnish de- 
 fendants with the labor and materials necessary in the construction of, the 
 building " on the property of defendants.") 
 
 44 
 
TABLE OF CASES REPORTED IN THIS COLLECTIOK. 
 
 [See Analytical Arrangement of Cases at the beginning of the Volume.] 
 
 Adirondack Company, Catlin v 119 
 
 Agnew V. Brooklyn City Railroad (Jo 186 
 
 Albaoy & Rensselaer Co v. Lundberg 16 
 
 Allen V. Patterson 1 
 
 American Opera Co., Parry v 40 
 
 Anderson v. Horn 593 
 
 Aneorge v. Kaiser 535 
 
 Aroneon, Lassen v 600 
 
 Atkinson v. Collins 32 
 
 Badean V. Niles 582 
 
 Baldwin, Clason v S81 
 
 Bank of British North Am. v. Delafield. . . 44 
 Baumiller v. Workingman's Co-operative 
 
 A ssociation 489 
 
 Beecher, Victory Webb Printing, etc., Co. v. 380 
 
 Bennett, Fleiechmann v 251 
 
 Benson, Goddard v 408 
 
 Berney v. Drexel 229 
 
 Black, Hosley v 37 
 
 Blake, Wallace v 486 
 
 Blanc V. Blanc 333 
 
 Blanchard v. Jefferson 545 
 
 Blank v. Hartshorn 50 
 
 Boebm, Sherman v 449 
 
 Bogert, Townsend v 311 
 
 Bostwick V. Van Voorhis 103 
 
 Bower, Coulter v 301 
 
 Brisbane, Considerant v 31 
 
 Bromell & Barkley Printing Co., Mac- 
 
 anley v 428 
 
 Brooklyn City Railroad Co., Agnew v 186 
 
 Brown v. Champlin , 100 
 
 Brown, Mapes v 592 
 
 Browne, Winchester v 533 
 
 Browning, Farley v 29 
 
 Buckel V. Siiss 272 
 
 Bull, McKyring v 450 
 
 Butler V. Mann 572 
 
 ■Caldwell v. Raymond 358 
 
 Camraan, Graham v 91 
 
 Carnwright v. Gray 58 
 
 ■Carpenter v. Manhattan Life Ins. Co 514 
 
 Carpentier, Chemical National Bank v — 77 
 
 Caehman v, Reynolds 5S9 
 
 Caesard, Tamisier v 494 
 
 Catlin V. Adirondack Company 119 
 
 Champlin, Brown v 100 
 
 •Chapman v. Forbes 179 
 
 Chemical National Bank v. Carpentier — 77 
 
 City of Buffalo v. Holloway 193 
 
 City of Buffalo, Reining v 217 
 
 Clark V. Dillon 414 
 
 •Clason V. Baldwin 381 
 
 CocliToft, Drake v 431 
 
 ■Cohu V. Hussou 68 
 
 Coit V. Planer 133 
 
 Colby, Dodge v 362 
 
 Collins, Atkinson v 33 
 
 Conklin, Everitt v 168 
 
 ■Conkling v. Gandall "^2 
 
 Considerant v. Brisbane 21 
 
 Cook V. Warren 78 
 
 Cordier v. Thompson 144 
 
 Coming V. Roosevelt 410 
 
 ■Coulter V. Bower 301 
 
 Cragin v. Lovell 367 
 
 ■Crane v. Powell 477 
 
 Crine, President, etc. of Union Bank v. . . 506 
 ■Crocker, Gassett v 584 
 
 PAGE 
 
 Dalton V. Vanderveer 294 
 
 Dalzell V. The Fahys Watch Case Co 122 
 
 Davis V. N. Y., Lake Erie & Western R. 
 
 R.Co 196 
 
 Delafield, Bank of British North Am. v.. . 44 
 Democratic General Committee, Kings 
 
 County, McKane v 597 
 
 Denton, Freer v 155 
 
 Deyo V. Morss 584 
 
 Dillon, Clark v 414 
 
 Dimmick, Mayor, etc, of New York v 233 
 
 Dodge V. Colby 36i 
 
 Donnell, Phoenix Bank v 403 
 
 Donner v. Ogilvie 187 
 
 Downing, Spear t 52 
 
 Drake v. Cockroft 431 
 
 Drake, White v 493 
 
 Draper v. The Chase Manufacturing Co. . . 88 
 
 Drew, Nichols v 375 
 
 Drexel, Berney v 329 
 
 Dwight V. Germania Life Ins. Co 559 
 
 Eaton, iselson v 21 
 
 Eggers V. Klussmann 159 
 
 Ehrgott V. Mayor, etc., of New York 203 
 
 Eighth Avenue R. R. Co., Traver v 494 
 
 Ely, Roberts v 175 
 
 Ensign v. Nelson 287 
 
 Erie Railway Co., Thompson v 434 
 
 Esdaile v. Wuytack 47 
 
 Everitt v. Conklin 168 
 
 Farley v. Browning , . 29 
 
 Fellows, Gunn v 369 
 
 First National Bank, South wick v 154 
 
 Fisher v. Rankin 204 
 
 Fleischman v. Stern 430 
 
 Fleiechmann v. Bennett 251 
 
 Fletcher, Ottman v. 543 
 
 Foley, Whitman v 474 
 
 Forbes, Chapman v 179 
 
 Fowler, Hubbell v 525 
 
 Fowler v. N. Y. Indemnity Ins. Co 94 
 
 Fredericks v. Taylor 538 
 
 Freer v. Denton 155 
 
 GaluBha, Lamming v 207 
 
 Gandall, Conkling y 72 
 
 Garrison, Marie v 383 
 
 Gassett v. Crocker 584 
 
 Gebhard v. Parker 579 
 
 Gerdes, Halsey v 280 
 
 Germania Life Ins. Co., Dwight v 559 
 
 Gfroehner v. McCarty 86 
 
 Gil bert v. Pritchard 268 
 
 Gilbert v. York 347 
 
 Goddard v. Benson 408 
 
 Goff V. Star Printing Co 537 
 
 Goings V. Patten. 577 
 
 Golden Gate Co . v. Jackson 26 
 
 Golder, Johnson v 394 
 
 Graham v. Camman gi 
 
 Grange, Rice v 532 
 
 Gray, Carnwright v 58 
 
 Griswold, Speoce v 595 
 
 Gumb v. Twenty-third St. R. R. Co 203 
 
 Gunn V. Fellows 269 
 
 Guy, Langdon v 264 
 
 Halbert, Thompson v 5OO 
 
 Halsey v. Gerdes 280 
 
 Harmon v. Vanderbilt Hotel Co 407 
 
 Hartshorn, Blank v 50 
 
 691 
 
692 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Hatton, Mussinan v 587 
 
 Hawxiiurat V. Mayor, etc, of New York,, 225 
 
 Hernandez v. Stilwell 138 
 
 Hoboken Beef Co. v. Loeffel 48 
 
 Hoff V. Pentz 576 
 
 Hoiloway, City of Buffalo v 193 
 
 Holmes, Smith v 399 
 
 Hopper V. Town of Covington 106 
 
 Horn, Anderaon v 593 
 
 Hosley v. Black 37 
 
 Hubbell V. Fowler 535 
 
 Hurliman V. Seckendorf 129 
 
 Hueiou, Cohu v 68 
 
 Hutchinson, Sharp v , 13 
 
 Jackson, Golden Gate Co. v 26 
 
 Jackson Architectural Iron Works, Lip- 
 man V 516 
 
 Jeffereon, Blanchard v 545 
 
 Johnson v. Golder 394 
 
 Jones, Milbank v 483 
 
 Kain v. Larkin 322 
 
 Kaiser, Ansorge v 535 
 
 Keteltas v. Myere 64 
 
 Kitaell, Mack v 510 
 
 Klussmann, Eggers v 159 
 
 Knapp V. Roche 469 
 
 Krower v. Reynolds 161 
 
 Lake, Sheldon v 241 
 
 Lamming v. Galusha 207 
 
 Langdon v. Guy 264 
 
 Larkin, Kain v 322 
 
 Lasseu v. Aronson 600 
 
 Lee, Wheeiock v 352 
 
 Lent V. New York, Massachusetts Rail- 
 way Comp a ny 474 
 
 Lindblom, Williams v 292 
 
 Lipman v. Jackson Architectural Iron 
 
 Works 516 
 
 Lloyd, Quinn v 461 
 
 Loeffel, Hoboken Beef Co. v 48 
 
 Lovell, Cragin v 367 
 
 Ludgate Hill Steamship Co., Reubens v.. . 540 
 
 Lundberg, Albany & Rensselaer Co. v 16 
 
 McCarty, Gfroehner v 86 
 
 Macauley v. Bromell & Berkley Printing 
 
 Company 428 
 
 McConnell, Reed v 149 
 
 Mack V. Kitsell 510 
 
 McKane v. Democratic General Commit- 
 tee, Kings County 597 
 
 McKyriDg V. Bull 450 
 
 McRoberts v. Pooley 601 
 
 Manhattan Life Ins. Co., Carpenter v 514 
 
 Mann, Butler v 572 
 
 Mapes V. Brown 592 
 
 Marie v. Garrison 383 
 
 Martin, Pahquioque Bank v 83 
 
 Masterson v. Townehend 395 
 
 Mayor, etc., of New York v. Dimmick . . . 223 
 
 Mayor, etc., of New York, Ehrgott v 202 
 
 Mayor, etc., of New York, Hawxburst v. . 225 
 
 Mechanics' Bank v. Straiten 84 
 
 Melvin v. Wood 574 
 
 Milbank v. Jones 483 
 
 Milliken v. Western Union Tel. Co 110 
 
 MorsB, Deyo v 584 
 
 Munzinger v. The Courier Co 599 
 
 Mussinan v. Hatton 587 
 
 Myers, Keteltas v 64 
 
 Nash, Whatling v 267 
 
 Nelson v. Eaton 21 
 
 Nelson, Ensign v 287 
 
 Nelson, Thomas v 12G 
 
 N. Y. Indemnity Ins. Co., Fowler v 94 
 
 New York, Lake Erie & Western R. R. 
 
 Co., Davis V 396 
 
 New York, Lake Erie & Western R. R, 
 
 Co. V. Robinson 527 
 
 New York, Massachusetts Railway Com- 
 pany, Lent V 474 
 
 Nichols V. Drew 375 
 
 ■^ PAGK 
 
 Niles, Badeau v 582 
 
 Nones v. The Hope Mutual Life Ins. Co. , 401 
 
 Ogilvie, Donner v 187 
 
 Oceanic Steam Nav. Co., Robinson v 356 
 
 Otis v. Shants 51» 
 
 Ottman v. Fletcher 54a 
 
 Pahquioque Bank v. Martin 83 
 
 Palmer v. Smedley 67 
 
 Parker, Gebhard v , 579 
 
 Parry v. American Opera Co 40 
 
 Parsons, Sprague v 263 
 
 Patten, Goings v 577 
 
 Patterson, Allen v 1 
 
 Pentz, Hoff v 57t> 
 
 People V. Tweed 549 
 
 Perhacs, Whitner v 239 
 
 Phoenix Bank v. Donnell 403 
 
 Planer, Coit v 133 
 
 Policy v. Wilkisson 373 
 
 Pooley, McRoberts v 001 
 
 Pope V. Terre Haute Car & Mfg. Co 2? 
 
 Powell, Crane v 477 
 
 President, etc., of Union Bank v. Crine... 506 
 
 Priichard, Gilbert v 26& 
 
 Quinn v. Lloyd 461 
 
 Rankin, Fisher v 204 
 
 Raymond, Caldwell v 25S 
 
 Reed v. McConnell 149 
 
 Reed v. Stryker 328 
 
 Reining v. City of Buffalo 217 
 
 Reubens v Ludgate Hill Steamship Co. . . 540 
 
 Reynolds, Cashman v 589- 
 
 Reynolds, Krower v 161 
 
 Rice v. Grange 522 
 
 Riley v. Stern 596 
 
 Roberts v. Ely 175- 
 
 Robinson, New York, Lake Erie and 
 
 Western R. R. Co. v 527 
 
 Robinson v. Oceanic Steam Nav. Co 356 
 
 Roche, EJaapp v 469 
 
 Roosevelt, Coming v 410^ 
 
 Ross V. Simon 339 
 
 Rothschild v. Whitman 244 
 
 Rowell, Schencke v 32 
 
 Schencke v. Rowell 32 
 
 Schofield V. Whitelegge 277 
 
 Seckendorf, Hurliman v 129 
 
 Secor V. Sturgis 5 
 
 Shants, Otis v 519 
 
 Sharp V. Hutchinson 12 
 
 Sheldon v. Lake 241 
 
 Sherman v. Boehm 449 
 
 Sichel, Wiegand v 497 
 
 Simmons v. Simmons 503 
 
 Simon, Roes v 339 
 
 Smedley, Palmer v 67 
 
 Smith V. Holmes 399 
 
 Smith, White v 466 
 
 Southwick V. First National Bank 154 
 
 Spear v. Downing 52 
 
 Spence v. Griswold 595 
 
 Sprague v. Parsons 263 
 
 Sprague v. Sprague 488 
 
 Star Printing Co., Goff v 537 
 
 Stern, Fleischman v 430 
 
 Stern, Riley v 59& 
 
 Stilwell, Hernandez v 138 
 
 Straiton, Mechanics' Bank v 84 
 
 Stryker, Reed v 328 
 
 Sturgis, Secor v 5 
 
 Suss^ Buckel v 272 
 
 Tamisier v. Cassard 494 
 
 Taylor, Fredericks v 538 
 
 Terre Haute Car & Mfg. Co, Pope v 22 
 
 The Chase Manufacturing Co., Draper v. . 88 
 
 The Courier Co., Munzinger v 600 
 
 The Fahys Watch Case Co., Dalzell v 122 
 
 The Granite Bank, Walker v 492 
 
 The Hope Mutual Life Ins. Co., Nones v. . 401 
 
 Thomas v. Nelson 126 
 
 Thompson, Cordier v 144 
 
TABLE OF OASES. 
 
 693 
 
 PAGK 
 
 Thompson v. Erie Railway Co 434 
 
 Thompson v. Halbert 500 
 
 Town of Covington, Hopper v 106 
 
 Towneend v Bogert 311 
 
 Townshend, Masterson v 395 
 
 Traver v. Eighth Avenue K. E. Co 494 
 
 Tweed, People v 549 
 
 Twenty-third St. E. E. Co., Gumb v 203 
 
 Vauderbilt Hotel Co., Harmon v 407 
 
 Vanderveer, Dalton v 294 
 
 Van Voorhis, Bostwick v 103 
 
 "Victory Webb Printing, etc.Co.,v.Beecher. 380 
 
 Walker v. The Granite Bank 492 
 
 Wallace v. Blake 486 
 
 Ward V. Ward 683 
 
 Warren, Cook v 78 
 
 Western Union Tel. Co., Milliken v 110 
 
 PAOB 
 
 Whatling v. Nash 267 
 
 Wheelock v. Lee 353 
 
 White V. Drake 493 
 
 White V. Smith 468 
 
 Whitelegge, Schofleld v 277 
 
 Whitman v. Foley 474 
 
 Whitman, Rothschild v 244 
 
 Whitner v. Perhacs 239 
 
 Wiegand v. Sichel 497 
 
 Wilkisson, Polley v 373 
 
 Williams v. Lindblom 293 
 
 Winchester v. Browne. 533 
 
 Wood, Melvin v 574 
 
 Workingman's Co-operative Association, 
 
 Baamiller v 489 
 
 Wuytack, Esdaile v 47 
 
 York, Gilbert v 347 
 
II^^DEX. 
 
 [The references are to pages. In many cases the page mentioned is bnt the beginning of a 
 series of cases on the subject.] 
 
 ACCEPTANCE, of building, as 
 waiver of architect's certifi- 
 cate 32 
 ACCOMMODATION ' PAPER^ 
 see Bills, Notes and Checks. 
 account, when items of, con- 
 sidered an entire demand or 
 
 right of action 5 
 
 ACCOUNTING, action for.... 
 
 387, 293, 294 
 in action for money received. 175 
 action for, distinguished from 
 
 one on account stated 545 
 
 note on distinction between 
 action on an account and 
 
 action for an 548 
 
 ACCOUNT STATED, action on, 
 distinguished from one for 
 
 accounting 545 
 
 alteration of 576 
 
 ADEQUATE REMEDY AT 
 LAW, not necessary to be 
 
 averred 294 
 
 ADMINISTRATOR, allegations 
 
 of plaintiff's appointment as 144 
 Is a non-resident if so individ- 
 ually 356 
 
 see Executors, etc. 
 ADMISSION, Iti pleadings ef- 
 fectual to limit the issues.. 406 
 in answer curing defect in the 
 
 complaint 68 
 
 by not expressly denying, by 
 
 giving a different version.. 430 
 of work done without admit- 
 ting value 39 
 
 ADVERSE CLAIMANT, bring- 
 ing In to common law ac- 
 tion... 179 
 
 AFFIDAVITS, to strike out 
 
 verified answer 434, 449 
 
 AFFIRMATIVE RELIEF, 
 counterclaim not demand- 
 ing . 519 
 
 AGENCY, known agent as 
 
 trustee of express trust. ... 16 
 AGGRAVATION, allegation of 
 Injury to personal property 
 as aggravation, in action 
 for trespass to real prop- 
 erty 367, 368, 369 
 
 AIDER, of Incomplete causes of 
 action by a general clause 
 made applicable to all 380 
 
 of complaint by answer 68 
 
 of answer by complaint 367 
 
 ALTERNATIVE ALLEGA- 
 TION, as to holding in own 
 interest or in trust 383 
 
 of circumstances under which 
 money was paid to plaint- 
 iff's use 168 
 
 AMENDMENT, of course, ex- 
 tent of right to an 584 
 
 of course, right of does not 
 extend to substitute answer 
 for demurrer 589 
 
 of course, authorizes but one. 587 
 
 at trial, change of cause of 
 action not allowable 154, 196 
 
 to conform pleading to proof, 
 when properly allowed 136 
 
 when improperly allowed 149 
 
 scope of power of court to 
 allow 584 
 
 refusal to allow an, discre- 
 tionai-y 532 
 
 distinction between power of 
 court to allow, before, at, 
 and after trial _ 584 
 
 not allowable to change the 
 ground of action 204 
 
 allowed on appeal. 68 
 
 of complaint to change action 
 from equitable to legal 394 
 
 of complaint requires amend- 
 ment of answer 492 
 
 of pleading framed to recover 
 on account stated 577 
 
 in case of misnomer 494 
 
 as to name of party in me- 
 chanic's lien 595 
 
 in case of association 597 
 
 to bill of particulars 575 
 
 excuse of non-performance 
 when Inadmissible under al- 
 legation of performance... 37 
 ANSWER, function of demur- 
 rer and of answer distin- 
 guished... 589 
 
 service of, as amendment to 
 a demurrer 589 
 
 695 
 
696 
 
 INDEX. 
 
 As^v^'ER.— {Continued). page 
 
 must traverse facts, not legal 
 conclusions ._ 450 
 
 setting up partial defence and 
 not stating it to be such 503 
 
 demand of specific relief in 
 answer. _ __ 506 
 
 want of consideration inter- 
 posed by 488 
 
 action prematurely brought. . 489 
 
 setting up failure of considera- 
 tion 532 
 
 setting up statute of frauds 
 by _ 477 
 
 putting in issue corporate ex- 
 istence ___ 491 
 
 alleging plaintiff not real 
 party in interest.- 493 
 
 irrelevancy of, motion to 
 strike out 434 
 
 sham denial in, stricken out. 449 
 
 setting up irregularity in 
 service of summons, frivo- 
 lous 401 
 
 striking out verified answer 
 on affidavits showing it to 
 be false 434, 449 
 
 aided by matter in complaint 
 and express reference there- 
 to. 367 
 
 admission in, curing defect 
 in complaint 68, 377 
 
 extension of time to answer, 
 effect of reversal of the or- 
 der granting it, on appeal. 549 
 
 privilege as witness, as excuse 
 for not verifying answer... 538 
 ANTICIPATED DEFENCE, 
 
 pleading in avoidance of. . . 531 
 APPEAL, questions not raised 
 
 at trial not considered on.. 474 
 
 objection to inappropriate 
 judgment available on, 
 without specific request at 
 trial __ 393 
 
 discretionary orders 538 
 
 order of bill of particulars, 
 discretionary with court 
 and not reviewable on ap. 
 peal 549 
 
 defects remediable if pointed 
 out at the trial, not avail- 
 able on appeal... 494 
 
 from dismissal of complaint 
 at opening of trial, raises 
 same questions as demurrer 
 
 for insufficiency 333 
 
 APPEARANCE, waiverof right 
 
 to object by. 353 
 
 leave to witlidraw if put in 
 while ignorant of lack of 
 jurisdiction 600 
 
 PAGE 
 
 ARCHITECT'S CERTIFI- 
 CATE, when required by 
 contract __ 154 
 
 ARGUMENTATIVENESS, not 
 demurrable 110, 383 
 
 ARREST, when authorized in 
 
 an equitable action _. 387 
 
 grounds for, in an action on 
 
 contract 48 
 
 in action for non-delivery of 
 goods intrusted to a com- 
 mon cai-rier 119 
 
 action for illegal arrest 344 
 
 ASSAULT AND BATTERY, 
 action for, joined with an 
 action for trespass-364, 368, 369 
 
 ASSIGNEE, action by assignee 
 
 of a fire policy 94 
 
 action by assignee of a con- 
 tract for specific perform- 
 ance 410 
 
 for benefit of creditors, action 
 by, for price of goods sold, 
 equitable defence 510 
 
 ASSIGNMENT, of a fire poKcy 
 before loss, to one having 
 
 no insurable interest 94 
 
 by firm', of a claim held 
 against one of its members 
 
 for a loan made to him 44 
 
 of lease, when inferred 133 
 
 ASSIGNMENT op BREACHES, 
 on bond other than for pay- 
 ment of money 103 
 
 ASSOCIATION, actions by and 
 
 against 491 
 
 amending to substitute name 
 of officer for associate name 597 
 
 ASSUMPSIT, action of, distin- 
 guished from, action of 
 
 debt 179 
 
 distinguished from tort in ac- 
 tion against common car- 
 rier for non-delivery of 
 goods intrusted to him 119 
 
 ATTACHMENT, in action on 
 contract, plaintiff must 
 aver and prove specific sum 
 
 due 36 
 
 levy under void attachment. 363 
 action to reach deposit in lieu 
 ofbail 548 
 
 AUDITING, by public officers 
 of false and exaggerated 
 claims against the city 549 
 
 AUTHORITY, of municipality 
 to issue bonds ; when must 
 be alleged in action on said 
 bonds 106 
 
 AVOIDANCE, of an anticipa- 
 ted defence, pleading in 531 
 
INDEX. 
 
 69Y 
 
 PAGE 
 
 mew matter in avoidance not 
 let in under general denial 
 
 450, 461 
 
 ■defence by way of. allegation 
 of compromise 414 
 
 the defence of statute of 
 frauds in nature of 477 
 
 matter in, not admissible un- 
 der a reply setting up a de- 
 nial merely 533 
 
 BALANCE, action to recover a, 
 distinguished from action 
 on original contract 461 
 
 see Payment. 
 BANKS AND BANKING, 
 action by banli receiver 
 against ofScer making il- 
 legal loans 469 
 
 BEARER, negotiable paper pay- 
 able to 84 
 
 BILLS,NOTES AND CHECKS, 
 
 negotiable words 84 
 
 requisites of a promissory note 58 
 
 instrument for payment of 
 money after death held a 
 promissory note. __ 58 
 
 instrument not a promissory 
 note __ 58 
 
 note on actions on paper pay- 
 able on demand _ 90 
 
 short mode of pleading on an 
 instrument for payment of 
 money only ,___ 64, 68 
 
 what is a suificient allegation 
 of presentment and demand 
 as against demurrer 77 
 
 necessity of demand and no- 
 tice in order to charge an 
 indorser _ --73, 78 
 
 what is sufficient allegation 
 of transfer, where it is pay- 
 able to bearer .- - 84 
 
 action against accommoda- 
 tion maker after discharge 
 of endorser ; effect of no- 
 tice to bona fide holder 506 
 
 answer of accommodation 
 note; legal defense 506 
 
 accommodation paper, equi- 
 table right of indemnity 
 as between maker and 
 payee.- --- 510 
 
 action to recover money paid 
 to take up accommodation 
 note -- 168 
 
 action on promissory note of 
 a corporation - 403 
 
 wJien payable to fictitious 
 payees _- 84 
 
 action on promissory note. 
 
 PAGE 
 
 answer giving a different 
 version, no denial 430 
 
 demand of specific relief in 
 the answer, surrender, can- 
 cellation -- 506 
 
 action for conversion of a 
 promissory note 500 
 
 action on an exchanged note, 
 by assignee for benefit of 
 creditors of payee against 
 maker 523 
 
 action by trustees in liquida- 
 tion on notes given for prop- 
 erty purchased from them.- 519 
 BILL OF EXCHANGE, see 
 
 Bills, Notes and Checks. 
 BILL OF PARTICULARS, in 
 
 what cases ordered 559 
 
 necessary averments in affida- 
 vit for _ 559 
 
 discretionary with court, or- 
 der not reviewable on ap- 
 peal 549 
 
 penalty for non-compliance 
 with order 559 
 
 effect of not serving 579 
 
 where pleadings are definite 
 and certain 540 
 
 distinguished from motion to 
 make more definite 239 
 
 forms part of complaint, may 
 be amended, new one may 
 be substituted 575 
 
 of an account stated. 576, 577 
 
 where particulars are equally 
 within reach of the appli- 
 cant, action against sureties 
 on a bond 572 
 
 of items in a schedule, alleged 
 as fraudulent, and as certi- 
 fied in pursuance of a gen- 
 eral conspiracy 549 
 
 for specific allegations of 
 breaches in action on a 
 bond 103 
 
 specification of time and plaee 
 of breaches of warranty, in 
 
 action on life policy 559 
 
 BODILY INJURY, what prov- 
 able under general allega- 
 tion of.-- 303 
 
 BOND, action on, given with a 
 
 mortgage 399 
 
 action on, made for accom- 
 modation 100 
 
 action against sureties on an 
 official bond, motion for 
 bill of particulars 573 
 
 issued by a municipality for 
 specific purposes, action, 
 upon 106 
 
698 
 
 INDEX. 
 
 Bond.— (Coniim/e(?.) i-age 
 
 assignment of breaches on 
 bond other than for pay- 
 ment of money. . 103 
 
 action for conversion of 229 
 
 BREACH, allegation of, where 
 a copy of the protnissory 
 note is set forth showing 
 upon its face that it is over- 
 due _ _ 64 
 
 specific assignment of, in an 
 action on bond other than 
 for payment of money 103 
 
 of contract, distinguished 
 from action for money re- 
 ceived, and from conver- 
 sion 154 
 
 to accept and pay _ 16 
 
 of purchase and sale 22 
 
 of inability and refusal to per- 
 form on the part of the 
 vendor 155 
 
 of hiring, one recovery of 
 damages tlierefor a bar to 
 further action founded on 
 same breach 40 
 
 of hiring, employee's actions 
 for, note __ 42 
 
 of contract distinguished from 
 its repudiation as void by 
 statute of frauds 149 
 
 of contract of sale, note on 
 seller' s remedies 37 
 
 of warranty in life policy, bill 
 of particulars ordered 559 
 
 CANCELLATION, of promis- 
 sory note, demanded in 
 answer __ 506 
 
 CAPACITY, to sue, want of as 
 
 ground of demurrer 403, 407 
 
 CARRIER, liability of common 
 
 carrier, how enforced 119 
 
 action ag-ainst for negligence 540 
 CAUSE OF ACTION of com- 
 mon law nature dependent 
 on equitable principles 179 
 
 separate statem.ent and num- 
 bering _ ___ 269 
 
 what allegations can not be 
 deemed part of 407 
 
 single although embracing 
 two items of damage __239, 241 
 
 single although embracing 
 several elements of damage 
 and seeking different spe- 
 cies of relief _ 207 
 
 single, though seeking to set 
 aside several conveyances 
 by debtor _ 328 
 
 although stated to be sep- 
 arate, not so considered 583 
 
 TAOE 
 
 rule against splitting 5 
 
 several grounds for one re- 
 covery, tort and contract.. 48 
 
 distinction between one for 
 money paid under mistake, 
 for conversion, and for 
 breach of a promise to pay. 154 
 
 distinction between one for an 
 accounting and on an ac- 
 count 548 
 
 distinction between one for 
 damages t o recover for 
 breach of contract and to 
 recover value of property 
 received under void con- 
 tract 149 
 
 to recover a balance due for 
 services distinguished from 
 action for services 461 
 
 several distinct articles sep- 
 arately set forth in an ac- 
 tion for libel, constitute as 
 many causes of action 251 
 
 joinder of several 50 
 
 misjoinder of causes of action 
 affecting different parties.. 375- 
 
 for salary, joined with one for 
 money dueonaloan 545- 
 
 joinder of action for injury to 
 personal property with ac- 
 tion for trespass to real 
 property 367, 268, 269 
 
 action for trespass to real 
 property joined with action 
 for assault _ _ 368, 269' 
 
 of a transitory nature joined 
 with one of which court has 
 no j urisdiction 363 
 
 each to be complete and suflS- 
 cient in itsel f 380, 545 
 
 aider by general clause 380 
 
 commingled statement, 
 remedy for 15» 
 
 waiver of objection to 161 
 
 cannot be changed by amend- 
 ment 196, 304 
 
 change of by amendment 
 
 154, 304, 584 
 
 right to amend of course 
 allows setting up of new 587 
 
 where it arises, note 371 
 
 for negligence where it arises. 356 
 CERTIFICATE, of approval 
 from architect as condition 
 
 precedent — 33 
 
 CITY COURT OF NEW YORK, 
 pleading of equitable de- 
 fences -- - 510 
 
 CODE OF CIVIL PROCED- 
 URE, § 340 (jurisdiction of 
 county courts) 347 
 
INDEX. 
 
 69^ 
 
 §§ 395, 396, 399, 401, 403, 405, 
 406 (limitations) 526 
 
 § 447 (adverse claimants) 179 
 
 § 449 (trustee of express trust, 
 
 16, 383 
 
 § 452 (bringing in additional 
 parties) 179, 185 
 
 § 481 (complaint), 186, 347, 540, 543 
 see also _._ _.l, 72, 193, 494 
 
 §481, subd. 2 (repetition) .. . 50 
 
 § 483 (sepai-ate statement of 
 causes of action)_-.161, 269, 545 
 see also _ _ _ 559 
 
 § 484 (joinder of causes) . 
 
 161, 207, 281, 362 
 see also 549 
 
 § 488 (grounds of demurrer).- 
 
 239, 347, 383, 401, 482 
 see also 73, 193, 383, 403 
 
 §489__. 373 
 
 § 490 (specifying grounds of 
 demurrer) '. 339, 362 
 
 § 493 (demurrer to reply) 533 
 
 § 495 (demurrer to counter- 
 claim) 367, 519, 535 
 
 § 496 (demurrer to counter- 
 claim) ___244, 519 
 
 § 498 (objection by answer) .. 
 
 347, 482, 516 
 see also 383, 403 
 
 § 499 (failure to demur or an- 
 swer, as waiver) 33, 483, 516 
 
 §500, subd. 1 (answer) 414 
 
 seealso :___ 450 
 
 I 501 (counterclaim) ._244, 514 
 
 I 507 (equitable defence) 510 
 
 ) 508 (partial defence) 500, 503 
 
 j 514 (reply).- 533, 535 
 
 "l 516 (reply to new matter) .- 
 
 503, 533 
 
 8519,see 1 
 
 § 533 (admission by not deny- 
 ing) 450, 466 
 
 § 522 (new matter in answer 
 deemed controverted) 12 
 
 § 533 (verification) 537 
 
 see also 538 
 
 § 535 (verification) -- - 438 
 
 seealso 538 
 
 § 531 (bill of particulars) 
 
 186, 339, 559, 573, 574, 576 
 577, 579 
 
 § 582 (pleading foreign judg- 
 ment) 167 
 
 § 533 (conditions precedent).. 383 
 
 § 534 (setting forth the instru- 
 ment).-- - 53,64,68 
 
 § 535 (libel and slander) . 251 
 
 § 537 (frivolousness), see . 434 
 
 8 542 (amendment). -.584, 587,589 
 
 I 544 (supplemental pleading) 333 
 
 PAGE 
 
 § 546 (indefiniteness).186, 383, 540 
 
 §548 (arrest) _ _ 287 
 
 § 549, subd. 3 (arrest of public 
 
 officer for peculation) 549 
 
 8 550 (arrest) 287 
 
 § 637 (attachment against pub- 
 lic officer for peculation)... 549 
 § 723 (amendments). .154, 161, 196 
 
 seealso 37 
 
 § 870 (depositions) 186 
 
 I 982 (jurisdiction) 367 
 
 § 1185 (exceptions to be heard 
 
 at general term) 154 
 
 §§ 1337, 1338 (judgment roll), 
 
 see.. 399 
 
 § 1309 (action upon undertak- 
 ing, when to be brought).. 
 
 217, 543 
 
 § 1496 (ejectment) . - - _ 381 
 
 § 1497 (ejectment) 281 
 
 I 1502 (ejectment) 281 
 
 § 1533, etc. (partition) 318 
 
 §§ 1695, 1712 (replevin), see . . 377 
 §§ 1775, 1776 (allegation and 
 
 proof of incorporation) 
 
 403, 407, 491 
 § 1780 (actions against foreign 
 
 corporations) 356' 
 
 § 1915 (actions on bonds) 103 
 
 § 1919 (action by association) 491 
 §§ 1969, 1971 (misappropria- 
 tion of public funds) 549 
 
 §3328 (costs) 364, 269 
 
 8 3334 (costs) 369 
 
 I 3347, subd. 4 (City Court of 
 
 New York) 510 
 
 CODE OF PROCEDURE, § 11, 
 
 subd. 4 (appeal) 538 
 
 § 143 (contents of complaint) 
 
 1, 73, 193 
 
 S§ 143, 151 (pleading) 494 
 
 § 144 (demurrer) -.73, 193, 383, 401 
 
 403 
 
 § 147 (answer) -- 37 
 
 § 157 (verification) 538 
 
 § 159 (construction of plead- 
 ings) 1 
 
 § 160 (definiteness in plead- 
 ing) - 540 
 
 § 163 (setting forth the in- 
 strument) 53, 64 
 
 § 167 (joinder of causes of ac- 
 tion).. 549 
 
 §167 (ejectment) 381 
 
 § 168 (admission by not deny- 
 ing) 466 
 
 § 169 (variance).. 575 
 
 §173 (amendments) 37 
 
 S 307 (replevin)... 277 
 
 g 246 (failure to answer). .399, 450 
 §247 (frivolousness). 434 
 
700 
 
 INDEX. 
 
 Code of Procedure.— (Co?i^5?/?/e(7.) page 
 
 S 381 (judgment roll) 399 
 
 g 437 (actions against i'orelgn ■ 
 
 corporations) _ 356 
 
 COLLUSION, to establish a 
 
 fraudulent and invalid debt 383 
 COMMENCEMENT OF AC- 
 TION prematurely 155, 399 
 
 COMMINGLED STATEMENT, 
 
 remedy for 155, 161 
 
 COMPETITION, agreement re- 
 sulting in the restriction of 
 competition at a public sale 383 
 COMPLAINT, deemed to allege 
 what is reasonably implied 383 
 incomplete causes of action 
 
 followed by general clause. 380 
 joinder of several causes of 
 
 action 161 
 
 defect in, cured by admission 
 
 in the answer 68 
 
 as aider by answer, referring 
 
 to it ...- 367 
 
 residence a necessary allega- 
 tion in county courts 347 
 
 object and requisites of sup- 
 plemental 601 
 
 see also Cause of Action, 
 Forms, and the title of the 
 cause of action in question, 
 such as Assault, Bills, Notes 
 and Checks, Carriers. 
 COMPROMISE, allegation of, 
 by defendant in action for 
 
 negligence, effect of.- 414 
 
 CONCLUSION OF LAW, not 
 an equivalent for tlie group 
 of facts from which it is an 
 
 inference 78, 493 
 
 traverse of by answer of no 
 
 avail 341, 431, 450 
 
 stricken out as irrelevant and 
 
 redundant 341 
 
 denial of, raises no issue 139 
 
 not admitted by demurrer 395 
 
 allegation of consent, not 339 
 
 allegation that an attachment 
 
 was illegal 363 
 
 allegation of wrongful taking 
 
 in replevin 377 
 
 allegation of notice 339 
 
 allegation of indebtedness... 1 
 
 pleading foi'eign law 110, 339 
 
 CONDITION precedent, may 
 be imposed by statute, by 
 contract, or exist by com- 
 mon law 317 
 
 performance of to be alleged. 33 
 
 architect's certificate — 33 
 
 presentation of claim before 
 
 action against city 317 
 
 allegation of performance in 
 
 PAGE 
 
 action on conditional guar- 
 anty 138 
 
 mutual and concurrent, alle- 
 gation of willingness and 
 
 readiness to perfoi'm 410 
 
 CONSIDERATION, reciprocal 
 promises 110 
 
 mutuality at time of making 
 a promise not essential 383 
 
 when necessary to be spe- 
 cially averred 53 
 
 averment or proof of not nec- 
 essary in actions on prom- 
 issory notes 58 
 
 promissory note imports a. 58, 488 
 
 on an exchange of promis- 
 sory notes 533 
 
 not imported by instrument 
 not a promissory note 53 
 
 want of , as a defence 488 
 
 CONSPIRACY, of public offi- 
 cers to peculate moneys 
 
 from city treasury 549 
 
 CONSTRUCTION, of pleadings 
 to be liberal. 1,133 
 
 rule for liberal construction 
 does not apply to the funda- 
 mental requisites of cause 
 of action 53 
 
 of pleadings in case of doubt, 
 that most unfavorable to 
 pleader 414 
 
 of pleadings where ambigu- 
 ous words are used 78 
 
 of pleadings strict against 
 pleader 393 
 
 of ambiguous words in guar- 
 anty 138 
 
 of pleading, on demurrer for 
 insufficiency 394 
 
 of instrument by adversary 
 not admitted by demurrer. 395 
 CONTEMPT, judgment en- 
 forceable by proceedings for 387 
 CONTRACTS, actions on ex- 
 press, 
 
 (goods sold) 1, 5, 13, 16, 33, 
 
 36, 48, 486 
 
 (services) .39, 33, 37, 40, 50, 450, 
 
 461, 466 
 
 (money lent) 44 
 
 (bills, notes and checks). 53, 58, 
 
 64, 67, 68, 73, 77, 78, 83, 84, 
 
 86,88 
 
 (account stated) 91 
 
 (insurance) 94 
 
 (bond) ...100, 103, 106 
 
 (telegraph co.) 110 
 
 (common carrier) 119 
 
 (royalty).. 133 
 
 (lease) 136, 139 
 
INDEX. 
 
 701 
 
 (use and occupation) 133 
 
 (guaranty) 138, 144 
 
 of sale, note on seller's actions 
 on breach of 37 
 
 void by statute of frauds, not 
 illeg-al 477 
 
 illegality of as a defence 488 
 
 subsequent modification of as 
 
 a defence 486 
 
 allegation of a modification. _ 543 
 action on, joined with action 
 for deceit affecting differ- 
 ent parties 875 
 
 count on special contract join- 
 ed with one upon a quan- 
 tum meruit 50 
 
 action on implied contract 155 
 
 action on constructive, 
 (money, or property, re- 
 ceived) 149, 159, 168, 175, 179 
 
 (money paid) 155 
 
 (judgrnent) __ 161 
 
 for sale of goods, inducement 
 
 of credit by fraud 497 
 
 action, by assignee for specific 
 
 performance 410 
 
 made by one in his own name, 
 
 but as agent for another 16 
 
 parol, made by agent for un- 
 disclosed principal ; who 
 may maintain action on it. 110 
 allegmg it as made with him- 
 self, and in another count 
 as made with a third per- 
 son and assigned to him 50 
 
 action, for non-delivery by 
 
 carrier 119 
 
 to reorganize corporation 388 
 
 only partly alleged in com- 
 plaint __ 486 
 
 see also Cause of Action and 
 Complaint. 
 CONTEACTOR, action against 
 by city, for omission to put 
 
 up guards. 193 
 
 CONTRIBUTORY N E G L I - 
 GENCE; allegations of, by 
 defendant, as an admission 
 of the act having been done 414 
 
 COlsrVERSION, action for 514 
 
 distinguished from action for 
 breach of promise to pay, 
 and from action for money 
 
 paid by mistake 154 
 
 allegation of, lets in proof of 
 
 demand and refusal 339 
 
 of outlawed note, basis of re- 
 covery 500 
 
 CORPORATION, allegation of 
 incorporation in actions by 
 oragainst. 403, 407 
 
 TAGS 
 
 how existence put in issue 491 
 
 action against one organized 
 under same name and as- 
 suming the obligations of 
 one which has expired by 
 its limitation.. 380 
 
 action against, by preferred 
 stockholders to compel pay- 
 ment of dividends 434 
 
 denial by corporation on in- 
 formation and belief ; veri- 
 fication by 428 
 
 privilege, as exemption from 
 
 verifying pleadings. ~>37 
 
 COSTS, when plaintifl:' entitled 
 
 to.- 264 
 
 COUNTERCLAIJl, arising out 
 
 of same transaction 514 
 
 not ai'ising out of the same 
 transaction 344 
 
 not asking affirmative relief . 519 
 
 must defeat or diminish plain- 
 tiff's recovery 516 
 
 cannot be made foundation 
 for an inequitable prefer- 
 ence 519 
 
 must be pleaded in explicit 
 terms 523 
 
 set up by supplemental an- 
 swer 333 
 
 no jurisdiction of subject 367 
 
 demand for judgment in 410 
 
 demurrer to must specify ob- 
 jection 344 
 
 claim interposed as, on which 
 
 prior action pending 535 
 
 COUNTY COURTS, allegation 
 
 of jurisdictional facts 347 
 
 COVENANT, alleging a cove- 
 nant and a judgment re- 
 covered thereon 161 
 
 CREDIT, inducement of by 
 fraud, in contract for sale 
 
 ofgoods 497 
 
 CRIMINAL CONVERSATION, 
 distinguished from enticing 
 and harboring 275 
 
 DAMAGES, general damages 
 implied _. 303 
 
 special damages must be 
 specially alleged 303 
 
 when averment of special 
 damage necessary in action 
 for libel ._. 358 
 
 in action by seller for breach 
 by buyer, note on 37 
 
 two items of damage contain- 
 ed in a single cause of action 289 
 
 measure of, in action for buy- 
 er's refusal to accept 26 
 
702 
 
 INDEX. 
 
 VkiiAfi^B.— {Continued). page 
 
 measure of, in action for con- 
 version of a promissory 
 note , 500 
 
 amount of recovery as deter- 
 mining the amount of costs 264 
 
 recoverable by parent for 
 negligence resulting in in- 
 jury to minor child 494 
 
 what recoverable in an action 
 for ejectment; how alleged. 381 
 
 difference of rule, for trespass 
 by levy under void attach- 
 ment and under irregular 
 one that has been set aside. 363 
 
 action by receiver of bank for 
 damages from illegal loans 
 
 by its officers 469 
 
 DECEIT, action for, joined 
 with action on contract 
 affecting different parties.- 375 
 
 in inducing credit in contract 
 for sale of goods.- 497 
 
 set up as counterclaim to ac- 
 tion for false imprisonment 244 
 DEFAULT IN CONDITION OF 
 BOND, allegation of, in ac- 
 tion to foreclose mortgage. 301 
 DEFECT, first defect in plead- 
 ing searched out by de- 
 murrer 410 
 
 in complaint, cured by ad- 
 mission in the answer 68 
 
 objection to fatal defect avail- 
 able at trial- 22 
 
 see also Aider. 
 DEFECT OF PARTIES, alle- 
 gation of in answer, speci- 
 fied defect to be stated 497 
 
 DEFENCE, to be stated as a 
 partial defence when so in- 
 tended - 503 
 
 resting on statutory grounds 
 should be pleaded 483 
 
 illegality of contract sued on- 483 
 
 pleading in avoidance of an- 
 ticipated 531 
 
 DEFINITENESS AND CER- 
 TAINTY, see Indefiniteness 
 and Uncertainty. 
 DEFINITION, "due" and 
 
 " owing " 1, 64 
 
 rule of construction where 
 ambiguous words are used- 78 
 DELIVERY, to be in a reason- 
 able time when it is not 
 specified- 32 
 
 failure to deliver a telegraphic 
 message 110 
 
 without indorsement in case 
 of negotiable paper payable 
 to bearer 84 
 
 PAOJ 
 
 DEMAND, pie requisite to ac- 
 tions for conversion and 
 money paid by mistake 154 
 
 allegation of in case of 
 wrongful detention of chat- 
 tels --. 277 
 
 and refusal provable under an 
 allegation of conversion 229 
 
 necessity of its averment in 
 an action against indorser 
 of negotiable paper 73 
 
 notes payable on demand, 
 actions on 90 
 
 not a condition precedent to 
 suing on demand note 90 
 
 not necessary to allege in ac- 
 tion on unconditional 
 
 guaranty 144 
 
 DEMAND FOR BILL OF 
 
 ITEMS, effect of 579 
 
 DEMURRER, function of de- 
 murrer and of answer dis- 
 tinguished 589 
 
 reaches first bad pleading 410 
 
 admits onlv facts well pleaded 
 
 106, 395 
 
 lies for substantial and radical 
 defects 53 
 
 does notlie for formal defects, 
 indeflnitness or argumenta- 
 tiveness--- 110, 383 
 
 to the whole of a complaint, 
 not sustainable if one cause 
 of action is good 380 
 
 where a cause of action is self- 
 contradictory 251 
 
 frivolousness of 64 
 
 not frivolous if any argument 
 is needed to sustain it 78 
 
 objection must appear on face 
 of complaint 347, 367 
 
 grounds of to be specifically 
 stated 244, 362 
 
 for want of legal capacity to 
 sue, incapacity to appear 
 on face of complaint, omis- 
 sion of plaintiff' to allege its 
 incorporation 408, 407 
 
 for misjoinder of parties 
 plaintiff, must specify the 
 objection 239 
 
 does not lie by defendant for 
 joinder of too manj' parties 
 defendant.. 375 
 
 misjoinder of causes of action 
 
 307, 375 
 
 for want of jurisdiction of the 
 person 401 
 
 for insufficiency under Code 
 equivalent to general de- 
 murrer at common law, or 
 
INDEX. 
 
 703 
 
 PACE 
 
 to demurrer for want of 
 equity in chancery 91 
 
 to reply 535 
 
 to premature action, not aided 
 by summons or proof of 
 service 399 
 
 failure to allege performance 
 of condition precedent 33 
 
 lies to supplemental plead- 
 
 ing_._ 408 
 
 when lies to supplemental ~ 
 complaint 601 
 
 waiver of objection by not 
 interposing- _ 168 
 
 amendment of by service of 
 an answer 589 
 
 see also Forms. 
 DENIAL, note on forms of 420 
 
 note on effect of 489 
 
 when deemed an admission.. 393 
 
 of a conclusion of law, raises 
 no defence 431 
 
 of unnecessary allegations 
 raises no issue 139 
 
 on information and belief, 
 treated as sham 449 
 
 by a corporation 438 
 
 giving of a different version, 
 not a denial 430 
 
 by folios condemned 393 
 
 DISCEETIONAEY ORDER, 
 
 right to appeal 538 
 
 DISMISSAL OF ACTION IN 
 EQUITY when proof shows 
 
 only action at law. 394 
 
 DISPOSSESS, note on remedy. 188 
 DIVIDENDS, action by prefer- 
 red stockholders to compel 
 
 payment of. 434 
 
 DIVORCE, action for absolute. 333 
 
 superfluous allegations in ac- 
 tion for 583 
 
 allegation of, as defence to 
 action for alienation of 
 
 affections 503 
 
 "DUE," definition of 1, 64 
 
 DUTY, facts creating it must 
 be alleged 193 
 
 EFFECT OF DENIAL, note on 489 
 
 EJECTMENT, action of 380 
 
 parties to an action for 381 
 
 ELECTION of theory of action. 168 
 when compelled between 
 
 several causes of action 50 
 
 between counts, one for goods 
 sold, the otlier for conver- 
 sion 497 
 
 EMBEZZLEMENT, by public 
 officers of moneys from city 
 treasury - 549 
 
 FAOE 
 
 ENTICEMENT, when action 
 
 for, maintainable.- --^ 373 
 
 EQUITABLE DEFENCE, 
 pleadable in what courts.. 510 
 in U. S. Court 506 
 
 EQUITY, proper pai-ties to a 
 suit in equity, elasticity of 
 the rules of pleading 311, 318 
 
 EVIDENCE, not to be pleaded 
 — motion to strike out if 
 
 pleaded-- 582 
 
 of bill of items, practice to 
 preclude party not furnish- 
 ing them on demand 579 
 
 EXAMINATION BEFORE TRI. 
 AL, in action on an account 
 
 stated--- 576 
 
 of party to ascertain true 
 name 593 
 
 EXCAVATION, of city streets, 
 duty of city to erect guards, 
 lights, etc--- --- 193 
 
 EXCHANGE, of promissory 
 notes, effect of 532 
 
 EXECUTION, against the per- 
 son of common carrier in an 
 action for non-delivery of 
 
 goods.- 119 
 
 of attested instrument, how 
 proved 497 
 
 EXECUTORS AND ADMIN- 
 ISTRATORS, authority to 
 
 act, how pleaded 68 
 
 unnecessary in an action by 
 them, to aver facts show- 
 ing surrogate's jurisdiction 
 to appoint them 68 
 
 EXTENSION OF TIME, in 
 which to answer, effect of 
 reversal on appeal of order 
 granting it 549 
 
 FACTS, not evidence, must be 
 
 pleaded -1,583 
 
 in pleading, distinguished 
 
 from a truth 431 
 
 distinction between denying 
 existence of and denying 
 possession of knowledge 449 
 FAILURE OF PROOF, what 
 
 amounts to 149 
 
 of cause of action of equita- 
 ble cognizance, effect of.. 394 
 FALSE IMPRISONMENT, ac- 
 tion for 341,344 
 
 FICTITIOUS PAYEE, in nego- 
 tiable paper..- 84 
 
 FIRST FAULT, in pleading, 
 
 searched out by demurrer 410 
 
 FORECLOSURE, action of 301 
 
 parties in 303 
 
704 
 
 INDEX. 
 
 FOREOLOSUBE.— (CtWiKnWd). TAGIE 
 
 pleading in ._ _ _ _... 303 
 
 action i'or..;^..^ 516 
 
 action for, answer alleging 
 payment 474 
 
 agreement to cease defending 
 a foreclosure of a mortgage 
 
 on a railroad 383 
 
 FOREIGN COEPORATION,ac- 
 
 tion against by non-resident 356 
 FOREIGN JUDGMENT, alleg- 
 ing cause of action on which 
 
 it was recovered 161 
 
 FOREIGN LAW, how pleaded 329 
 FORMER ADJUDICATION, 
 
 when a bar 5 
 
 as a bar __. 408 
 
 FORMS, complaint for price of 
 goods* __ 1 
 
 complaint against buyer for 
 refusing to accept and pay ; 
 and for expenses of re-sale, 
 etc _._ 16 
 
 complaint for buyer's refusal 
 to accept and pay; and for 
 cost of re-sale, etc. , f 33 
 
 complaint against partner 
 (attempted special partner- 
 ship) for price of goods 13 
 
 complaint purchaser against 
 vendor for damages 155 
 
 complaint payee against ma- 
 kerofnote* 64 
 
 complaint payee of note 
 against executor of maker 58 
 
 complaint by administrators 
 against maker of note f 68 
 
 complaint indorsee against 
 indorser _ 83 
 
 complaint by payee of note 
 against indorser for pur- 
 pose of giving credit f . 86, 88 
 
 complaint indorsee against 
 maker, and indorsers of 
 note t 78 
 
 complaint transferee against 
 indorser of note f 73 
 
 complaint assignee of note 
 against maker f 67 
 
 complaint by corporation on 
 note* 403 
 
 complaint on instrument for 
 payment of money not a 
 promissory note f 53 
 
 complaint on bond 100 
 
 see also __ .327, 330 
 
 complaint (in part) on bond.. 399 
 
 complaint on a judgment *.. 161 
 
 complaint in action to fore- 
 close a mortgage f 301 
 
 PAeE 
 
 complaint in action to fore- 
 close mechanic's lien 339 
 
 com plaint in action to recover 
 rent 126 
 
 complaint in action for rent 
 payable in advance 129 
 
 complaint in action for use 
 and occupation 133 
 
 complaint in action to recover 
 money paid 168 
 
 fcomplaiut (in part) for money 
 received by agent or attor- 
 ney 179 
 
 complaint in action to re- 
 cover money had and re- 
 ceived 175 
 
 complaint for money lent 44 
 
 complaint (in part) for recov- 
 ery of wager f__ __ 159 
 
 complaint (in part) for labor 
 and services ; three causes 
 of action on same transac- 
 tion 50 
 
 complaint for services in 
 teaching school * 37 
 
 complaint in action for serv- 
 ices _ 450, 461, 466 
 
 complaint for work and ma- 
 terials 39 
 
 complaint in action on an un- 
 qualified guaranty 144 
 
 complaint in action on a con- 
 ditional guaranty f 138 
 
 complaint to recover royal- 
 ties __ 122 
 
 complaint by builder on build- 
 ing contract f._ __ 32 
 
 complaint (in part) for breach 
 of contract to i-eorganize a 
 corporation* 383 
 
 complaint on fire policy f 94 
 
 complaint on life policy 559 
 
 complaint against carrier, on 
 contract 119 
 
 complaint for failure to de- 
 liver telegram*. _ 110 
 
 complaint on assumption 
 clausef 161 
 
 complaint in action on con- 
 tract and for deceit f , see . . 875 
 
 complaint for partition. 311 
 
 complaint on an account 
 
 stated _ 91 
 
 complaint in action for part- 
 nership accounting 294 
 
 complaint in judgment credi- 
 tor's suit 382, 338 
 
 complaint in action for con-^T^ 
 vei-sion* 229 
 
 * OriticiBed. 
 
 t Objectionable. 
 
INDEX. 
 
 705 
 
 in replevin.- 277 
 
 complaint for deceit, see .244, 375 
 
 complaint for deceit, inducing 
 sale of stock, see _. 239 
 
 complaint in action to enjoin 
 a nuisance 207 
 
 complaint in action for libel _ 258 
 
 complaint (in part) for libel f_ 251 
 
 complaint in action for false 
 imprisonment 241 
 
 complaint in action for abso- 
 lute divorce 333 
 
 complaint for alienation of 
 affections, see _ 503 
 
 complaint for trespass* 264 
 
 complaint for slander of title; 
 and trespass on lands, see 362 
 
 complaint for mal. pros 244 
 
 complaint in action of eject- 
 ment 280 
 
 complaint in ejectment 281 
 
 complaint for negligence f 187 
 
 complaint in action against a 
 city for negligence 225 
 
 complaint (in part) for negli- 
 gence 196 
 
 amended 196 
 
 complaint (in part) against 
 carrier for negligence f 540 
 
 complaint in action for negli- 
 gence by city against prop- 
 erty owner 223 
 
 complaint against a city for 
 damages caused by change 
 of grade t 217 
 
 complaint by receiver against 
 bank officers for making 
 illegal loans,* see 469 
 
 complaint on individual lia- 
 bility of corporation trus- 
 tees, f see. 380 
 
 complaint by stockholdei-s to 
 compel payment of divi- 
 dends-- ..- 434 
 
 answer (in part) in action for 
 g'oods sold, asking equitable 
 set-off.- 510 
 
 answer in action against part- 
 ners setting up limited part- 
 nership f 12 
 
 answer (in part) in action for 
 money lent, setting up 
 illegality in purpose of loan 538 
 
 answer setting up want of 
 consideration for note 68 
 
 answer (in part) in action on 
 life policy 559 
 
 answer (in part) for work and 
 materials f - 29 
 
 PAGE 
 
 answer (in part) for alienation 
 of affections 503 
 
 answer justifying ti'espass 264 
 
 answer in action on a judg- 
 ment f 161 
 
 answer in action by stock- 
 holders to compel payment 
 of dividends f '434 
 
 answer (in part) in action to 
 have stock declared fraud- 
 ulently issued 527 
 
 answer in action by receiver 
 against bank officers, for 
 making illegal loans, see 469 
 
 answer, setting up former 
 adjudication as a bar f 408 
 
 demurrer to complaint for 
 misjoinder 375 
 
 demm-rer to complaint for 
 misjoinder 229 
 
 demurrer to complaint for 
 misjoinder of plaintiffs, see. 229 
 
 order to make definite and 
 certain 503 
 
 order for particulars 549 
 
 modified 559 
 
 affidavit to obtain particu- 
 lars,* see 559 
 
 counterclaim setting off one 
 note against another 68 
 
 counterclaim in action by 
 purchaser against vendor 
 for waste* 367 
 
 counterclaim for deceit f 244 
 
 of denial, note __ 420 
 
 FRAUD, incidental allegations 
 
 of_._. _._. 48 
 
 alleged as inducement to con- 
 tract 155 
 
 in one contract not available 
 as defence to another 519 
 
 alleged as inducing credit 497 
 
 allegation of, as ground for 
 arrest 48 
 
 auditing by public officers of 
 false and exaggerated 
 
 claims against the city 549 
 
 FRAUDULENT ASSIGN- 
 MENT, action to set aside 
 several, by same debtor, 
 but a single cause of action. 328 
 FRAUDULENT MISREPRE- 
 SENTATION, as induce- 
 ment to purchase stock, 
 
 action for damages 239 
 
 FRIVOLOUSNESS, in plead- 
 ing ; remedy 434 
 
 of answer 401 
 
 of demurrer 64, 77 
 
 45 
 
 Criticised. 
 
 t Objectionatle. 
 
706 
 
 INDEX. 
 
 Fbivolousness.— (C(m(iwwef/). page 
 
 demurrer not frivolous il any 
 argument is needed to sus- 
 tainit 78 
 
 GENERAL CLAUSE, at end of 
 complaint as aider to pre- 
 ceding incomplete causes 
 
 ot action.. 380 
 
 GENERAL DAMAGES, implied 
 
 bylaw 203 
 
 GENERAL DENIAL, effect ol, 
 note on 489 
 
 what is put in issue by 488 
 
 what is in effect a ._ __ 488 
 
 in reply, effect of 533 
 
 of all allegations "not herein- 
 before specially admitted, 
 qualified or denied"; in- 
 sufficiency to raise an issue. 497 
 
 not to be stricken out as sham 
 on ground of being a nega- 
 tive pregnant 434 
 
 on information and belief, 
 stricken out as sham 449 
 
 letting in defence of prema- 
 ture action 489 
 
 as to letting in evidence of 
 paj'ment or other new mat> 
 ter in avoidance-.. 450, 461, 466 
 469 
 
 letting in proof of bar by stat- 
 ute of limitations 500 
 
 defence of statute of frauds 
 not admissible under 477 
 
 illegality of contract when 
 admissible under _ 483 
 
 letting in proof of other part 
 of contract 486 
 
 subsequent modification of 
 contract inadmissible under 486 
 
 in an action to recover securi- 
 ties pledged 492 
 
 in actions of tort 469 
 
 GENERAL ISSUE at common 
 law distinguished from gen- 
 eral denial under the code. 450 
 GOODS SOLD, action for 486 
 
 action for price of 1 
 
 by assignee for benefit of 
 creditors 510 
 
 where fraud is alleged on part 
 of vendee 48 
 
 against general partners 12 
 
 note on 27 
 
 when a subsequent action not 
 
 barred by former 5 
 
 GUARANTY, action on condi- 
 tional 138 
 
 action onunconditionaL 144 
 
 GUARDS, LIGHTS, ETC., 
 duty of city to erect while 
 
 PAGE 
 
 making excavation in pub- 
 lic street 193 
 
 HARBORING, what consti- 
 tutes _ _ _ 272 
 
 husband' AND WIFE," 'ac- 
 tion for enticement 272 
 
 ILLEGALITY, of contract, as 
 a defence 483 
 
 of contract void by statute of 
 
 frauds 477 
 
 IMPLIED PROMISE, to pay 
 for services rendered at re- 
 quest 110 
 
 INCONSISTENCY, of causes of 
 
 action 161 
 
 INCORPORATION, how put in 
 
 issue.- 491 
 
 omission to allege, as ground 
 
 of demurrer 403, 407 
 
 INDEBITATUS ASSUMPSIT, 
 
 29, 37, 450 
 INDEFINITENESS. remedy for 
 
 383, 394, 545 
 
 not ground for demurrer 322 
 
 distinction between motion 
 to make more definite and 
 certain, and for a, bill of 
 
 particulars 239 
 
 whether a defence is intended 
 
 as complete or partial 503 
 
 in alleging modification of a 
 
 contract 543 
 
 in alleging amount unpaid 492 
 
 in allegations of negligence.. 
 
 203, 540 
 general allegation by city in 
 action against embezzler, 
 that it claims some interest 
 
 in the demand sued on 549 
 
 INDEFINITENESS AND UN- 
 CERTAINTY, remedv for. 91 
 INDEMNITY, equitable " right 
 to as between principal and 
 
 surety 510 
 
 INDORSEMENT not necessary 
 in transfer of negotiable 
 
 paper payable to bearer 84 
 
 legal liability on, arises only 
 
 after demand and notice 72 
 
 of a sealed bond so as to 
 render indorsers jointly 
 
 liable with obligors 100 
 
 INDORSER, what averments in 
 complaint necessary to 
 
 charge him 72, 78 
 
 allegation of notice of non- 
 payment insufficient in ac- 
 tion against 83 
 
 sidficient allegation of pre- 
 
INDEX. 
 
 707 
 
 PAQB 
 
 sentment and demand in 
 action against 77 
 
 to give credit, allegations in 
 
 complaint against 86, 88 
 
 presumption of nature of lia- 
 bility from place of indorse- 
 ment 86, 88 
 
 INFERIOR COURTS, allega- 
 tion of jurisdictional facts, 347 
 
 INFORMATION AND BELIEF, 
 
 denial on, stricken out 449 
 
 by corporation. _ 428 
 
 INNUENDO, office of 351, 258 
 
 INSTRUMENT for payment of 
 
 money only, how pleaded. 64, 68 
 pleading of according- to legal 
 efCect 100 
 
 INSUFFICIENCY of all pre- 
 ceding pleadings searched 
 
 out by demurrer 410 
 
 remedy for insufficient allega- 
 tion of breaches in action 
 on a bond 103 
 
 INSURABLE INTEREST, 
 averment of, in the com- 
 plaint in action on fire 
 policy ; difference as to a 
 marine policy 94 
 
 INSURANCE, action on life 
 
 policy 559 
 
 action on a fire policy 94 
 
 action to recover moneys col- 
 lected from 175 
 
 INTENDMENT, of facts alleged, 
 to be considered in con- 
 struction of pleadings 1, 110 
 
 INTEREST, averment of insur- 
 able interest in an action 
 
 on a fire policy 94 
 
 alleging plaintiff not real 
 party in 493 
 
 IRREGULARITY, of levy under 
 irregular process that has 
 
 been set aside 268 
 
 of service of summons, 
 remedy for 401 
 
 IRRELEVANT AND REDUN- 
 DANT allegations, waiver 
 of objection to 168 
 
 IRRELEVANT ALLEGA- 
 TIONS, remedy for. _. 583 
 
 ISSUES, under denial, what 
 
 raised.. 489 
 
 limited by reply 533 
 
 JOINDER, of causes of action 
 arising but of same trans- 
 action .50, 373 
 
 of several causes of action 
 although inconsistent in 
 the theory -- 161 
 
 PAGE 
 
 of a cause of action of which 
 court has jurisdiction, with 
 one of which it has not juris- 
 diction.. 363 
 
 action for trespass to real 
 property with action for in- 
 jury to personal propert}'.. 
 
 267, 268, 369 
 
 of causes of action affecting 
 different parties.. 375 
 
 of parties in a partition suit.. 
 
 311, 318 
 
 of parties having a joint in- 
 terest in a contract, but a 
 several interest in property 
 affected by such contract.. 383 
 
 as defendant, of one refusing 
 
 tobeplaintiff 383 
 
 JUDGMENT, in action between 
 
 partners 292 
 
 action on a foreign judgment 
 alleging covenant on which 
 
 recovery was based 161 
 
 JUDGMENT CREDITOR, ac- 
 tion by ...333, 328 
 
 an action by, a single cause 
 of action though seeking to 
 set aside several convey- 
 ances of debtor's property . 328 
 JUDICIARY NOTICE, laws of 
 
 other States 159 
 
 JUDICIAL ACT OF 1847, § 30 
 
 (averment of residence) 347 
 
 JURISDICTION, conferred by 
 general appearance 353 
 
 not conferred by consent or 
 stipulation 356 
 
 of statutory action not got by 
 unindorsed summons 600 
 
 of the person of defendant, 
 objection by demurrer does 
 not raise regularity of serv- 
 ice 401 
 
 in an action for waste 367 
 
 in actions for trespass upon 
 lands in other States 362 
 
 in an action by administra- 
 tors, no necessity of aver- 
 ring facts showing Surro- 
 gate's jurisdiction to ap- 
 point 68 
 
 of State Court, of action by 
 non-resident against foreign 
 
 corporation 356 
 
 JURISDICTIONAL FACTS, al- 
 legation of, in county court. 347 
 
 KNOWLEDGE, of unfit con- 
 dition by the lessor, to be 
 shown in action against 
 him for negligence 187 
 
70S 
 
 Tt.rt)i?x. 
 
 Knowledge.- ( Coriliiiiied'i. page 
 
 by defendant of extrinsic lact 
 making matter libellous, 
 must be averred _ . 258 
 
 LABOR AND SERVICES, 
 action for, where there is 
 doubt as to best ground of 
 
 recovery 50 
 
 LANDLORD AND TENANT, 
 
 action to recover rent 136 
 
 note on landlord's remedies 
 for rent 136 
 
 when conventional relation 
 is raised 133 
 
 liability of landlord for allow- 
 ing premises to become un- 
 fit and dangerous 187 
 
 LAWS, 1850, G. 14, § 18 (for- 
 mation of railroad com- 
 panies) 475 
 
 1854, C. 75, § 1 (verification) . 588 
 
 1868, C. 831 (special bank in- 
 corporating act) _. ._ 469 
 
 1875, C. 49, § 1 (peculation 
 act) ___ 549 
 
 1876, C. 198 (formation of rail- 
 road companies)- 475 
 
 LEASE, if void under statute of 
 frauds, no recovery can be 
 had on 136 
 
 LEGAL EFFECT, pleading an 
 instrument according to its. 100 
 
 LESSOR AND LESSEE, liabil- 
 ity of lessor for allowing 
 premises to become unfit 
 and dangerous 187 
 
 LETTERS OF ADMINISTRA- 
 TION, how pleaded, _ 68 
 
 LEVY, of void attachment 363 
 
 LIBEL, action for, answer un- 
 verified on ground of privi- 
 lege 537 
 
 application of libelous articles 
 
 to the plaintiff not shown. _ 351 
 matter not libelous jjer se, 
 must be so shown by ex- 
 trinsic facts averred 258 
 
 LIFE INSURANCE, action on 
 a policy 559 
 
 LOAN, by portion of a firm to 
 
 one of its members 44 
 
 LOCALITY, note on locality of 
 
 cause of action 371 
 
 of action of trover, and tres- 
 pass upon real property 373 
 
 MALICE, allegation of, in ac- 
 tion for trespass in levying 
 void attachment 303 
 
 MALICKWS PROSECUTION, 
 action for ; claim upon 
 
 1>aOE 
 
 which it was founded not a 
 
 proper counterclaim 344 
 
 MANUFACTURING COM- 
 PANY, action against ti-us- 
 tees of, on their individual 
 liability, for claim against 
 
 company 380 
 
 MARRIED WOMAN, allega^ 
 tion to charge separate es- 
 tate of 86 
 
 MASTER AND SERVANT, 
 remedy for wrongful dis- 
 charge from service 40 
 
 note on 43 
 
 MECHANIC'S LIEN, action to 
 
 foreclose __ 339 
 
 effect of misnomer 595 
 
 MISAPPROPRIATION, of city 
 
 funds by public officers . 549 
 
 MISJOINDER, of causes of ac- 
 tion affecting different par- 
 ties 375 
 
 of parties plaintiff, demurrer 
 nmst specify the objec- 
 tion. 339 
 
 action for trespass to real 
 property joined with action 
 
 for assault 269 
 
 MISNOMER, how taken advan- 
 tage of -. 494 
 
 ascertaining true name 593 
 
 substituting person intended- 595 
 naming association instead of 
 
 officer 597 
 
 MODIFICATION, of a contract 
 to be alleged in full terms. 543 
 of contract, an affirmative de- 
 fence 486 
 
 MONEY LENT, action by por- 
 tion of a firm to recover 
 money loaned to a member . 44 
 MONEY PAID, action to re- 
 cover 155, 1 68 
 
 by mistake 154 
 
 MONEY RECEIVED, action 
 
 for 483 
 
 action to recover 159, 175, 179 
 
 payment induced by fraud 155 
 
 scope of common law, action 
 
 for 175 
 
 action by substituted trustee. 576 
 a common law action though 
 dependent upon equitable 
 
 principles 17'J 
 
 distinguished from action for 
 breach of contract, and 
 
 from conversion 154 
 
 MONTH, calendar or lunar, how 
 
 construed 37 
 
 MORTGAGE, action to fore- 
 close 301 
 
lirbE^. 
 
 Y09 
 
 PAGE 
 
 pleading and parties in, 
 
 note 303 
 
 MOTION, several successive 
 motions heard together as 
 
 one. _ 549 
 
 to compel separate statement 
 of causes of action 545 
 
 MUNICIPAL BONDS, issued 
 for specific purposes, action 
 upon 106 
 
 MUNICIPAL CORPORATION, 
 action against one for neg- 
 ligence in fulfilling a joint 
 
 duty 235 
 
 action against for change of 
 grade 217 
 
 MUTUALITY, at time of mak- 
 ing a promise not essential 
 to tlie existence of a con- 
 sideration 883 
 
 NAME, true 593 
 
 name commonly used ^ 593 
 
 fictitious 593 
 
 substituting intended party. . 595 
 
 substituting oflBcer's for as- 
 sociate . 597 
 
 NEGATIVE PREGNANT, can- 
 not be stricken out as sham 434 
 NEGLECT OF DUTY, allega- 
 tion of, as auxiliary to a 
 general charge of con- 
 spiracy 549 
 
 NEGLIGENCE, allegation and 
 proof of --- 186 
 
 allegations of, to be definite. _ 540 
 
 proof of, differing from tlie 
 allegations -.- 196 
 
 distinguished from nuisance 
 and willful act 313 
 
 complaint for negligence will 
 not sustain recovery for nui- 
 sance 204 
 
 causing death, action for is in 
 tort 356 
 
 action against one jointly 
 chargeable with duty 335 
 
 what may be proved under a 
 general allegation of bodily 
 injury 303 
 
 general allegation of bodily 
 injury lets in evidence of 
 any particular resulting dis- 
 ease 303 
 
 resulting in injury to minor 
 child, measure of damages 
 as to parent 494 
 
 of lessor in allowing premises 
 to become dangerous and 
 unfit for tlie lessee 187 
 
 omission by city to erect 
 
 guards, lights, etc., while 
 excavating a street 193 
 
 admission of the act causing 
 injury, by alleging contrib- 
 utory negligence 414 
 
 action for, by city against 
 property owner to recover ' 
 
 over 233 
 
 NEGOTIABILITY, words of .. 84 
 NEW MATTER, compelling re- 
 ply to 525, 537 
 
 NIL DEBET, effect of the plea 
 
 at common law 450 
 
 NON ASSUMPSIT, effect of the 
 
 plea at common law 430 
 
 NON- JOINDER, objection 
 waived if not taken by de- 
 murrer or answer.. _ 37 
 
 NON-PAYMENT, necessary al- 
 legation in all actions on 
 contract for payment of 
 money 475 
 
 allegation of, in action by re- 
 ceiver of bank against its 
 
 officers for illegal loans 469 
 
 NON-RESIDENT, action by, 
 after appointment as ad- 
 ministrator 356 
 
 NOTICE, allegation of, by way 
 
 of a legal conclusion 229 
 
 necessity of its averment in 
 an action against indorser 
 of negotiable paper 72, 78 
 
 effect of, on bona fide holder 
 of accommodation paper.. 506 
 
 of non-payment not notice of 
 presentment or demand 83 
 
 not a condition precedent 
 to action on unconditional 
 guaranty 144 
 
 of mechanic's lien, sufficiency 
 of 339 
 
 of trial, effect of service of.. 333 
 NUISANCE, distinction be- 
 tween negligence, nvii- 
 sance and willful act 213 
 
 case of nuisance submitted 
 on a complaint for negli- 
 gence 204 
 
 creator of nuisance liable for 
 the consequences, after de- 
 mise of premises 187 
 
 equitable action to enjoin a 
 embracing claim for dam- 
 ages for personal injury.. 207 
 
 OBSTRUCTION IN STREET, 
 action for construction of 
 railroad embanliment 217 
 
 OFFSET, not allowed if giving 
 inequitable preference ... 519 
 
710 
 
 INDKX. 
 
 PAGE 
 
 OUTLAWRY, ot promissory 
 notes as a defence to an 
 action for conversion of 
 the notes.. _ 500 
 
 OWNERSHIP, allegation of, in 
 
 action ot replevin. __ 277 
 
 general averment of, inaction 
 for conversion 239 
 
 PARTIES, true name 593 
 
 name ot usage 593 
 
 fictitious name 593 
 
 in action to foreclose a mort- 
 gage. 303 
 
 to an action for ejectment 281 
 
 proper, in action for parti- 
 tion 311, 318 
 
 plaintiff in action against pub- 
 lic officers for peculation of 
 moneys from city treasury 549 
 
 common stockholders as par- 
 ties to an action by prefer- 
 red stockholders against 
 corporation to compel pay- 
 ment of dividends 434 
 
 bringing in adverse claimants 
 as parties defendant, in ac- 
 tion of common-law nature 179 
 
 misjoinder of causes of action 
 affecting different parties.. 375 
 
 objection for non-joinder 
 waived if not taken by 
 demurrer or answer 37 
 
 association to be sued in name 
 of officer 597 
 
 amendment to cure error in. 597 
 
 substitution to cure misnomer 595 
 PARTITION, who may bring. 318 
 
 action for, between tenants 
 in common ; sale and divi- 
 sion of proceeds ; proper 
 
 parties to action .311, 318 
 
 PARTNERS, general liability 
 by reason of a failure to 
 comply with statute of 
 
 limited partnerships 12 
 
 PARTNERSHIP, action for dis- 
 solution of 293, 294 
 
 action at law between part- 
 ners after dissolution 47 
 
 burden of showing it to be 
 limited 12 
 
 loan of money by portion of 
 a firm to one of its mem- 
 bers, implied promise to 
 
 pay on demand 44 
 
 PARTY IN INTEREST, alleg- 
 ing plaintiff not real 493 
 
 PAYMENT, evidence of, as let 
 
 in under general denial 
 
 450, 461, 466, 469 
 
 PAGE 
 
 allegation of in answer, in a 
 
 foreclosure Suit. 474 
 
 not specially applied 545 
 
 PECULATIOiSr, by public offi- 
 cers of moneys from city 
 
 treasury 549 
 
 PENDENCY OF OTHER AC- 
 TION, defence to counter- 
 claim 535 
 
 PERFORMANCE, when suffi- 
 ciently averi-ed 122 
 
 proof of, in an action on con- 
 tract 29 
 
 of conditions, general allega- 
 tion 183 
 
 of conditions precedent, to be 
 
 alleged 22 
 
 of conditions precedent, arch- 
 itect's certificate in a build- 
 ing contract 32 
 
 proof of substantial perform- 
 ance sufficient under alle- 
 gation of performance of 
 
 conditions precedent 37 
 
 PLACE, to be pleaded when 
 
 material 159 
 
 PLACE OF TRIAL, in actions 
 
 for injuries to real property 367 
 PLEADING, object of supple- 
 mental 601 
 
 see the name of the particu- 
 lar action or cause of action, 
 or particular subject. 
 PLEDGE, action to recover a-. 492 
 POSSESSION, when allegation 
 of unnecessarj' in action by 
 
 administrator 144 
 
 POWER OF COURT, to allow 
 
 amendment 584 
 
 PREMATURE ACTION, de- 
 fence of... 489 
 
 demurrer to, not aided by 
 summonsorproof of service 399 
 PRESENTATION OF CLAIM, 
 a condition precedent in an 
 
 action against the city 217 
 
 PRESUMPTION ot character 
 
 of indorser's liability 86, 88 
 
 of ownership from allegation 
 
 of plaintiffs possession 67 
 
 of non-residence in actions in 
 a county court when not 
 
 alleged. 347 
 
 implied promise where firm 
 loans money to a member 
 that he will pay on demand 
 
 without an accounting 44 
 
 PRINCIPAL AND SURETY, 
 equitable right to indem- 
 nity 510 
 
 action by principal on con- 
 
INDEX. 
 
 Yll 
 
 PAGE 
 
 tract made by agent with- 
 out disclosing agency 110 
 
 PRIVIES, who ave_ 408 
 
 PRIVILEGE of a witness from 
 testifying as an excuse for 
 not verifying pleadings 
 
 537, 538 
 
 PRIVITY OF CONTRACT, in 
 
 action for money received. 175 
 in action for non-delivei-y of 
 
 telegram 110 
 
 not necessary among fraudu- 
 lent transferees of debtor's 
 property 338 
 
 PROCESS, levy under void 
 
 attachment 263 
 
 PROMISE, mutual promises as 
 
 consideration for each other 110 
 implied, to pay for services 
 rendered at request.. 110 
 
 PROMISSORY NOTES. 
 see Bills, Notes and Checks. 
 
 PROOF must meet the issues 
 made by the pleading 196 
 
 PROTEST, averment of due 
 protest of a note not equiva- 
 lent to an allegation of 
 notice of it to indorsers 78 
 
 PROVISIONAL REMEDIES, 
 
 attachra ent 363 
 
 PUBLIC POLICY, contract 
 
 void as against 483 
 
 RAILROAD, obstru c t i o n of 
 street by railroad embank- 
 ment, action for... 317 
 
 taking of land without making 
 award, action for. 475 
 
 REAL PROPERTY, action for 
 
 injury to, where triable 367 
 
 RECEIVER, action by receiver 
 of a bank against its officers 
 for making illegal loans... 469 
 
 RECORD, of a prior action ad- 
 mitted in evidence 414 
 
 RECOVERY, where sought on 
 
 several distinct grounds. .. 50 
 on cause of action not pleaded 
 
 149, 154 
 under original complaint a bar 
 to recovery under amended 
 complaint, a test as to 
 whether new cause of ac- 
 tion is set up by the amend- 
 ment 196 
 
 REFERENCE, by one pleading 
 to another or to papers an- 
 nexed 367 
 
 REFUSAL, allegation of, im- 
 ports tender 383 
 
 by buyer to accept goods 36 
 
 PAGE 
 
 REMEDIES, of seller after 
 
 breach by buyer, note on.. 37 
 
 RENT, action for 136 
 
 note on landlord's remedies 
 
 for 136 
 
 payable in advance, action for 139 
 RENTS AND PROFITS, claim 
 for, recoverable in action for 
 
 ejectment... 381 
 
 RE-ORGANIZATION, of cor- 
 poration, contract for 383 
 
 REPAIR, failure to keep agree- 
 ment to repair, liability to 
 
 persons injured thereby 187 
 
 REPLEVIN, allegation of own- 
 ership in plaintiff.. 277 
 
 REPLY, issues limited by 533 
 
 sufficient compliance with 
 
 order directing... 533 
 
 right to compel reply 525,- 527 
 
 affidavit on motion to compel 525 
 alleging pendency of prior 
 action on claim interposed 
 
 as counterclaim 535 
 
 demurrer to_ 535 
 
 REPRESENTATIVE CAPAC- 
 ITY, when omission to 
 designate in title may be 
 
 disregarded.- 144 
 
 REQUEST, when necessary to 
 
 allege 53 
 
 for services, implies a promise 
 
 to pay 110 
 
 RESIDENCE, allegation of in 
 
 county courts 847 
 
 RES JUDICATA, as a defence, 
 
 •right to compel reply 527 
 
 REVISED STATUTES, 1 R. S. 
 
 606, I 4 (month).. 37 
 
 2 R. S., part 3, ch. 5, tit. 3 
 (partition) 311 
 
 3 R. S. 84, ch. 4, tit. 1, § 8 
 (creation of limited partner- 
 ship) . 347 
 
 3 R. S. 378, § 5 (assignment of 
 
 specific breaches).. 103 
 
 3 R. S. 458, § 3 tproof of in- 
 corporation) 403 
 
 3 R. S. (7 Ed.) 1963, g§ 8-10 
 
 (wagers).. .'. 159 
 
 RIGHT TO OPEN AND 
 
 CLOSE, a substantial right 129 
 
 the party having 139 
 
 RIGHT TO SUE, in his own 
 name, of one with whom 
 and in whose name a con- 
 tract is made for the benefit 
 
 of another 16 
 
 ROYALTIES, action to recover 123 
 RULES, Supreme Court Rule 
 33 (indeflniteness) 503 
 
712 
 
 INDEX. 
 
 PAGE 
 
 SALE, action on for price 26 
 
 when no time as to delivery 
 
 is specified 23 
 
 contract for, distinguished 
 from contract for produc- 
 tion or manufacture 27 
 
 SEIZIN IN FEE, equivalent to 
 averment of right to imme- 
 diate possession 280 
 
 SEPARATE CAUSE OF AC- 
 TION, not necessarily so 
 considered 583 
 
 SEPARATE DEFENCE, refer- 
 ence" to other papers an- 
 nexed or to other parts of 
 the answer 367 
 
 SEPARATE STATEMENT, and 
 numbering of distinct causes 
 of action ___ 269 
 
 SEPARATION, allegation of as 
 defence to action for aliena- 
 tion of affections 503 
 
 SERVICE, of summons, regu- 
 larity of not raised by de- 
 murrer - 401 
 
 of summons, sheriff's certifi- 
 cate of service evidence of 
 the fact and time 399 
 
 SERVICES, action for, on a 
 
 special contract 29 
 
 action for services as school 
 
 teacher 37 
 
 action for, under special con- 
 tract and also on quantum 
 
 meruit _ 50 
 
 action for, evidence of pay- 
 ment under a general de- • 
 
 nial 450, 461, 466 
 
 action for wrongful discharge 40 
 note on 42 
 
 SETTING FORTH THE IN- 
 STRUMENT, short mode of 
 pleading on an instrument 
 ' for payment of money 
 only __ 64, 68 
 
 SHAM, striking out a verified 
 answer, on affidavits show- 
 ing it to be false __434, 449 
 
 SLANDER OF TITLE, action 
 of a transitory nature 363 
 
 SPECIAL CONTRACT, action 
 on, proof of performance.. 29 
 
 SPECIAL DAMAGES, must be 
 specifically all eg'ed 203 
 
 SPECIAL DEMURRERS, abro- 
 gated by the code 388 
 
 SPECIFIC BREACHES, as- 
 signing of, in actions on 
 bonds conditioned otherwise 
 than for the payment of 
 money ^ ^ ^..^.. 103 
 
 PAGE 
 
 SPECIFIC PERFORMANCE, 
 action for, by the assignee 
 
 of a contract __ 410 
 
 SPECIFIC RELIEF, demanded 
 in the answer in action on 
 
 promissory notes _. 506 
 
 STATUTE OP FRAUDS, must 
 
 bepleaded 477 
 
 introduces a new rule of evi- 
 dence 477 
 
 contract void under cannot be 
 
 held valid in part 126 
 
 recovery of value of goods de- 
 livered under contract void 
 
 by _... 149 
 
 STA.TUTE OF LIMITATIONS, 
 in action of constructive 
 
 contract 175 
 
 what will prevent running of. 536 
 when runs against paper pay- 
 
 ableou demand 90 
 
 as a defence to action for con- 
 version of promissory notes 500 
 introduction of cause of action 
 barred by, in amended com- 
 plaint 196 
 
 compelling reply to defence 
 
 of 535, 527 
 
 STATUTORY ACTION, in- 
 dorsement on summons 600 
 
 STIPULATION, to allow 
 
 amendment of pleading 584 
 
 STOCK contract to exchange 
 
 stock 383 
 
 purchase ■ -f, induced by fraud- 
 ulent m srepresentation, ac- 
 tion for damages 239 
 
 action to -have stock declared 
 to be unlawfully issued and 
 defendant enjoined from 
 claiming benefit thereunder 537 
 STOCKHOLDERS, action by, 
 against corporation to com- 
 pel payment of dividends _ . 484 
 STRIKING OUT, as sham _. 434, 449 
 
 allegations of evidence 583 
 
 superfluous matter 588 
 
 SUBJECT OF ACTION, what is 514 
 inaction to enjoin a nuisance. 307 
 SUBROGATION to right of ac- 
 tion for negligence -. 333 
 
 SUBSCRIBING WITNESS, 
 production of, to prove an 
 
 attested instrument.. 497 
 
 SUBSTANTIAL RIGHT,orders 
 
 involving appeal from 538 
 
 SUFFICIENCY, each cause of 
 action to be complete and 
 
 sufficient in itself 380 
 
 of all preceding pleadings 
 searched out by demurrer^ . 410 
 
INDEX. 
 
 713 
 
 SUMMONS misnaming party. . 593 
 indorsement of in statutory 
 
 action _ 600 
 
 regularity of service of not 
 
 raised by demurrer. 401 
 
 sheriff's certificate of service 
 evidence of the fact and 
 
 time _ 399 
 
 as determining the form of 
 action whether on contract 
 or in tort 119 
 
 SUPERIOR CITY COURTS, 
 limitations as to jurisdic- 
 tion 852 
 
 SUPPLEMENTAL ANSWER, 
 
 in action for divorce.- 333 
 
 SUPPLEMENTAL COM- 
 PLAINT need not repeat 
 contents of original. _ _ 601 
 
 SUPPLEMENTAL PLEAD- 
 
 ING, demurrer lies to 408 
 
 SURPRISE, when a party is 
 
 not misled 154 
 
 SURRENDER, of one contract 
 a good consideration for a 
 
 new agreement. 383 
 
 of promissory note, demanded 
 in the answer in action on 
 same 506 
 
 SURROGATE, facts showing 
 his jurisdiction to appoint 
 plaintiffs administrators, not 
 necessary to be alleged by 
 them in the pleading 68 
 
 TEACHER, action fof services 
 
 as school teacher:... 37 
 
 TELEGRAPH COMPANY, fail- 
 ure to deliver dispatch 110 
 
 TELEGRAPHIC MESSAGE, 
 failure by company to de- 
 liver 110 
 
 TENDER, allegation of refusal, 
 imports tender 383 
 
 TESTAMENTARY PRO- 
 VISION, construction of... 395 
 
 TIME, of delivery, in an execu- 
 tory contract for sale of 
 goods, where there is no 
 provision made 33 
 
 TITLE, allegation of legal title 383 
 allegation of, in action on a 
 
 promissory note 64 
 
 what sufficient to give right 
 
 to recover in ejectment 381 
 
 what sufficient to give right 
 to maintain action of re- 
 plevin -- 377 
 
 of lands, when brought in 
 question in action for as- 
 sault ... 364 
 
 46 
 
 PAGE 
 
 allegation of, ' ' under and by 
 virtue of the Laws of 
 
 France" 339 
 
 TORT, distinguished from as- 
 sumpsit in an action against 
 common carrier for non- 
 delivery of goods intrusted 
 to him 119 
 
 liability for, several as well as 
 joint 325 
 
 independent torts set off 
 
 against each other 344 
 
 TRANSACTION, definition of 
 as used in Code Civ. Pro. 
 
 §484 373 
 
 TRANSFER, what constitutes 
 sufficient allegation of in 
 case of negotiable paper 
 
 payable to bearer 84 
 
 TRESPASS, note on action for 137 
 
 on real property, not a local 
 action 373 
 
 upon lands in other States 362 
 
 action for, joined with action 
 for assault and battery. 368, 369 
 
 alleged in action for assault . 264 
 
 levy of void process, allega- 
 tion of malice or want of 
 probable cause 363 
 
 action for, joined with action 
 for injury to personal prop- 
 erty .367,368, 369 
 
 TROVER, not a local action... 373 
 TRUSTEE OF AN EXPRESS 
 TRUST, right of, to sue 
 without joining the person 
 for whose benefit the action 
 is prosecuted 16 
 
 allegation of holding stock 
 either as owner or in trust. 383 
 TRUSTEES, of a corporation, 
 action against on individual 
 liability 380 
 
 ULTIMATE PAYMENT, lia- 
 bility of guarantor of 138 
 
 USE AND OCCUPATION, note 
 
 on actions for 136 
 
 when action lies 133 
 
 tenant liable for after occupy- 
 ing under void lease 126 
 
 VACATUR, of order of arrest 287 
 on what papers to be heard . . 387 
 of attachment, specific sum 
 
 due not averred 26 
 
 VARIANCE, between plead- 
 ings and proof, when ma- 
 terial 149 
 
 instance of an immaterial 126 
 
 defendants not being misled . 100 
 
714 
 
 INDEX. 
 
 VERIFICATION, of pleadings ; 
 
 privilege __. 537, 538 
 
 by a corporation _. 438 
 
 question of substantial right, 
 exemption from verifying . 538 
 
 WAGER, legality at common 
 law, complaint to recover 
 deposit from stakeholder.. 159 
 
 alleging nature and place of 
 
 wager in complaint- _ _ 159 
 
 WAGER POLICY, action on a 
 fire policy by one having no 
 
 insurable interest _ 94 
 
 WAIVER of objections by not 
 
 demurring or answering 516 
 
 of objections to counterclaim 519 
 
 of objection of statute of 
 frauds.. 477 
 
 of objection for non-joinder 
 of parties where not taken 
 by demurrer or answer 37 
 
 objection to fatal defect not 
 waived by failure to demur 
 or answer 23 
 
 of objection to commingled 
 
 PAGE 
 
 statement 161 
 
 of strict performance may be 
 proved under the allega- 
 tion of performance of con- 
 ditions 37 
 
 of architect's certificate by 
 acceptance of the work 33 
 
 WARRANTY, not implied on 
 part of lessor that a dwel- 
 ling is safe and convenient 187 
 
 WASTE, a local action, where 
 
 triable 367 
 
 WILLFUL ACT, distinction 
 ■ between negligence, nuis- 
 ance and willful act 313 
 
 WORK AND MATERIALS, 
 
 action for. 39 
 
 WRONGFUL, a conclusion of 
 law... 280 
 
 WRONGFUL DISCHARGE, 
 action for as distinguished 
 from action for services 
 
 rendered 40 
 
 note on 42 
 
 WRONGFUL TAKING, conclu- 
 sion of law 377