defendant is a resident or a non-resident. On an order for reference being obtained, the referee proceeds in the usual course and makes his report. The plaintiff may then move for confirmation of the referee's report and for judgment.

The above is the course usually pursued, and seems the more regular, but we know that in one case the plaintiff, instead of moving for a reference, moved for judgment in the first instance.

The action was a money demand on contract, the defendant a non-resident, and the service had been by publication. The plaintiff, on the order for publication, affidavit of mailing copies of the summons and complaint, affidavit of publication, affidavit of no answer having been received, and that defendant was a non-resident, and an affidavit of the plaintiff that the amount claimed by the complaint was justly due and owing, and that no payments had been made to him the plaintiff, or to any one for his use, on account of such demand, moved for judgment. Roosevelt, J., before whom the motion was made, said he doubted whether the affidavit of the plaintiff was sufficient proof of the demand within the meaning of this section, but he allowed the plaintiff to take judgment.

The question seems to be: is an affidavit of the plaintiff sufficient proof of the demand, and will his affidavit satisfy the requirement that he shall be “examined on oath," respecting any payments?

As to "proof," it is "any thing which serves either immediately or mediately to convince the mind of the truth or falsehood of a fact or proposition." Best on Ev. (Burrill Law Dict. Proof). And see Wills on Crim. Ev., 2, 3'; Greenl. Ev. 1; Jacobs' Law Dict. Proof.

And to show that proof, in this section, may be satisfied by the affidavit of the plaintiff, see sub. 1, by which the plaintiff is required to file with the clerk proof that no answer has been received. Where the plaintiff sues in person, his affidavit is the only means by which the non-receipt of an answer can be proved, and the plaintiff's affidavit would be sufficient proof.

Again, the 2d of the rules of the court of appeals requires an "affidavit proving when the appeal was perfected. The court of appeals has held that an affidavit of the plaintiff, the respondent, was an "affidavit proving."

And an ex parte affidavit of a judgment creditor is sufficient "proof" of the return of an execution unsatisfied to warrant the granting an order under section 292. Conway v. Hitchings, 9 Barb. S. C. R., 378.

Marine policies contain a clause requiring “proof of loss." This does not mean such proof as would carry a cause to a jury, but only such as furnishes a reasonable presumption of the loss claimed. Child v. Sun Mut. Ins. Co., 3 Sand. S. C. R., 26, confirming on this point, Talcot v. Marine Ins. Co., 2 Johns. R., 130. Barker v. Phoenix Ins. Co., 8 ib., 307. Lawrence v. Ocean Ins. Co., 11 ib., 242. Pacific Ins. Co. v Catlett, 4 Wend., 83.

On the other hand, it is said, "When a statute requires proof to be made, it must be made by legal evidence, unless from the context or other qualifying words it is apparent the legislature intended that the fact might be shown by affidavit or in some other manner." Buffalo and State Line R. R. Co., v. Reynolds, 6 Pr. R., 98 ; and in Brown v. Hinchman, 9 Johns. R., 75, it is said, "Proof means legal evidence, and that cannot be by the parties own oath unless the statute expressly says so." Terry v. Fargo, 10 ib., 114. Steenburg v. Harty, 10 ib., 167.

Appeal from Judgment by default.

In one case it was held by the New York court of common pleas, that where a defendant suffered judgment to be taken against him for want of an answer, he could not appeal from such judgment. Jones v. Kip, 1 Code Rep, 119; but in Raynor v. Clark, 3 Code Rep., 230, the supreme court said, All that a party admits by suffering a default, is the truth of the facts alleged against him, and if a declaration under the former system did not contain sufficient to show a cause of action, the defendant could take advantage of the defect either by motion in arrest of judgment, or writ of error. For a like defect in a complaint, under the code, the defendant may appeal from the judgment to the general term. The form of the remedy only is changed. Calligan v. Hallett, 1 Caines R., 104.

See section 353 of this code.

§ 247. Judgment on frivolous demurrer, answer, or reply.— If a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.

The code of 1848 had no corresponding section to this; and under that code it was at first held, that a motion to set aside a demurrer as frivolous, would not be entertained, and that the proper course was to place the cause on the calendar. Partridge v. McCarthy, 1 Code Rep., 49. And in another case it was said there is no law for treating even a frivolous demurrer as a nullity; the only mode of getting rid of it is to put it on the calendar. Swift v. De Witt, 1 Code Rep., 25. But under these rulings, frivolous pleadings began to multiply, and the court was, as it were, forced to hold that even under the code of 1848, where a frivolous answer or demurrer was interposed, the opposite party might move for judgment, as for want of an answer, on the notice prescribed for special motions. Noble v. Trowbridge, 1 Code Rep., 38; Hartness v. Bennett, ib., 86; Corning v. Haight, ib., 72. And it was further held, that a party did not waive his right so to move by answering such frivolous pleading. Stokes v. Hagar, 1 Code Rep., 84. We apprehend, however, that it would not be safe to move under this section, after having answered the pleading objected to.

The court will not strike out a demurrer as frivolous, unless it appears to be taken merely for the purpose of delay, or unless the grounds of demurrer set forth are clearly untenable. Neefus v. Kloppenburg, 2 Code Rep, 76.

In a case of doubt, the court will not adopt the stringent and summary mode of giving judgment by striking out a pleading as frivolous. Per Crippen J, in Temple v. Murray, 6 Pr. R., 331; and see to the same effect, Rae v. Washington Mutual Ins. Co., 1 Code Rep. N. S., 185.

Where a complaint by an endorser of a promissory note, alleged that the plaintiff was the "lawful holder" of the note, and the defendant demurred, alleging for cause, that it did not appear by the complaint that the plaintiff was the "owuer of the note, the court refused a motion to set aside the demurrer as frivolous. Beech v. Gallup, 2 Code Rep., 66.

An answer which denies a material allegation in the complaint, cannot be struck out as "frivolous." Davis v. Potter, 2 Code Rep., 99. Temple v. Murray, 6 Pr. R., 331.

Under the former practice, where a party moved to strike out pleas as false and frivolous, his notice not specifying any ground for the motion, and his affidavits alleging only that the pleas were false, held, that he could not avail himself of the frivolousness of the pleas. Maury v. Van Arnum, 1 Hill, 370.

Much doubt has arisen in practice, as to when it is proper to move under this section and when to demur. In Scovell v. Howell, 2 Code Rep, 33, the answer avowedly addressed itself to the plaintiff's bill of particulars, instead of to the complaint, and the plaintiff moved under this section for judgment; but the court said the answer was insufficient, and if "the plaintiff had demurred, he undoubtedly would have succeeded; but he has mistaken his remedy" by asking for udgment under this section; and the motion was denied.

In Darrow v. Miller, 3 Code Rep., 241, Sill, J., said, The mischiefs which section 152 and section 247 were designed to remedy, have, I think, as well as the remedies themselves, been somewhat confounded; and his honor came to the conclusion in that case, that to authorize an order upon a motion to strike out an answer as frivolous, it must appear that the answer is a "sham pleading," which does not necessarily follow from its being merely frivolous.

"A frivolous answer is quite different from a sham answer. It is an answer which, if true, does not contain any defence to any part of the plaintiff's cause of action; and its insufficiency as a defence must be so glaring that the court can determine it upon a bare inspection, without argument. It differs totally from a sham answer in this, that the one is always assumed to be true, and the other must always be proved to be false; one is always bad on its face, the other generally good; one is decided by inspection, the other by proof aliunde. I cannot concur with those who suppose

sham and frivolous pleadings are confounded under the code. I think they occupy, as they always did, distinct grounds." Per Barculo, J., in Nichols v. Jones, 6 Pr. R., 358. And see, to the like effect, Brown v. Jenison, 1 Code Rep. N. S., 156.

An answer to a complaint filed under the mechanics' lien law, setting up that the work and labor of the claimant were performed before the passage of the lien law of July, 1851, was refused to be stricken out as frivolous. Smith v. Manice, 1 Code Rep. N. S., 263.

A frivolous demurrer cannot be treated as a nullity. 4 Hill, 56.

The late supreme court adopted the practice of striking out pleas which were palpably frivolous Heaton v. Bartell, 13 Wend., 772. Lowry v. Hall, 1 Hill, 663. But to justify striking them out, they must be not only frivolous, but palpably so, and to a degree that will satisfy the court that they were interposed merely for delay, or with some other improper motive. Maury v. Van Arnum, 1 Hill, 370. Fisher v. Pond, id., 672. Melville v. Hazlett, 18 Wend., 680. Davis v. Adams, 4 Cow., 142, Lowrie v. Hall, 1 Hill, 663. And see Balmanno v. Thompson, 6 Bing. N. C., 153. The 152d section of the code simply applies the former practice of striking out sham defences to the new system of pleading; and an answer which is shown, by its falsity or palpable frivolousness, to be put in for delay merely, or other improper object, will be stricken out as a sham defence, in the same manner, and for the like reason, that a plea embracing the same matter would have been set aside under the former practice.

But a pleading may be frivolous, and still be interposed in good faith. Miller v. Heath, 7 Cow., 101. Patten v. Harris, 10 Wend., 623. And unless the want of good faith is manifest, the pleading, though technically frivolous, should remain on record. For a party has the right to have any defence, honestly interposed, passed upon, not only in the court of original jurisdiction, but in a court of appeal. In such a case, the remedy of the party alleging the frivolousness of the pleading is, if he desire a summary decision, to move for judgment under section 247.

An answer would not, under the former practice, be struck out as frivolous, solely on the ground that the court had previously held a similar answer bad on demurrer. Davis v. Adams, 4 Cow., 142.

The motion to strike out a pleading as frivolous must be made at the special term; the order for that purpose cannot be granted at chambers. Darrow v. Miller, 3 Code Rep., 241.

A motion for judgment, on the ground that a demurrer put in to the complaint is frivolous, may be made, although twenty days have not elapsed since the service of the demurrer. If, within the twenty days allowed for amending, the party so amend the demurrer that it is no longer frivolous, the motion will be denied without costs. Currie v. Baldwin, 4 Sand. S. C. R., 690. See, however, Williams v. Wilkinson, 1 Code Rep. N. S., 20.

There is no time limited within which the motion is to be made. Darrow v. Miller, 3 Code Rep., 241.

The motion may be made on the copy pleading served, and no affidavit is necessary. Ib.

The judgment must be granted or refused on what appears upon the pleadings alone, and an affidavit, if served, could not be taken into account, in deciding this question. In this respect, it is like a motion in court for judgment upon demurrer, or upon a pleading not answered. By this, it is merely intended that no affidavit need be served with the motion papers; for if the defendant do not appear to oppose the motion, the plaintiff must give proof of the reception of the answer and of the service of the notice of motion. Ib.

To authorize the granting of judgment under this section, the notice of motion must ask either for “judgment" or "relief;" and where a notice of motion, after asking for an order to strike out an answer as frivolous, concluded by asking for such other "order," &c., it was held, that under such a notice relief could not be given under this section, because the relief granted in this section is not an order, but a judgment. lb. Rae v. Washington Mutual Ins. Co., 1 Code Rep. N. S., 185. And see Maury v. Van Arnum, 1 Hill, 370.

The application for judgment under this section, and decision on such application, is a summary trial of an issue of law. And the decision of such application is a judgment. Bentley v. Jones, 3 Code Rep., 37; 4 Pr. R., 335. King v. Stafford, 5 Pr. R., 30.

The insertion of leave to answer does not make such decision an order. Ib.

To obtain a review of such decision, the party dissatisfied must appeal from the judgment entered on such decision. Ib.

The words, "judgment may be given accordingly," do not necessarily require judgment to be entered by the clerk, on the decision of the judge, for the sum mentioned in the complaint, without any assessment of damages, or proof as to the amount due the plaintiff. This would work gross injustice, especially where the action is in tort, or on contract, for unliquidated damages. The idea that judgment is to be immediately entered in such cases is negated by section 269. Ib.

And see, now, the amendment to section 269, and note to sections 152 and 246. Motions for judgment on account of the frivolousness of a demurrer, are often granted, with costs. What authority has the court to grant costs in such a case? See 1 Code Rep. N. S., 271, n.

Where there is an issue of law and an issue of fact, no judgment for costs can be entered in favor of the party who prevails upon the issue of law, until the issue of fact is disposed of. Masters v. Barnard, 6 Pr. R., 114.

By rule 46 of the equity rules of 1847, on a plea or demurrer being overruled as frivolous, the defendant might, on payment of costs, put in an answer within twenty days, or within such other time as may be prescribed by the court. It is now the more common practice, after a demurrer has been overruled as frivolous, on the production of an affidavit of merits, to admit the defendant to put in an answer within a limited period, on payment of costs. Under the practice in chancery, the defendant could not, after a plea or demurrer had been overruled as frivolous, have an ex parte order for further time to answer, beyond the time allowed by the order overruling the plea or demurrer. Trim v. Baker, 6 Turn. and R., 253. Hurd v. Haynes, 9 Paige, 604. The decisions in these cases appear applicable to the present practice.

CHAPTER II.

Issues and the mode of trial.

SECTION 248. The different kinds of issues.

249. Issue of law.

250. Issue of fact.

251.

252.

On issues of both law and fact, the issue of law to be first tried.
Trial defined.

253. Issues, how tried.

254. Other issues to be tried by the court.

255. Issues, where to be tried.

256. Either party may give notice of trial. Note of issue.

257. Order of disposing of issues on the calendar.

$248. [203.] The different kinds of issues.-Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds:

1. Of law; and

2. Of fact.

§ 249. [204.] Issue of law.-An issue of law arises,

Upon a demurrer to the complaint, answer or reply, or to some part thereof.

circuit court or special term, and shall unless the court otherwise direct, have preference on the calendar.

This section prior to the amendment of 1851, was as follows:

All issues, whether of law or fact, triable by a jury or by the court, shall be tried before a single judge. Issues of fact in the supreme court, shall be tried at the circuit courts, issues of law in the first instance at a circuit court or special

term.

The words in italic are the amendments of 1852, the words "circuit court or special," are substituted for the word “general” and the words “otherwise direct, have preference on the calendar," are substituted for the words, "order the trial to be had at a special term."

"The provision allowing an issue of law to be tried before a single judge, at any time, is designed to prevent the delay which now sometimes arises from a demurrer put in for that purpose alone," Codifiers' note, Civil Code, s. 763.

On the 6th of October 1851, the supreme court, in the first district, made the following rule:

Pursuant to sec. 255 of the code of procedure, it is ordered that all issues of fact wherein the trial is not required by the statute to be by a jury, all issues of law, all points of law reserved by a judge at chambers, and all cases made subject to the opinion of the court, shall be first heard and tried at a special term, unless otherwise ordered in each particular case.

And, it is further ordered, that all cases now on the calendar of the general term, or circuit, and which are included in the foregoing order, shall be transferred by the clerk to the special term calendar, and be heard and tried there without any further notice from the attorneys to the clerk, or to each other.

$ 256. [211.] Either party may give notice of trial. Note of issue.-At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue, containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

This section is identical with section 211 of the code of 1848, under which it was held, that a notice of trial served on the 9th, for the 19th, the 19th being a Monday, was a notice of ten days, and a sufficient notice under this section, Easton v. Chamberlin, 3 Pr. R., 412, 413. And a notice of trial served on the 11th, for the 21st, held good. Dayton v. McIntyre, 5 Pr. R., 117. See section 407, note. Either party may notice a cause for trial before a referee. Williams v. Sage, 1 Code Rep., N. S., 358.

The words "before the court," when applied to actions pending before a referee, should be construed before the day named in the notice, or designated by the referee for the trial. Ib.

Williams v. Sage, supra, was decided in direct opposition to a dicta of Johnson, J., (in Holmes v. Slocum, 6 Pr. R., 219) that section 256 relates exclusively to issues to be tried at the circuit.

By the rules of the New-York common pleas, the notice of trial must be for the first day of the term, and where the parties agree in writing to waive a trial by jury, the note of issue is to state such consent. See rules in appendix,

Notes of issue for the general term are to be filed four days before the commencement of the court at which the cause may be noticed. See rule 34 of supreme court rules in appendix.

In the court of appeals either party may bring on the argument on a notice of eight days, which notice except in criminal cases is to be for the first day of the term. A copy of the notice specifying the judicial district in which the cause originated, is