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J., said:—“The commissioners doubtless had their eye upon actions at law when they framed the 167th section. They have not limited, and probably did not intend to limit the number of civil actions, as they are defined in subdivisions 2,4, and 5 (now 3, 4, 5), to seven. There are other remedies, well known to our jurisprudence for ages, and which still exist, that cannot be comprised in either of the seven specified in section 167. The action for a divorce, or limited separation, a memsa et thoro, for example, could not be united with an action upon a promissory note. All that is settled by section 167 is, that in the seven cases therein specified, several causes of action may be united in the same complaint, if the rules prescribed for that purpose in that section be observed.” “Among these rules for the joinder of actions are the following, viz., that the causes, so united, must all belong to one only of these classes, &c., “and must be separately stated.” The causes united in this complaint all belong to one class, to wit, number three, but they are not separately stated. This is made a distinct cause of demurrer, by s. 144, sub. 5, of the code of procedure. “The 150th and 151st sections throw some light in this question. By those sections the defendant is allowed to set forth by answer as many defences as he shall have. They must be separately stated, and refer to the causes of action which they are intended to answer. The defendant is allowed to demnr to one or more of the several causes of action stated in the complaint, and answer the residue. From these provisions, in connection with the foregoing, it is obvious that the code intended that each cause of action should be embraced in a single count in the complaint, and that there should be as many counts, as there are causes of action. Had the old phraseology with which the profession was familiar been retained, fewer mistakes would have been made in this respect. The requirement, that the several causes of action must be separately stated in the complaint, is precisely equivalent to the requirement of a distinct count in a declaration for each cause of action. Without such separation, the defendant cannot have the benefit of a separate answer, or demurrer, nor can there ever be such an issue framed, as to enable the court and jury to try it in an intelligible manner. Under the former system of pleading, the uniting of several causes of action in the same count, was a ground of demurrer, 10 Wend... 324. Each count was required, singly to contain a good cause of action, and unless it did so, it was defective, (id.) Formerly the causes of action stated in this complaint could not be joined in the same declaration, even in separate counts. By section 167 of the code, they may be united in the same complaint, if separately stated; that is, according to the ancient mode of expression, if each separate cause of action is confined to a single count.” And where the plaintiff united in the same complaint three substantive grounds of injury—namely, one for the building of an embankment on the defendants' own land, one for building an embankment on the highway near the plaintiff's store, and a third for erecting an embankment on the plaintiff's land, whereby damage had accrued to the plaintiff. The injuries were not separately stated, but were all blended together. The defendants demurred on the ground that several causes of action were improperly united Willard, J., in allowing the demurrer said, “The plaintiff's counsel denies that there is more than one cause of action set up in the complaint. They insist that the allegation, that the defendants built the embankment on their own land, on the highway or turnpike, and on the plaintiff's land, is merely descriptive of its locality, and that the gravamen of the action is the consequential injury. If this were so, there would be a good ground of demurrer before the code for a misjoinder, because the statute, 2 R. S., 553, s. 16, allowing case to be brought instead of trespass, does not apply to injuries to the freehold. (See 10 Wend., 324.) For those, the remedy was left as at common law. If, then, here is a misjoinder at common law, it is because trespass and case were united in the same declaration, contrary to well settled practice. If trespass and case could not be united in the same declaration before the code, though in different counts, they cannot be united in the same action now, unless they are separately stated, that is, set forth in different counts. “If the complaint had conceded that the embankment was rightfully built, and had claimed damages only for the unskilful or improper manner of its construction. the jury would not be warranted in giving damages for the entry on the plaintiff's lot. But the complaint states that it was wrongfully built, as well on the plaintiff's as on the defendants' lot. Thus it opens the case for proof of damages for the unlawful entry on the plaintiff's land, as well as for the consequential injury resulting from its erection on the defendants' own land and on the turnpike.”
And where a complaint charged that the defendant, on the first day of May, 1848, and on divers other days and times before that time and the commencement of this suit, at the town of Princetown in Schenectady county, and at the town of Guilderland in Albany county, maliciously spoke, uttered, and published, to and of and concerning the said plaintiff the following false, slanderous, and defamatory words, and then detailed three or four sets of words addressed to the plaintiff and the like number spoken of him. The words related to different subject matters, and each set of words appeared to be a distinct cause of action; but they were all united in the same complaint, without being divided into separate counts, or statements. The court state: “The complaint is bad, because it unites several causes of action without stating them separately. The 167th section of the code lays down the rule with respect to joinder, in the same complaint, of several causes of action. The causes of action so united, must all belong to the same class, of which the code specifies seven ; they must affect all the parties to the action; they must not require different places of trial; and they must be separately stated. The separate statements of a cause of action, and the separate counts of a declaration are equivalent expressions. The necessity of having each stated by itself in a different count, is as imperative under the code, as under the former mode of pleading. By stating each separately, confusion is avoided, a definite issue can be framed on each cause of action, and the action can be more conveniently tried. All good pleaders under the code, imitate the former mode of separating the pleading into as many separate statements, or counts, as there are causes of action. In the present case there are at least four causes of action jumbled together. The words spoken at Princetown to the plaintiff must be a different cause of action from that created by the words spoken at Guilderland. Each of these must be different from the words spoken at the other places respectively named. Indeed, a far greater number of causes of action are alleged, but four is the smallest number to which they can be reduced. “Had the defendant demurred to the whole complaint for the reason that several causes of action were improperly united, as he might have done by s. 144, sub. 5, he would have been entitled to judgment. Several causes of action are improperly united, and they are not separately stated as required by s. 167. But as the defendant has not stated this as a ground of demurrer he cannot now avail himself of the objection.” Pike v. Van Wormer, 5 Pr. R., 172, and see 23 Wend, 35. Several causes of action, arising on several judgments, may be joined in one action. Bank of N. America v. Suydam, 1 Code Rep. N. S., 325. And the junction of account sales with 'promissory notes was held to be proper, by Roosevelt, J., in Wellman v. King, unreported. In all cases of more than one distinct cause of action, defence, counter-claim, or reply, the same shall not only be separately stated, but plainly numbered. (Rule 87 of supreme court rules.) The rule prescribes no penalty for omitting to comply with it. It is presumed the proper remedy would be a motion to make the pleading more definite and certain. In Benedict v. Seymour, 6 Pr. R., 298, Selden, J., says that a failure to distinguish the separate causes of actions or defences, subjects every allegation not essential to a single cause of action or defence to be struck out. If two or more actions be brought by the same plaintiff, at the same time, against the same defendant, for causes of action which may be joined, the defendant may Inove to consolidate the actions. 2 R. S., 2d ed., 305, s. 37. And if one or more of such actions be pending in the supreme court, and others be pending in another court of this State, the supreme court may order the actions in the other court to be consolidated with that in the supreme court; and when several suits are commenced against joint and several debtors in the same court, the plaintiff may, in any stage of the proceedings, consolidate such actious. Ib., ss. 38, 39. 3 Wend., 442. 9 ib., 451. 19 ib., 23. 4 Hill, 46. 9 Price, 393. The granting or refusing a motion to consolidate rests entirely in the discretion of the court. 2 R. S., 2d ed., 305, s. 37. Therefore, from an order granting or refusing a motion to consolidate, no appeal can be taken. If the grounds of the motion are not denied, and it does not appear that the plaintiff will be materially prejudiced by the consolidation, it has been customary with the courts to grant the motion (19 Wend, 23), not only where both or all the suits are brought at the same time, but where they are brought at different times, and although at the commencement of the first action the cause of action in the other had not accrued. The test for allowing the motion is, are the questions to be tried identical ? If they are, the motion to consolidate should be granted (4 Hill, 46) unless it will prejudice the plaintiff (3 Hill, 450). The defendant, to entitle him to an order to consolidate, need not swear to merits (3 Wend.,443); for the motion will be granted where no defence is intended, merely to avoid the expense of several judgments. 4 Hill, 47. 3 Wend., 442. Where it is doubtful whether an order to consolidate should be made, an affidavit of merits could not fail to affect the exercise of the discretion of the court. Where several actions are brought on one policy of insurance, the court, on the application of the defendant, and with the consent of the plaintiff, will grant an order to stay the proceedings in all the actions but one, the defendant undertaking to be bound by the verdict in such action, and to pay the amount of their several subscriptions and costs, in case the plaintiff should recover. This mode of consolidation, however, has been held to apply only to several actions on one policy, and not to extend to several policies on one risk. 1 Caines R. 114.
§ 168. [144.](Amended 1849–1852.) Allegation not denied, when to be deemed true.—Every material allegation of the complaint, not controverted by the answer, as prescribed in section one hundred and forty-nine; and every material allegation of new matter in the answer, constituting a counter-claim, not controverted by the reply as prescribed in section one hundred and fifty-three, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter-claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.
Before the amendment of 1852 this section read, “Every material allegation of the complaint not specifically controverted by the answer, as prescribed in section 149, and every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in a reply shall not in any respect conclude the defendant, who may on the trial, countervail it by proofs, either in direct denial or by way of avoidance.” This section “is not applicable to pleadings in justices' courts.” Per Willard, J., in McNamara v. Butely, 4 Pr. R., 44, 47. In Young v. Moore, 2 Code Rep., 143, it was held that where in a justice's court the defendant appears and puts in an answer, the provisions of this section apply to such answer; and therefore, where in a justice's court the defendant appeared and put in an answer of payment and set-off, it was held that it was not necessary for the plaintiff to prove his account—it was admitted by the defendant's answer; and again it was said, that an answer of payment in those courts admitted the making the contract sued upon. De Courcy v. Spalding, 3 Code Rep., 16. A defendant who does not answer is not to be taken as admitting any thin contained in an answer of a co-defendant in which he has not participated. Wood. worth v. Bellows, 4 Pr. R., 24. “The 144th section of the code of 1848 was confined to allegations of fact, and did not refer to an averment of the legal effect of written instruments; nor can it be applied to the intention of parties when they execute a written contract. An answer which contains an allegation of the meaning of a written contract or agreement, but does not deny its execution, should be deemed by the court an 'immaterial allegation,’ and disregarded at the trial. “Nor can such answer be deemed equivalent to an allegation of mistake or surprise in the execution of the agreement, so as to entitle the defendant to have it avoided on either of those grounds.” Barton v. Sackett, 1 Code Rep., 96; 3 Pr. R., 358. “We have frequently decided, and until a different construction of the code shall be enforced upon us by a higher authority, must continue to decide, that only those allegations in a complaint are to be deemed material in the sense of the code, which the plaintiff must prove upon the trial in order to maintain his action. It is upon these only that an issue can properly be taken; and it is of these only that the truth is admitted by the omission in the answer of a specific denial.” Per Duer, J., in Fry v. Bennett, 1 Code Rep., N. S., 245. Newman v. Otto, 4 Sand. S. C. R., 668. And see Harlow v. Hamilton, 6 Pr. R., 475.
Mistakes in pleading, and Amendments.”
Section 169. Material variances, how provided for. 170 Immaterial variances, how provided for. 171. What to be deemed a variance. 172. Amendments of course. 173. Amendments by the court. 174. Court may give relief in case of mistake. 175. Suing a party by a fictitious name. 176. No error or defect to be regarded, unless it affect substantial rights. 177. Supplemental complaiut, answer and reply.
§ 169. [145.] (Amended 1849.) Eristing suits. Material variances, how provided for.—No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice,
* “One of the wisest and most beneficent parts of our law is the statute which confers on our courts the power of amendment ; and the courts have been continually becoming more and more liberal in carrying its provisions into effect.” Per Edmonds, J., in Williams v. Wheeler, 1 Barb. S.C.R., 48. Section 145 of code of 1848, for which this section is substituted, and which in the material part, uses the same language, pleading or proceeding, was held not to apply to affidavits, at least so far as to authorize an amendment of the name of the court. Clickman v. Clickman, 1 Code Rep., 98. 3. How. Pr. R., 365. 1 Coms. 611. And where affidavits to be used in the court of appeals were entitled in the supreme court, they were held defective, and the motion was denied on that ground. Ib. But where in an action in which the delivery of personal property was claimed, an affidavit in support of the claim was found to be defective (but not in the name of the court), the court permitted the plaintiff to amend the affidavit, and without a special motion for the purpose. Spalding v. Spalding, 1 Code Rep., 64. 3 Pr. R., 297. Dows v. Green, 3 Pr. R., 377.
The provisions of the revised statutes (2 R. S., 424, ss. 5, 6) are not repealed by the enactments of this chapter, but this chapter and the provisions of the revised statutes are to be construed together. Brown v. Babcock, 1 Code Rep., 66. It is a settled principle with the court that its suitors shall not be prejudiced by the mistakes or misprision of its officers, and amendments in such cases are generally matters of course. Neele v. Berryhill, 4 Pr. R., 16; and see note to section 384.
The decisions under the revised statutes as to amendments, are said to be safe guides as to the terms upon which similar amendments will be allowed under the code. Brown v. Babcock, 1 Code Rep., 66. 3 Pr. R., 305.
The whole matter of amendments is in the discretion of the court. Smith v. Babcock, 3 Sumner, 410. And no appeal lies from an order granting or refusing leave to amend. St. John v. West, 3 Code Rep. 85. Planters' Bk. v. Walker, 3 Sme. 3. M.,409. Tanner v. Hicks, 4 ib., 294. Archer v. Stamps, ib. 353. Amendments were allowed in courts of equity according to the same rule as in courts of law. Jefferson's heirs v. Callis, 4 Dana, 467.
in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.
This section is identical with section 145 of the code of 1848, and under that section where two parties sued as plaintiffs, the one as the executor of Keese, and the other as the surviving partner of Keese, and it appeared on the trial, that only the surviving partner should have sued, Edmonds J., held that the variance was immaterial, and might be disregarded under this section. Keese, Ezor's of, v. Fullerton, 1 Code Rep., 52. And in an action by four persons as lessors, on the trial it appeared, that the lease was made by those four and another named Laight, since deceased, but that the interest of Laight survived to the plaintiffs, but no reason for the omission of Laight as plaintiff was assigned in the declaration. The court, Oakley, Ch. J., held, that the variance might be disregarded, and said, we leave the parties to apply by motion, to amend if they deem it prudent; on the motion the amendment will be allowed on such terms as the court deem just; and such will be the practice in future where the amendment is not made at the trial. De Peyster v. Wheeler, 1 Code Rep., 93. 1 Sand. S.C.R., 719. And see Clanton v. Laird, 12 Sme. 3. M., 568. In Lettman v. Ritz, 3 Sand. S. C. R, 734, an action for slander, the complaint set forth the words in English. On the trial it was proved that the slanderous words were spoken in German, and that the words in the complaint were a translation. The plaintiff applied for leave to amend by inserting the words spoken in German. The presiding judge suffered the cause to proceed with liberty for the plaintiff to move at chambers for leave to amend. The plaintiff had a verdict, and on motion at chambers, had leave to amend on payment of the costs of the motion, “it not appearing that he had been misled or surprised by the variance.” Under an averment in an answer that the property was “very poor and of very little value,” the defendant cannot prove that it was “worth nothing and of no value.” Diefendorf v. Gage, 7 Barb. S.C.R., 18. Where it was averred in a declaration, that the defendant represented the note to be “a good note, and that it would pass in South street,” and the proof was that he said “the note was good, and there were people in South street who would take it,” held not to be a substantial variance. Hawkins v. Appleby, 2 Sand. S. C. R., 421. Plaintiff permitted to amend on the trial, by striking out the name of one of the defendants. Burns v. Bronson, 1 Code Rep., 27. Plaintiff permitted to amend on the trial, by changing the form of action from an action on a promissory note to an action on a special contract. Jackson v. Sanders, 1 Code Rep, 27. Evidence of a special agreement is admissible in an action by a daughter against her father for wages, although the plaintiff claimed to recover on an implied agreement only. The defendant not having been misled. Fort v. Gooding, 9 Barb. S. C. R., 371. In Getty v. Hudson River R. R. Co., 6 Pr. R. 270, Parker, J., says, “If a plaintiff asks for equitable relief and it turned out on the trial he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for legal relief only when it appeared he was entitled to both legal and equitable, I should allow the proper amendment to administer complete justice in the case. The power to amend authorized by the code is ample for such purpose.” “In trying a cause at the circuit, I should most certainly allow whatever amendment in the pleadings was necessary to give the parties redress.” On a trial at the circuit, the pleading may be made to conform to the proof; immaterial allegations may be disregarded, immaterial evidence rejected, and such judgment may be directed as the facts and the law of the case require. Corning v. Corning, 1 Code Rep. N. S., 351. After verdict for the plaintiff for an amount exceeding the amount demanded by the complaint, an amendment of the complaint by increasing the amount demand